Medicolegal Issues in Diagnostic Imaging

1

Define medical negligence.

Negligence is the failure to possess and apply the knowledge that is possessed or applied by reasonable physicians practicing in similar circumstances.

2

What must be proven for a physician to be found liable for malpractice?

• Establishment of physician-patient relationship.

• Breach of the duty of care.

• Adverse outcome with injury or harm.

• Direct causality between negligence and outcome.

3

Outline the history of malpractice law.

The legal framework in the United States originates from the work of Blackstone, a renowned English legal scholar whose Commentaries on the Laws of England, published in 1768, used mala praxis for injuries resulting from professional neglect or want of skill. Malpractice is derived from this term. Malpractice law is part of the tort, or personal injury, law. The plaintiff (injured party) files a suit against the defendant (physician) in a civil court in front of a jury comprised of ordinary (not belonging to the medical profession) citizens.

4

List factors responsible for high medical litigation in the United States.

• The ethos of marketplace professionalism (no special status to medical societies) and anti-egalitarian sentiments of the early nineteenth century forced physicians to raise their professionalism and medical organizations to stipulate standards of practice that, ironically, would be used against them.

• Medical innovations made physicians victims of their own advancement.

• Liability insurance ensured an available financial pool for compensation.

• Plaintiffs had nothing to lose by filing a lawsuit because of the contingent “no win–no fees” basis of legal representation and because of the fact that both adversarial parties had to bear their own legal costs regardless of the outcome.

5

There can be no malpractice without established practice. Who sets the established practice, and who determines whether the established practice has been breached?

The expected standard may be defined in textbooks, medical literature, or stated by professional organizations such as the American Medical Association (AMA) and the American College of Radiology (ACR). The jury decides whether a physician's conduct is below that expected of a reasonable physician. The expert witness (an individual of the same or similar clinical discipline as the defendant) outlines the standard to which the physician should be held, however. The attorneys for the plaintiff and the defendant can retain an expert witness.

6

Would a general radiologist who misses a lesion on a brain magnetic resonance imaging (MRI) study be held to the standard of a neuroradiologist?

The radiologist must possess the knowledge and skill that is ordinarily possessed by a reasonable peer. He or she is not required to possess the highest skill level to which some aspire. A general radiologist would be held to the standard of a reasonable generalist, but not of a specialist.

7

The average plaintiff award in the United States is $3.5 million. What is the aim of the award, and what are the types of damage awarded by the jury?

The ethos behind the jury award is restitution, not punishment. The award aims to compensate the patient and to deter further such episodes of negligence from occurring.

Three types of damages are considered:

• Economic losses, such as the injured plaintiff's health care costs and loss of wages.

• Noneconomic losses, such as pain and suffering.

• Punitive damages when the defendant exhibited wanton disregard for the plaintiff's well-being. This is awarded rarely.

8

Can an exculpatory waiver signed by a patient shield the physician of a certain degree of liability?

It is common for instructional facilities for scuba diving, skydiving, and similar risky activities to ask participants to sign exculpatory waivers shielding them from lawsuits if injury or death results. Such a waiver implies a “contract” because the parties have theoretically agreed in advance on acceptable and unacceptable outcomes. The patient-physician relationship is not a contract, however, but rather a professional bond in which the physician assumes a position of responsibility as the possessor of knowledge and skill beyond the ordinary toward patients who may not know their own best interests. The signing of a waiver by a patient does not alter the legal course when medical negligence is alleged.

9

A radiologist in an outpatient facility reads radiographs without ever meeting the patients. Does he or she still form a physician-patient relationship?

Although a physician-patient relationship typically is a consensual one, a radiologist forms that relationship when he or she renders an interpretation on an imaging study for the patient. This is true even if the radiologist never meets or speaks with the patient or referring physician. This fact is important to appreciate because the basis of any malpractice claim is the establishment of a duty of care by formation of a physician-patient relationship.

10

It is estimated that in any given year a lawsuit may be brought against 1 in 10 radiologists. What are the most common reasons radiologists get sued?

• Failure of diagnosis. This includes perceptual errors, insufficient knowledge, incorrect judgment, and failure to correct poor patient positioning and exposure.

• Failure to communicate findings in an appropriate and timely manner.

• Failure to suggest the next appropriate procedure.

11

What are the groundbreaking findings of the Institute of Medicine's report To Err is Human: Building a Safer Health System ?

The report, published in 2000, received much media interest and put medical errors in the spotlight. On reviewing the 1984 patient files of New York hospitals and the 1992 files of Colorado and Utah hospitals retrospectively for adverse events, the report concluded that medical error alone could account for 44,000 to 98,000 deaths annually in U.S. hospitals. This figure exceeds the number of deaths attributable annually to AIDS, motor vehicle accidents, or breast cancer.

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