Proving a Radiology Error Under New York Law

The Legal Elements of a Radiology Malpractice Claim

To prove a radiology malpractice claim in New York, the plaintiff must establish four elements:

1. Duty of care: The radiologist owed the patient a duty to meet the applicable standard of care. This duty is established by the physician-patient relationship -- which exists when the radiologist interprets an imaging study ordered for the patient.

2. Breach of duty: The radiologist deviated from the accepted standard of care. The standard of care is what a reasonably competent radiologist would do under similar circumstances. [Link to: /guides/standard-of-care]

3. Causation: The deviation caused the patient injury. The plaintiff must prove that the radiologist negligence was a proximate cause of the harm -- meaning the harm would not have occurred (or would have been reduced) but for the negligence.

4. Damages: The patient suffered measurable harm. This includes medical expenses, lost wages, pain and suffering, and permanent disability.

Each of these elements must be proven by a preponderance of the evidence -- meaning it is more likely than not that the element is satisfied. Expert testimony is required to establish the standard of care, breach, and causation. [Link to: /medical-malpractice/what-is-medical-malpractice]

The Certificate of Merit Requirement (CPLR 3012-a)

Under New York law (CPLR 3012-a), a medical malpractice lawsuit must be accompanied by a certificate of merit. The certificate of merit is a document in which the plaintiff attorney certifies that:

- They have consulted with a licensed physician who is knowledgeable about the medical issues in the case - The consulting physician has reviewed the medical records and facts of the case - The consulting physician has concluded that there is a reasonable basis to believe that the defendant committed negligence that caused the patient injury

The certificate of merit must be filed with the summons and complaint (or within 90 days of filing). Failure to file a certificate of merit can result in dismissal of the case.

The purpose of the certificate of merit is to screen out frivolous malpractice claims -- ensuring that only cases with a legitimate basis proceed. This is why it is essential to consult with a qualified medical expert before filing a radiology malpractice lawsuit. At MDLaw Firm, we engage board-certified radiologists to review cases before filing, ensuring that the certificate of merit is supported by a legitimate expert opinion.

The Role of Expert Testimony

Expert testimony is required in New York radiology malpractice cases. The plaintiff must present expert testimony to establish:

- The standard of care: What a reasonably competent radiologist would have done under similar circumstances. This includes the appropriate protocol, image quality, review process, interpretation, and communication of findings.

- Breach of the standard of care: How the defendant radiologist deviated from the standard of care. The expert identifies the specific error -- a missed finding, a misinterpretation, a failure to communicate, or a protocol error.

- Causation: How the radiologist negligence caused the patient harm. The expert explains how earlier diagnosis and treatment would have changed the outcome -- for example, how a stroke missed on CT led to permanent brain damage because tPA was not administered.

The expert witness must be qualified -- typically a board-certified radiologist with experience in the specific type of imaging at issue. The expert must be familiar with the standard of care in New York (or the relevant community) and must be able to explain complex medical concepts to a jury in plain language.

In radiology cases, the expert often performs an independent review of the imaging studies -- looking at the actual images, not just the radiology report -- to identify what was missed and whether it should have been detected. This independent review is critical evidence in the case.

Obtaining and Preserving Imaging Studies

The imaging studies themselves -- the actual CT scans, MRIs, ultrasounds, and X-rays -- are the most important evidence in a radiology malpractice case. Unlike medical records (which can be recreated), imaging studies are digital files that must be obtained and preserved.

Key steps for obtaining and preserving imaging studies:

- Request the actual images: Do not settle for just the radiology report. Request the actual DICOM images (the digital files used in medical imaging) on a CD or through a secure electronic transfer. - Request all relevant studies: Obtain the study at issue, any prior studies for comparison, and any subsequent studies that show the progression of the condition. - Preserve the images: Store the images securely. Do not alter or modify them in any way. - Request the technical parameters: Obtain the technical parameters of the study (protocol, contrast, slice thickness, etc.), which can be relevant to whether the correct protocol was used. - Request the sonographer/technician records: For ultrasound and other operator-dependent studies, the sonographer or technician records may be relevant. - Request the PACS (Picture Archiving and Communication System) logs: These logs can show when images were viewed, by whom, and any modifications.

[Link to: /resources/how-to-get-medical-records-for-a-lawsuit]

The Standard of Care for Radiologists

The standard of care for radiologists in New York is based on what a reasonably competent radiologist would do under similar circumstances. Key elements include:

- Appropriate qualifications: The radiologist should be qualified to interpret the type of imaging study at issue. For specialized studies (neuroradiology, breast imaging, interventional radiology), specialized training is required. - Proper protocol selection: The correct imaging protocol must be selected based on the clinical indication. If contrast is indicated, it should be administered. - Adequate image quality: The images must be of adequate technical quality. If the images are inadequate, the study should be repeated. - Careful image review: The radiologist must carefully review all images using a systematic approach. Skipping images or reviewing too quickly can lead to missed findings. - Comparison with prior studies: If prior imaging studies are available, they should be obtained and compared. - Accurate interpretation: The radiologist must accurately identify and interpret any abnormalities. - Clear reporting: The radiology report must clearly describe the findings, provide a diagnosis or differential diagnosis, and include recommendations for follow-up. - Communication of critical findings: Critical, urgent, or unexpected findings must be communicated promptly and directly to the referring physician -- typically by phone call, not just in the written report. [Link to: /radiology-errors/communication-failures]

The standard of care is established through expert testimony, as well as authoritative sources like the American College of Radiology (ACR) practice parameters and The Joint Commission standards.

Proving Breach: What Did the Radiologist Do Wrong?

To prove breach, the plaintiff must show that the radiologist deviated from the standard of care. Common breaches in radiology cases include:

- Perceptual error (failure to detect): The radiologist did not see an abnormality that was visible on the imaging study and that a competent radiologist would have detected. This is the most common type of radiology error. - Interpretive error (misinterpretation): The radiologist saw the abnormality but misinterpreted it -- calling a malignant mass benign, or calling a hemorrhagic stroke ischemic. - Protocol error: The wrong imaging protocol was selected (e.g., non-contrast CT when contrast was indicated), or the study was not performed to adequate technical standards. - Failure to compare with prior studies: Prior studies were available but not obtained or compared, leading to missed new findings. - Failure to communicate: Critical findings were identified but not promptly communicated to the referring physician. [Link to: /radiology-errors/communication-failures] - Failure to recommend follow-up: Suspicious findings were identified but no biopsy or follow-up imaging was recommended. - Inadequate image quality: The images were technically inadequate but the radiologist interpreted them anyway rather than repeating the study.

The expert witness identifies the specific breach and explains how it deviated from the standard of care. The independent review of the imaging studies is critical evidence -- showing that the finding was visible and should have been detected.

Proving Causation: Did the Error Cause the Harm?

Proving causation is often the most contested element in radiology malpractice cases. The plaintiff must show that the radiologist negligence caused the patient harm -- meaning the harm would not have occurred (or would have been reduced) but for the negligence.

Causation analysis considers:

- What would have happened if the finding had been correctly identified and communicated? Would the patient have received treatment that would have prevented or reduced the harm? - Was the harm caused by the underlying condition or by the delayed diagnosis? The defense may argue that the underlying condition (not the radiology error) caused the harm. The plaintiff must show that the delayed diagnosis caused or worsened the outcome. - Would earlier treatment have changed the outcome? Expert testimony from the relevant medical specialists (neurologists, oncologists, surgeons, etc.) is used to establish that earlier diagnosis and treatment would have changed the outcome.

For example, in a case where a stroke was missed on CT: - The plaintiff must show that if the stroke had been identified, the patient would have received tPA or thrombectomy within the treatment window. - The plaintiff must show that the treatment would have prevented or reduced the brain damage. - The plaintiff must show that the delayed diagnosis caused the patient to miss the treatment window.

[Link to: /medical-malpractice/stroke-misdiagnosis] [Link to: /delayed-diagnosis-lawyer/loss-of-chance]

The Loss of Chance Doctrine

In some radiology malpractice cases, the plaintiff cannot prove that the radiology error caused the harm -- but can prove that the error reduced the patient chances of a better outcome. New York recognizes the loss of chance doctrine, which allows recovery when the negligence reduced the patient chance of survival or recovery.

Under the loss of chance doctrine:

- The plaintiff must show that the radiology error reduced the patient chance of a better outcome by a significant amount (typically more than a negligible reduction) - The plaintiff can recover damages proportional to the lost chance - The doctrine is particularly relevant in cancer cases, where delayed diagnosis may have reduced the patient chance of survival without necessarily being the sole cause of death

For example, if a breast cancer was missed on a mammogram, and the delayed diagnosis reduced the patient chance of 5-year survival from 90% to 60%, the loss of chance doctrine may allow recovery for the 30% reduction in survival chance. [Link to: /delayed-diagnosis-lawyer/loss-of-chance] [Link to: /radiology-errors/mammogram-malpractice]

Lavern's Law and the Statute of Limitations

Radiology malpractice claims in New York are subject to the 2.5-year statute of limitations for medical malpractice (CPLR 214-a), running from the date of the negligent act (the date the imaging study was misread).

Lavern's Law may extend this deadline for cancer cases. Under Lavern's Law: - You have 2.5 years from the date you discovered (or should have discovered) the misdiagnosis to file a lawsuit. - There is an absolute outer limit of 7 years from the date of the negligent act.

This is particularly important in radiology cases involving cancer, where the missed diagnosis may not be discovered until months or years later -- when the cancer has progressed. [Link to: /misdiagnosis/laverns-law]

If the radiology error occurred at a municipal hospital (NYC Health + Hospitals), shorter deadlines apply -- 90 days for the notice of claim and 1 year, 90 days for the lawsuit. [Link to: /hospital-negligence/suing-nyc-h-h]

If the radiology error resulted in death, a wrongful death claim under EPTL 5-4.1 must be filed within 2 years of the date of death. [Link to: /wrongful-death-lawyer]

Discovery: Obtaining Evidence from the Defense

During litigation, the plaintiff has the right to discovery -- the process of obtaining evidence from the defendant. In radiology malpractice cases, discovery includes:

- Interrogatories: Written questions that the defendant must answer under oath, covering the radiologist qualifications, training, protocols, and the specific imaging study at issue. - Depositions: Sworn testimony from the defendant radiologist, the referring physician, and other witnesses. The radiologist deposition is particularly important -- the plaintiff attorney can question the radiologist about their interpretation, their review process, and their communication of findings. - Document requests: Requests for the radiologist credentials, training records, hospital policies and procedures, quality assurance records, and prior complaints or incidents. - Expert disclosure: Both sides must disclose their expert witnesses and their opinions. - Independent medical examination (IME): The defendant may request an independent medical examination of the plaintiff to assess the extent of injuries.

Discovery is critical in radiology malpractice cases -- it allows the plaintiff to obtain evidence that may not be available through medical records alone, such as the radiologist internal review process, prior incidents, and quality assurance data.

Common Defense Strategies and How We Counter Them

Defense: The finding was subtle and difficult to detect.

Defense attorneys use several strategies in radiology malpractice cases:

• Our Counter: The standard of care requires radiologists to detect findings that a reasonably competent radiologist would detect. We use expert testimony and independent image review to establish that the finding was detectable. We also examine whether the correct protocol was used and whether the images were of adequate quality.

Defense: The patient had an underlying condition that caused the harm.

Our Counter: The underlying condition may have contributed, but the radiology error -- the delayed or incorrect diagnosis -- caused or worsened the outcome. We use expert testimony to establish that earlier diagnosis and treatment would have changed the outcome. [Link to: /delayed-diagnosis-lawyer/loss-of-chance]

Defense: The referring physician was responsible for follow-up.

Our Counter: While the referring physician has responsibility for follow-up, the radiologist has a separate duty to communicate critical findings directly. If the radiologist failed to communicate directly, the radiologist may share liability. [Link to: /radiology-errors/communication-failures]

Defense: The imaging study was technically adequate and followed standard protocols.

Our Counter: Technical adequacy is necessary but not sufficient. Even with technically adequate images, the radiologist must carefully review all images, compare with prior studies, accurately interpret findings, and communicate critical findings. We use expert testimony to identify the specific breach -- whether it was a perceptual error, interpretive error, or communication failure.

Defense: The delayed diagnosis did not change the outcome.

Our Counter: We use expert testimony from the relevant medical specialists to establish that earlier diagnosis and treatment would have changed the outcome. The loss of chance doctrine may also apply, allowing recovery for the reduced chance of a better outcome. [Link to: /delayed-diagnosis-lawyer/loss-of-chance]

What to Expect Working with MDLaw Firm

When you contact MDLaw Firm about a potential radiology malpractice case:

• Free Consultation: We listen to your story and review the basic facts.
• Record Retrieval: We obtain all imaging studies (the actual DICOM images, not just the reports), radiology reports, prior studies, and medical records.
• Expert Radiology Review: We engage board-certified radiologists to independently review the imaging studies and evaluate the standard of care.
• Certificate of Merit: We consult with qualified medical experts and file the certificate of merit (CPLR 3012-a) with the lawsuit.
• Causation Analysis: We engage the relevant medical specialists to establish that the radiology error caused the harm.
• Litigation: We file within the statute of limitations, conduct thorough discovery, and handle all aspects of trial.
• Resolution: We pursue maximum compensation through settlement or verdict.

Frequently Asked Questions

The value of a medical malpractice case in New York depends on several factors, including the severity of the injury, the strength of liability evidence, and the economic and non-economic damages involved. New York is one of the few states with no caps on medical malpractice damages, meaning there is no artificial limit on what you can recover. Below are typical settlement ranges based on injury severity.