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Malpractice Issues in Radiology |
1 Department of Radiology, Rush Medical College, Chicago, IL60612, and Department of Radiology, Rush North Shore Medical Center, 9600 Gross Point Rd., Skokie, IL 60076.
Received January 11, 2000;
revised January 28, 2000;
Case summaries are based on actual events and lawsuits, although certain
facts have been omitted or modified by the author, who has supplied and
obtained authorization for the reproduction of the radiographic images. All
opinions expressed herein are those of the author and do not necessarily
reflect those of the American Journal of Roentgenology or the
American Roentgen Ray Society.
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Biopsy of the breast lesion revealed infiltrating ductal carcinoma. The patient underwent mastectomy. All sampled lymph nodes were negative for tumor.
Eight months later, the patient filed a medical malpractice lawsuit against the radiologist, alleging that the radiologist's failure to diagnose carcinoma on the initial mammography led to a 1-year delay in diagnosis that "substantially reduced the patient's chance for cure and normal life span." In addition to asking for compensatory damages, the attorney for the plaintiff, in an unusual move, also asked the court to award punitive damages because the "defendant radiologist read too many x-ray examinations on the day in question, demonstrating a wanton disregard of patient well-being by sacrificing quality patient care for volume in order to maximize revenue."
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An expert radiologist retained by the plaintiff testified in deposition that the "national average" number of radiologic procedures interpreted by a radiologist in 1 day was 50 and that any radiologist whose daily workload exceeded 100 procedures a day was breaching the standard of care. The expert then asserted that by interpreting 162 cases in 1 day, a radiologist would be exceeding the "national average by three times" and would therefore be conducting himself in a "reckless and wanton" manner.
When asked to provide a basis for these opinions, the expert witness referred to an article by Sunshine and Bansal [1] that was published in 1994.
The expert witness for the plaintiff then pointed to the lesion on the mediolateral view of the initial mammographic study and characterized the lesion as "so obvious that it should have been seen by any radiologist who took enough time to look at the films and not be in a hurry." The expert further charged that had the defendant radiologist not been "rushing," the defendant radiologist would have realized that the reason the lesion was not seen on the craniocaudal view was that the patient had not been positioned properly. "Had the defendant radiologist taken the proper amount of time to read the mammograms," concluded the expert for the plaintiff, "he would have realized the mammography study was inadequate and would have ordered that it be repeated."
The defense attorney retained an expert radiologist who strongly disagreed with the plaintiff's expert. The defense expert stated that the article by Sunshine and Bansal [1] showed that there was a wide range of workload among radiologists and that the article discussed only averages, not standards. The defense expert pointed out that the daily workload of radiologists depends on a myriad of factors, including the type of radiologic technique being interpreted; the complexity of the findings; whether previous studies were available for comparison; whether it was the radiologist or other personnel who hung the radiographs on a viewbox; the number of hours in a day that the radiologist actually worked; whether the radiologist was constantly being interrupted by telephone or in-person consultations with referring physicians; and whether the radiologist had additional administrative, research, or teaching duties. Considering the specific circumstances under which the defendant radiologist practiced, concluded the expert for the defense, "the 162 cases interpreted in that single day was quite reasonable and certainly not a breach of the standard of care."
The radiology expert for the defense was then questioned pointedly about the initial mammograms. The expert testified that the failure of the defendant radiologist to see and describe the lesion on the mammograms did not constitute a breach of the standard of care because although the mammographic study had not been "ideal," it still had been "adequate," and the lesion itself was "subtle." The expert then added that many studies published in the radiology literature "documented the fact that up to 65% of breast cancers cannot be seen prospectively on mammograms, but are found only in retrospect after later mammograms showed where the lesion was."
In his deposition, the defendant radiologist vehemently denied that he was "overworked" or "reckless." The defendant radiologist stated that he was "industrious and hard working" and would frequently work 10- to 12-hr days. When asked by the plaintiff's attorney whether he developed fatigue toward the end of the day, the defendant radiologist admitted that he "sometimes gets tired," but he rejected any inference that his accuracy was less at the end of the day than at the beginning. The attorney for the plaintiff then asked the defendant radiologist whether he "got paid according to how many x-rays he read in a day." The defendant radiologist responded that he received a base salary, but he acknowledged that in addition he received a year-end bonus that was directly related to the "number of cases" he interpreted.
As the discovery process continued, the attorney for the plaintiff requested the court to order the defendant radiologist to produce a record of the defendant radiologist's annual income and assets, explaining that if punitive damages were eventually to be awarded, the size of the award would be dependent on those figures. The defense attorney filed an objection to this request, arguing that the request for punitive damages was inappropriate in a medical malpractice lawsuit and thus there should be no need to divulge the defendant radiologist's personal financial data. At a court hearing, the judge stated that she would rule on the issue at a later time.
The defense attorney and the claims manager for the defendant radiologist's insurance company believed that the lawsuit could be successfully defended in a jury trial, because the lesion that had been missed on the initial mammographic examination could be seen only with great difficulty, even retrospectively. Furthermore, the patient's lymph nodes were negative for tumor and the patient was still free of disease. However, the defendant radiologist was rapidly developing concern and anxiety about the matter. The defendant radiologist acknowledged to his attorney and insurance claims manager that the patient's chest wall had not been adequately visualized on the initial mammograms and that had positioning been better, the lesion would probably have been seen. As the weeks passed, the defendant radiologist became agitated because of the possibility that he might have to divulge his income and assets publicly in the courtroom. The despair of the defendant radiologist intensified even more when he was informed by the defense attorney that any punitive damages that would be assessed by the jury or judge would not be covered by professional liability insurance.
The defendant radiologist urged that the case be settled and, with the concurrence of his defense attorney, attempted to convince the claims manager of the insurance company that settlement was the best option. After considerable discussion, the claims manager acquiesced to the defendant radiologist's plea. Eventually, negotiation with the plaintiff's attorney resulted in a settlement of $1 million.
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The major basis for the plaintiff attorney's claim that the defendant radiologist was not only negligent but actually reckless because the defendant radiologist's workload was too great stemmed from an article by Sunshine and Bansal [1] that studied the operational characteristics of radiology groups in the United States. In that article, these researchers presented a variety of data obtained from a survey conducted in 1992 of 695 radiology group practices. The sampling included radiology groups that were located in all areas of the United States, large and small, academic- and private-practice based. Although an enormous amount of statistical material was included in the published study, for the purposes of this article the results of the survey can be summarized as follows: radiologists practicing as members of a group interpreted an average of 11,100 radiographic procedures per year, but the numbers ranged from a low of 7800 cases per year in academic groups to 11,800 procedures per year in private groups. The authors took great pains to point out that the workload data showed a great deal of variability and should not be construed in any way as reflecting standards of care. To emphasize this variability factor, the authors contrasted their results with a survey conducted by the American Healthcare Radiology Administrators that found that the annual workload per full-time radiologist in hospital settings ranged from 17,900 procedures for general diagnostic radiologic imaging to 10,500 procedures for MR imaging.
An earlier study of productivity of radiologists was conducted by Conoley and Vernon [4] and published in 1991. These researchers used relative value units as developed in 1987 by the American College of Radiology and the Healthcare Finance Administration, instead of overall procedures for radiologists, as measures of productivity. After sifting through considerable data and taking into consideration the complexity of cases and the percentage of time the average radiologist was available for interpretation, these researchers arrived at a conversion factor between relative value units and numbers of procedures of 2.27. Conoley and Vernon found that the annual workload for the average radiologist was 32,000 relative value units or 14,098 procedures.
Sunshine et al. [5] conducted a follow-up study on radiologists' workload that was published in 1998. When comparing data from surveys conducted in 1995-1996 with those obtained 4 years earlier, Sunshine et al. found that technologic advances led to relatively rapid increases in the number of radiologic studies performed per patient. The average number of radiologic procedures per year per radiologist had increased approximately 5% to 11,600, and most radiologists had increased their average workload by more than 10% [6]. These researchers again emphasized the considerable variation that existed as a result of factors such as geography and type of practice and, whether the practice was office- or hospital-based, academic or nonacademic, multispecialty or nonmultispecialty, large or small. The average number of radiographic procedures interpreted annually was the highest for diagnostic radiologists in private nonacademic practices: 13,500. In every category of practice type, there were wide variations in workload among individual radiologists. For example, in group practices with two to four radiologists, the 75th percentile workload was 16,000 procedures per year, whereas the 25th percentile workload was 9600.
Earlier this year, Eschelman et al. [7] described a study that evaluated the relationship between clinical and academic productivity among radiologists in a university hospital radiology department. These researchers found that there is a significant inverse relationship between the two: as the academic productivity (peer-reviewed articles, scientific presentations, continuing medical education courses) went up, the clinical productivity (number of relative value units billed, as measured by dictated radiology reports) went down. Explaining that the clinical workload in the department was continuously increasing for all staff, Eschelman et al. reported that some faculty members were generating as many as 15,000 relative value units a year. Using a conversion factor of 0.75 computed by Sunshine et al. [5] that reflected the 1995 Medicare resource-based relative value scale, this was equivalent to 11,250 procedures.
The most recent study of the workload of radiologists using data compiled from surveys conducted by the American College of Radiology and Sunshine and Burkhardt [8] was published this year. Although these researchers have determined that radiology workload is now most accureately measured in physician work relative value units (the definition and calculation of which are explained in their article), their results can be converted to procedures per radiologist, a unit of productivity I prefer so that meaningful comparison with other studies already referenced here can be maintained. Sunshine and Burkhardt found that diagnostic radiologists practicing in groups averaged 9800 procedures per radiologist annually, but there was much variability in the figures. Many radiologists in the survey averaged as many as 12,900 procedures annually. The workload among radiologists in academic groups averaged about two thirds that of radiologists in nonacademic groups. Sunshine and Burkhardt concluded by once again stressing that because of the wide variance among all groups and radiologists, workload averages must not be taken as norms.
If we assume that the average radiologist works approximately 250 days a year, then the average daily workload per radiologist based in the surveys mentioned averages out to a range of 31-72 procedures per day. Averages are only averages, however, and should not be taken too literally. After all, an average of 72 cases per day can be achieved by interpreting 24 cases one day and 120 the next, or 720 cases in one 5-day week and 0 in the next. How many cases can one radiologist read in 1 day and still maintain accuracy? The answer is of course not known, but one radiology organization that claims to provide interpretations for 70% of the images generated by the United States Airforce and 20% of those produced by the United States Army states that three board-certified radiologists working 6-hr shifts at its center's 1900 viewing panels, interpreting all techniques, interpret 1000 studies (333 per radiologist) a day with no more than a 2% error rate [9].
None of the studies quoted thus far singled out radiologists' workload with regard to mammography. I could not find any published report in the radiology literature that dealth with this specific issue, but there are indirect references to it. In his textbook on breast imaging, Kopans [10] states that most well-trained radiologists can interpret 40-50 mammograms in a 2-hr session if those studies are placed on an alternator along with previous available examinations so that film handling by the radiologist is minimized. Bird [11] has written that the acquisition of automatic multiviewers has enabled individual radiologists to interpret 40 screening mammograms in less than 2 hr, and Thurfjell et al. [12] have reported an annual daily workload per radiologist in Sweden of 150-200 screening mammograms.
Although the discussion thus far has centered on the total number of cases interpreted by a radiologist in a given day, let us now turn our attention to a different aspect of the same subject by addressing the question of how much of a radiologist's time is required for accurate interpretation of an individual radiology study. Several reports in the radiology literature have provided good answers to this question.
A study of radiographic accuracy conducted by Lehr et al. [13] at the University of Missouri and published in 1976 found that the interpretation time per case expended by a radiologist averaged 90 sec. These researchers then compared the average time spent by radiologists interpreting those cases that were missed with those that were diagnosed correctly. The erroneous interpretations averaged 147 sec, the correct ones averaged 113 sec. Lehr et al., perhaps amusingly, concluded that the data indicated that a radiologist's confidence in the accuracy of his or her opinion varied inversely with the length of his or her report.
A similar viewing time-versus-accuracy study published 5 years later and conducted by Christensen et al. [14] at the University of Texas found that a large number of true-positive observations were made during the first few seconds of search, with the number decreasing rather abruptly after a short time. These researchers explained that the perception process has two components, one rapid and the other slow. Obvious abnormalities are detected almost instantaneously by comparing the radiograph with a previously learned concept of normal; the more experienced the observer, the greater the number of abnormalities detected via this method. However, the data also showed that the longer the search, the greater the number of positive observations. Christensen et al. emphasized that radiographs cannot be "speed-read"; interpreting radiographs requires search, and search takes time. While acknowledging that the value of long search time in the interpretation of radiographic images is overestimated, these researchers nonetheless concluded that the radiologist who interprets a radiograph in a few seconds is gambling that a large proportion of the radiograph shows normal findings. "Experience," added these researchers as a final thought, "does not earn us the right to short-circuit these routines."
A study published in 1988 by Oestmann et al. [15] measured the relationship between viewing times and detection of nodules in chest radiographs. These researchers found that with viewing times cut off at 0.25 sec, 30% of subtle and 70% of obvious malignancies were detected by radiologists. With unlimited viewing time, the positive rate increased to 74% for subtle malignancies and to 98% for obvious malignancies. These researchers also found that a large proportion of obvious lung malignancies are detected with flash viewing but that detectability of lesions decreases considerably as viewing time becomes less than 4 sec, and a substantial portion (26%) of subtle lung lesions are missed with even unlimited viewing time.
Straub and Wolfe [16] measured radiologist interpretation times for 17 different kinds of radiographic examinations. Times ranged from a low of 1.7 min for interpretation of extremity radiographs to 27 min for interpretation of MR imaging of the body. In concluding their study, Straub and Wolfe reminded readers that although time can be readily and accurately measured, judgment and skill cannot. Let us remind ourselves that, notwithstanding the various studies sprinkled throughout the radiology literature that report average daily workloads and interpretation times, the fact remains that not one of the studies has been able, nor will likely be able in the future, to set workload numbers or interpretation times that constitute a standard of care.
Another unusual aspect of this case was the plaintiff attorney's demand for punitive damages. Generally in medical malpractice litigation, the indemnification awarded to the injured patient, if there is to be one, is in the form of compensatory damages. The purpose of compensatory damages is to compensate the patient for any actual loss or damage caused as a result of a physician's negligence and to ensure that the patient who was harmed is made "whole" again or returned to the condition that existed before the injury occurred [3]. Because it is rarely possible to eliminate the effects of an injury or restore to normal health a patient who has been injured by medical malpractice, compensation is usually achieved through monetary awards. The legal concept is that money makes the damaged patient whole.
Punitive damages may be awarded in addition to compensatory damages when it is intended to make an example of the defendant physician or to punish his or her egregious behavior. Punitive damages are unusual in medical malpractice litigation but may be assessed when the defendant physician's conduct has been proven to be intentional, grossly negligent, malicious, violent, fraudulent, or with reckless disregard for the consequences of the physician's misconduct. The purpose of punitive damages is to punish the defendant and deter others from similar behavior; thus, punitive damages are not covered by professional liability insurance because allowing such coverage would defeat the very purpose of punitive damages [17].
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Risk management in radiology practice can lessen the likelihood of incurring a medical malpractice lawsuit, maximize the chances for a successful defense if a suit is filed, and at the same time enhance patient care. The following risk management pointers will help radiologists meet all three of these objectives.
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