Bogoroch & Associates’ Mahsa Dabirian on litigating radiology malpractice cases
A few lines in a medical imaging report can set the course of a patient's life and treatment. But what happens when those lines are wrong?Whether the report suggests surgery, chemotherapy or a watch‑and‑wait approach, when uncertainty is overstated or the differential diagnosis is prematurely foreclosed, the consequences can be catastrophic.
“For plaintiff medical malpractice counsel, radiological cases are among the most complex and most compelling,” Mahsa Dabirian, partner at Bogoroch & Associates LLP, says. “You must have a mastery of imaging science, expert instruction, and preparation for discovery. At the same time, when you have radiological negligence, it's literally black and white. They can be the most persuasive cases for the trier of fact to see.”
What is radiological medical malpractice?
Radiological malpractice arises where a radiologist’s interpretation, reporting, or communication of imaging falls below the standard of a reasonably prudent radiologist in similar circumstances. While often framed as “missed diagnoses,” the liability analysis is more nuanced.
In practice, these cases tend to fall into four overlapping categories.
The first is failure to detect: where an abnormality, such as a tumour, hemorrhage, fracture, or vascular event, is visible on the imaging but not identified or reported. These cases often turn on whether the finding was in fact appreciable at the time, having regard to the modality, image quality, and clinical context.
Second is misinterpretation, where the radiologist identifies an abnormality but characterizes it incorrectly. This may involve overstating the likelihood of malignancy, misclassifying a lesion, or failing to recognize imaging features that point toward a different diagnosis.
Third is failure to communicate. Even where findings are correctly identified, liability can arise if urgent or unexpected results are not conveyed in a timely and effective manner to the treating team. In time-sensitive contexts—such as stroke, spinal cord compression, or evolving hemorrhage — delay in communication can be as consequential as the interpretive error itself.
The fourth category is failure to provide an appropriate differential diagnosis. Radiology is inherently probabilistic. The standard of care does not require diagnostic certainty, but it does require that the radiologist articulate a reasonable range of possibilities where the imaging supports it — and avoid expressing unwarranted certainty where it does not.
“It’s not simply about what was seen or not seen,” Dabirian explains. “It’s about whether the radiologist appropriately grappled with uncertainty and communicated it in a way that allowed the treating physician to make an informed decision.”
Retaining the right expert — and why blind review matters
If radiology cases turn on what the images show, they are ultimately proven through how experts interpret them.
Retaining the right expert is therefore not a procedural step—it is foundational to the theory of the case. Once imaging is obtained, plaintiff’s counsel should engage a radiologist early to assess whether the findings support a viable criticism of the report. But just as important as who is retained is how they are instructed.
“The manner in which you instruct your expert can shape the entire trajectory of the litigation,” Dabirian says.
A critical first step is requiring the expert to conduct a blind review of the imaging. This means assessing the scans without knowledge of the clinical outcome, subsequent pathology, or procedural complications. The exercise isolates the central question: what did the images demonstrate at the time they were interpreted?
Done properly, a blind review serves two strategic purposes.
First, it enhances the credibility of the opinion. An expert who can say their conclusions were formed without the benefit of hindsight is far more resistant to cross-examination. In radiology cases — where defence counsel will often suggest that the criticism is outcome-driven — this can be decisive.
Second, it sharpens the standard of care analysis. By focusing exclusively on the imaging available at the time, the expert is better positioned to address whether a reasonably prudent radiologist could and should have identified the relevant features, and how those features ought to have been characterized.
“A defence cross-examination on hindsight bias loses its force where the expert can say, ‘I reached this conclusion before I knew what happened,’” Dabirian notes.
Only after that initial review should the expert be provided with the broader clinical context. At that stage, the opinion can evolve to address not only interpretation, but also whether the report appropriately conveyed uncertainty, articulated a reasonable differential diagnosis, and guided clinical decision-making.
Case studies: When radiology drives the outcome
Bogoroch & Associates has represented many plaintiffs in cases where radiological errors were the critical first step in a cascade of harm.
In one neurological imaging case resolved at mediation, the firm acted for a young woman who presented with focal neurological symptoms and underwent MRI imaging. The radiology report characterized the lesion as most consistent with a glioma and recommended neurosurgical intervention. The report did not meaningfully engage with imaging features that were also suggestive of a demyelinating process.
Relying on that interpretation, the patient underwent an unnecessary craniotomy and biopsy. Pathology ultimately revealed no malignancy. She was, however, left with permanent neurological deficits due to complications from the surgery.
The plaintiff’s neuroradiology expert identified imaging features that supported a non-neoplastic diagnosis. The central issue was not simply misinterpretation, but the degree of certainty expressed. The report failed to articulate a reasonable differential diagnosis and conveyed a level of diagnostic confidence that the imaging did not support—setting the course for unnecessary invasive treatment.
In another case, also resolved at mediation, Bogoroch & Associates represented a plaintiff who underwent a neurological biopsy following imaging that framed the lesion as requiring urgent intervention. The patient was not advised that, even if the lesion were a low-grade tumour, immediate biopsy or resection would not have altered management. Nor was she informed of the material risk of intracerebral hemorrhage. The procedure resulted in a catastrophic stroke.
In both cases, the radiology report was the pivotal first link in the chain. By overstating certainty and narrowing the diagnostic possibilities, the imaging interpretation shaped the clinical decisions that followed.
An art and a science
For Dabirian, radiology cases occupy a distinct place within medical malpractice litigation. They are technically demanding — but, when properly developed, uniquely persuasive.
“Running these cases is both an art and a science,” she says.
While radiology is inherently complex, that complexity can be distilled. When the images are properly analyzed, framed, and presented, they can transform uncertainty into something concrete. In a courtroom setting, that matters because seeing often is believing.
Success in these cases requires more than technical understanding. It demands rigorous expert evidence, disciplined discovery, and a clear theory of liability.
“The challenge is taking something highly technical and making it clear,” Dabirian explains. “Once the expert identifies the issue and the images demonstrate it, it should be unmistakable.”
In radiology cases, when that is done effectively, the evidence does more than inform — it speaks for itself.
This article was produced in partnership with Bogoroch & Associates LLP
