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After a patient presented to an emergency department (ED) with neurological deficits after a motor vehicle accident, a magnetic resonance imaging scan was ordered. However, the emergency physician (EP) never looked at the results or contacted the radiologist.
"Had the [EP] followed up, he would have noted a large hemorrhage developing," says Joshua M. McCaig, JD, a shareholder with Polsinelli in Kansas City, MO, who defended the EP named in the resulting malpractice lawsuit. "Unfortunately, it was not noticed until it was too late, and the patient died."
Since the EP ordered the test, the results were available prior to admission and there was time to operate on the patient, the case was settled quickly. "The [EP] was primarily on the hook, since he ordered the test," adds McCaig.
Failure to follow up on radiology studies has become a frequent claim against both EPs and radiologists, according to Darien Cohen, MD, JD, an attending physician at Presence Resurrection Medical Center and clinical assistant professor in the Department of Emergency Medicine at University of Illinois, both in Chicago.
"It is a big problem, and it is an increasing problem," says Leonard Berlin, MD, FACR, professor of radiology at Rush University and University of Illinois and author of Malpractice Issues in Radiology. "What I call failed radiology communication’ cases are increasing. Most of these cases are settled out of court," says Berlin.
EPs often believe radiologists should be responsible for failure to follow up because it’s their reading that is delayed, while radiologists think EPs should perform the follow up since they are the ones with an in-person patient-physician relationship.
"Ultimately, there can be joint liability between these physicians when it is not made clear to patients that an incidental or abnormal finding requires follow up," says Cohen.
If a bad outcome occurs due to the report not being read by the EP, both the EP and the radiologist can be held liable, underscores Berlin. "If the EP says, I ordered the report, but I assumed that if there was something abnormal I would have heard about it,’ that’s not going to hold water," he says.
Some EDs have EPs make a follow-up call to radiologists about a study, and some require the radiologist do so. "Either policy can be effective, but responsibility must be made clear," says Cohen. "There needs to be a system in place for overreads and alerts to be identified."
Electronic health records (EHRs) can actually hinder this process, adds Cohen, as there are sometimes different EHRs utilized in the ED and in the radiology suite. He recommends these practices:
Assuming that the radiologist appropriately read the study and dictated even a preliminary report, says McCaig, "the report speaks for itself."
If the EP failed to review a report that could have prevented a bad outcome and the patient sues, the EP will need to explain why it happened.
"In a particularly bad case, there may be a duty on the part of the radiologist to actually call the EP," says McCaig. "But in general, if the report is dictated and in the system, the EP has the responsibility to read it."
If the EP learns of the findings after the patient is discharged from the ED, says Berlin, the EP should contact the patient to inform him or her of the results.
"If the EP tells the patient, The report just came in and we didn’t see it until after you left, and you have to take care of this,’ that’s no harm, no foul," says Berlin. The damage isn’t done unless the patient isn’t notified.
If the EP orders a test, he or she "had better follow up on the results and make sure it is documented," warns McCaig.
A jury will generally understand that medical emergencies are difficult, time-sensitive, and do not always have a good outcome, but will not look favorably on a serious finding being overlooked, says McCaig.
"No one wants to live with the thought that if they go to an emergency room with a real medical emergency, that the physician is going to miss something critical that could have or should have been caught," says McCaig.
Good documentation and well-reasoned testimony by the EP are the most important factors in defending these claims, says McCaig.
At a minimum, the documentation should state that the EP reviewed the films and/or the radiology report. "Just a simple Reviewed MRI report’ is sufficient," says McCaig. "It is also important to document if the EP spoke with the radiologist."
McCaig has seen many EPs asked in depositions if they spoke with the radiologist. "The EP typically doesn’t remember this, and then has to say that it is his habit and custom to do so, but that he can’t specifically remember in this case," he says.
It is much better if the EP can simply point to the chart and say, "Yes, I spoke with the radiologist. He confirmed the findings in his report."
"Then the EP simply has to say he relied on the radiologist’s findings," says McCaig. "That moves the primary responsibility, in most cases, to the radiologist and the interpretation of the radiology study."
"When you read an X-ray that is done in the ED, does the ED doctor always read the report?"
"No, often they don’t."
"Is that why you usually telephone with the results?"
"Yes. If I don’t call the ED doctor, the report may get lost."
This was the general content of an exchange between the plaintiff’s expert witness — a radiologist — and the plaintiff’s attorney in a 2012 medical malpractice case involving an EP’s failure to follow up on an X-ray result. This trial testimony was used to show jurors that an effective process to communicate significant unexpected abnormal findings between the interpreting radiologist and the treating EP was not in place.
The lawsuit named an EP who ordered a spine X-ray for a patient with a chief complaint of cervical pain. The radiologist’s report recommended an additional study with contrast, due to enlargement of the lymph node and tonsil. The EP sent the patient for this second study, which recommended an ENT referral due to possible cancer of the tonsil.
Before the report came back, however, the patient was discharged from the ED. "No one ever read it. A year and a half later, the patient was diagnosed with metastatic cancer," says Berlin. The EP and the radiologist were both sued for malpractice, with a large settlement resulting.
"Had the radiologist picked up the phone and called the EP or the ED nurse and said, We were worried about the bones, and the bones are normal, but there is possible cancer of the tonsil,’ [the bad outcome and lawsuit] might never have happened," says Berlin.
This case and others like it underscore the importance of ED protocols requiring radiologists to call the EP when there is an unexpected abnormal finding, says Berlin.
"Radiologists should know, and the courts will expect them to know, that EDs are chaotic places and that a significant report could be overlooked," says Berlin. "They have a duty to foresee that, and try to avoid it if they can."
Radiologists are sometimes reluctant to call a busy EP about an abnormal finding, or might believe it’s not necessary to do so. "Radiologists may say, We always fax reports and we’ve never had a problem, so we don’t need to call,’" says Berlin. "Well, you may run through four red lights without a problem, but the fifth time you do it you have an accident."
If radiologists fail to call the EP about a significant abnormal finding, Berlin recommends the EP explain that the call is needed to protect the patient, the radiologist, and the EP. "If the call isn’t made, the patient is going to suffer medically, and the EP and radiologist are going to suffer legally," he says.
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