ABSTRACT
Unfortunately, the risk of lawsuit is high for the interventional radiologist, especially for the one who assumes a more active clinical role in the care of patients. The importance of assuming this guardianship role in patient care is paramount to building an active referral base for reasons given in several accompanying articles in this issue. Because of added malpractice risks, it is important to fully understand the risks of this clinical role and how to protect yourself from potential lawsuits. This article discusses in depth steps, which can be taken to lessen the risk of a lawsuit, and steps to help effectively defend against a frivolous claim.
Keywords: Malpractice, interventional radiology, patient care, insurance, documentation
I can remember the first time I attended a resident lecture on medical malpractice; I was told that I would be named in a malpractice lawsuit sometime during my tenure. Little did I know the truth of that statement! Unfortunately, the risk of lawsuit is even higher for the interventional radiologist, especially for the one who assumes a more active clinical role in the care of patients. The importance of assuming this guardianship role in patient care is paramount to building an active referral base for reasons given in several accompanying articles in this issue. Because of added malpractice risks, it is important to fully understand the risks of this clinical role and how to protect yourself from potential lawsuits.
An interventional radiologist may protect himself from such an unpleasant event by several means. First, there are certain issues common to every lawsuit in which a patient claims a physician-committed malpractice. Interventionalists need to be prepared for this event because it will happen. As a sidebar, radiologists as a whole need to take a proactive stance with their state legislature in passing tort reform, which includes limiting noneconomic damages, establishing prelawsuit filing requirements by injured parties, and protecting personal assets from judgment claims. Being aware of certain pitfalls and becoming involved in tort reform issues will reap benefits for members of radiology and especially interventional radiology.
INSURANCE, INSURANCE, INSURANCE
As a fellow in interventional radiology, the physician can expect the institution employer to purchase professional liability insurance. Upon completion of training, the interventional radiologist should verify the existence of tail insurance for all prior acts of potential malpractice. In Illinois, the professional liability insurance policy covers claims that are filed during the year covered under the policy. In other words, lawsuits filed against that interventional radiologist during that year would have coverage for any judgment against the physician and the costs of defense. However, any lawsuits filed after that year will not be covered. Because the statute of limitation is longer than the insurance period, it is prudent for interventional radiologists to verify that tail coverage has been purchased on their behalf prior to completing training and joining a private or other academic practice. Furthermore, there should be no time gap in coverage. Many prospective employers will pay for the cost of the tail coverage immediately following completion of a fellowship.
As an attending interventional radiologist, two issues need to be resolved: (1) which malpractice insurance carrier should the interventional radiologist purchase coverage from and (2) the amounts of malpractice coverage.
Malpractice insurance carriers are rated by different entities. The interventional radiologist should verify the rating received by the prospective malpractice insurance carrier. To a certain extent, the rating is based upon the ability of the insurance carrier to cover malpractice claims, and therefore the financial stability of the malpractice insurance carrier is extremely important. Ratings can be obtained on the insurance carrier's website, or log on to www.Ambest.com. Interventional radiologists have greater risk in their practice than their diagnostic radiology colleagues because of the interventions provided. The interventional radiologist needs to determine the comfort level for insurance provided, that is, as an interventionalist you may want a higher amount of coverage than a general radiologist may want. In certain jurisdictions, injured patients are able to recover compensation for injuries such as disfigurement, lost wages, loss of a normal life, past and future medical expenses, and past and future pain and suffering. The amount of coverage that will provide comfort to the interventional radiologist is dependent in part on whether the amount of the compensation is limited by the legislative body in that particular state. In a state that does not provide a limit to the recovery of noneconomic damages, the customary $2,000,000 per occurrence may not be enough. Physicians can check with their insurance carrier on the status of tort reform.
In determining the appropriate amount of insurance coverage, the interventionalist needs to consider the jurisdiction in which he or she practices and the types of procedures performed. The more complicated and risky procedures performed, the higher the insurance coverage that is needed. In Illinois, $2,000,000.00 per occurrence is appropriate for the physician and $2,000,000.00 for the physician's employer.
ISSUES GERMAINE TO LAWSUITS IN DIFFERENT JURISDICTIONS
Notice to Carrier and Choice of Counsel
In the event you have been named as a defendant, you should notify the professional liability insurance immediately. Any delay in notification could place your coverage at risk. The notice provisions contained within the malpractice insurance policy governs how the notice shall be provided to the carrier, and the interventional radiologist should take great care in following the notice provision to the letter.
Depending upon the terms and conditions of the malpractice contract, you may be able to choose counsel. Just as choosing the appropriate physician for the procedure is vital to the success of the procedure and ultimate health of the patient, your choice of defense counsel is likewise important for the successful defense of the lawsuit. In discussing the assignment of defense counsel with the insurance carrier representative, the interventional radiologist should inquire as to the experience of the recommended attorney. Knowledge of interventional radiology is extremely important for successful defense of the case. The relationship between the interventional radiologist and the defense attorney is likewise important. Open communication between the interventional radiologist and the defense attorney should provide for bilateral exchange of information on a frequent basis so that you are kept informed of the status of the lawsuit.
Standard of Care
The jury will be asked to consider whether the defendant interventional radiologist complied with the appropriate standard of care applicable to the issues in the lawsuit. The definition of the standard of care may vary from jurisdiction to jurisdiction. In Illinois, the standard of care is defined as what a reasonable well-qualified physician would do under the same or similar circumstance. As a specialist, an interventional radiologist would be expected to act as a reasonably well-qualified interventional radiologist under the same or similar circumstance.
Although the standard of care appears to be an objective test, in court it may not resemble reality. The attorneys representing patients (i.e., the plaintiff's attorneys) demand near perfection. The standard of care does not equate to near perfection. Attorneys who represent patients fail to understand that a physician may have complied with the standard of care even in the presence of an adverse result or bad outcome. The fact that an adverse result has occurred does not equate to a breach of the standard of care. The court and the plaintiff must be educated as to the appropriate definition of the standard of care.
This belief extends beyond plaintiff attorneys; a large sector of the general populace also believes that physicians should not make mistakes and that the standard of care is perfect medicine, and unfortunately for interventionalists, this has been upheld in some lawsuits. Fewer and fewer individuals are accepting the concept of acceptable but imperfect care. Obviously, less than perfect results are acceptable by definition. Having a knowledgeable lawyer will enable the interventional radiologist's defense team to appropriately “redefine” the standard of care.
Choice of Experts
In addition to the standard of care, the choice of expert witnesses is crucial and will often determine the outcome of the lawsuit. Expert witnesses should hold certain credentials including a teaching position; with both clinical and classroom experience in the type of intervention subject to the lawsuit; expert witnesses should also have experience in testifying in medical malpractice lawsuits and be free of lawsuits. If the litigation involves a pediatric interventional procedure, only an interventional radiologist practicing primarily in that area should be consulted. If you are able to choose your experts, do not let the training and experience of the expert become an issue at trial.
Specific Issues
Three specific issues seem to repeat themselves in litigations against interventional radiologists: informed consent, documentation, and follow-up care. For diagnostic radiologists, informed consent is usually not an issue. However, informed consent for an interventional radiologist is a potential opportunity for litigation. The patient needs to be advised of the generally accepted risks and benefits of a particular procedure. The physician must exercise discretion in determining those risks and benefits, which are discussed. Any question or concern should likewise be addressed prior to the procedure. If the procedure involves a minor, then informed consent should be given to the parent, guardian, or other individual legally responsible for the medical care of the child.
Documentation of this process is important to protect against litigation. As informed consent is given and consent received, the discussion of risks, benefits, and alternatives must be documented in the medical records. Without such documentation, the physician and his attorney are required to rely upon the custom and practice of the physician. The defense attorney has a better chance of winning the lawsuit with appropriate documentation including written informed consent.
Postprocedural patient follow-up and documentation thereof are also opportunities for litigation. If the interventional radiologist uses an advanced practice nurse (APN) for postprocedural follow-up, the parties should determine who is responsible for documenting the follow-up. In addition, the patient should be aware of the relationship between the radiologist and the APN. Appropriate follow-up must be performed and just as importantly, the follow-up should be documented. If the patient fails to show up for a follow-up appointment, this needs to be documented and a letter should be sent to the patient and an office note to the referring physician or primary care physician. Sometimes we will send a certified letter.
TORT REFORM
As the numbers of verdicts against physicians increase, proactive interaction with the legislative bodies at the state and federal level are necessary. Some states have passed tort reform in various forms. Interventional radiologists need to have their concerns addressed by their elected members of the legislature. Attending town hall meetings where elected officials seek input from the community is important.
Tort reform means different things to different professionals. Physicians define tort reform as asset protection. However, defense lawyers describe this term on different levels. Procedurally, provisions of tort reform can require patients to have the medical records reviewed by an expert prior to filing the lawsuit or present evidence to a body to determine whether the case has merit. The purpose of procedural tort reform is to limit the number of frivolous lawsuits.
Substantive tort reform refers to limits placed on financial recovery by the patient. In jurisdictions that allow recovery for noneconomic damages (pain, suffering, and disfigurement), substantive tort reform needs to be enacted to limit the financial recovery for these types of injuries. Both of these elements of injury are based upon subjective feelings. Because no objective measure exists, these are often large emotionally generated dollar amounts that the legislature needs to limit via tort reform.
Protecting personal assets of physicians is another area of tort reform. Most physicians who are actively engaged in the practice of medicine purchase medical malpractice insurance. As long as the defendant physician has an insurance policy to cover the claim and the state in which the claim is filed has limited recovery for noneconomic damages, the interventional radiologist's assets should not be at risk for postjudgment collection. Physicians need to actively seek new legislation that limits a claim for malpractice to the available insurance provided.
CONCLUSION
Many lessons have been learned by representing interventional radiologists. In a nutshell these can be boiled down to three issues: appropriate protection through individual purchase of medical malpractice insurance, retention of the best advocates for their defense, and the passage of favorable tort reform.