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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 May 31, 2001;
accepted after revision June 4, 2001.
Case summaries are based on actual events and lawsuits, although certain
facts have been omitted or modified by the author. 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 Case
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The law firm collected the chest radiographs, numbering in the hundreds, and delivered them to a radiologist qualified as a "B" reader with whom the law firm had contracted to interpret the radiographs and determine whether findings of asbestosis were present. The radiologist was office-based and was paid a fixed fee for each radiograph interpreted.
The radiologist interpreted the 65-year-old man's posteroanterior chest radiograph as, "Rule out carcinoma, right mid-lung field; no asbestosis; cardiomegaly with evidence of previous bypass surgery" (Fig. 1A). The radiologist informed the law firm of his findings, suggesting that the patient be told to see a family physician. However, the law firm never informed the patient of the abnormal radiographic findings or of the recommendation to see a physician. The radiologist never saw the individuals whose radiographs were being reviewed, and in fact was not given any information about the individuals other than their names.
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Approximately 18 months later, the patient consulted his family physician because of chest discomfort, cough, and weight loss. Chest radiographs were obtained at a nearby hospital and interpreted by a radiologist as disclosing a 6 x 8 cm mass in the right lung (Fig. 1B). Biopsy disclosed adenocarcinoma. Despite extensive chemotherapy, the patient died 8 months later.
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The family of the deceased patient filed a medical malpractice lawsuit against the law firm and the radiologist. In addition to claiming that the law firm was negligent for failing to inform the patient of the abnormal radiographic findings and the recommendation to see a local physician, the lawsuit alleged that the defendant radiologist was negligent because he failed to communicate the abnormal results of the chest radiography directly to the patient. As a consequence of the defendant radiologist's "deviation from minimum standards of professional care," the lawsuit claimed, the patient was "caused to sustain great physical, mental, and emotional injury, pain and suffering, and death."
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A federal court of appeals upheld the dismissal of the defendant radiologist, explaining its decision as follows [1]:
In West Virginia, as elsewhere, the essence of a medical malpractice action is a physician-patient relationship. Generally, it is axiomatic that unless such a relationship is established, a legal duty cannot exist between the parties. West Virginia makes clear that a physician has no liability to an examinee for negligence or professional malpractice absent a physician-patient relationship, except for injuries incurred during the examination itself. Thus, to establish liability on the part of the defendant-radiologist, the plaintiff would have to demonstrate either that there was a physician-patient relationship...or that the plaintiff was injured during an examination itself. Because the plaintiff was not examined and therefore not injured during any examination, the only question in this case is whether there was a physician-patient relationship between the patient and the radiologist. We hold that there was no such relationship.The defendant-doctor was retained by a law firm to give that firm consulting advice about which employees would qualify as plaintiffs in their solicitation efforts for asbestos litigation. None of these employees x-rayed retained the doctor or even saw the doctor. Indeed, none of them even knew who the doctor was. Similarly, the doctor had no medical information about any of the individuals, nor even their addresses or telephone numbers. The doctor was retained as litigation consultant and was simply provided stacks of x-rays, with the name of an employee on each x-ray, so that [it could be determined] whether the employee would qualify as a plaintiff in an asbestos lawsuit.
Because there was no physician-patient relationship, the plaintiff cannot maintain an action against the radiologist for medical malpractice.
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Although radiologists generally communicate their findings solely to the physicians who are rendering care to the patient, under certain circumstances, radiologists are expected to communicate findings directly to the patient. The ACR Standard for Communication: Diagnostic Radiology spells out one such circumstance [4]:
In those situations in which the interpreting physician feels that immediate patient treatment is indicated (e.g., tension pneumothorax) the interpreting physician should communicate directly with the referring physician.... If that individual cannot be reached, the interpreting physician should directly communicate the need for emergent care to the patient or responsible guardian, if possible.
In addition to the widely accepted dictum that radiologists should communicate directly with patients when emergent abnormalities are encountered, there is one other noteworthy situation in which radiologists must directly inform patients of examination results: mammography. The Mammography Quality Standards Act mandates that [5]:
Each [radiologic] facility shall send each patient a summary of the mammography report written in lay terms within 30 days of the mammographic examination. If assessments are "suspicious" or "highly suggestive of malignancy," the facility shall make reasonable attempts to ensure that the results are communicated to the patient as soon as possible.
Other situations may exist in which, as pointed out by Ohrt on behalf of the Committee on Ethics of the American College of Radiology [6], a radiologist's disclosure of examination results directly to patients seems both ethically and legally appropriate. An increasing percentage of the public would like to receive results of radiologic examinations directly from the radiologist, according to a survey of women who had just undergone mammography. The survey revealed that more than 90% wanted the radiologist to give them the radiographic results directly on site, regardless of whether the findings were normal or abnormal [7].
The Doctor—Patient Relationship
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An Arizona appeals court in 1995 reached a similar conclusion when it also refused to recognize that a physician examiner contracted by a third party owed any legal duty to an examinee [9]:
A medical malpractice suit such as this will lie only when there was a doctor-patient relationship creating a duty to act for the patient's benefit.... We do not understand the law to be that one owes a duty of reasonable care at all times to all people under all circumstances. The common law has not been stretched that far yet.... Where a doctor, as here, conducts an examination....solely for the purpose of [evaluation]...and the doctor neither offers nor intends to treat...the doctor is not liable for negligence in a suit for medical malpractice. His duty to use a professional standard of care in making the examination and in preparing the report runs only to the party requesting it.... Even assuming that [the doctor's] conduct fell below the standard of care, it was a breach of duty owed to the [party that retained the doctor], not to [the patient].
While the defendant radiologist in this article as well as the physician in the Arizona case are justified in feeling relieved by having been granted immunity from liability, others in the radiology community may not be treated as favorably by the courts when confronted with similar fact situations. As has been pointed out before, for public policy reasons, courts tend to favor compensation for persons alleging injury from medical malpractice by giving them considerable leeway in the evidence required to establish the existence of a physician—patient relationship [2, 8].
For a variety of reasons, radiologists may find themselves interpreting radiographs not at the behest of the patient or the patient's referring physician, but rather, of a third party. The third party may be an employer who requires radiographs to determine eligibility for employment. An insurance company may request radiographic studies to determine the insurability of a potential policyholder. A government agency may need radiographic studies to determine whether an applicant qualified for medical disability, Social Security, or workers' compensation benefits. Other entities may have reason to request radiographs, as in the case of the law firm that offered chest radiographs to qualify potential plaintiffs for inclusion in a class action lawsuit. In all of these situations, radiologists who are called upon to interpret radiographs are clearly retained and compensated by a third party—one that is completely unrelated to the patient or referring physician.
Under the circumstances described, is a physician—patient relationship established between the person undergoing radiography and the radiologist?
This question is secondary to an even more important question, one that is highlighted by the case described in this article: If a radiologist contracted by a third party to interpret radiographs finds a significant abnormality, is the radiologist obligated to communicate the finding to the patient, or is the radiologist's obligation wholly satisfied by communicating the finding to the third party? Courts in West Virginia and Arizona determined that without the presence of a physician—patient relationship, the radiologist has no duty to communicate findings directly to the patient. A review of other court decisions, however, suggests that a trend may be emerging in the judiciary to fashion a physician—patient relationship where none has traditionally existed, thereby greatly expanding radiologists' communication duties.
A 1974 decision of a federal appeals court for the District of Columbia represents an early indication of this trend. Before induction, a 20-year-old man was ordered to appear at an Armed Forces examination center for a physical examination that included chest radiography. This man's radiograph was interpreted by a radiologist under contract with the Selective Service System as showing an enlarged mediastinum, suggestive of lymphoma. The potential recruit was rejected by the Armed Services without explanation and was never informed of the radiographic finding. The young man assumed that the rejection was based on an old knee injury. Six months later the patient was diagnosed as having Hodgkin's disease and, despite treatment, soon died. The patient's family sued the federal government, claiming that the radiologist who had been retained by the Armed Services to interpret the chest radiographs violated a duty to inform the recruit of the abnormal radiographic findings. The attorney for the defendant radiologist and the federal government petitioned the court to dismiss the lawsuit because no physician—patient relationship had been established. The court, however, refused to do so, holding that a radiologist's duty to inform the patient of radiologic results did indeed exist [10]:
Under the common law of Maryland, a physician who examines a person may owe that person a duty of good medical care with respect to all aspects of the examination, even if no doctor-patient relationship exists between them.... [There is] a more fundamental rule of long standing under which a physician may incur a tort obligation which is non-consensual. This is the general rule that one who assumes to act even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all.... Selective Service physicians entered [the plaintiff's] life not at his request but through a command, enforceable by penal sanctions, that he appear before them. Having assumed to act, the government physicians were under a duty to act carefully, not merely in the conduct of the examination but also in subsequent communications to the examinee....It was the doctor's silence that misled the examinee. When a doctor conducts a physical examination, the examinee generally assumes that "No news is good news" and relies on the assumption that any serious condition will be revealed.... [The plaintiff] assumed that the silence of the examining physicians meant that the results of tests they have performed were negative.Under the common law of Maryland, establishment of a doctor-patient relationship imposes upon the doctor the duty to exercise the amount of care, skill and diligence exercised generally in the community by doctors engaged in the same field. Applied to the facts of this case, this standard means that a physician undertaking a physical examination has a duty to disclose what he had found and to warn the examinee of any finding that would indicate that the patient is in danger and should seek further medical evaluation and treatment. This duty is stronger when the physician has no reason to believe that the examinee is aware of the condition and danger.
The Court holds that plaintiff has established by a preponderance of the evidence that [the examining physician and radiologist] owed a duty of care to [plaintiff], that they breached this duty when they failed to notify him of his abnormal x-ray, and that breaching this duty was the proximate cause of his death.
In 1990, the Mississippi Supreme Court faced a case with similar issues. The plaintiff was a man who had sought Social Security disability benefits and whose examination was thus ordered by the Disability Determination Service of the State of Mississippi. Chest radiographs were obtained and were interpreted by a physician as revealing "probable pulmonary malignancy." The physician contacted the state disability determination service with his report and recommended that the patient be told to contact his personal physician. Nevertheless, the patient was not informed of the radiographic findings and, as a result, incurred a prolonged delay in diagnosis and treatment. The patient sued the physician who had interpreted the chest radiograph, but the defendant physician's attorney moved to dismiss the lawsuit because of lack of a physician—patient relationship. The lower court refused to dismiss the defendant-physician, holding that the physician had a duty to communicate the results to the patient. The Mississippi Supreme Court, however, reversed the lower court and dismissed the physician, ruling that there was no duty to communicate because no physician—patient relationship existed [11]:
This Court has uniformly held that a physician-patient relationship must be established in order to make out a case of medical malpractice.... The plaintiff seems to assert, however, that there is some duty owed by the physician to the examinee outside of the physician-patient relationship.... We are not willing to extend or disturb the established rule in this state.... No relationship of physician and patient existed between the examinee and the physician,...The physician breached no duty owed to the examinee.
In what turned out to be prophetic of the emerging judicial trend, one supreme court justice issued a strong dissenting opinion [11]:
We are presented with one issue only: whether a "non-traditional" doctor-patient relationship is created when a physician examines an individual at the request of a third party, and if not, whether a doctor owes a duty despite the absence of a doctor-patient relationship. Under the circumstances of this case, I would find that the doctor owed the patient a duty to act with reasonable care regardless of the existence of a doctor-patient relationship. When the physician examined the patient, a relationship was established to the extent that the patient could reasonably expect the doctor to notify him of a life threatening condition which required immediate treatment.... It is unconscionable to deny recovery for damages caused to an examinee by a physician's negligence when the physician has acted positively in examining an individual at the request of and payment by a third party.The doctor examined the patient at the request of the Disability Determination Service. The doctor took a chest x-ray of the patient and while reading the x-ray discovered a spot on the patient's lung which indicated that the patient likely had a malignant tumor. Regrettably the service did not relay the message to the patient.... One who undertakes, gratuitously or for consideration, to render services to another...is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking.... The law imposes upon every person who undertakes the performance of an act...the duty to exercise the sense and the intelligence to avoid injury, and he may be held accountable at law for injury attributable to a breach of such duty.
Because the doctor took positive action in undertaking to examine the patient, I have no difficulty extending the standard of care from the "traditional" doctor-patient relationship.... I would find that by undertaking to act a duty was created under our general laws of negligence to act as a reasonable and prudent person.... Thus,...once a life-threatening condition unknown to the examinee was discovered, [the doctor had] a duty to disclose any abnormal findings.
The dissenting opinion was adopted two years later by the full supreme court of Mississippi when it ruled in a case again addressing the question of whether a physician owes a duty to a patient when no traditional physician—patient relationship exists. The court ruled that a physician can be held liable for negligence even in the absence of an established physician—patient relationship [12]:
In the [earlier case] [11] the Court held that an examining physician owes no duty to an examinee in the absence of a physician-patient relationship.... In the instant case, we expressly hold that liability is not negated by the absence of a doctor-patient relationship. This holding represents a 180-degree about-face from [the earlier case].... Today we are holding that whenever physicians or other medical personnel undertake the responsibility of providing healthcare, they subject themselves to potential liability under the medical negligence cause of action. The existence of a doctor-patient relationship is not a prerequisite to recovery.
A federal appeals court in the state of Washington reached similar conclusions in 1991. There, a radiologist employed by a Veterans Administration hospital interpreted a chest radiograph obtained on a man as part of a physical examination for employment. The radiologist noted an abnormality that later proved to be sarcoidosis. However, the patient was never informed of the findings, and it wasn't until 4 years later that the diagnosis was established. Alleging that the delay in diagnosis caused permanent injury to his health, the patient sued the radiologist and his employer for malpractice. The patient was awarded damages at the trial court level, but the case was appealed. A federal appeals court affirmed the award of damages, ruling that the radiologist had breached a duty to communicate with the patient [13]:
In the setting of a pre-employment examination, where the physician-patient relationship does not yet exist, at a minimum, the radiologist should have notified [the plaintiff] of the abnormality. This duty is hardly burdensome and recognizes that those who place themselves in the hands of a person held out to the world as skilled in a medical profession, albeit at the request of one's employer, justifiably have the reasonable expectation that the expert will warn of any incidental dangers of which he is cognizant due to his peculiar knowledge of his specialization....By failing to inform [the plaintiff] of the abnormality, the radiologist prevented [the plaintiff] from halting the progress of the disease at an early stage.
Five years later, a New Jersey appellate court reached a similar conclusion. In a case involving a patient who was ordered to undergo an eye examination as part of an evaluation for Social Security disability benefits, a state-appointed ophthalmologist failed to diagnose what was later claimed to be an obvious tumor involving the optic nerve. The patient sued the ophthalmologist for negligence, but a lower court dismissed the ophthalmologist from the lawsuit because it determined that no physician—patient relationship existed between the parties. The appellate court reversed, stating [14]:
The linchpin of the defendant-ophthalmologist's argument is that since he was retained by [the state] to examine plaintiff on its behalf and to report only to it, there was never a physician-patient relationship between him and the plaintiff.... There is nothing in the common understanding of the community regarding medical professional standards that would immunize a physician from liability for a professionally unreasonable diagnosis to the substantial detriment of the examinee, even if the examination is made at the expense and behest of a third party.... Even though a third-party examination does not create a physician-patient relationship within the full meaning of that term, we believe that a physician in the exercise of his profession examining a patient at the request of an employer owes that person a duty of reasonable care....A relationship between the examining physician and the examinee...imposes upon the examining physician a duty to conduct the requested tests and diagnose the results thereof...and to take reasonable steps to make information available timely to the examinee of any findings that pose an imminent danger to the examinee's physical or mental well-being.... Indeed, we would think that a physician's professional and ethical obligations imposed by the license to practice would demand no less.
Although some courts have imposed on radiologists who have been retained by third parties to examine radiographs the duty to communicate results of those radiographs directly to patients, this duty may not extend toward nonmedical entities such as insurance companies. This distinction was made clear in a 1996 federal appeals court decision in Mississippi. There, a patient's application for life insurance was rejected by the insurance company because the patient's blood tested positive for HIV virus. The insurance company never advised the patient of the reason for the denial of insurance. The patient alleged that medical treatment was compromised because he had not been informed of the HIV-positive blood test. The patient, who later died, sued the insurance company, but the trial court dismissed the company because Mississippi law held that insurance companies had no duty to inform an insurance applicant of the results of a medical examination when the insurer administers the examination only to determine the insurability of the applicant. On appeal, the plaintiff argued that because other courts had held that physicians have a duty to disclose results of examinations to patients with whom no formal physician—patient relationship had been established, insurance companies should be held to the same standard. The federal appeals court upheld the lower court ruling, pointing out in very clear language the distinction between physicians and insurance companies [15]:
Physicians have been found negligent for acts they performed even though no physician-patient relationship existed.... [But this] case is quite different. [The defendant] is not a physician, but an insurance company.... Where a physician is directly involved, people have a right to expect a certain degree of care and disclosure on their health-related matters regardless of whether a doctor-patient relationship exists. Indeed, disclosure to the patient is essential to the treatment and retardation of diseases and other ailments. However, this court is not persuaded...that an insurance company should bear the same burden of care as a physician, i.e. divulging the results of a medical examination. A physician and an insurance company serve two different purposes in our society. A physician is sworn to protect and respect human life. An insurance company, on the other hand, by insuring those individuals it perceives as "insurable," is here to soften the blow of natural and artificial disasters, be it death, fire or flood. To hold insurance companies to the same standard as physicians would be to expect expertise on health-related matters from an entity which hasn't the knowledge or the resources....
The most recent judicial perspective concerning the duty owed by a third-party radiologist to a patient whose radiographs have been interpreted can be found in a 2001 decision of the New Jersey Supreme Court. The court decision is not crystal-clear. In this case, a construction worker underwent a physical examination that included chest radiography as part of a job application. The examination was conducted by a family physician, but the radiography was interpreted by a radiologist. The radiologist noted abnormalities suggestive of lymphoma and recommended CT. The radiologist gave a written report to the family physician, but the physician never conveyed the report to the patient. Six months later the patient was diagnosed as having Hodgkin's disease, and 8 months after that, the patient died. A malpractice lawsuit was filed against both the examining physician and the radiologist, and a jury found in favor of the plaintiff. The defendant physicians appealed, first to an appellate court that affirmed the jury decision, and then to the state supreme court, which also affirmed [16]:
Most jurisdictions adhere to the traditional malpractice model in which the absence of a classic physician-patient relationship results in the physician owing no duty to the examinee to discover and disclose abnormalities or conditions.... [But] when a person is referred to a physician for a pre-employment physical, a physician-patient relationship is created at least to the extent of the examination.... A professionally unreasonable examination that is detrimental to the examinee is not immunized from liability because a third-party authorized or paid for the exam. Included within the notion of a reasonable examination is the need to take reasonable steps to make information available timely to the examinee of any findings that pose an imminent danger to the examinee's physical or mental well-being.... The physician performing a pre-employment physical examination under contract to a third party....has a responsibility to inform the patient about important abnormalities that he or she discovers during the course of the examination.... Whatever else [the patient] might reasonably have expected of the doctor performing his pre-employment physical, he had an absolute right to expect that he would be told if something was wrong. No contract by the doctor with a third party could relieve [the doctor] of that obligation.
Although the New Jersey Supreme Court was quite clear in imposing upon the examining physician a duty to disclose abnormal findings to the patient, the court, without offering any explanation, refused to impose the same duty on the radiologist who had interpreted the radiography by adding the following opinion footnote [16]:
Nothing in this opinion should be viewed as requiring a physician to whom a patient has been referred by an examining physician for diagnostic tests (for example a pathologist or radiologist) to convey the test results directly to the patient.
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The ACR Standard for Communication [4], which states that radiologists who find significant radiographic abnormalities or abnormalities that require immediate treatment should communicate these findings directly to the referring physician, or to the patient if the referring physician is not available, makes no reference to the physician—patient relationship. While the courts draw a distinction between the radiologist's duty to communicate directly to patients when a physician—patient relationship exists and the radiologist's duty to communicate directly to patients when a physician—patient relationship does not exist, the ACR standard makes no such distinction. This important difference could serve as the basis for a persuasive argument in a malpractice lawsuit, particularly if the argument is made before a jury, that a defendant radiologist owes a duty to communicate radiographic abnormalities to a patient in the absence of a referring physician, even if the radiologist is interpreting the patient's radiographs at the behest of a third party.
Risk management in radiology practice can lessen the likelihood of incurring a medical malpractice lawsuit and maximize chances for a successful defense, if a suit is filed, by enhancing good patient care. The following risk management pointers will help radiologists meet these objectives:
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