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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 Department of Radiology, Rush Medical College, Chicago, IL 60612.
Received January 9, 2002;
accepted after revision January 9, 2002.
Case summaries are based on actual events and lawsuits, although certain
facts have been omitted or modified by the authors. All opinions expressed
herein are those of the authors and do not necessarily reflect those of the
American Journal of Roentgenology or the American Roentgen Ray
Society.
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When I use the expression "proximate cause," I mean a cause which, in natural or probable sequence, produced the injury complained of. It need not be the only cause, nor the last or nearest cause.Illinois jury instruction [1]
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Five days later, the baby became congested and began "foaming at the mouth." The mother rushed the baby to the hospital's emergency department, where the infant went into cardiac arrest. A team of physicians successfully resuscitated the baby, and to gain immediate vascular access, they inserted an interosseous line into the infant's left tibia. The baby's condition improved and she was discharged after a 3-day hospitalization. The following month the baby underwent surgery to repair an anomaly of the aortic arch, after which her cardiac and respiratory problems seemed to completely resolve.
Over the next 4 years, the child experienced severe growth retardation in the left leg. It was determined that the retardation was due to damage to the growth plate of the proximal tibia that resulted from insertion of the interosseous line when the girl had suffered the cardiac arrest as a baby. Although the child underwent multiple surgical procedures in an attempt to correct the growth disturbance, marked shortening of the left leg remained.
The girl and her parents filed a medical malpractice lawsuit against the radiologist and the pediatrician, alleging that they were negligent in failing to diagnose the congenital aortic anomaly immediately after birth. Had the diagnosis been established promptly, charged the lawsuit, the cardiac arrest, and the subsequent insertion of the interosseous line that caused the leg shortening, would have been avoided.
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The attorney for the plaintiffs appealed the judge's dismissal of the defendant radiologist, contending that the judge had erred in determining that proximate cause had not been shown. The plaintiffs' lawyer claimed that he had produced sufficient evidence to prove that the radiologist had been negligent and that the radiologist's negligence had caused the plaintiff's leg shortening.
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Plaintiffs contend that sufficient evidence was presented...to provide the causal link between [the defendant radiologist's] conduct and [the plaintiff's] cardiac arrest, which ultimately led to the growth plate injury. Defendants assert that plaintiffs failed to establish that [the defendant radiologist's] failure to [correctly] interpret the X-rays was the proximate cause of her injuries. Plaintiffs argue that the evidence shows that had [the defendant radiologist] properly interpreted the chest X-ray, subsequent doctors would have had the opportunity to treat her condition and possibly avoid or minimize the injury to her growth plate.We hold that...the evidence of proximate cause was insufficient to submit to the jury. A review of the record establishes that plaintiffs' expert witnesses only offered an opinion on the deviations from the standard of care, but no expert evidence was adduced to a reasonable degree of medical certainty that [the defendant radiologist's] alleged deviations from the standard of care caused the injuries. The mere possibility of a causal connection is not sufficient to sustain the burden of proof of proximate cause....
The record demonstrates that plaintiffs failed to establish that [the baby's] cardiac abnormalities would have been diagnosed if [the defendant radiologist had noted an enlarged heart on the X-ray report].... Moreover, plaintiffs were unable to show that it was foreseeable that [the baby's] cardiac arrest and the subsequent placement of the interosseous line would result in damage to the growth plate in her leg. Indeed, [plaintiffs' experts admitted] that growth plate arrest is not a known complication of the placement of an interosseous line. Thus, the directed verdict granted in favor of [the defendant radiologist] was proper.
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Of the four sine qua non allegations that must be proven for a plaintiff to succeed in a malpractice lawsuit, the one claiming that the defendant has breached the standard of care, in other words has acted negligently, is the most frequently contested. The myriad nuances addressing the question of whether the radiologist's missing of a radiographic diagnosis constitutes negligence have been discussed in previous articles [5,6,7]. The question of whether the defendant owes a duty to the plaintiff is less frequently disputed, but the question is raised if there is doubt that a legal physician-patient relationship exists. The nature of this relationship and its importance in malpractice litigation have also been discussed previously [8, 9]. Whether the patient has sustained an injury is usually not a contentious issue, although the issue does occasionally arise in cases in which patients claim they have sustained emotional damage in the absence of physical injury, such as being afflicted with fear of a decreased life expectancy if a diagnosis of cancer has been delayed [10].
Challenging whether the last of these four elements—proximate cause—has occurred, as was done in the case described here, is not a frequent occurrence. Nevertheless, proximate cause is an important legal concept that in certain situations can provide an effective affirmative defense in malpractice lawsuits [3].
This point is illustrated by reviewing three other cases in which proximate cause—or the absence of it—directly impacted the outcome of radiologic malpractice litigation.
In Illinois a 60-year-old man with sudden onset of weakness and numbness of his left side was brought by his family to a hospital emergency department at 2:00 A.M. CT was not performed until 9:30 A.M., at which time a massive cerebral hemorrhage was diagnosed. The patient lapsed into coma and died 3 days later. The family filed a medical malpractice lawsuit against the emergency physician, alleging that the patient would have survived had a stat. CT been ordered at the time of admission. At a jury trial, two expert medical witnesses retained by the plaintiff testified that the failure of the emergency department physician to order an earlier CT while the patient was undergoing observation in the emergency department was a breach of the standard of care and that an immediate diagnosis would have permitted surgical intervention that would have saved the patient's life. On cross-examination, however, the two experts, a neurologist and an emergency department physician, acknowledged that the only benefit that would have been gained by an earlier diagnosis would have been referral to a neurosurgeon, and they did not know what a neurosurgeon would have done at the time. At the conclusion of the trial, the jury found in favor of the plaintiff and awarded substantial damages. The trial judge, however, reversed the jury verdict, finding that "no reasonable fact finder could conclude that the death of the decedent was proximately caused by the failure to conduct a CT scan" in a more timely manner. The plaintiff appealed, but the appellate court sustained the trial judge's reversal [11]:
The trial court reasoned that even if defendants deviated from the standard of care in failing to order an earlier CT scan, plaintiff failed to offer evidence that this negligence was the proximate cause of plaintiff's injury.... Plaintiff must establish that it is more probably true than not true that the negligence was a proximate cause of the injury. Plaintiff must prove not only that an earlier CT scan would have revealed the condition, but, under the appropriate standard of care, the diagnosis would have triggered medical or surgical intervention to prevent the decedent's death.... Defendants argue that a CT scan is a diagnostic tool that cannot alleviate a condition.To the extent a plaintiff's chance of recovery or survival is lessened by the malpractice, he or she should be able to present evidence to a jury that the defendant's malpractice proximately caused the increased risk of harm or lost chance of recovery.... Here....the evidence reveals that no medical treatment was available for decedent's fatal illness.... The record before us contains no evidence to support the opinion of plaintiff's experts that the negligent delay in administering a CT scan lessened the effectiveness of treatment.... On cross-examination, defendants elicited testimony from plaintiff's experts showing that their conclusion that a delay in ordering a CT scan was a proximate cause of decedent's death was not supported by the facts. The experts testified that they did not know if surgical intervention should have been ordered if a prompt CT scan had been administered, [and] that the decision of whether neurosurgery should be performed would not have been made without input from a neurosurgeon.... The absence of expert testimony that...an earlier CT scan would have led to surgical intervention or other treatment that may have contributed to the decedent's recovery creates a gap in the evidence of proximate cause fatal to plaintiffs' case.
In another Illinois case, a 37-year-old woman complaining of high fever, diffuse back pain, and foul-smelling cloudy urine was admitted to a hospital emergency department. Concluding that the patient had a urinary tract infection, the emergency department physician ordered blood tests and a urine culture, prescribed IV antibiotics for the patient, and had her admitted to the medical department. The next day the patient became hypotensive, went into respiratory arrest, and died. An autopsy revealed that the patient had an obstructing renal calculus that had led to a severe infection, septic shock, and ultimately death. A medical malpractice lawsuit was filed against the emergency department physician and the hospital, alleging that the emergency physician was negligent by failing to order abdominal radiographic and CT studies that would have disclosed the presence of a kidney stone, thereby permitting immediate diagnosis and avoidance of the fatal septic shock. The case was tried, and at its conclusion the jury returned an $850,000 verdict in the patient's favor. The defendants appealed the verdict, arguing that the plaintiff had failed to prove proximate cause.
Most of the three-member Illinois appellate court agreed with the defendants and reversed the verdict. The court focused on testimony of the plaintiff's expert witnesses, who admitted that it was not they, but rather a urologist or an interventional radiologist, who would have performed the procedure to remove the renal calculus had it been diagnosed immediately. The court pointed out that there was no evidence in the record indicating what a urologist or an interventional radiologist would have done to relieve the obstruction. The decision to overturn the jury verdict was not unanimous, however, for one appellate judge submitted a dissenting opinion [12]:
The evidence is that the plaintiff's decedent died as a result of an undiagnosed urinary tract obstruction. [Plaintiff's experts] testified that without the obstruction being relieved, the decedent had a zero chance of survival. Had the obstruction been relieved, the plaintiff's decedent had a 40 to 60 percent chance of survival. The defendant did not remove the obstruction. The plaintiff's decedent died. The plaintiff is critical of the [defendant's] failure to call in a urologist or an interventional radiologist [and] to order abdominal tests...all of which were deviations from the standard of care.I do not believe that evidence as to the specific type of treatment which would have been used to relieve the obstruction is necessary to allow a jury to determine that a failure to render any treatment to relieve the obstruction is a proximate cause of the injury and subsequent death of the plaintiff's decedent.... The jury is charged to determine, from the facts, proximate cause based on the expert evidence. The jury in this case met their responsibility. We should not abrogate their verdict by requiring a multicolored roadmap when a simple black line will do.
As can be seen by the split decision rendered by the appellate court in this case, the determination of whether proximate cause has been proven is frequently far from clearcut. Individual juries or appeals court judges can be presented with the same set of facts, deliberate the same evidence, and yet reach diametrically opposite conclusions.
The question of whether proximate cause has been proven becomes even cloudier, however, when a defendant physician is charged with malpractice because of injury sustained by a patient who already has a preexisting illness, perhaps one that is chronic yet nonfatal, or one that is fatal and involves a patient who may be in a preterminal stage. A recent case decided by the Illinois Supreme Court illustrates this point quite well.
A 55-year-old woman visited her family physician because of severe back pain that had begun 1 month earlier. The physician ordered radiographs and a radionuclide bone scan that disclosed a compression fracture in the midthoracic spine. Several days later, after developing numbness and tingling in her legs, the patient went to a hospital emergency department. Finding that the patient's temperature and WBC were elevated and suspecting that the patient had either an infection or a malignancy, her physicians ordered CT. The CT was interpreted as disclosing a compression fracture most likely related to a carcinoma, and the patient was hospitalized. Over the next several days the patient experienced increasing difficulty in moving her legs and controlling her bowel and urinary bladder. Then the patient became paraplegic. However, hospital nurses failed to apprise the treating physicians that the patient was experiencing a gradual loss of sensory and motor functions, and thus the physicians later claimed they assumed that the loss of function occurred suddenly. This misled the physicians into believing that the patient was suffering from a malignancy rather than a treatable inflammatory process. Eventually, a diagnosis of osteomyelitis of the thoracic spine was established, and the patient was left with permanent paraplegia and loss of bowel and urinary bladder control.
The patient filed a medical malpractice lawsuit against the radiologist, her attending physician, and the hospital nurses. The lawsuit alleged that both physicians had been negligent: the radiologist for failing to diagnose osteomyelitis on her radiologic studies and the attending physician for failing to appreciate the gravity of the patient's physical findings and call for immediate neurosurgical consultation. Before the trial was to begin, the radiologist and the attending physician settled the lawsuit for $2,950,000. The case against the hospital proceeded to a jury trial, at the conclusion of which the jury awarded the patient $8.7 million. The hospital appealed the verdict, first to the appellate court that upheld the verdict and then to the Illinois Supreme Court.
In the appeal, the attorney for the hospital argued that the verdict should be reversed because proximate cause had not been established. The hospital's defense attorney claimed that the plaintiff presented no evidence to indicate that even if the nurses had in more timely fashion informed the patient's attending physicians of the gradually appearing motor and sensory problems that the patient was experiencing, prompt surgical intervention would have prevented the permanent neurologic deficits that ensued. In addition, the hospital's attorney argued that the trial judge had committed errors by allowing into the record certain testimony and comments made by witnesses and attorneys that were prejudicial to the hospital and that unfairly influenced the jury into returning a verdict in favor of the plaintiff. Although the supreme court did reverse the jury verdict because it agreed that the hospital had not been given a fair trial, the court rejected the hospital's argument that proximate cause had not been established. The court's comments regarding proximate cause are germane [13]:
When a plaintiff comes to a hospital already injured, or has an existing undiagnosed medical condition, as in the case at bar, and while in the care of the hospital is negligently treated, the question of whether the defendant's negligent treatment is a proximate cause of the plaintiff's ultimate injury is ordinarily one of fact for the jury. In the case at bar, defendant asserts that it was entitled to [reversal of the verdict] for the failure of plaintiffs to present expert testimony that an earlier call to [the patient's] physicians would have prevented her paralysis....[The plaintiff] was not required to prove that an earlier call to her physicians would have resulted in a more favorable outcome. [She] did not base her case solely on defendant's delay in the reporting of her condition. Instead, she contended that the failure of defendant's nursing staff to accurately report the progression of her decline was a proximate cause of her paralysis. The record contains evidentiary support for plaintiff's theory. [The doctors] explained that they based their erroneous diagnosis and treatment decisions upon incorrect and incomplete information regarding [the patient's] condition in the hours preceding her total loss of motor control.... Had the doctors been given the opportunity to properly diagnose the patient's condition based on accurate and complete information, they would have had the opportunity to treat her condition by ordering the appropriate treatment. Because of the hospital's negligent failure to accurately and timely report [the patient's] symptomatology, the appropriate treatment was not even considered....
Although it may appear more difficult to assess exactly what harm negligent medical treatment may have caused when the patient had a preexisting illness or injury, juries routinely are asked to determine whether, and to what extent, a defendant's negligent treatment proximately caused the injury upon which the patient's lawsuit is based. [The jury was instructed by the judge that] the defendant's negligence need only be a cause of the harm, or any cause which, in the natural or probable sequence, produced the injury of the plaintiff, not the only cause, nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which in combination with it, causes the injury.
The court then went on to discuss the question of whether it is necessary for a plaintiff to prove that there would have been at least a 50% chance of surviving or recovering from an existing illness or injury had the negligence not occurred:
Where there is evidence that a plaintiff's estimated chance of surviving or recovering from an existing illness or injury, absent the malpractice, is 50% or less, some courts have concluded that proximate cause under the traditional definition is lacking. [In other words], plaintiff must show better than even chance of survival absent alleged malpractice to sustain burden of proof on proximate cause. Other courts have recognized that victims of medical malpractice should be able to seek damages arising from their doctors' or hospitals' negligent treatment, notwithstanding that the patients' chance of recovering from existing illnesses or injuries may be less than 50%.... The better rule is that evidence which shows to a reasonable certainty that negligent delay in diagnosis or treatment lessened the effectiveness of treatment is sufficient to establish proximate cause.... To the extent a plaintiff's chance of recovery or survival is lessened by the malpractice, he or she should be able to present evidence to a jury that the defendant's malpractice, to a reasonable degree of medical certainty, proximately caused the increased risk of harm or lost chance of recovery. We therefore reject the reasoning of cases which hold, as a matter of law, that plaintiffs may not recover for medical malpractice injuries if they are unable to prove that they would have enjoyed a greater than 50% chance of survival or recovery absent the alleged malpractice of the defendant.... To hold otherwise would free healthcare providers from legal responsibility for even the grossest acts of negligence, as long as the patient upon whom the malpractice was performed already suffered an illness or injury.
The court concluded:
Disallowing tort recovery in medical malpractice actions on the theory that the patient was already too ill to survive or recover may operate as a disincentive on the part of healthcare providers to administer quality medical care to critically ill or injured patients.
In a concurring written opinion, one of the supreme court justices emphasized that each codefendant may be found liable for malpractice if his or her negligent conduct proximately caused patient injury, even though other codefendants may have contributed to the patient's injury. The justice focused on and stressed the importance of one jury instruction that contained the following words:
More than one person may be to blame for causing an injury. If you decide that the defendant was negligent and that its negligence was a proximate cause of injury to the plaintiff, it is not a defense that some third person who is not a party to this suit may also have been to blame.
The concept that each defendant is liable for his or her own negligent acts even if others also are negligent deserves further attention. A radiologist whose only involvement in the medical care of a given patient is interpretation of a radiologic study on which the attending physician may or may not have substantially depended may well be included as a codefendant in a medical malpractice lawsuit filed because of alleged negligent treatment given by that attending physician. Under such circumstances, the codefendant radiologist may feel that the fault lay not with him or her, even if the radiologic interpretation was inaccurate, but rather with the attending physician who had at his disposal far more clinical and laboratory information than a single, albeit less than totally accurate, radiology report. The radiologist may ask, Shouldn't the negligence committed by another physician subsequent to a defendant radiologist's negligence absolve the radiologist of liability? Or, to state it another way, Shouldn't an intervening act of negligence break any causal connection that may exist between the initial act of negligence and patient injury? The answer to these questions has been given directly and succinctly in an Ohio Supreme Court decision [14]:
The fact that some other intervening act contributes to the original act to cause injury does not relieve the initial offender from liability.
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The law recognizes that more than one codefendant physician may contribute to an injury incurred by a patient, and the law will therefore hold each codefendant participating in the injured patient's medical care similarly liable. In cases of alleged radiologic misdiagnosis, the fact that the misdiagnosis occurred may result in a finding that the misdiagnosis proximately caused the patient's injury, even though other physicians were more directly involved in the patient's alleged mismanagement. Proximate cause means a cause that, in natural or probable sequence, produced the injury complained of by the patient. It need not be the only cause, the major cause, or the last or nearest cause.
As illustrated by the cases discussed in this article, the existence of proximate cause can be challenged in some cases, perhaps disproven in others. The failure of a plaintiff to prove proximate cause will result in a determination that the defendant physician is not liable. Radiologists who are named as defendants in malpractice lawsuits who have reason to believe that proximate cause may not be present should ask their defense attorney to carefully examine the issue.
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