Malpractice: What the Thinking Radiologist Should Know

A Special Thank You to:

Dr. David M. Yousem, M.D., M.B.A.Professor, Department of RadiologyVice Chairman of Program DevelopmentDirector of Neuroradiology

Johns Hopkins Hospital

for allowing the use of his material/content in this presentation

Dr. Yousem’s online lecture series can be viewed at:http://webcast.jhu.edu/mediasite/Catalog/pages/catalog.aspx?

catalogId=7e18b7d5-9c63-487e-aaf1-77a86f83b011

Dr. Yousem’s project was funded through an RSNA Educational Grant

Not just “Bad” Doctors are Sued

• Physicians have a 1 in 4 chance of being sued per year • Radiologists have a 1 in 3 chance of being sued• Most lawsuits against radiologists are for failure to diagnose or

failure to communicate in a timely manner• 1/3 of all malpractice claims are lost by the radiologist

– This number continues to rise

Radiologic Errors

• Radiologists error rate reported at 30%• >70% perceptual

• abnormality is not perceived, i.e. “missed”• <30% cognitive

• Abnormality is perceived but misinterpreted• Error does not equal negligence

– Negligence occurs when the degree of error exceeds an accepted standard

Radiologic Errors

• Missed diagnoses are the major reason radiologists are sued– Most commonly missed:

• Cancers (breast and lung are the largest percentacge)• Spine fractures

• Retrospective error/miss rate averages 30% (i.e. hindsight is 20-20)

• “Real-time” error rate in daily practice averages 3-5%

Radiologic Errors

• Radiologic errors difficult to defend because of bias• Hindsight bias

– The inclination to see events that have already occurred as more predictable than they actually were

– i.e. falsely believe you correctly predicted the outcome after you know the actual outcome

• Outcome bias– An error made in evaluating the quality of a decision when

the consequences of that decision are already known– i.e. the tendency to attribute blame more readily when the

outcome is more severe

How to Minimize Risk

• Review priors after interpreting current study• Be aware of alternate presentations of pathology• Review and obtain clinical information• Complete continuing education

– Know current practice guidelines• Suggest follow up studies when appropriate

– Follow ACR Appropriateness Criteria• Communicate significant abnormal findings appropriately and in

a timely fashion directly with treatment team

Components Required for a Malpractice Lawsuit

1. Duty owed– Establishment of a physician-patient relationship

2. Duty breach– Physician must fail to meet current standard of care– A negligent act must have been committed by action or omission– This is the most frequently contested element

3. Breach resulted in injury– Negligent act must have caused injury to the patient

4. Damages– Patient must have sustained an injury as a result of the negligence

Types of Damages Awarded• Punitive

– Usually capped within a given state– Only awarded in the event of a reckless act

• Compensatory– Non-Economic

• Physical and psychological harm (i.e. pain and suffering)• Loss of consortium

– Economic• Usually the largest component in a suit• Economic impact of loss of employment and wages• Legal fees

What To Do If You Are Sued

• Contact your risk manager

• Contact your insurance carrier

• Contact your lawyer

• Do not discuss the case with your colleagues

• Do not alter the medical record

Medical Malpractice Insurance

• Physicians need liability insurance– Required in most states– If not required, usually needed for hospital privileges– Usually priced according to specialty and location

• Physicians employed by the government don’t buy insurance– Suits are brought against the government

Medical Malpractice Insurance

• Purpose– Pays for court costs, settlements, and damages– Prevents personal liability

• Have enough coverage• Who pays?

– Usually purchased from a commercial company or physician-owned mutual company

– Can be purchased by the group or individuals• Sometimes portable

– Follow you from one job to the next

Medical Malpractice Insurance

• Claims and settlements are reported to national database– Known to hospitals

• Amount rewarded is considered– May be used to assess risk of joining faculty/staff

Types of malpractice insurance

• Occurrence

• Claims made

• Claims paid

Occurrence Insurance

• Coverage provided for services rendered during the policy period regardless of length of time that passes before claim filed– Longevity of company must be considered

• Broadest form• Riskiest for insurer

– Due to length of time covered• Most expensive

Claims Made

• Coverage provided for claims on services rendered on or after the active date and before end of policy period– Can purchase insurance back to an earlier date

• Type preferred by most radiologists• Limits of liability are adjusted for when claim is made, not when action

occurred• Allows tail and nose coverage• Premiums increase each year

– Less expensive than occurrence policies– Based on actual experience during time of coverage

Claims Paid

• Premiums based on claims settled during the previous year and projected for current year

• Rarely purchased or offered

Tail Coverage

• Also termed ERP (extended reported period)

• For claims made insurance after termination of coverage

• Types:– Basic, prolonged or extended– Usually ~5 years

Nose Coverage

• For claims made insurance on activity prior to the initiation of coverage by new/subsequent insurer– Similar to using a retroactive date

Potential Endorsements

• Waiver of consent to settle a case– Insurance company makes decision whether to settle

• Deductible• Employee coverage• Sexual misconduct

Discounts

• New doctor- 1-3 years out– Haven’t acquired as many cases

• Part-time • Retired• Risk/claims management seminars• Peer review

Choosing an insurance company

• Rated by Standard and Poors or Moodys• A.M. Best Company of Oldwick, NJ• Ratings

– A+++ to B+ are “secure”– B, B-, C and D are not acceptable– E- under regulatory supervision– F- liquidation– S- suspended– Not rated means in business <5 years

How much coverage?

• Depends on income, assets, affordability• Depends on state and cap on punitive damages• Depends on amount and number of claims• Most recommend $1M per occurance and $3M aggregate per

year

Wrongful Death vs Malpractice

• Wrongful death- recovery for injuries suffered by the victim– Includes pain and suffering, expenses incurred by the victim to the

moment of death– Wrongful death action- compensation of relatives of victims

• Malpractice: four elements– Must have a physician–patient relationship – Must have committed a negligent act (a violation of the standard of

care),– The negligent act must have caused injury to the patient (proximate

cause) – Patient must have sustained an injury

Rates

• Variable– usually priced according to specialty and geographic location

• Average policy cost for radiologists = $13K• Insurers set premiums on a prospective basis

– Expected payouts for providers in a particular risk group – Uncertainty surrounding this estimate– Expected administrative expenses and future investment

income– Profit rate considered as well

Teleradiology

• Multiple states involved– Country-wide coverage

• Vary by volume, modalities, preliminary or final results

• Vicarious liability of the group that contracted the teleradiology service

Summary

• Claims Made is preferred insurance• Overlap coverage as you change jobs• Options for reduced rates• Carry coverage for multiple occurences

– $1-2M• State variability

References

• Leonard Berlin, Radiologic Errors and Malpractice: A Blurry Distinction; AJR 2007; 189:517–522

• Berlin L. Malpractice issues in radiology: Alliterative errors. AJR Am J Roentgenol. 2000;174:925-931.

• David Yousem M.D., M.B.A., Business of Radiology Lecture Series• Michael Raskin, M.D., M.P.H., JD, Survival Strategies for Radiology: Some practical Tips

on How to Reduce the Risk of Being Sued and Losing. AJR 2006; 3:689-693. • Berlin L. Reporting the "missed" radiologic diagnosis: medicolegal and ethical

considerations. Radiology 1994;192:183 -187• Michelle M. Mello, J.D., Ph.D., M.Phil. Understanding medical malpractice insurance: A

primer; Harvard School of Public Health; Research Synthesis Report No. 8 January 2006 • Leonard Berlin, Radiologic Errors and Malpractice: A Blurry Distinction; AJR 2007;

189:517–522