Fear of lawsuits means fewer radiologists read mammograms

Of The Gazette Staff

Searching for a snowman in a blizzard. Spotting a star on a cloudy night.

That’s how radiologists describe looking for cancer on a mammogram.

It’s white on white – white tumors on white breast tissue – and it can be very difficult to see, even for the most experienced eye.

Mammography is arguably the most difficult thing radiologists do, but it is also one of radiology’s most common and most important practices.

“This saves more lives than anything else we do,” said Dr. Joseph Dillard, a radiologist with Eastern Radiological Associates in Billings.

Even so, Dillard and hundreds of other radiologists across the country have begun refusing to read mammograms, a trend some say could eventually limit women’s access to the cancer screening tests.

Reliable statistics are hard to find, but one U.S. study published in 2005 found that 30 percent of positions for radiologists who read mammograms were vacant. Radiologists also interpret X-rays, ultrasounds, CT scans and MRI exams.

The same study, reported in the journal Cancer, found that 63 percent of radiology practices with mammography fellowships had unfilled fellowship positions. Fellowships are programs that provide specialized training in specific areas of medicine.

At Eastern Radiological Associates, which is affiliated with St. Vincent Healthcare, three of seven radiologists are willing to interpret mammograms. At Billings Clinic, five of nine will do it.

Meanwhile, the number of certified mammography facilities is declining.

There were about 11 percent fewer places to get mammograms in the United States in 2006 than there were six years earlier, according to the government. That’s 1,101 fewer mammography centers across the country.

So, what gives?

In short, radiologists are afraid of being sued, and there’s evidence that they have more reason to worry than providers in other areas of medicine.

Missed breast cancer is the most common basis for medical malpractice lawsuits in the United States, according to the Physician Insurers Association of America, a trade group of medical malpractice insurance carriers.

And it’s among the most expensive kind of malpractice cases. In a seven-year period ending in 2002, PIAA members spent almost $200 million on breast cancer malpractice cases. That was $30 million more than was spent during the previous six years.

But, experts say, the problem is not inept radiologists, although there are certainly some of those.

Instead, the problem is a misconception about the effectiveness of mammography.

“It’s not a foolproof test,” said Dr. Kathleen Ryan, also a radiologist with Eastern Radiological Associates. “Unfortunately, many women think it is.”

Finding detectable cancers with mammography, radiologists say, is challenging enough. A breast does not have a standard anatomy in the way other parts of the body do, and breast cancers don’t always look the same.

“Every woman’s breast is like a fingerprint almost,” Dillard said. “They’re all different, and then we’re trying to find something that always looks different.”

But not every cancer can be seen on a mammogram. In fact, because of their structural makeup, as many as 20 percent of breast cancers are invisible on the screening test.

Many women don’t realize that. Thanks to public information campaigns led by the American Cancer Society and other groups, which have been undeniably valuable in raising awareness about breast cancer, many people think a negative result on a mammogram means a woman is cancer-free.

“The public expects mammograms to be perfect,” said Dr. Leonard Berlin, chairman of the radiology department at Rush North Shore Medical Center in Skokie, Ill. “That is the medical profession’s fault. … Mammography has been overpromoted. It’s been oversold.”

Berlin, recognized among his peers as an expert on mammography malpractice, also teaches radiology at Rush Medical College in Chicago and is a member of the Radiological Society of North America.

He and others argue that while mammography can and sometimes does save lives, it often detects cancers that are so slow-growing that they could not be considered life-threatening.

Women could live out their lives with some of the cancers identified by mammography and never be the wiser, Berlin said. Or they could be treated later on, after the cancer has grown and is found during a physical exam, with the same prognosis.

Mammography also gets credit for prolonging lives when it shouldn’t, some experts say. In a phenomenon called lead-time bias, a mammogram can falsely appear to lengthen a woman’s post-cancer survival when all it really does is lengthen the amount of time she is aware of her cancer.

Experts explain lead-time bias like this: Say the same cancer begins growing in two women’s breasts today. The first woman has a mammogram next month, which reveals the cancer and leads to treatment.

The second woman doesn’t get a mammogram until next year. Her cancer is also detected, and she also gets treated.

If both women die two years from now, it could look like the first woman lived longer with breast cancer – almost two years – than did the second woman.

For its part, the American Cancer Society acknowledges that mammography is not the end-all, be-all of breast cancer detection.

“Mammography has its limitations,” the ACS said in a prepared statement. “It misses some cancers, and it sometimes leads to unnecessary additional testing in women who do not have breast cancer.”

The fear of litigation

Mammography’s gray areas have made it an unpopular specialty.

According to Berlin, American radiologists don’t like interpreting mammograms because they’re afraid of being sued for missing something they could not reasonably have been expected to find.

Add to that a public perception that mammography finds all cancers, and radiologists become easy targets for malpractice suits, he said.

“There’s no question the fear of malpractice litigation does dissuade many radiologists from reading mammograms,” Berlin said.

Rather than risk litigation, more and more radiologists are simply opting out.

“Here’s an ad for mammography,” said Dr. Carl D’Orsi, a member of the American College of Radiology who teaches radiology, hematology and oncology and is the director of breast imagery at Emory University in Atlanta.

“‘Come and do mammography. You’ll get reimbursed $38 for reading a screening mammogram, and the odds you’ll get sued are twice as high as doing any other area of radiology.'”

Ryan, of Eastern Radiological Associates, said anyone who reads mammograms long enough will eventually be sued, and the possibility seems always to be looming over a radiologist’s shoulder.

“You sit back in your chair and wonder how this is going to look to a jury three years from now,” Ryan said. “I think that every day.”

To some, that kind of pressure probably sounds like a good idea, but radiologists say it’s unnecessary.

“It’s kind of insulting to me as a professional who has people’s lives in my hands that I would practice differently if it wasn’t for the medical-legal threat,” said Dr. Ronald Darby, chairman of the radiology department at Billings Clinic. “I’m not going to change the quality of my practice because of the threat of an attorney.”

Darby, who said he has not been sued over a mammogram, is one of the five radiologists at Billings Clinic willing to interpret them, but he understands why others won’t.

“I can see a young radiologist saying, ‘I don’t need that. I can make a living without doing mammography,’ ” he said. “The problem is, it does have value. There’s a growing number of women who need them.”

Darby said it is very unlikely that a large medical center such as Billings Clinic would ever stop offering the service, but smaller, independent practices already have, and more probably will.

With fewer places to be screened and fewer experts to interpret the results, access to mammography could someday be restricted.

“I believe access will be potentially limited by these lawsuits,” Dillard said.

‘Won’ the $4.3M lawsuit

A lawsuit soured Dillard on mammography.

It took a Billings jury just shy of three hours recently to decide that he and two of his colleagues, Drs. John Hansen and Anne Giuliano, were not negligent when they failed to detect a softball-sized tumor in a woman’s breast.

Despite its girth, the doctors argued, the tumor was one of the 20 percent of breast cancers that cannot be seen on mammography and was invisible on three mammograms and an ultrasound they conducted on the woman’s left breast over three years.

The woman, 50-year-old Sandra Harris, sued the radiologists for $4.3 million after she found the tumor herself almost three years ago. It was cancerous and put her out of work for eight months while she underwent a mastectomy, chemotherapy and radiation.

During a five-day trial last month, Harris claimed that the radiologists should have found her cancer earlier. If they had, she and her expert witnesses argued, her chances of living cancer-free for 10 years would have improved from 72 percent to 90 percent.

But jurors apparently believed the radiologists and their experts, all of whom said Harris’ tumor was undetectable, and, even if it had been diagnosed earlier, her prognosis probably would have been the same.

The radiologists’ insurance carrier spent $250,000 to defend them against the suit, which was filed in 2005, Dillard said.

Harris’ attorneys, Paul Warren and Neel Hammond, who was a Billings oncologist for more than 20 years before practicing law, plan to appeal the jury’s verdict.

Because of that, they declined to be interviewed and instructed Harris and members of her family to also refuse interviews.

Harris sued the radiologists in District Court despite receiving an unfavorable recommendation from the Montana Medical Legal Panel, a body that must examine every medical malpractice complaint before it can be filed in court.

The panel is made up of three physicians who practice the specialty involved in the complaint and three attorneys. Its decisions are not binding.

Even though the jury verdict cleared him of liability, Dillard decided he was finished with mammograms.

“If I can go down when I did everything right, I can’t do this,” he said.

Despite rapid improvements in medical technology, breast screening has not advanced beyond basic black-and-white X-ray images.

That’s partly because of the unique role mammography plays in medicine. It is virtually the only medical test used to screen large numbers of people on a regular basis.

“It has to be relatively quick, relatively cheap, effective and transportable to the whole population,” said D’Orsi, the Emory University professor.

Other technologies, such as MRI exams, can be used to screen breasts for cancer and are often used as diagnostic tools after cancer is detected on a mammogram.

But MRI exams are too expensive and time-consuming to become the standard breast-screening tool, D’Orsi said.

In spite of its faults, Dillard and others who worry about mammography being idealized by the public say there is no question women should continue to be screened regularly.

“It’s the best thing we’ve got,” Dillard said. “It’s not perfect. … We pick up 82 percent of cancers. That’s still pretty good. You’re not going to throw out the baby with the bathwater and give up that 82 percent.

“If people go into something knowing it’s not perfect, they’re much more accepting when it’s not perfect.”

In other words, women whose breast cancers are diagnosed after a mammogram – Harris found the lump in her breast six months after her last mammogram and four months after an ultrasound – sometimes feel betrayed because they expected the test to be error-proof.

They’re looking for someone to blame, Darby said.

“If you get sick and something goes wrong, it’s somebody’s fault,” he said.

More tests, more expense

Radiologists compensate for the litigiousness of mammography by practicing defensive medicine, which by some estimates costs billions of dollars a year.

The percentage of women asked to come back for additional testing after a mammogram, or the recall rate, is twice as high here as it is in Britain – 12 percent versus 6 percent, according to Berlin, the mammography malpractice expert in Chicago.

The number of breast cancers diagnosed in the two countries is the same.

“We’d rather err on a false positive side than on the false negative side,” Darby said.

“You just do everything,” Dillard said. “You don’t care what it costs the patient. You don’t care if they have to come down here from Plentywood. It’s a heck of a lot easier than going to trial.”

Despite the extra care evidenced by higher recall rates, American radiologists and their malpractice insurers pay more per claim than do international radiologists, according to PIAA. The difference is sixfold – $329,220 per claim versus $55,101.

Some blame the disparity on greedy American lawyers.

Almost 70 percent of breast cancer malpractice lawsuits are filed by women younger than 50, according to PIAA. But the majority of breast cancers occur in older women.

Juries are more sympathetic to younger plaintiffs, especially those with children, D’Orsi said.

And radiologists are sued more often than are gynecologists, even though in many instances – including in the Harris case – a gynecologist failed to detect the breast cancer during a clinical breast exam around the same time that a radiologist didn’t see it on a mammogram.

Juries can look at mammogram films and watch as experts point to missed tumors, but there’s nothing to see after a clinical breast exam.

“Much of litigation in mammo is theater,” D’Orsi said. “It’s unfortunately sad theater. In some cases it’s justifiable. But many (radiologists) are sued for the lawyer’s wallet.”

It’s too easy for attorneys and plaintiffs to file malpractice lawsuits, D’Orsi said. They have nothing to lose.

For the turmoil surrounding mammography malpractice litigation to settle down, that has to change, he said.

D’Orsi thinks states should set up committees similar to the Montana Medical Legal Panel but whose decisions carry more weight.

Women should always have the right to sue radiologists, D’Orsi said. But if they choose to do so after a panel of experts votes against them, they should have to accept more risk.

“If you lose, you pay both the defense’s and the plaintiff’s legal fees,” he said.

Most complaints that go before the Montana panel do not end up in court.

In a 10-year span ending in 2005, 16 of the 261 complaints that were considered by the panel and eventually resolved went to trial. Others were settled out of court or dismissed by judges.

An additional 271 complaints heard by the panel were still pending in other forums at the time of the panel’s report.

Of the 16 that went before juries, 14 were decided in favor of the medical providers. Providers who are uncertain about their chances at trial are more likely to settle out of court.

Dillard refused to settle because he was confident he had done nothing wrong. A jury agreed with him, but that wasn’t enough to keep him reading mammograms.

His colleague, Ryan, said she’s trying to change his mind, but she understands how he feels.

“I don’t blame Joe,” she said. “If I got sued, I would quit.”
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