Malpractice issues in radiology - Defending the "missed" radiographic diagnosis

An opinion article written in 1977 stated [26], "In spite of all that has been written, as well as the various legal opinions that have been rendered, there is still no practical answer to the question, "When is an error simply an error and when is it malpractice?" Now, nearly one quarter of a century later, the answer to this question still eludes us. Contrary to many opinions expressed by state appeals courts, much of the public seems to believe that every radiologic error represents a negligent act. Most radiologists, nonradiologist physicians, lawyers, and lay people alike tend to take the position that if a radiologist has missed a diagnosis that was in retrospect present on radiographs, the miss cannot be considered anything but malpractice. To counteract this common perception (or misperception) among judges or jurors in a court of law, a defendant radiologist accused of negligence for missing a radiographic diagnosis, along with his or her attorney and supporting expert witnesses, must present a strong and convincing argument. The likelihood of such a defense argument succeeding is not known. Statistically, plaintiffs prevail in medical malpractice lawsuits less than 24% of the time [25], but most malpractice lawsuits are settled out of court under terms often not publicly disclosed. Therefore, accurate statistics addressing the question of how often indemnifications is paid to plaintiffs when radiologists who commit radiologic errors are sued for malpractice is simply not available. It is difficult to defend in the courtroom a radiologist who has failed to perceive a radiographic abnormality that in restropect can be perceived. Nevertheless, data that include statistics regarding the frequency of errors committed by radiologist during the course of ordinary everyday practice, explanations of what makes certain radiographic abnormalities subtle, experts opinions that it is not possible for any radiologist or other professional to adhere to a standard of perfection, and evidence that the conduct of the defendant radiologist has been careful and prudent, can at times, as illustrated in the case decribed in this article, be sufficently persuasive so as to effect a jury verdict in favor of the defendant radiologist.