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Failure to notify patients and their primary care providers of incidental radiology findings “definitely poses significant medicolegal liability for the emergency physician (EP),” according to Sayon Dutta, MD, an attending physician in the emergency department (ED) at Massachusetts General Hospital in Boston.
Discharge-relevant recommendations for additional imaging were found in 4.5% of ED radiology reports, but 51% of discharge instructions failed to note those findings, according to a 2013 study.1 “When the patient and their primary care doctor do not know of these findings, they have no chance to follow up as needed,” says Dutta, the study’s lead author.
Similarly, a 2010 study found that incidental findings were noted in 285 (15%) of 1930 trauma CT scans done during the ED evaluation of trauma patients, but follow-up was poor, even for potentially serious findings.2
“At Massachusetts General Hospital, we’ve taken steps within our electronic health record to promote the communication of important incidental findings,” notes Dutta. “Despite this, the responsibility for these findings, in large part, lies with the person who ordered the study.”
A recent malpractice claim alleged failure to timely diagnose a recurrent brain tumor. “The woman presented to an ED on two separate occasions complaining of headaches,” says Angela L. Carr, Esq., a partner in the Providence, RI, office of Barton Gilman. The CT scan report indicated that recurrent neoplasm couldn’t be ruled out, and that an MRI may be appropriate if clinically indicated.
“For some reason, no one conveyed these results to the woman and her family, and an MRI was never ordered,” says Carr. An MRI, ordered three months later by a gastroenterologist, showed a progression of the tumor, but the results were incorrectly reported and the patient was never forwarded a copy of the report.
Three weeks later, the woman returned to the ED for the second time complaining of headaches. At this presentation, a CT scan confirmed the tumor progression seen on the earlier MRI. “Again, her headaches were noted to have resolved, and the results of the CT scan were not reported to the woman or her family,” says Carr. The woman learned about the tumor recurrence several months later, during a follow-up appointment with her neuro-oncologist.
“The defense theory posited by the ED physicians that the discharge instructions provided by the ED and signed by the woman clearly directed her to follow-up with her neuro-oncologist would have been stronger if someone in the ED had reported the actual findings on the CT scans to her,” says Carr.
Another malpractice claim against an EP involved a man who presented to an ED complaining of abdominal and flank pain. The EP ordered plain abdominal films, and the impression of the interpreting radiologist was possible right nephrolithiasis, recommending further evaluation with non-contrast CT or an intravenous pyelogram.
“He then underwent a CT of the kidneys and pelvis to rule out a kidney stone,” says Carr. The CT report described a 6.3 mm stone in the upper right ureter, and also described multiple bilateral renal cysts and a hyperdense cyst on the left kidney.
“Neither the ED nor the radiologists had contact with the patient again,” says Carr. “At the time of the original films, there were no findings to suggest the presence of cancer or anything other than benign processes.”
The medical records and subsequent films showed that the hyperdense cyst never changed, confirming that it was not cancer. In addition, when the patient’s cancer was ultimately diagnosed six years later, the lesion in the kidney was found to be in the right kidney, as opposed to the left kidney where the hyperdense cyst was located.
“However, the plaintiffs claim that had the physicians recommended and implemented monitoring following the discovery of the hyperdense cyst, they would have inadvertently discovered the cancerous lesion,” says Carr. “The parties ultimately settled the case prior to trial.”
With incidental findings becoming increasingly common in CTs obtained for ED patients, “sometimes emergency physicians don’t give it the importance they should,” says William J. Naber, MD, JD, CHC, an associate professor in the Department of Emergency Medicine at University of Cincinnati.
In some cases, the EP does a preliminary reading on an X-ray, but a final reading done by a radiologist the following day includes an incidental finding. “Or it might be that the EP simply didn’t read the full report of the X-ray and didn’t see that an incidental nodule was mentioned,” says Naber.
The surge in the number of CT scans done for ED patients has resulted in a commensurate increase in the number of incidental findings. About 14% of ED patients received a scan in 2007, compared to about 3% in 1996, according to a 2011 study.3 A 2013 study found that CT scans were performed for 11.4% of all ED visits in the United States.4
Another factor is the increased sensitivity of CT scans. “The technology is improving every year; therefore, we see little densities that we would have never seen before,” says Leonard Berlin, MD, FACR, professor of radiology at Rush University and University of Illinois, both in Chicago, and author of Malpractice Issues in Radiology. According to a 2015 study, important incidental findings occurred in 12.7% of non-enhanced CT scans performed for suspected renal colic in the ED.5
A 2011 study found that incidental findings were documented in 33.4% of 682 CT scans performed in the ED on discharged patients; of these, only 9.8% were reported to patients, according to discharge paperwork.6
The question for the EP, says Berlin is, “What do we do with these? The radiologist has to decide whether to tell the EP, and the EP then has to decide what, if anything, to tell the patient.” Here are some strategies that may reduce legal risks for EPs involving incidental findings:
• Follow the ED’s policy consistently.
“Consistency is very important,” says Berlin. “Whatever is decided, it should be a consensus. If somebody does one thing and somebody else does something different, that doesn’t look good at all.” If the ED’s policy states that incidental findings under 2 mm won’t be addressed, for instance, this can help the EP’s defense in the event a lawsuit is filed. “At least it’s some kind of defense,” says Berlin. “The worse thing is for the EP, when asked, ‘Why didn’t you follow up on this?’ to have to say, ‘I had no particular reason.’”
• Give the patient a copy of the radiology interpretation stating the incidental findings.
Naber says this documentation strengthens the EP’s defense in the event a malpractice suit is filed: That the patient was given a copy of the report; that the patient was advised to follow up with his or her primary care physician; whether others were present, such as the patient’s spouse; and the recommended timeframe for follow-up.
“The more specific you are, the better off you are if the patient doesn’t follow-up,” he adds. If Naber learns of an incidental finding after the patient is discharged, he contacts the patient and documents the conversation, such as “I called Mrs. Smith and notified her of the 6 mm module and the need to follow-up with a CT scan in six months for change in size or shape.”
“The pitfall is when the EP calls but does not document it in the medical record,” Naber says. “If the patient doesn’t follow-up, you have no record that you actually talked to her about it.”
Naber has reviewed several claims involving incidental findings that were not noted during the EP’s nighttime interpretation. One such case resulted in a seven-figure settlement. “The findings were identified when the radiologist overread them, and were included in the radiologist’s report,” he says. “But there was no documentation that the patient was ever notified.”
• Document that the finding was discussed with the admitting physician.
If the patient is seen in the ED for chest pain, and a CT scan shows a lung nodule, EPs should document that they discussed the need for follow-up with the admitting physician. “You can’t assume the admitting physician is going to discuss that with the patient,” says Naber. “You have to do it and document it yourself as the ED physician.”
The EP can still get named in a malpractice suit, but strong documentation that the patient, the admitting physician, and/or the patient’s primary care provider were notified is “a pretty solid defense that the EP did the right thing and that the patient didn’t follow-up properly,” says Naber. “It’s a much better defense than doing nothing.”
• Leonard Berlin, MD, FACR, Rush University, Chicago, IL. Phone: (847) 933-6111. Fax: (847) 933-6113. E-mail: firstname.lastname@example.org.
• Angela L. Carr, Esq., Partner, Barton Gilman, Providence, RI/Boston, MA. Phone: (401) 273-7171/(617) 654-8200. E-mail: email@example.com.
• Sayon Dutta, MD, Attending Physician, Department of Emergency Medicine, Massachusetts General Hospital and instructor of surgery at Harvard Medical School. Phone: (617) 643-2695. E-mail: firstname.lastname@example.org.
• William J. Naber, MD, JD, Associate Professor, Department of Emergency Medicine, University of Cincinnati (OH). Phone: (513) 600-4749. E-mail: email@example.com.