| HOME | HELP | FEEDBACK | SUBSCRIPTIONS | ARCHIVE | SEARCH | TABLE OF CONTENTS |
|
|
|
|||||||
|
|||||||||
| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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 March 26, 2003;
accepted after revision March 28, 2003.
Address correspondence to L. Berlin
(lberlin{at}rsh.net).
The Cases
 Top The Cases Medical-Legal IssuesDiscussionSummary and ConclusionsReferences |
|---|
No evidence of aortic aneurysm. Questionable echogenic area in right kidney which may be a normal variation, such as a prominent column of Bertin, but if clinically indicated a CT can be considered.
The internist did not order any follow-up examinations, however, and 1 year later the patient was diagnosed as having renal cell carcinoma of the right kidney. Later, the patient filed a medical malpractice lawsuit against the internist and the radiologist, alleging that they had been negligent for failing to diagnose the renal cancer when the patient had initially seen the internist and undergone the sonographic examination.
Case 2
A 38-year-old woman involved in a motor vehicle accident was taken by
ambulance at approximately 6:00 A.M. to the emergency department of
a local hospital. After examining the patient, the emergency department
physician ordered an abdominopelvic CT. The CT examination was quickly
performed and its images were transmitted teleradiologically to the home of
the radiologist who was on call. After viewing the CT scan, the radiologist
telephoned the emergency department physician and informed her that the
abdominopelvic CT study was normal except for the presence of a moderate
amount of left pleural effusion "suggestive of hemothorax." The
emergency department physician responded that she would order immediate chest
radiography. The radiologist advised the physician that within 30 min another
member of the radiology group would be starting his workday at the hospital
and would be available to interpret the chest radiographs and discuss their
findings with the physician. The on-call radiologist had no further contact
with either the patient or the emergency physician.
Chest radiographs were obtained and were interpreted by the radiologist who had just arrived at the hospital as "normal except for the presence of left pleural effusion." The patient was admitted to the hospital under the care of a surgeon, who said he would travel to the hospital later in the day to examine the patient. Three hours later, without having been seen by any physician subsequent to her admission to the surgical ward, the patient suddenly went into shock and died. Autopsy revealed that death resulted from a ruptured thoracic aorta. Shortly thereafter the patient's family filed a medical malpractice lawsuit against the emergency department physician, the surgeon, and both radiologists.
Case 3
A 51-year-old woman with complaints of chest pain and moderate dyspnea
presented at 10:00 P.M. to the emergency department of a hospital.
Finding that the patient had a low-grade fever, the emergency physician
ordered chest radiographs. No radiologist was on duty at that hour; in that
case, the usual procedure was that emergency department physicians would
interpret the radiographs with the understanding that an official
radiologist's interpretation would be done the following morning. The
emergency department physician interpreted the study as disclosing
"mediastinal lymphadenopathy, but no evidence of pneumonia." After
receiving laboratory data, the emergency physician told the patient that he
was sending her home but that she should contact her primary care physician
the next morning for follow-up care because she had a "shadow on the
X-ray." He assured the patient that hospital personnel would communicate
all the pertinent clinical, laboratory, and radiographic findings to the
primary care physician.
On the following morning, a radiologist reviewed the patient's chest radiographs that had been obtained the previous night. His interpretation was "right suprahilar mass with mediastinal widening, suggestive of bronchogenic carcinoma." The radiologist dictated and later signed the radiology report but did not directly communicate the results to either the emergency department or the primary care physician.
The patient did not contact her primary care physician, however. Three months later she was seen by another physician, and a diagnosis of advanced lung cancer was established. The patient died 2 months later but before her death filed a malpractice lawsuit against the emergency department physician, her original primary care physician, and the radiologist.
|
TopThe CasesMedical-Legal IssuesDiscussionSummary and ConclusionsReferences |
|---|
A radiology expert witness retained by the plaintiff's attorney testified at deposition that the defendant radiologist had breached the standard of care by not having directly communicated to the internist the suspicious sonographic finding related to the right kidney. Pointing to that portion of the American College of Radiology (ACR) Standard on Communication that "mandated direct communication with the referring physician for any significant unexpected finding," the plaintiff's expert asserted that the finding of a "questionable lesion" in the patient's right kidney was indeed significant and unexpected, and therefore the defendant radiologist had been negligent for failing to directly communicate that fact to the referring physician. "The ACR says the radiologist should have picked up the telephone and called the referring physician, and he didn't do it," said the expert.
At his deposition, an expert witness retained by the defense argued that the standard of radiologic care did not require the defendant radiologist to directly communicate the patient's questionable abnormality to the internist. Feigning disbelief, the plaintiff's attorney then asked the defense radiology expert, "Doctor, you don't expect to see a questionable abnormality on every ultrasound study you do, do you, and therefore, isn't it unexpected when you do see one?" The defense expert replied:
Questionable findings are not unexpected....;When interpreting any radiologic study, a radiologist often sees something that may or may not be normal. There are varying degrees of suspicious or questionable abnormalities. Some are so minor as to warrant in the mind of the radiologist only a brief mention with a suggestion for a follow-up study, others are sufficiently suspicious to warrant a definite recommendation for follow-up studies....;. It is the latter type of finding that a radiologist might have to directly communicate to the referring physician....;. A radiologist cannot possibly telephone the referring physician for every questionable abnormality that he or she sees, unless it's one the radiologist feels is truly significant.
As a trial date for the lawsuit approached, the defendant radiologist, after being advised by his attorney and the claims manager of his malpractice insurance company that it was unlikely he would prevail at trial, reluctantly agreed to settle the case.
Case 2
A review of the medical record of the deceased patient disclosed that the
radiologist who interpreted the chest radiographs as "normal except for
left pleural effusion" misinterpreted them. In retrospect, both the
radiologist and a radiology expert retained by the defense acknowledged that
the radiographs revealed a widened mediastinum and lobulation of the
descending aortic contour, findings that, along with the effusion, should have
raised a high degree of suspicion of a rupturing aneurysm of the aorta. The
radiologist who had interpreted the chest radiographs and the emergency
department physician quickly settled the lawsuit, and the surgeon under whose
name the patient had been admitted to the hospital was dismissed from the
case. However, the lawsuit against the defendant radiologist who had
interpreted the CT scan proceeded.
A radiology expert retained by the plaintiff's attorney charged that the defendant radiologist had violated the standard of radiologic care by failing to recommend to the emergency department physician that a CT scan of the chest be obtained because of the presence of the hemothorax. "The American College of Radiology's communication standard says that a differential diagnosis should be given and additional diagnostic studies should be recommended when appropriate," asserted the plaintiff's expert radiology witness. "Here was a woman involved in an automobile accident who was brought to a hospital, and the radiologist reads the CT scan correctly by diagnosing a left hemothorax," explained the expert. "The first thing the radiologist should have thought of was a ruptured aorta, and thus his failure to suggest a chest CT is a blatant deviation from the standard of care."
An expert radiology witness retained by the defense attorney testified in her deposition that the defendant radiologist correctly interpreted the abdominopelvic CT scan and fully complied with the standard of care, explaining that:
The radiologist spoke with the emergency department physician, correctly pointed out the presence of the left hemothorax, and was aware that another radiologist would be interpreting a chest radiograph that soon would be obtained. The radiologist did his duty, and nowhere in the ACR standard does it state that the radiologist must list for the referring doctor all diagnostic possibilities and potential additional studies.
Even though the defendant radiologist believed his conduct was appropriate and was supported by an expert witness, he did not want to stand trial. A settlement of the lawsuit was negotiated.
Case 3
In reviewing all medical records, it was discovered that the patient had
called her primary care physician to inquire about the results of the
laboratory and radiographic findings, and was told by the physician's
secretary that the "doctor would return the call after the results were
obtained." However, the physician never called the patient back. In his
discovery deposition, the primary care physician acknowledged that he had seen
the emergency department report indicating mediastinal lymphadenopathy, but
"was not impressed, because lymphadenopathy can be a normal
finding." After being advised that he had no support from any defense
expert witness, the physician readily agreed to settle the lawsuit.
Full attention was then turned to the defendant radiologist. An expert radiology witness retained by the plaintiff stated that the finding of a hilar mass and mediastinal widening on a chest radiograph not only warranted, but actually demanded, a telephone call to the referring physician. The plaintiff's expert witness continued,
Furthermore, the ACR standards state that any discrepancy between an emergency or preliminary report and the final written report should be directly communicated to the referring physician.
The plaintiff's expert was steadfast in his testimony that the defendant radiologist had violated the ACR standards, thereby breaching the standard of radiologic care.
For his part, the defendant radiologist stated that he didn't believe that the difference between a report of "mediastinal lymphadenopathy" and a report of a "suprahilar mass with mediastinal widening" was sufficiently major to constitute a discrepancy that would warrant a telephone call. The defendant's theory was supported by an expert radiology witness retained by the defense who asked rhetorically, "What new information would the referring physician have received had he gotten a telephone call from the defendant radiologist?....; None," the radiology expert continued, "lymphadenopathy is abnormal, and so is a hilar tumor. Either one had to be worked up."
In this case, as in the other two, despite the fact that the defendant radiologist was advised by his attorney that he could offer a reasonable defense at trial, the defendant ultimately opted to settle the lawsuit.
|
TopThe CasesMedical-Legal IssuesDiscussionSummary and ConclusionsReferences |
|---|
In each case, charges that the defendant radiologist behaved negligently were based in large degree on specific portions of the ACR Standard for Communication: Diagnostic Radiology. Whether the allegations of radiologist negligence would have been as effective in convincing the defendant radiologists and their attorneys to capitulate and agree to settle the lawsuits had the ACR Standard for Communication not been invoked by the plaintiff's expert radiology witnesses will never be known. What is known, however, is that not only was the standard referred to, but indeed it formed the basis of the plaintiffs' cases against the defendant radiologists. Previous articles have discussed how radiologists are being held liable for violations of clearly stated and unambiguous provisions of the ACR Standard for Communication pertaining to direct communication to referring physicians of urgent or significant unexpected radiologic findings [1–3]. This article will discuss how radiologists may have liability imposed on them because their duty to directly communicate is being expanded beyond what is expressly called for or originally intended in the ACR Standard for Communication.
We begin with a brief historical review of the standard that was the focus of attention in the three lawsuits.
ACR Standard for Communication: Diagnostic Radiology
The ACR Standard for Communication: Diagnostic Radiology was first
implemented in 1991 [4] but has
undergone three subsequent revisions
[5–7].
Analyzing those portions of the four versions of the standard applicable to
the three cases in this article will help us understand how the radiologist's
duty to communicate is evolving.
The first case focused on the issue of what constitutes a "significant and unexpected" abnormality. More specifically, it raised the question of whether every abnormality, no matter how minor or questionable, should be directly communicated to the referring physician. The 1991 version of the standard stated [4]:
Radiologists should attempt to coordinate their efforts with those of the referring physician in order to best serve the patient's well being. In some circumstances, such coordination may require direct communication of unusual, unexpected, or urgent findings to the referring physician.... Examples include.. .the probable detection of disease with non-acute morbidity or mortality sufficiently serious that it may require prompt notification of the patient, clinical evaluation, or initiation of treatment.
This language was modified in the 1995 revision [5] as follows: "If there are urgent or significant unexpected findings, radiologists should communicate directly with the referring physician."
A further modification was made in the 1999 revision [6]:
In those situations in which the interpreting physician feels that less urgent findings.. .or significant unexpected findings are present, the interpreting physician or designee should directly communicate the findings to the referring physician."
Still further modifications were made in the 2001 revision [7]:
In those situations in which the interpreting physician feels that the findings do not warrant immediate treatment but constitute significant unexpected findings, the interpreting physician or his/her designee should communicate the findings to the referring physician.. .in a manner that reasonably insures receipt of the findings.
The four versions contain subtle but definite differences. In the first version, the kinds of findings targeted for direct communication were those considered to be unusual as well as unexpected or urgent. In addition, the qualifying word "probable" was used, language apparently designed to grant radiologists broad latitude in how to define the words "unusual," "significant," and "urgent." The two words "unusual" and "probable" were removed from all subsequent revisions. The reason for the deletion is not known, but removal of these adjectives strengthened considerably the direct communication requirement.
The most recent revision of the standard, now in effect, adds an intriguing modification—indeed a softening—of the radiologist's duty: direct communication is required only if the radiologist feels that the findings are significant and unexpected. There is another subtle but noteworthy change in the latest revision. The word "or" between the words "significant" and "unexpected" has been removed. In other words, a finding warranting direct communication now has to be significant and unexpected, rather than significant or unexpected. The latest changes clearly give radiologists considerably more leeway in using their own personal judgment in determining which findings are sufficiently significant and unexpected to require direct communication. Relative to case 1, it seems reasonable to interpret these changes as meaning that radiologists need not directly communicate every questionable unexpected and significant finding, only those that in the radiologists' judgment warrant such communication.
Whereas the portion of the Standard for Communication pertinent to case 1 was first strengthened and then relaxed, the portion germane to case 2 shows very little variance among the four versions. The 1991 standard states [4], "Give a differential diagnosis when appropriate. Recommend, only when appropriate, follow-up and additional diagnostic radiologic studies to clarify or confirm the impression."
The three subsequent revisions contain virtually identical language, the single difference being that the word "only" has been deleted. The qualifying phrase "when appropriate" remains unaltered in all four versions. The wording leaves little doubt that the determination of when it is "appropriate" to render a differential diagnosis and recommend additional diagnostic radiologic studies is made solely by the radiologist.
At issue in case 3 is the direct communication of a discrepancy between an initial and a subsequent report. The 1991 standard states [4]: "Any discrepancy between an emergency or preliminary report and the final written report should be promptly reconciled by direct communication to the referring physician."
The 1995 and 1999 versions of the standard [5, 6] modify the phrase "any discrepancy" to "any significant discrepancy." In the 2001 revision [7] the word "discrepancy" is replaced with the word "change." The word "discrepancy" is defined as a difference, a disagreement, or an inconsistency [8]. The word "change" is defined as the substitution, replacing, or supplanting of one thing by another [8]. From a practical point of view, the difference among the four versions of this provision of the standard seems extremely minor. In any event, once again it is left for the radiologist to decide what kind of modification of a radiology report constitutes a "significant change."
In all three cases described here, the Standard for Communication was invoked by both the plaintiffs' and the defendants' expert witnesses to support their respective opinions. Looking back, it appears that the actual wording of the standard did not substantially favor one side over the other, although the fact that in the end all three defendant radiologists agreed to settle lawsuits cannot be ignored. As has been pointed out previously, expert witnesses are retained to assist a jury in establishing the standard of care and in determining whether a defendant physician has conformed to or breached that standard [9]. The ACR standards are available to all parties, and individual expert witnesses are free to put their own spin on what a given standard means. It then remains for the jury to decide which expert's spin to accept [10]. In the lawsuits presented here, the respective attorneys and insurance claims managers obviously placed more credence in the spin of the plaintiffs' experts.
During the past decade, many radiologists have expressed concern that ACR standards are more likely to hinder than to help defendant radiologists in malpractice litigation. This concern has basis, because studies have shown that practice guidelines or standards promulgated by various medical organizations have been used in malpractice courtroom proceedings twice as often for inculpatory purposes (against the defendant physician) as for exculpatory purposes (in support of the defendant physician) [11]. Drucker and Brennan [12], although acknowledging that guidelines or standards represent merely one piece of evidence to be weighed by a jury and are not generally taken as the explicit statement of the legal standard of care in malpractice cases, nevertheless have also voiced concern that a danger exists that guidelines will be applied too literally or rigidly. Harvard School of Public Health's Troyen Brennan, who has written extensively on standards of care, has expressed similar sentiments: "If it can be shown that a physician deviated from the guideline, it will work against him" [13]. A plaintiff's attorney quoted in a Wall Street Journal article [14] was even more direct: "Lawyers like me are using written guidelines in court all the time to say `Gee, your own organization says this is a minimum standard of care, and you didn't follow it.'"
The Courts' Perspective on Radiologic Communication
Notwithstanding that the ACR Standard for Communication was carefully
discussed and analyzed in detail, it failed to conclusively resolve the
communication issues raised in the three cases presented. We now turn to our
judicial system to see in what manner and to what degree it has clarified
these issues.
Long before the ACR adopted the Standard for Communication, the courts had taken the position that radiologists have a duty to directly communicate significant radiologic abnormalities to referring physicians. Nearly a quarter of a century ago an Ohio appeals court stated [15]:
The communication of a diagnosis so that it may be beneficially utilized may be altogether as important as the diagnosis itself.... The particular form of communication must depend on the fact and circumstances of the case.... The exigencies of the medical situation may call for correspondingly different levels of response. Severity of condition, urgency of treatment, potential for interim injury, suffering from delayed response, need for further analysis and consultation, and the patient's awareness of the extent of injury or the nature of the condition may all be relevant in ascertaining the necessary course of conduct in reporting a diagnosis. In certain situations, direct contact with the treating physician is necessary beyond communication through administrative personnel. Certain medical emergencies may require the most direct and immediate response involving personal consultation and exchange.... The appropriate level of response as to the need for communication must necessarily depend upon expert testimony in order to establish such factors as the immediacy of need for treatment as it relates to the diagnosis and harm likely to result from inattention.
The Arkansas Supreme Court added [16]:
When a patient is peril of his life, it does him 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.
The decision of a California appeals court could be construed as having applicability to the second case. In the California matter, a patient who was brought to a hospital emergency department after sustaining injury in an airplane crash underwent lumbar spine radiography. The radiologist reported a mild compression fracture of L4–L5. He did not recommend any additional studies. The patient was discharged but because of continuing pain returned 1 week later for CT examination. CT revealed a comminuted fracture of the posterior elements of L4 and L5. The patient underwent corrective surgery but was left with residual neurologic impairment. The radiologist was sued, and at the resulting trial an expert witness for the plaintiff testified that when interpreting the lumbar spine radiography, the defendant radiologist had breached the standard of care by not communicating to the emergency medicine physician the "severity of the injury" and recommending that CT be performed. The jury found in favor of the radiologist, and the plaintiff appealed. The California appellate court affirmed the jury decision, stating [17]:
A physician has a duty of disclosure whenever he or she becomes aware of an abnormality which may indicate risk or danger.... [The plaintiff] argues that [the radiologist] should have given more or different information to the treating physician.... The logical conclusion we must reach is that [the radiologist] did not have any subsidiary duty to recommend further testing.... [The radiologist] did not believe further testing was necessary to assist [the attending physician] in making the correct decisions on the patient's care, and the jury agreed.
It is possible that the California decision can be interpreted as bolstering the position taken by the radiologist in case 2—namely, that the diagnosis of hemothorax was sufficient and thus there was no further duty to recommend chest CT.
The Courts' Perspective of Medical Practice Standards and
Guidelines
When clinical guidelines or standards were first developed by various
professional organizations in the late 1980s, it was anticipated that the
guidelines would be used in litigation by both the patient plaintiff and the
physician defendant—by the plaintiff for blame-placing purposes (in
other words, as a "sword") by claiming that the defendant failed
to follow the applicable guideline, and by the defendant for blame-relieving
(in other words, as a "shield") by showing that defendant
conformed to the applicable guideline
[18]. In either case, the
party asserting the guideline would be asking the court to accept it as proof
that the defendant physician complied with or deviated from the legal standard
of care. The courts, however, have rarely used guidelines in this fashion and
have instead continued to rely on expert testimony as the basis on which the
standard of care is established.
In those few cases in which appeals courts have specifically considered what weight to ascribe to practice guidelines or standards in establishing the standard of care, the results have been mixed. In a case in which an obstetrician was sued for delaying an emergency cesarean section, a trial court dismissed the obstetrician from the malpractice lawsuit because the obstetrician had testified that he had followed the standards of care published by the American College of Obstetricians and Gynecologists. An Ohio appellate court denigrated the importance of the standards, however, by reinstating the lawsuit, ruling that the Standards of the College of Obstetricians and Gynecologists were merely "minimum standards of his specialty" and "did not rise" to the legal standard of care to which the obstetrician was required to adhere [19].
An appeals court in the District of Columbia took a different tack by acknowledging the value of standards. The court upheld a jury verdict against an anesthesiologist for failing to adhere to standards promulgated by the American Association of Anesthesiology. The defendant anesthesiologist had argued that the standards "encouraged" but did not mandate specific conduct, but the court disagreed, stating that the anesthesiology association standards "necessarily embody what a reasonably prudent [physician] would do" [20].
In still another obstetrics case, a North Dakota federal court ruled that failure to follow guidelines or standards does not necessarily constitute a deviation from the standard of care. "The American College of Obstetricians and Gynecologists' guidelines in and of themselves are fine, presenting a thoughtful and reasoned approach to the perils of childbirth," stated the court. The court went on to say, however, that the reality is such that in certain circumstances the defendant may not be able to follow the guidelines yet still be in conformance with the standard of care [21].
In one more case involving published standards, albeit those of architects rather than physicians, the Montana Supreme Court acknowledged the importance of published standards, but nonetheless refused to allow them to establish the legal standard of care [22]:
We affirm the holding that the standards are to be considered as evidence of a duty on the part of the architect, [but] we refuse to accept the contention that the violation of such standards constituted negligence per se on the part of the architect.
No appeals court decisions directly addressing ACR standards have yet been rendered.
Do ACR Standards Dictate the Standard of Care?
To understand the relationship between ACR standards and the legal standard
of care, it is necessary to delve into the history of the standards. Standards
were first presented to the ACR Council at its 1990 annual meeting (Task Force
On Standards Issues report to ACR Board of Chancellors, January 2002,
unpublished data). At that time, the new standards were envisioned to reflect
"the baseline quality of medical care." This vision was reaffirmed
and expanded in 2002:
Qualifications of personnel, indications, specifications of the examination, equipment specifications, and quality assurance issues are addressed in each standard with the aim of creating guidelines that represent a minimal level of technical and professional expertise to enable consistently safe, quality imaging.
According to one researcher [23], framers of the standards and guidelines of all medical organizations not only considered the standards to reflect a minimal standard of care, but they intended them to be mandatory and applied rigidly and envisioned that any deviation from a standard would be difficult to justify.
If ACR standards are believed to represent a minimal level of mandatory care, then failure to adhere to them would be tantamount to negligence. The matter is not that simple, however, for if we turn to the introduction to each ACR standard, we encounter a contradiction. The following qualifying language (i.e., a disclaimer) has been and continues to be inserted at the beginning of every ACR standard [4–7]:
The Standards of the American College of Radiology (ACR) are not rules, but are guidelines that attempt to define principles of practice that should generally produce high-quality radiological care. The physician and medical physicist may modify an existing standard as determined by the individual patient and available resources.... The standards should not be deemed inclusive of all proper methods of care or exclusive of other methods of care reasonably directed to obtaining the same results. The standards are not intended to establish a legal standard of care or conduct, and deviation from a standard does not, in and of itself, indicate or imply that such medical practice is below an acceptable level of care. The ultimate judgment regarding the propriety of any specific procedure or course of conduct must be made by the physician and medical physicist in light of all circumstances presented by the individual situation.
What the disclaimer is telling us is that the ACR standards are setting forth a level of practice that produces high-quality radiologic care, a practice level that is far different from that which produces a minimal quality of care. From a legal viewpoint, radiologists are held to a level of care that is termed "reasonable," a level that presumably lies somewhere between high quality and minimal quality. This sets the stage for potential confusion. At trial a plaintiff's expert might testify that although a defendant radiologist's conduct may have adhered to that suggested by the ACR standard, it was still minimal and fell short of "reasonable." A defense expert, on the other hand, might counter that although a radiologist's conduct adhering to the dictates of an ACR standard may have fallen short of "high-quality," it certainly exceeded "minimal" and was therefore indeed "reasonable."
Yet another factor complicates the issue of the extent to which ACR standards dictate the legal standard of care: the difference between a clinical standard and a clinical guideline. Although in this article the words "standards" and "guidelines" have been used interchangeably, some commentators have pointed out a distinction between these terms. One legal researcher [23] has observed that "standards" are intended to apply very rigidly; deviations from a standard are rare and difficult to justify and may "trigger thoughts of malpractice." Guidelines, on the other hand, should be followed in most cases but may be tailored to fit individual cases. "Deviation from a guideline by itself does not imply malpractice...and practitioners are free to choose any course."
At the 2002 annual meeting of the ACR Council, certain members, believing that the word "standards" disadvantaged radiologists who found themselves defendants in medical malpractice actions far more than the term "guidelines," formally proposed that the college change the name of its principles of practice from "Standards" to "Guidelines." At the time of the writing of this article, a task force to which the 2002 proposal was referred is preparing a resolution that will be brought before the ACR Council at its 2003 meeting that may indeed result in changing the name of the ACR principles of practice from Standards to Guidelines.
Notwithstanding the semantic debate about whether the legal standard of care to which radiologists are held is determined by what the ACR principles of practice are called, the courts have been disinclined to be influenced by these written principles. As one legal researcher [23] has pointed out, courts have taken the position of "what usually is done may be evidence of what ought to be done, but what ought to be done is set by the standard of reasonable prudence [not written guidelines]." The courts have also acknowledged, according to that researcher, that "Perfection is an aspiration but not a legal requirement; an honest effort in conformity with standards is all that can be demanded of physicians."
Another legal scholar [24] agreed, citing various court decisions that recognize that deviation in and of itself from published standards or guidelines does not constitute malpractice. The judicial system does not ignore the reality that some degree of variation is inevitable, continued this researcher, who then pointed to the two-schools-of-thought legal doctrine as an example of how courts allow legitimate variation in standards of care when the alternatives are deemed medically legitimate by well-respected members of the medical profession.
One final commentary on the ACR Standard for Communication is worth noting. A recently published law review article [25] written by an attorney for attorneys traced the evolution of the Standard for Communication and then reflected on its impact on radiologic malpractice litigation. It is a reflection of which all radiologists should take heed:
Does an ACR Standard define or evidence the standard of care applicable to a radiologist in a given circumstance? If so, an ACR Standard may have medico-legal dignity that the ACR did not intend....
The purpose of the ACR Standards may be advisory, and may not include defining a legal standard of care; however, it would be naïve to believe that practice standards will not creep into medico-legal litigation as evidence of the applicable standard of care. It is difficult to predict an explosion of medical negligence actions against radiologists based on lack of urgent communication, but it is reasonable to suspect an increase in the incidence of this type of claim. The ACR Standards will likely be recognized as evidence of the standard of care, despite the disclaimer contained in the standard.... A jury might consider the ACR Standards tantamount to the standard of care... This truly places radiologists in peril.
ACR Standards will continue to have legal implications for radiologists.... Radiologists must realize that the ACR Standard for Communication is a double-edged sword. The potential use of this standard by courts and the possibility of a relaxed requirement for expert testimony in communication cases will likely generate claims against radiologists for failure to timely communicate radiology diagnoses.
|
TopThe CasesMedical-Legal IssuesDiscussionSummary and ConclusionsReferences |
|---|
In the three cases described in this article, expert witnesses for the plaintiffs leaned heavily on certain portions of the ACR Standard for Communication to support their allegations that the conduct of the respective defendant radiologists was negligent. The experts not only relied on the literal wording of the published standard, but by the content and tone of their testimony construed the standard in a manner that elevated the duty of the radiologist to communicate to a level beyond that which was envisioned by the framers and subsequent revisers of the standard.
Many in the radiology community have bemoaned that it is difficult enough for radiologists to adhere to the unambiguous provisions in the Standard for Communication that call for direct communication to the ordering physician of urgent or significant unexpected findings, even though they succeed in complying with it [26]. Raising the standard of care to a level that compels radiologists to directly communicate every questionable urgent or significant unexpected finding may raise the standard to a level that precludes compliance by a large segment of the radiology community. Similarly, most radiologists succeed in adhering to the provisions in the written standard that call for recommending follow-up and additional diagnostic radiologic studies "when appropriate." However, raising the standard of care to a level that compels radiologists to advise referring physicians on matters of clinical management may raise the standard to a level that precludes compliance by a large segment of the radiology community. In the same vein, most radiologists succeed in adhering to the provisions in the written standard that call for direct communication with the referring physician when there is a significant change between a preliminary and a final radiology report. However, raising the standard of care to a level that compels radiologists to directly communicate changes that are merely "form" rather than "substance" may raise the standard to a level that precludes compliance by a large segment of the radiology community.
As has been pointed out in two recent articles [27, 28], it is the radiology expert witness who has the task of instructing the jury as to what constitutes the standard of radiologic care in a given case and then expounding as to whether a defendant radiologist has conformed to or deviated from that standard. Some expert witnesses exist who, because of financial or other nefarious motives wish to place in as favorable a light as possible the position of the party who retained them, will misstate or distort the standard of radiologic care by manipulating the language and the meaning of the written ACR standards. They are, metaphorically speaking, pushing the pendulum from a reasonable to an extreme position.
As has been suggested in this article, some radiology expert witnesses appear to be expanding the communication duties of radiologists to unreasonable levels and are using the ACR Standard for Communication to do so. The means by which false testimony of expert witnesses can be curtailed have been outlined previously [27, 28]. At the same time, however, a critical review of the source material that provides the basis for some of this false testimony may be in order. Relative to the communication duties of radiologists, perhaps the development of more realistic guidelines of conduct, best accomplished through a major revision of the ACR Standard for Communication, will prove to be extraordinarily beneficial.
|
TopThe CasesMedical-Legal IssuesDiscussionSummary and ConclusionsReferences |
|---|
CiteULike 
Complore 
Connotea 
Del.icio.us 
Digg 
Reddit 
Technorati What's this?
This article has been cited by other articles:
|
|
 |
|
  L. Berlin Errors of Omission Am. J. Roentgenol., December 1, 2005; 185(6): 1416 - 1421. [Full Text] [PDF]
|
|
|
|
 |
|
 J. H. Thrall Reinventing Radiology in the Digital Age: Part II. New Directions and New Stakeholder Value Radiology, October 1, 2005; 237(1): 15 - 18. [Full Text] [PDF]
|
|
|
|
|
|
L. Berlin Using an Automated Coding and Review Process to Communicate Critical Radiologic Findings: One Way to Skin a Cat Am. J. Roentgenol., October 1, 2005; 185(4): 840 - 843. [Full Text] [PDF]
|
|
|
|
|
|
P. A. Larson and L. Berlin Direct Communication of Radiologic Abnormalities: Pushing the Pendulum Back Am. J. Roentgenol., March 1, 2004; 182(3): 817 - 818. [Full Text] [PDF]
|
|
| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| HOME | HELP | FEEDBACK | SUBSCRIPTIONS | ARCHIVE | SEARCH | TABLE OF CONTENTS |
