About half of all litigated malpractice claims against diagnostic radiologists are dismissed in court and only 5 percent go to verdict—a result in line with other medical specialties, according to recent research.
While radiologists have a low risk of losing a case, the often lengthy and expensive path to resolution could explain why malpractice remains a major—but often distorted—fear in the minds of radiologists, experts say.
National data on the frequency of litigation, how lawsuits are typically resolved and how long cases take to be resolved have been lacking, said Anupam B. Jena, M.D., Ph.D., an assistant professor of health care policy at Harvard Medical School and physician at Massachusetts General Hospital, both in Boston. As an author of "Outcomes of Medical Practice Litigation Against U.S. Physicians," in the May issue of the Archives of Internal Medicine, Dr. Jena and colleagues examine malpractice data by physician specialty.
"Incomplete data have left malpractice rates and case resolutions among physician specialties poorly understood," Dr. Jena said. "The primary source of data has been the National Physician Data Bank, which records settlements and lost lawsuits but does not publish according to physician specialties. In our study, we obtained a data set from a nationwide professional liability insurer that allowed us to compare specialties."
Dr. Jena and colleagues examined more than 10,000 medical malpractice claims from 2002 to 2005 that involved some cost to the defendant. Specialties were divided into nine categories including diagnostic radiology.
Results showed that 55.2 percent of all claims resulted in litigation, ranging from 46.7 percent for claims against anesthesiologists to 62.6 percent for claims against obstetricians and gynecologists.
Slightly more than 50 percent of claims against radiologists resulted in litigation, while only 2 percent of those cases went to trial. Radiologists won half of the cases that went to trial, Dr. Jena said. However, Dr. Jena noted that the sample size was too small to generalize their results. "Overall, though, when cases are decided by a jury, they are more likely to be decided in favor of the physician," he said.
No matter the outcome, malpractice cases take a significant time to resolve. "Among all physicians, claims took an average of 20 months to close," Dr. Jena said. "Claims that went to a jury took 40 months on average. This is troublesome for both patients and physicians."
The long, often expensive path to resolution could explain why radiologists harbor a fear of malpractice that is often distorted, according to Leonard Berlin, M.D., a radiologist at Skokie Hospital and a professor of radiology at Rush University and the University of Illinois, Chicago.
Dr. Berlin is among the RSNA 2012 Honored Lecturers.
"A survey was done that showed 40 percent of radiologists felt they were likely to face a lawsuit in the next five years," he recalled. "The actual result turned out to be 10 percent. The perception was four times the reality. In fact, the total number of lawsuits against physicians has dropped in the last few years. Physicians' perceptions haven't changed, but the risk has."
In fact, an earlier study by Dr. Jena's group published in the August 2011 issue of the New England Journal of Medicine found that radiologists face a low risk of malpractice suits compared with other physician specialties. Missed breast cancer on mammography was the leading cause of medical malpractice against radiologists.
"In terms of malpractice risk, radiologists are in the bottom third, just below anesthesiologists and just above ophthalmologists," Dr. Jena said. "About 7 percent will face a suit annually, and about 2 percent will pay a claim." However, the cumulative risk of facing a malpractice claim is high, even in a low-risk specialty like radiology. By age 65, three-fourths of physicians in low-risk specialties and 99 percent of physicians in high-risk specialties like neurosurgery will have faced a malpractice claim, Dr. Jena calculated.
"Even though 75 percent of claims don’t result in payment to patient, there is a cost, and it’s not only the insurance company that pays," Dr. Jena said. "When a physician defends himself against a lawsuit, there is lost practice time, stress and a concern about how he will be viewed by his peers."
A separate study by Dr. Jena's research team published in the August 2011 issue of the New England Journal of Medicine found that the average cost to defend a claim was approximately $23,000 for all specialties. Radiologists had a lower average payment: about $15,000 without indemnity, and $38,000 with indemnity.
The time, money and stress associated with malpractice are feeding the growth of "defensive medicine," or the ordering of additional tests to limit the threat of malpractice liability, according to Dr. Jena. His research team is planning to analyze this association more closely.
"Fear of malpractice is the largest cause of defensive medicine," Dr. Berlin added. "You don't want to overlook anything. That's why a physician might perform a CT scan on a patient with a headache even though there’s only one-half of one percent chance of a bleeding aneurysm."
So far, tort reform has failed to make much of an impact on medical malpractice, Dr. Jena said. A means for quickly separating meritorious cases from others and promoting early disclosure of medical errors are among the ideas being discussed to improve the process.
Irrespective of any regulatory or legislative changes, Dr. Berlin advises radiologists not to get overly distracted by malpractice fears.
"Enjoy the profession and do the best you can," he said. "The perception of getting sued exceeds the reality. If you're going to stay awake at night worrying about getting sued, you're in the wrong field."
"Legal Aspects of Radiology," one session of the RSNA Resident and Fellow Symposium 2012, will include lectures on malpractice.
Moderated by RSNA Resident and Fellow Committee Chair Aparna Annam, D.O., the session will feature "Medical Malpractice Pitfalls Your First Year Out: How to Avoid Them," presented by Leonard Berlin, M.D. He will help attendees understand the frequency and common causes, of medical malpractice lawsuits involving radiology, as well as malpractice pitfalls that can occur in the everyday radiology practice. Attendees will also learn about the importance of communication of abnormal radiologic findings to the referring physician and, under certain circumstances, to the patients themselves.
"You've Been Sued, Now What?" will be presented by David Yousem, M.D., who used a Philips Medical Systems/RSNA Research & Education Foundation Education Scholar Grant to create a free online course to help prepare radiology trainees for economic, financial and leadership challenges. His presentation will help attendees understand the framework of a malpractice case in terms of duty, breech, causation and damages, as well as the timeline for the legal process required to bring a case to court. Attendees will also take away dos and don’ts once they’ve been named in a lawsuit.
The RSNA Resident and Fellow Symposium 2012 will be held Wednesday, November 28, from 1:30 to 5:45 p.m. Other topics to be covered include the future of the radiology job market, teleradiology and contract negotiations. Access the RSNA Online Meeting Program to register for courses MSRP41
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