Radiology misreads are tough to defend
Claims also involve failure to communicate results
Radiology errors are difficult to address in medical malpractice claims because at that point in time, everyone, including the jury, knows the patient's injury.
"Plaintiff's experts almost never have trouble finding evidence of the injury to be 'clear' on the image, even if that is not the case," says William R. Forstner, JD, an attorney with Smith Moore Leatherwood in Raleigh, NC.
In cases in which there are separate reads and something was missed on both readings, the claim is generally more defensible for all of the named physicians, says Forstner. "It is my view that a jury is more willing to accept that one doctor performed a negligent read or made another mistake necessitating a malpractice award than to conclude that several doctors all made the same 'unforgivable' mistake," he says.
Forstner has encountered several situations involving allegedly incorrect radiology reads in which one physician performed a preliminary read and a radiologist performed a second read. or one radiologist performed an initial read with a brief handwritten interpretation and an over-read later was completed by another radiologist.
"Multiple independent interpretations of an image can add a degree of credibility to the claim that the alleged error was not obvious to any reasonably competent doctor," says Forstner. "Additionally, a thorough report, which may identify non-essential issues, can be helpful to show that the radiologist is carefully reviewing the film."
Radiology errors can result in malpractice lawsuits not only naming radiologists, but also any physician who interprets the studies with or without the aid of a radiologist and anyone who relies upon studies interpreted by a radiologist, warns Ryan M. Shuirman, JD, an attorney at Yates, McLamb & Weyher in Raleigh, NC.
Those claims deal primarily with miscommunications, or failures to follow up on an interpretation the radiologist has included in a report, he says. For example, the radiologist notes an incidental finding which might or might not be unrelated to an acute presentation, but the incidental finding is nevertheless worth investigating after the treatment for the acute condition. The ordering physician then never follows up with the radiologist about the incidental finding, or never pursues his or her own investigation at the next appropriate interval.
Typically, claims arising out of radiology errors fall into one of two categories: allegations that a film was mis-read, or allegations that the results were not adequately communicated to the ordering physician, Shuirman says. "Mis-reading a film can result in claims of failing to diagnose a disease which could have been treated in a more timely fashion or diagnosing a disease which is not truly present and which thus leads to unnecessary treatment," he says.
Claims can implicate a radiologist for not phoning in a particularly acute or worrisome finding; or can implicate the ordering physician for not following up with the radiologist, if results are never received or for failing to investigate equivocal findings.
"Moreover, when an ordering physician and a radiologist have discordant conclusions from a particular study, claims can arise if the ordering physician and radiologist do not take adequate steps to reconcile their discordant conclusions," says Shuirman.
For example, a radiologist reports a finding which is thought to be incidental, and its significance is downplayed. The ordering physician either doesn't believe that the incidental finding exists or believes it to be of such low significance that it isn't worthy of investigation.
Radiologists could defend such a claim by saying that they made their finding known by including it in the report, and ordering physicians then would have to explain why they didn't investigate it further.
"A plaintiff's expert, in such a scenario, is likely to impose a duty on the ordering physician to at least have discussed the finding with the radiologist, since the radiologist's finding was of some threshold significance to have been mentioned in a report in the first place," says Shuirman. (See related story, below, on documentation that can make claims more defensible.)
- William R. Forstner, JD, Smith Moore Leatherwood, Raleigh, NC. Phone: (919) 755-8714. Fax: (919) 838-3133. Email: Bill.Forstner@smithmoorelaw.com.
- Ryan M. Shuirman, JD, Yates, McLamb & Weyher, Raleigh, NC. Phone: (919) 719-6036. Fax: (919) 582-2536. E-mail: email@example.com.