Malpractice Fears in Mammography Overestimated

Leonard Berlin, M.D. NorthShore University HealthSystem

Carl J. D'Orsi, M.D. Emory Healthcare, Atlanta

R. James Brenner, M.D., J.D. Bay Imaging Consultants

Reports of long-vacant positions, unfilled fellowships and a growing gap between supply and demand have led mammography experts to an inevitable conclusion about the subspecialty.

"Many radiologists are afraid to go into mammography—or stay in it—out of fear of a potential lawsuit," said Leonard Berlin, M.D., vice-chair of the Department of Radiology at NorthShore University HealthSystem, Skokie Hospital in Skokie, Ill., and chair of the RSNA Professionalism Committee. "I think there is no question that for the most part, fellowships in mammography remain vacant and many radiologists don't want to read mammograms." (Listen In to Dr. Berlin discuss current mammography vacancies and the forecast for the future.)

Public and private healthcare providers are routinely experiencing multiple mammography vacancies that are often unfilled for lengthy periods, according to Carl J. D'Orsi, M.D., director of the Division of Breast Imaging at Emory Healthcare in Atlanta, and co-chair of the American College of Radiology (ACR) Breast Imaging Commission. "We are down three staff members and have been searching for 18 months to date," said Dr. D'Orsi.

Although stress, low reimbursement and long hours have likely contributed to waning interest in mammography, Drs. Berlin and D'Orsi believe the threat of litigation is a prime factor. Statistics back up that connection. A February 2009 study, "Workforce Shortages in Breast Imaging: Impact on Mammography Utilization," in the American Journal of Roentgenology (AJR) cites a previous survey showing that 95 percent of radiology residents polled were concerned about malpractice liability in mammography and 65 percent said they would not consider a fellowship in breast imaging if it was offered to them, citing fear of lawsuits as a main reason.

Even though the fear of litigation appears to be a deterrent, new research also published in the February 2009 AJR found that radiologists in breast imaging substantially overestimate their actual risk of malpractice lawsuits.

The study, "Predictors of Radiologists' Perceived Risk of Malpractice Lawsuits in Breast Imaging," led by John F. Dick, III, M.D., of the Department of Medicine at Dartmouth Medical School in Hanover, N.H., reported that the median estimate for the likelihood of being sued was four times higher than the actual risk, attributing skewed risk perception to a personal malpractice lawsuit or knowing a colleague who was sued, anxiety over clinical uncertainty and mass media reports emphasizing errors in breast cancer cases.

Study Shows Skewed Perception

In the study led by Dr. Dick, radiologists who were mailed surveys in 2002 and 2006 were asked whether they had been named in a malpractice suit and to rate the probability of being the target of a lawsuit in the next five years.

In the 2002 survey, 77 percent of 181 radiologists responded; in 2006, 71 percent of 118 radiologists participated. The study included radiologists at Breast Cancer Surveillance Consortium facilities in Colorado, New Hampshire and western Washington.

On average, radiologists in 2002 rated the likelihood of a lawsuit at 41 percent, while in 2006 the number dropped slightly to 35 percent. But the number who had actually faced a mammography-related lawsuit was much lower. In 2002, 8 percent of respondents had been sued, while in 2006, that number was 10 percent.

Researchers concluded that understanding that the actual risk of malpractice suits may be substantially lower than anticipated may help reduce radiologists' fears and alleviate the manpower shortage in mammography.

Moving Closer to Reality

Dr. Berlin agrees that radiologists' perception of lawsuit risk is skewed, but points out that the public's view of mammography is also unrealistic. "Mammography has been oversold to the public," he said. "Women overestimate their probability of dying of breast cancer by more than 20-fold and the value of screening mammography in reducing that risk by 100-fold." (Listen In to Dr. Berlin discuss the facts on diagnosing breast cancer.)

That has led to a litany of lawsuits, according to Dr. Berlin, who said that relative to all of radiology, missed breast cancer is the leading cause of medical malpractice litigation. And although most cases are settled out of court, according to Dr. D'Orsi, even so, they can leave a lasting impression.

"In the meantime, the radiologist has been subjected to anxiety for years and is placed in a national database even if the case is won or a pre-trial settlement is reached."

Although the study by Dr. Dick has the potential to alleviate some unrealistic fears about malpractice litigation, it also gives radiologists the opportunity to examine their own conduct in reducing or eliminating malpractice risks, according to one of its authors, R. James Brenner, M.D., J.D., Bay Imaging Consultants, Walnut Creek, Calif.

"The quick answer is to simply dismiss the opportunity to change and complain that the risks of malpractice are too high. Remember that when large-scale screening began, most radiologists had never been formally trained in breast imaging. Today, a large percentage have been trained in residency, some have specialized and the situation is changing," said Dr. Brenner.

Along with improving expertise, closing the gap between perception and reality for the patient and the public is the only way to reduce lawsuits and renew interest in mammography, said Dr. Berlin. And that can best be achieved through education, he said. (Listen In to Dr. Berlin discuss public perception of breast cancer.)

"Only through education will the public understand that the standard of mammographic care is not one of perfection but rather one of reasonableness," he said. "Hopefully then, radiologists will choose the field of breast imaging and gladly continue their involvement in it."

"Failure to Communicate" Focus of RSNA 2009 Mock Jury Trial

Jonathan Berlin, M.D., M.B.A. Northwestern University

Has a radiologist who detects possible lung cancer on a patient's X-ray and issues a written report noting the finding and recommending a CT scan adequately fulfilled his responsibility? Or is he obligated to verbally communicate the findings to the referring physician—or the patient?

That was the central question in a malpractice lawsuit filed several years ago by the family of a 55-year-old Chicago man who died of lung cancer about a year after the radiologist recorded the suspicious finding in the man's radiology report but did not verbally communicate it to the referring physician.

The case, whose outcome has already been decided in court, will also be the subject of a mock jury trial to be presented Sunday, Nov. 29, at RSNA 2009. (Listen In to Dr. Berlin discuss the RSNA 2009 Mock Jury Trial.)

Leonard Berlin, M.D., who organized and participated in the last RSNA mock trial five years ago, will do so again and serve as the moderator for the case focusing on the "failure to communicate," which is increasingly becoming a major source of lawsuits against radiologists. "It continues to be a hotly debated subject in courtrooms," he said.

Dr. Berlin's son, Jonathan Berlin, M.D., M.B.A., who portrays the radiologist defendant, said it's critical to spotlight communication—or lack of it—because it hits so close to home for so many radiologists.

"In daily practice it is often difficult to communicate results to referring physicians in real time," said Dr. Jonathan Berlin, associate professor of radiology at Northwestern University Feinberg School of Medicine in Evanston, Ill. "Referring physicians may be out of town or unavailable, and in such cases communication can be problematic."

The RSNA mock jury trial, to be held in Room S100, will begin at 10:30 a.m. and the verdict will be announced at about 1:30 p.m. A discussion of the case and a Q&A with the audience will follow.

Other participants include presiding judge, retired Cook County Judge Stuart A. Nudelman; defense attorney, Timothy Nickels, J.D., senior partner at Swanson Martin & Bell in Chicago; and plaintiff's attorney, Thomas Demetrio, J.D., senior partner at Corboy and Demetrio in Chicago. Expert witnesses will be radiologists Richard Chesbrough, M.D., from Bloomfield Hills, Mich., and Michael Raskin, M.D., from Tamarac, Fla.

Leonard Berlin is also among the presenters of the RSNA 2009 refresher course, "Malpractice Minefields in Radiology: Mammography, Interventional Radiology, and Failure to Communicate." Other presenters include Robert A. Schmidt, M.D., and Robert L. Vogelzang, M.D.

Enrollment for this and all RSNA 2009 courses is under way. For more information, go to RSNA2009.RSNA.org.