Malpractice Issues in Radiology: Failure to Communicate

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Leonard BerlinThere 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. Danger Ahead 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). Coming Soon For clues to what to expect next on this front, keep an eye on the Pennsylvania legislature, Berlin and Taxin agree. In 2010, a bill that nearly reached the floor of that body (and might be back for another try this year) sought to require the sending of a summary of imaging findings to patients by mail, email, or fax within 10 days of the full report being sent to the ordering physician. “What’s important is that the bill was even introduced,” Berlin says. “I think it does show an evolution toward this movement.” Taxin (whose 26-radiologist group operates freestanding imaging centers in Pennsylvania while also providing coverage at nearby hospitals) expresses concern that this proposed law, if enacted, would inject much confusion into daily practice. “No one even knows what a summary report is,” he says, wondering aloud whether it would be legally sufficient for a radiologist to write simply “good,” “bad,” or “talk to your physician” on the report. Taxin also is concerned about what might happen if radiologists were told to give patients somewhat more detailed reports instead. Inevitably, these will contain at least some medical terminology. Because of that, “The potential for misunderstanding is great,” he says. If a patient is to learn of imaging findings from anyone, the word should come from his or her own physician, not the radiologist, Taxin says, “because the referring physician is the one who best understands the context of the information for that individual patient.” Duty Owed Berlin expresses skepticism about relying entirely on referring physicians to disclose imaging results. He recalls remarks by a leader of the movement pushing for passage of 1999's federal Mammography Quality Standards Act: “She said communication directly from the radiologist must be required because women simply could not rely on their referring physicians to notify them,” he says. He adds, “We have to satisfy our referring physicians, of course, but our legal—and moral—duty is to the patient. It is very difficult to sell a jury of lay people on the idea that a radiologist shouldn’t be held liable for failure to communicate, to the patient, potentially extremely adverse information because it’s not the radiologist’s job to do that.” To underscore his opposition to direct disclosure by radiologists, Taxin challenges radiologists in favor of the communication requirement to declare, to the heads of their departments and practices, that they want to cut their case volumes in half so that they can spend more time talking to patients, or so that they “can dictate a whole different summary report, in lay language, to go to the patients,” he says. “If you want to do it, that’s fine, but it should not be mandated. Don’t force others to do it.” Rich Smith is a contributing writer for ImagingBiz.com.