Recent high-dollar judgments in cases involving radiologists demonstrate the importance of understanding medical liability litigation.
In 2023, a $120 million judgment was awarded to a patient in New York whose basilar artery occlusion was not recognized in a CT study and was initially misinterpreted by the radiology resident on duty. This case drew attention because, even though the resident was sued, and found liable for malpractice by the jury, the resident did not have to pay a portion of the damages. Of note, the on-call attending neuroradiologist was never contacted, and the CT study was not read by a board-certified radiologist for three hours.
Residents often work outside of normal operating hours, when attendings may not be present or immediately available. Residents must evaluate how comfortable they are interpreting studies and contacting attendings with questions/concerns. Though residents are employees of institutions, such as a medical center in this case, they do render care and must meet the legal standard of care. Attending physicians generally are responsible for their residents’ acts and omissions. However, if the residents provide care that is substantially different from the legal standard of care when they exercise independent judgment, they are liable.
The ACR Legal Office spoke with litigation experts familiar with the case and learned that the jury found for the patient and against the medical center and the radiology resident. Notably, the jury found against the radiology resident based on her departure from the legal standard of care, which took her beyond the scope of the medical center’s “protection.” There was a reasonable inference that the resident acted negligently because she contributed to the plaintiff losing a substantial chance for a better clinical outcome. However, the jury did not apportion any medical liability between the medical center and the radiology resident. Therefore, the jury did not award damages against the resident individually.
ACR members often ask us why patients choose to sue their radiologist. The most common reasons are claims of inappropriate medical care or a poor physician-patient relationship. The latter may be due to the perception by patients who do not think of the radiologist as their treating physician. In fact, most patients don’t even know the name of the radiologist who reads their study. Without a more personal patient-physician relationship, an injured patient may not feel connected to their radiologist and have less understanding of medical errors.
Nevertheless, a radiologist who reads a patient’s image and renders a medical opinion based on this interpretation has established a physician-patient relationship. Once this relationship is formed, the radiologist has a duty of care to the patient. Medical malpractice claims are based on a supposed breach of this duty by the radiologist that allegedly causes harm to the patient — resulting in an injury for which damages should be awarded.
Without a more personal patient-physician relationship, an injured patient may not feel connected to their radiologist and have less understanding of medical errors.
There are signs of a potential lawsuit against a radiologist. For example, the patient may experience a complication following the radiologist’s interpretation and believe that the radiologist’s act or omission caused their condition. Or the radiologist may receive a request for medical records from an attorney. Additionally, a patient may miss a scheduled follow-up visit.
Common malpractice claims include error in diagnosis (e.g., failure to diagnose fractures or breast cancer), procedural complications (e.g., after needle biopsies, sclero embolization or thermal ablation), vascular injuries and inadequate communication with the patient or referring physician.
An incident is an event that suggests the possibility of a medical malpractice lawsuit. Appropriate and timely management of an incident is also important as any delay in reporting a suspected problem to an insurer could make it difficult to prepare a successful defense.
Radiologists should be familiar with their professional liability insurance policy and its requirements and obligations. Usually, the insurance carrier requires a policyholder to notify them as soon as a claim is made or suspected. While there are sometimes concerns about notifying the insurance carrier early, it can help with the evaluation and preparation of a case, which improves the chances of a successful defense.
If a claim does not develop, there is concern about having too many “close calls” in your file — and having that be considered during renewal, with an impact on coverage and premiums. If you are uncertain when to notify your insurer of a potential legal issue (before any lawsuit is filed against you), contact a qualified defense attorney, as we note below.
A lawsuit begins when the plaintiff files a formal complaint or declaration (a legal document consisting of allegations), which forms the legal basis to support a claim for medical malpractice against the defendant and a request for damages or other relief. Once a complaint or declaration has been filed, the court serves each defendant with a summons, which is usually attached to the complaint or declaration. Named defendants are required to file a response, called an answer, to the complaint.
You must notify your professional liability insurance carrier immediately once a complaint has been filed and provide the carrier with a copy of the complaint and summons. Your insurance carrier will assign you a defense attorney.
Your defense attorney will prepare the answer with your input. You may wish to prepare a thorough analysis of the case for your attorney. This might include a detailed evaluation of the complete medical file, such as records, correspondence, images and lab tests. If your attorney requests it, you should prepare chronological documentation of the medical data, including everything you know about your case and the patient’s treatment. Materials you prepare at the request of your attorney in preparation for litigation are not subject to discovery by the plaintiff’s attorney because they are considered attorney work product. This information should be kept separate from the patient’s records.
Medical records must remain untouched. Evidence of tampering with the records could lead to a loss of credibility in court, as well as a larger award. Your relationship with your insurance carrier and your attorney should be open and honest. You can provide insight to your attorney regarding the strengths and weaknesses of the medical aspects of your case. It is important that your attorney understands differing viewpoints and alternative treatments. You must remember and document what you did, or did not do, when you interpreted an imaging study or performed a therapeutic procedure.
During this entire process, it will be important for you to stay calm and not succumb to anger, panic or self-doubt. Staying levelheaded will be essential in preparing your defense. The ACR’s Legal Office maintains a list of attorneys and law firms throughout the U.S. that represent radiologists in legal matters. Please contact us for more information. There will be a follow-up article to this column in 2025 that describes the next steps in the litigation process.
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