Of diagnostic-related ED claims, EPs are the primary responsible service (63% of cases), followed by radiology (11% of cases).1 In some cases, radiology misreads the results of a test. “A savvy plaintiff’s attorney will leave the emergency provider out of the lawsuit in the hope that the emergency provider will provide helpful, factual causation testimony,” says Tracie M. Dorfman, JD, a partner with Hancock, Daniel & Johnson.
It strengthens the plaintiff’s case to ask the non-defendant EP to testify about what the EP would have done if the film had been read correctly. For example, if the claim alleges the radiologist missed a bowel obstruction on the CT scan, the plaintiff must prove that if the EP was told about a possible bowel obstruction, the EP would have consulted a general surgeon and sent the patient to surgery in time to salvage the bowel. “While the plaintiff could hire an EP expert to opine about the timing of these actions, it is even more compelling to have the actual EP provider testify about what he or she would have done,” Dorfman says.
In some EDs, a general radiologist conducts a “wet read” of a neuroradiology study. Later, a neuroradiologist overreads the film and compiles a final report. “If there is a critical result that the generalist missed, it is incumbent upon the emergency provider to reach out to the patient to notify them about the change in interpretation if it would affect medical management decisions,” Dorfman cautions.
Ideally, the provider calls the patient, and the discussion is noted in the chart. “Failure to notify the patient about a new result can come back on the ED provider if it can be shown that earlier notification could have changed the patient’s outcome,” Dorfman warns. For example, if the overread shows a blockage, and the patient later has a stroke, the ED provider could be sued for failure to prevent complications from the stroke. “Timing of notification can be important in stroke cases. The window to provide life-saving treatment like tPA is very small,” Dorfman notes.
Another test that often returns post-discharge is an after-hours head CT angiography ordered stat. In one malpractice case, the preliminary read returned timely (within 30 minutes). The preliminary read was reported by a general diagnostic radiologist as negative, but noted that the interventional radiology report would be forthcoming. “The final read did not occur until 20 hours after the study was performed, and reported a cerebral obstruction,” says Alexandra Dare Essig, JD, an attorney at Goodman Allen Donnelly in Glen Allen, VA.
In that situation, EPs should document that the patient is discharged with only a preliminary read report; a final read remains outstanding. Also, document the plan for what to do if the final read shows a different result than the preliminary read. For example, the EP might document: “In the event the final read differs from the preliminary read and the patient has been discharged, the ED physician on shift at the time the final read is returned will contact the patient.”
Finally, document that the EP who received the abnormal result contacted the patient, if discharged. If the patient was transferred to another facility, then note the EP contacted the transfer facility with the results.
The EP who receives the abnormal results is responsible for acting on those abnormal results, even if a different EP ordered the test in the first place. “The ED physician must track down the patient and relay the abnormal results, or must contact the next facility with the abnormal results, in the event the patient is now at another location,” Essig says.
Douglas K. Williams, JD, an attorney at Baton Rouge, LA-based Breazeale, Sachse & Wilson, says the reading of images most often arises in ED malpractice claims when evaluating potential strokes, spinal cord injuries, and significant traumas. “The standard of care regarding imaging of the head, when looking for signs of a stroke, generally relates to the use of CT scans,” Williams says.
Plaintiff attorneys commonly argue the EP should have ordered an MRI. “However, the standard of care appears to provide for the use of CT scans,” Williams says.
The defense can point out that ischemic stroke may not reveal itself on an MRI within the first 12 to 24 hours, whereas CT angiography can readily identify an ischemic stroke. In some malpractice claims alleging misread tests, radiologists and EPs were held liable. “That is true particularly in cases where there is an obvious fracture on imaging or an obvious intracranial bleed,” Williams says.
EPs are not likely to be successfully sued because the radiologist missed a subtle finding. EPs are more likely to face allegations of failing to respond appropriately to the radiologist’s clear findings. “It is incumbent upon the emergency physician to act upon those findings where appropriate,” Williams stresses.
Some lawsuits hinge on whether the EP was informed of findings. Williams recommends EPs document any verbal communications with radiology. Multiple cases involved radiologists who claimed the findings were verbally relayed to the EP, but there was no evidence to support it.
In one case, a young child fell and appeared to strike his head, but there was no bleeding and no sign of a penetrating injury. Because of stroke-like symptoms, the ED doctor ordered a CT scan, which the report indicated was normal. It turned out the child had sustained a penetrating wound deep in his mouth. There was injury to the left middle cerebral artery that led to an infarction. The CT showed signs of air, suggesting a possible penetrating wound, which was not on the report.
The radiologist claimed subtle findings were verbally reported. The EP denied it. In this case, the lack of documentation was problematic for the radiologist. “However, there are scenarios where lack of documentation could be problematic for the ED physician,” Williams notes.
Contemporaneous documentation by the EP makes it difficult for a radiologist to claim the EP was notified of findings that are not otherwise noted on the report. This can be as simple as charting “Spoke with radiologist, who indicated there were no abnormal findings.”
The radiologist is the expert who is consulted to assist the EP. The EP has a right to rely on the expertise of the radiologist, particularly where there are subtle findings. “However, an emergency physician should never expect that merely relying on the radiologist’s findings is a get out of jail free card,” Williams says.
Williams recommends EPs conduct their own read when they are qualified to do so. “Don’t avoid obvious findings, even if the radiologist does not report that finding,” Williams offers.
“There is a moral, ethical, and quality of care obligation to exhaust reasonable efforts to inform a patient of abnormal results," says Chadd K. Kraus, DO, DrPH, FACEP, director of emergency medicine research at Geisinger Emergency Medicine in Danville, PA.
He suggests documenting the patient was notified that certain results are preliminary or pending, along with the expected time frame and anticipated method for communicating the results. For example, the EP might document, “I discussed with the patient and her husband at bedside that the results of the urine culture collected in the ED today are not available at the time of discharge from the ED. However, these results should be available within the next 24-48 hours. She will be able to view them by logging into her patient portal. I have sent a secure message. She will not automatically receive a phone call from the emergency department with the test results. If she has additional questions, she may call the emergency department to discuss.”
Additionally, ensure the ED turns to an alternative process if the patient cannot be contacted. That might mean sending a certified letter to the patient with suggested next steps, such as calling the hospital to discuss the results or following up with a primary care physician in seven to 10 days.
In extreme cases, when a patient might be in imminent danger, as with a finding of a brain hemorrhage on a CT scan, the EP might request law enforcement or other officials conduct a welfare check. “In some jurisdictions, legislation has been passed into law that codifies the responsibility to communicate results, although the application to EDs is variable,” Kraus says.
For example, Pennsylvania law requires abnormal diagnostic imaging test results be communicated to ordering entities and patients within 20 calendar days.2 Still, there is an exemption for EDs in this law. “While the legal requirements are often not clear, what is clear is that as emergency physicians, we must always have the best interest of the patient in mind when we order a test,” Kraus says. “That includes communicating the result to the patient.”
- Schuler K. Insights from emergency department medical malpractice cases. CRICO Strategies.
- Pennsylvania Department of Health. The Patient Test Results Information Act. Act 112-2018. Clarifying Guidance.