Failure of radiologic communication: An increasing cause of malpractice litigation and harm to patients

Dr. Berlin is Vice Chairman, Department of Radiology, NorthShore University Health System, Skokie Hospital, Skokie, IL, and Professor of Radiology, Rush Medical College, Chicago, IL.

Communication of a diagnosis so that it may be beneficially utilized may be all together as important as the diagnosis itself.¹

Women are entitled to know the results of their examinations. Women simply cannot rely on referring physicians to notify them.²

In California, a 58-year-old woman admitted one evening to a hospital emergency department (ED) underwent chest radiography,and it was interpreted by the ED physician as normal. The following morning, a radiologist interpreted the radiographs as follows:“Probably normal chest, but suggest a CT scan to evaluate a small ill-defined density in the right upper lobe.” The radiologist made no effort to directly communicate the result to personnel or physicians in the ED. Eighteen months later, the patient was diagnosed as having a carcinoma in the right upper lung. Comparison with previous radiographs indicated that the density noted on the initial study represented an early carcinoma. A malpractice lawsuit was filed against the radiologist alleging negligence for failing to communicate the abnormality to the ED physician. The lawsuit was settled with payment of $1.5 million.

In Illinois, a 48-year-old man with complaints of renal colic underwent an abdominal and pelvic computed tomography (CT). The radiologist asked a secretary to call the referring physician and give him a preliminary report of “No stones; essentially normal CT.” The following day, the radiologist issued a written report concluding,“...no calculi are seen, but a 5 cm abdominal aortic aneurysm isnoted,” but he did not directly communicate this finding to the referring physician. Two years later, the patient suddenly died of a ruptured abdominal aortic aneurysm. In the subsequent malpractice lawsuit, the referring doctor testified that although he had received the initial verbal report from the radiologist’s secretary, he had never received the final written report that indicated that the patient had an aneurysm. The lawsuit was settled for $2.5 million, with liability shared equally between the referring physician and radiologist.

In Florida, a patient underwent a lumbar magnetic resonance imaging (MRI) study because of symptoms and clinical findings consistent with a herniated disk. A radiologist interpreted the study as showing an L4 to L5 herniated disk, but in his report also mentioned that there was a small space-occupying lesion in the patient’s left kidney which“... most likely has the appearance of a cyst, but ultrasound is suggested for further evaluation.” No direct communication was made with the referring physician. Eighteen months later, the patient underwent a CT that disclosed renal carcinoma; additional studies showed numerous metastases. In a malpractice lawsuit that ensued, the referring physician claimed never to have received the written report from the radiologist. The case was settled against both the referring physician and the radiologist, the terms of which were kept confidential.

In Ohio, a 70-year-old woman was admitted one night to a hospital ED with complaints of severe headache. A head CT without contrast was interpreted by an off-site radiologist, employed by a teleradiology company, as normal. The following morning, the hospital radiologist rendered a formal interpretation that concluded, “... probably normal CT, but because of a questionable density in the area of the anterior cerebral artery, CT scan with infusion is recommended.” The radiologist made no effort to directly communicate the findings to an ED physician. Fifteen months later, the patient was admitted to the same hospital ED, after having collapsed at home. CT studies showed a hemorrhaging, ruptured anterior cerebral artery aneurysm. The patient died 1 hour later. A malpractice lawsuit was filed against the radiologist, ED physician and hospital. A settlement was eventually negotiated, terms of which were not released.

In Pennsylvania, a 34-year-old man was referred by his physician for a chest CT. The radiologist issued a verbal report of “essentially normal CT,” and then left for the day. The following morning, another radiologist rendered the official interpretation, which concluded, “... probably normal chest CT, but there is a small anterior mediastinal mass which is most likely related to the thymus gland. Six-month follow-up may be warranted.” The radiologist did not verbally communicate the finding to the referring physician, who claimed later that he had not seen the report. Two years later, the patient was diagnosed as having a large incurable malignant thymoma. He eventually died, and the family filed a medical malpractice lawsuit against both physicians. A $2.5 million settlement involving both was negotiated.

In Virginia, a woman underwent a Doppler sonogram of her right lower extremity that was interpreted by the radiologist as disclosing a deep vein thrombosis. The radiologist attempted to telephone the report to the referring physician, but could not reach him and thus instructed the office secretary to fax the report. The referring physician was not present at the office, and the fax was not seen until the next day when it was evaluated by the doctor’s nurse. The nurse telephoned the patient and gave her an appointment 2 days later. The next day, however, the patient died suddenly of an acute pulmonary embolism. A lawsuit was filed against both physicians. Because of various technicalities which will be discussed later in this article, the case has not yet been resolved at the time of this writing.

Failure of radiologic communication

The 6 cases briefly described above involve different radiologic abnormalities, different physicians, and occurred in different states. There was, however, a common denominator among them: They all involved a failure on the part of the radiologist to communicate significant abnormal radiologic findings directly to the referring physicians and they all generated a malpractice lawsuit because of serious patient injury.

Failed communication lawsuits are not rare. The most common cause of medical malpractice litigation in the United States is “failure to diagnose,” but data from medical malpractice insurance companies show that the second most common cause is failure to communicate results of radiologic examinations.³ In fact, data disclose that communication problems are at least a causative factor in up to 80% of medical malpractice cases. This is not surprising, considering that a survey of family medicine physicians found that errors in communication accounted for 70% of all errors in that specialty, outpacing errors in diagnosis, which accounted for 47%.⁴ Another study found that physicians failed to acknowledge 36% of abnormal radiologic results; 4% of these, many of which made reference to a possible cancer, were lost to follow-up.⁵

The manner by which medical information is transmitted today is conducive to communication breakdown between referring physicians and radiologists. The typical primary-care physician receives 800 chemistry reports, 40 radiology reports and 12 pathology reports a week.⁴ In the hospital environment, a recent study found that direct communication between hospital-based physicians and primary care physicians occurs only infrequently (3% to 20% of the time).⁶ It was also shown that discharge summaries lacked important diagnostic test results in up to 63% of charts reviewed.

With regard to the prevalence of failed-communication lawsuits involving radiologists, an American College of Radiology (ACR) survey⁷ revealed that 25% of respondents acknowledged being involved in at least 1 malpractice lawsuit involving failure of communication, with indemnification to the plaintiff averaging $2 million. The number of malpractice lawsuits involving failed communication, and naming radiologists as either a defendant or a codefendant, is increasing; and the size of payouts has grown substantially.

The courts define the radiologist’s duty

What is the duty of the radiologist with regard to communication? The legal duty as enunciated by myriad state appellate and supreme courts seems clear-cut. One of the earliest decisions dealing with radiologists’ communication dates back to 1971, where a federal court in Indiana ruled on a case involving a radiologist who on Christmas day dictated a radiography report that raised suspicion of a skull fracture. Although the radiologist knew the report would be delayed several days because of the holiday, he made no effort to telephone the findings to the referring physician. The patient sustained irreversible neurologic damage as a result, and a medical malpractice lawsuit was filed. The court stated:⁸

The radiologist was negligent…he knew that there would be a delay in the transcription of his report… When the radiologist noted the possibility of a serious injury, due care would have required that he telephone his report to the attending physician.

An appellate court in the state of Washington echoed similar sentiments in a case involving delayed treatment of a cervical spine fracture, resulting from failed communication:⁹

The community medical standards of that area would require telephone communication to [the emergency physician] by [the radiologist] of the X-ray diagnosis… Because of the serious implications of the report, a personal contact was required to ensure prompt action.

A 1989 Arkansas Supreme Court decision involving a radiologist’s failure to communicate in timely fashion concurred:¹⁰

When a patient is in peril of his life, it does him little good if the examining doctor has discovered his condition unless the physician takes measures and informs the patient, or those responsible for his care, of that fact.

Subsequent court decisions began focusing not only on the radiologist’s duty to communicate with referring physicians, but also to patients themselves (in certain circumstances). A federal appeals court in the District of Columbia held a radiologist liable because he failed to communicate findings of a routine chest radiograph to a patient who later died of Hodgkin’s disease, an early finding of which had been noted by the radiologist:¹¹

A physician has a duty to disclose what he has found and to warn the examinee of any finding that would indicate that the patient is in danger and should seek further medical evaluation and treatment… [The radiologist] owed a duty of care to [the patient] and breached this duty when he failed to notify him of his abnormal X-ray.

A similar decision was rendered by a Washington State Federal court:¹²

We have little trouble holding that the radiologist owed [the plaintiff] a duty… At a minimum, the radiologist should have notified the [the plaintiff] of the abnormality. This duty is hardly burdensome.

One more recent court decision should be mentioned. In 2004, the Arizona Supreme Court ruled against a radiologist who had been accused of negligence for failing to directly inform a patient that she had an abnormal chest radiograph.¹³

[The radiologist] should have anticipated that [the patient] would want to know of the potentially life-threatening condition and that not knowing about it could cause her to forgo timely treatment, and he should have acted with reasonable care in light of that knowledge… We can envision no public benefit in encouraging a doctor who has specific individualized knowledge of an examinee’s serious abnormalities to not disclose such information. We conclude that public policy is better served by imposing a duty in such circumstances to help prevent future harm.

Mammography and MQSA

It should be noted that none of the 6 cases presented at the beginning of this article involved a delay in diagnosis due to failure of communication of breast cancer. Lack of such cases is clearly attributable to the Mammography Quality Standards Act (MQSA) that was signed into law in 1992. The provision of the act that has relevance to this article deals with a duty of a mammography facility and/or radiologist to send a copy of the radiologist’s interpretation of the mammogram to every patient within 30 days of the examination.¹⁴

Some radiologists and family physicians vehemently objected to this provision, claiming that it would disrupt the traditional physician–patient relationship and place the radiologist in a position in which the radiologist was ill-prepared to handle. Neither of these potential adversities materialized and within several months the MQSA provisions were implemented quietly and without controversy. Not only was patient care improved, but malpractice litigation alleging failure of communication in breast cancer cases virtually disappeared.

Joint responsibility

A perusal of the cases described in the beginning of this article reveals that in many instances the referring physician, as well as the radiologist, become codefendants in malpractice lawsuits alleging delay in diagnosis resulting from failure of communication. Obviously,communication is a 2-way street. When these lawsuits eventually are tried before a jury or are being negotiated to reach a settlement, the issue of relative responsibility and liability of each of the codefendants is deliberated. In these cases there is often a dispute between the communicator (radiologist) and the communicatee (referring physician): The former argues that a meaningful communication was transmitted, and the latter argues that the communication was never received. In some cases radiologists claim that even if they did not communicate the results of the radiologic study verbally, nonetheless a written report was sent and should have been sufficient. If the ordering physicians did not notice or read the report because of inefficiencies in their office, then ought not the radiologist be free of blame? In theory, the radiologist should be protected since the ACR Practice Guideline for Communication of Diagnostic Imaging Findings states that, “The referring physician or other relevant health care provider also shares in the responsibility for obtaining results of imaging studies he or she has ordered.”¹⁵

Unfortunately, even though the written report was sent, and the words in the Communication Guideline appear to be “comforting,” neither relieve radiologists of their communication responsibilities nor protect them from liability. The question of whether the alleged negligence of referring physicians, whether it is equal to or greater than that of the defendant–radiologist, exonerates the radiologists from their own negligence has been unequivocally resolved by the courts. The Virginia lawsuit described earlier focused on the question of whether the misconduct of the referring physician would serve to eliminate the liability of the defendant radiologist. The Virginia Supreme Court addressed this issue head on:¹⁶

The radiologist argued that even if he was negligent for not making direct contact with the referring physician, his negligence was not a cause of the patient’s death because the ordering physician’s subsequent negligence and failure to check the diagnostic report completely broke the chain of events between the radiologist’s negligence and the patient’s death.

In order to relieve a defendant of liability for his negligent act, the negligence intervening between the defendant’s negligent act and the injury must so entirely supersede the operation of the defendant’s negligence that it alone, without any contributing negligence by the defendant in the slightest degree, causes the injury.

The evidence proved without contradiction that the communication problems in this case were begun and put in motion by the radiologist’s failure to make direct contact with the referring physician… An intervening cause does not exempt a defendant from iability if that cause is put into operation by the defendant’s wrongful act or omission. In this case it cannot be said that the radiologist’s alleged negligence was not contributing in the slightest degree to the death of the patient.

It is true, in this and many other cases, that if the primary care physician had acted appropriately, by promptly reviewing the written report, the injury to a patient would not have occurred. Nevertheless, it is the radiologist’s breach of the standard of radiologic care (his failure to directly communicate with the referring physician) that initiates the chain of events that often leads to the patient’s injury or death. Sentiments similar to that of the Virginia Supreme Court were voiced by an Ohio appellate court in 1992:¹⁷

When a radiologist’s conduct is negligent and the patient’s injury is the probable consequence of that conduct, the fact that the negligence of another physician unites with the negligence of the radiologist to cause the injury does not relieve the radiologist of liability.

ACR practice guidelines

The ACR publishes annual Practice Guidelines and Technical Standards. Because of its preeminence, the ACR’s Guidelines and Standards are extremely authoritative from a legal standpoint. Notwithstanding the fact that the ACR explicitly states in its printed material that its guidelines do not constitute or reflect the standard of care, nevertheless these guidelines and standards do greatly influence the courts. How the judiciary views ACR guidelines has been enunciated by the Arizona Supreme Court:¹³

We do not hold that the Standards in and of themselves establish a standard of care, but the published standards or guidelines of specialty organizations are useful in determining the duty and/or the standard of care applicable to a given situation.

The ACR Guideline on Communication, the current version of which became effective on October 1, 2005, carries substantial weight with the courts. All radiologists should familiarize themselves with this guideline. Most plaintiff attorneys have already done so. Let me summarize the salient features.

All radiological interpretations are divided into routine and nonroutine categories. Routine communications are reported through the usual administrative channels. However, nonroutine reports must be“expedited in a manner that reasonably ensures timely receipt of findings.” These words were very carefully chosen, so as to provide to the local radiologist a great deal of latitude. The guideline does not define the terms “expedited” or “reasonably ensures timely receipt.” E-mail, or fax, could satisfy this requirement only if the radiologist has definite indication that the e-mail or fax was received and read.

Nonroutine reports include those that require immediate or urgent intervention, findings that are discrepant from a preceding interpretation, and findings that could be seriously adverse to the patient’s health and that the radiologist reasonably believes are unexpected by the physician. The ACR is somewhat vague on definitions of these terms, leaving it to the discretion of the interpreting radiologist. It is clear from the guideline that appropriate communication must be accomplished and documented. Documentation must be specific. For example, a radiologist’s statement in a report that “… report was telephoned to ED” is not sufficient. Radiologists must specify the name of the person with whom they spoke, and the time of the communication.

Conclusion

Communicating the results of radiologic examinations has become just as much the duty of radiologists as is the rendering of interpretations. Both the courts and the ACR have clearly stated that radiologists must verbally communicate urgent or significant unexpected findings to referring physicians. The judicial system seems to be expanding the radiologist’s duty to directly communicate to patients as well as to referring physicians. If a radiologist, or a person specifically delegated by the radiologist, cannot reach the referring physician, the radiologist may give a verbal report to the physician’s designated alternate. If neither the physician nor the designee can be reached within a reasonable period of time, or if the physician or designee is unknown, the report would best be communicated directly to the patient.

Virtually all plaintiffs’ attorneys are familiar with the ACR practice guidelines. It behooves all radiologists to be equally familiar with them.

Several commercial enterprises now market direct communication products, several of which satisfy both the legal and the ACR requirements for direct communication. Radiologists will be well-served to investigate these various products and determine whether or not they would satisfy local needs.

REFERENCES

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8. Keene v Methodist Hospital, 324 F Supp 233 (Ind 1971).
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13. Stanley v McCarver, 92 P3d 849 (Ariz 2004).
14. U.S. Department of Health and Human Services, Food and Drug Administration. Mammography Quality Standards Act of 1992: Policy guidance help system (updatedFebruary 26, 2007): 900.12(c)(2)(i).(ii). http://www.fda.gov/cdrh/mammography/robohelp/start.htm.Accessed March 4, 2009.
15. American College of Radiology. ACR practice guideline for the communication of diagnostic imaging findings. In 2008 Practice Guidelines & Technical Standards. Reston,VA: American College of Radiology 2008:3–8.
16. Williams v Le, 662 SE2d 73 (Va 2008).
17. Reed v Weber, 615 NE2d 253 (Ohio App 1992).