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Defending the "Missed" Radiographic Diagnosis

Beth Israel Deaconess Medical Center and Harvard Medical School Boston, MA 02215

Berlin [1] points out, "In the midst of the myriad often-conflicting facts and figures concerning the frequency and nature of medical and radiologic errors that are introduced into a trial through expert witnesses...the jury is charged with deciding one, and only one, question: Did or did not the defendant physician breach the standard of care?" Unfortunately, by the time a lawsuit reaches trial, both sides usually have legitimate arguments, and the question of what constitutes a breach of the standard of care is blurred, sometimes even among the experts.

Berlin points out that "there is still no practical answer to the question, `When is an error simply an error and when is it malpractice?' " [1, 2]. However, I believe the legal profession could provide expert witnesses with better guidelines for answering these questions. When asked to consult on a medical—legal case, I find it much easier to estimate how often a radiologist or other medical defendant, in a comparable setting, would make the correct observation or diagnosis than to decide on what constitutes a breach of the standard of care. The former assessment not only is easier, but also is probably less arbitrary and more quantifiable. Certainly few experts would assume malpractice if only half of their colleagues would make the correct diagnosis. However, should that standard of care cutoff be less than 50%, less than 25%, or less than 10%? Many expert witnesses, perhaps even those representing the plaintiff and the defense in the same case, might agree on the percentage but disagree on whether that figure constitutes malpractice.

Have the decisions of higher courts provided any such specific guidelines as to what constitutes a standard of care? I would appreciate comments by Dr. Berlin.

References

1. Berlin L. Defending the "missed" radiographic diagnosis. AJR 2001;176:317 -322[Free Full Text]
2. Berlin L. Does the "missed" radiographic diagnosis constitute malpractice? Radiology 1977;123:523 -527[Abstract]

Reply

Rush North Shore Medical Center Skokie, IL 60076 and Rush Medical College Chicago, IL 60612

I applaud Dr. Hall for developing a method of defining what constitutes radiologic malpractice in cases involving a radiographic error by estimating what percentage of radiologists would "miss" the radiographic finding. Although I have no doubt that this approach works well for Dr. Hall in determining to his satisfaction whether a specific radiographic miss does or does not breach the standard of care, I fear that the approach has limited applicability in the courtroom.

To begin with, the various expert witnesses in a case would likely have different estimates of the percentage of radiologists who would miss the abnormality in question. Furthermore, even if the experts were to agree on a percentage, there is little likelihood that the jurors or a judge, not to mention the experts themselves, would reach a consensus as to what the standard-of-care cutoff would be. Finally, even if it could be demonstrated that 10%, or 40%, or 70% was the "cutoff" figure, would that mean that not even one of those radiologists who missed the lesion was negligent? I doubt that a jury or judge would accept such logic.

In any malpractice trial in which a missed radiographic diagnosis is alleged, the jury must decide whether a specific radiologist has breached the standard of care for having missed a specific radiographic diagnosis. Even if the jury could be shown by means of a credible study that a substantial number of radiologists missed a given radiographic abnormality, the jury must decide whether a specific defendant radiologist has been negligent. The jury presumably bases its decision on all evidence and opinions of expert witnesses presented at trial, much of which may be conflicting. Furthermore, as Potchen and Bisesi [1] have observed, standards of care are not absolute, and ultimately the standard of care becomes whatever a contest of experts can persuade a jury is the most appropriate standard for the case at hand. As most attorneys and courtroom observers will attest, it is difficult, if not impossible, to predict how a jury will rule after a trial is completed. No matter how a jury rules, however, another jury hearing the same evidence and confronted with the same facts could well reach an opposite verdict.

Dr. Hall asks whether the courts have provided specific guidelines as to what constitutes the standard of radiologic care. General guide-lines can be found in various appeals court decisions, but I believe that Dr. Hall and other readers of the AJR would consider these guide-lines far less clear and specific than they would like. Following are a few examples, presented in chronologic order:

• Illinois Supreme Court, 1860 [2]: "A physician...must employ a reasonable amount of skill and care...which is ordinarily possessed by members of the profession."
  
• New York Appellate Court, 1905 [3]: "A radiologist...is not liable for a mere error in judgment, provided he does what he thinks is best after a careful examination."
  
• Nebraska Supreme Court, 1944 [4]: "A patient is entitled to an ordinarily careful and thorough examination.... A physician is required to use reasonable skill and care.... If he omits to inform himself, by proper examination, as to the facts and circumstances, and injury results, he is not relieved of liability."
  
• Minnesota Supreme Court, 1975 [5]: "Negligence cannot be found when the facts show no more than an error in diagnosis.... A physician is not responsible for the consequences of an honest mistake or error in judgment in his diagnosis."
  
• Illinois Appellate Court, 1981 [6]: "If a doctor has given a plaintiff the benefit of his best judgment, assuming that judgment to be equal to that ordinarily used by reasonably well-qualified doctors in similar cases, he is not liable for negligence, even if that judgment is erroneous."
  
• D. C. Appellate Court, 1990 [7]: "The standard of care is that course of action that a reasonably prudent [physician] in the defendant's specialty would have taken under the same or similar circumstances."
  
• Ohio Appellate Court, 1992 [8]: "In order to establish medical malpractice, it must be shown...that a physician of ordinary skill, care and diligence...[failed] to do some particular thing that such a physician would have done under like or similar conditions or circumstances."
  
• Illinois Supreme Court, 1996 [9]: "The established standard of care for all professionals is stated as the use of the same degree of knowledge, skill, and ability as an ordinarily careful professional would exercise under similar circumstances."
  
• Wisconsin trial court, 1996 [10]: "Negligence is determined by whether the defendant-radiologist failed to use reasonable and ordinary care."
  
• Wisconsin Appellate Court, 1997 [11]: "The question is...whether the physician used the degree of skill and care that a reasonable physician, or an average physician, would use in the same or similar circumstances.... Errors in perception by radiologists viewing x-rays occur in the absence of negligence."
  
• As can be seen from these brief excerpts of representative judicial decisions, courts have frequently used such terms as "reasonable" and "ordinary" as determinants of the standard of medical care. A dictionary [12] defines reasonable as "not extreme, not excessive, moderate, not demanding too much, possessing good sound judgment, well balanced, sensible." Ordinary is defined as "common, lacking in excellence, not distinguished in any way from others, not above but rather below the average, somewhat inferior level of quality."
  
• If any radiologist who is trained and expected to pinpoint radiologic abnormalities with precision and then render interpretations in specific and meaningful terms feels perplexed at the vagueness of the words reasonable and ordinary as used by the courts in defining the standard of medical care, he or she is not alone. Clearly, a more concrete definition of standard of care as it applies to radiologists or other physicians remains elusive.
  
• In conclusion, I feel compelled to reiterate the observation that appeared in a previous article [13]: "The question of whether a missed radiographic diagnosis constitutes malpractice has confounded [medical and legal professionals] for decades, and it is not likely that the question will be resolved to the satisfaction of [anyone] in the foreseeable future."
  

References

1. Potchen EJ, Bisesi MA. When is it malpractice to miss lung cancer on chest radiographs? Radiology 1990;175:29 -32[Free Full Text]
2. Richie v West, 23 Ill 329 (Ill 1860)
3. MacKenzie v Carman, 92 NYS Supp 1063 (NY 1905)
4. In re Johnson's estate, Douglas v Johnson, 16 NW2d 504 (Neb 1944)
5. Todd v Eitel Hospital, 237 NW2d 357 (Minn 1975)
6. Spike v Sellett, 430 NE2d 597 (Ill App 1981)
7. Washington v Washington Hospital Center, 579 A2d 177 (DC App 1990)
8. Jewett v Our Lady of Mercy Hospital of Mariemont, 612 NE2d 724 (Ohio App 1992)
9. Advincula v United Blood Services, 678 NE2d 1009 (Ill 1996)
10. State of Wisconsin Department of Regulation and Licensing v State of Wisconsin Medical Examining Board and George E. Farley, MD, 96-CV-0657 (Dane County, Wis 1996)
11. Department of Regulation and Licensing v State of Wisconsin Medical Examining Board, 572 NW2d 508 (Wis App 1997)
12. Webster's third new international dictionary of the English language unabridged. Springfield, MA: Merriam-Webster, 1993: 1589, 1892
13. Berlin L, Hendrix RW. Perceptual errors and negligence. AJR 1998;170:863 -867[Abstract/Free Full Text]

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This Article Full Text (PDF) Alert me when this article is cited Alert me if a correction is posted Services Email this article to a friend Similar articles in this journal Similar articles in PubMed Alert me to new issues of the journal Download to citation manager Citing Articles Citing Articles via Google Scholar Google Scholar Articles by Hall, F. M. Articles by Berlin, L. Search for Related Content PubMed PubMed Citation Articles by Hall, F. M. Articles by Berlin, L. Social Bookmarking                      What's this?