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Malpractice Issues in Radiology |
1 Department of Radiology, Rush Medical College, Chicago, IL 60612, and Department of Radiology, Rush North Shore Medical Center, 9600 Gross Point Rd., Skokie, IL 60076.
Received April 17, 2001;
accepted after revision April 27, 2001.
Case summaries are based on actual events and lawsuits, although certain
facts have been omitted or modified by the author, who has supplied and
obtained authorization for the reproduction of any 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.
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At 11:30 P.M. the radiologist who was taking calls for his community hospital—based radiology group received a telephone call at home. The caller identified himself as the physician assistant (PA) employed by one of the orthopedic surgeons at the hospital. The PA advised the radiologist that he had just seen a 63-year-old man who had undergone elective hip replacement surgery earlier in the day and who was now experiencing chest pain. The PA said that he suspected that the patient might be experiencing a pulmonary embolism and asked the radiologist to authorize the immediate performance of radionuclide lung ventilation—perfusion imaging.
The radiologist had never before received an emergency call from a PA, but he was aware that several months earlier, the orthopedic surgeon whose patient was the subject of the telephone call had hired a PA and that the PA had been granted limited medical privileges at the hospital. The radiologist asked the PA whether the orthopedic surgeon or any other physician had examined the patient. The PA replied that he had not yet consulted the orthopedic surgeon because he was following guidelines that had been set up by the orthopedist for postoperative patients experiencing chest pain. Under the guidelines, the PA would make an initial evaluation, order pulmonary ventilation—perfusion imaging, and then, if findings were positive, consult the orthopedic surgeon for further direction. The radiologist then asked the PA whether chest radiographs of the patient had been obtained. The PA responded that the chest radiographs were "normal." Although the radiologist felt uneasy and not entirely comfortable communicating only with the PA, he agreed to call a nuclear medicine technologist to the hospital to perform the pulmonary imaging.
Within an hour, the technologist teleradiologically transmitted the ventilation—perfusion images to the radiologist's home. The radiologist interpreted the studies as normal and telephoned his report to the PA. The radiologist then went back to sleep and heard nothing further regarding the patient.
When the radiologist arrived at work the following morning, he learned that the patient had died at 5:00 A.M. The patient had gone into shock at approximately 4:00 A.M., at which time a thoracic surgeon had been asked to examine the patient. The surgeon had recommended immediate surgery, but the patient had died en route to the operating room. Later that day, an autopsy revealed that the patient had sustained a dissection of the ascending and upper descending portions of the thoracic aorta. The cause of death was attributed to rupture of the aorta with massive hemorrhage.
The radiologist looked at the patient's radiology film jacket and found that it contained only one chest radiograph, a portable anteroposterior view obtained after the patient had gone into shock. The radiograph revealed a markedly dilated ascending aorta with total opacification of the left chest. The radiologist found no record of the patient's having undergone any earlier chest radiography at the hospital. Perplexed, the radiologist called the PA and asked him why, on the previous night, the PA had said that the patient's chest radiographs were normal. The PA replied that when the radiologist had asked him if any chest radiographs had been obtained on the patient, the PA interpreted the question to mean whether any preoperative radiographs were available and, if so, what they revealed. The PA explained that the patient's medical chart contained a note stating that the patient had undergone chest radiography at the office of his internist the day before admission, and the findings had been interpreted as normal. It was to that radiographic study the PA had referred. Although the radiologist now realized that a serious miscommunication had occurred between the PA and himself, he decided to say nothing further about the matter.
Six months later, the family of the deceased patient filed a medical malpractice lawsuit against the hospital, orthopedic surgeon, PA, and radiologist, alleging that the defendants were negligent in failing to promptly diagnose and appropriately treat the patient's aortic dissection.
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The orthopedic surgeon had employed the PA, and the PA had been admitted to the hospital's medical staff and granted certain privileges. The PA was authorized to examine patients and order laboratory and radiologic tests under the supervision of the orthopedic surgeon and was expected to adhere to various guidelines, including those applicable to postoperative patients in whom pulmonary embolism was suspected. The guidelines called for the PA to conduct an initial evaluation of the patient and to order the test without first consulting the orthopedic surgeon if, in the judgment of the PA, radionuclide imaging of the lung was indicated. However, the guidelines quite explicitly stated that if the PA harbored any doubt about the clinical findings of the patient or indications for testing, the PA should consult immediately with the orthopedic surgeon before proceeding. In his deposition, the defendant orthopedic surgeon testified that he repeatedly reminded the PA not to hesitate to call him "at any hour of the day or night" if there was any concern about a patient's clinical condition. The orthopedic surgeon stated that if the PA had called him, he would have come immediately to the hospital to examine the patient.
The PA, in his deposition, testified that if he had suspected that the patient had an entity other than pulmonary embolism, he certainly would have called the orthopedic surgeon. The PA explained that when the results of the ventilation—perfusion imaging were reported as normal, he concluded that the patient was in satisfactory condition and that there was no need to contact the orthopedic surgeon at that time, which was approximately 1:00 A.M. When asked why he hadn't ordered chest radiographs at the initial examination of the patient for chest pain, the PA replied that he hadn't thought it necessary because radiographs obtained a day earlier had been normal.
An expert in orthopedic surgery retained by the plaintiff was highly critical of both the orthopedic surgeon and the PA. The orthopedic surgery expert testified in his deposition that the PA should have recognized the severe clinical condition of the patient, ordered immediate chest radiographs, and asked the orthopedic surgeon to come promptly to the hospital and evaluate the patient, or, alternatively, to call for an immediate consultation with an internist or chest surgeon. The expert further charged that the orthopedic surgeon had a duty to appropriately supervise the PA and that he had been negligent for failing to do so.
The defendant radiologist testified in his deposition that he always demands that chest radiographs be obtained and evaluated before pulmonary scintigraphy is performed in patients suspected of having pulmonary embolism. The radiologist explained that the request for pulmonary scintigraphy is usually initiated by physicians who are knowledgeable about the clinical findings and management of entities such as pulmonary embolism and aortic dissection. The radiologist testified that the event occasioning the lawsuit was the first time that he had received a request for an emergency radiologic examination from a PA and that, therefore, he was unsure about the PA's knowledge and the extent to which he should "second-guess" the PA. The radiologist said that when he was told by the PA that the chest radiographs were normal, he assumed that the radiographs had been obtained within the previous 1-2 hr. The radiologist defended his own actions in the case by stating that once he had been told by the PA that the chest radiographs were normal, he complied with the PA's order for the performance of pulmonary scintigraphy and then correctly interpreted the scintigraphy as normal. "I wasn't asked to do anything else," contended the radiologist, "and it wasn't my job to ask the PA whether any condition other than pulmonary embolism, such as aortic dissection, could account for the patient's symptoms."
The attorney for the plaintiff retained a radiology expert who leveled criticism at the defendant radiologist for failing to insist that chest radiographs be obtained and interpreted before proceeding with the radionuclide lung imaging. The radiology expert referred to portions of the American College of Radiology (ACR) Appropriateness Criteria that states that "chest x-rays represent an important initial examination" [1] in patients suffering acute chest pain and in whom pulmonary embolic disease is suspected and "a chest radiograph should be obtained in all patients suspected of having an aortic dissection" [2].
In paraphrasing the ACR Standard for the Performance of Pulmonary Scintigraphy [3] as specifically mandating that patients in whom acute pulmonary embolism is suspected, the plaintiff's radiology expert stated that "current chest radiographs should be obtained and inspected to ascertain whether conditions other than pulmonary embolism are present that could explain the patient's findings." The expert then referred to other "authoritative sources" that dictate that chest radiographs "more than a few hours old should not be used when interpreting lung scintigraphy" [4]. "In view of the autopsy findings of an extensive aortic dissection with rupture," the radiology expert asserted, "had chest radiographs been obtained before commencement of pulmonary scintigraphy, they almost certainly would have revealed findings pointing to aortic dissection." The expert concluded that prompt recognition of the correct diagnosis would have led to "early intervention by the thoracic surgeon and prevention of the catastrophe that eventually ensued."
Just before the deposition ended, the plaintiff's radiology expert was questioned by the attorney representing the defendant radiologist. "Assume that the defendant radiologist could rely on the PA's word that the chest radiographs were normal," proposed his attorney. "Under that circumstance," asked the defense attorney, "wouldn't you agree that the defendant radiologist fully complied with the standard of radiologic care by proceeding with the scintigraphy and interpretation of the images as normal?"
"I would never agree with that," the expert retorted. "The radiologist should have demanded to look at the chest radiographs himself, and if he had, he would have more than likely seen signs of an aortic dissection and, therefore, would never have authorized the radionuclide imaging. He would have recommended that a thoracic surgeon be called in immediately."
At the conclusion of the discovery process, the attorney representing the defendant radiologist and the attorney representing the defendant orthopedic surgeon and PA strongly recommended that the lawsuit be settled. After much negotiation, the lawsuit was eventually resolved with payment of $2 million, half of which was borne by the radiologist's insurance company, the other half paid by the company insuring the orthopedic surgeon and PA. No payment was made on behalf of the hospital.
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All states plus the District of Columbia and Guam have passed laws recognizing PAs and setting forth qualifications, duties, and responsibilities. A typical example of such legislation is the Illinois Physician Assistant Practice Act of 1987 [8]. The preamble of the act states:
The purpose and legislative intent of this Act is to encourage and promote the effective utilization of the skills of physicians by enabling them to delegate certain health tasks to physician assistants where such delegation is consistent with the health and welfare of the patient and is conducted at the direction of and under the responsible supervision of the physician.
The act defines a PA as "...any person not a physician who has been certified as a physician assistant by the National Commission on the Certification of Physician Assistants or equivalent successor agency and performs procedures under the supervision of a physician as defined in this Act."
The duties of the PA are described as follows:
A physician assistant may perform such procedures within the specialty of the supervising physician, except that such physician shall exercise such direction, supervision and control over such physician assistants as will assure that patients shall receive quality medical care.... Supervision of the physician assistant shall not be construed to necessarily require the personal presence of the supervising physician at all times at the place where services are rendered, as long as there is communication available for consultation by radio, telephone or telecommunications within established guidelines as determined by the physician/physician assistant team.... A physician assistant, acting as an agent of the physician, shall be permitted to transmit the supervising physician's orders as determined by the institution's bylaws, policies, procedures, or job description within which the physician/physician assistant team practices.
The use of PAs to assist physicians in their medical practices is sanctioned by both the American Medical Association and the American Society for Therapeutic Radiology and Oncology. The 2001 edition of the American Medical Association's Code of Medical Ethics states [9]:
Physicians often practice in concert with allied health professionals such as, but not limited to...physician assistants in the course of delivering appropriate medical care to their patients.... It is ethical for a physician to work in consultation with or employ allied health professionals, as long as they are appropriately trained and duly licensed to perform the activities being requested.... It is inappropriate to substitute the services of an allied health professional for those of a physician when the allied health professional is not appropriately trained and duly licensed to perform the activities being requested.
The American Society for Therapeutic Radiology and Oncology recognizes that a radiation oncologist's decision regarding whether to incorporate PAs into his or her clinical practice must be made on the basis of the needs of the practice and the alternative resources available to meet these needs [10]. In describing the role of the PA, the society emphasizes that the PA
...is not a replacement or substitute for either a resident or a board-certified radiation oncologist, but, instead, is complementary to him or her. The PA can assist in the diagnostic work-up of patients, manage disease- and treatment-related symptoms, provide education to patients and families, and assist them in coping with the psychosocial issues raised by the diagnosis of cancer and treatment with radiation therapy.
The American College of Radiology has not taken a position regarding the use of PAs.
Liability of PAs and Their Physician Employers
There are two distinct legal standards of care to which PAs can be held:
the standard of medical care expected of a reasonably prudent physician and
the standard of care expected of a reasonably prudent PA with similar
experience and training. Although theoretically PAs can be held to the
physician's standard of care when performing tasks traditionally reserved for
medical doctors, it is unusual for courts to apply this higher standard to
less educated providers [5].
However, if any evidence exists that a PA has misrepresented his or her role
such that a patient believes the PA to be a physician and the patient is
injured as a result of a negligent act committed by the PA, the court may well
hold the accused PA to the physician's standard
[11]. Barring
misrepresentation, then, PAs are generally expected to meet the standard of
care of a reasonably prudent PA exercising reasonable care under the same or
similar circumstances.
Physicians who employ PAs are frequently held liable for negligent acts of the PA. Indeed, the vice president of communications for the American Academy of Physician Assistants has stated that in nearly every malpractice law-suit involving a PA, the physician, hospital, health plan, or clinic that employs the PA is also named as a defendant [12]. Physicians who employ PAs, or physicians who may not employ but nonetheless on occasion may avail themselves of the services of a PA, can be held liable for the PA's negligence in several ways. The first is vicarious liability, a legal term that describes the imputing or placing of the negligence of one person upon another [13].
The most common type of vicarious liability is known as respondeat superior, a Latin term meaning "let the superior respond." The rationale for this legal concept is that employers who assign specific duties to employees will obtain financial benefit from these employees, and thus the employers should be responsible for any harm caused by these employees. Two elements must exist to find a physician liable for a PA's conduct under the theory of respondeat superior. First, the PA must have committed a negligent act, and second, it must be shown that the physician was in a position to control the activity of the PA. In determining the degree to which a physician controls a PA, the courts consider such questions as who hired or could terminate the services of the PA, who pays the PA's wages, and who has the right to control and direct the PA in the performance of the PA's work and in the manner in which the work is to be done [14].
Another legal basis on which physicians can be held vicariously liable for negligent acts committed by PAs is through the legal doctrine known as the "borrowed servant" [15]. The rationale for this theory is that even though physicians are generally not liable for the negligence of personnel who are not their employees, physicians can be held liable if they "borrow" another's employee and acquire a temporary right of control over the employee that was originally possessed by the lending employer.
The legal theory of negligent supervision [14] may also be used to hold physicians directly liable for the negligence of their PAs. The basis for a physician's liability for negligent supervision of a PA arises from the rationale that physicians conducting professional activities through other professionals such as PAs are subject to liability for any injuries caused if the physician is negligent or reckless in supervising such activity [16].
A less frequently used theory under which physicians can be held directly liable for negligence for PAs is negligent hiring. A legal action for negligent hiring is applicable if it can be shown that the physician knows or had reason to know that an employee whom he or she hired or retained is incompetent or unfit to perform the duties required of the job, or if the physician failed to use reasonable care to discover the employee's incompetence or unfitness before hiring him or her [16].
PAs, Radiologists, and the Law of Intervening Cause
The discussion thus far has focused on the potential liability of
physicians who employ or otherwise supervise PAs. The case described in this
article, however, focuses not on liability incurred for employing or
supervising a PA but rather on the liability incurred by a radiologist for
accepting without question clinical information provided by the PA and for
abiding by a PA's order. Although the radiologist acknowledged that he erred
by not insisting that the PA order chest radiography be performed before the
radionuclide ventilation—perfusion examination, the radiologist believed
that it was the negligence of the PA and the supervising orthopedic surgeon
that was responsible for the failure to diagnose the aortic dissection and
institute prompt and possibly curative treatment. The radiologist's belief
that the fault lay not with him but with others brings into focus the question
of whether the negligence committed by another physician subsequent to a
defendant radiologist's negligence absolves the radiologist of liability or,
to state it in more legalistic terms, whether an intervening act breaks the
causal connection between the initial act of negligence and injury. Let us
explore this question further.
In order for any patient to be entitled to compensation for injuries sustained as a result of malpractice, the act of malpractice must be the direct and proximate cause of the injury. The Ohio Supreme Court has explained proximate cause in these words [17]:
To find that an injury was the natural and probable consequence of an act, it must appear that the injury sustained could have been foreseen or reasonably anticipated from the alleged negligent act.... The law of foreseeability is as follows: It is not necessary that the defendant should have anticipated the particular injury. It is sufficient that his act is likely to result in injury to someone.
What about a second act of negligence that occurs (intervenes) between the first act of negligence and the injury? Does the intervening act relieve the person committing the first act of negligence? The Ohio Supreme Court ruled that it does not [17]:
Where an original act is negligent and in a natural and continuous sequence produces an injury that would not have taken place without the act, proximate cause is established, and the fact that some other intervening act contributes to the original act to cause injury does not relieve the initial offender from liability.
The question of whether an intervening act of negligence may absolve the person who commits an earlier negligent act was explored in depth by the Ohio Supreme Court in a later case [18]:
Whether an intervening act breaks the causal connection between negligence and injury, thus relieving one of a liability for his negligence, depends upon whether that intervening cause...could or should have eliminated the hazard.... Where there intervenes between [an act of malpractice] creating a hazard and an injury resulting from such hazard another conscious [act of malpractice] which could or should have eliminated the hazard, the original [defendant] is relieved from liability. A break in the chain of causation thereby takes place, which operates to absolve the original [defendant]....To further explain the law of intervening cause, the question always is: Was there....a continuous operation? Did the facts constitute a succession of events, so linked together as to make a natural whole, or was there some new and independent cause intervening between the wrong and the injury? The test is to be found in the probable injurious consequences which were to be anticipated, not in the number of subsequent events...which might arise.... It is a question of fact to be determined by a jury whether the actions of [an intervening physician] were of such a character that could be considered concurrently negligent with the original negligent [defendant physician], or whether those acts would supersede the original [defendant physician's] negligence in failing to repair the [original hazard] and leaving it in the manner that it did.
Whether the law of intervening cause will absolve a radiologist's liability for an alleged act of malpractice when nonradiologic physicians commit acts of malpractice that occur subsequent to the radiologist's alleged wrongful act was determined in rather definitive fashion by an Ohio Appellate Court in 1992 [19]. In that case, a radiologist was asked by a consulting neurologist to obtain a cerebral angiogram on a patient who was suspected of having an intracranial aneurysm. The angiogram was incomplete in that the radiologist was unable to visualize the right vertebral artery even after repeated attempts. When the radiologist discussed the angiographic findings with the neurologist, the neurologist decided that it was not necessary to complete the angiogram. The patient was discharged and later died of a ruptured aneurysm of the right vertebral artery. A malpractice lawsuit was filed against both the neurologist and the radiologist, but a trial judge dismissed the radiologist from the lawsuit, ruling that the law of intervening cause exonerated the radiologist and placed the entire liability on the neurologist. The case was appealed to an Ohio Appellate Court, which reversed the lower court decision and reinstated the radiologist as a codefendant, stating:
There may be more than one proximate cause of an injury. When a defendant's conduct is negligent and the plaintiff's injury is the natural and probable consequence of that conduct, the fact that the negligence of others unites with the negligence of the defendant to cause injury does not relieve the defendant of liability. However, an intervening act may break the causal connection between the defendant's negligence and an injury...and thus absolve the defendant of liability if the intervening actor was a conscious and responsible [physician] that could or should have eliminated the hazard.... The test is whether the original and successive acts may be joined together as a whole, linking each of the actors as to the liability, or whether there is a new and independent act or cause which intervenes and thereby absolves the original negligent actor....An intervening act constitutes an independent cause if there was no connection or cause-and-effect relationship between the original and the subsequent negligence, i.e., if the intervening act was capable of producing the injury irrespective of the original negligence, and was not set in motion by the original negligence....
We note...that [the defendant radiologist] espoused the position that [he] had no duty to repeat the angiogram because that decision was properly one for the consulting neurologist and not one for the radiologist. The [plaintiff argued] that the aneurysm that caused the decedent's death was present when [the defendant radiologist] performed the angiogram; that, in cases such as that of the decedent, a four-vessel study was essential; that [the radiologist's] performance of the angiogram fell below the requisite standard of care when he failed to visualize adequately all four cerebral vessels and then failed to redo the inadequate study; and that [the radiologist's] failure to visualize the right vertebral artery prevented detection of the aneurysm and precluded any possibility of remedial action.... We are precluded from a determination as a matter of law that [the neurologist's] conduct operated independently to break the causal connection between [the radiologist's] negligence and the decedent's death when [the radiologist] must be said to share with [the neurologist] responsibility for the inadequacy of the angiogram.
In the case described in this article, as in the case decided by the Ohio Appellate Court, the radiologist's conduct was considered negligent and a proximate cause of the patient's death irrespective of intervening acts of negligence committed by other physicians. In any medical malpractice lawsuit that includes negligence of a radiologist among its allegations, it would be extremely difficult to dispute claims by referring physicians that they relied on the radiologist and that their faulty management decisions were based on the radiologist's faulty act. It would seem, therefore, highly unlikely that a court would absolve a radiologist's negligent conduct because other physicians may have committed intervening acts of negligence and, in fact, I am not aware of any appeals court decision in which radiologists have been so absolved.
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By emphasizing good patient care, risk management in radiology practice can lessen the likelihood of incurring a medical malpractice lawsuit involving PAs and maximize chances for a successful defense if a suit is filed.
The following risk management pointers will help radiologists meet these objectives:
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