Medical Malpractice: Are You Covered?

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Many factors have contributed to radiology’s increasingly important role in our health-care system and to the specialty’s contributions to medicine. Demographics suggest that radiology will continue to be demanded by the physicians who will care for an aging and expanding population.

Likewise, new indications for existing technology have accelerated the utilization of diagnostic-imaging procedures in both elective and emergency situations. For example, physicians’ reliance on imaging to arrive at a prompt diagnosis can be seen in the unprecedented rise in the use of CT in US emergency departments—from 2.7 million exams in 1995 to more than 16 million in 2007, representing an average growth rate of 16% per year. 1

Other factors contributing to increased utilization of imaging include patient expectations, the use of diagnostic-imaging procedures (including mammography) in screening programs, defensive medicine, the financially motivated ordering of unnecessary or noncontributory diagnostic tests, and the recommendation by radiologists of follow-up studies (of which the value is frequently questioned by referring physicians). In a 2008 report, 2 America’s Health Insurance Plans estimated that 20% to 50% of diagnostic-imaging procedures fail to provide information that improves the patient’s diagnosis.

While much has been written about the financial burden of unnecessary imaging exams, less attention has been focused on the increasing exposure to the risk of litigation for radiologists. They can be exposed either directly (for example, through failure to diagnose or incorrect diagnosis) or as defendants in cases that seem tangential to the performance and/or interpretation of radiological exams (in circumstances where counsel for the plaintiff sues all who were involved in the medical care delivered, even where their performance was not the proximate cause of the injury).

Medical Malpractice

Medical malpractice is professional negligence, by act or omission, by a health-care provider, in which care provided deviates from accepted standards of practice in the medical community and causes injury or death to the patient, with many cases involving medical error. Standards and regulations for medical malpractice vary by country and by jurisdiction within countries.

The plaintiff must establish all four elements of the tort of negligence for a successful medical-malpractice claim: First, a duty was owed. A legal duty exists whenever a hospital or health-care provider undertakes care or treatment of a patient. Second, a duty was breached. The provider failed to conform to the relevant standard of care. The standard of care is proved by expert testimony or by obvious errors (the doctrine of res ipsa loquitur, or the thing speaks for itself).

Third, the breach caused an injury. The breach of duty was a proximate cause of the injury. Fourth, there are damages. Without damages (losses that might be pecuniary or emotional), there is no basis for a claim, regardless of whether the medical provider was negligent. Likewise, damages can occur without negligence—for example, when someone dies of a fatal disease.

Most settled malpractice claims (73%) involve medical error, according to a 2006 study.3 The authors discovered that claims without evidence of error are not uncommon, but most plaintiffs in such cases (72%) are denied compensation. The vast majority of expenditures (54%) go toward litigation over errors and payment for them. An examination of records of 1,452 closed malpractice claims revealed that an overwhelming majority (97%) were associated with injury; in those cases, 73% of plaintiffs received compensation. Just 3% of the claims were not associated with injuries; in those cases, 16% of plaintiffs received compensation.

Well over half of the claims (63%) were associated with errors; in those cases, 73% of plaintiffs received compensation (with an average payment of $521,560). The other 37% of claims were not associated with errors; in those cases, 28% of plaintiffs got compensation (with an average payment of $313,205). Claims not associated with errors accounted for 13% to 16% percent of the total costs. For every dollar spent on compensation, $0.54 went to administrative expenses (including lawyers, experts, and courts). Claims involving errors accounted for 78% of administrative costs. 2 , 3Separating Myth From Reality

Until recently, little information was available regarding the direct and indirect