Dr. Toch is semi-retired from private practice of hospital-based radiology in the Los Angeles, CA area. He has taught at Columbia and Cornell Universities, as well as the University of California at Irvine and Los Angeles. He also serves as a mediator and as a temporary judge for the Los Angeles County Superior Court system.

Medical malpractice is a fact of our professional lives. Approximately 1 radiologist in 10 will be sued during any given year. This means that after 5 continuous years of practice, the probability that any given radiologist will not have been sued at least once is in the range of only 60%, and after 25 years of continuous practice the probability will have dropped to about 7%. ¹

The effect upon the radiologist who is threatened with a lawsuit is significant. There is loss of time, loss of self-esteem, loss of money, and, potentially, loss of the right to practice for the following two reasons. 1) Malpractice insurers may cancel or refuse to renew the radiologist's malpractice insurance policy. This effectively eliminates a radiologist from hospital practice, since almost all hospital staffs now require proof of such insurance to maintain privileges. It would also be a serious disadvantage in private office practice and/or in finding a job. 2) Governmental regulatory agencies (e.g., state medical boards) may take action adverse to the radiologist's medical license. At the very least, if the matter results in a fairly clear-cut case of malpractice with a significant award of damages to the injured party, then the radiologist's malpractice insurance premiums are likely to rise.

Some measures can be taken to decrease the likelihood of the threat of a suit, of actually being sued, and of the suit's being successful if it is brought. It behooves every radiologist to acquire some knowledge of the techniques of malpractice risk reduction early in his/her career, and to establish habits and modes of practice that are suited to these techniques and to this end.

Medical malpractice: A glossary of terms

Medical malpractice is a form of legal action or procedure intended to provide a remedy, usually in the form of monetary compensation, to a plaintiff who has established that he or she was injured as the result of a misdeed arising from circumstances surrounding the provision of medical care. It may take a number of legal forms; e.g., tort, contract, or vicarious 1iability, often alleged in combination.

A tort is an act or an omission to act that causes harm or injury to another, and that violates a duty stated or implied in the law. Torts may be intentional or unintentional. Intentional torts are those in which the tortfeasor (the individual who has committed the tort upon another) is, or should be, aware of the wrong he is committing, and therefore does something intentionally that the law prohibits and that harms another. For example, battery is a nonconsensual touching of another (e.g., a punch; but not between prizefighters, who have obviously consented). Negligence is a tort that is unintentional but arises out of some act or failure to act that a reasonably prudent person would not have committed because of the probability that it might harm another. Most medical malpractice falls into the category of negligence.

A contract is an agreement between or among parties to provide each other with certain goods, services, guarantees, etc., usually based upon mutual promises. The contract confers duties upon the parties to perform with respect to the other parties in the manner specified in the contract (which is usually in writing, but can be merely oral in form). A breach of the contract occurs when a party (or an agent; that is, someone acting on behalf of that party) fails to perform what the duty binds the party to do (or possibly not do).

Note that the duty in tort arises out of law, and pertains to all other persons in the world. In a contract, the duty arises out of the privately agreed-upon contract among the parties and extends only to those parties to the contract and to certain other persons who may have certain specified relations to them, such as their agents.

Vicarious liability is the liability that arises when someone is harmed by the act or omission of a third party who is related through a legally recognized connection to the party who is vicariously liable. The most common such connection is called "master-servant," and the employer-employee relationship is the classic example of this. This leads to a doctrine called respondeat superior --the employer is responsible for the actions of employees while the employees are acting in the scope of their employment.

Vicarious liability tends to be the major source of malpractice suits involving hospitals and other healthcare-providing organizations. Since they are entities, rather than actual living persons, any harm is inflicted by one of their agents rather than by the entity itself.

Since a business relationship exists between a physician and a patient, there is generally found to be a contract between the physician and the patient. So many malpractice complaints will allege both contract and tort causes of action. Furthermore, since persons under the supervision of the physician (e.g., nurses, aides, orderlies, technical personnel, etc.) may be involved in the infliction of the damage, vicarious liability is also claimed frequently. For the radiologist, the doctrine of vicarious liability is important whenever technicians or other health-related personnel are charged with causing harm to patients while working under the direction of that radiologist.

The law uses the term elements of a tort to describe the basic requirements that must be met in order for a plaintiff to prevail against a defendant in a given action. If the plaintiff does not allege all of the necessary elements in the initial complaint (the first document filed with the court by the plaintiff), then the lawsuit is subject to dismissal without any showing of defense on the part of the defendant. In the case of a tort, which is the most common type of medical malpractice cause of action, there are four elements. These are: a duty owed to the plaintiff from the defendant; a breach of that duty; damage to the defendant; and the damage proximately caused by the breach of duty alleged.

Malpractice avoidance

The avoidance of malpractice may be seen as analogous to the avoidance of damage from unseasonable climate; namely, avoiding the elements.

Duty

Duty is practically impossible to eliminate, since simply taking on the patient (including the act of interpreting the patient's imaging examination) produces the requisite relationship for creating a duty. The duty that is thus acquired by the physician is to manage the patient within the standard level of care, and not to fall below that quality standard. For specialists, including radiologists, that standard is generally a nationwide one.

Breach of duty

Whether or not a physician has breached his duty to provide care within the standard level of care, and thus has fallen below that level, is a determination which usually requires the testimony of medical experts, since, in general, laymen are not considered qualified to render such testimony.

This has, coincidentally, created a relatively new and sometimes quite lucrative area of medicine: acting as an expert medical witness. Clearly, it is incumbent upon all radiologists to do the best work we are capable of doing consistently, and to maintain our skills as the newer modalities appear on the scene, to minimize our errors. If no error is made, then clearly there is no breach of duty. Nonetheless, studies show that errors in diagnosis simply do occur, as frequently as 30% of the time, even among competent radiologists. ¹ This causes the application of the standard of care in many cases to fall within a gray area, with wide differences of opinion between experts testifying for both sides.

Damage

This is probably the single most important element. There are generally two components involved, the economic and the noneconomic. Economic damage consists of the cost of medical care resulting from the injury, the actual or projected loss in income to the injured party, and such other losses as are considered fairly readily susceptible to arithmetic calculation. Noneconomic damages, on the other hand, generally represent compensation for pain and suffering, which is obviously not calculated readily. By law in many states, noneconomic damages are limited to capped dollar amounts. Also, noneconomic damages may, by state law, be available only during the lifetime of the injured party.

This can make a malpractice suit brought by the heirs of an elderly, retired person, however egregious the circumstances of the case, unappealing to an attorney being paid on a contingent-fee basis (that is, the attorney's fee is a percentage of the amount settled for or won at trial). In short, since attorneys who are on contingency bring the great majority of malpractice suits, the estimate of the amount of damages becomes critical in the attorney's determination of whether or not to take the case. Clearly, in making this determination, the attorney considers the age, earning capacity, and prior health status of the injured party, and it appears that many lawsuits that would be otherwise highly meritorious are never filed because of the expectation of a small monetary recovery.

Proximate cause

Proximate cause is the term used in the law for a causal connection between the breach of duty and the damages sustained. It is composed of two parts: actual cause and legal cause. Actual cause is rather simply determined by the "but-for" test; that is, if the damage would not have been sustained had the breach not occurred, then the requirement of actual cause is met. For example, in the instance of a radiographic contrast reaction, if the damage sustained by the patient (e.g., permanent brain damage as a result of anaphylaxis) would not have occurred absent the injection of contrast to someone with a known history of dye intolerance, then actual cause is present.

However, the legal cause component assesses the legal connection of the breach to the resulting injury. If a superseding use (an unforeseeable intervening cause that becomes the proximate cause of the effect) arises, the initial breach may be considered remote, and the perpetrator of that breach may be absolved of liability for the injury to the plaintiff. Consider the same example of the patient's dye reaction, except that the dye reaction is treated promptly and successfully, and the patient is discharged from the radiology department in excellent condition, but not until 2 hours later than he would have otherwise been released. Assume also that, as a result, the patient misses the bus he would normally have taken home; he hails a cab, and that cab is involved in a serious accident in which the patient is injured. To be sure, had the patient not been injected and sustained the dye reaction, he presumably would have met the bus on time, and arrived home safely. Thus, "but for" the radiologist's breach of duty, the subsequent injury would not have occurred. However, the law is too practical to permit this kind of lawsuit to succeed.

Here the legal requirement of close and direct nexus between the claimed actual cause and the damage sustained by the plaintiff would not be satisfied. In this example, the cab driver's faulty driving led to the accident that caused the plaintiff's injuries; the dye reaction merely caused the plaintiff to miss the bus. In general, absent the intervention of an outside individual or force (such as the cab driver who caused the accident), actual cause is equivalent to proximate cause.

How to reduce malpractice risk

The major cause of malpractice suits against radiologists is failure to correctly interpret images, reportedly in 64% to 85% of suits (M. Campbell, SCPIE Co., personal communication, June 2001). What can radiologists do about this? It has been shown in a number of retrospective studies that errors are regularly made in the interpretation of radiographs. A commonly quoted incidence rate, based on hindsight studies, is that some 30% of subsequently discovered abnormalities could have been detected on earlier films, but were overlooked. ¹ This suggests that it is not possible for humans to interpret radiographs flawlessly. Furthermore, there are two fundamentally different types of errors in radiological diagnosis. The first of these is the missed diagnosis, that is, where the radiological finding representing the pathology is not mentioned by the interpreting radiologist, and does not appear in his report at all. The second is the misdiagnosis--the abnormal finding is detected and noted by the radiologist but is misinterpreted as representing something other than what it ultimately is shown to actually have represented. For example, the mammogram finding thought to represent a benign lesion, such as a fibroadenoma, ultimately turns out to have represented a carcinoma.

Many missed diagnoses are not really missed at all but are noted in the mind of the radiologist as unusual, but probably insignificant, findings. For this reason they are not reported. When, in retrospect, the unreported finding is shown to have represented pathology, it is too late for the radiologist to testify that he saw it but did not think it was significant. Indeed, that testimony in itself would tend to prove that the lesion was indeed detectable in the original film. This would therefore contradict the defendant's expert witness, who would likely be trying to convince the jury that the lesion would not be seen by a radiologist practicing within the standard level of care.

The lesson here appears to be that unusual findings on a film should be carefully scrutinized before being disregarded. In other words, if it bothers you, look at it twice, and if it still bothers you, you might want to ask for additional views. If the finding is still present on the additional views and you still don't think it's pathology, it may be well to mention it in your report, along with a description of the thinking process that led you to the conclusion that the finding is insignificant. If the finding is particularly troublesome on the original views but absent on the additional views, you still may want to mention its presence on the initial film(s) in your report, along with the fact that you have obtained additional views that negate its significance. Radiologists are frequently criticized for hedging, but this may be an instance where discretion is the better part of valor.

With respect to misdiagnosis, this is one of the advantages of giving a differential diagnosis in your report. Nonradiologic colleagues may accuse you of hedging, but the fact that you included the correct diagnosis in your report, even if it was not your first choice, is likely to help your case if the need arises at some time in the future. A possible balance between avoiding hedging and attention to malpractice prophylaxis may be to mention the various less likely possibilities in the body of the report, thus alerting the clinician to any lurking dangers, while naming only the most likely diagnoses in the "Impression."

Other factors that must be taken into consideration in reducing diagnostic errors include such common causes as fatigue, too great a volume of work for the time allotted, and a host of psychological factors that may lead to diminished attention to the job at hand. Simply be aware of these dangers and avoid them as best you can.

Conclusion

In our litigious society, medical malpractice lawsuits are a way of life. Therefore, make yourself as aware of all aspects of the situation as possible if it appears you may be, or are being, sued. In the majority of instances there is a "target defendant" (or several target defendants) who is the real target of the plaintiff's attorney. Other defendants are named just to complete the picture and for certain legal requirements or advantages gained by the plaintiff's side.

In that regard, it is always a good idea to get an early feel for your position in a pending action. You should be able to determine quite early if you are a target defendant or merely supernumerary (your attorney will most likely tell you). If you are not a target defendant, then try to relax and just follow the case as it unfolds. If you are a target defendant, then attempt to learn as much as you can about the case, as you may be able to assist your attorney in your defense. Your attorney is most likely a skilled professional and an expert in the law but, with rare exceptions, is not a physician. Even though he or she will have the assistance of a team of expert consultants and witnesses, you probably know more about your case than anyone else does, and therefore you may be able to point out critical factors that can be helpful to your case. Most experienced trial attorneys welcome medical input from their clients. Of course, this varies from individual to individual, and you must use your intuition and knowledge of human psychology to guide you in this. A good working relationship with your defense attorney is highly desirable and should be pursued.

Most medical malpractice actions end in results favorable to the defendant physician. It is estimated that up to 80% of the malpractice lawsuits that come to trial end in verdicts favoring the defendant. Of course, this excludes those cases that had been settled prior to trial, which often include the most obvious cases of clear malpractice.

Finally, have faith in the legal system. While, invariably, errors are made, by and large it is the feeling of those who deal regularly with these matters that justice does tend to be served, and right does tend to prevail in the majority of instances. AR

Author's note

This article is adapted from a lecture Dr. Toch gave to radiology residents at the University of California at Irvine.

Individual state laws vary considerably, and it is therefore desirable to contact local sources for information regarding specific malpractice risk avoidance. One good resource for this is medical malpractice insurance companies. These companies often sponsor risk prevention teams, some of which are available to lecture to groups such as medical staffs and radiological societies. The reader is cautioned that this paper is intended only as a generalized informational summary, and portions of it may be inapplicable in some jurisdictions and/or in specialized circumstances.