Malpractice: What the Thinking
Radiologist Should Know
A Special Thank You to:
Dr. David M. Yousem, M.D., M.B.A. Professor, Department of
Radiology Vice Chairman of Program Development Director 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 2020)
• “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
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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.
2.
3.
4.
Duty owed
– Establishment of a physician-patient relationship
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
Breach resulted in injury
– Negligent act must have caused injury to the patient
Damages
– Patient must have sustained an injury as a result of the negligence
Types of Damages Awarded
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Punitive
– Usually capped within a given state
– Only awarded in the event of a reckless act
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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 physicianowned 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
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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
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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?
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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
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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
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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
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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
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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