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Malpractice issues in radiology |
1
Department of Radiology, Massachusetts General Hospital, 55 Fruit St., Boston,
MA 02114, and Harvard University School of Medicine, Boston, MA 02114.
2
Department of Radiology, Rush North Shore Medical Center, 9600 Gross Point
Rd., Skokie, IL 60076, and Rush Medical College, Chicago, IL 60612
Received July 8, 1999;
accepted after revision July 14, 1999.
Address correspondence to L. Berlin.
The Case
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The radiologist who was to obtain the radiologic study spoke at length with the patient's daughter, informing her that the office did not have a sign language interpreter readily available and personnel were unsure how to secure one. The radiologist said the patient would have to follow commands during the procedure and asked the daughter whether it would be possible for him to communicate with the patient through the daughter, who had a working knowledge of American Sign Language. The daughter answered affirmatively, and the patient decided to proceed with the examination. The patient's daughter would be present in the room to transmit directions to the patient, but everyone acknowledged that the study would have to be discontinued if a serious communication problem developed.
The patient was placed on a fluoroscopy table, an enema tip was inserted, and a catheter balloon was inflated under fluoroscopic observation. Although the patient's daughter attempted to communicate the radiologist's instructions to the patient, it soon became apparent that the patient could not understand or follow the radiologist's commands. As the examination proceeded the patient became confused and agitated, despite attempts by her daughter and the radiologist to reassure her.
After approximately 10 min, the radiologist decided that because it was not possible to complete the gastrointestinal examination, he would terminate it. As the radiologist began to explain the situation to the patient and her daughter, the patient suddenly attempted to climb off the examination table. Before the patient could be restrained, she fell to the floor.
After a period of confusion, the radiologist, radiology technologist, and the patient's daughter were able to lift the patient, who was now hysterical and writhing in pain, back on the table. The radiologist assessed potential injuries and obtained radiographs, which disclosed that the patient had sustained a hip fracture. An ambulance transported the patient to a nearby hospital, where she underwent hip-pinning surgery. The patient made an uneventful recovery.
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During discovery proceedings, a radiology expert retained by the attorney for the plaintiff testified in a deposition that the injuries sustained by the patient in falling off the radiology table clearly resulted from lack of supervision by both the radiologist and the technologist. According to the plaintiff's expert, this constituted "gross negligence." The radiology expert also pointed out that the lack of "meaningful communication" between the radiologist and the patient was a major factor contributing to the injury. The expert was also highly critical of the office personnel and the radiologist for failing to provide a sign language interpreter.
The defendant radiologist's malpractice insurance company retained an expert in health care risk management to review the case. In a confidential memorandum written to the radiologist's defense attorney and malpractice insurance company, the expert concluded that there was little chance of successfully defending the lawsuit, should it proceed to trial. Negligence had indeed occurred, in the opinion of the expert, because the patient had fallen off the radiography table despite the fact that both the radiologist and the radiology technologist knew that the patient was unable to hear and understand directions. Furthermore, concluded the defense expert, there was a "strong possibility" that the radiologist and the owners of the radiology office would be found in violation of the ADA and the Rehabilitation Act and subject to punitive damages, given the failure to provide a sign language interpreter.
After considerable negotiation among the parties, the lawsuit was settled. On behalf of the radiologist and the owners of the radiology office, the insurance company paid all the patient's medical bills in addition to $200,000 for "pain and suffering." Also, the radiologist and radiology office owners agreed in writing that they would in the future guarantee access to sign language interpreters for all hearing-impaired patients and comply fully with all other provisions of the ADA and the Rehabilitation Act.
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The Americans with Disabilities Act
Enacted in 1990, the ADA is perhaps the best-known federal law addressing
the civil rights of individuals with disabilities. The stated purpose of the
ADA is to provide a clear and convincing mandate for elimination of
discrimination against disabled persons. A variety of titles, or discrete
portions of the law, form the specific provisions and enforcement mechanisms
of the ADA. In the setting of a hearing-impaired person seeking medical care,
the applicable provision is title III, which bars discrimination in
"places of public accommodation." The core provision of title III
states [1]:
No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, accommodations of any place of public accommodation by any person who owns, leases (or leases to) or operates a place of public accommodation.
An individual alleging discrimination is required under ADA to establish that the individual has a disability, the defendant's business or property is a place of public accommodation, and the individual was discriminated against by being refused full and equal enjoyment of services provided by the public accommodation because of the disability. There is broad agreement that hearing impairment constitutes a disability under the ADA, and that the office of a health care provider is a "public accommodation" [1, 2]; thus, a hearing-impaired patient need only establish that unlawful discrimination has taken place to prevail in litigation arising from an incident occurring in a hospital, physician's office, or other health care facility.
Discrimination under title III is defined as a failure to take the steps necessary—that is, to fail to provide auxiliary aides and services—to ensure that no individual with a disability is excluded, denied services, segregated, or otherwise treated differently from any other individual [1, 3]. Examples of appropriate auxiliary aids and services for hearing-impaired persons include qualified interpreters, notetakers, computer transcription, written materials, telephone handset amplifiers, assistive listening devices, telephones compatible with hearing aides, closed captioned decoders, open and closed captioning, telecommunication devices for the deaf, videotext displays, or other effective methods of making aurally delivered materials available to individuals with hearing impairments [4, 5]. Although the statutes do not specifically require that a sign language interpreter be present in a medical setting such as a radiologic examination, a Department of Justice technical assistance manual strongly suggests that sign language interpreters are necessary in settings in which complex information must be conveyed. However, the Department of Justice has also noted that the auxiliary aid requirement is a flexible one, leaving a public accommodation free to choose among various options as long as effective communication is achieved [6].
There are limited exemptions to the broad sweep of title III. A physician's office, hospital, or other public accommodation is exempt if it can show that providing the accommodation would result in an "undue burden"—that is, an excessive monetary cost [1].
A hearing-impaired individual alleging a violation of title III of the ADA has several legal options. The individual may bring an action requesting the court to impose an injunction on the public accommodation and to mandate that the public accomodation provide specific products or services to assist the disabled. The plaintiff in such an action may be awarded reasonable attorney's fees and costs; however, as an individual, the person alleging discrimination under title III may not seek monetary damages [2]. Nevertheless, the plaintiff may file a complaint with the Department of Justice, and the department can request that the court award monetary damages. In addition, defendants found guilty of violating title III may be assessed fines of as much as $50,000 for an initial violation, and as much as $100,000 for subsequent violations.
Rehabilitation Act of 1973
Not as well known as the ADA, the Rehabilitation Act was enacted to address
discrimination against disabled individuals. The Rehabilitation Act states
[7]:
No otherwise qualified individual with handicaps...shall solely by reason of his or her handicap be excluded from participation in, be denied the benefits of, or be subject to discrimination under, any program or activity receiving federal financial assistance.
Though many of its provisions were incorporated into the subsequent ADA, the Rehabilitation Act remains in force today. The act specifies certain requirements necessary for a successful legal action and certain remedies available to the plaintiff that differ from the requirements of the ADA. To establish that the act has been violated, a plaintiff must prove that he or she is a "handicapped" person, is "otherwise qualified" for participation in a program, and is being excluded from participation in, being denied benefits of, or being subjected to discrimination under, the program solely by reason of the handicap. The relevant program or activity must also receive federal financial assistance. The first three requirements are essentially identical to those of the ADA, but the requirement that the program or activity in question receive federal funds is unique to the Rehabilitation Act.
The Rehabilitation Act shares with the ADA its definitions of what constitutes a disabled individual (the term "handicapped" in the Rehabilitation Act is considered equivalent to the more modern term "disabled"). Although the exact definition of disability is not spelled out, the United States Supreme Court has ruled that "disability" is an impairment that "substantially limits one or more major life activities," but that neither the ADA nor the Rehabilitation Act protects people with disabilities that can be corrected by medical treatment, eyeglasses, or other aides [8, 9]. Certainly, however, both statutes agree that a deaf or severely hearing-impaired individual is entitled to protection. Furthermore, there is little debate that a deaf or severely hearing-impaired individual is "otherwise qualified" to receive medical care. With two requirements satisfied, the question becomes whether discrimination has occurred in a setting in which federal assistance has been received. Satisfying the federal assistance requirement of the Rehabilitation Act is quite easy in the context of a medical setting; Medicare and Medicaid funding has been consistently held to constitute such assistance [10].
Discrimination need not arise from animosity or ill intent; it may simply reflect thoughtlessness and indifference—benign neglect [2]. Discrimination may be established merely by proving that a violation of a regulation of the Rehabilitation Act has occurred. For example, the act requires that facilities "provide appropriate auxiliary aides to persons with impaired sensory, manual, or speaking skills, where necessary, to afford such persons an equal opportunity to benefit from the service in question" [11]. Although the regulations themselves do not specifically require a sign language interpreter be provided for hearing-impaired individuals, nuances exist within the regulations and Department of Justice opinions that suggest that a covered entity has far less discretion in providing auxiliary aids under the Rehabilitation Act than it does under the ADA. As an example, there is case law that suggests that a covered entity is required under the Rehabilitation Act to comply with a disabled individual's request for a specific form of accommodation, such as a sign language interpreter [12].
Remedies available under the Rehabilitation Act are different from those under the ADA. A plaintiff may seek compensatory damages if intentional discrimination is found. Establishing this level of discrimination involves proving that the defendant intentionally or willfully violated the Rehabilitation Act [13]. Punitive damages may also be sought if it can be shown that the defendant acted with malice or reckless indifference to the patient's rights.
Given the overlapping protections offered by the ADA and the Rehabilitation Act, and the ubiquitous federal funding in the health care sector, most hearing-impaired plaintiffs invoke both statutes when alleging discrimination on the basis of failure to provide sign language interpreters. Although case law suggests that sign language interpreters may be necessary when complex information is exchanged in a medical setting, there appears to be no absolute requirement for such interpreters.
A thorough overview of the ADA and the Rehabilitation Act as they apply to sign language interpreters is found in a Maryland case in which a hearing-impaired individual was the victim of a motorcycle accident [13]. During his hospitalization, the patient and his family alleged that they repeatedly requested that a sign language interpreter be provided to assist in communication, particularly when it was necessary to obtain informed consent for various medical procedures. Only occasionally did the hospital provide such services. After his discharge from the hospital, the patient instituted legal action under both the ADA and the Rehabilitation Act.
In allowing the matter to proceed to trial, the court reviewed a number of cases addressing similar circumstances. It noted that violations of both the ADA and the Rehabilitation Act had been substantiated regarding public accommodations that had failed to provide sign language interpreters. The court, however, was careful to note that these cases did not necessarily establish that an interpreter was required. In fact the court ruled that sign language interpreters are not required if other means of accommodations are sufficient. The court concluded that the real issue was not whether a sign language interpreter was available, but rather "whether equal opportunity was provided during the patient's course of treatment."
A decision of a New York court in an ADA and Rehabilitation Act case also placed more emphasis on equal opportunity than on the quality of medical care itself. A hearing-impaired patient alleged that a state university medical center refused to provide a sign language interpreter on certain occasions and at other times provided an unqualified interpreter. In examining the hospital's contention that the patient's medical care was not affected, the court stated that the plaintiff's claims "related to his exclusion from participation in his medical treatment, not the treatment itself." Thus, concluded the court, even if effective medical care is provided, the ADA, Rehabilitation Act, or both may still be violated [3].
The issue of whether bearing the costs of a sign language interpreter or other auxiliary aids constitutes an "undue burden" to a physician's office was addressed in a Michigan case [2]. There, a primary care physician had been treating a hearing-impaired woman for several years without employing a sign language interpreter. When the patient's hearing deteriorated to complete deafness, the patient requested that the physician provide an interpreter, which he did on one occasion. Afterward, the physician mailed payment to the interpreter but included the following letter, a copy of which the physician also sent to the patient [12]:
The Medicare payment for Mrs. Mayberry's office visit has been received, and I would like to explain why I won't be able to utilize your services in the future, or indeed why I really can't afford to take care of Mrs. Mayberry.My regular fee for a 15-minute office visit is $40. I spent about 45 minutes with Mrs. Mayberry on December 12, 1992, for this I was paid $37.17 by Medicare and (hopefully) $9.29 by Mrs. Mayberry. My office overhead expense is a rather steady 70% of my gross receipts, which means that for 45 minutes I was able to "pocket" $13.94, that is, until I paid your bill for $28.
I certainly hope that the Federal government does not further slash this outrageous profit margin.
Although not reaching a decision on the merits of the case itself, the court ruled that the letter and other evidence gave rise to the inference that discrimination had taken place. The court noted that this shifted the burden of proof to the defense, which now had to prove that there had been no discrimination. Furthermore, the court rejected outright the defendant physician's contention that he could not afford the services of an interpreter, noting that the defendant himself had said during a deposition that the practice as a whole could absorb the cost. This case has been cited by various commentators as the basis for the argument that the determination of whether the cost of an interpreter represents an undue financial burden to a medical practice should be made by examining the resources of the medical practice as a whole, not the individual patient encounter with a hearing-impaired individual [12].
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offices, or freestanding clinics, are subject to the provisions of the ADA and the Rehabilitation Act. Risk management in radiology can enhance patient care while lessening the likelihood of incurring a medical malpractice lawsuit and maximize the chances of a successful defense if a suit is filed. The following risk management pointers will help radiologists meet all of these objectives and assist them in determining a proper course of action when treating a hearing-impaired or otherwise disabled patient.
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