Radiologist Most Likely Target in Breast Cancer Lawsuits

July 1, 1996

DALLAS--In the last 5 years, radiologists have become the specialists most often sued over breast cancer diagnoses, said Cathy R. Bowerman, JD, MPH, of the Southfield, Michigan, firm of Siemion, Huckabay, Bodary, Padilla, Morganti, & Bowerman.

DALLAS--In the last 5 years, radiologists have become the specialistsmost often sued over breast cancer diagnoses, said Cathy R. Bowerman,JD, MPH, of the Southfield, Michigan, firm of Siemion, Huckabay,Bodary, Padilla, Morganti, & Bowerman.

A study of 21 companies that insure physicians showed that thenumber of claims involving breast cancer diagnosis filed againstob/gyns fell from 39% of the total in 1990 to 23% in 1995, whilethe claims against radiologists rose from 11% to 24%. "Ob/gynshave gotten better about referring patients for mammo-grams, andradiologists with their increasing load have become far more atrisk," Ms. Bowerman said at an American College of Radiologybreast cancer meeting.

Radiologists tend to get "sucked into claims" for anumber of reasons (see table on page 19), she said, many of whichare easily preventable. For example, to ensure that abnormal resultsare not overlooked, Ms. Bowerman recommends the use of "abig stamp saying ABNORMAL" to be stamped in red ink acrossany report of an abnormal reading. A stamp saying EQUIVOCAL couldalso be used.

Another simple preventive measure: Type each x-ray report on aseparate page. Ms. Bowerman described a case in which an abnormalchest x-ray in the right lung and a normal mammogram were reportedon the same sheet. The nurse who received the report saw at thebottom of the page "normal bilateral mammogram" andread no further, missing the chest x-ray results.

The abnormal report was not noticed until months later when thepatient visited her physician for another problem. "Needlessto say it was lung cancer, and the case ended up costing the radiologist'sinsurer $200,000," she said.

She urged radiologists to develop some fail-safe method of gettingreports out to physicians and patients and documenting, throughtheir computer system, when and to whom the report was sent. "Ihave had cases where a radiologist called a referring physicianabout an abnormal finding but did not document anywhere that hehad made the phone call. When a lawsuit was filed, the physiciandid not remember the phone call."

Rule of thumb, she said: If you think enough to pick up the phoneto call a clinician, please think enough to document that in yourreport.

To Conclude or Not to Conclude

When preparing reports, she said, it may be best not to try tosummarize the findings in a concluding paragraph. "We havehad several cases where the conclusion had part of the significantfindings, but the bulk of the findings was contained within thebody of the report," she said. "Amazingly, referringphysicians have complained, saying, we only read the conclusion,we relied on what was written there, we figured the rest of itwas technical and redundant."

The bottom line: "Make sure that everything you want to conveyto your referring physician and patient is in the conclusion ordon't have one."

She also urged radiologists to carefully read patient informationforms for the clinical history. "If a patient is referredfor a lump, you should address the lump specifically in your report,ie, that you see it or don't see it, that it is benign or equivocal,significant or not."

If the mammography is normal in a woman with a palpable lump,courts have held that it is the radiologist's responsibility toinform the referring physician or patient of the significanceof this and the need for follow-up mammography, including therecommended interval, further radiological studies, or biopsy.

Follow-up Must Be Discussed

She cited the case of a 30-year-old woman with a lump that continuedto grow in between two negative mammo-grams. By the time biopsywas ordered, the cancer had metastasized. The patient sued herphysician for not ordering a timely biopsy, and this physician,in turn, sued the radiologists for not informing him of the needfor more extensive follow up in this situation.

For premenopausal women with a clinical finding and a normal film,it is helpful to include a disclaimer clause on the report, shesaid, something to the effect that a negative mammogram does notmean that no cancer is present, and further follow up is recommended.

Similarly, when the reading is equivocal, the radiologist shouldprovide written instructions regarding follow-up or the need foradditional views.

Ms. Bowerman said that enforcement of the Mammography QualityStandards Act should eliminate poor performance of mammographyand make poor quality films less of a problem in the future. Sheurged radiologists not to read poor quality films.

"Have it repeated," she said, "have other viewstaken, or, at a minimum, if the patient is not available, makesure that your report states the problem--films underexposed,overexposed, too poor quality to read, etc--and reflects the inadequatequality."

Never Give Away Originals

Another pearl from Ms. Bowerman: Never give away original filmswithout first making copies. "Without films, it is very hardto defend cases. I know you want to be cooperative and provideoriginals when requested, but when you do that, you jeopardizeyourself," she said.

When sending films out, the radiologist should document the dateand to whom they were sent, and, if the film is picked up by anindividual, make sure to get a signature. "Use your computersystem to develop some method of retrieving film when needed,"she added.

Ms. Bowerman said that she is increasingly seeing lawsuits inwhich the radiologist's failure to retrieve old films is a criticalfactor. "The film in question may look fine until you holdit up to a prior film," she said. It is the duty and thestandard of care in mammography to attempt to retrieve old filmsand use them for comparison.

"That's the reason for baseline studies and the reason thepatient questionnaire asks about prior films," she said.She suggested that radiologists have a system in place for retrievingold films, and if retrieval is unsuccessful, the effort to obtainthem should be documented.

Whether to do a clinical breast examination or not will dependon the type of clinic, she said, but if the radiologist has anypersonal involvement with the patient, "you should eitherensure that a breast examination is done in your clinic or thatit has been done by the referring clinician."

Finally, if a lawsuit seems likely, she said, "start nowand collect every single piece of paper and film that you canget your hands on and lock them up, because 2 years later, whenthe suit actually comes to court, it is amazing what has disappeared."

Most common reasons for breast cancer diagnosis lawsuits againstradiologists