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Malpractice Issues in Radiology |
1 Department of Radiology, Rush North Shore Medical Center, 9600 Gross Point Rd., Skokie, IL 60076, and Rush Medical College, Chicago, IL 60612.
Received April 25, 2003;
accepted after revision April 28, 2003.
Case summaries are based on actual events and lawsuits, although certain
facts have been omitted or modified by the author. 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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The radiologist, who was having dinner at the home of a friend 45 minutes from the hospital, received notification on his pager that CT images were being transmitted. He booted up his laptop computer but was unable to retrieve the images. The radiologist telephoned the radiology technologist and together they attempted, during the next 30 minutes, to identify and resolve any technical problems that were preventing the images from being transmitted. They were not successful. At 10:30 P.M., the radiologist decided to go to the hospital to interpret the CT images and telephoned the emergency department physician to explain the delay. The emergency physician replied that the delay did not "seem to be important," for the surgeon who had been called had not yet arrived at the hospital. At 11:15 P.M., the radiologist arrived at the hospital and interpreted the CT scans as disclosing a perforated appendix with "probable early abscess formation." At about the same time, the surgeon also arrived at the hospital.
At 11:45 P.M., the surgeon operated on the patient and confirmed the presence of a phlegmonous mass apparently caused by a perforated appendix. During the surgery, however, the surgeon inadvertently punctured a loop of distal small bowel. Although the surgeon recognized the injury and repaired it, the patient nonetheless developed a large abscess postoperatively. After a 16-day stay in the hospital, the patient was finally discharged and eventually made a full recovery.
On the day after the patient underwent surgery for the perforated appendix, the radiologist who had been on call wrote a letter to the chairperson of the radiology department complaining about the actions of the radiology technologist the night before. The radiologist charged in his letter that the failure of electronic transmission of the CT images had not been due to technical malfunction but rather to the inadequate performance of the technologist. The radiologist pointed out that this was not the first instance in which the technologist had failed to perform her duties; he added that other radiologists in the department had also previously reported to the chair that on multiple occasions the technologist had conducted herself in substandard fashion. The radiologist concluded his letter by stating that in his opinion the technologist's misconduct the night before had led to a delay in the CT diagnosis of perforated appendix that, in turn, may have compromised the health of the patient. Several days later, on the recommendation of the radiology department chairperson, the hospital terminated the employment of the technologist.
Seven months later, the patient filed a medical malpractice lawsuit naming as code-fendants the hospital, emergency department physician, surgeon, and radiologist. The lawsuit alleged that the patient's postoperative complications and prolonged hospital stay were caused by the defendants' negligence in "failing to make a prompt diagnosis of appendicitis."
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The radiologist's defense attorney conferred with the hospital's defense attorney. The attorneys thought, after their own review of the records, that if anyone in the case was culpable, it would be only the surgeon, inasmuch as it was he who had punctured the small bowel. From a strictly medical point of view, it was their opinion that no significant delay had occurred in the diagnosis of the perforated appendix on the part of the emergency department physician or radiologist. However, it was nonetheless clear to the defense attorneys that if the letter criticizing the radiology technologist written by the radiologist to the department chair were to come to light, the plaintiff's attorney might well be able to successfully impose liability on the radiologist, as well as the radiology department chair and the hospital, for having failed to take disciplinary measures against the technologist sooner. The defense attorneys representing the radiologist and the hospital therefore agreed not to produce the letter, arguing that it was privileged.
Demanding that the letter be produced and challenging the defense attorneys' refusal to do so, the plaintiff's attorney requested a hearing before a judge. After listening to both sides of the argument, the judge agreed with the plaintiff's attorney and ordered the hospital and radiologist to produce the letter. The defendants complied. As the defense attorneys had predicted, the plaintiff's attorney seized on the content of the letter not only to increase her demands for compensatory damages, but to ask for punitive damages as well, asserting that the radiologist, his chair, and the hospital were "grossly derelict in their duties" by not having taken punitive action earlier against the radiology technologist. "Had they done so," later charged the plaintiff's attorney, "the perforated appendix would have been diagnosed immediately and cured without complication."
During the next 14 months, depositions were taken from the codefendants, the plaintiff, and various expert witnesses. At that juncture, the defense attorneys concluded that the plaintiff's attorney had failed to present any substantive evidence that negligence had been committed by the emergency department physician, the radiologist, or the surgeon. Under ordinary circumstances, they told the codefendants and claims managers of their insurance companies, they would not offer any settlement and would proceed to trial with the expectation of prevailing. However, the attorneys pointed out that the letter written by the radiologist to his department chairperson represented a major problem that in their opinion would place the radiologist and the hospital in an unfavorable light in the eyes of a jury. The defense attorneys hypothesized that the plaintiff's attorney might well be successful in convincing a jury that, had the technologist been terminated before the patient underwent the emergency CT, a more prompt diagnosis would have been made and the ensuing complications avoided. After much deliberation among the codefendants, the defense attorneys, and their insurance company representatives, they agreed to enter into settlement discussions with the plaintiff's attorney. Eventually a settlement was reached wherein the patient was paid $300,000, the amount being borne in equal shares by the surgeon, the radiologist, and the hospital.
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As a general principle, all performance improvement and peer-review activities are immune from discovery [1]:
There is a strong public interest in supporting, encouraging and protecting effective medical peer-review programs and activities.... The fear of potential malpractice liability would not only discourage participation by medical professionals in volunteer review committees, but would stifle candor and impair objectivity in staff evaluations.
As we shall see, however, there are many exceptions to this general principle.
Performance Improvement Activities
A case similar to the one described here occurred in Illinois. An
obstetrician performed a cesarean section on a woman who was near term
gestation, but unfortunately the baby was born with severe neurologic
impairment. After the delivery, the obstetrician, at the request of his
department chairman, wrote a letter addressed to the chair documenting the
events that had occurred before and during the cesarean procedure. Months
later, after a malpractice lawsuit had been filed against the obstetrician and
hospital, the plaintiff's attorney demanded that the letter be produced. In an
affidavit prepared during discovery proceedings, the obstetrician stated that
her purpose in writing the letter to her chairman was to "bring
potential issues to his attention concerning quality improvement at the
hospital for the purpose of reducing morbidity and mortality." The
obstetrician stated further that she understood that the issues raised in her
letter would then be addressed by the hospital's quality assurance committee
and that the letter "would be privileged, since it addressed internal
quality assurance issues at the hospital."
Because the defendants refused to produce the letter, the matter was eventually appealed to the Illinois appellate court. The court ruled that the letter was indeed discoverable. In its written decision, the court began by pointing out the salient features of the Illinois Medical Studies Act [2]:
All information, interviews, reports, statements, memoranda, recommendations, letters of reference or other third-party confidential assessments of a health care practitioner's professional competence, or other data of committees of licensed or accredited hospitals or their medical staffs, including Patient Care Audit Committees, Medical Care Evaluation Committees, Utilization Review Committees, Credentials Committees and Executive Committees...used in the course of internal quality control or of medical study for the purpose of reducing morbidity or mortality, or for improving patient care...shall be privileged, strictly confidential and...shall not be admissible as evidence, nor discoverable in any action of any kind in any court or before any tribunal, board, agency or person.
The appellate court then went on to explain the reason for confidentiality [2]:
The purpose of the Act is to ensure that members of the medical profession will effectively engage in self-evaluation of their peers in the interest of improving hospital conditions and patient care or reducing the rates of death and disease. The Act is premised on the belief that, absent a peer-review privilege, physicians would be reluctant to sit on peer-review committees and engage in candid evaluations of their colleagues.
The court then went on to order production of the letter, drawing what it considered to be an important distinction between the letter written by the obstetrician to her chairman, and a peer-review committee [2]:
Even if the [obstetrician's] letter notified [the chairman] on behalf of the investigatory committee of a potential quality control issue, the Act's privilege does not apply because the letter was information of the hospital's staff rather than information of any committee, peer review or otherwise. What the Act actually protects is not information of a hospital's medical staff but information of "committees of licensed or accredited hospitals or their medical staffs." According to the record, the earliest indication of any peer-review committee meeting in this case was several months after [the obstetrician] wrote the letter.
The Illinois Supreme Court had previously discussed the same issue, although with a somewhat different factual situation. In a case that focused on delivery by cesarean section of a brain-damaged baby, allegedly because of inadequate anesthesiology services, the court ordered that the contents of a confidential discussion that had been held between the chairman of the anesthesiology department and a nurse anesthetist be divulged [3]. The anesthesiology chairman argued that he believed his discussion with the anesthetist was privileged because his duties as chairman were to
...provide good quality service of anesthesia and coordinate services between departments. Anytime there are any questions as to delivery of services, it's part of my job to make sure that they are taken care of in an effective manner, to investigate any problems if there are any, and if there are problems, to correct them.
The Illinois Supreme Court ruled as follows [3]:
In this case, there is no dispute that [the anesthesiology chairman's] discussions had nothing to do with any physician peer-review committee.... Where the committee is one comprised of the hospital's medical staff, the committee must be involved in the peer-review process before the privilege will attach... If the simple act of furnishing a committee with earlier acquired information was sufficient to cloak that information with the statutory privilege, a hospital could effectively insulate from disclosure virtually all adverse facts known to its medical staff with the exception of those matters actually contained in a patient's records. As a result, it would be substantially more difficult for patients to hold hospitals responsible for their wrongdoing through medical malpractice litigation. So protected, those institutions would have scant incentive for advancing the goal of improved patient care. The purpose of the law would be completely subverted.
Another appeals court clarified the matter even further [4]:
When a trial court finds a document at issue was initiated, created, prepared, or generated by a peer-review committee, it should be considered privileged under the Act even though it was later disseminated outside the peer-review process. If, however, a document was created in the ordinary course of the hospital's medical business, or for the purpose of rendering legal opinions, or to weigh potential liability risk, or for later corrective action by the hospital staff, it should not be privileged, even though it later was used by a committee in the peer-review process.
Before we move on from the discussion about what types of performance improvement documents are privileged, one more nuance should be mentioned. Although the plaintiff's attorney in the case described in this article did not attempt to have disclosure of the letter of termination sent by the hospital to the radiology technologist, the question of whether such a document is discoverable was raised in another case. In a medical malpractice lawsuit filed against physicians and a hospital, the plaintiff's attorney requested that the hospital disclose letters and other documents relating to the suspension and later termination of a nurse who had allegedly improperly administered certain IV medications to the plaintiff patient. The hospital refused to disclose the documents, arguing that they were privileged under the state's medical practice act. An appellate court, however, ruled that the hospital did indeed have to produce the termination documents [5]:
The hospital has failed to present any evidence that the suspension form in question was a document generated for use by a peer-review committee. This one-page document was part of the nurse's employment file. The suspension form does not specifically reference the event in question or make reference to any hospital investigating committee. As the form does not appear to have been generated for use by a peer-review committee, we do not believe that its disclosure would improperly intrude upon any confidential peer-review process.
[The hospital] argues that the suspension form is privileged because it documents the discipline administered to the nurse as a result of her role in this incident. The hospital asserts that application of the privilege to the suspension form is therefore consistent with the [law's] purpose to encourage candid and voluntary studies and programs used to improve hospital conditions and patient care or to reduce the rate of death and disease. We reject this reasoning. The suspension form does not indicate that the nurse's suspension was recommended by a peer-review committee. Unlike investigations performed by hospital committees, internal investigations performed by the hospital's administration are not privileged.
Thus far in this article we have discussed immunity from discovery of documents used specifically for performance improvement purposes, noting that under various circumstances courts have ruled that immunity does not apply. Another area of medical care in which pertinent documentation has historically been privileged is that related to peer-review activities dealing with credentialing of physicians. As we shall see, the courts have eroded the hospital's immunity with respect to these documents as well.
Immunity of Peer-Review Proceedings
Seventeen years ago, the United States Congress, acknowledging the
"need to improve the quality of medical care nationwide," and at
the same time appreciating the "need to provide incentive and protection
for physicians engaging in effective professional peer review," passed
the Health Care Quality Improvement Act of 1986
[6]. The act was designed to
protect from antitrust liability hospitals and physicians who engaged in
appropriate peer-review processes. As a balance to this protection, however,
the act also guaranteed individuals who are denied privileges from hospitals
the right to fair process and external review of any final adverse decision
[7]. Two years later the act
was cited by the United States Supreme Court when it rendered a decision that
had major impact on the issue of immunity from discoverability of documents
relating to a hospital's credentialing of physicians.
The case concerned an Oregon orthopedic surgeon whose hospital privileges were terminated. The surgeon had filed a lawsuit against the hospital and various physicians alleging that they had violated the Sherman Antitrust Act by conspiring to manipulate the hospital's credentialing process for the purpose of reducing competition rather than improving patient care. The orthopedic surgeon had initially joined a medical clinic and in so doing obtained privileges at the local hospital. When the orthopedic surgeon later withdrew from the clinic, a hospital staff committee consisting of the surgeon's former partners reviewed the surgeon's hospital privileges, determined that his patient care was below hospital standards, and recommended that the surgeon's hospital privileges be terminated. It was then that the orthopedic surgeon filed the lawsuit alleging violation of the antitrust laws. At trial, a jury found in favor of the plaintiff orthopedic surgeon, awarding $650,000 in damages, a figure trebled by the trial judge.
The federal appeals court later reversed the verdict, holding that even if the defendants had used the peer-review process to disenfranchise a competitor rather than to improve patient care, the conduct in the peer-review proceedings was immune from antitrust scrutiny. The Supreme Court overruled the appeals court and reinstated the jury verdict, ruling that although physicians participating in peer-review activities are usually cloaked with immunity, nevertheless under certain circumstances they may be subject to penalty for violating antitrust laws [8]. The high court ruled that the Health Care Quality Improvement Act of 1986 will not immunize medical peer-review action from liability under the federal antitrust laws if the action taken is not based on a reasonable belief that it furthers quality medical care.
A similar physician-credentialing case filed in Pennsylvania, also involving an orthopedic surgeon, had a different outcome. There, an orthopedic surgeon, whose hospital staff privileges were terminated for alleged substandard medical care, filed a lawsuit against the hospital and a group of competing orthopedic surgeons who sat on the hospital's board of trustees, alleging antitrust conspiracy to curtail his practice for competitive reasons. The chairperson of the hospital's department of surgery had appointed an ad hoc committee to review surgical cases performed by the plaintiff orthopedic surgeon, and later had more than 200 of the surgeon's cases reviewed by an independent third party. The independent reviewer and the committee concluded that the plaintiff orthopedic surgeon's medical care was inadequate and below acceptable standards. A federal appeals court ruled that the conduct of the hospital and its reviewing physicians was immune and not subject to antitrust laws. The court began its written decision [9] by referring to the Health Care Quality Improvement Act of 1986:
The Health Care Quality Improvement Act [was passed by] Congress to improve the quality of medical care by encouraging physicians to identify and discipline physicians who are incompetent or engage in unprofessional behavior. Congress believed incompetent physicians could be identified through effective professional peer review, which it chose to encourage by granting limited immunity from suits for money damages to participants in professional peer-review actions.... The standards that a professional review action must satisfy in order to entitle participants in the review process to immunity include (1) the reasonable belief that the action was in furtherance of quality health care; (2) a reasonable effort to ascertain the facts of the matter; (3) adequate notice and fair hearing procedures...are afforded to the physician involved; and (4) belief that the action was warranted by the facts known after such reasonable effort to obtain the facts.
The plaintiff bears the burden of proving that the peer-review process was not reasonable.... The plaintiff maintains that defendants were in direct economic competition with him, which supports an inference of their bad faith.... Assertions of bad faith and anti-competitive motive are irrelevant to the question of whether a decision was taken in a reasonable belief that it would further quality health care.... [The plaintiff] has not presented evidence that the professional review action taken was motivated by anything other than a reasonable belief that it would further quality health care... Mere participation by plaintiff's competitors in the committee investigations does not run afoul of the Health Care Quality Improvement Act. Although the Act suggests that a hearing officer or individual sitting on a hearing panel should not be in direct competition with the physician who is the subject of the hearing, it imposes no such requirement.
[The plaintiff] has not rebutted the presumption that defendants engaged in a reasonable effort to obtain the facts.
The court then proceeded to discuss the Sherman act [9]:
The Sherman Act provides [that] every contract...or conspiracy, in restraint of trade or commerce...is declared to be illegal. To establish violation the plaintiff must prove (1) concerted action by the defendants; (2) anti-competitive effects were produced within the relevant product and geographic markets; (3) that the concerted actions were illegal; and (4) that the plaintiff was injured as a proximate result of the concerted action.
The very essence of a claim is of course the existence of an agreement...the [hospital] board acted independently and not in concert with [the orthopedic surgeon's competitors] in taking the professional review action against the plaintiff.
Concluding that the plaintiff did not present any evidence to establish that the defendants violated the Sherman act, the appeals court sustained the lower court's ruling that the orthopedic surgeon's lawsuit be dismissed.
A similar decision upholding a peer-review committee's activity was reached by a federal appeals court in Pennsylvania in 1999 [10]. That case involved a surgeon whose hospital privileges were terminated as a result of a peer-review proceeding. The surgeon sued the hospital and the physician hearing board, alleging antitrust violations. The court ruled that antitrust provisions were not violated and dismissed the surgeon's lawsuit. The court summarized the matter in this manner [10]:
In this case, a physician who had been disciplined by his hospital sought to have the court revisit that adverse medical and administrative judgment. This is precisely the type of case that Congress intended to foreclose in passing the Heath Care Quality Improvement Act. The intent of this Act was not to disturb, but to reinforce, the preexisting reluctance of Courts to substitute their judgment on the merits for that of health care professionals and of the governing bodies of hospitals in an area within their expertise.
We conclude that [the surgeon] has failed to rebut the presumption that [the hospital and its physician board] met the requirements for immunity under the Act. He has failed to come forth with sufficient evidence to allow a reasonable jury to conclude that the hospital did not provide him with adequate and appropriate procedures, or that the hospital did not act at all times in the reasonable belief that its actions would further quality health care.
Under certain circumstances a physician whose privileges have been suspended or terminated by a hospital does have recourse against the hospital. In another Pennsylvania case, the state's supreme court upheld a surgeon's right to obtain an audiotape of a hospital peer-review panel that had suspended his privileges [11]. The surgeon, after having had his privileges suspended, challenged the hospital's board because he had been told by a confidential source that some members of the medical board had acted in bad faith in making their recommendations. The surgeon asked the trial court to force the hospital to disclose the audiotape to him, but the hospital refused. The Pennsylvania Supreme Court decided that the surgeon should have access to the audiotape, stating [11]:
At issue was the following provision of the Health Care Quality Improvement Act: "The proceedings and records of a review committee shall be held in confidence and shall not be subject to discovery or introduction into evidence in any civil action against a professional health care provider arising out of the matters which are the subject of evaluation and review by such committee."
The surgeon contends that [the Act] does not preclude him from obtaining a copy of the tape recording of the medical board's deliberations. We agree.... The surgeon's concern was not the underlying medical matter which led to his suspension, but the fairness and integrity of the medical board's review of that suspension.... The intent of the legislature was to prevent the disclosure of peer-review information to outside parties seeking to hold professional health care providers liable for negligence, while at the same time insuring that such guarantee of confidentiality did not operate to shield from discovery those rare instances in which the peer-review process was misused. The surgeon sought to learn, through internal hospital proceedings, whether such misuse had occurred in his case. The Act did not bar him from obtaining a copy of the other audiotape in issue for such purposes.
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Balancing the need to protect the reviewers from any adverse legal action against them arising from such activities are the rights of the person or persons being reviewed. Those being reviewed are to be protected from abuses of peer-review proceedings resulting either from malice on the part of the reviewers or from antitrust motives to stifle competition. Although the courts generally favor the upholding of immunity for peer reviewers, and privilege status for documents used in those activities, courts will revoke the immunity and privilege if substantive evidence is presented that shows ulterior motives on the part of the reviewers.
The federal government and all states have laws that confer a confidentiality privilege on records related to performance improvement and peer-review activities. State laws differ, however, on issues such as under what circumstances immunity is not conferred on certain physicians or documents arising from such activities. In the cases described in this article, various courts ruled that documents that were not generated as part of the formal activity of a duly constituted peer-review committee are not immune from discovery. Letters, memoranda, discussions between members of a hospital medical staff and departmental chairpersons or hospital administrative personnel, and incident reports in common use in hospitals today may well, under certain circumstances, not meet the criteria for privilege mandated by the courts. Certainly merely adding to a letter, memorandum, report, or minutes of various hospital committee meetings, including minutes of departmental meetings, a statement such as "This information is privileged under the medical studies act of the state and therefore free from discovery and is not to be admissible as evidence" is insufficient to warrant immune status. Radiologists are best advised to consult their personal attorneys or hospital or office risk management personnel in their individual states as to the discoverability statutes and common law precedents regarding immunity and privilege. In this manner, radiologists can be more appropriately guided as to how verbal and written communication designed to be confidential can be kept confidential.
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