Addressing legal challenges and precautions for radiologists

December 09, 2019
by John W. Mitchell, Senior Correspondent
There is good news and bad news on the medical malpractice front, according to a Tuesday RSNA panel in a session titled "Medicolegal Issues of Today's Radiologists."

On one hand, the number of malpractice cases has been steadily dropping since 2002. On the other, the size of jury awards in malpractice cases is on the rise. And when it comes to the issue of gadolinium retention, don’t count on the science to save the day. Radiologists need to take precautions in the way of documentation and establishing medical need protocols.

Panel member Dr. H. Benjamin Harvey, senior scientist and assistant professor of radiology at the Harvard Medical School, also holds a law degree. He spoke about the rising awareness around gadolinium retention and the possibility of liability. He noted that current research does not suggest gadolinium retention poses a health risk to patients.

But, Harvey explained, juries don’t always make decisions based on the science. He cited the recent awards by juries to plaintiffs in lawsuits against Monsanto related to the claim the popular weed killer Roundup caused cancer. The jury awards dam broke, he said, based on one small meta-study that found individuals who didn’t use Roundup had a 2 percent chance of contracting lymphoma, compared to 2.7 percent of Roundup users who did.

He advised that radiologists create policies and document meeting minutes that establish medical need protocols for gadolinium use. Also, because there are different types of gadolinium associated with less retention, a supplier decision should not be based on price or marketing. Instead, the emphasis should be on perceived safety to the patient based on medical need. Since there is no linked risk established for gadolinium use based on the research, he does not recommend informed consent.

Cautioning against defensive medicine
Dr. Leonard Berlin, professor of radiology, Rush University Medical College, gave a quick U.S. history overview of defensive medicine. He attributed the first use of the very phrase "defensive medicine" to a 1974 statement by an AMA lead attorney. He presented three different categories of defensive practices:

– Practices that subject patients to no additional physical or emotional risk or financial cost.
– Practices that subject patients to no physical risk or pain but impose financial cost and increase anxiety levels.
– Practices that subject patients to significantly increased physical risks and psychological and financial risks.

“Practicing defensive medicine is not good for patients or physicians,” Berlin said, citing a quote from a medical journal. “The adverse effects of defensive medicine are not limited to the increased cost of healthcare, but also affect the overall quality of the healthcare system.”

Berlin cited the upward trend in C-sections to 39 percent of births in the U.S (2016) as a form of defensive medicine. In November, he noted, a jury awarded a mother $101 million for brain damage because the hospital's delivery team was deemed to have ignored findings of an ultrasound indicating her baby was in distress.

“There is no malpractice lawsuit filed for performing an unnecessary C-section," said Berlin. “but a physician will get sued for failing to do so.”

He said the extra cost of defensive medicine to the U.S. health system varies widely based upon the source, but he conservatively put the number at $50 billion annually. The irony, according to Berlin, is that the goal of medicine is to avoid mistakes. But each additional test for defensive purposes can inject a fresh possibility for error.

For example, an unnecessary CT or MR exam can lead to a false positive and unnecessary surgery and complications. Also, more and more, ER doctors are routinely ordering imaging studies to rule out rare underlying conditions for patients who present with common symptoms, according to another panel member.

Berlin finds that physicians are less concerned today about being sued. But they worry about the impact of a lawsuit on their reputation. Since 2002 cases of malpractice suits have dropped from about 14,000 to 9,000 cases. Inversely, however, average jury awards have increased fourfold from about $100,000 to $400,000 in 2018.