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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 July 26, 2001;
accepted after revision August 21, 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.
Introduction
 Top Introduction The Traditional Role of...The Judicial PerspectiveStandards and ComplianceApprising Patients Directly of...The Courts, the Government,...Consumerism and the Public's...Medical Errors and the...Summary: Whither Goest the...References |
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Radiologist (R). The signature is mine, and the report states, "Poorly defined density with irregular borders in right upper lung. Suggest CT for further evaluation."
A. How did you communicate the report to the referring doctor?
R. Well, after I signed the report, it was then printed and distributed to the patient's chart, and a copy was mailed to the referring physician.
A. Did you directly communicate the report to the referring physician in person or by telephone?
R. No, I didn't.
A. Doctor, I hand you another report describing a chest X ray taken on the same patient 14 months later, and I ask you whether the report bears your signature, and, if so, to read the report aloud.
R. The signature is mine, and the report states, "There is now a large tumor mass in the right upper lobe with hilar and mediastinal adenopathy. Findings are consistent with carcinoma."
A. Are you aware that the referring physician claims that he never received the first X-ray report, therefore had no reason to order tests or follow-up X rays on the patient until 14 months later, when she came to see him complaining of cough and weight loss, and that the patient died 6 months after that?
R. Yes, I am.
A. I now hand you a document and ask you to read aloud the portions that I have underlined.
R. "ACR Standard for Communication: Diagnostic Radiology.... If there are urgent or significant unexpected findings, radiologists should communicate directly with the referring physician."
A. Is it your understanding that the word "direct" means that you should have spoken in person or by telephone to the referring physician to inform him of the findings?
R. I don't know. It seems to me that if I try to call the physician and am unable to reach him right away, and I get busy doing other things, the physician should call me to discuss the findings. After all, it's the physician who orders the chest film to begin with, and it doesn't make sense to me that he would order it and not wonder what the findings are.
A. So it's your position that once you dictated and signed the report, you did everything you think needed to be done in this case?
R. Yes, I don't think I did anything wrong or could have done any more.
A. So you expect the jury to find that even though you violated the standards of your own American College of Radiology by failing to directly inform the patient's physician that she might be harboring early lung cancer, and even though you caused the delay in diagnosis of and treatment for the patient's lung cancer which led to her death, you're not guilty of malpractice?...
Dialogues similar to this one are occurring with increasing frequency between plaintiff's attorneys and defendant radiologists in discovery depositions and courtroom testimonies throughout the nation. The reason is self-evident: Malpractice lawsuits alleging failure of communication of radiologic results are prevalent and becoming more so. One analysis of court transcripts disclosed that communication problems were present in more than 70% of depositions obtained on plaintiffs in malpractice cases [1]. Another study revealed that breakdown in communication was found to be a causative factor in as many as 80% of malpractice lawsuits [2]. A survey categorizing causes of malpractice litigation involving radiologists released in 1997 by the Physician Insurers Association of America and the American College of Radiology (ACR) was more specific. It found that the number of medical malpractice claims alleging communication failure had grown to become the fourth most frequent primary allegation against radiologists [3]. This survey also disclosed that in nearly 60% of malpractice lawsuits involving radiologists, the referring physician had not been directly contacted regarding urgent or significant unexpected findings, even though in 75% of these cases, the medical record had shown that a radiology report was issued in a timely manner.
A more recently conducted cumulative analysis of radiologic malpractice lawsuits filed in the United States from January 1985 through December 2000 disclosed that the medical-legal issue of poor communication between providers resulted in the second highest average and third highest total amount of indemnification paid to plaintiffs (Physician Insurers Association of America, unpublished data). That communication issues as a source of radiologic malpractice litigation are on the rise is also illustrated by a study, conducted by a malpractice insurance consultant and the Florida Radiological Society, of radiologic malpractice lawsuits filed in the state of Florida from 1997 through 1999. The study disclosed that approximately 75% of claims against radiologists stemmed from various sorts of errors in communication (Gracey M, personal communication).
To understand why malpractice litigation involving radiologic communication has moved to center stage in the legal arena and speculate as to the direction it will move in the future, it is helpful to look from a historical perspective at how the radiologist's role of communicator in relation to the referring physician and patient has changed over the years.
The Traditional Role of the Radiologist
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TopIntroductionThe Traditional Role of...The Judicial PerspectiveStandards and ComplianceApprising Patients Directly of...The Courts, the Government,...Consumerism and the Public's...Medical Errors and the...Summary: Whither Goest the...References |
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Perhaps it was the advent of screening mammography that changed traditional thinking. Radiologists who had been accustomed to interpreting radiographs obtained on patients who had been referred by physicians because of specific clinical symptoms or signs were now asked to interpret mammograms on asymptomatic patients who were being referred merely for screening purposes, and in some cases not even being referred by a physician. The difference was clear: In the traditional referral, the referring physician suspected an abnormality, actively awaited the radiologic results, and was likely to follow up with the radiologist if a written report was not forthcoming in a timely fashion. In the case of mammography screening, however, the patient would have no clinical sign or symptom; it was likely that both the physician and patient expected the radiology report to reveal normal findings, and, therefore, they might not actively seek the report—thus setting the stage for radiology reports to go astray without being noticed.
The failure of referring physicians to receive radiology reports describing serious abnormalities in a timely fashion had its effect on medical malpractice litigation. Before the mid 1980s, lawsuits related to communication lapses between radiologists and referring physicians were quite rare [6]. At about that time, however, lawsuits alleging failure of radiologists to communicate abnormal findings on screening mammograms began to emerge. Perhaps in response, in 1985 the ACR issued its first pronouncement relating to communication of radiographic findings, one that expanded the radiologist's duty to do something more than simply dictate and sign a report. The document, entitled "Policy Statement: Breast Cancer Screening Centers" [7], included the following provisions:
A positive finding should be reported promptly in writing to a physician.... The radiologist must be certain that the result of a positive mammogram is acknowledged by the primary care physician.... In all cases, appropriate acknowledgment of the notification should be sought.
In the following year, Bird and McLelland [8] went further, writing that if a mammogram is suggestive of malignancy, the referring physician should receive a "phone report in addition to the written report." Soon thereafter, other articles appeared in the radiology literature that expanded the radiologist's duty even further, advising radiologists that, in addition to sending formal written reports, they should telephone referring physicians of unexpected significant abnormal findings in all types of radiographic studies [9, 10]. One such article argued that direct telephone contact should be made because "first class mail is not always reliable" and "radiologists frequently cannot depend on the clinician reading a written report" [10].
The ACR issued its first standard referencing communication in 1990, although the standard dealt with mammography. The Standard for the Performance of Screening Mammography stated [11]:
All reports in the high probability category should be communicated to the referring physician or his designated representative by telephone, by certified mail, or communicated in such a manner that receipt of the report is assured and documented.... Self-referred...patients should be notified of the results of the screening study by mail.
The following year the ACR issued its first Standard for Communication: Diagnostic Radiology. It stated [12]:
Some circumstances...may require direct communication of unusual, unexpected, or urgent findings to the referring physician in advance of a formal written report.... The timeliness of direct communication should be based upon the immediacy of the clinical situation.
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TopIntroductionThe Traditional Role of...The Judicial PerspectiveStandards and ComplianceApprising Patients Directly of...The Courts, the Government,...Consumerism and the Public's...Medical Errors and the...Summary: Whither Goest the...References |
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In 1979, an Ohio Appellate Court found that a radiologist had a duty to verbally communicate to a family physician the fact that a patient had sustained an elbow fracture. A 4-year-old child had been taken to a hospital emergency department after an injury and underwent radiography of the arm. The emergency department physician interpreted the studies as showing normal findings, but on the next day, a radiologist found a fracture of the distal humerus. The radiologist dictated the report, but because of a breakdown in communication that was never fully explained, neither the family physician nor the parents of the child were made aware of the fracture for 2 months. The court stated [15]:
The physician—patient relationship is one of special trust and confidence in which the physician has a duty of due care and diligence.... As part of the duty the physician must reveal to the patient that which in his best interest he should know.... [The plaintiffs] argue that the radiologist, although he correctly diagnosed the injury, must share liability if he is found to have failed in adequately communicating the diagnosis so as to reveal the error of the [emergency department] physician.... [The radiologists] argue that the liability of the radiologist stops once he has made a correct medical interpretation that is circulated through established channels of the hospital.... Such a proposition we are unable to accept. As the facts so glaringly reveal, the communication of a diagnosis so that it may be beneficially utilized may be altogether as important as the diagnosis itself.... In certain situations direct contact with the treating physician is necessary.
A New Jersey Appellate Court reached similar conclusions in a 1987 case in which a radiologist appropriately noted a probable carcinoma of the lung on a preoperative chest radiograph obtained on a patient. However, neither the referring physician nor the patient became aware of the finding until 4 months had passed. In concluding that the radiologist could be held liable, the court observed [16]:
In some situations, indirect [medical care provided by radiologists] may provide justification for the absence of direct communication with the patient, but that does not in any way justify failure of communication with the primary care physician.
Similar sentiments were voiced by an Arkansas Appellate Court in 1989 in a case that involved a radiologist's failure to directly communicate to the attending physician the fact that an endotracheal tube had been dislodged, leading to a patient's cardiac arrest. The court stated [17]:
When a patient is in peril of his life, it does him very little good if the examining doctor has discovered his condition unless the physician takes measures and informs the patient, or those responsible for his care, of that fact.... Common knowledge is all that is needed to determine that the x-rays read by [the radiologist at a later hour] clearly demanded that the extubation required immediate attention rather than the normal routine.
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TopIntroductionThe Traditional Role of...The Judicial PerspectiveStandards and ComplianceApprising Patients Directly of...The Courts, the Government,...Consumerism and the Public's...Medical Errors and the...Summary: Whither Goest the...References |
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If there are urgent or significant unexpected findings, radiologists should communicate directly with the referring physician, other healthcare provider, or an appropriate representative who will be providing clinical follow-up.
The 1999 revision of the ACR Standard for Communication: Diagnostic Radiology added more specific language [20]: "Direct communication can be accomplished in person or by telephone to the referring physician or an appropriate representative."
Complying fully with the direct communication provisions of ACR standards can be difficult to achieve. In busy radiology practices, tracking down referring physicians to directly report unexpected significant radiologic findings may not be possible. The problem is further compounded by the fact that often a patient's medical care is not rendered by a single physician, but by one or more additional consulting physicians as well. In such situations, the referring physician—the one who actually orders the radiographic examination and to whom the report should be communicated—may not be clearly identified. The kind of communication confusion that results is commonly encountered with internists and primary care physicians of patients admitted to hospitals by surgeons for various operative procedures. Surgeons often, rightly or wrongly, assume no responsibility for the medical problems of these patients—and that usually includes the results of imaging procedures performed for problems other than those directly related to the operative procedure they are to perform.
New York radiologist Everett Lautin [21] expressed his concerns regarding direct communication to referring physicians in a letter sent to the editor of the American Journal of Roentgenology:
Should the radiologist or staff spend hours every day in a vain attempt to contact the referring doctor? Have you ever tried to contact a physician in a hospital clinic, or a responsible party for a patient who has been discharged from an emergency department? Good luck.
In another letter, Philadelphia radiologist Murray Dalinka explained his concerns this way [22]:
In the new radiology millennium, it is sometimes extremely difficult, if not impossible, to notify our clinical colleagues when abnormalities are found on studies they order. Histories are often vague and almost always incomplete. Radiographs are ordered by physicians who may or may not be in our network or our area. Telephone numbers are often not available, and, when they are, a computer or answering machine often answers. It is not uncommon to spend 20-30 minutes trying to reach a "body" only to find that the one who answers is unaware of anything about the patient, even if the patient is truly theirs. This happens in an environment that is extremely hectic and becoming more so.It is easy to say that we should have more history, complete data as to telephone numbers, and so forth, but in the real world this is not often possible. Radiologists frequently report cases long after the physician has left his or her office.
These two letters realistically reflect the befuddlement, frustration, and exasperation that most radiologists feel about the extent to which this communication duty and associated malpractice litigation have adversely impacted every facet of their day-to-day professional lives. The anguish felt by radiologists is likely to deepen as the number of radiologic examinations increases and the number of radiologists available to provide radiologic services decreases, for these factors are likely to make direct communication with referring physicians even more difficult. It may eventually come to pass that computer technology will develop to the point at which radiography reports, and perhaps even images, can be quickly and accurately transmitted with a click of a button from a radiologist-operated transmitter to a physician-owned, hand-held, receiver. Such sophisticated technology would indeed stem the tide of, if not altogether eliminate, malpractice lawsuits focusing on failed radiologic communication. In the meantime, however, malpractice litigation based on communication issues can be expected to continue and probably increase.
Apprising Patients Directly of Results of Radiologic
Examinations
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TopIntroductionThe Traditional Role of...The Judicial PerspectiveStandards and ComplianceApprising Patients Directly of...The Courts, the Government,...Consumerism and the Public's...Medical Errors and the...Summary: Whither Goest the...References |
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The concept of direct communication of radiologic findings from radiologist to patient was initially generated by the courts, but it is currently being fueled by three sources: the federal government; the consumerism movement; and what can be called, for lack of a better term, entrepreneurial radiology. Let us analyze each of these.
The Courts, the Government, and the Medical Community
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The radiologist should have notified [the patient] 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...justifiably have the reasonable expectation that the expert will warn of [radiographic abnormalities] of which he is cognizant due to his peculiar knowledge of his specialization.
One year later, the Supreme Court of Mississippi also ruled that a radiologist had a duty to communicate abnormal findings directly to the patient [25], and in a 1996 case, a New Jersey appellate court echoed similar conclusions [26]:
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.
The concept of direct communication between radiologist and patient moved from the judicial to the public arenas in 1999, when Congress enacted the Mammography Quality Standards Act [27] that mandated "Each [radiologic] facility shall send each patient a summary of the mammography report written in lay terms within 30 days of the mammographic examination."
Support for direct communication between radiologist and patient has also come from the radiology community. Heather Ohrt, on behalf of the ACR's Committee on Ethics [28], has pointed out that a radiologist's disclosure of examination results directly to patients seems both ethically and legally appropriate. With regard to teaching radiology residents how to improve their communicative skills, Gunderman has observed [29]:
Keeping the patient "in the dark" merely breeds uncertainty and anxiety, as well as a sense of impotence that is antithetical to a strong patient—physician alliance.... Keeping patients informed and involved bespeaks a high level of physician respect that helps to preserve and promote patients' sense of their own vigor and dignity.... Communication deserves every bit as much one-on-one attention as differential diagnosis and catheter technique.
The 1999 revision of the ACR Standard for Communication: Diagnostic Radiology for the first time introduced the concept of direct communication to the patient [20]:
In those situations in which the interpreting physician feels that immediate patient treatment is indicated...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 [italics added] or responsible guardian, if possible.
This paragraph was left unchanged in the 2001 revision of the Standard for Communication [30].
Nonradiology professional organizations also seem to encourage direct communication of results to patients. The American Medical Association's Code of Medical Ethics holds that [31]:
It is a fundamental ethical requirement that a physician should at all times deal honestly and openly with patients. Patients have a right to know their past and present medical status.
The Joint Commission on Accreditation of Healthcare Organizations also emphasized direct communication with patients, when it issued new standards that became effective July 1, 2001, requiring hospitals to inform patients and their families of the outcomes of medical care [32].
Consumerism and the Public's Need to Know
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Adding to the frenzy of the public's need-to-know movement are the numerous radiology facilities that now offer a variety of CT screening tests. Patients are solicited to undergo such examinations with the promise that results will be given directly to them. The radiologist medical director of one CT screening enterprise referred to this phenomenon as [35]:
Something wonderful...the best thing that ever happened to radiology.... "Wellness services" empower people to take charge of their health, [and] will transform the practice of radiology...away from reactive disease care...to an identity in the public's eye as "real doctors." Imagine the ability to actually speak to patients and make a clinical judgment and even a clinical recommendation as to the course of action...and have the satisfaction and reward of directly helping people to take charge of their health.
Still others have called radiologic screening "a quiet revolution," adding that "the demand for screening services is exploding...[and] will in the long run benefit the consumer" [36]. California radiologist Michael Brant-Zawadzki [37] encourages radiologists to directly inform patients of the results of radiologic screening studies, arguing that the public finds value to personal consultations with radiologists. Brant-Zawadzki claims that "radiologists are poised on the edge of a major transformation," and contends:
A 20-minute consultation with a knowledgeable radiologist who has just performed a whole-body scan on an individual for a focused exam with diagnostic purposes with appropriate referral when necessary, is a service that will be deemed valuable in today's consumer market place.... It's clear that the U.S. people want to control their own health care.
Louisiana radiologist Edward Bluth [38] echoes these sentiments, and indeed goes even further:
Patients will be better off if they come directly to the radiologist for evaluation of early diseases...or to determine their risk of developing future problems.... We can identify these potential problems, suggest alternate behavior or lifestyles, identify lesions at an early treatable stage, and take a more dominant role in the health of our patients. In this new century, as radiologists, we must be not only a physicians' physician but also a patient's physician.
The public's need to know is reinforced on a regular basis. An issue last year of a popular lay magazine, People, included a two-page advertisement, paid for by the United Health Foundation, that focused on the subject of medical errors [39]. Headlined "Errors in the Healthcare System Are a Growing Concern," the ad provided information in the form of tips from "medical and patient safety experts" that it said can keep the public "safe." Tip no. 5 stated: "If you have a test, be sure to call and get the results. No news is not necessarily good news."
Although perhaps not envisioned by proponents of the public's need to know and entrepreneurial radiology movements, a major side-benefit may emerge from the practice of radiologists' reporting the results of radiographic examinations directly to patients: the reduction, if not the elimination, of malpractice lawsuits alleging failure to communicate urgent or significant radiographic abnormalities. Let us delve further by turning our attention to the subject of medical errors.
Medical Errors and the Systems Approach
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TopIntroductionThe Traditional Role of...The Judicial PerspectiveStandards and ComplianceApprising Patients Directly of...The Courts, the Government,...Consumerism and the Public's...Medical Errors and the...Summary: Whither Goest the...References |
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The 1997 Physician Insurers Association of America—ACR survey disclosed that a substantial percentage of malpractice lawsuits filed against radiologists were brought by women who claimed they had not been informed that their mammograms had been interpreted as showing findings suspicious for carcinoma [3]. Implementation of the Mammography Quality Standards Act, which mandates as one of its provisions that mammographic results be given directly to patients, has virtually eliminated medical malpractice lawsuits alleging failure of communication of mammographic findings. It is intuitive to believe that direct reporting to patients of results of all radiographic examinations would similarly reduce, if not eliminate, all litigation alleging failure of communication.
On the other hand, it is important to recognize that expanding the duty of radiologists to encompass such activities as discussing findings with patients, presenting them with a "clinical recommendation as to the course of action," suggesting "alternate behavior or life-styles," and making an "appropriate referral when necessary" will hurl radiologists into uncharted medical—legal waters, unleashing a Pandora's box of new malpractice issues. Radiologists are trained to render interpretations of radiologic studies and become board-certified to do so, and standards of radiologic care pertaining to these activities are generally well established. When it comes to rendering medical advice and indulging in clinical management, however, radiologists' training and qualifications become somewhat murky, board certification may not be applicable, and the standards of care against which radiologists participating in such activities will be measured are even murkier.
Even if radiologists were psychologically prepared to report findings of all radiologic examinations directly to patients, setting up systems to do so would not be simple; indeed, myriad problems would be encountered. Sending radiography reports to outpatients who undergo occasional radiographic examination may not be overly burdensome, but devising methods of communicating with patients with serious illness who are hospitalized and who may undergo one or more radiographic examinations a day would be considerably more cumbersome. Would reports for inpatients be sent daily, weekly, or at the end of hospitalization? If patients are unable to comprehend the meaning of radiography reports, to whom would the reports be sent, and who would make the determination to do so? Substantial costs in terms of both additional manpower and tracking systems would be incurred, and the process would entail huge demands on radiologists' time, requiring them to offer explanations to and answer questions from patients and patients' families—people with whom radiologists would otherwise have no personal contact.
Finally, there is the political issue: many referring physicians who have historically believed that it is only they who should transmit radiographic results to their patients might react with displeasure if radiologists communicated results directly to patients. It is true that similar objections raised when the Mammography Quality Standards Act was implemented soon dissipated. However, that practice was mandated by the United States government, not voluntarily implemented by radiologists. Referring physicians who had no choice but to accept government-imposed communication edicts may not be so accepting of similar practices adopted unilaterally by radiologists.
Even if results of radiographic examinations were directly given to patients, the duty imposed by the courts on radiologists to directly communicate urgent and significant unexpected findings to referring physicians is not likely to be set aside. Furthermore, maintaining good patient care and appropriate professional relationships with physicians who are not radiologists would probably still demand that communication between radiologist and referring physician continue. However, communicating radiographic results directly to patients would still provide a safeguard if a written report directed to a referring physician goes astray.
Summary: Whither Goest the Radiologist's Duty to Communicate?
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Thirty-six years ago, New York radiologist Robert Sherman [46] observed:
Until there is a regular personal confrontation between every radiologist and each of his patients, no mechanism, including personal billing, is going to establish the practice of radiology as comparable with that of other physicians in the eyes of the patients in the medical profession. The first principle of ethical radiological practice states that "The primary duty of the radiologist is to secure maximum benefit for the patient." Our specialty still has a way to go toward attaining this objective.
Directly communicating results of radiologic examinations may or may not represent the personal confrontation between radiologist and patient envisioned by Sherman, but the concept does prompt us to reflect on the broader question of whither goest the radiologist's duty.
Should radiologists communicate findings of all radiologic examinations directly to patients? Arguments can be put forth to support an affirmative answer. The courts have for many years espoused such action, the federal government has mandated it for mammography, various professional organizations have encouraged it, "entrepreneurial radiologists" are promoting it, and the public seems to demand it. The passage of the Mammography Quality Standards Act that mandates direct communication of all mammographic findings between radiologist and patient has virtually eliminated radiologic medical malpractice lawsuits alleging delay in diagnosis of breast cancer. It may well be that if radiologists were to communicate findings of all radiologic examinations directly to patients, all lawsuits alleging delay in or failure of communication of significant abnormal radiologic findings would be similarly eliminated.
Valid arguments in opposition of direct patient communication can also be offered. Adopting the practice would be costly and would generate myriad problems relative to implementation and relations with referring physicians. In addition, radiologists who choose to advise patients on treatment options or other aspects of clinical management may subject themselves to malpractice litigation alleging breaches of standard of care for conduct with which radiologists have not previously been involved and for which they may not be adequately prepared.
A duty to communicate findings of all radiologic examinations directly to patients may or may not eventually be imposed on radiologists. In the meantime, radiologists, with an eye on the goal of potentially eliminating "failure-to-communicate" litigation, may wish to ponder the question of whether they want to hasten the practice. As they deliberate, however, they might keep in mind an aphorism coined by one radiology educator: "The source of many of today's problems can be attributed to yesterday's solutions" (Rogers LF, personal communication).
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