Wonder of wonders, the sun is out here in Chicago! Tempting though it was to run outside and bask in the forty-degree heat wave, though, I couldn't resist sitting in on Dr. Lenny Berlin's session on malpractice issues for radiology this morning. I attend a session on this subject every year at RSNA in hopes of staying abreast of any changes in the environment. While meaningful tort reform continues to elude us here in the US, this morning's session did provide attendees with some new information - as well as some new questions.
Dr. Berlin kicked off the talk by observing that there is an inherent conflict between a physician's ethical imperative to act as the patient's advocate even when an error has been made and the legal perspective that disclosure is tantamount to giving up. He noted that physicians are obviously conflicted on how to toe this line; in one survey, nearly all physician and resident respondents said they felt physicians should disclose errors to patients, but less than half said they would disclose a minor error, and just five percent said they would disclose a major one.
Further, although there has been some suggestion that a heartfelt apology from the physician followed by some form of financial restitution can head off a costly malpractice suit, the data is actually mixed on whether apologies help or hurt, Berlin said.
Marc Ginsberg, JD, was on hand to provide the legal perspective, which is fairly grim. Even in states with so-called apology statutes, he said, a physician admission of responsibility to a patient can be used in court - and will be used 100% of the time, he asserted. He advocated for physicians expressing sympathy, but never guilt.
Wryly observing that any discussion of malpractice as it pertains to radiology raises more questions than answers, Dr. Blaise Jones noted that the radiological standard of care is extremely difficult to define. For instance, if a radiologist is reviewing a prior study read however long ago by some other radiologist and spots a previously unreported lesion, is the second radiologist now responsible for communicating the error to the patient, and is he or she then liable? Or should the second radiologist notify the first, and in that case, which of them is now the responsible party?
Ginsberg noted that there is really no means for attaining clarity on standard of care in malpractice suits except for bringing in expert witnesses, a hairy situation that, in radiology, is further complicated by the fact that most jurors really don't understand what a radiologist's job is. The ACR has issued guidelines for communication, which are problematic, Ginsberg says, because even though they begin with a preamble that seems to assert that they are not to be taken as a one size fits all policy for radiologists, in court they are often referenced as the standard of practice. While he does not feel that this reality is appropriate, it happens so regularly that he strongly recommends radiologists familiarize themselves with the guidelines.
What do you think? Is there an ethical imperative to disclose errors to patients? Or is it simply not worth the risk?