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%.
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
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
Medical malpractice: A glossary of terms
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
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.
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).
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.
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
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
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
--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
The avoidance of malpractice may be seen as analogous to the
avoidance of damage from unseasonable climate; namely, avoiding the
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
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.
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.
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
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.
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.
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
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
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.
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