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Malpractice Issues in Radiology |
1 Department of Radiology, Rush Medical College, Chicago, IL, and Department of Radiology, Rush North Shore Medical Center, 9600 Gross Point Rd., Skokie, IL 60076.
Received April 25, 2000;
accepted after revision May 17, 2000.
Case summaries are based on actual events and lawsuits, although certain
facts have been omitted or modified by the author, who has supplied and
authorized reproduction of the radiographic images. 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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After being informed of the results of the radiograph, the gastroenterologist withdrew the catheter approximately 4 inches (10 cm) and resutured it in place.
On the following morning, a Sunday, the gastroenterologist examined the patient, whom he found to be stable. Hyperalimentation was proceeding uneventfully. The gastroenterologist entered on the patient's chart an order that chest radiographs be obtained at 7:30 A.M. the following day, a Monday.
For reasons that were never explained, the radiology requisition completed by the floor nurse for the chest examination did not reach the registration desk of the radiology department until 7:45 P.M. Monday night. Radiography was then performed, but no radiologist was present to interpret the radiographs. At 5:30 A.M. the following morning, a Tuesday, the patient suddenly experienced cardiopulmonary arrest and died. Two hours later, not knowing that the patient had died, a radiologist interpreted the posteroanterior and lateral chest radiographs that had been obtained the night before and said that the tip of the hyperalimentation catheter "seems to be lying" in the right ventricle (Figs. 1B and 1C).
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Autopsy revealed that the tip of the hyperalimentation catheter had perforated the wall of the right ventricle, causing cardiac tamponade from hyperalimentation fluid and death.
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The second area of concern relating to the radiology department was the delay in receipt of the requisition by radiology department personnel. Even though the gastroenterologist entered the order on Sunday morning and a floor nurse reported that she promptly transmitted the order via the hospital information system to the radiology department, clerical personnel in the radiology department insisted that they did not see the requisition until Monday night. When questioned about this delay, the supervising radiology technologist could not offer an explanation. However, the technologist speculated that it was "possible" that radiology department personnel had received the requisition on Sunday and that it had either "gotten lost" or "kept being placed on the bottom of the pile of requisitions" for work to be done on Monday.
The third concern relating to the radiology department was the lack of the true reason for which the second set of chest radiographs was ordered. The requisition contained only the words "routine" and "Crohn's disease." What bothered the defense attorneys was that among the existing policies and procedures of the radiology department is one that states:
It is the policy of the department of radiology to have adequate information present on the requisition prior to radiographic interpretation...[such as the] reason for x-ray examination [and] history referring specifically to the part to be x-rayed.
The written policy ended with the statement, "It is the responsibility of the chairperson of radiology to interpret aspects of this policy, subject to the ultimate authority of the president." The policy had been signed by the department chair.
Deposition testimony of the defendant gastroenterologist relative to the insertion of the catheter is not germane to the subject of this article, but the gastroenterologist did make one statement that directly involved the radiology chair. The gastroenterologist claimed that on Saturday he physically came to the radiology department and discussed the initial chest radiograph with the chairman radiologist. The gastroenterologist stated that it was the chairman who told him to "withdraw the catheter 4 inches." However, the chairman denied that any such conversation ever took place. As will be seen shortly, the jury in the ensuing trial apparently gave more credence to the testimony of the chairman radiologist than to that of the gastroenterologist.
At his discovery deposition, the chairman of the radiology department explained that he did not personally supervise the transmission and receipt of radiology requisitions, the scheduling and triaging according to the level of urgency of radiologic examinations, or the timing of interpretation by radiologists. The chairman acknowledged that the failure to include on the second radiology requisition information that the radiographs were being obtained to evaluate the position of the hyperalimentation catheter did technically violate the policy of the radiology department, but the chairman rejected the contention that he had "any control over the matter."
The radiology expert retained by the attorney for the plaintiff was extremely critical of the conduct not only of personnel in the radiology department but also of the chairman in particular. The radiology expert in his deposition asserted that the radiology chairman breached the standard of care by failing to ensure that the radiology staff was properly trained and directed to enforce departmental policies that require adequate information on radiology requisitions, by allowing staff to prioritize and perform radiographic examinations without any knowledge of the reasons for which examinations were requested, and by failing to see to it that radiographs were obtained and interpreted on a timely basis.
The attorney representing the defendant radiology chairman presented for deposition two radiology expert witnesses, one who had been chairman of a large university radiology department and the other who was currently a chairman of a community hospital radiology department. Both of these witnesses disagreed with the plaintiff's radiology expert and refuted charges that the defendant radiology chairman had breached any standard of care.
As expected, the attorney for the plaintiff retained additional medical expert witnesses who testified that the gastroenterologist and various members of the nursing and radiology staffs of the hospital had acted negligently. Although the defense attorney representing the hospital provided an expert witness who supported the actions of hospital personnel, the defense attorney representing the gastroenterologist was unable to find a witness who could defend the conduct of his client.
The defense attorneys, the claims manager of the insurance company for the gastroenterologist and radiologist, and the hospital administration recognized the obvious liability that would be attributed to the gastroenterologist. However, officers of the hospital were prepared to admit only a small degree of liability because they believed that the radiology department chairman had more likely breached the standard of care than had department personnel. Settlement discussions with the plaintiff's attorney were undertaken, but they eventually broke down because the parties could not agree on appropriate indemnification. The lawsuit thus proceeded to a jury trial [1].
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Because the subject of this article is liability of radiology chairpersons, we shall focus only on the testimony that related to the defendant radiology chairman. The radiology expert for the plaintiff testified that a radiology chairman has "executive functions" that obligate him to be "in charge of" and implement the policies and procedures of the department. The chairman must ensure that the "global operation" of the department of radiology runs in conformance with these policies, stated the expert, who then added, "The buck stops with him."
The plaintiff's expert then turned his attention to the radiology requisition for the second chest examination, the one that called for a "routine PA [posteroanterior] and lateral chest" and that gave the reason for the examination as "Crohn's disease." "Members of the radiology department failed to follow the policy that required adequate information to be given on all requisitions including history referring specifically to the part to be x-rayed," charged the expert; their failure to do so, continued the expert, was the direct fault of the radiology chairman:
...who as senior medical executive of the department, had a duty to educate technologists, technical staff and supervisors to make sure that the chain of command is intact and everybody is aware of why you do exams and what's important or not important....I think we clearly have a department chair who was running somewhat on autopilot and it's clear that policies and procedures were not followed. The radiology department chairman is an executive and his failure to ensure that an appropriate policy was in place for what to do if there was no reason for the radiologic examination is inappropriate and does not meet the standard of care. As the chief executive, the chairman is responsible for what happens and for what fails to happen in his department.
The former chairman of a university hospital radiology department retained by the attorney for the defense took issue with much of the plaintiff expert's testimony. The defense expert stated that although it is helpful to obtain as much information as possible on a radiology requisition, giving the reason for the chest radiographs as "Routine.... Patient has Crohn's disease" was sufficient to meet the standard of care in this case.
"If the radiologist requires additional information upon interpreting the radiograph," explained the defense expert, "it would be the responsibility of the interpreting radiologist to contact the attending physician for it." On the issue of whether a chest radiograph ordered for "Monday morning at 7:30" should have been obtained at that time, the radiology expert stated that because the requisition had indicated "routine," personnel in the radiology department who normally prioritize examinations according to the urgency of the patient's condition and the availability of technologists and radiography equipment would likely have given low priority to this examination. The expert concluded that it was his opinion that the defendant radiology department chairman, as well as radiology department personnel, fully complied with the standard of care.
The chairman of a community hospital radiology department, testifying on behalf of the defense, agreed, adding that in his experience it would be entirely possible that in a busy radiology department, in which perhaps there may have been equipment breakdown or less than a full complement of technologists, routine chest radiographs ordered for the morning for a hospital inpatient might not be obtained until night. "Such a delay would not indicate a violation of the standard of care," asserted the expert.
During cross-examination, the attorney for the plaintiff asked the community hospital radiology expert for the defense, "Isn't the failure to have included in the second radiology requisition the reason for the chest radiograph a blatant violation of the radiology department policy that required reasons for examinations?" "No," responded the defense expert, "because a reason was given— `routine' is a reason for a chest radiograph. In retrospect, it may not have been the correct reason, but it was a legitimate reason." The plaintiff's attorney then asked whether radiology department personnel or the radiology department chairman had the duty to check the patient's radiology file, in which case they would have discovered that the patient chest radiographs obtained 2 days earlier showed the tip of the catheter abnormally located in the pulmonary artery. The plaintiff's attorney asked:
If they had done that, wouldn't they have known that the reason given for the chest examination ordered to be done on Monday was incorrect, and wouldn't they have realized that the chest radiographs should have been done immediately in the morning and presented promptly to a radiologist for interpretation?
"Radiology personnel had no such obligation to do that," responded the defense expert.
The plaintiff's attorney then held up the radiology department policies regarding radiology requisitions that were signed by the defendant radiology department chairman and asked:
Doesn't this indicate that the chairman is the defendant authority in the radiology department, that the chairman is charged with the duty to enforce these policies, and that the chairman would therefore be responsible for any injury that results from failure to follow these policies?
"Whether the chairman signed the policy or not," answered the defense expert, "there is no way in the real world that a chairman can be responsible for seeing that every policy is implemented. The chairman can't be looking over the shoulders of every member of the department."
At the conclusion of the trial, which lasted almost 2 months, the jury deliberated and reached a verdict. The jury found the defendant radiology chairman not liable but did find both the gastroenterologist and the hospital liable for negligence, awarding $6.4 million to the family of the deceased woman.
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It is a generally accepted theory in law that employers bear the liability for negligent acts committed by employees if these acts occur during performance of the employees' usual duties. In these situations, the negligence of one person is imputed or placed on another, resulting in vicarious liability [4]. If the relationship between the two persons is that of employer—employee, negligent conduct of the employee would be assumed by the employer under the legal doctrine known as "respondeat superior"—that is, "let the superior respond." This type of vicarious liability is generally applicable to hospitals or other medical facilities in which nurses, technologists, or physicians are employed by that hospital or facility. Accordingly, if a radiologist chairperson is employed by a hospital, the hospital would be liable for any negligence committed by the radiology chair, notwithstanding whether these acts arise from professional or administrative activities [5]. Furthermore, in more and more states, a trend is emerging that extends vicarious liability not only to employed radiologists but also to independently contracted ones [6,7,8].
I am unable to find any written appeals court decisions that deal directly with liability of chairpersons resulting specifically from administrative actions. However, we can get an inkling of how the courts might address this issue by briefly reviewing court decisions that speak to the legal obligations of chairpersons in their capacity as supervisors of residents and technologists. Let us begin by first exploring the relationship between the degree of control that one person has over another and the liability incurred by the person in control. In a case relating to the liability of a privately practicing physician in a hospital, a Texas court said [9]:
As a general rule, a physician who exercises due care is not liable for the negligence of nurses, attendants or interns who are not his employees. However, one who borrows [temporarily] another's employee may be liable...for the borrowed employee's negligent acts if he acquires the same right of control over the employee as originally possessed by the lending employer.... Liability turns on whether the [attending physician] had the right to control the manner of the [employee's] performance of his duties.
The Texas court focused on the legal concept known as the "borrowed servant" principle that holds that, in a hospital setting, residents or other hospital employees who are assigned temporarily to attending physicians who have the right to control and supervise these employees are "borrowed servants" of those physicians. As a result, the physicians may be liable for any acts of alleged negligence committed by the employee. The ultimate extension of the borrowed servant principle in a hospital setting is the "captain of the ship" doctrine. Originally, this doctrine applied to surgeons who were held automatically liable for any act of negligence committed by medical or nursing personnel in an operating room. Although this legal doctrine today seems to be losing favor in many legal jurisdictions [10], it still may indirectly affect potential liability of chairpersons. Let us review two cases that are illustrative.
A patient whose rectum was perforated during barium enema tip insertion by a Kansas hospital radiology technologist sued the radiologist, even though the radiologist was not in the room at the time of insertion. The lawsuit claimed that because of the captain of the ship doctrine, the radiologist should be held responsible for acts of medical personnel under his control during a radiologic procedure. The Kansas Supreme Court rejected this claim, ruling that the radiologist was not liable for the actions of the radiology technologist, and added that the law did not require a radiologist to be physically present to supervise every activity that occurred in a radiology department [11].
However, an opposite conclusion was reached 1 year later in Alabama. There, a surgical sponge was left in the abdomen of a patient after laporatomy allegedly because the operating room nurse had given an incorrect sponge court to the surgeon. Although not specifically invoking the captain of the ship doctrine, the Alabama Supreme Court nonetheless held the surgeon liable, stating [12]:
The responsibility to remove the sponges was that of the doctor and not that of the nurses assisting him.... The mere fact that the defendant delegated the task of counting the sponges, once he had removed them from the patient, does not, in any way, relieve the defendant of his responsibility to remove them in the first instance. He had the duty and the responsibility of removing all the sponges. The nurse's responsibility of counting them afterwards amounts to only an added precaution taken by the defendant to help ensure that he had properly performed his duty.
It can be concluded from these two court decisions that any health care facility that employs radiology department personnel is ordinarily solely responsible for any negligent acts committed by these personnel while they are working under policies formulated and enforced by the facility [3]. However, when radiology department personnel perform radiologic examinations or take other action under the direct supervision of the radiologist, whether the radiologist is a chairperson or not, that radiologist can be held vicariously liable. There is, however, an important caveat when considering liability of a department chairperson: the concept of governmental immunity.
It is a general rule of law that municipal or state officials, performing the duties imposed on them by statutes creating their respective offices and prescribing their duties and exercising in good faith the judgment and discretion necessary thereof, are not liable personally in damages for injuries to private individuals resulting from official acts of such officials [13]. All state legislatures have passed governmental immunity laws that protect various officials in state university or public hospitals, including program directors and department chairs, from liability incurred during performance of administrative duties [10]. Keeping governmental immunity in mind, let us turn to supervision of residents.
Can a department chairperson be held liable for actions of residents participating in a department residency program even though the resident may not be under the direct control of the chairperson? Courts have been divided on this issue.
The distinction courts make between physicians directly charged with supervision of residents in the care of patients and physicians performing administrative duties in their role of chair or program director can be illustrated by three cases. In Kansas, an anesthesiology resident inadvertently inserted an endotracheal tube into the esophagus of a patient, leading to serious brain damage. A malpractice lawsuit was filed naming as co-defendants the anesthesiology resident and the chairman of the anesthesiology department. Because, in Kansas, state officials are immune from civil litigation, the attorney for the chairman moved for dismissal. Using rather convoluted reasoning, the Kansas Supreme Court circumvented the immunity exemption by holding that the chair "was responsible for and had direct control [through the resident] of administering anesthesia to the plaintiff" [14].
A similar ruling was tendered by the Supreme Court of New York. There, a woman was injured during a gynecologic procedure performed by a resident. Along with the resident, the chairperson of the department was sued for failing to "adequately supervise and provide rules and regulations for the resident staff as to the necessity of seeking prompt consultation from attending physicians." The court stated [15]:
[The chairperson is charged with failing] to develop medically acceptable rules and regulations regarding physicians and qualifications of the attending staff, and enforce those rules and regulations...and to provide rules and regulations for the resident staff as to the necessity in certain circumstances to seek prompt consultation with attending physicians....[The chairman's] principal argument...is that since he did not render any medical care or treatment personally...he cannot be liable...for medical malpractice.It was the duty of the chief of service to establish rules for supervision of residents and interns when private attending physicians were not available....A failure on the part of the chief of service to...develop and implement rules, regulations and guidelines for treatment and supervision is a claim for breach of duty which rested initially with the hospital but which was allegedly delegated by the hospital to [the chair]....The responsibility for the supervision for these medical personnel within the hospital structure lay with the chief of service....If the chief of service fails to provide medically acceptable rules and regulations which would ensure appropriate supervision of all patients, then it is reasonable to find that a breach of the standards of medical care by that individual has occurred.
A federal court in Virginia rendered a contradictory decision in a case involving the chairperson of an ophthalmology department [16]. The court acknowledged that the state "has little interest in immunizing the faculty from liability for its own negligent conduct," but it pointed out that the chairperson had never established a patient—physician relationship with the defendant. The court said [16]:
The fact...[that the chairman]...was ultimately responsible for all ophthalmology patients does not and cannot mean that [the chairman] undertook an obligation to treat every patient in the medical center who needed ophthalmology services. As head of his department, [the chairman] performs an administrative and teaching function. In these matters, the state has a strong interest in extending immunity to its employee.
It is apparent from the discussion thus far that no consensus exists among state judiciaries on the question of whether hospital chairpersons can be held liable for actions of department personnel who are not directly employed by the chair. Because of governmental immunity, however, there is a greater likelihood that a chairperson in a private hospital will be held liable for "administrative malpractice" than will a chairperson in a state- or municipally owned hospital. Nonetheless, even in the latter situation, the courts may find a way to impose liability on the chairperson.
Postprocedure Chest Radiographs
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Trerotola et al. [19] agreed that "when nontunneled catheters are used routine post-procedure chest radiographs are not needed, because misplacement is virtually never a problem." Trerotola et al. did think, however, that when tunneled catheters are placed, the continued use of postplacement chest radiography is warranted because of the possibility of catheter migration.
In a recent study reviewing 937 consecutive central venous access procedures, Caridi et al. [20] also concluded that when imaging guidance and interventional radiologic techniques are used, postprocedure chest radiography should not be used routinely but should be limited to "only selective, difficult, or high-risk patients." In the study of Caridi et al., 74% of the procedures involved tunneled catheters. Subclavian vein access occurred in fewer than 2% of cases; the researchers reported that during the past 5 years, they have not performed any access procedures using the subclavian vein route.
Although the consensus of these recently published articles is that routine postprocedure chest radiographs are not needed after insertion of central venous catheters, let us not forget that in the case of the 36-year-old woman described in this article, $6.4 million was awarded because of death after the misplacement of a catheter. Although the size of this verdict may shock some readers, it is by no means a record verdict. In 1999 an Oregon jury awarded $17.7 million to a 45-year-old woman who sustained permanent brain damage after a cardiac arrest that was apparently caused by infusion of IV fluid into a misplaced central venous line [21]. Of course, researchers who state that routine postprocedure chest radiography is not necessary qualify their opinions by pointing out that, with their patients, central venous access was accomplished using the internal jugular venous route, sonographic or fluoroscopic guidance, and interventional radiologic techniques.
One final comment is in order regarding the litigation tactic used by plaintiffs' attorneys —in this case and in many other medical malpractice cases. When filing their lawsuits, plaintiffs' counsel typically name as defendants as many sources of potential indemnification—that is, as many so-called deep pockets—as possible. Their strategy in doing so is to maximize funds available in the event their lawsuits succeed for their clients. This practice may well explain why the attorney for the plaintiff in this case included the radiology chairman as a codefendant. Anticipating that the jury verdict would be large, exceeding the insurance limits of any one physician, the plaintiff's attorney attempted to convince the jury to find liable as many defendants as possible.
In the case described here, the gastroenterologist and the chairperson radiologist were insured by the same company; the hospital was self-insured. Pretrial settlement discussions broke down because hospital management and claims representatives of the doctors' insurance company could not agree with each other or with the plaintiff's attorney on a total payment amount or on how that total payment would be split among the defendants. The lawsuit was tried in a state in which there is "joint and several liability," meaning that the codefendants decide, rather than the jury or the judge, how to divide among themselves the responsibility of paying the financial award stipulated in the verdict. Had the jury found the radiology chairman liable as well as the gastroenterologist, the doctors' insurance company would have borne a much higher percentage of the total verdict. The finding by the jury of nonliability on the part of the radiologist chair allowed the doctors' insurance company to look to the hospital to shoulder a greater share of the financial burden.
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  J. J. Smith and L. Berlin Picture Archiving and Communication Systems (PACS) and the Loss of Patient Examination Records Am. J. Roentgenol., June 1, 2001; 176(6): 1381 - 1384. [Full Text] [PDF]
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L. Berlin The Deep Pocket Am. J. Roentgenol., November 1, 2000; 175(5): 1243 - 1247. [Full Text] [PDF]
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