Radiology risks center on communication

In radiology, the real malpractice risk begins after the technicians have performed the imaging study and the doctor has interpreted the results. It's what happens to that information from that point on that usually determines whether a lawsuit will result.

Radiology malpractice is most often tied to communication issues rather than alleged flaws in conducting or interpreting the imaging study, notes Robert Russo, MD, FACR, a radiologist in Bridgeport, CT. He runs six imaging centers in southern Connecticut, and his practice is the only Joint Commission-approved full radiology system in New England. Plaintiffs also claim that radiologists missed a diagnosis, but failing to communicate results is a particular risk for radiology, because the physician is not the patient's primary caretaker.

"We have a responsibility to communicate our report to the patient's primary or referring physician, and that gap is really where the improvements can be made in risk management," he says.

Jeffrey Kimmel, JD, a partner with Salenger, Sack, Schwartz & Kimmel LLP in New York City, is a plaintiff's attorney handling malpractice cases, and he has litigated several cases of failure to diagnose breast cancer. He agrees that communication is the most common issue.

"Whether it's communicating with the patient or the referring doctor, it always seems that someone dropped the ball in conveying what was found and whether or not it was urgent, needed follow up, how much follow up was needed, whether more views were needed," he says. "The communication practices vary from office to office, and people rely on these imperfect methods of communication — a fax, an e-mail, a letter — and don't follow through to make sure that the information got to the right person."

Follow the standards

The American College of Radiology has standards that specifically address how imaging results must be communicated. (For the standards, go to http://www.acr.org/SecondaryMainMenuCategories/quality_safety/guidelines/dx/comm_diag_rad.aspx ) One of the key points in the standards is that the communication of critical results, such as a cancer finding, must be from doctor to doctor. Critical results require the radiologist to call the other doctor by phone, in addition to sending a full report.

"What a risk manager can do is to set up a system that meets those standards from the college, a system that ensures those results are reported every time and that sets off an alert if anything is about to be overlooked or slip through the cracks," Russo says. "There are commercially available systems that keep a log to track all the communication, which keeps you from forgetting to do something, but also creates a detailed documentation of how and when you met the communication standards."

In a presentation on malpractice risks at the recent meeting of the Radiological Society of North America in Chicago, Robert Albert Schmidt, MD, a professor of radiology at the University of Chicago Medical Center, said most radiologists have not read the American College of Radiology standards.1 "If you don't know what's there, guess who reads these things," he said. "Lawyers. Lawyers read these things all the time."

Schmidt pointed out that radiology malpractice cases, while still relatively uncommon, are growing as a percentage of all malpractice cases. In 1990, radiology cases made up 11% of all malpractice cases, Schmidt says. But that figure rose to 24% in 1995 and 33% in 2002.

Schmidt says part of the increase can be attributed, ironically, to the health care community's successful promotion of mammograms. The public has been convinced that mammograms are a near perfect screening tool for breast cancer, he says, so people are quick to file a lawsuit if a woman gets breast cancer after mammography.

Hospitals at risk

Peter Hoffman, JD, an attorney with the law firm of Eckert Seamans Cherin & Mellott in Philadelphia, points out that the same communication failures can occur within a hospital setting. Patients who come in for preoperative imaging studies or those who undergo testing during emergency care are at the same risks if those results are not properly conveyed, he says.

"There can be a real risk in the emergency department, because you sometimes have people leave before the radiologist can read the results, and if it is a critical result, then that person is gone — and you may not able to find him again," he says. "There also is the problem of outsourcing, in which the image is sent to a firm somewhere else in the world when you don't have a radiologist in-house all the time. That company's communication policies can make or break you."

Premature discharge of emergency department patients can increase the risk for radiology malpractice, cautions Edward Carbone, JD, an attorney with the law firm of Buchanan Ingersoll Rooney, in Tampa, FL, who has represented hospitals for 14 years. Although the hospital should have a reliable methodology for contacting that patient when the imaging results are read, the reality is that it becomes more difficult to communicate the results after the patient walks out the door, he says.

"When communication is so critical to this process, you will always be better off streamlining the communication as much as possible," he says. "When you have a choice, opt for the more direct line of communication rather than relying on trying to track down the person later."

Radiology also is getting closer scrutiny from federal regulators because of recent incidents in which patients were overexposed to radiation.

Jeffrey Kroll, JD, an attorney in Chicago, says radiologists can be targeted in a lawsuit when there is a bad outcome, because they are seen as the last line of defense. They also can be accused of failing to conduct follow-up tests to ensure an accurate diagnosis, which the ACR standards say they should be done "when appropriate."

"That's where we get hung up on some of these cases," Kroll says. "People will argue about what is appropriate, and unfortunately, we see the referring physician pointing fingers at the radiologist, saying he was relying on what the radiologist told him. The radiologist can be left holding the bag."

Reference

1. Schmidt RA. Malpractice minefields in radiology: mammography, interventional radiology, and failure to communicate. Radiological Society of North America Annual Meeting, Chicago. Presentation RC627, December 3, 2009.

Sources

For more information on radiology malpractice risks, contact:

• Robert Russo, MD, FACR, Robert D. Russo M.D. and Associates Radiology, Bridgeport, CT. Telephone: (203) 683-9729. E-mail: rrusso@russomd.com

• Robert Schmidt, MD, Professor of Radiology, University of Chicago Medical Center. Telephone: (773) 702-2781. E-mail: raschmid@uchicago.edu.

• Peter Hoffman, JD, Eckert Seamans Cherin & Mellott, Philadelphia, PA. Telephone: (215) 851-8420. E-mail: phoffman@eckertseamans.com.

• Jeffrey Kroll, JD, The Law Offices of Jeffrey J. Kroll, Chicago. Telephone: (312) 676-7222. E-mail: jeff@kroll-lawfirm.com.

• Jeffrey Kimmel, JD, Salenger, Sack, Schwartz & Kimmel, New York City. Telephone: (212) 267-1950.

• Edward Carbone, JD, Buchanan Ingersoll Rooney, Tampa, FL. Telephone: (813) 222-8805. E-mail: edward.carbone@bipc.com.