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Malpractice Issues in Radiology |
1
Department of Radiology, Massachusetts General Hospital and Harvard University
School of Medicine, 32 Fruit 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 March 2, 2000;
accepted after revision March 16, 2000.
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.
The Case
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At approximately 11:00 P.M., the resident was called by an emergency department physician to discuss a newly arrived patient, a 42-year-old woman who had undergone a laparoscopic cholecystectomy 5 days earlier and who now was experiencing severe right upper quadrant pain, fever, and chills. Suspecting an abscess, the emergency department physician requested an immediate abdominal sonogram and, if necessary, aspiration and drainage of any identified fluid collection. The radiology resident made preparations for a diagnostic study but did not contact the on-call attending radiologist.
With the assistance of a sonographic technologist, the resident performed the diagnostic study and identified a subdiaphragmatic abscess. After obtaining informed consent from the patient, the resident successfully placed a drainage catheter in the collection via an intercostal approach. Toward the end of the hour-long procedure, the patient began to complain of shortness of breath and chest pain. The resident took no action, but assisted in returning the patient to the emergency department several minutes later.
The patient's shortness of breath and pain considerably worsened on her return to the emergency department. The emergency department physician ordered an immediate chest radiograph. Because the radiology resident did not respond to his page, the emergency department physician personally reviewed the radiographs and correctly identified a large right hydropneumothorax. The physician then inserted a chest tube that quickly drained air and frank pus. The patient was transferred to the surgical intensive care unit for definitive care but subsequently developed a pyothorax, necessitating an open surgical procedure and a prolonged hospitalization. The patient was ultimately discharged from the hospital and recovered, although she was not able to return to work until 4 months after her cholecystectomy.
After the lodging of a formal complaint by both the emergency department physician and the surgeon who had performed the cholecystectomy regarding the conduct of the radiology resident, the radiology residency program director undertook an investigation of the incident. The investigation revealed that the sonographic technologist had repeatedly reminded the resident of department policy regarding invasive procedures and urged the resident to contact the attending radiologist who had been on call. The resident had ignored these admonitions and the patient's worsening condition and failed to order a postprocedural chest radiograph despite the known risk of pneumothorax associated with the intercostal approach. Furthermore, the resident ignored repeated pages by the emergency department physician after the patient's return to the emergency department.
The radiology program director was aware that this was not an isolated problem with the resident. During the resident's first year, his clinical knowledge and judgment were repeatedly questioned by multiple staff radiologists. Although there was a general reluctance to dismiss the resident, many faculty members advocated formal remedial action. Given the seriousness of the emergency department incident and the resident's history, the program director proposed probation for the resident: a 6-month period during which the resident would be given the opportunity to improve his performance or be dismissed. This probation was subsequently approved at a radiology department faculty meeting. The resident was then called to the program director's office and informed of the probation, its terms, and duration. A formal letter outlining the probation was also sent to the resident.
Three months after the emergency department incident, the resident, the attending radiologist on call, the emergency department physician, the patient's surgeon, and the hospital received notice of a malpractice lawsuit filed by the patient. The patient alleged negligence in the performance of the laparoscopic cholecystectomy, in the performance of the sonographically guided drainage procedure, in the supervision of the radiology resident by the attending radiologist, in the conduct of the emergency department physician, and in the hiring practices of the hospital by allowing the radiology resident to practice.
All involved parties informed their professional liability carriers of the pending legal action. In the meantime, the hospital's risk management office undertook its own investigation. The investigation confirmed that the resident had performed an unsupervised procedure in violation of the radiology department's policy and that the procedure directly resulted in a serious complication. All defendants and their attorneys agreed that these facts made the lawsuit difficult to defend and that a settlement would be in their best interests. After negotiations, the patient agreed to settle the litigation for $200,000 and a waiver of all medical bills.
As settlement was being finalized, the radiology faculty met to determine the resident's fate. Citing a documented lack of improvement in clinical knowledge and judgment during the probationary period, the faculty voted for dismissal. The resident was informed of this decision in a meeting with the program director, provided with details of why the decision had been made, and sent a formal letter of dismissal.
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Defense counsel retained by the hospital on behalf of itself, the chairman, and the program director of the department of radiology reviewed all material related to the former resident's history with the radiology program. This review disclosed that there had been a comprehensive, albeit ad hoc, process by which the faculty had addressed the resident's perceived shortcomings and ultimately dismissed him. The review confirmed that the resident's poor performance had been extensively detailed in written reports that had been discussed with the resident, and that this process had continued throughout the resident's probationary period up to the time the decision for final dismissal was made. Nowhere in the record was there any evidence that the resident had been reprimanded for his specific conduct related to the malpractice lawsuit, and, indeed, there was nothing to indicate that any of the staff of the hospital or radiology department, other than the defense attorney, had ever discussed the actual malpractice lawsuit with the resident.
With the hospital's and defense attorney's internal investigation completed, the defense counsel petitioned the court to dismiss the lawsuit, contending that the resident had been provided adequate due process by the faculty in its academic decision-making process, and that the decision itself was legitimately based on a well-documented inadequate clinical performance and had nothing to do with the malpractice case that had been filed.
The attorney for the former resident strenuously opposed the motion, insisting that the dismissal of the radiology resident was a direct result of the hospital having had to pay "large sums of money" in settlement of the malpractice lawsuit. Ultimately, the judge ruled in favor of the defendants' motion to dismiss the lawsuit, ruling that there had been ample evidence that the radiology resident had been dismissed for inadequate performance and, therefore, that there was no justification for the court to interfere with the hospital's decision to dismiss. The former resident and his attorney elected not to appeal the court's dismissal of the lawsuit.
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The objective fairness in any proceeding in which a right or privilege is withdrawn is the focus of due process analysis, a legal theory that asks whether sufficient procedural safeguards were taken to ensure that an action was not arbitrary or inappropriate. In its true legal sense, due process theory is based in federal constitutional limits on government power and applies only when the government or a party acting with the authority of the government is attempting to curtail a right or privilege [1]. Furthermore, traditional analysis is only applicable when certain types of interests, known as liberty or property interests, are at issue. Liberty interests include loss of personal freedom such as with incarceration, and property interests include loss of valuable tangible or intangible property. It is unsettled law whether participation in a residency program qualifies as a protected interest. Assuming that this participation does qualify, traditional due process analysis is applicable when a training program is affiliated with the government, such as programs based in a Veterans Affairs or state or local government hospital.
Due process analysis has implications well beyond government-affiliated training programs. Many leading constitutional due process cases are based on court decisions that draw from the fundamental principles of American jurisprudence—namely, whether the procedures provided to protect a right or privilege are fundamentally fair. This underlying case law does not require that a decision be made by a party acting with the authority of the government. Accordingly, the fundamental analysis used in constitutional due process may be seen as broadly applicable to private actions, including resident termination cases in nongovernment institutions (Boote RM, unpublished data).
Analysis under due process theory differs with the type of decision being undertaken and the circumstances of the individual subject to that decision. Resident physicians are in somewhat unusual employment circumstances, being paid to perform clinical duties as they learn a profession. As such, residents may be seen as both employees and students. However, when academic performance forms the basis of an employment decision, a resident is considered a student and not an employee for purposes of due process analysis [2].
Guidance on due process required for academic decisions adversely affecting residents is provided by two United States Supreme Court cases addressing the analogous setting of medical student dismissal. In a case involving the University of Missouri Kansas City Medical School, the United States Supreme Court examined a fourth-year medical student's challenge to her dismissal [3]. Although she had performed well in preclinical classes, the student's clinical performance was inadequate, and two medical school committees recommended her dismissal. She appealed the decision in the medical school and was granted additional evaluation processes. Eventually, subsequent poor clinical evaluations led the faculty council of the medical school to reaffirm prior committee decisions that recommended dismissal. The dean of the school reviewed and approved the proposed action and the student was dismissed.
The student objected to the procedure she was afforded and filed suit. Specifically, she contended that due process demanded a formal hearing, with witnesses and cross-examination, before dismissal. In its decision upholding the dismissal, the Supreme Court observed that there is a distinction between faculty decisions to dismiss or suspend a student for disciplinary purposes and similar actions taken for academic reasons. Although disciplinary actions generally require hearings and other formal procedural safeguards, the court noted that there was no state or federal court requirement for formal hearings for academic decisions, and thus ruled that the plaintiff was not entitled to such a hearing. The court stated [3]:
[A] student must be accorded an opportunity to appear personally to contest the allegations of academic deficiency. We stop short, however, of requiring full trial-type procedures in such situations. A graduate or professional school is, after all, the best judge of its students' academic performance and their ability to master the required curriculum. The presence of attorneys or the imposition of rigid rules of cross-examination at a hearing for a student...would serve no useful purpose...Misconduct is a very different matter from failure to attain a standard of excellence in studies. A determination as to the fact involves investigation of a quite different kind. A public hearing may be regarded as helpful to the ascertainment of misconduct and useless or harmful in finding out the truth as to scholarship....Dismissals for academic (as opposed to disciplinary) cause do not necessitate a hearing before the school's decision making body....Requiring effective notice and informal hearing permitting the student to give his version of the events will provide a meaningful hedge against erroneous action....Like the decision of an individual professor as to the proper grade for a student in his course, the determination whether to dismiss a student for academic reasons requires an expert evaluation of cumulative information and is not readily adapted to the procedural tools of judicial or administrative decision making....The educational process is not by nature adversary; instead it centers around a continuing relationship between faculties and students.
The court noted the considerable procedural protection that the school had provided and the "careful and deliberate" decision that was ultimately made. The court concluded that a student or similarly situated individual need only be informed of an academic problem with the potential for serious consequences and be given an opportunity to discuss that problem with the faculty, and that the faculty need only make a careful and deliberate decision.
The Supreme Court revisited medical student dismissal in 1985 when it addressed the degree of deference a court should afford university faculties when evaluating academic decisions [4]. The case addressed a student enrolled in a 6-year joint undergraduate and medical program that required passage of the National Board of Medical Examiners part I examination at the conclusion of the initial 4 years of training. The student failed the examination, was not allowed to retake the test, and was ultimately dismissed from the program. He attacked the dismissal decision itself on due process grounds, noting that all other students who failed the examination in the program's previous 8 years had been allowed to retake the test.
The court rejected the student's challenge, establishing a standard that provided significant judicial deference to academic decisions [4]:
When judges are asked to review the substance of a genuinely academic decision...they should show great respect for the faculty's professional judgment. Plainly, they may not override it unless it is such a substantial departure from accepted academic norms as to demonstrate that the person or committee responsible did not actually exercise professional judgment....Discretion to determine, on academic grounds, who may be admitted to study, has been described as one of "the four essential freedoms" of a university.
Together, these two cases create a legal environment that demands fundamental fairness in situations in which academic dismissal is being contemplated but provides considerable discretion to those making such decisions. The individual facing possible dismissal must be informed of his or her deficiencies and be given the opportunity to discuss the situation with the faculty. These discussions need not rise to the level of a formal hearing. Any faculty decisions must be careful and deliberate, and may be challenged only when evidence indicates that the faculty did not act in a professional manner.
The legal requirements established by these two United States Supreme Court cases are normally met by the review process routinely in place at radiology residency programs. Residents typically have regularly scheduled meetings with the program director or other faculty at which academic progress and any problems are discussed. The substance of these meetings generally satisfies the requirement that students be informed of deficiencies and be given the opportunity to discuss them with faculty. Although it is not legally required, placing a problem trainee on probation or giving some other form of academic warning is specifically recognized by the courts as helping to satisfy due process requirements [5]. Should dismissal be appropriate, the deference to academic decision making granted by the Supreme Court gives the faculty great latitude in reaching this conclusion. In practice, judicial intervention would almost certainly require an arbitrary or vindictive decision or other egregious misconduct on the part of the faculty. These points were emphasized by a United States Court of Appeals decision upholding the termination of a rheumatology fellow from Temple University School of Medicine [5]:
The Court is generally ill-equipped to review subjective academic appraisals of educational institutions, and [must] permit university faculties a wide range of discretion in making judgements as to the academic performance of students.
This concept of academic medical autonomy was affirmed in 1996 by the Connecticut Supreme Court [2]. In upholding the dismissal of a resident from a surgical residency of a general hospital, the Court stated [2]:
Because the consistent purpose of the residency agreement was to provide an educational opportunity, the plaintiff and the hospital had entered into an educational, rather than an employment relationship....The decision to dismiss the plaintiff as an academic decision lay solely within the province of the medical community.
Acknowledging that the surgical resident was dismissed "as a result of the hospital's decision that he was not then, and would not likely become a safe and independent surgeon," and that a residency is "in many respects, part of an educational continuum begun in medical school," the court agreed and stated [2]:
A residency committee's decision to dismiss a resident physician for poor performance in the clinic mirrors a professor's decision to fail a medical school student for poor performance in the classroom, [and] evaluation of performance in the clinical area is no less an academic judgment because it involves observation of...skills and techniques in actual conditions of practice, rather than assigning a grade to...written answers on a essay question.
The court concluded [2]:
Judicial circumspection is particularly warranted in the context of academic decisions concerning medical competency. Put simply, courts are not supposed to be learned in medicine and are not qualified to pass opinion as to the attainments of a student in medicine.
Should a dismissed resident succeed in the difficult task of showing a due process violation, the actual relief granted by the court would probably be relatively limited. As the United States Supreme Court has indicated [6], traditional constitutional due process violations typically result in only minor modification of the challenged procedures. In the absence of truly egregious circumstances, it is doubtful that even successful legal action by a dismissed resident would accomplish more than a court order mandating that the dismissal be reconsidered with slightly more procedural protection.
Can residents be dismissed because their actions precipitated a medical malpractice lawsuit that resulted in a large monetary award to an injured patient? As can be gleaned from this discussion, it should not be the act of precipitating a lawsuit itself, or even a judicial determination that a resident was negligent, that should constitute the sole grounds on which a decision to dismiss is based, because that might be viewed by a court as unreasonable. Rather, it is the general performance and academic achievement of the resident that ought to be the subject of the reviewing body.
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Risk management in radiology can lessen the likelihood of incurring legal action and maximize the chances for a successful defense if a suit is filed, while enhancing the quality of patient care. The following risk management pointers will help radiologists meet these objectives and determine an appropriate course of action when faced with a problem resident.
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