Introduction

In Germany, the United Kingdom, and most Canadian provinces, malpractice judgments are decided by a judge; the United States is one of the few countries in which a jury determines whether a physician has committed malpractice. Sweden and New Zealand have no-fault systems.

“History records that the money changers have used every form of abuse, intrigue, deceit, and violent means possible to maintain their control…” —James Madison

Although Madison’s comments were specifically meant in reference to central banking, the sentiment that money changers, today constituted of the banking and insurance industries, have been an iniquitous force in society has been universally held for millennia. In 1957, malpractice insurance rates were between $64 per year and $106 per year in New York and between $300 and $400 per year in California. Today, the average premium paid by neurosurgeons across the country is more than $100,000, with rates more than $300,000 in some states.

According to the California Department of Insurance, medical malpractice insurance rates may be too high because some insurers are spending as little as 2% or 3% of premiums to pay out claims. Insurers in California spent an average of 23% of collected premiums on claims and other losses. California’s largest malpractice insurer, The Doctors Company, spent only 10% of the $179 million collected in premiums on claims in 2009. According to Tillinghast, an actuarial consultancy, from 1975 to 2003, the cost of medical malpractice lawsuits increased more than 2000% to $26.5 billion. In 1984, the total federal cost of medical malpractice in the United States, including the costs of the practice of defensive medicine and direct litigation costs, such as malpractice premiums and defending claims, was estimated at $12.1 billion to $13.7 billion, which was approximately 15% of the total physician expenditures that year. By 1991, the inflation-adjusted figure was estimated at $24.9 billion in total liability and system costs. In 2008, overall annual medical liability system costs, including defensive medicine, were estimated to be $55.6 billion or 2.4% of total health care spending. Most of the cost, an estimated $45.6 billion, was caused by defensive medicine, including tests or treatments performed largely to avoid potential lawsuits.

Statistics for the risk of being sued for neuroradiology as a specific subspecialty are unknown, but Jena and colleagues found, in a study published recently in the New England Journal of Medicine , that diagnostic radiology ranked 18th among 25 medical specialties based on the risk of being sued for malpractice, at 7.2% per year versus the overall average of 7.4% of all physicians, with lower-than-average payouts. The fact that this rate is low compared with other medical specialties, and probably less than the risk perceived by radiologists themselves, is little consolation to those who have been involved as a defendant in this process. The risk of being sued at some point in one’s radiology career is extremely high, although official statistics seem lower. The authors do not know any radiologists who have been in practice for more than 15 years who have not experienced a malpractice claim as a defendant. Although most cases result in settlement before trial, only 1% of cases that do go on to trial result in judgments for the plaintiffs. Of the cases that go to trial, physicians are found to be not negligent 83% of the time, yet the physician still loses: first because defense costs (not including decreased productivity related to physician time spent in litigation activities, which can be significant) now average more than $94,000 per case and second because for most physicians the experience of being sued is so traumatic that, although difficult to quantify, it exacts a significant toll on their mental and physical health.

Because some basic understanding of the medicolegal litigation process is essential to adopt effective strategies in avoiding lawsuits, a brief review of the process of medical malpractice litigation follows, including a narrative of the evolution of legal definitions of malpractice. It is hoped that this will provide practical information as to the common pitfalls of medical malpractice from the authors’ perspective as neuroradiologists who are not legal experts but who have some experience in malpractice litigation both as defendants and expert witnesses.

How we got here: development of the concepts and definitions of medical malpractice tort

There are 3 sources of law in the United States: constitutional law revolves around federal and state constitutions; statutory law regards federal and state regulations enacted by government legislatures; and common law, based on the principle of stare decisis (let the decision stand), in which judicial decisions serve as precedents for future decisions made by courts. This is distinguished from civil law, in which all judicial decisions are based on interpretation of applicable statutes rather than precedents of prior court decisions. Common law had its origins in medieval England, and medical malpractice falls under this rubric. In 1765, British legal scholar Sir William Blackstone in his book, Commentaries on the Laws of England , referred to the “neglect or unskillful management of a physician or surgeon” as “mala praxis,” from which the modern term malpractice is derived. The first recorded malpractice case in the United States occurred in 1794.

The modern concept of a standard of care to which physicians may be held liable was not established until 1769 in the case of Slater v Baker and Stapleton. At the time, as hard as it may be to fathom, physician liability may not have been limited to breaching a standard established by other professionals, so the decision in this case had the effect of shielding physicians from most of the tort claims at the time. The court ruled that a physician could be found liable only if another physician testified that a breach of the standard of care had occurred. Additionally, the court required that the expert witness must come from the defendant’s own locality, thus establishing the principle of a community standard.

One of the earliest state supreme court decisions regarding medicolegal standard of care was an 1832 case of a patient who had successfully sued a physician in a lower court for pain and irreparable harm after making an incision into her arm to instill the smallpox vaccine. The defendant physician appealed the case to the Connecticut Supreme Court, arguing that because physicians cannot warranty their work or guarantee an outcome, only gross ignorance or gross negligence can subject the physician to damages. The court did not accept this argument and found in favor of the plaintiff (patient), but with significant qualifiers. In an eloquent statement, the court articulated the difficult balancing act between true negligence and perfect outcomes courts must perform in determining the standard of care in any given case :

Such was the origin of the legal concept of ordinary skill and diligence as the appropriate measure of the standard of care rather than the polar extremes of perfect outcome and gross negligence.

In 1853, the pendulum swung in the opposite direction, helping to relieve physicians of the burden of what would in essence be a warranty for work done. The Pennsylvania Supreme Court reversed a lower court’s decision finding that a physician had been negligent in setting a comminuted fracture of the tibia and fibula resulting in deformity and limb-length discrepancy.

There is obviously a vast domain of distinguishing factors and nuance lying between the extremes of gross negligence and perfect outcome, and it is within this vast domain that the standard of care lays. This battleground is the one on which medical malpractice litigation proceeds on a daily basis ( Fig. 1 ). Several other decisions were rendered in the mid to late nineteenth century that essentially echoed the sentiments of the Pennsylvania Supreme Court. An important nuance to be explored in this context arose from a New York Supreme Court decision in 1905 in which a crucial legal separation was made between judgment error versus negligence.

Scales of justice in medical malpractice. Medical malpractice case law, particularly since the nineteenth century, has been a balancing act of finding the equitable point of reconciliation between the extremes of gross negligence and perfect outcome in defining liability. Where each individual malpractice case appropriately belongs along this scale is argued daily in the court system.

How we got here: development of the concepts and definitions of medical malpractice tort

There are 3 sources of law in the United States: constitutional law revolves around federal and state constitutions; statutory law regards federal and state regulations enacted by government legislatures; and common law, based on the principle of stare decisis (let the decision stand), in which judicial decisions serve as precedents for future decisions made by courts. This is distinguished from civil law, in which all judicial decisions are based on interpretation of applicable statutes rather than precedents of prior court decisions. Common law had its origins in medieval England, and medical malpractice falls under this rubric. In 1765, British legal scholar Sir William Blackstone in his book, Commentaries on the Laws of England , referred to the “neglect or unskillful management of a physician or surgeon” as “mala praxis,” from which the modern term malpractice is derived. The first recorded malpractice case in the United States occurred in 1794.

The modern concept of a standard of care to which physicians may be held liable was not established until 1769 in the case of Slater v Baker and Stapleton. At the time, as hard as it may be to fathom, physician liability may not have been limited to breaching a standard established by other professionals, so the decision in this case had the effect of shielding physicians from most of the tort claims at the time. The court ruled that a physician could be found liable only if another physician testified that a breach of the standard of care had occurred. Additionally, the court required that the expert witness must come from the defendant’s own locality, thus establishing the principle of a community standard.

One of the earliest state supreme court decisions regarding medicolegal standard of care was an 1832 case of a patient who had successfully sued a physician in a lower court for pain and irreparable harm after making an incision into her arm to instill the smallpox vaccine. The defendant physician appealed the case to the Connecticut Supreme Court, arguing that because physicians cannot warranty their work or guarantee an outcome, only gross ignorance or gross negligence can subject the physician to damages. The court did not accept this argument and found in favor of the plaintiff (patient), but with significant qualifiers. In an eloquent statement, the court articulated the difficult balancing act between true negligence and perfect outcomes courts must perform in determining the standard of care in any given case :

Such was the origin of the legal concept of ordinary skill and diligence as the appropriate measure of the standard of care rather than the polar extremes of perfect outcome and gross negligence.

In 1853, the pendulum swung in the opposite direction, helping to relieve physicians of the burden of what would in essence be a warranty for work done. The Pennsylvania Supreme Court reversed a lower court’s decision finding that a physician had been negligent in setting a comminuted fracture of the tibia and fibula resulting in deformity and limb-length discrepancy.

There is obviously a vast domain of distinguishing factors and nuance lying between the extremes of gross negligence and perfect outcome, and it is within this vast domain that the standard of care lays. This battleground is the one on which medical malpractice litigation proceeds on a daily basis ( Fig. 1 ). Several other decisions were rendered in the mid to late nineteenth century that essentially echoed the sentiments of the Pennsylvania Supreme Court. An important nuance to be explored in this context arose from a New York Supreme Court decision in 1905 in which a crucial legal separation was made between judgment error versus negligence.

Scales of justice in medical malpractice. Medical malpractice case law, particularly since the nineteenth century, has been a balancing act of finding the equitable point of reconciliation between the extremes of gross negligence and perfect outcome in defining liability. Where each individual malpractice case appropriately belongs along this scale is argued daily in the court system.

Malpractice and the radiologist

Common to all of the historical higher court decisions are the words, reasonable , ordinary , and average , in describing what constitutes the standard of care; legal parsing of these terms continues today as an ever-unfinished, ongoing process. The relevance of these concepts to radiology was adjudicated recently in a case that took up the issue of perceptual errors as it uniquely applies to radiology. The defendant radiologist had settled 2 malpractice lawsuits: one for missing a proximal tibial fracture and another for missing a colon carcinoma on a barium examination. As a result, the Wisconsin Department of Regulation and Licensing subsequently sought to suspend the radiologist’s license for conduct it considered negligent but was rebuffed in a lower court, which found in favor of the radiologist. This decision led to an appeal by the department to the state’s appellate court, which again found in favor of the radiologist. Crucial to their decision was an analysis of the legal significance of the errors of perception, which are particularly relevant to diagnostic radiology and contain the feared and all too common occurrence of seeing a finding in retrospect. The court’s analysis was essentially additional parsing of the recurring concepts of average and reasonable :

“Average physician” is not synonymous with “reasonable physician.” The fallacy in the “average” formulation is that it bears no intrinsic relation to what is reasonable….Those that have less than…average skill may still be competent and qualified. Half of the physicians of America do not automatically become negligent in practicing medicine…merely because their skill is less than the professional average. The test is not whether [the radiologist] failed to detect what the average radiologist should have detected, but whether [the defendant radiologist] exercised reasonable care…. [The radiologist] used reasonable and ordinary care, and his failures to detect the abnormalities were “errors in perception.”… All radiologists miss abnormalities in X rays, but such errors do not, in and of themselves, constitute negligence in treatment.

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