Imaging-Related Malpractice: View from a Plaintiff's Attorney

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Robert D. Kreisman, JD
Robert D. Kreisman, JD

Visitors to the website of medical malpractice attorney Robert D. Kreisman, JD, of Kreisman Law Offices in Chicago will find that he has posted two brief analyses related to diagnostic and therapeutic imaging.

  • “Radiation Therapy Treatment for Cancer Patients at All-Time High” (posted on January 25, 2010) informs readers about the FDA's recent white paper, Initiative to Reduce Unnecessary Radiation Exposure from Medical Imaging. “This initiative is part of a growing movement to increase the safety of life-saving diagnostic and therapeutic radiation and prevent Illinois radiology errors from occurring,” Kreisman wrote.
  • In “Medical Radiation From Radiology Scans to be More Stringently Regulated Per New FDA Requirements” (posted on February 16, 2010), Kreisman reminds readers that “radiation mishaps seldom result in medical malpractice lawsuits,” in part because such incidents are chronically underreported, and are not required to be reported at all in his state.

In an interview with Renal & Urology News, Kreisman shares some insights that may be useful to both physicians and patients.

Q.  The dangers of imaging overuse range from excessive radiation exposure to findings that result in subsequent unnecessary and stressful testing for the patient. However, urologists and nephrologists who decline to order an imaging test run the risk of being sued for malpractice. Can you elaborate on these and/or other risks of doing too much or too little testing, in terms of legal responsibility?

A. Oftentimes, a physician's legal responsibility is in tandem with his/her medical responsibility to patients in that the goal of each is to provide treatment that meets an acceptable standard of care. The new concerns regarding excessive exposure to radiation emphasize the importance of balancing the associated risks of ionizing radiation with the medical necessity of the test. The new diagnostic reference levels being developed by various medical groups will likely be key in establishing an optimal level of radiation exposure that is considered acceptable under different medical situations. 

Medical malpractice occurs when a physician's acts or omissions are considered by expert opinion to be below the acceptable standard of care. For example, if a patient had been complaining of a chronic cough for six months and was not responding to conservative treatment, most physicians would order a chest x-ray. In a case like this, a simple chest x-ray may be enough to rule out cancer or other life-threatening diseases. A chest x-ray carries a relatively low level of radiation exposure and is a fairly common test to administer. However, I handled a medical malpractice case where a physician chose not to order a chest x-ray for a patient with a chronic cough until five office visits for the same symptom and 14 months had passed. This delay in ordering this relatively simply diagnostic test resulted in the missed opportunity to diagnose the patient's lung cancer in its early stage. In this case, it was obviously not in the patient's best interest to delay ordering a chest x-ray until so much time had passed. Furthermore, there was no indication in the medical records that this consideration had factored into the physician's thought process—it was simply a case where the medical provider missed the boat. 

Q. How great a malpractice concern is the overuse/underuse/misuse of imaging tests? How often does it appear as a component of a malpractice claim?

A. Most of the medical malpractice cases involving imaging tests that I encounter deal with a failure to order tests, as seen in my earlier example.  However, I also encounter a fair number of medical malpractice cases that involve a misread of the radiographic studies. Both of these types of mistakes often lead to a significant delay in a proper diagnosis. And, again, in terms of the new concerns regarding excessive exposure to radiation, it is increasingly important that those scans that are done are read accurately to avoid the need for future testing. Thus, ensuring accurate readings of radiographic studies has the dual benefit of decreasing the potential for overexposure to radiation and decreasing the risk of medical negligence. The other component to overexposure to radiation involves radiology technicians and in some instances machine failure. 

Q. What steps can these practitioners take to protect themselves while serving their patients?

A. In my experience, the vast majority of physicians are very thorough when using differential diagnosis to analyze a patient's condition and then ruling out the most life-threatening conditions first. Therefore, the way physicians already approach treating patients is set up to best serve their patients. When a physician decides to overlook a potentially life-threatening or critical disease in order to first address a nonfatal concern it opens up to the potential for medical malpractice and a poor outcome for the patient.

Therefore, the best way to eliminate medical errors is to thoughtfully work towards the correct diagnosis. If there is any doubt about any aspect of a patient's treatment plan, physicians could probably consult with a specialist, or contact the patient's other treaters.  It seems to me that it is important to take advantage of all the available resources when working towards an acute diagnosis and to follow the mantra of “when in doubt, rule out.” 

Q. Can you share any examples of cases with which you are familiar in which the overuse, underuse, or misuse of imaging tests was at the heart of the issue?

A. The majority of the medical malpractice lawsuits regarding improper use of imaging tests involve their underuse. For example, one of my cases involved a woman with a known diagnosis of a benign meningioma who presented to the emergency department reporting the “worst headache of my life.” Instead of ordering a brain computed tomography scan, which would have clearly shown the onset of a brain herniation, the woman was given pain medications and discharged. She died within 10 hours of her discharge. 

Q. Do you have any thoughts you'd like to share regarding the FDA initiative you mention in your February 16 website posting?

A. I am a firm believer in the importance of being your own advocate in regards to your medical care. The FDA initiative cited the lack of access to prior imaging studies as a contributing factor to the increase in excess radiation. If physicians are unaware of a patient's history of exposure to higher dose radiation tests, like CTs or fluoroscopy, then this hinders the physicians' ability to weigh the risk of future tests. 

Therefore, I would encourage patients to keep track of their prior imaging studies and to maintain copies of the scans if possible. At the end of the day we all need to work together to make sure that medical providers have all the information to make informed decisions.

The medical community is taking steps to do so in its efforts to establish diagnostic reference levels and ensure proper training of all staff handling radiograph equipment, and to ensure that all radiograph equipment be equipped with warnings. Patients should also be encouraged to do their part and become informed about the risk of radiation exposure and what they can do to help protect themselves.

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