Should you find yourself charged with malpractice in radiology, know the law, know your case, and don't fall into the deposition traps of the plaintiff's lawyer, says an abdominal radiologist who's studied the rhyme and reason of malpractice suits, especially in abdominal CT.
Radiology represents about 8% of all medical malpractice claims in the U.S., said Fergus Coakley, MD, from the University of California, San Francisco (UCSF). What's the No. 1 allegation? Failure to diagnose or communicate a finding, representing 75% of malpractice cases, he said. Procedural complications including those resulting from contrast administration are second, which is why radiologists should tread carefully on both counts.
In a coaching session at last month's International Society for Computed Tomography (ISCT) meeting in San Francisco on radiology malpractice, focusing on CT of the abdomen, Coakley offered advice on avoiding the worst missed diagnoses -- and the worst of the legal system.
Medical negligence
Malpractice begins with medical negligence, which means the radiologist has behaved in a way that's below the standard of care, i.e., what a reasonable and prudent physician would do under similar circumstances, Coakley said.
Because negligence is a highly subjective condition, however, it does not constitute malpractice per se, said Coakley, who is a professor of radiology and urology, vice chair for clinical services, and chief of abdominal imaging at UCSF.
"A lot of what goes on in the lawsuit has to do with trying to establish [negligence] and getting experts to testify on one side or another -- and whether your behavior caused the care to be below the standard of care," he said.
Malpractice requires significant damages to the patient in addition to negligence, and lack of serious harm is where many suits fall short in their quest for big payouts, he said. For example, in the recent case of a 52-year-old woman with pelvic lymphangioma that was missed on initial CT and picked up a couple of years later without significant growth, a lack of clear damages undercut the plaintiff's malpractice claim, Coakley said.
Conversely, "a young patient with a high income who is killed by the radiologist" might be ideal from the viewpoint of a malpractice attorney, Coakley said.
It is dollars rather than jail time that typically resolve malpractice suits, which are governed by civil law -- specifically, state tort law -- rather than criminal law, he said. The aim of civil law is restitution rather than punishment, and health insurance payors are often in the driver's seat when justice is being handed out, he said.
"Insurance company lawyers are often the ones who decide what happens. They'll go through the depositions; they'll make up their own minds as to whether they want to offer a settlement or not," Coakley said.
And while plaintiffs' lawyers work on contingency, defense attorneys are paid by the billable hour. At any point in a malpractice case -- from filing to discovery, trial, and judgment -- the case may be abandoned or settled, often at the behest of the insurance carrier, he said.
Deposition stranglehold
Depositions with plaintiffs' inquisitive lawyers are probably the most painful part of the process for defendants, one that can be a minefield, Coakley said.
"Listen to the questions carefully," he said. "The [American College of Radiology (ACR)] guidelines are probably the most inflammatory thing in radiology because lawyers love to pore over those to find you in violation."
Plaintiffs' attorneys often ask a radiologist if he follows the guidelines in practice, very much hoping for a "yes" so they can pull out an obscure page from said guidelines, showing what the defendant should have done but did not. Don't fall for the trap and say you follow ACR guidelines if you've actually never given them much attention.
"I've never read them and that's OK; I suspect a lot of us have never looked at them," Coakley said.
Also, "if they use the phrase 'more likely than not' it's a red flag," and agreeing with the statement means admitting guilt, Coakley said.
That's because the standard in civil law is "more likely than not," which is easier to prove than criminal law's "beyond a reasonable doubt." The lower civil standard of proof goes a long way toward explaining why disgraced former football star O.J. Simpson was successfully convicted in civil but not criminal court, Coakley said.
Another favorite tactic of plaintiffs' lawyers is to assert something along the lines of: "All you had to do was pick up the phone and say you found a 2-cm whatever," Coakley said. "But the standard of practice is not perfection," and a radiologist bent on finding 100% of everything "would never get any work done," he said. "You don't have to find every little thing every time."
But when a mistake happens, be ready for some pretty nasty behavior from plaintiffs' lawyers, and don't let it unhinge you, Coakley said.
"They can be pretty mean during deposition ... but they'll be pleasant in trial because they don't want to look like a bad guy in front of the jury," he said.
Allow time for noting the opposing lawyers' objections, Coakley said. Be very aware of apparently innocent questions and of depositional and trial conflict traps.
"If you're unlucky enough to go to trial, read your deposition before the trial because lawyers love to catch you in a conflict between your deposition testimony and your trial testimony," Coakley said.
An encouraging picture
An estimated 100,000 people a year will die as a result of medical negligence in the U.S., with related healthcare costs of about $6 billion, Coakley said. The numbers are none too reliable, but even if they were, medical malpractice would represent a scant 4% to 7% of total healthcare costs in the U.S.
So although the costs "aren't trivial," he said, "when people say healthcare is so expensive because of malpractice, it's not really supported by the facts. Of the cases that go to trial, plaintiffs only win 27% of cases, so the popular perception that juries are antidoctor is really not supported."
In an expert review of 80 abdominal malpractice cases, the radiologist was the primary target of the lawsuit in 41 (50%), Coakley said.
Citing data from the 1996 American Medical Association's Socioeconomic Characteristics of Medical Practice report, Coakley said that radiologists stand "somewhere in the middle" of medical specialties in terms of the number of malpractice claims -- at about 18 cases per 100 providers. Moreover, "the liability premiums, which are presumably a function of settlements, are somewhat on the low side compared to average," Coakley said. The top three missed diagnoses are breast cancer, lung cancer, and missed spinal fractures.
Caution in the abdomen
In abdominal imaging, look for warning signs whenever the bowel is dilated, including excessive free fluid, mesenteric infiltration, and mural nonenhancement.
"Those three things in conjunction result in what I call the disappearing bowel wall sign, where the wall is less enhancing, there's ascites on one side and infiltration on the other," Coakley said. "You find it in parts of the bowel wall compared to other normal parts and those are warning signs of strangulation."
Bowel strangulation, ischemic bowel, arterial, or aortic events are all "things that can kill a patient fast, and those are the things you don't want to miss," he added.
Less helpful signs include disproportionate dilatation, bowel wall thickening/pneumatosis, or clustering, which can have the appearance of "balloons on a string," Coakley said.
In one recent case, acute appendicitis was called acute diverticulitis; the patient was sent home with valium and analgesia and died, Coakley said. The same fate befell a patient presenting with abdominal pain after robotic prostatectomy. A pseudoaneurysm was missed and the patient was dead the next morning, he said.
Remember that mistakes do happen, but only some of those mistakes are malpractice, Coakley said. Radiologists will find practitioners in both the legal and medical fields to be generally professional, but each has its own terms, considerations, and culture -- and the malpractice system is inherently adversarial, he said. Be ready for some unpleasantness during depositions and don't be thrown off by it. Insurance carriers are key players that have an outsized role in whether a case proceeds.
"In a lot of these cases, I've been impressed by how substandard they are," Coakley said. "There are a lot of bad outfits out there and, at times, patients do deserve to be compensated."
By Eric Barnes
AuntMinnie.com staff writer
June 15, 2010
Related Reading
How to navigate ultrasound medicolegal issues, May 28, 2010
Leaders in Imaging: Dr. Leonard Berlin, May 25, 2010
Interpretation errors top clinical negligence claims in U.K., March 8, 2010
Communication failure: A surefire route to malpractice court, February 16, 2010
The Profit Center: Part 10 -- Taking on risk with dubious reward, January 4, 2010
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