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Malpractice issues in radiology |
1 Department of Radiology, Rush North Shore Medical Center, 9600 Gross Point Rd., Skokie, IL 60076, and Rush Medical College, Chicago, IL 60612.
Received June 1, 2000;
accepted after revision June 12, 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.
The Case
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The radiologist had no further contact with or communication about the patient until 11 months later, when the patient was again referred to the radiology office for chest radiography. At this time, the radiologist was dismayed to find that the radiographs now revealed a large tumor mass in the right chest not only involving the lung but causing rib destruction as well (Fig. 1B). The radiologist immediately telephoned the findings to the referring physician and asked the physician why there had been an 11-month delay in obtaining follow-up radiographs. The physician replied with embarrasment that he had "slipped up" and had failed to inform the patient that the initial radiologic findings were abnormal.
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Biopsy of the lesion disclosed poorly differentiated large cell lung carcinoma. The patient received radiotherapy and chemotherapy, but his general health deteriorated markedly over the next 7 months. The patient sustained a brain hemorrhage due to cerebral metastases that resulted in severe neurologic impairment. Three months later, the patient died.
Before the patient's death, a malpractice lawsuit was filed against the family physician, alleging that the delay in diagnosis of cancer was the result of negligence. Four months after the original lawsuit was filed, the plaintiff's attorney filed an amended complaint, adding the radiologist as a codefendant.
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The attorney appointed by the professional liability insurance company to defend the radiologist delved into the facts of the case and reviewed the discovery proceedings that had thus far occurred. He found that the plaintiff's attorney had initially sued only the patient's family physician for malpractice because it was clear that it was the family physician who had been responsible for the delay in diagnosing the lung cancer. However, shortly thereafter, the plaintiff's attorney discovered that the family physician had only $100,000 in maximum malpractice insurance coverage. The patient, who had not yet died, had been earning in excess of $200,000 annually as a vice president of a manufacturing company and had a wife and three children, 9-18 years old. Furthermore, the patient had been suffering terribly and was incurring huge medical expenses because of advanced metastatic disease and severe neurologic impairment.
The reason that the radiologist was now included as a codefendant in the lawsuit, explained the defense attorney, was that the radiologist's maximum malpractice insurance coverage was $2 million. The plaintiff's attorney was seeking $3 million in compensatory damages on behalf of his patient, and thus the family physician's insurance was inadequate. The radiologist was brought into the case as a source of indemnification payment, concluded the defense attorney—the radiologist was the so-called "deep pocket."
At his deposition, the defendant family physician admitted that he had received and read the radiologist's written report of the abnormal chest radiologic findings. The physician explained that he had tried to call the patient to inform him of the findings but could not reach him. The physician then went on vacation and on his return, the patient went on vacation. The physician acknowledged that he had been "derelict in his duties" and had simply "forgotten to follow-up with the patient." It wasn't until 11 months later, when the patient returned for a follow-up visit because of increasing chest pain and weight loss, that the physician "remembered" that the initial chest radiograph had shown abnormal findings. Shortly after this deposition, the attorneys for the defendant physician and the plaintiff agreed to settle the lawsuit against the physician for an amount equal to the physician's insurance limit, $100,000. This now left the radiologist as the sole defendant.
The plaintiff's attorney retained an expert witness who testified at deposition that the defendant radiologist had been negligent because he had failed to "verbally communicate and follow-up on the abnormal X-ray findings." The expert, who was a retired pulmonologist not a radiologist, asserted that the defendant radiologist had a duty not only to report the initial radiographic findings in writing, but to telephone them to the referring physician and then to monitor whether the patient received follow-up care. The plaintiff's expert pointed out that American College of Radiology (ACR) standard mandated immediate telephone communication. Furthermore, added the plaintiff's expert, the defendant radiologist had ongoing contact with the referring physician on other matters and so should have used "one or more of those occasions" to inquire "what had happened to the patient."
The defendant radiologist in his deposition testified that there had been no need to telephone the radiology report to the referring physician because he knew the written report would be hand-delivered to the physician within 2 hours. The defendant radiologist also denied that he had any responsibility to follow-up on or monitor the patient's care.
An expert radiology witness retained by the defense attorney agreed with the defendant radiologist, pointing out that it had been reasonable for the defendant radiologist to elect not to follow the "exact letter" of the standard published by the ACR regarding communication of significant or unexpected radiologic findings. The radiology expert for the defense concluded that because the report of the abnormal radiologic findings was received in a timely fashion by the referring physician, the defendant radiologist had "fulfilled his duty and had adequately complied with the ACR standard."
As the date of trial approached, the plaintiff's attorney offered to settle the case against the defendant radiologist for $2 million, the amount of the radiologist's maximum insurance coverage. The defendant radiologist and his defense attorney flatly refused.
On the eve of trial, the defendant radiologist met with his attorney and the claims manager for the insurance company. The attorney and claims manager told the radiologist that they believed that the plaintiff's attorney had settled with the referring physician quickly because the attorney had not wanted to bring the physician to trial. The family physician was well known in the local community and reputed to be a gentle and kind person. It would have been very difficult to convince a jury to convict such a physician, surmised the defense attorney and claims manager, and thus they acknowledged that it had been a good tactical move on the part of the plaintiff's attorney to settle with him. The radiologist, on the other hand, they pointed out, was not as well known in the community and had not established any long-term doctor—patient relationships. Although they believed that the plaintiff's attorney had a poor case against the defendant radiologist legally because the attorney had retained a poorly qualified and nonradiologist expert, the defense attorney and claims manager expressed concern that the plaintiff's attorney had a strong case emotionally. The patient, who had suffered relentlessly and horrendously by the time he died, had amassed large medical bills, had been a highly paid executive, and had left a wife and three dependent children. Even though the defendant radiologist and his expert witness would forcefully argue that the radiology standard of care had been adequately met by the defendant radiologist, nonetheless, said the defense attorney and claims manager, a jury might respond more favorably to the plaintiff attorney's argument that the defendant radiologist had technically violated the communication standard of the ACR by not telephoning the report to the referring physician.
The defense attorney and insurance claims manager postulated that the plaintiff's attorney would also argue that a telephone call by the defendant radiologist to the referring physician would have reinforced the radiologist's concern about the likelihood of malignancy being present, and thereby would have "pushed" the referring physician into taking immediate action to follow up, thus avoiding the delay in diagnosis. "It is an emotional argument that may be difficult to refute," explained the defense attorney and claims manager. Furthermore, they added, the plaintiff's attorney would try to portray the defendant radiologist as being callous and showing total disregard for the welfare of the patient because the radiologist had never asked the referring physician, whom he saw on many occasions after the initial radiographic studies had been obtained, about follow-up on the abnormal findings on the chest radiograph.
The attorney and claims manager told the defendant radiologist:
You are clearly in this case because you are the deep pocket, not because you did anything wrong. If we go to trial, you may win, but if the jury believes and is sympathetic to the argument of the plaintiff's attorney that you violated the College of Radiology's standard, the jury might well award indemnification in excess of your insurance coverage. Let's not take that risk. We're confident the plaintiff's attorney knows he has a weak case and may be persuaded to settle out of court for relatively little.
With the defendant radiologist reluctantly concurring, the insurance claims manager and defense attorney proceeded to negotiate on behalf of the defendant radiologist a settlement of $400,000.
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In the book Damages, journalist author Barry Werth [2] meticulously examines in riveting fashion the many crosscurrents and conflicting interests that arise in a major medical malpractice lawsuit. The case about which the author wrote concerned a birth injury in a Connecticut hospital that resulted in a severely brain-damaged child. At first the primary defendant was the obstetrician who delivered the injured baby, and the less important codefendant was the hospital in which the delivery occurred. Werth described the thought processes that went on in the mind of the plaintiff's attorney who formulated the classic deep-pocket strategy:
The [baby's family] could reasonably now claim to be due $15 million for what had happened to them....It would be the biggest malpractice case in Connecticut history.... But...such towering demands were worthless if the money couldn't be found to pay them. The key was to be able to prove liability on behalf of those with deep pockets.[The plaintiff's attorney] worried especially about [the obstetrician].... The more it appeared that the hospital was at fault prior to [the mother's] labor the less likely he thought a jury would be to blame [the obstetrician].... He doubted that they could hold the hospital and the obstetrician equally to account.
With insurance, claims size is destiny. [The obstetrician] had ceased to be the plaintiff attorney's main target as soon as he realized [the obstetrician had insufficient insurance].... He reset his sights on the hospital which could afford it. If the [the obstetrician] had carried more insurance, [the obstetrician] would have been more attractive as a defendant and the [the plaintiff's attorney] would have had more incentive to keep her in the case.... It was the inadequacy of [the obstetrician's] coverage that decided her fate.
[The plaintiff's attorney] wanted [the obstetrician] out of the way, fast. Still named as a defendant, [the obstetrician] could only cause serious problems for him. Either she would dilute the case against the hospital, by siphoning a portion of the blame, or by providing it with a foil. [The plaintiff's attorney] was willing to take essentially what he could get from the [the obstetrician] to get her out of the case...
...[The plaintiff's attorney] was pleased to have [the obstetrician] finally out of the case. At first, when it had looked like a mishandled delivery, he'd been eager to have her as a defendant. But ever since the emphasis shifted to the hospital's prenatal care, she'd just been in the way... She might have created sympathy among jurors. In terms of value [the obstetrician] had long been a side-show, not the main event, and now that he'd disposed of her [the plaintiff's attorney] felt revitalized, ready to take on more of the case against the real defendant of interest, the hospital.
There is no better description of the litigation tactic known as the deep-pocket strategy than that given in Damages [2]. In the case featured in the book, the parties eventually agreed to a settlement of $6.25 million, an amount far greater than the obstetrician's maximum insurance coverage. The company providing insurance for the hospital paid the full indemnification.
The deep-pocket strategy was used similarly by the plaintiff's attorney in the case described in this article, although the facts were different. To begin with, damages sustained by and indemnification awarded for brain-damaged neonates far exceed those resulting from delay in diagnosis of lung cancer in adults [3]. Furthermore, the amount of credible evidence gathered by and the caliber of expert witness testimony available to the plaintiff's attorney for the brain-damaged neonate were far greater than they were in the delayed lung cancer diagnosis case. The likelihood of a jury verdict in favor of the plaintiff was perceived as "very high" in the case of brain damage, but "low" in the case of lung cancer. As Werth concluded in Damages [2]:
Almost all malpractice cases were decided not on the basis of fact but on the perception of what a jury was likely to think was fact. You didn't need a trial any more. You just needed to make the other side imagine one.
Including as many codefendants as possible in a malpractice lawsuit to maximize funds available in the event the lawsuit succeeds for the plaintiff is a common strategy among plaintiff's attorneys. Occasionally, as happened in these two cases, the plaintiff's attorney will opt to settle before trial with the codefendant or codefendants who have less insurance coverage so that the attorney can devote all of his or her expertise and energy to convincing the jury to attribute all alleged negligence to the defendant or defendants who have more insurance coverage.
The deep-pocket strategy is often used by the defense as well. Werth [2] described several attorneys as observing:
Lurking in the shadows of each [insurance] adjuster's nightmares is the horrible possibility that a jury might find his insured to be the only culpable party, leaving his company responsible for the full amount of plaintiff's damages. Thus, self-interest spurs multiple defendants, if separately insured, to actively seek an equitable settlement. An interest in self-preservation also causes each of the defendants to point a finger at each other at trial.
While being a deep pocket is a common reason for a radiologist who has marginal or no apparent liability to be named as a codefendant in a malpractice lawsuit, there are other reasons as well. If a radiology group is operating as a partnership, every partner is liable for the actions of other partners, and any or all partners may be named as codefendants [4]. If a radiologist employs other radiologists, or exercises control, even temporarily, over radiology technologists or nurses, or if a radiologist is a chairperson, that radiologist may be named as a codefendant because of the doctrine of vicarious liability [5, 6]. Other reasons for which radiologists who are not directly involved in the alleged act of negligence may nevertheless be named as a codefendant in a malpractice lawsuit include allegations of negligent referral [7] and negligence in arranging for coverage by another physician [8].
A comment is in order regarding the communication standard of radiology care applicable to the defendant radiologist in this case. The ACR "Standard for Communication: Diagnostic Radiology" [9] in effect between 1995 and 1999, the period during which the incident described in this case occurred, states that radiologists should verbally communicate findings to referring physicians when there is a "significant or unexpected finding." The ACR standard that became effective January 1, 2000 [10] was strengthened by requiring that direct communication in person or by telephone be done when "immediate patient treatment is indicated (e.g., tension pneumothorax)." The standard goes on to state that if the physician caring for the patient cannot be reached, the radiologist should directly communicate to the patient. The new communication standard also states that in those situations in which the radiologist feels that less urgent findings or significant unexpected findings are present (the case described here probably fits into this category), the radiologist should communicate directly with the referring physician.
Except for mammography, for which there are separate standards [11], I know of no standard or authoritative source that holds that a radiologist must follow up with the referring physician to determine whether appropriate care has been given or diagnostic tests have been obtained after the radiologist has reported radiologic abnormalities. This may be of limited comfort to radiologists, however, because courts in several states have ruled that the standard of care of the community can exceed that which is found in written standards published by professional societies [12]. Furthermore, let us not forget that the plaintiff's attorney in the case described here retained an expert witness who testified that the standard of radiology care mandated that the defendant radiologist make follow-up inquiries with the referring physician regarding abnormal radiologic findings. In the final analysis, it is the jury who decides, after all presented evidence, what the standard of care is and whether the defendant has breached that standard. As Potchen and Bisesi [13] have pointed out, "The standard of care in a radiology case is whatever an expert witness can convince a jury it is."
The defendant radiologist in this case was perplexed that the plaintiff's expert witness who testified against him was a pulmonologist rather than a radiologist. The fact is that county, state, and federal courts throughout the nation generally do not require that an expert witness be in the same specialty as the defendant. The expert physician must certainly be licensed to practice medicine but needs show only that he or she is "familiar with the methods, procedures and treatments ordinarily observed by other physicians in either the defendant-physician's community or a similar community" [14].
From the standpoint of the defendant physician, the fact that a plaintiff's expert is not a member of the same specialty or subspecialty as the defendant physician is both good news and bad news. The good news is that the jury may surmise that the plaintiff's case is a weak one, for if it were strong, the plaintiff's attorney would have no difficulty in finding a reputable expert witness in the same specialty as the defendant. It is likely that the defense attorney would reinforce this when cross-examining the plaintiff's expert. The bad news, however, is that the plaintiff's expert witness, although perhaps not well qualified, may nevertheless be an extremely impressive and persuasive witness. Such a witness might even be more effective than a witness in the same specialty as the defendant.
No discussion of the deep-pocket strategy is complete without focusing on the question of how much professional liability insurance a radiologist should carry. Most, if not all, hospitals have instituted mandatory minimum amounts of insurance for members of their medical staff, commonly $1 million for a single incident and $3 million in aggregate for all alleged acts of malpractice committed within a 1-year period. Should radiologists carry greater amounts of insurance? This obviously is a question that each radiologist must evaluate carefully. If a radiologist practices in a hospital, either solo or as a member of a group, it is likely that if the radiologist is named as a primary defendant in a medical malpractice lawsuit, other parties such as the hospital, a referring physician, or partners of the radiologist will also be included as codefendants. This may well mitigate the need for coverage greater than $1 million for an individual radiologist. On the other hand, a radiologist practicing in an office setting may be more likely to be a sole defendant in a malpractice action. Under this scenario, it might be prudent for the radiologist to consider greater coverage. Under any scenario, however, radiologists should keep in mind that the more insurance coverage they have, the more likely it is that they will become targeted as the deep pocket.
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The following pointers will assist radiologists in understanding and dealing with the deep-pocket phenomenon.
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This article has been cited by other articles:
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  L. Berlin Relying on the Radiologist Am. J. Roentgenol., July 1, 2002; 179(1): 43 - 46. [Full Text] [PDF]
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M. K. Dalinka and L. Berlin Communication, the Deep Pocket, and ACR Standards Am. J. Roentgenol., July 1, 2001; 177(1): 248 - 249. [Full Text] [PDF]
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