There are two major ways that a physician ends up in court, sued for malpractice: first, by providing care in a negligent manner; second, by failing to inform the patient properly. While radiologists are not exempt from the former problem, they have largely been shielded from the latter because the job of communicating findings has, by professional custom, belonged to the referring physician.
That, someday soon, might cease to be true. Judicial precedent, combined with proposed legislation from at least one state, suggests that there is a nascent movement to compel direct disclosure of findings by radiologists to patients—even though such communication thrusts radiologists into the line of malpractice fire.
The issue of whether such a change would be beneficial received an airing on December 2, 2010, at the annual meeting of the RSNA in Chicago, Illinois, during a panel discussion, “Malpractice Issues in Radiology.” Leonard Berlin, MD, FACR, one of the speakers, says that he believes that the benefits of direct communication with patients probably outweigh the legal risks—and might even help reduce them.
According to Berlin, an authority on radiology malpractice issues and chair of radiology at NorthShore University HealthSystem in Skokie, Illinois, a patient who has expectations of being promptly informed of imaging results, only to be disappointed in that regard, will grow frustrated and then angry—not toward the referring physician, but toward the radiologist. This, he indicates, prompts the patient to consult a malpractice attorney, for of such unhappiness is the road to many a courtroom paved. “Failure to communicate is the second-highest average indemnification and is a causative factor in 80% of malpractice lawsuits,” Berlin says.
Also speaking was Richard Taxin, MD, president and chair of Southeast Medical Imaging in Glen Mills, Pennsylvania. He contends that mandatory direct-to-patient communication from radiologists is fraught with danger. “There are significant risks in direct communication,” he warns, “because talking to the patient means oral communication, which is always subject to misinterpretation.”
Taxin also worries that a requirement for direct disclosure would create an entirely new and stringent standard of care for radiologists. This is cause for alarm because, in malpractice lawsuits, plaintiffs are well on the way to winning once they show that a physician’s conduct objectively fell below the relevant standard of care.
It should be noted, though, that even with the help of a tougher standard of care by which to gauge whether there was a breach of a duty owed, the plaintiff still would have to prove that the radiologist’s failure to disclose caused actual and foreseeable harm (elements not always easy to demonstrate). Of course, proving malpractice against an uncommunicative radiologist will doubtless be easier in any jurisdiction where judicial precedent is on the side of the plaintiff.
Berlin recalls a 1974 federal appeals court ruling from Washington, DC, concerning a 20–year-old man who died after lymphoma was detected on a chest radiograph during a routine military induction physical exam; the findings were never disclosed to him by the radiologist. The man’s family sued the radiologist and won.
Berlin says that the message from the bench was that a physician who performs a physical exam has a duty to disclose what he or she finds and to warn the patient of any findings indicating that the patient is in any danger. “The radiologist owed a duty of care to the patient and breached that duty when he failed to notify the patient of his abnormal film, causing the patient’s death,” Berlin says.
Another court decision that Berlin cites was announced in 1991: A Washington State appellate ruling held that the radiologist involved in a pre-employment exam should have notified the plaintiff concerning an abnormality, and that by failing to do so, the radiologist had prevented the plaintiff from halting the progression of the disease involved. It is reasonable, the ruling stated, for the patient to expect to be warned by the physician of any dangers that become known to that physician, and this duty is not burdensome. Berlin also refers to a 2003 Arizona intermediate court finding that the duty of direct communication with the patient is borne by the radiologist if a referring physician is unavailable (or if there was no referral).
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