Changing patterns of ultrasound-related litigation: a historical survey.

Abstract

he earliest litigation related to diagnostic ultrasound that I am aware of dates to 1974 and involved obstetric measurements. Before 1974, images were so difficult to interpret that ultrasound was considered of little value apart from obstetric measurement data and for characterizing masses as cysts (Fig. 1). Gray scale sonography came in 1974, and, abruptly, referrals for ultrasound became more widespread as clinicians began to understand the images. With understanding came greatly increased clinical use, and, as night follows day, then came lawsuits. A personal suit for missing a case of spina bifida in 1981 sparked my interest in litigation related to ultrasound. Little information was available because legal monitoring and archiving systems at that time only documented cases that went to court and were not settled out of court (≈98% of cases are settled out of court). A survey of members of the Society of Radiologists in Ultrasound, at that time a select group limited to 50 members who performed ultrasound examinations full time, was conducted. Details of 32 cases were obtained. Meanwhile, Charles W. Hohler, MD, an obstetrician who was involved in ultrasound in the late 1970s and early 1980s, became interested in litigation related to ultrasound. He had access to a survey of 10% of American College of Obstetricians and Gynecologists members, which included 1 question about legal suits related to ultrasound. To our astonishment, this survey yielded crude information about 62 cases.1 There was obviously a considerable amount of litigation going on. Because about 98% of all medical malpractice cases are settled out of court, this was new information. For the next 19 years, I tracked litigation related to ultrasound by asking for information about cases from expert witnesses, tabulating my own cases, and getting information about cases when I spoke at meetings. During the 6 years that I sat on the American College of Radiology Litigation Committee, I had access to a journal of settled cases in which trial lawyers reported their successful cases. Articles reviewing the series were published 5 times with updated statistics on 4 occasions.1–5 A comparison of the different case series is shown in the tables below. In the columns labeled “2002” are the cases that I have seen as an expert witness since 1997. This group is biased toward obstetric and gynecologic ultrasound because I have not performed abdominal ultrasound since 1998. My cases are equally split between plaintiffs and defendants. The tables include information about dropped legal cases, settled Abbreviations IUD, intrauterine device; IUGR, intrauterine growth restriction