April 6, 2009
Patient Registration and Processing
By Leonard Berlin, MD, FACR
Vol. 10 No. 7 P. 27
Editor’s Note: Leonard Berlin, MD, FACR, is a professor of radiology at Rush University Medical College and the chairman of the department of radiology at Rush North Shore Medical Center in Skokie, Ill. He began writing on risk management and malpractice issues in a series of articles in the American Journal of Roentgenology. Those articles became the basis for his well-known book Malpractice Issues in Radiology.
The new third edition of Malpractice Issues in Radiology is available from the American Roentgen Ray Society (www.arrs.org).
A 38-year-old male emergency medicine physician who was coughing and experiencing mild chest discomfort ordered a chest radiograph of himself while covering a Saturday afternoon shift at the hospital. The physician was a heavy smoker and his father had died of lung cancer. When he asked the radiology technologist who was on duty to perform the chest examination, the technologist told him that he had to register first so that there would be a permanent record of the radiograph, an official interpretation rendered by a radiologist, and a bill. The emergency physician responded that he was in a hurry and would register later. The technologist proceeded to perform the examination, which resulted in slightly overexposed chest radiographs. Holding the radiographs up to a viewbox, the emergency physician interpreted the findings as normal, placed the radiographs inside the film envelope, and left the radiology department. He did not show the radiographs to, or consult with, a radiologist and he never completed the hospital registration process. The permanent film jacket was later filed, with neither the radiologist who was on call for the department that day nor anyone else noticing that it contained an unregistered and unreported radiographic examination.
Seventeen months later, the emergency medicine physician underwent another radiographic chest examination because of persistent cough, chest discomfort, and a recent 10-lb (4.5-kg) weight loss. Radiographs were immediately shown to a radiologist, who noted a large left upper lobe tumor mass. After removing from the film jacket the earlier chest radiographs that had never been officially interpreted, the radiologist found that they revealed a small tumor in the upper lobe that had not been noticed by the emergency medicine physician when he had interpreted the radiographs 17 months earlier. The patient underwent surgery and chemotherapy but died 22 months later.
Six months before his death, the emergency medicine physician filed a malpractice lawsuit against the hospital and the radiologist who was on duty in the radiology department during the weekend that the original chest radiographs were obtained. He charged that the radiologist’s failure to render a radiographic interpretation of the earlier chest study in a timely manner resulted in a 17-month delay in the diagnosis of lung cancer, thereby depriving him of curative treatment.
Just before the onset of the trial, the hospital settled the lawsuit for $62,500. The legal case against the radiologist proceeded, however, even though the emergency medicine physician had already died (Grossman v Los Alamitas Medical Center, California, 1993). At trial, the plaintiff’s attorney argued that the radiologist who was on call at the hospital had the duty to interpret every radiograph that was exposed, even if the radiologist was not physically present in the hospital when the actual radiologic examination was performed. The plaintiff’s attorney charged that the radiologist’s overlooking of the emergency medicine physician’s radiographs and resultant failure to interpret them constituted negligence. At the same time, however, the attorney suggested to the jury an alternative scenario: perhaps the defendant radiologist initially interpreted the radiographs as showing normal findings but later, realizing that he missed the lesion, destroyed all copies of the report.
The radiologist vehemently denied that he saw the radiographs or the film envelope and insisted that he never even knew that the emergency medicine physician had undergone chest radiography until the patient returned for a subsequent study 17 months later. He and his attorney added that if the emergency medicine physician had placed the chest radiographs in the appropriate “to be read” film bin on the afternoon that the study was performed, he would certainly have rendered a formal interpretation the next day.
At the conclusion of the trial, the jury found the defendant radiologist liable for malpractice, ruling that he did, indeed, have the duty to interpret all radiographs performed while he was on call. It awarded $2.9 million to the deceased emergency medicine physician’s family, but the judge later decreased the award to $1.2 million.1
The radiologist’s defense attorney and insurance carrier decided to appeal the verdict, but during the appeals process the parties settled the matter for an undisclosed reduction in the indemnity payment. The appeal was therefore never completed.
In a legal brief prepared for submission to the appeals court, the defense attorney argued that the radiologist could not be held liable for alleged malpractice toward the emergency medicine physician because no patient-physician relationship had been established. A necessary element for any cause of action for negligence is the existence of a duty of care that a defendant owes to a plaintiff. In the normal case of medical malpractice, this duty arises from the physician-patient relationship (Rainer v Grossman, California, 1973). But this case was not normal, claimed the defense attorney. He conceded that had the emergency medicine physician properly registered as a patient in the radiology department and had his radiographs been properly presented to the radiologist for reporting, the radiologist would have had a clear duty to interpret the physician’s chest radiographs. The relationship between physician and patient is a consensual one, the attorney pointed out, wherein the patient knowingly seeks the assistance of the physician and the physician knowingly accepts the individual as a patient. The emergency medicine physician did not have the authority to unilaterally compel the radiologist to render service to him without the latter’s assent, and no evidence existed that the radiologist had voluntarily accepted the offer to interpret the radiographs, he emphasized. The defense attorney acknowledged that had the radiologist knowingly agreed to interpret the radiographs, a patient-physician relationship would have been established.
“Merely depositing an x-ray in the radiology reading room cannot be deemed sufficient to create a physician-patient relationship and to impose a duty on the radiologist,” argued the attorney.
Although a contract between the hospital and the radiology group existed in which the radiologists agreed to interpret all radiologic studies of properly registered hospital patients, the attorney pointed out that it was not an open invitation to the general public to request and expect not only radiology services without compensation but also an assumption of duty and imposition of risk of liability on the radiologists by anyone who would simply drop a film in the reading room. The radiologist, therefore, had no obligation to interpret radiographs performed on “nonpatients” such as the emergency medicine physician.
In concluding the brief, the defense attorney added that it was the radiology technologist who erred by performing the radiographic examination on the emergency medicine physician without insisting on proper registration and processing, and not the radiologist, who had no responsibility for the actions of the technologist. If the jury found that the technologist had acted negligently, argued the attorney, then any liability incurred should be borne by the technologist’s employer, the hospital.
Unfortunately, we will never know how the higher court would have ruled on the defense attorney’s arguments because the appeal was withdrawn. The issue, however, of whether a patient-physician relationship is established whenever a patient undergoes a radiographic examination in an office or hospital in which a radiologist has an exclusive contract to provide all interpretations has far-reaching effects on radiology practice. There is no question that when a physician undertakes treatment of a patient, or when a radiologist renders a formal interpretation of a patient’s radiologic study, a clear patient-physician relationship is established. Once that relationship is established, radiologists owe patients a duty to “possess and exercise that degree of reasonable skill and knowledge which is ordinarily possessed by other members of their profession.”2
The determination of whether a patient-physician relationship exists is somewhat cloudier, however, in other situations, such as when radiologists provide a clinician a “curbstone” consultation regarding a radiograph without rendering a formal interpretation; when during teaching sessions radiologists discuss their interpretations of radiographs with radiology residents, who in turn render formal interpretations; or when radiologists offer radiographic interpretations while acting in the capacity of a peer reviewer of another radiologist. Various state appeals courts have analyzed physician-patient relationships and potential malpractice liability in these situations.
Whether a physician-patient relationship exists and whether malpractice liability of a professor can arise from a teaching conference were issues decided by a California appeals court, in a case involving a gastroenterologist who recommended surgical treatment for a patient with ulcerative colitis. The gastroenterologist gave his opinion during a gastrointestinal disease conference attended by medical and surgical residents. He never saw or examined the patient, who, after suffering complications from the surgery, sued the gastroenterology professor for malpractice. The court refused to recognize that a physician-patient relationship existed between the patient and the gastroenterologist and dismissed the malpractice action, stating (Rainer v Grossman):
As a teacher of doctors, defendant used as a teaching vehicle cases presented to him by his pupils. It is conceded that his opinion became part of the total information upon which one of those pupils … drew in giving advice to his patient. Presumably every professor or instructor in a professional school hopes, expects or foresees that his students will absorb and apply in their own careers some of the information he imparts. Does he thereby assume a duty of care and potential liability to those persons who may ultimately become the clients or patients of those students? We think not. ... Defendant here was dealing with medical doctors who were not under his direction or control. ... The continuing education of its members by the medical profession and the exchange of information between doctors is of great social benefit.
A California appeals court also refused to recognize a patient-physician relationship and malpractice liability on the part of a physician who was acting as a proctor. Ruling in a case of a surgeon who, on behalf of a hospital and without compensation, volunteered to observe a surgical operation for the sole and express purpose of assessing and reporting on the competence of a surgical candidate for membership on a hospital medical staff, the court determined that the surgeon owed no duty of care to a patient who was injured during the operation. The court held that a patient-physician relationship was not established and that the proctor was responsible only to the medical staff and its credentials committee for a report on the applicant’s abilities and was not expected to supervise that applicant during the surgical procedure. Imposition of liability on the proctor for any alleged malpractice committed by the applicant proctored would “inhibit and stifle prospective peer review.” Stressing the importance of preserving integrity of the peer review process, the court said (Clarke v Hoek, 1985):
There is a strong public interest in supporting, encouraging, and protecting effective medical peer review programs and activities. The quality of … medical care depends heavily upon the committee members’ frankness in evaluating their associates’ medical skills and their objectivity regulating staff privileges. The fear of potential malpractice liability would not only discourage participation by medical professionals in these volunteer review committees, but would stifle candor and impair objectivity in staff evaluations.
A New York appeals court reached a similar decision in a case involving a visiting physician who was making rounds with medical residents and interns in a university hospital. A patient who sustained complications resulting from the treatment administered by a resident who had consulted the instructor attempted to sue the instructor for malpractice. The court ruled that because the visiting physician was acting only in a supervisory and teaching capacity, no patient-physician relationship was created, and he was therefore exempt from malpractice litigation (Shapira v United Medical Service, 1964).
No appeals court has yet dealt directly with the questions raised in the emergency medicine physician case—namely, whether a radiologist who assumes the obligation of interpreting every radiologic examination performed during a certain period of time establishes a physician-patient relationship with a patient who undergoes a radiologic examination but whose radiographs never reach the radiologist. An Arizona appeals court decision, however, may shed some light on how a court might analyze these questions. In the Arizona case, a medical staff physician specializing in internal medicine was paid by the hospital to be on call and to provide professional care to all patients arriving at the hospital’s emergency department. One night a woman in diabetic coma was taken to the department. The nurse telephoned the physician on call, who was at home, but he refused to come to the hospital to examine the patient, instead instructing the nurse to call the patient’s private physician. The private physician initially objected but eventually went to the hospital to treat the patient; however, a significant delay had occurred and the patient later died. Claiming that the patient’s death was directly caused by the delay in instituting appropriate treatment for the coma, the patient’s family sued the physician who was covering the emergency department because of his refusal to respond to the nurse’s call. The defendant physician contended through his attorney that he could not be sued for malpractice by the patient’s family because no physician-patient relationship had been established. The attorney argued that this relationship is a consensual one and, because the physician did not agree to assume the care of the patient, the physician owed no duty to the patient.
The appellate court disagreed with the physician and ruled that he was subject to malpractice litigation. The court acknowledged that as a general rule, a medical practitioner is free to contract for his services as he sees fit and can refuse to treat a patient, even under emergency situations. But in this particular case, stated the court, the defendant physician had agreed in advance to assume care of all patients who came into the emergency department. By doing so, ruled the court, the defendant physician could not use as a defense the claim that a consensual physician-patient relationship did not exist (Hiser v Randolph, 1980).
A similarity clearly exists between the Arizona case and the emergency medicine physician case. Just as the court ruled that a patient-physician relationship was indeed established with the Arizona physician by the fact that he had voluntarily agreed to attend to all patients admitted to the emergency department, a court could well rule that a radiologist who assumes call for a radiology department agrees to interpret every radiographic study performed during a given period, thereby creating valid patient-physician relationships. It is entirely plausible, then, that an appeals court, if confronted with a situation similar to that described in this article, could hold that a radiologist can be sued for failing to interpret radiologic examinations performed while the radiologist is on duty.
The radiologist’s defense attorney also argued in his brief that because the radiology technician violated hospital policies by not properly registering the emergency medicine physician plaintiff before performing the chest examination, it was the technologist’s fault that the radiographs were never presented to the radiologist for interpretation. He then claimed that inasmuch as the technologist was an employee of the hospital rather than the radiologist, liability for any negligence committed should be borne by the hospital, not the radiologist. The California appeals court was not given the opportunity to rule on this assertion, but one must wonder about the validity of the argument, because other courts have ruled that radiologists are vicariously liable for the actions of hospital personnel under their control.3
During the trial, the plaintiff’s attorney subtly suggested to the jury that possibly the radiologist really did interpret the emergency medicine physician’s chest radiographs and, discovering later that the interpretation was incorrect, destroyed the report. Although he could offer no evidence that this scenario occurred, the mere raising of the suspicion of cover-up perhaps caused jurors to question the credibility of the radiologist. To what extent this may have contributed to the jury verdict is not known. A previous article in this series discussed how damaging it is to defendant radiologists when radiographs that are supposed to be directly or indirectly safeguarded by radiologists are lost.4 The same adverse effect applies to the loss of, or the perception of the loss of, a radiology report. No matter how innocent the defendant may be with regard to the actual facts of the case, the jury may assume that the radiologist deliberately destroyed the reports because the radiologist was trying to hide something. Guilt will almost assuredly be inferred.
Summary and Risk Management
The importance of accurately registering and processing patients who undergo radiologic examinations cannot be overemphasized. Whether radiologists are hospital- or office-based, they will likely be held responsible for implementing and adhering to a policy that ensures that every patient undergoing a radiologic examination and every radiographic film is properly identified, and that every radiologic examination is officially interpreted in writing. Courts frequently rule that radiologists and the management of hospitals (or offices) in which they practice share responsibility and liability for infractions of such policy. Furthermore, juries are prone to suspect that radiologic interpretations that either cannot be found or have never been issued indicate that radiologists may be attempting to cover up information to avoid self-incrimination.
The following risk management pointers will help radiologists minimize the likelihood of incurring a medical malpractice lawsuit while maximizing the chances for a successful defense if such a suit is filed and, at the same time, enhance good patient care.
• Radiologists, in conjunction with hospital or office management, should review all policies regarding registration and processing of patients to ensure that all radiologic examinations are accurately identified and presented to the radiologist for interpretation. American College of Radiology standards require that every radiograph be permanently marked with the date and time of the examination and that every written interpretation include, as a minimum, the names of the patient and the referring physician and the type and date of examination.
• Registration policies should be rigidly followed, particularly in situations in which breakdowns in policies are likely to occur, such as when patients are members of the medical staff or the radiologist’s family, or are well-known entertainment or sports figures.
• If radiographs are removed from the radiology department before the radiologist’s interpretation, a report indicating the removal should be rendered promptly. A radiology report that states, “Radiographs have been removed from the department before interpretation,” prepared contemporaneously, will lessen the likelihood that at some future time an attorney will charge, or a jury will believe, that the radiologist deliberately destroyed a report as a means to cover up an error.
• Occasionally, interpretation of a radiographic examination is delayed because either the examination is incomplete or previous films must be obtained. Radiologists should institute a policy that mandates a cutoff time at which a radiology report must be created. Addendum interpretations can be generated later if additional information or previous films for comparison are brought to the radiologist’s attention.
• Radiologists should implement a policy that covers requests for and documentation of interpretation of radiologic examinations performed outside the facility. All such studies should be properly registered and presented in timely fashion to the radiologist.
• Radiologists who are asked by an attending physician to render a “curbstone” opinion or consultation on radiologic studies previously interpreted by a colleague should consider documenting their comments either in a written addendum report or in a log maintained in the radiology department, particularly if they disagree with the earlier report.
— This article appeared in its original form in the American Journal of Roentgenology. It is reprinted here with permission of the American Roentgen Ray Society.
1. Berlin L. The radiological malpractice web thickens. ACR Bulletin. 1994;50(9):17-18.
2. Berlin L. Does the “missed” radiographic diagnosis constitute malpractice? Radiology. 1977;123:523-527.
3. Berlin L. Vicarious liability. Am J Roentgenol. 1997;169:621-624
4. Berlin L. Storage and release of radiographs. Am J Roentgenol. 1997;168:895-897.