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  • Failure to Order Imaging Tests Not a Major Driver of Malpractice

    June 01, 2013

    According to new research showing that diagnostic errors far outpaced any other source of malpractice lawsuits, radiologists are highly unlikely to be sued for failing to recommend imaging tests.

    In a separate study, those researchers also determined that the likelihood of a radiologist being the defendant in at least one malpractice lawsuit is 50 percent by age 60, yet the difference in frequency and average number of lawsuits accrued varies widely by sex and state of residence.

    Appearing in the February 2013 issue of Radiology, both studies were based on data acquired from the Parsippany, N.J.,-based company One-Call Medical, which compiles malpractice histories of radiologists for credentialing purposes in workers’ compensation cases.

    Studies have shown that malpractice is still a major concern for radiologists. Despite comprising only 3.6 percent of U.S. physicians, radiologists rank sixth overall in the number of malpractice claims, according to the Physicians Insurers Association of America. Fear of being sued is often cited as a reason for ordering additional imaging—a phenomenon known as defensive medicine.

    While not in line with frequently held notions about radiology malpractice, this new data could assuage the fears many radiologists have to some degree.

    Conducted at the University of Medicine and Dentistry of New Jersey in Newark, the study of 4,793 cases filed against 2,680 radiologists in 47 states found as the primary allegation that failure to order additional imaging represented only 0.41 malpractice claims per 1,000 person-years. By contrast, errors in diagnosis accounted for 14.83 claims per 1,000 person-years. Breast cancer was the most frequently cited missed diagnosis, with 3.57 claims cited per 1,000 person-years.

    “The prevalent notion is that a radiologist who does not recommend tests will be sued,” said Stephen R. Baker, M.D., study co-author and chair of the university’s Department of Radiology. “Data show that this rarely happens.”

    In fact, Dr. Baker suggested that additional imaging may have less to do with fear of lawsuits than with dollars and cents. “Defensive medicine is profitable,” he said. “When value is accorded to quantity, the remuneration increases with the quantity of work. That’s why the new value system is trying to reward improved quality as opposed to quantity.”
    Another often-cited reason for malpractice—communication errors—made up only 0.4 claims per 1,000 person-years. “Communication is considered an important factor in malpractice suits, but it’s not the pre-eminent factor because most radiologists don’t communicate directly with patients,” Dr. Baker said.

    ACR Survey Shows Communication Failure is Common Source of Lawsuits

    While concurring that the leading cause of malpractice lawsuits filed against radiologists continues to be allegations of errors in radiologic diagnosis, one radiology malpractice expert contends that failure to communicate results of radiologic examinations is a significant source of lawsuits filed against radiologists.

    “While the number of malpractice lawsuits alleging failed radiologic communication has not yet reached epidemic proportions, nonetheless they are indeed increasing in number,” said Leonard Berlin, a radiologist at Skokie Hospital and a professor of radiology at Rush University and the University of Illinois College of Medicine.

    In fact, failure to communicate results of radiologic examinations is the second most common cause of malpractice litigation filed against radiologists, said Dr. Berlin, who delivered an Annual Oration in Diagnostic Radiology, “To Disclose or Not To Disclose Radiologic Errors—Should “Patient First” Supersede Radiologist Self-Interest?, at RSNA 2012.

    An American College of Radiology (ACR) survey conducted earlier this year found that 23 percent of the 3,400 radiologists responding admitted having been sued for failing to communicate findings; 49 percent said they have not and 28 percent declined to respond. Sixty percent of failed communication malpractice lawsuits were resolved in favor of the plaintiff, either through settlement or trial verdict; 29 percent were resolved without payment to the plaintiff and no information was given regarding the remaining 11 percent.

    Dr. Berlin says the problem is exacerbated by the disparity between how radiologists communicate urgent versus significant, unexpected findings. While malpractice lawsuits rarely allege failure of communication of an urgent finding such as a hemorrhage or tension pneumothorax, virtually all of the failed communication lawsuits deal with failure to directly communicate significant unexpected findings.

    “Nevertheless, from the courts’ perspective, all radiologic findings that could be adverse to a patient’s health fall into the same category: they require direct communication,” Dr. Berlin said.

    While he agrees that malpractice lawsuits alleging radiologist negligence for failing to recommend additional imaging examinations have been, and remain, extremely rare, lawsuits alleging failure to order imaging tests filed against non-radiologic physicians are not rare. Data from Cook County (greater Chicago area), Illinois indicate that failure to order allegations comprise approximately 5 percent of all medical malpractice lawsuits filed against physicians, Dr. Berlin said.

    “The fact that radiologists themselves are not commonly sued for “failure to order” an imaging test should not lull them into a false sense of security,” Dr. Berlin said.

    Both Drs. Berlin and Baker urge radiologists to follow the ACR Practice Guidelines for Communication of Diagnostic Imaging Findings, which are often invoked by plaintiff lawyers making cases that a particular defendant radiologist failed to meet such an obligation.

    One Company Offers Significant Database

    While numerous studies have examined malpractice trends in radiology, the One-Call Medical database offered a much larger pool of data, said Dr. Baker, whose research grew out of his longtime work as a consultant for the company.

    “As the company grew and grew, I thought, this is a huge data source that can give us insights into malpractice cases,” Dr. Baker recalled. “This study group is 10 times bigger than those of previous studies, and the radiologists enrolled represent more than 25 percent of the radiologists in the country.”

    Of the 4,793 cases filed against radiologists in the study, Dr. Baker and colleagues were able to derive an alleged cause of the lawsuit in 4,043.

    After breast cancer, non-vertebral fractures and spinal fractures, lung cancer and vascular disease were the most frequently missed diagnoses. Procedural complications represented the second most common category of malpractice suits after errors in diagnosis, with 1.78 claims per person-years.

    The same research team mined this data for a separate study examining demographic characteristics of malpractice claims against the same group of radiologists. Researchers found radiologists had a 50 percent likelihood of being the defendant in at least one suit by age 60.

    Information on settlements and jury verdicts were available for 2,758 cases. Claims were settled before trial in the vast majority of cases, with only 99 listed claims ending in a court-directed judgment. The majority of completed claims were settled in favor of the plaintiff, with an average award of $411,112 paid on behalf of radiologists in court-directed cases. For claims settled out of court, the mean payment was $295,993.

    “The chances of a radiologist getting sued are not huge,” said Dr. Baker. “However, the chance of losing is well above 50 percent, because we can’t hide our mistakes.”

    Data showed that male radiologists were about 1.37 times more likely than women to be sued during their careers. “I have a hunch that in the case of breast imaging, women are less likely to sue women,” Dr. Baker said. “It’s also possible that while younger women are working in the same areas as men, the older ones are being segregated into areas less likely to be subject to malpractice.”

    The outcome of cases and average award amounts differed markedly by state. Median payment awards ranged from a low of $24,105 in Colorado to a high of $350,000 in Maine. Mean payments varied from $74,373 in Nebraska to $715,707 in Oregon. The higher mean payments reflect the disproportionate effect of a few very large awards.

    Alabama radiologists experienced the lowest malpractice rate with less than one lawsuit per 100 practice-years for both men and women, while New York had the highest rate with 5.65 lawsuits per 100 practice-years for men and 4.13 for women.

    Caps on Awards Impact State Malpractice Rates

    One possible reason for the different malpractice rates among states is tort reform, which often caps awards for non-economic damage to plaintiffs in malpractice suits. “In states where there are limited awards for pain and suffering, plaintiffs’ lawyers might be reluctant to take cases,” Dr. Baker noted.

    Attorney Keith Hebeisen from the Clifford Law Offices in Chicago concurs. Hebeisen, who specializes in medical malpractice and served as the plaintiff’s attorney in the medical malpractice mock trial at RSNA 2012, cited Texas as an example of a state where caps on awards for pain and suffering have influenced the malpractice rate.

    “The malpractice tort system has disappeared since Texas passed a $250,000 cap for non-economic damages,” he said, adding that the often lengthy settlement process results in significant litigation costs and attorneys’ fees. “It makes no economic sense for the attorney or the client to pursue cases in that state, even if they end up offering the full $250,000.”

    Caps on awards are not the only factor in malpractice rates. For instance, an Alabama cap on malpractice awards was overturned by the state Supreme Court, yet the state has the lowest lawsuit rate in the country. According to a 2008 study in the Journal of Health & Biomedical Law, aggressive defense of malpractice claims by insurers, positive juror attitudes toward physicians and the propensity of the state Supreme Court to overturn plaintiffs’ verdicts on appeal all played a role in limiting the number of suits in Alabama.

    Dr. Baker’s research team continues to pore through the data on radiology malpractice, focusing on malpractice rates in spinal versus non-spinal fractures, breast imaging cases and elderly patients. q

    Web Extras

    To access the study, “The Causes of Medical Malpractice Suits against Radiologists in the United States,” go to radiology.rsna.org/content/early/2012/11/28/
    radiol.12111119.full
    .

    To access the study, “The Demography of Medical Malpractice Suits against Radiologists,” go to radiology.rsna.org/
    content/266/2/539.full
    .

    Stephen R. Baker, M.D.
    Baker
    Leonard Berlin
    Berlin
    Malpractice Map
    The likelihood of a radiologist being the defendant in at least one suit is 50 percent by age 60, yet the difference in frequency and average number of suits accrued varies widely by state of residence and sex, according to research by Stephen R. Baker, M.D., and colleagues. Above: A map of the U.S. depicting the percentage of radiologists in each state who have ever been sued. The District of Columbia and 14 states had fewer than 50 radiologists enrolled with One-Call Medical at the time of the study and were therefore excluded from this analysis. Though individual states varied greatly in the likelihood for a radiologist to have been sued, malpractice actions against radiologists were not concentrated in any region of the country. (Radiology 2013;266;2:539-547) ©RSNA, 2013. All rights reserved. Printed with permission.
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