Do Missed Radiographic Diagnoses Constitute Malpractice?
ACR Bulletin
December 1995
Medical Liability
In a decision that may have far-reaching impact on how the law views radiologic errors in the context of medical malpractice, an administrative law judge for the Medical Examining Board of the State of Wisconsin on October 26, 1995 ruled to recommend dismissal of proposed disciplinary action that could have resulted in revocation of a radiologist''s medical license for missing two radiographic diagnoses.
The disciplinary proceedings lodged against the radiologist were the first instance ever in the history of the nation that a state governmental agency such as Wisconsin's Department of Regulation and Licensing Enforcement Division attempted to implement a statute in its own State Medical Licensing and Practice Act that stipulates, in part, "The medical examining board shall investigate allegations of... negligence in treatment (italics added) by persons holding a license...granted by the board.... After a disciplinary hearing the board may...when it finds a person guilty of unprofessional conduct or negligence in treatment, do one or more of the following: ...suspend or revoke any license...granted by the board to that person...."
The radiologist had been the subject of two medical malpractice cases during a 10-year career. The first involved the alleged missing of a fracture of the medial condyle of the femur of an adult patient who eventually made an uneventful recovery. The second case involved the alleged missing of a carcinoma of the descending colon just distal to the splenic flexure in a single-contrast barium enema exam performed on an obese adult patient, resulting in a 14-month delay in diagnosis. The patient died of metastases two years later. Both malpractice lawsuits were settled prior to trial with indemnification paid on behalf of the radiologist.
During a hearing before the administrative law judge held this past spring in Madison, Wisconsin, an expert radiologic witness for the licensing board testified that the colon lesion was "fairly obvious" and should "not have been missed by the average radiologist." The witness also thought that the defendant radiologist's missing of the femoral fracture constituted negligence.
Several expert radiologic witnesses for the defendant radiologist testified that the colon lesion was subtle and especially difficult to see given the patient's obesity, and that the distal femoral fracture was even more subtle and easily missed. They stated that while a significant number of radiologists would have seen the abnormalities, they believed that a number of them would not. These experts thought that the defendant radiologist did not breach the standard of care by missing the radiographic abnormalities.
In the written decision, the administrative judge pointed out that no one had ever previously considered the precise meaning of the phrase "negligent in treatment" as it applies in a disciplinary context. It is logical to categorize radiologists as "minimally competent," "average," and "perfect," the judge continued. The decision went on to emphasize that the law does not require physicians to guarantee correctness and to be mistake-free, but rather, to conform to accepted standard of care. The issue in this case revolved around whether the radiologist failed to exercise that degree of care and skill which is exercised by the average radiologist when the findings in the colon and the knee radiographs were missed, the judge stated.
The judge found statistics presented by the witnesses that radiologists' "miss" rates can be as high as 30 percent, and admissions by all of the witnesses that they, too, on occasion had missed radiologic findings, to be "unsettling" and "clearly disturbing," but he did not question their authenticity. He reasoned that the "average" radiologist should be expected to see "obvious" lesions, but may not see all "subtle" ones. The preponderance of expert opinion was that the two missed lesions were subtle. The judge continued, "Under a literal interpretation of the standard of ''negligence in treatment,'' each (radiologist) is subject to discipline for the individual ''mistake'' made, because the average radiologist would not have made the mistake in the specific instance. However, such an approach elevates the ''average'' physician to the perfect physician in a given case.... Perfection is a standard to which no profession can possibly adhere. Doctors are required to exercise reasonable care, they are not required to be perfect."
Concluding that the defendant radiologist's missing of the lesions did not constitute negligence, the judge wrote, "There is a temptation to succumb to a literal reading of the ''negligence in treatment'' as being that if the mythical ''average'' radiologist would be likely to have observed the abnormality in the case under consideration, negligence is irrefutably established.... Every radiologist in this state - no matter how competent, well-trained, experienced or conscientious - has missed an abnormality on a radiograph which in retrospect the ''average'' radiologist would not have missed. Accepting the state's (Department of Regulation and Licensing) theory in this case would result in the inevitable conclusion that every radiologist in this state is subject to discipline... This is not the result desired nor intended by the Legislature... In both cases the abnormalities were subtle, although capable of observation... The average radiologist, in my opinion, could have missed them. (The defendant radiologist) did. However, in my opinion, a finding that (the radiologist) engaged in negligence in this case would serve only to deprive the citizens of this state of a conscientious and extremely competent physician."
The administrative law judge should be commended for his insightful and well-reasoned analysis of the question of whether the missed radiographic diagnosis constitutes malpractice. His written opinion should be useful elsewhere in the nation in the defense of malpractice lawsuits alleging diagnostic errors filed against other radiologists.
Gratitude should be extended to the defendant radiologist, who, by electing to challenge the state's disciplinary licensure actions at significant personal and financial cost, and stand up firmly and resolutely to defend the rights of an individual radiologist, helped preserve the rights of all radiologists.
Note: Copies of the administrative law judge''s decision can be obtained by contacting the ACR Legal Department, 800-227-5463.
