Malpractice: What the Thinking Radiologist Should Know

1. Malpractice: What the Thinking Radiologist Should Know

2. 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 Hospitalfor allowing the use of his material/content in this presentationDr. Yousem’s online lecture series can be viewed at:http://webcast.jhu.edu/mediasite/Catalog/pages/catalog.aspx?catalogId=7e18b7d5-9c63-487e-aaf1-77a86f83b011Dr. Yousem’s project was funded through an RSNA Educational Grant

3. 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

4. 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

5. 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%

6. 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

7. 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

8. Components Required for a Malpractice Lawsuit • 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

9. 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

10. 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

11. 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

12. 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

13. 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

14. Types of malpractice insurance • Occurrence • Claims made • Claims paid

15. 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

16. 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

17. Claims Paid • Premiums based on claims settled during the previous year and projected for current year • Rarely purchased or offered

18. Tail Coverage • Also termed ERP (extended reported period) • For claims made insurance after termination of coverage • Types: • Basic, prolonged or extended • Usually ~5 years

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

20. Potential Endorsements • Waiver of consent to settle a case • Insurance company makes decision whether to settle • Deductible • Employee coverage • Sexual misconduct

21. Discounts • New doctor- 1-3 years out • Haven’t acquired as many cases • Part-time • Retired • Risk/claims management seminars • Peer review

22. 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

23. 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

24. 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

25. 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

26. 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

27. 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

28. 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. Radiology1994;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