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Malpractice Issues in Radiology |
1 Department of Radiology, Rush North Shore Medical Center, 9600 Gross Point Rd., Skokie, IL 60076, and Rush Medical College, Chicago, IL 60612.
Received August 4, 1999;
accepted after revision August 11, 1999.
Case summaries are based on actual events and lawsuits, although certain
facts have been omitted or modified by the author, who has supplied and
authorized reproductions of the radiologic images. All opinions expressed
herein are those of the author and do not necessarily reflect those of the
American Journal of Roentgenology or the American Roentgen Ray
Society.
The Cases
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The next morning, a staff radiologist reviewed the chest radiograph and issued a written interpretation that stated, in part, "Infiltration in the right lower lobe consistent with pneumonia" (Fig. 1A). At the time this interpretation was rendered, the radiologist had only the current radiograph. By looking at the patient's record, he noted that the patient had undergone two previous chest radiographic examinations. 1 and 3 years earlier. The previous radiographs were unavailable because they were stored off-site; however, the radiologist was able to review the previous radiology reports, both of which reported normal findings.
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Four days later, the patient was brought to the radiology department for follow-up radiography. On this occasion, a second radiologist interpreted the radiographs as disclosing "No significant change in appearance of right lower lobe pneumonia when compared to previous study 4 days ago" (Figs. 1B and 1C). Having clinically improved, the patient was discharged from the hospital the next day by her attending physician.
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Two years later, the patient underwent chest radiography at another hospital. There, radiographs revealed a 3-cm-diameter mass in the right lower lobe (Fig. 1D). Biopsy specimens revealed mucoepidermoid carcinoma. The patient was treated with surgery and chemotherapy. Soon thereafter, the patient filed a medical malpractice lawsuit against the radiologists and the attending physician, claiming that their negligence delayed the diagnosis of her lung cancer and "significantly diminished the chance of cure." Currently, the patient is alive and free of apparent disease.
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The medical-legal issues in the case crystallized as discovery proceedings ensued. A review of the two chest radiographs obtained in previous years revealed that, in retrospect, ill-defined opacities could be seen in the right lower lobe, even though the radiographic findings were initially reported as normal (Figs. 1E and 1F). The radiologist who had interpreted these radiographs was not sued. The plaintiff claimed that the defendant radiologist who interpreted the admission radiograph was negligent because he failed to compare the radiograph with those that had been obtained previously. If he had compared them, the plaintiff alleged, the defendant radiologist would have seen that a similar infiltration was previously present, and would have raised the possibility that the current infiltration represented a tumor rather than pneumonia. A similar claim was levied against the defendant radiologist who read the follow-up radiographs 4 days later. With regard to the attending physician, the allegation of negligence consisted of the fact that the physician failed to order follow-up radiographs.
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The positions of the defendants were straightforward. Neither defendant radiologist believed that he did anything wrong. The defendant radiologist who interpreted the admission radiograph contended that he was unable to make comparisons with the previous radiographs because they were unavailable, and besides, he had no reason to seek them out because they were interpreted as normal. Furthermore, the current radiographs revealed what appeared to be obvious pneumonia.
The defendant radiologist who interpreted the follow-up radiographs also felt that he had conducted himself appropriately. He compared the current radiographs with the radiograph that had been obtained 4 days earlier, documenting that there had been no change in the pneumonia. He believed that he had no further duty. The attending physician felt no need to order follow-up radiographs because the radiographic and clinical findings pointed to pneumonia, the patient later improved, and the patient never exhibited recurrent symptoms while under the care of the attending physician.
Expert witnesses who supported these respective positions were retained by both the plaintiff's and the defense attorneys. Attempts to settle the malpractice lawsuits proved futile, and thus the lawsuit proceeded to a jury trial.
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Under cross-examination, the plaintiff's expert was asked whether the standard of radiologic care required that comparison be made with all previous radiographs, or whether comparison with merely the most recent examination was adequate. The expert was adamant that the defendant radiologists were required to take steps to determine the existence of any prior radiographs and to make full and complete comparisons with them. The expert insisted that a perusal of the medical records in the radiology department would have alerted the defendant radiologists to the fact that previous radiographs were available, and it was their duty to compare the current images not only with the most recently obtained images, but also with all previous "normal" images to establish a "sufficient baseline."
A defense radiology expert testified to the contrary. The expert maintained that both defendant radiologists complied with the standard of radiologic care. He agreed that the defendant radiologists correctly interpreted the two chest radiography examinations obtained while the patient was in the hospital, emphasizing that it was entirely reasonable for any radiologist to conclude that the presence of an opacity on chest radiographs of a young nonsmoker with no family history of cancer would not indicate anything but pneumonia. The defense expert reiterated that neither one of the defendant radiologists had the clear-cut obligation to make comprisons with previously obtained radiographs because the findings on the current radiographs were consistent with pneumonia.
Oncologists offered testimony regarding the prognosis of the patient, and the degree to which, if any, survival was diminished by delayed diagnosis. The plaintiff's oncology expert testified that the failure to diagnose the mucoepidermoid carcinoma at the time of the initial hospitalization "set the stage" for a grim future for the patient; the defense oncology expert testified that the delay did not adversely affect the prognosis.
After the trial concluded, the jury deliberated and rendered its verdict. The jury found that both defendant radiologists were negligent and awarded the patient $4.5 million. The attending physician was found innocent of any wrongdoing [1].
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Whatever the reasons that moved the jury to do what it did, the trial in this case is over. Future trials dealing with the same issues might end differently, but the fact remains that the jury in this case held the defendant radiologists negligent for not comparing new radiographs with all previously obtained radiographs. The defendant radiologist who interpreted the admission radiograph was found liable because he did not compare the radiograph with previously obtained images, even though those radiographs were unavailable because they were stored off hospital premises, and written reports of those radiographs indicated that they had normal findings. The defendant radiologist who interpreted the follow-up radiographs was found liable on a slightly different basis—he compared the current study with the most recent one, but failed to compare it with all studies obtained in previous years. Let's analyze these overlapping yet subtly different issues.
The standard of care against which the conduct of a radiologist is measured in a malpractice trail is determined by a jury, but jurors are educated as to what constitutes this standard of care by expert witnesses retained by the respective attorneys for the plaintiff and defense [2]. In the past, expert witnesses based their opinions almost exclusively on their own training, experience, and observations; however, in recent years, expert witnesses have placed greater reliance on standards published by the American College of Radiology (ACR).
Although it is a generally accepted principle in the radiology and legal communities that radiologists have a duty to compare current radiographs with previously obtained radiographs [3], there emerged in this trial subtle nuances regarding this duty—nuances that can be high-lighted by certain of the ACR standards. The applicable standards are the "Standard for Communication: Diagnostic Radiology" [4] and the "Standard for Performance of Pediatric and Adult Chest Radiology" [5]. The former states, in part, "Comparisons with previous examinations and reports, when possible, are a part of the radiologic consultation and report." The latter states, in part, "It is important that new films be compared with prior chest examinations and other pertinent studies that may be available." With regard to the defendant radiologist who interpreted the admission radiograph, the operative phrases are "when possible" and "studies that may be available." In this case, the defense felt that the previously obtained radiographs were unavailable and that it was impossible to obtain them before rendering an interpretation. The radiology expert witness and attorney for the plaintiff disputed this, of course, and argued that the radiologist had an affirmative duty to seek out and review the previous radiographs before rendering an interpretation.
What is the true standard of care as it relates to the radiologist defendant who interpreted the initial radiograph? No absolute standard of radiologic care is applicable to this question. As has been pointed out, the standard of radiologic care in a courtroom is determined by the jury, and the jury in this case found that the defendant radiologist was responsible for obtaining previous radiographs to compare with the current study.
The question regarding the radiologist defendant who interpreted the follow-up radiographs was slightly different. That radiologist compared current radiographs with the admission radiographs; however, the radiologist did not compare the follow-up radiograph with previously obtained radiographs that now might be available. Here, the operative phrases in the two standards quoted previously are the plural forms of "previous examinations and reports" and "prior chest examinations and other pertinent studies." The defendant radiologist compared current radiographs with the single most recently obtained examination and study, but not with all previously obtained examinations and studies. Did the defendant radiologist therefore violate the ACR standard? The defendant radiologist and the radiology expert for the defense testified that the standard of radiologic care was adhered to; however, the plaintiff's expert contended that the standard had been breached. Again, the jury sided with plaintiff.
Those seeking definitive answers to the questions raised in this case regarding comparison with previous radiologic examinations will not find them. To be sure, the radiology community accepts the premise that the standard of radiologic care requires comparison of new radiographs with those obtained previously, and the radiology literature supports this premise [6]. However, how this general acceptance is applied to a specific case is unclear. In 1988, Hunter and Boyle [7] wrote, "All radiologists believe it is important to review a patient's previous radiographs, at least the latest ones, before officially interpreting a study." (Italics added.) This statement, while undoubtedly reflecting the view shared by virtually all practicing radiologists, hardly adds clarity to the question of whether all previously obtained radiographs, or just the most recent, should be compared with current studies. Even the message sent by the jury in this case—namely, that current radiographs must be compared with all previously obtained radiographs—is clouded by the fact that there was conflicting testimony about what was revealed when the radiographs obtained in previous years were reviewed. The plaintiff's radiology expert testified that the right lower lobe infiltration had been present, but missed, on the radiographs that were obtained 1 and 3 years earlier. The defendant radiologists and the defense expert attempted to convince the jury that the infiltration that later proved to be carcinoma was unclear on the earlier radiographs, and that even if the defendant radiologists had looked at those radiographs during the patient's hospitalization, they would not have changed their diagnosis of pneumonia. As has already been pointed out, the radiologist who rendered the interpretation of the radiographs obtained in previous years was not named as a defendant in the lawsuit. In a discussion held after the jury had rendered its verdict, the defense speculated that the jury levied high compensatory damages because it was attempting to blame the defendants, in the absence of anyone else to blame, for what the jury perceived to be incorrect interpretations of the earlier radiographs.
The fact that the jury exonerated the attending physician is noteworthy. The attending physician was charged with negligence because he never ordered follow-up radiographs after the patient's discharge from the hospital. The attending physician had defended his actions by stating that he relied heavily on the opinion of the radiologists that the patient had pneumonia, and the patient's symptoms later resolved to the extent that there was no reason to order additional imaging. By attributing all the liability to the two defendant radiologists, the jury obviously accepted the referring physician's argument.
Let's look at one more issue: whose fault was it that the radiographs obtained in previous years were unavailable? In his court testimony, the defendant radiologist who interpreted the admission radiograph claimed that he was unable to make comparisons with the radiographs obtained in previous years because those radiographs were stored off-site. The defendant radiologist maintained that it was the hospital administration, not the radiologists, that established the policy of storing radiographs away from the hospital because the hospital had limited storage space. Therefore, the defendant radiologist contended that he had no choice but to interpret the admission radiograph without comparing it with previously obtained images. However, the plaintiff's radiology expert rebutted that argument, asserting that the defendant radiologist had an independent duty to compare, regardless of hospital policy.
It is true that radiology technologists and other radiology department personnel employed by a hospital are generally considered to be agents of their employer; however, under certain circumstances, fee-for-service independently practicing radiologists can be held vicariously liable for the acts of these employees [8]. If it can be shown that the radiologist maintained any degree of control over the actions of the hospital-employed personnel at the time of the adverse occurrence, then these personnel could be considered "temporary servants" of the radiologist, thus making the radiologist liable for negligent acts committed by these temporary employees. Furthermore, if it can be shown that the radiologist had input into the establishment of any of the radiology department policies, the radiologist might also be held at least partially, if not totally, liable for any injury caused by them.
With the approach of the new millennium, radiologists are incorporating into their practices a variety of technological advancements, one of which is PACS (picture archival and communication systems). As these systems gain more widespread acceptance and use, the problem of obtaining previous radiographs should eventually resolve. Undoubtedly, the day will come when all radiographs are stored in a computer chip and are available to a radiologist interpreting new studies with a simple click of a button or computer mouse. Then radiologists will have no excuse for failing to make full and complete comparisons.
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Risk management in radiology can lessen the likelihood of incurring malpractice lawsuits and maximize the chances of a successful defense if a lawsuit is filed, while at the same time enhancing good patient care. The following risk management pointers will help radiologists meet these three objectives.
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