Malpractice - Wisconsin Decision

ACR Bulletin
March 1998

Malpractice

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Missed Radiographic Diagnoses Do Not Constitute Negligence, Wisconsin Court of Appeals Rules

by Leonard Berline, MD, FACR

For what appears to be the first time in the nation's history, a state appeals court has dealt directly with the question of whether missing a radiographic diagnosis constitutes negligence. A Wisconsin Court of Appeals has issued a decision that may have a far-reaching, favorable impact on the defense of radiologists sued for malpractice because of alleged diagnostic errors. The ruling stems from a proposed disciplinary action lodged against a radiologist by the State of Wisconsin's Department of Regulation and Licensing. The case was first described in the December 1995 issue of the ACR Bulletin, with follow-up references made in the American Journal of Roentgenology ("Consequences of Being Accused of Malpractice," AJR 1997; 169:1219­1223 and "Perceptual Errors and Negligence," to be published in AJR -April 1998). Following is a summary of events that led to the Wisconsin Court of Appeals' decision.

A university-trained and board-certified radiologist had been sued for malpractice twice in a 10-year career. The first case involved the missing of a fracture of the lateral condyle of the distal femur in a 61-year-old man who had undergone an emergency radiographic examination (Figure 1). The case against the radiologist was later settled out of court for $3,500. In the second malpractice lawsuit, the radiologist was accused of missing a carcinoma of the splenic flexure of the colon on a lower gastrointestinal series in a 35-year-old man (Figure 2). The patient subsequently died, and the malpractice lawsuit was eventually settled for $750,000.

Figure 1: Case 1
A 61-year-old man with injury to knee.

Oblique (A) and lateral (B and C) radiographs show subtle avulsion fracture of the lateral condyle of the distal femur (arrowheads) The findings were interpreted by the radiologist as normal

A   B   C

In September 1993 the State of Wisconsin's Medical Examining Board-the agency designated by Wisconsin statutes to investigate allegations of negligence committed by physicians-conducted a public hearing to determine whether the radiologist had acted negligently in the second malpractice suit. A positive finding could have resulted in revocation of the radiologist's medical license. It was the first action in Wisconsin's history taken to implement a provision in the state's Medical Licensing Practice Act that gave the Medical Examining Board (on behalf of the Department of Regulation and Licensing) power to discipline a physician for "negligence in treatment."

After a spring 1995 public hearing before an administrative law judge in Madison, WI, the judge ruled that the radiologist's misinterpretation of the two radiologic studies did not constitute negligence as defined by the state Medical Practices Act and recommended that the Wisconsin Medical Examining Board drop the disciplinary proceedings. The Board accepted the recommendation of the administrative judge and did indeed dismiss all charges.

This was not the end of the ordeal for the radiologist, however. The Wisconsin Department of Regulation and Licensing disagreed with the findings of the Medical Examining Board and took the matter to the judiciary, asking a circuit court in Wisconsin to review and overturn the dismissal. However, on Nov. 26, 1996, the circuit court judge also ruled in favor of the radiologist and upheld the dismissal of all charges.

Still determined to challenge the ruling, the Wisconsin Department of Regulation and Licensing then brought an appeal to the court of appeals. On Nov. 20, 1997, the court of appeals in District IV of the State of Wisconsin issued a written decision that unequivocally affirmed the Wisconsin Medical Examining Board's and lower court's dismissal of all disciplinary charges. Because this decision directly addresses whether the defendant-radiologist was negligent by missing two radiographic diagnoses, a detailed review of the decision follows.

The Court first reviewed the Medical Examining Board's reasoning that prompted the initial dismissal of charges against the radiologist:

For while the Board concludes that the average radiologist should have been able to detect these [radiographic abnormalities], the Board also concludes that [the radiologist's] failure to detect them in this instance did not constitute negligence in treatment . . . The failure to detect the defects in these radiographs were mistakes, but they were not mistakes based upon negligence.

The record is devoid of any evidence or suggestion that [the radiologist] is anything but a fully competent, careful, and conscientious radiologist, or that he was not competent, careful, and conscientious in his examination of the affected radiographs in this case . . .

There is no evidence in this record to establish that [the radiologist's] errors in having failed to detect those defects came as a result of his failure to conform to the accepted standard of care in the field of radiology . . .

[The radiologist's] having failed to perceive defects that could have been perceived in these radiographs does not establish that he failed to conform to acceptable standards of practice in the manner in which he read them.

The Court then reiterated the Medical Examining Board's definition of malpractice:

A physician is not an insurer of the results of his diagnosis or procedures. He is obliged to conform to the accepted standard of reasonable care, but he is not liable for failing to exercise an extraordinary degree of care.

True, physicians too often have a tendency to encourage the aurae of an infallibility they do not possess. Theirs is not an exact science, and even the very best of them can be wrong in diagnosis or procedure. The question, however, is not whether a physician has made a mistake; rather, the question is whether he was negligent. Unless the untoward result was caused by the failure to conform to the accepted standard of care, he is not liable in negligence for damages.

The court then proceeded to distinguish between the terms "average physician" and "reasonable physician." The Department of Regulation and Licensing, the plaintiff in the case, had argued that the "average" radiologist would not have missed the lesions on the radiologic studies and that the defendant-radiologist, by missing the lesions, had practiced in a below-average manner and was therefore negligent. The court disagreed with that argument, stating:

The fallacy in the "average" formulation is that it bears no intrinsic relation to what is reasonable. Those who 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.

Reasonable care cannot be established by determining whether a physician provided care above or below the mean of the medical profession, but rather must be determined by assessing whether a patient received a standard of care he or she might reasonably expect from that practitioner.

The court then emphasized that:

In determining whether a physician was negligent, the question is not whether a reasonable physician, or an average physician, should have detected the abnormalities, but whether the physician used the degree of skill and care that a reasonable physician, or an average physician, would use in the same or similar circumstances.

Then focusing specifically on radiologists' interpretation of radiographs, the court stated:

A radiologist may review an x-ray using the degree of care of a reasonable radiologist, but fail to detect an abnormality that, on average, would have been found. [As] the circuit court explained, . . . radiologists simply cannot detect all abnormalities on all x-rays . . . The phenomena of "errors in perception" . . . occur when a radiologist diligently reviews an x-ray, follow[s] all the proper procedures, and use[s] all the proper techniques, and fails to perceive an abnormality, which, in retrospect, is apparent. . . . Errors in perception by radiologists viewing x-rays occur in the absence of negligence.

The Court then commented on the Wisconsin Department of Regulation and Licensing's argument that exonerating the radiologist would be tantamount to determining that an error of perception cannot be negligence. The court replied that it was not dealing with any error of perception, but rather, only with the defendant-radiologist's errors of perception that "were not caused by his failure to adhere to the accepted standard of care for radiologists."

Figure 2: Case 2
35-year-old man referred for lower gastrointestinal study

A and B radiographs show lesion consistent with carcinoma (arrowhead) in splenic flexure of colon. Findings were interpreted by radiologist as normal

A   B

Finally, the court responded to the contention of the Regulation and Licensing Department that the determination of whether a physician is negligent in a specific instance should not be influenced by the working habits of the defendant or whether the defendant is generally competent. The Court agreed that a radiologist's "habits of practice" or "general competence" are not relevant in the determination of whether a failure to detect abnormalities constitutes negligence, but then pointed out that the plaintiff in this case, namely, the Department of Regulation and Licensing, presented no evidence whatsoever "to establish that [the radiologist's] errors in having failed to detect these defects came as a result of his failure to conform to the accepted standard of care in the field of radiology." The Medical Examining Board had every right to look at the radiologist's competence, abilities, and work habits to determine whether the radiologist had engaged in a pattern of errors from which negligence could be inferred, said the Court, and was quite justified in concluding that the record was "devoid of any evidence of suggestion that [the radiologist] is anything but a fully competent, careful, and conscientious radiologist, or that he was not competent, careful, and conscientious in his examination of the affected radiographs in this case." The Board was justified in concluding, summarized the court, that it could not infer negligence from the radiologist's general habits or competence.

The court ended its decision by affirming the dismissal of all charges against the radiologist, and then, as an important postscript, recommended that its decision be published in official reports. Publication means that the decision will become readily available to attorneys and other interested parties for citation in future cases throughout the nation.

In the past, appeals courts in every state have issued many decisions that define what medical malpractice is and is not, but until now none has dealt specifically with missed radiographic diagnoses. The opinions of the courts regarding radiologic errors are generally inferred or extrapolated from those rendered in similar but nonetheless nonradiologic cases. The decision of this Wisconsin Court of Appeals is therefore quite noteworthy. Although this court carries no authority in determining how similar courts in Wisconsin or other states will rule on the question of whether a radiologist's missing of a radiographic diagnosis constitutes negligence, nonetheless the decision and the logic contained in it may well influence other courts. The fact remains that for the first time an appellate court has ruled that unless a plaintiff submits evidence proving a defendant-radiologist, through his or her conduct or methods of practice, has breached the standard of care, the mere fact that a radiographic diagnosis was missed, in and of itself, is insufficient to prove negligence.

While it is too early to know whether the Wisconsin Court of Appeals' decision will have any lasting effect on radiologic medical malpractice nationally, it appears that for the present it may well provide significant assistance in the defense of radiologists who are accused of malpractice for missing a radiographic diagnosis. Copies of the opinion are available from the ACR Legal Department at 800-227-5463.

Leonard Berlin, MD, FACR, is chairman of the Department of Radiology at Rush North Shore Medical Center in Skokie, IL; a professor of radiology at Rush Medical College in Chicago; and a member of the ACR Medical Legal Committee.