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Malpractice Issues in Radiology |
1 Department of Radiology, Massachusetts General Hospital and Harvard University
School of Medicine, 32 Fuit St., Boston, MA 02114.
2 Department of Radiology, Rush North Shore Medical Center, 9600 Gross Point
Rd., Skokie, IL 60076, and Rush Medical College, Chicago, IL 60612.
Received February 20, 2002;
accepted after revision February 22, 2002.
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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One day the interventional radiologist in the radiology group was unexpectedly served with a legal complaint indicating that he was being sued for medical malpractice by a 65-year-old woman. The lawsuit alleged that the woman had become paraplegic because the defendant interventional radiologist had "negligently advised" her to undergo vertebroplasty "without conducting physical examination and medical testing that would have disclosed the presence of metastatic cancer."
The radiologist had no recollection of ever having had contact with the plaintiff patient, and a review of his files failed to disclose any record of her. Dismayed and believing that the lawsuit naming him as a defendant had to be a mistake, the radiologist nervertheless contacted his professional liability insurance company. The insurance company appointed a defense attorney, who immediately undertook an investigation of the case.
Investigation uncovered the following facts. Six months earlier the woman, after coming across the radiology group's Web site on the Internet, had sent an e-mail to the interventional radiologist. The woman had kept in her possession a hard copy of her message and the radiologist's response, and her attorney produced a photocopy of it. In the e-mail communication, the woman had first identified herself by name and age, and then wrote that her doctor had obtained radiographs of her lumbar spine because she had back pain. She continued that her doctor told her that the radiographs showed diffuse osteoporosis and a collapsed third lumbar vertebra. Her doctor, wrote the patient, suggested that she undergo vertebroplasty. The woman then asked the interventional radiologist in the hospital-based radiology group whether he thought vertebroplasty was indicated and would be beneficial to her. The defendant radiologist had responded that vertebroplasty was "certainly indicated" and would be "quite beneficial" to her, and he recommended that she undergo the procedure.
Two weeks after this e-mail communication, the woman went to a local hospital, where an orthopedic surgeon performed the vertebroplasty. Complications ensued, and it was soon discovered that the patient had lung carcinoma that had metastasized to the involved lumbar vertebra. The patient became paraplegic and, at the time of the initiation of the lawsuit, was in a preterminal stage. In addition to naming as a defendant the interventional radiologist with whom the woman had corresponded by e-mail, the lawsuit also named as codefendants the orthopedic surgeon and another physician who had been directly involved with the vertebroplasty procedure.
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The radiologist's defense attorney filed a motion with the court requesting dismissal of the defendant radiologist from the lawsuit because no physician—patient relationship had been established between the radiologist and the woman. At a hearing, the judge made no immediate decision and requested both attorneys to file written arguments on the question. In a meeting between the two attorneys held after this hearing, the defense attorney was successful in persuading the plaintiff's attorney to drop the radiologist from the lawsuit by convincing him that the plaintiff's case would be more effectively prosecuted by limiting the defendants to, and concentrating on, the other two physicians who had been directly involved in her care.
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E-mail is an important capability available to Internet users. Through a variety of formats, e-mail allows the electronic transfer of written information across the Internet to a specified recipient, usually in a matter of seconds. The electronic message itself, although available to the specified recipient, typically resides on a server to which the user connects to access messages [2]. Messages are marked as to the time and date they were sent, and Internet service providers typically retain a record, including the content of the message itself. Any recipient response to the original message is treated in a like manner.
Physicians are part of this e-mail explosion. In addition to receiving both solicited and unsolicited communications from patients and nonpatients alike, physicians are also beginning to participate in ventures, one of which is backed by the American Medical Association, that allow physicians to consult with patients online and then bill for services provided via the Internet [3]. A recent article examining the e-mail phenomenon in the setting of orthopedic surgery estimated that orthopedic surgeons can anticipate receiving more than 116 such messages a year [4]. Radiologists may very well receive e-mail messages in comparable numbers. Radiologists who have no direct patient-care responsibilities may receive e-mail from patients who discover their names on radiology reports. Those who list their names on a Web site, those in academic settings, and those who become recognized for certain procedures or examinations can well expect to receive e-mail communication relating to their practice from a variety of sources.
Physician reaction to e-mail related to medical practice is varied, ranging from non-response to something considerably more comprehensive. One published study noted that most physicians responding to unsolicited e-mail from patients actually offered medical advice regarding diagnosis and treatment [5]. This finding is surprising, considering that most physicians who are unexpectedly confronted by a patient (either personally or by telephone) and then pressed to render medical advice with minimal information will likely refrain from doing so.
The offering of medical advice with limited information, especially when a written record exists of this transmission, can expose radiologists who engage in medically oriented e-mail communication to potential liability. The issues that control the manner and the degree to which such radiologists can be pulled into malpractice litigation are twofold: one, whether radiologist responses to unsolicited e-mail messages that include medical information from unknown patients establish a physician—patient relationship; and two, even when e-mail communication is undertaken with known or established patients, what is the standard of care to which the radiologist must adhere? Let us look at each issue separately.
The Physician—Patient Relationship
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On the basis of these traditional legal concepts, little doubt exists that a physician—patient relationship is present when a radiologist engages in e-mail communication with a patient whose study that radiologist performed or interpreted. The question becomes more complex, however, when a radiologist responds to unsolicited e-mail from an unknown patient or from a physician regarding an unknown patient.
To our knowledge, no published case law directly addresses the question of what constitutes a physician—patient relationship when a radiologist or other physician responds to unsolicited e-mail. However, telephone communications are in many ways analogous to e-mail communications, and a well-developed line of legal cases addresses the question of whether a physician—patient relationship has been established when the only contact with a patient is by telephone. A brief overview of several such cases can give us an excellent idea of how the courts might deal with e-mail communication.
Both e-mail and telephone messages are electronic, thus allowing communication without physical proximity. Both forms of communication also commonly take place without a prior introduction of the participating parties. The National Institute of Medicine has recognized this similarity, defining telemedicine as encompassing telephone, video, and electronic transmission of medical information [8].
A physician—patient relationship in a telephone conversation is established when the physician agrees to undertake the care of the patient. In a classic articulation of this doctrine, the Supreme Court of Utah found that a physician who listened to a patient's symptoms during a telephone conversation and subsequently instructed the patient to seek medical attention at that physician's office was under a duty to treat the patient [9]:
We believe the law is well settled that a physician or surgeon, upon undertaking an operation or other case, is under the duty, in the absence of an agreement limiting the service, of continuing his attention.
The physician's agreement to render care to a patient does not have to be explicit. Many courts have held that an agreement may be implied and a physician—patient relationship established when a physician offers diagnostic or treatment advice in the setting of a telephone conversation [6]. This reasoning is illustrated in a New York case in which a court, examining possible malpractice stemming from a telephone conversation between the plaintiff and the physician's office, noted [10]:
A medical malpractice action may be based on allegations that a physician negligently gave advice to his patient as to what course of treatment to pursue. Whether the physician's giving of advice furnishes a sufficient basis upon which to conclude than an implied physician—patient relationship had arisen is ordinarily a question of fact for the jury.
Merely engaging in a telephone conversation with a patient is not in itself sufficient to form a physician—patient relationship. For example, calling a physician and reciting symptoms when the physician does not provide any medical advice does not rise to the level required to form the relationship, according to the Georgia Court of Appeals. There, a patient who was unable to contact the emergency room physician she had just seen subsequently telephoned a physician who had treated her previously for an unrelated condition. The physician listened to the patient complain of worsening lower extremity pain and numbness, stated that he did not make house calls, and informed her that he could see her the next morning. Although her condition ultimately resulted in paraplegia, the court rejected the contention that a physician—patient relationship had been created, noting [11]:
Merely that the defendant was a physician and knew of the condition of the plaintiff would not devolve upon him the duty of rendering to her medical care, even though he was applied to for services by the plaintiff herself...for there is no rule that requires a physician to undertake the treatment of every patient who applies to him.
Taken as a whole and applied to the e-mail context, case law examining instances in which physicians have become engaged in unsolicited telephone conversations supports the proposition that the mere existence of such communication is not sufficient to establish a physician—patient relationship. Rather, a radiologist or other physician must indicate implicitly or explicitly his or her willingness to enter into such a relationship, as may be evidenced by the providing of medical advice. This same body of law supports the proposition that a radiologist is under no obligation to respond to unsolicited e-mail communication, regardless of its content.
Apart from the issue of unsolicited e-mail messages from patients is the issue of unsolicited messages from physicians regarding patients unknown to the radiologist. Such communication is somewhat analogous to the "curbstone consultation," wherein one physician seeks an informal professional opinion from another, generally in a face-to-face exchange. The patient under discussion typically has no knowledge of the interaction, and the consultant has no expectation of payment. Although case law is not uniform, most courts hold that such consultations do not establish a physician—patient relationship [12].
The analogy of e-mail consultation to the traditional curbstone consultation is not perfect, however. An important difference between the two is the existence of a written, time- and date-stamped record of the inquiry and what, if anything, was sent in response. Nonetheless, even with this evidentiary written record, it is unlikely that a physician—patient relationship would be established when a radiologist received an unsolicited message from a physician regarding a patient unknown to the radiologist and either did not respond or provided a response that did not include specific medical advice. However, when a radiologist provides medical advice in his or her reply, and the consulting physician relies on that advice in patient treatment, the possibility exists that a court could find that the requisite physician—patient relationship exists [13].
Given the facts of the case described at the beginning of this article, it is far from clear how the court would have decided the issue of whether a physician—patient relationship between the defendant radiologist and the woman plaintiff had been established.
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The actual determination of negligence in any malpractice action, including but not limited to e-mail communication, is likely to be quite fact-specific, although generalities may be made. For example, a radiologist who relies on a patient's written description of radiologic findings and then offers an incorrect diagnosis based only on that description, would probably not be acting within the standard of care. Conversely, a radiologist who responds to a similarly vague e-mail patient query by demanding a firsthand viewing of radiographic images before rendering an opinion, offering the patient the opportunity for a formal in-person consultation, or referring the patient to a competent licensed radiologist in the patient's community, is unlikely to be found negligent. As much as anything else, the question of whether the standard of care is met is one of common sense: did the radiologist render an opinion that was reasonable given the level of information provided?
Regardless of whether the traditional legal elements of a malpractice claim are satisfied in any e-mail exchange, other considerations pose additional potential difficulties for the radiologist. As in the teleradiology setting, the offering of medical advice by e-mail to out-of-state patients could be seen as practicing medicine without a license in the state in which the patient resides, should the radiologist lack a valid license in that jurisdiction [8]. Although such violations are generally misdemeanor offenses, they nevertheless carry serious repercussions, such as loss of Medicare participation and a negative effect on hospital and health plan credentialing [14].
Providing medical advice via e-mail may also have serious implications for professional liability insurance. Such policies are often state-specific, and thus radiologists who provide negligent advice by e-mail to patients residing in states not covered by the radiologists' insurance companies may find themselves without liability coverage should a malpractice action result [14].
Given the facts of the case described at the beginning of this article, it is far from clear how the court would have decided the issue of whether the defendant radiologist's response to the woman plaintiff's e-mail conformed to the standard of radiologic care.
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Risk management in radiology can lessen the likelihood of incurring medical malpractice lawsuits, maximize the chance of a successful defense if such a suit is filed, and at the same time, enhance the quality of patient care. The following risk management pointers will assist radiologists in dealing with the issue of e-mail consultation.
Acknowledgments
We gratefully acknowledge the assistance of Daniel I. Rosenthal in the
preparation of this article.
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