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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.
Received May 17, 2005; accepted after revision May 31, 2005.
Address correspondence to L. Berlin
(lberlin{at}rsh.net).
Case 1
On a November afternoon, a Mary-land woman took an 11-month-old boy whom
she had been babysitting to his pediatrician's office because the infant had
"hit his head on the floor"
[2]. After examining the child
and finding nothing abnormal, the pediatrician sent the infant home with
instructions that the child's mother and father observe the boy and call if
anything unusual occurred. Later that evening, the parents noticed that the
child was not behaving as energetically as usual and telephoned the
pediatrician. He instructed the parents to take the infant to the local
hospital emergency department and said that he would call ahead to inform the
emergency personnel that the child would be arriving and may need a CT scan.
At the hospital, the boy was examined by both an emergency department
physician and an on-call pediatrician. Finding no abnormalities, they
determined that a CT scan was not warranted and discharged the patient.
On an afternoon 3 weeks later, the babysitter called the mother at work and told her that she found the boy lying on the floor and he was not responsive. The infant was immediately rushed to a hospital emergency department, where a massive subdural hematoma was diagnosed. The child underwent immediate surgery, at which time the neurosurgeon found a second small subdural hematoma, "days to weeks" old, in addition to the acute larger one. The child was left with permanent disabilities.
The parents later filed a medical malpractice lawsuit against the two pediatricians and the emergency department physician, alleging that had CT been performed during the initial emergency department visit, it would have shown the small hematoma, which in turn would have raised suspicion about the credibility of the babysitter's report that the child had fallen and hit his head. This, the parents argued, would have led to a child abuse investigation and immediate dismissal of the babysitter, precluding the subsequent injury.
At the conclusion of the malpractice trial, a jury found in favor of the child and his family, awarding them $5 million [2].
Case 2
In New Jersey, an 18-year-old woman admitted herself to an emergency
department complaining of back pain and numbness in the legs
[3]. Suspecting that the
symptoms and findings were related to a kidney stone, the emergency department
physician recommended that an excretory pyelogram be obtained on an outpatient
basis. The next day a private physician saw the patient, determined that she
was suffering from a spine problem, and referred her for a neurologic
consultation and possible MRI. Because of delays in scheduling, MRI was not
performed until 2 days later. It revealed a malignant tumor of the spine. The
patient underwent surgery and subsequent chemotherapy and radiation but was
left with permanent partial paralysis.
Later, the patient filed a medical malpractice lawsuit against the emergency department physician, alleging that he should have realized that she had a neurologic spine problem that required immediate radiologic imaging. The lawsuit was eventually settled for $2.5 million [3].
Case 3
A 38-year-old-man was struck during an altercation with a customer outside
his place of business in New York
[4]. After he fell to the
ground and hit the back of his head on the sidewalk, the man was transported
by ambulance to a nearby hospital emergency department. A head laceration was
closed with sutures, but no CT scan was obtained. The man was discharged
several hours later.
Four days later, the patient returned to the hospital emergency department complaining of grogginess and headaches. CT revealed a skull fracture and subdural hematoma. The patient underwent surgery but died 1 week later.
The man's family filed a malpractice lawsuit, claiming that had a CT scan been obtained during the initial emergency department visit, the hematoma would have been diagnosed and the patient cured. The lawsuit was later settled for $1 million [4].
Case 4
In Florida, a 56-year-old man consulted a urologist because of swelling of
a testicle [5]. The urologist
diagnosed a probable hydrocele and shortly thereafter performed an
orchiectomy. Pathologic examination of the specimen revealed carcinoma. Over
the next 4 years the patient underwent various kinds of chemotherapy and
multiple surgical procedures, encountering a myriad of complications. He then
died. After his death, a medical malpractice lawsuit was filed against a
number of defendant physicians, including the urologist, who was charged with
negligence for having initially operated on the patient without first ordering
sonography of the testicle. Eventually the case was settled for $3.55 million,
of which $500,000 was attributed to the urologist
[5].
Case 5
A 43-year-old Massachusetts woman consulted her primary care physician
because she felt a lump in her breast
[6]. The physician referred the
woman to a surgeon, who diagnosed the lump as a cyst and instructed the woman
to return in 6 weeks. On her return visit, and on a subsequent visit 4 months
later to her primary care physician, the lump could not be palpated. Neither
physician ordered a mammogram. One year after her initial visit to the primary
care physician, the lump had grown large enough to become easily palpable. The
surgeon performed a needle biopsy that revealed carcinoma.
The woman filed a medical malpractice lawsuit against both physicians, alleging that the failure to order a mammogram delayed the diagnosis of breast cancer by 1 year, resulting in her having to undergo mastectomy instead of a lumpectomy. The lawsuit went to trial, at the conclusion of which the jury ruled in favor of the patient, awarding her $4.15 million [6].
Case 6
One day a woman who noted the sudden onset of neck pain associated with
bilateral upper and lower extremity numbness and tingling admitted herself to
the emergency department of an Ohio hospital
[7]. An emergency department
physician examined her and found no neurologic abnormalities. The emergency
physician telephoned the on-call internist, who told the physician to admit
the patient to the hospital and said he would see her the following morning.
During the night, a nurse noted that the patient was unable to feel needle
sticks and that one arm was weaker than the other. However, the nurse did not
notify the internist, who did not examine the patient until 11:00 the
following morning. Finding serious neurologic abnormalities, the internist
then ordered an MRI, but the imaging was not performed until later that night.
The MRI disclosed severe spinal cord compression at C5-C6 with findings
suggestive of irreversible ischemia. Surgery was performed, but the patient
was left with substantial neurologic deficits that included bowel and bladder
incontinence.
The patient later filed a medical malpractice lawsuit against the emergency physician, the internist, and the subsequent treating physicians, alleging that the delay of more than 30 hr in performing MRI (and failure to administer appropriate postoperative care) resulted in irreversible neurologic injury. Before trial, the lawsuit was settled for $5 million [7].
Discussion
The six cases described here share a common denominator: failure of a patient's physician to order a radiologic examination. An article published previously in the AJR [8] discussed six other malpractice lawsuits in which indemnification was paid to plaintiffs because of failure of their physicians to order radiologic tests: $1 million to the family of a 27-year-old woman whose death from ovarian carcinoma was attributed to a physician's failure to order a sonogram; $2.95 million to the family of a 32-year-old woman whose death from colon carcinoma allegedly resulted from her physician's failure to order a barium enema examination; $462,500 to a patient whose foot fractures went undiagnosed because a physician had not ordered radiographs; $800,000 to the heirs of a patient who died of a ruptured cerebral aneurysm because a physician had not ordered MRI; $2.5 million to the family of a 36-year-old man who died of myocardial infarction because a physician had not ordered a thallium heart scan; and $3 million to a woman who sustained permanent brain damage after head trauma because a physician had not ordered a CT scan. These 12 "errors of omission" lawsuits constitute the proverbial tip of the medical malpractice litigation iceberg: the American phenomenon known as "defensive medicine." To begin analysis of this phenomenon, let us first focus on lawsuits in which the primary allegation is failure to order radiologic studies.
Failure to Order Radiologic Studies: A Burgeoning Cause of Malpractice Litigation
A survey of medical malpractice lawsuits in which appeals court decisions
were rendered in the United States between 1946 and 1956 revealed sporadic
cases dealing with radiographs not being ordered to diagnose fractures, but
not even one case of a delayed diagnosis of neoplasm or other serious medical
problem due to failure to order radiologic studies
[9]. This is in stark contrast
to a survey published 20 years later that reviewed malpractice lawsuits filed
in the greater Chicago area (Cook County) between 1975 and 1980
[10]. This survey readily
identified an emerging malpractice allegation: patient injury resulting from
the referring physician's failure to order radiologic studies of all types.
Although 44% of a total of 97 claims of failure to order dealt with delay in
diagnosis of fractures or dislocations, the remainder focused on physicians'
omission of ordering gastrointestinal series, arteriograms, excretory
urograms, venograms, pelvimetries, lymphangiograms, and radionuclide scans of
the brain and thyroid gland. Of particular interest is the fact that six cases
alleged delay in diagnosis of lung cancer due to failure to order chest
radiographs, and one case alleged failure to diagnose breast cancer because of
failure to order a mammogram.
A follow-up study of Cook County lawsuits filed between 1980 and 1986 revealed a remarkable growth—an increase of 52%—in the number of failure-to-order-radiologic-studies lawsuits [11]. The number of lawsuits alleging failure to obtain radiographs in fracture or dislocation cases dropped to 37% of the total, and there now appeared for the first time lawsuits alleging failure to obtain such radiologic studies as myelograms, mammograms, CT scans of the head and abdomen, sonograms, and radionuclide studies of the lung, heart, bone, testicle, and spleen. Still another article that analyzed Cook County's malpractice litigation data between 1986 and 1995 revealed a dramatic growth in the number of failure-to-order-radiologic-studies lawsuits [12].
How failure-to-order-radiologic-studies lawsuits in Cook County, IL, grew over three decades—the 1980s, 1990s, and 2000s—is shown in Table 1. Because the most recently available Cook County malpractice data are for 2002, the comparative years of 1992 and 1982 are shown for the purpose of discovering trends. As can be seen, the allegation of failure to order a radiologic study accounted for 2% of all medical malpractice cases filed against physicians in Cook County in 1982. The proportion increased to 3.9% in 1992 and to 5.4% in 2002. In the same 20-year period, the actual number of failure-to-order-radiologic-studies lawsuits increased by 2.5 times, from 23 to 56 [13].
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Failure to Order Nonradiologic Studies
Lawsuits filed against physicians alleging negligence for failing to order
medical testing are not limited radiologic studies. One jury awarded $1.5
million to a 57-year-old man who had sued his internist for not ordering a
prostate-specific antigen (PSA) test in a timely fashion, resulting in a
delayed diagnosis of prostate cancer
[14]. Another jury awarded
$1.3 million to a man who also had sued his internist for failing to order a
PSA test [8]. In Illinois, a
jury awarded $30 million to the parents of a neonatal boy who died at the age
of 16 days of sequelae of kernicterus. After delivering the baby at the
mother's home, the obstetrician as a routine measure had drawn a blood sample
from the baby but he never submitted the sample to a laboratory to determine
the bilirubin level [15].
That jury verdicts such as these have caused physicians in all specialties to increase their ordering of both radiologic and nonradiologic diagnostic tests seems self-evident. Clearly, the experience of having been sued in the past, or the fear of being sued in the future, for these types of errors of omission is a strong motivation to order more tests. The physician's motivation to order more is further strengthened by the public's almost insatiable appetite in demanding screening tests of all varieties, radiologic and nonradiologic. High-profile articles in such well-read newspapers as The Wall Street Journal and The New York Times extolling the virtues of electron beam scanning to detect coronary artery calcification [16], carotid sonography to prevent strokes [17], sonography and genetic testing to detect fetal abnormalities [18], testing of all newborns to detect "29 rare medical conditions" [19, 20], MR images that "beat mammograms" in diagnosing breast cancer [21], and hand-held sonography to "identify children and teenagers with urinary problems" [22], which are read daily by millions of the nation's public, serve as far more effective appetite stimulants than any medication ever developed. Consider the following statistics: 87% of surveyed adults believe that routine cancer screening is almost always a good idea and that finding cancer early saves lives [23], and 68% of women believe that screening prevents or reduces the risk of contracting breast cancer [24]. Even the fact that 43% of persons undergoing screening tests experience at least one false-positive result does not seem to limit the public's demand for continued testing [25].
Additional factors that coax physicians into ordering imaging studies on patients whose history or clinical findings may not indicate the likelihood of abnormality are articles that appear in the medical literature. A recent New England Journal of Medicine article [26] discussing spinal injuries states that "patients with signs or symptoms that suggest injury to the spine" should have "x-ray films taken of the spinal column," without defining what is meant by "signs or symptoms that suggest injury." A recent article in the Journal of the American Medical Association [27] states, "a low threshold for CT of patients with mild symptoms that are suggestive of subarachnoid hemorrhage may reduce the frequency of misdiagnosis," without the defining what is meant by "mild symptoms." Finally, lest physicians are not provided with sufficient incentive to order more tests by such medical literature, there is yet one additional powerful stimulus to order more: financial incentives that are meted out to physicians [28].
Defensive Medicine
Defensive medicine has been defined as the practice of "ordering
expensive tests and procedures that are not indicated medically but the
absence of which may render physicians vulnerable in a malpractice
lawsuit" [29], or the
practice of "encouraging the ordering of tests and procedures that are
of marginal or of no medical benefit, primarily for reducing medicolegal
risk" [30]. The annual
cost to the nation of defensive medicine has been estimated to range from $25
billion [31] to $126 billion
[2]. Although the range of this
estimate is wide because the actual costs are difficult to quantify, a study
by two California economists provides more specific data. The economists
compared the cost to Medicare of patients hospitalized with acute heart
disease in states with and without effective tort reform
[32,
33]; they found that in states
with tort reform, Medicare expenditures were 5-9% less. Those researchers
estimated that defensive medicine accounts for 5-9% of the annual cost of the
national health care budget.
Little doubt exists that the threat of medical malpractice litigation affects the day-to-day practice of virtually all physicians. In one recent survey, 42% of physicians reported that fear of a lawsuit has altered their behavior and caused them to order extra tests and procedures [34]. Another survey revealed that 79% of physician respondents said that they order more tests than they would "based only on professional judgment of what is medically needed" [35]. The same survey disclosed that 51% of physicians said that they suggest more biopsies than they deem necessary. Undoubtedly a similar defensive medicine thought process directly influences the nation's rate of cesarean sections, which rose for the seventh straight year to a record 27.6% in 2003, a figure one third higher than the rate in 1996 [36]. Lawsuits on behalf of neurologically injured newborns, whose conditions allegedly result from failure to perform or delay in performing cesarean sections, generate some of the highest medical malpractice payouts. Recently, a Chicago jury awarded $35 million to the parents of a boy born with severe birth defects, presumably related to an anesthesiologist's 1-hr delay in responding to a call for an immediate cesarean section [37].
The defensive medicine mentality experienced by many physicians is realistically illustrated in one physician's letter to the editor of The New York Times on the subject of MRI of the breast [38]:
You do not explore the possibility of a woman who has a negative mammogram and who subsequently develops metastatic breast disease leading to her death. A jury in a malpractice suit would be sympathetic to the argument that an MRI could have led to early detection, which would have resulted in curative treatment.
Doctors will order this test to protect themselves, regardless of the cost and necessity.
Although a "defensive medicine mentality" is usually thought of as encouraging overutilization of medical testing and procedures, it can on occasion dissuade the use of new medical technology. A recent Forbes magazine article [39] described a new brain-wave monitor that indicates whether a patient is awake or asleep during a surgical procedure. The article pointed out that many anesthesiologists fear that the monitor is "yet another example of a technological advance that gives doctors useless or ambiguous information in the operating room but can provide a treasure trove of evidence in the courtroom." The same article continued [39]:
Doctors remember the fetal heart monitor, introduced with great enthusiasm in the 1970s, as a way to cut down on birth injuries by alerting doctors to fetal distress in time to remove the baby via Cesarean section. Subsequent research has shown the device does not reduce the incidence of cerebral palsy, which results in some of the most costly malpractice judgments against obstetricians. The paper record it produces, however, is a virtual script for trial lawyers seeking to convince jurors that somebody screwed up.
Overutilization Caused by Self-Referral
That defensive medicine results in overutilization of radiologic imaging is
not in doubt. That overutilization of imaging results exclusively from
defensive medicine, however, is much in doubt. Indeed, in the past several
years, considerable attention has been focused on overutilization of
radiologic examinations by physicians who self-refer patients to imaging
centers in which or with which they have either financial ownership or leasing
arrangements, thereby profiting from every referral. As far back as 1990,
Hillman et al. [40] found that
radiologic procedures were performed 4.5 times more often when nonradiologists
referred patients to facilities in which they had a financial interest rather
than to independent radiology facilities. Maitino et al.
[41] reviewed Medicare claims
filed between 1993 and 1999, and found that imaging performed by
nonradiologists increased 53%, whereas imaging performed by radiologists
increased only 15%. Those researchers also found that although overall use of
diagnostic imaging examinations conducted by radiologists decreased 4% in that
same 6-year period, imaging examinations by nonradiologists increased 25%
[41,
42]. Other studies by Levin et
al. [43,
44], Litt et al.
[45], Berlin and Berlin
[46], and Abelson
[47], confirm a solid direct
relationship between overutilization and self-referral, a relationship that
"creates an irresistible urge to order as many imaging tests as
possible—including many that aren't really medically necessary"
[48].
Notwithstanding the data from these studies, a definitive determination of the relative degree to which overall overutilization of radiologic imaging is generated by self-referral rather than defensive medicine is yet to be made.
Defensive Medicine by Radiologists
Although this article has focused primarily on
failure-to-order-radiologic-studies malpractice lawsuits lodged against
referring physicians, by no means are radiologists exempt from such
litigation. The American College of Radiology "Practice Guideline for
Communication of Diagnostic Imaging Findings"
[49] states that,
"Follow-up or additional diagnostic studies to clarify or confirm the
impression should be suggested when appropriate." The words "when
appropriate" are not defined, and thus the circumstances under which
radiologists should suggest additional radiologic studies are left to the
radiologist's own judgment. A radiologist's failure to recommend additional
radiologic studies may well subject that radiologist to a medical malpractice
lawsuit. Such was the case of a 37-year-old man involved in an automobile
accident who was taken by paramedics to a nearby hospital emergency
department. Conventional cervical spine radiographs were interpreted
accurately—as normal—by the radiologist. After the patient
developed neurologic abnormalities the next day, a CT scan revealed a C5-C6
fracture-dislocation. The patient later filed a malpractice lawsuit, naming as
a codefendant the radiologist, alleging that the radiologist was negligent
because he "should have known that spine fractures can be missed on
plain films" and had failed to order a CT scan at the time he
interpreted the initial cervical spine radiographs
[50]. Radiologists whose
practices include mammography have found themselves defendants in malpractice
litigation for failing to recommend spot compression or magnification views
[51] or breast biopsies
[52]. Many other examples of
lawsuits filed against radiologists alleging their failure to order additional
radiologic studies have been reported previously
[53,
54].
Summary and Conclusions
For the first two thirds of the 20th century, the most common bases on which malpractice lawsuits were lodged against physicians were alleged negligent acts of commission—in other words, allegations that the physicians did something wrong [9, 55]. About three decades ago, however, the nature of allegations of negligence against physicians began to undergo a major transformation: instead of being sued for doing something wrong, physicians began to be sued for failing to do something right. In other words, plaintiffs began suing physicians for malpractice far more frequently for negligent acts of omission than for acts of commission. Indeed, Leape et al. [56] found that 75% of all adverse events due to negligence committed in New York hospitals in the late 1980s involved diagnostic mishaps, usually the result of a physician's failure to do something. At approximately the same time, a report of malpractice claims involving the federal government disclosed that a missed diagnosis of cancer had become the most common claim against radiologists, accounting for 30% of all cases [57]. For the past decade, the allegation of failure to diagnose breast cancer has become the most prevalent cause of malpractice lawsuits lodged against radiologists and, in fact, against all physicians in the United States [58].
The Need to Do Something: "The Capstone of Medicine"
In a malpractice trial held in Chicago 3 years ago that dealt with a
defendant radiologist's alleged missing of a lung cancer
[59], the plaintiff's attorney
posed the following question to the defendant radiologist as the latter sat in
the witness box:
Doctor, as a radiologist, is not what you do like the screeners at the airport? A suitcase comes through the X-ray machine, something shows up, it may be a gun, it may not be a gun, you don't know, so you pull the bag off the line. Then someone else takes a look at the bag and sometimes it's a gun, and sometimes it isn't. That's what a radiologist does, isn't it? What a radiologist does is alert people that there may be a problem and then those people go on and make the tests and do whatever needs to be done to determine if it truly is a problem, right?
In his closing argument before the jury, the plaintiff's attorney likened a radiologist's interpretation of a radiographic study to a driver's interpretation of an automobile dashboard:
When the warning light appears on your dashboard, it is in your best interest to go to the mechanic to have that abnormality checked out. In this case the radiologist had a warning light on the dashboard that he ignored.
In his book about a malpractice trial in Connecticut, author Barry Werth observed that "Intervention is the capstone of modern medicine; it is simply self-defeating to argue that it is better to do nothing than something" [60].
Outlook for the Future
Clearly, allegations of errors of omission have ignited the spark and
become the dominant theme of malpractice litigation in American courtrooms in
the 21st century. The total number of imaging procedures in the nation grew by
40% over the past 5 years alone and is projected to grow by another 26% by
2008 [61]. As this number and
the sophistication of radiologic and nonradiologic procedures and tests
continue to grow, so surely will errors caused by physicians' omission of
ordering or using this medical technology. Nonradiology physicians will
continue to be increasingly sued for failure to order sonographic,
radionuclide, CT, MRI, and PET studies on their patients. Radiologists will
continue to be increasingly sued not only for failure to recommend radiologic
tests, but for failure to recommend other diagnostic procedures as well.
In the not-so-distant future, radiologists will likely be subjected to malpractice lawsuits for errors in omitting the use of technology that is not yet the standard of care, such as computer-assisted detection and teleradiology, to obtain radiologic consultations. The number and kinds of potential procedures, tests, and acts by physicians, the omission of which could result in patient injury and medical malpractice litigation, are limitless.
Of even greater concern is that the American phenomenon of defensive medicine is being exported to nations across the seas that until recently have managed to remain unmarred by the practice. As can be seen by the words of the editor of the Irish Medical Journal, the European litigation landscape is changing [62]:
In U.S. medicine it is being increasingly stated that the clinical examination on its own is insufficient because it cannot hold up in court. The consultation needs to be supported by objective and often expensive tests. Irish medicine is heading down the same road.
Malpractice lawsuits alleging errors of omission and the ordering of radiologic procedures as a tactic to minimize exposure to such litigation are likely to plague radiology and nonradiology members of the medical profession for many years to come.
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