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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 June 29, 2000;
accepted after revision July 7, 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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Dictations were manually transcribed and generally were placed in the information system for review within 3 hr by the interpreting radiologist. Reports dictated late in the day usually would be reviewed the next morning by the interpreting radiologist, who would then make any necessary changes, finalize the report with an electronic signature, and have it printed and distributed.
The radiologist who interpreted MR cases on this particular Friday afternoon was preparing to leave the following morning for a 1-week vacation, and, therefore, would not be available to review and sign reports dictated late in the day. To avoid delay in distribution of these reports, the radiologist followed what had become standard procedure in the radiology group by asking a colleague to sign his "last minute" reports when they became available the next day.
On the morning of the next day, a Saturday, the colleague quickly looked at the MR report of the knees on the computer, and finding no typographic errors, electronically signed the report with her own name, adding the words, "on behalf of (name of the interpreting radiologist)."
Nine days later, the radiologist who had signed the report received a telephone call from the orthopedic surgeon who had ordered the MR examination. The orthopedic surgeon told the radiologist that because the patient had been one of the stars of the high school football team and wanted to resume playing as soon as possible, the young man's family had pressured the surgeon into performing arthroscopic surgery immediately. The surgeon said that although he had wanted to review the MR images preoperatively, he was unable to do so because "nobody in the X-ray department could find the films." The surgeon thus proceeded to operate on the patient's left knee on the basis of the MR report, but found to his chagrin that the anterior cruciate ligament and lateral meniscus were normal. When the radiographs were located the next day, the surgeon discovered that the internal derangement was present in the right knee, not the left; the dictated report had incorrectly transposed "left" with "right," and vice versa. The signing radiologist responded that she had not dictated the report but had merely signed it on behalf of her colleague, who had actually interpreted the MR study. The signing radiologist suggested that the orthopedic surgeon contact the interpreting radiologist for further discussion.
Three weeks later, the signing radiologist learned that the orthopedic surgeon had subsequently performed arthroscopic surgery on the patient's right knee and successfully repaired the torn anterior cruciate ligament and damaged lateral meniscus.
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The company that provided professional liability insurance for the two radiologists appointed a defense attorney who reviewed all records relating to the incident. The attorney found that the interpreting radiologist had indeed inadvertently reversed the right and left knee findings in the radiology report, which in turn influenced the orthopedic surgeon into performing arthroscopic surgery on the wrong knee. The attorney further confirmed that the signing radiologist had followed what was an unofficial but standard radiology group procedure by electronically signing a colleague's report without actually reviewing the images on which the report was based.
Another defense attorney appointed to represent the orthopedic surgeon confirmed the surgeon's claim that he had operated on the wrong knee because he had relied completely on the radiologist's report. The attorney quoted the surgeon as stating that he "normally reviews the MR images before operating," but that he did not in this case because "people in the radiology department couldn't find the films right away."
The defense attorneys and claims managers for the doctors' insurance companies believed they had a reasonable chance of arguing persuasively to a jury that even though their clients had made a mistake, the mistake did not cause the patient serious injury. They believed that the plaintiff's attorney would have a difficult time proving that the unnecessary arthroscopic procedure performed on the patient's left knee caused any harm, or that the delay in performing the appropriate procedure on the correct knee worsened the patient's condition. They also doubted that the plaintiff's attorney could convincingly argue that the student's loss of the athletic scholarship was related to the surgeon's treatment.
On the other hand, the defense attorneys were concerned that a jury might be highly critical of the actions of the physician defendants. The very fact that the orthopedic surgeon had operated on the patient's wrong knee without first reviewing the MR images would not "sit well" with the jury, surmised the attorneys, and the anticipated testimony from the two radiologists might even be worse. The defense attorneys could not envision any argument that would convince a jury that it was acceptable for a radiologist to mix up the left knee with the right knee in an MR report. The attorneys worried that the jury might consider actions of the interpreting radiologist to be careless if not reckless.
From the standpoint of the signing radiologist, the defense attorneys worried that the jury would be unsympathetic to and possibly become disdainful of a radiologist who admitted that she signed a report, which in essence attested to the accuracy of the report, without reviewing the images themselves. In short, although the defense attorneys believed that they had a reasonable chance of prevailing on the damages aspect of the issue, they were concerned that the vulnerability on the liability aspect was so great that the jury would almost certainly find for the plaintiff. The attorneys and the claims managers for the insurance companies recommended that the case be settled.
After much negotiation, an out-of-court settlement of $500,000 was reached, half to be apportioned to the orthopedic surgeon, the remainder split equally between the two radiologists.
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A physician's duty to a patient cannot but encompass his affirmative obligation to maintain the integrity, accuracy, truth and reliability of the patient's medical record. His obligation in this regard is no less compelling than his duties respecting diagnosis and treatment of the patient, since the medical community must, of necessity, be able to rely on those records in the continuing and future care of that patient.
Because radiology reports are part of the medical record, radiologists are similarly obliged to maintain accuracy of these reports [3]. Although the courts to our knowledge have not yet directly addressed the duty of radiologists to maintain accuracy of radiology reports, governmental agencies, accrediting bodies, and professional societies have issued regulations and guidelines that are quite specific about radiologists' responsibilities of ensuring accuracy of reports. We shall briefly review these.
The ACR Standard for Communication: Diagnostic Radiology [4] states in its revision that became effective January 1, 2000:
The final report should be proofread to minimize typographical errors, deleted words, and confusing or conflicting statements.... The final report should be completed in accordance with appropriate state and federal requirements.... Electronic or rubber-stamp signature devices, instead of a written signature, are acceptable if access to them is secure.
The Health Care Financing Administration (HCFA) in its current version of Conditions of Participation for Hospitals [5] states, "The radiologist or other practitioner who performs radiology services must sign reports of his or her interpretations."
The Joint Commission on Accreditation of Healthcare Organizations (JCAHO) in its standards, mandates [6], "Every medical record entry is dated, its author identified, and, when necessary, authenticated.... Routine X-ray reports do not require authentication."
The JCAHO defines the word "authenticate" as "the process used to verify that an entry is complete, accurate and final."
It is clear from these statements that radiologists have a duty to render reports that are accurate. What is not necessarily clear, however, is whether radiologists themselves must sign their own reports, or whether they can be signed or authenticated by others. HCFA holds that all entries placed in the medical record "must be authenticated and dated promptly by the person who is responsible for...providing...the service furnished" [5]. This clearly means that the radiologist who interprets the radiographs must sign his or her own reports [1].
By defining the word authenticate as a process, the JCAHO has taken a more flexible position as to whether radiologists must sign their own reports, because it depersonalizes the authentication and opens the door to proxy signatures. What is more, by mandating that every medical record be authenticated only "when necessary," the JCAHO has eliminated its blanket requirement that radiologists sign all reports [7]; indeed, the JCAHO gives each hospital the discretion to decide on its own whether radiologists must sign reports. This is a recent change, however, because before July 1996, JCAHO did in fact require that all radiology reports be reviewed and signed by the radiologist who rendered the service [7, 8].
The American College of Radiology has urged HCFA to take a similar tack by relaxing its rule that every radiology report be authenticated by the radiologist who performed the radiologic procedure or interpretation. However, HCFA has not yet taken action on this point (Lucey L, personal communication).
In contemporary radiology practices, radiologists generate a large number of reports every day, and take time off for vacations, illnesses, and attendance at continuing medical education courses. In such circumstances it becomes difficult for radiologists to adhere to the letter of regulations by verifying the accuracy of every report based on recollection of an interpretation rendered many hours earlier at the time the radiologic study was performed. In radiology practices today, referring physicians demand rapid report turnaround, as do third-party payers if payment for services is to be made in a reasonable period of time. These realities have created an environment in which radiologists are frequently compelled to sign reports for colleagues who are unable to so in a timely manner. Although technologic advances such as voice-activated dictation will allow immediate report generation and final signing, these technologies have yet to penetrate the radiology community on any large-scale basis.
As illustrated in the case discussed here, radiologists who final-sign a colleague's report rarely review the images on which the transcribed dictation was based, and, thus, may finalize a report that contains inaccurate or erroneous information. Any malpractice lawsuit that may be engendered by an incorrect radiology report produced in this manner will likely engulf both the interpreting and signing radiologists.
Which one of the two radiologists is apt to be found at fault? In cases in which the interpreting radiologist personally or electronically signs his or her own report to finalize it, there is no doubt that the radiologist will be responsible for any errors contained in that report. If those errors are found to constitute negligence and are shown to be the cause of patient injury, that radiologist will be held liable for those damages.
Matters become less straightforward when a radiologist takes on the responsibility of reviewing the transcript of a colleague's dictation and then finalizing that document to produce a final report. The interpreting radiologist will certainly have legal exposure for any errors contained in the final written report, even if that radiologist did not sign it. The signing radiologist, however, is almost certainly exposed to legal liability as well.
The signing radiologist is potentially liable in two ways. First, the signing radiologist can be held accountable for obvious errors that occurred during the dictation or transcription process that should have been recognized by a thorough proofreading of the report. This would include any confusing statements, gross misspellings, or obvious omissions of words or sentences. A classic example of a confusing statement would be a report that refers to a finding on one particular side of the body in one portion of the report but in another portion of the report describes the same finding as being on the opposite side. Should the signing radiologist fail to recognize and rectify these errors, he or she would more than likely be held liable if patient injury results.
A more problematic question is whether the signing radiologist could be held liable for errors that remain unrecognized in the written radiology report because the signing radiologist has not reviewed the images personally. Although we know of no written appeals court decisions that have directly addressed this issue, there has been litigation at the trial court level that tangentially touches on it.
In Illinois, a 32-year-old woman underwent chest radiography that was interpreted by a radiologist as normal. Eighteen months later, follow-up radiographs revealed a mass in the apex of the right lung that was diagnosed as a benign neurofibroma. Retrospective review of the initial chest radiographs showed that the lesion had been present but not reported.
A malpractice lawsuit was filed, claiming damages resulting from the missing of the lesion on the initial chest radiographs. The radiologist whose name appeared on the "official" report of normal findings on the initial radiographs claimed that he had never seen the study, although the radiologist acknowledged that the signature on the report was his. The radiologist said that the style of language used in the report indicated that the report was dictated by his colleague, and that the hospital typist had mistakenly put his name on the report instead. Asked why he would sign a report that he had not dictated, the radiologist admitted that it was his usual practice to sign reports at the end of the day without reading the reports carefully. The associate radiologist to whom the interpretation of the radiographs was attributed denied dictating the report. With both radiologists pointing fingers to incriminate each other, the lawsuit was determined to be indefensible and was settled for $37,600 on behalf of each radiologist [9, 10].
How would the court deal with the issue of a radiologist's liability for signing a colleague's report? Although we cannot find any specific appeals court decision that confronts this issue head-on, a New Jersey Appellate Court has addressed it indirectly. In that case, a patient fractured her wrist and was admitted to a hospital for surgery. Hospital policy required that preoperative chest radiographs be obtained. A radiologist interpreted the radiographs as showing a 2-cm nodule in the left lung, suggestive of malignancy. The radiologist dictated the report but did not verbally contact the referring physician.
Neither the treating orthopedic surgeon nor the anesthesiologist reviewed the radiographs, and unfortunately the radiologist's report did not reach the patient's chart until long after the patient was discharged. On the day of discharge, the orthopedic surgeon dictated and then signed a discharge summary that stated in part, "Chest X-ray was unremarkable," even though the surgeon had seen neither the radiographs nor the radiologist's report. The patient was not told of the tumor until follow-up radiographs were obtained 4 months later. The patient ultimately died of carcinoma, but before she did, she and her family field a malpractice suit alleging that the physicians had negligently delayed the diagnosis of her cancer. At trial, a jury found the orthopedic surgeon not liable for malpractice because the surgeon had not ordered the chest radiographs and had never seen them or the radiology report. However, the appellate court, focusing on the discharge summary that the orthopedic surgeon had signed, reversed the jury decision, stating [11]:
We conclude that [the orthopedic surgeon] was negligent in signing a discharge summary which reported the findings of the chest X-ray as unremarkable. If [the patient's] X-ray report was attached to the record, contrary to [the orthopedic surgeon's] testimony, his failure to read that report and correctly record its findings was negligence. On the other hand, if the X-ray report was not contained in the hospital record, as [the orthopedic surgeon] claims, he was negligent in recording chest X-ray findings which he had never seen, as unremarkable.
In either event he was negligent, and the finding by the jury to the contrary was against the weight of the evidence presented.
It could be argued that this single decision may not be applicable to a radiologist signing a colleague's report, because it involved a treating physician rather than a radiologist. Nevertheless, the New Jersey Appellate Court's ruling is so basic that it very likely applies to all physicians, including radiologists: by signing a report, a physician attests to the accuracy of the information the report contains. Let us not forget that important medical decisions affecting diagnosis and treatment of patients are routinely made on the basis of the content of written radiology reports. Should the information in these reports be inaccurate, the physician whose signature appears on these reports will bear responsibility for any patient injury that results.
In the case discussed here, the radiologist signed the report with her own name, followed by the words, "on behalf of (the name of the interpreting radiologist)." Would the potential liability of the signing radiologist be less or nonexistent if different words were used in the proxy signature, such as, "signed in the absence of," "signed but not interpreted by," "signed for billing purposes only by," or "interpreted by Dr. X, report signed by Dr. Y"? Would potential liability be eliminated if the signature on the report were that of the interpreting radiologist followed by a slash and then the initials of the signing radiologist? The answer to these questions is, probably no; however, this question has not been addressed in a court of law to the best of our knowledge.
It seems unlikely that the degree to which a jury would impose liability on the signing radiologist would depend on the phraseology used in constructing the signature. After a radiologist affixes, personally or electronically, his or her name or initials to a radiology report even if disclaimers are attached, he or she is attesting to the accuracy of that report. The radiologist who would attempt to testify before a jury that he or she signed a report but had no duty to review the actual radiographs described in that report may well be seen by that jury as arrogant; the signing radiologist who would attempt to testify that he or she was "too busy" to look at the radiographs may be seen by a jury as callous; the signing radiologist who would attempt to testify that he or she did not review the radiographs because "they already were read by another radiologist," may be seen by a jury as indifferent to the needs of the patient. In any of these scenarios, the jury is not likely to find the radiologist free of negligence, especially if the inaccuracy of the report was a major one and could be linked to a serious injury incurred by the patient. In all probability, both the radiologist who misinterpreted the study to begin with, and the signing radiologist who had the opportunity to correct the error if he or she had looked at the radiographs but failed to do so, would be found liable.
Some radiologists have wondered whether the signing radiologist should be identified at all—in other words, perhaps only the signature of the interpreting radiologist should be affixed, anonymously, even if the interpreting radiologist is not available. We recommend that this not be done, for it may look far worse to jurors if they learned that the interpreting radiologist's name had been affixed to a report by a person or persons unknown on a date when that radiologist was out of town. A jury might suspect a cover-up or even fraud in such circumstances. It is far better to honestly reveal all parties actually involved in the signing process and to defend that process as reasonable.
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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 all three of these objectives when confronting the issue of signing a report for a colleague.
Acknowledgments
The authors thank Thomas W. Greeson for his invaluable contributions in the
preparation of this article.
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  P. F. Winter and L. Berlin Signing a Colleague's Radiology Report Am. J. Roentgenol., August 1, 2001; 177(2): 471 - 471. [Full Text] [PDF]
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E. M. Lautin, L. Berlin, and N. S. Goldberg Writing, Signing, and Reading the Radiology Report: Who Is Responsible and When? Am. J. Roentgenol., July 1, 2001; 177 (1): 246 - 248. [Full Text] [PDF]
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