Misdiagnosis of breast cancer is the number one reason why radiologists are sued for malpractice. And, though the overall rate for malpractice suits is holding steady, the severity of the awards is increasing, said Leonard Berlin, MD, chairman of the Department of Radiology at Rush North Shore Medical Center, Skokie, Ill, at a seminar, “Risk Management in Radiology: How to Stay Out of Trouble with the Courts,” held on November 26 at the Radiological Society of North America (RSNA) 87th Scientific Assembly and Annual Meeting.
About one third of malpractice suits result in payouts, Berlin told attendees at a subsequent seminar, “Medical Malpractice Issues in Women’s Imaging, ” held on November 27 at the RSNA.
Indicating the scope of this increased severity, yearly malpractice settlements in New York City increased almost fourfold between 1984 and 1994, from $20.6 million to $80 million, noted Richard E. Anderson, MD, chairman of The Doctors Company, in a commentary written for the Manhattan Institute. Anderson cited a Tillinghast-Towers Perrin survey that estimates an increase in overall malpractice insurance rates from $8.5 billion in 1990 to $12.7 billion today.
Doctors in all disciplines are feeling the sting from the rising number of verdicts and payouts with higher insurance premiums-an average 12.5% higher in 2001, Berlin told the seminar attendees. Radiologists, however, have seen their premiums increase as much as 25%, which mirrors the rising rates of malpractice cases brought for misdiagnosis. Between 1975 and 1990, 50% of malpractice cases were for misdiagnosis. Now, according to Berlin, that figure is between 75% and 80%.
Though the statistics are far from comforting for radiologists, those who maintain their skills and exercise professionalism are less vulnerable to a guilty verdict. Even if a radiologist has made a mistake, that does not mean they are liable for malpractice. “Malpractice is a deviation from the standard of care,” Berlin told the RSNA attendees. “The physician is expected to act in a reasonable manner or to conduct him or herself in the same manner as the ordinary reasonably practicing physician under similar circumstances.”
Though malpractice has legal implications, the standard was not defined by the legal profession, says Lee Dunn, a Boston-based attorney who specializes in malpractice litigation and represents both plaintiffs and defendants. “It’s the physicians who get on the stand and testify what the standard is,” he says. “They may differ and they usually do. Standard of care is a physician-defined term.”
Though misdiagnosis of breast cancer accounts for the primary reason why radiologists are sued, the causes for alleged misdiagnoses run the gamut from misreading films to poor communication, Berlin told his RSNA seminar attendees. “When a mistake is made, the question ought not to be ‘Did the radiologist misread the film?’,” Berlin remarks in a later interview. “The question ought to be ‘Had the radiologist read this film in a reasonable fashion, whether he’s correct or not, could a reasonable ordinary radiologist read the film the same way?’ That ought to be the question.” He noted during his seminars that retrospective surveys have found that the error rate for all modalities including mammography is about 30%.
Misdiagnoses are due to perceptual errors, cognitive errors caused by positioning and projection, and ignorance. “Thirty years ago, it was just plain films-there was no CT, no MRI, very little ultrasound, very little nuclear medicine, very little mammography-so the average radiologist could master the full specialty pretty well,” says Berlin. “Today, with so many sophisticated modalities in radiology, it is very difficult, if at all possible, for radiologists to master everything. Sometimes we’re put in the position of reading a study where we really don’t have the expertise we ought to have I think I’ve seen more errors today that are caused by what I think are just people not knowing the fundamentals of what they are reading, than say 10 years ago or 5 years ago.”
During his November 26 seminar, Berlin cited a University of Missouri study that found erroneous readings take longer to complete than correct readings, 147 seconds versus 113 seconds.1 He questioned whether double readings will lower error rates because it is not the standard of care and has not proven to be cost-effective. He also noted that a second look by colleagues sometimes results in alliterative errors with the colleague tending to agree with their peer’s earlier reading, regardless of what the study shows.
While computer-aided detection (CAD) systems promise to lower the false-negative rates, Berlin is taking a wait-and-see attitude as to whether CAD systems can play a role in improving the quality of mammography, thereby protecting radiologists against malpractice. “The technology still has yet to advance,” he says. “But there are so many variations on a x-ray, particularly when it comes to the breast. They’re very difficult to read, and if you see a calcification you have to make the judgement [whether] this is malignant or benign. And if it’s very classic-on the spectrum at one [end] or the other-it’s easy.” It is when there is ambiguity-when the reading falls in the middle of the spectrum-that differences in judgement and errors can occur, he says.
One form of protection against a charge of malpractice, says Berlin, is completion of an acceptable number of continuing education courses. A number of studies have shown that errors are minimized if a radiologist regularly completes such courses.2
THE COMMUNICATION GAP
In addition to misreading films, malpractice can be caused by poor communication. Timothy S. Tomasik, a plaintiff’s attorney with Chicago-based Clifford Law Offices and a participant with Berlin in the November 27 session, said that breakdown in communication is the number-one cause of the lawsuits he handles.
Berlin recommended that radiologists follow the American College of Radiology (ACR) standard to avoid malpractice suits due to poor communication.
According to the ACR standard for communication, mammography results should be sent out as soon as possible, but no later than 30 days after the procedure, to the referring physician. It is especially important that reasonable attempts to communicate to the referring physician or office staff should be made as soon as possible if there are any suspicious or malignant findings. Berlin suggested that, if the referring physician is not available and information is left with their staff, the radiologist make a record of this in the patient’s file including the name of the nurse or colleague to whom the report was made.
According to the standard, a report, in lay terms, must be provided to the patient within 30 days. If there is a suspicious or malignant finding, a report recommending a follow-up should be sent to the patient in a way ensuring receipt and the radiologist is advised to communicate with the patient to determine if she has consulted a physician for follow-up care.
Even if radiologists follow all of the standards, this does not mean they will never find themselves on the receiving end of a lawsuit. Part of the problem of the increasing number of lawsuits may lie with organized radiology itself, Berlin suggests. The perception of the public is that regular mammograms not only detect cancer but will actually prevent it. “The perception of much of the public that mammography probably prevents cancer is an unfortunate perception and it certainly was not meant to be that way,” says Berlin. “As a matter of fact, in an article written in one of the British journals about 2 years ago, [they] took a poll of people and it did show that 60% to 65% of women believed that mammography prevented breast cancer.” He notes that a US study at Dartmouth College 3 years ago found perceptions that were strikingly similar.
Dunn says that the problem is one of expectations. “The patient’s expectations are out of whack,” he says. “They expect everything to be found immediately.”
And it might be harder to reeducate the public to lower its expectations than it was to sell the value of mammography in the first place. “Certainly [mammography has] been oversold and wrongly perceived,” says Berlin. “I feel that the [ACR] and the Cancer Society did a good job publicizing mammography and they have done on balance [work] that’s been beneficial to the public, but nevertheless they’ve oversold it. We are representing to the public that we can give them a better product than we are able to give, and that’s bad because people get angry and they sue you. Somehow [there has to be] a way to tell the public ‘this is the way to go, this is a good thing, but it’s not perfect, we’ve got problems.'”
He says that the overselling of mammography makes defending oneself in court difficult. “It’s tough,” he says. “It’s a very difficult thing to defend. I can talk to my colleagues and we can all agree with each other academically speaking that there’s a certain amount of error rate, and we should not be held to a standard of perfection.” However, he adds, because of public perception-which veers toward the standard of perfection-these academic arguments are less likely to convince a jury, accounting for the skyrocketing premiums for radiologists.
BURDEN OF PROOF
The standard by which a case must be proved, according to Dunn, is preponderance of the evidence, which means that the evidence indicating malpractice must be more than 50% in favor of the plaintiff.
Michael J. Morrissey, an attorney with Chicago-based Cassiday, Schade & Gloor and another panelist who appeared with Berlin and Tomasik on November 27, said
The Flip Side of Malpractice
With the growing number of malpractice cases involving missed diagnoses, Leonard Berlin, MD, points to a surprising phenomenon: the increase in diagnosis-or overdiagnosis-of some breast and other cancers.
For instance, prior to the development of mammography, ductile carcinoma in situ (DCIS) accounted for about 3% of all breast cancers. After mammography started to become popular, that number increased to 35%. “The problem with ductile carcinoma in situ is that most never develop into invasive cancer (nobody knows the exact figures), most will never grow, most will never injure or kill a woman-Some do, but it’s probably no greater than 25%,” says Berlin. “So, we’re picking up a lot of carcinoma in situ because of mammography, and they’re all getting operated on, and you do have to operate on them because you don’t know which is going to be lethal and which is not.”
And the same is the case with prostate cancer. “Many men come in for routine PSAs, and you find these small microscopic cancers, you do surgery, and the patient is cured,” says Berlin. “The fact of the matter is that if you take a group of 70-year-old men who died of other causes and you do autopsies on them, you’re going to find that at least 50% to 60% have microscopic prostate cancers.” Like the DCIS lesions, many of these cancers are nonthreatening. New techniques, like total body scanning, have found more of these small cancers, such as in the kidneys, in patients. “Renal cell cancer is another disease where people are walking around with microscopic cancers, that, if left alone and never discovered, would never bother the person,” he says. “You die with these things and not of these things.” This suggests that contrary to missing too many diagnoses, as the lawsuits and consequent rising premiums indicate, radiologists may really be guilty of diagnosing too many cancers.
– Chris Wolski
that part of the difficulty with defending a malpractice case is that many plaintiff’s attorneys count on emotionalism to sell their case to a jury.
Tomasik, the plaintiff’s attorney, disagreed. He said that jurors base their decisions on expert testimony and not emotion, adding that his firm proceeds with cases on the basis of whether malpractice can be proved.
Dunn says being able to prove malpractice is only one factor in determining whether he will take a case. “The damages [have to be] great enough to justify the business decision of taking the case,” he says. “I may have a case that is technically malpractice but the patient wasn’t injured that much, so why take it? These are expensive cases to bring mostly on contingency.” The length of a suit varies from state to state and court to court. Tomasik said that his cases can take 3 to 5 years to resolve and can cost his firm $35,000 to $200,000 to pursue.
The reliance on expert witnesses raises another pitfall for radiologists-hindsight bias. “In hindsight, almost everything is foreseeable, but that is not the test we should employ,” said Berlin, who also testifies as an expert in malpractice cases. “Once you know the result, once you know what happened after the fact, then you become an expert on what happened initially. Even though I try to be ‘objective,’ there’s no such thing because I know if the film is being sent to me from a lawyer, the question I ask myself is ‘Where is the mistake on this film?'”
Even with the growing number of radiologists being sued, news is not all bad for the profession. According to Tomasik, 82% of malpractice cases going to trial were won by physicians, so malpractice suits due to misdiagnosis may be increasing, but not necessarily guilty verdicts. On the other hand, 80 percent of all malpractice cases are settled before trial, according to Berlin.
Chris Wolski is associate editor of Decisions in Axis Imaging News.
- Lehr JL, Lodwick GS, Farrell C, Braaten MO, Virtama P, Kolvisto EL. Direct measurement of the effect of film miniaturization on diagnostic accuracy. Radiology. 1976;118:257-63.
- Linver MN, Paster SB, Rosenberg RD, Key CR, Stidley CA, King WV. Improvement in mammography interpretation skills in a community radiology practice after dedicated teaching courses: 2-year medical audit of 38,633 cases. Radiology. 1992;184:39-43.