Q&A: Radiologist H. Benjamin Harvey on malpractice claims, fear, and learning from mistakes

In a recent study from the Journal of the American College of Radiology, researchers examined the frequency of malpractice claims in radiology and the costs associated with those claims.

The authors found that, of the 11 medical services they studied, radiology was the eighth most likely to experience a malpractice claim, and more than 62 percent of those claims were closed without indemnity payments. Meanwhile, the remaining radiology malpractice claims closed with a median indemnity payment of $175,000.

One of the study’s co-authors, H. Benjamin Harvey, MD, JD, Massachusetts General Hospital department of radiology, spoke with RadiologyBusiness.com about trends associated with radiology malpractice claims and how those trends may impact individual radiologists.

RadiologyBusiness.com: Do you think any of these statistics about radiology malpractice claims will change significantly in the future?

H. Benjamin Harvey, MD: Recent trends towards shared-risk and bundled models of healthcare payment are intended to incentivize health care practitioners and institutions to provide higher-quality, more efficient care. While in theory, this could reduce the liability exposure of practitioners, I remain doubtful that this will have any real impact on the general landscape of medical malpractice in this country.

RB: The study found that malpractice claims related to poor communication are down in radiology. What is responsible for this? Improved technology? Improved training?

I do believe that this is an area in which radiology should take some real pride. Specifically, I would applaud Dr. Leonard Berlin, whose body of work has effectively highlighted this important issue for the radiology community and catalyzed needed change. Thanks in part to his research and advocacy, the past decade has seen a concerted radiology quality improvement effort aimed at improving the timeliness and efficacy of communication of clinically-significant findings between radiologists and referrers.  

Although there is work to be done, I strongly believe that the important policy and process strides made over the last decade have decreased the malpractice liability attributable to communication failures.    

RB: Do you think the possibility of a malpractice claim affects radiologists in any way? Is there any sort of fear that, at any time, they could face a malpractice claim?

Based on anecdotes—including discussions with other radiologists about this issue and observations of the practices of my colleagues—I believe that fear of litigation impacts most radiologists to some degree. I often see fear of litigation subtly manifested in reporting style, such as the heavy use of qualifiers (i.e., "no definite evidence of" or "within the limits of the current study").

RB: Do you have any advice for radiologists who find themselves frequently worrying about possible litigation?

I do not have the empirical data or experience to confidently offer advice to my learned colleagues on this issue. But, I would be happy to share how I approach liability risk in my practice. First, to me, the emotional and productivity costs of worrying about malpractice are simply not worth it. Even though the likelihood of a radiologist being the defendant in at least one malpractice suit is 50 percent by age 60, less than 1 percent of those suits result in any loss of a radiologist's personal assets.  

Thus, I simply try my best to create clear and actionable interpretations that are based on accepted care guidelines, when available. By "clear," I mean using simple language and avoiding jargon. By "actionable," I mean providing an explicit opinion as to whether a finding is meaningful or not and what should be done about it.

Yet even at my best, I remain human, meaning that I remain fallible. Misses will happen to every radiologist. It is beyond our control. All we can control is how we practice and how we respond to misses. As to the latter, when I find out that I have missed something of clinical significance, I substitute action for regret. I use that miss as an opportunity to interrogate my knowledge, search patterns, reporting processes and workflow to identify whether there is a change that I can make to reduce the likelihood of a repeated miss. This commitment to continuous quality improvement not only improves the care that I give to my patients, it also reduces my future liability exposure.  

RB: How does it impact a radiologist when they actually find themselves in the middle of a malpractice claim? If there is no indemnity payment, do you think that makes “easier” for the radiologist to accept?

I really appreciate this question, because it is an area where I think that we need to be far more proactive as a field. A 2011 study of surgeons suggested that malpractice suits were strongly related to burnout, depression, and even thoughts of suicide. I imagine that the results would be similar if performed in a population of radiologists. Irrespective of whether there is an indemnity payment or not, malpractice suits often expose radiologists to a harsh and often excoriating legal proceeding that is demoralizing, anxiety provoking, and often leaves the most competent radiologist doubting their skills. The resultant psychological and emotional harm can derail careers and affect other aspects of one’s personal life. What's more, the damage is often exacerbated by an accompanying feeling of isolation, since many radiologists are hesitant to discuss their feelings with others due to legal advice or fear of judgment.

We must start by recognizing that most malpractice cases involve good radiologists who are committed to providing excellent patient care. Thus, as a field, we should be better at protecting these good radiologists from the potential psychological harms of a malpractice case. This protection should include access to radiologists that have been through the process, with the intention of better preparing radiologists undergoing a claim for the process. Hopefully this would decrease the emotional and psychological toll that the claim takes on the individual.

This text was edited for clarity and space.