Radiologists may see more malpractice lawsuits from a mammography study than another exam, but there are ways to reduce your risk and your costs.

It’s fairly well known that radiologists reading mammography studies are subject to more potential lawsuits than any other specialty other than perhaps obstetricians. But the malpractice situation has improved since the dark days of 2002 when many malpractice carriers went out of business due to a string of huge lawsuits. Today, radiology malpractice premiums are relatively low and available, there are inexpensive strategies to reduce risk, and a new study reveals that there are actually fewer mammogram-related lawsuits than anticipated by radiologists.

The State of Mammography and Malpractice

In general, malpractice liability rates for radiologists (excluding interventional practitioners) compare with other subspecialty rates. Yet, diagnostic reads for breast cancer still account for a large proportion of claims against radiologists.

According to the Physician Insurers Association of America (PIAA), a trade association of more than 60 medical malpractice insurance companies, breast cancer was the most common condition for which claims were filed against radiologists between 1985 and 2007. In addition:

  • Claims involving female breast cancer resulted in an indemnity payment almost 40% of the time between 1985 and 2007; for claims closed in 2007 alone, the rate was 31.2%.
  • The total indemnity paid for breast cancer between 1985 and 2007 was 33.7% of the total paid for all radiology claims.1

Brian Kern, Esq, principal at malpractice insurance agency, Argent Professional Insurance Agency, LLC, Warren, NJ, says that radiologists doing breast cancer reads are seeing a very competitive insurance environment. So long as a radiologist has less than two claims against them, there is generally a large selection of carriers with relatively low rates, especially for the larger physician groups and in states with government insurance boards that dictate rates and increases.

For those with two or more claims, there is the high risk or “excess and surplus” markets that will have higher rates, although at least the coverage is available now.

“In today’s market, when it’s as competitive as it can be, you’re going to find a lot of flexibility. But in 2002, when there was no capacity in the medical malpractice insurance market at all, there was no flexibility, so there were a lot of radiologists reading mammograms going into the high risk pool,” Kern said.

Today’s flexibility and availability include traditional commercial and physician-owned carriers, as well as the fairly recent Risk Retention Groups (RRGs). RRGs generally offer lower rates to both high and low risk physicians, but typically have a high “capital contribution” buy-in and the added risk of a short track record of paying claims through both good and bad times. With the insurance competition in the marketplace and the stock market currently in a downturn, the RRGs’ investment portfolio may not be as stable. As with all insurance choices, due diligence is required.

The Ironic Downside of Public Awareness

Public awareness about the life-saving benefits of early breast cancer detection has increased the perception that radiologists reading mammograms should detect or correctly diagnose a lump with every read. The hyperawareness about lawsuits is apparently affecting radiologists as well.

A study published in the February 2009 issue of the American Journal of Roentgenology surveyed radiologists in 2002 and 2006, asking them two questions:

  • Have you ever had a previous malpractice claim related to mammography?
  • What do you think is your future probability of being sued in the next 5 years?

When looking at the actual figures 5 years later, the physicians’ median estimate of their likelihood of being sued was four times greater than their actual risk.2

James Robb, senior vice president of claims for Medical Liability Mutual Insurance Co, New York, said, “There’s a public perception, probably enforced by the medical community, that early detection of breast cancer equates with a cure. Would that be so. But it’s that public perception that makes cases of a delay in diagnosis or failure to diagnose difficult to defend before a jury of lay people.”

R. James Brenner, MD, JD, FACR, FCOM, is director of breast imaging, Bay Imaging Consultants-Alta Eden Division, Carol Ann Read Breast Health Center, Oakland, and professor of radiology at University of California, San Francisco. He said, “Thanks to a lot of high-sprofile organizations—the Avon walks, the Koman Foundation projects—all have been helpful in gearing women’s attention to early detection. But when a woman feels that the lesion has been diagnosed at a stage that frustrates her conception of when it should have been detected, then one of the results is a lawsuit.”

Decreasing Your Risks of a Lawsuit

While it may be difficult to reframe physician and public perceptions about the reasonable risk of misdiagnosis, there are several strategies that mammogram readers can employ to reduce their risks of a malpractice lawsuit.

For Brenner, who researches and lectures on risk management, there are four important strategies: Triage, detection and technique, diagnosis, and communication.

  • Triage

“It’s very important to triage the patient correctly into a screening or diagnostic category,” Brenner said. “Often, the referring physician will give a form that is ambiguous, and I can’t emphasize enough: It is essential to reconcile that ambiguity before starting an exam. Since most women have lumps, if a specific ‘dominant’ lump is not taken seriously, because of a misleading history or ambiguous referral, then should she develop cancer next year, she may claim that that designated lump wasn’t attended to. That’s a common reason for lawsuits.”

  • Detection and Technique

Poor acquisition technique can lead to liability. For example, two common reasons for lawsuits is the failure to get enough breast tissue on the image and motion blurriness. Both of these technique issues are easily correctable, regardless of whether the imaging center is using film or digital. While it may cost more time, patient discomfort, and resources to perform repeat images, the technologist—and the patient—are better served reacquiring the image to get it right.

Brenner also added, “A common reason for lawsuits is the identification of what’s called the developing density. I don’t think this is appreciated by radiologists as well as it should be. The comparison of prior films is essential in arriving at that detection capability, but the effort to retrieve old films is sometimes insufficient. There are luminary radiologists, perhaps less familiar with the legal and medical directives, who give conflicting advice regarding old films, so radiologists can have a hard time sometimes appreciating what the right direction is.”

  • Diagnosis

“From a diagnostic point of view, there can be an overreliance without an understanding of the limitation of spot compression, with or without magnification,” Brenner said. “Spot compression view is not tantamount to a diagnostic workup, but sometimes if you have the neuroradiologist covering mammography once a month, that’s all they will be familiar with. In a field that’s so highly subject to litigation, you probably want to know a little bit more than the absolute basics.”

  • Clear Reporting and Communication

Clear and deliberate reporting is ultimately the responsibility of the radiologist. Brenner said, “Having a screening detected cancer, where you as the radiologist may be the only person in the world who knows that the lesion is suspicious, may require more than a simple transmittal of a report. Rather, it should involve direct communication. When I did a study with PIAA to evaluate the issue of communication, we found that the indemnity awards involved with communication are almost as high at times as misdiagnosis.”

Brenner realizes that there are going to be some lawsuits that are unavoidable, even when one applies all of the available risk management strategies. “We all miss things. We don’t see everything. And because our images are permanent copy, it’s there for review in the case of an alleged delayed diagnosis.”

Claims Manager’s Perspective

Robb has seen his share of claims come by his desk. He echoed much of Brenner’s advice, but Robb also added:

  • Adhere to Mammography Quality Standards Act (MQSA) criteria or document why you are not.
  • Classify lesions based on both mammography and ultrasound. A negative mammogram with a mass seen on ultrasound should be classified based on sonography, and not simply classified BIRADS I (Normal).
  • When there is a palpable abnormality or local symptoms, a diagnostic mammogram should be performed, rather than a screening mammogram.
  • A palpable mass combined with negative screening mammograms should lead to coned compression views and sonography.

While it is certainly important to also speak with patients, Robb feels that radiologists may soft-pedal their recommendations, and patients may not follow up.

“You can’t rely on the patient,” Robb said. “If you say to the patient, look, I think this is nothing, but I want you to have this, that, or the other thing done, you really can’t rely on the patient to do those things. All they hear is ‘this is probably nothing.'”

Consequently, it is important for radiologists to implement a solid follow-up mechanism to remind patients when to return if you want additional assurance about a lesion that is probably benign. It is up to the radiologist, for example, to recommend it be imaged again in 3 months to make sure.

Robb further suggested that radiologists obtain copies of pathology reports from all biopsies. If the pathologist’s diagnosis does not match the imaging results, radiologists should confer with the surgeon and obtain any follow-up imaging.

Donna Young, vice president of risk management services for Mutual Insurance Company of Arizona, in Phoenix, added that per the American College of Radiology recommendations, a physician dictating their report should list the most significant findings first, as opposed to normal findings. She said, “A lot of times, the primary physician is going to read the normal findings and they’re going to file it without notifying the patient that they need to come back in.”

Decreasing Premiums

Leonard Berlin, MD, the vice chairman of radiology, NorthShore University HealthSystem, Skokie, Ill, and professor of radiology at Rush University Medical College, is an advocate of insurance systems that reward physicians for taking continuing medical education courses in risk management by giving them premium discounts.

Berlin said, “In our area, the Illinois State Medical Society has its own insurance company, and they insure about 50% of the doctors in the State of Illinois. You can get up to a 10% discount on your premium by taking some of the risk management courses.”

Another good sign of the times is that the typical $1 million per incident/$3 million aggregate per year is probably enough coverage for many physicians, although Brenner cautioned that some states may require more.

Brenner said, “In general, 1 to 3 million works for a majority of circumstances. There are and can be higher awards, especially in non-pain and suffering restricted states. So each group has to look at its own profile and look at the insurance company’s indemnity payments and make their own decisions.”

Unfortunately, your new investment in digital mammography or a system with computer aided detection (CAD) will likely not garner any discounts from most malpractice carriers.

Young explained, “It’s one of those double-edged swords where you want to invest money so that you can become more efficient and render better patient care, but it’s not necessarily going to help you with your malpractice insurance payments, at least not in the first few years. Over time, if this new equipment is being used by the majority of your specialty and is saving money and improving care, that may eventually reduce rates, but it won’t have an effect on a one to one ratio.”

Educating the Public

While radiologists are pleased that breast cancer screening campaigns have successfully educated the public that mammogram screenings can save lives, that success may now require more education on the limits of screening and the physicians.

Berlin said, “The question from a theoretical point of view on this mammogram or any other x-ray is not ‘Did you miss it,’ or whether you’re right or wrong, but ‘Was your interpretation reasonable?’ The problem is that most people—and even radiologists—feel that the standard of care is higher, that the standard of care is to always make the correct diagnosis. So, education is important, and we’re not educating the public well enough as to what they can reasonably expect and should expect from their physicians—because perfection is certainly not the standard of care.”

If malpractice claims in mammography continue to rise at the same time that reimbursements are declining, then it is possible that radiologists will simply refuse to take that risk and stop reading mammograms.

Kern said, “I think something has to change. I have friends who read mammography and are willing to take the chance to get involved. But the reality is that if you’re not willing to accept a life with higher risk and with no other incentive at all, you’re not going to be adding to the mammography reading population, and our country needs it. So I think the changes have to come from a political level, but it’s just one of those areas where awareness is important. When the wait time to get a mammogram is a year, then people are going to understand how important change is.”

Tor Valenza is a staff writer for Axis Imaging News.


  1. Physician Insurers Association of America (PIAA). Risk Management Review. Radiology. 2008 edition.
  2. Dick JF III, Gallagher TH, Brenner RJ, et al. Predictors of radiologists’ perceived risk of malpractice lawsuits in breast imaging. AJR Am J Roentgenol. 2009;192:327-333