Suits against radiologists have become ubiquitous in our society.1 Because these claims frequently involve delays in the diagnosis and treatment of progressive diseases such as cancer, the potential monetary exposure tends to be high.2 In general, there are four reasons why radiologists get sued: errors in perception (not appreciating an abnormality), errors in interpretation (calling a finding benign when it is malignant), failure to suggest the next appropriate step or procedure, and failure to communicate to the patient or clinician in a timely and appropriate manner. It is the first of these types of claims, the errors in perception, which forms the basis for the vast majority of radiology claims. Coincidentally, such claims are susceptible to a pernicious and insidious form of bias on the part of plaintiff’s expert as well as the jury.
In these types of cases, the focus of the inquiry is typically on whether a radiologist is necessarily liable for failing to appreciate an abnormal finding that is present on an imaging study. While it would seem that the question of whether an abnormal finding is “present” would be a straightforward one, for a variety of reasons, which will be discussed further below, often it is not. The determination of whether an abnormality is present may be a function of the context in which the study is being interpreted. The standard to which a radiologist is held, in these types of cases, is whether an abnormal finding would have been appreciated by another radiologist in similar circumstances.3 The law of the state of New York as evidenced by the Pattern Jury Instructions indicates that a doctor is to be judged by comparison to the average practitioner in the community.4 Confounding the ability to make an accurate diagnosis is the fact that abnormalities may appear amongst and in conjunction with a multitude of normal variants in terms of size, density and location that can serve to camouflage an abnormality, creating a “Where’s Waldo” effect.5 Perhaps an accessible analogy is the ability to see a particular star in the night sky. When the air is clear and the sky is totally black because the moon is not visible, even the smallest star will be readily detectable to the naked eye. However, if the sky is partially illuminated by the moon, if there are small clouds present, or if many other stars surround it, a smaller star may be far more difficult to see amongst a myriad of heavenly bodies.6 The fact that surrounding background structures make it difficult to identify abnormalities on occasion is a fact of radiologic life, but one about which lay people, including potential jurors, are not necessarily aware. As a result, there are times when one radiologist may be able to identify an abnormality while another may not. This disparity is perhaps euphemistically termed “inter-observer variability.” Most studies place inter-observer variability at the seemingly alarming rate of 20-50 percent.7 While this range may seem high, it may be that the process of radiologic interpretation is a bit more difficult than it would appear at first blush.
