October 20, 2008
Supervising Technologists — Radiologists’ Liability Issues
By Leonard Berlin, MD, FACR
Vol. 9 No. 21 P. 28
Editor’s Note: Leonard Berlin, MD, FACR, is a professor of radiology at Rush University Medical College and chairman of the department of radiology at Rush North Shore Medical Center in Skokie, Ill. He began his 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. This Risk Management & Malpractice Defense column is drawn from that book.
The third edition of Malpractice Issues in Radiology is scheduled for release this fall and will be available from the American Roentgen Ray Society.
A 66-year-old man was referred to a hospital radiology department for an air contrast lower gastrointestinal examination because of the recent onset of melena. After completing the fluoroscopic and spot-film portion of the examination, the radiologist instructed the radiology technologist to obtain overhead radiographs of the patient’s abdomen with the patient in supine, prone, oblique, and lateral positions. The radiologist also requested that the technologist obtain an anteroposterior view of the abdomen with the patient upright. The radiologist left the fluoroscopy room, and the technologist proceeded to obtain the prescribed radiographs. During this process, the technologist asked the patient if he would be well enough to stand for the upright radiograph, and the patient answered in the affirmative. After positioning the patient against the wall-mounted Bucky grid, the technologist walked to the control panel to make the radiographic exposure. At this point, the patient suddenly collapsed and struck his head on the floor. The technologist quickly summoned assistance, and the patient, unconscious, was placed on a trauma stretcher.
Subsequent neurologic examination and CT scans revealed that the patient had sustained a skull fracture and epidural hematoma. The patient was taken to the operating room, where a neurosurgeon evacuated the hematoma. After a four-day hospitalization, the patient was discharged. However, he continued to complain of headaches and dizziness.
Five months later, the patient filed a malpractice lawsuit against the radiologist, the radiology technologist, and the hospital. The lawsuit alleged that the patient had sustained a “serious head injury with permanent sequelae” because the defendants had been negligent in allowing the patient to stand alone “without support of radiological personnel” during a radiologic examination “that consists of distending the colon with air and barium to such degree that sudden loss of consciousness must be anticipated.”
During discovery proceedings, a radiology expert witness retained by the plaintiff criticized each of the defendants. The expert testified in a deposition that the hospital should have provided at least one other person to assist the technologist so that the patient would not have to stand unassisted. The expert also charged that the technologist acted improperly by permitting the patient to stand alone and that the technologist should have requested additional help. The expert criticized the defendant radiologist for not remaining in the room to supervise the technologist until the entire examination had been completed. The expert stated that the radiologist had a duty to appropriately supervise the actions of the technologist and that his failure to do so constituted a breach of the standard of care.
The radiology technologist, who was represented by the attorney for the hospital, acknowledged in her deposition that additional personnel were called to assist in conducting lower gastrointestinal examinations when it was determined by the radiologist that the patient’s condition necessitated such assistance. The technologist stated that she depended on the radiologist to decide whether the patient was physically able to undergo all of the radiographic positioning, including the standing view, and concluded that it was her “job” to “simply follow the orders” of the radiologist.
The defendant radiologist asserted that he had done nothing wrong. He stated that it is not necessary for a radiologist to remain in the fluoroscopy suite during the entire examination and that it was the responsibility of the technologist, not the radiologist, to determine whether the technologist needed additional assistance.
An expert radiologist retained by the defense supported the actions of the defendant radiologist, testifying that it was the duty of hospital personnel to determine how many technologists and how much assistance was required for conducting lower gastrointestinal examinations. The expert for the defense agreed that it was the responsibility of the radiologist to determine the kind of radiographic views required, but that it was the radiology technologist who was responsible for actually obtaining the radiographs.
Concerned that a jury might well hold both the radiologist and the technologist liable for the injury sustained by the patient, attorneys for the defendants, with representatives of the respective professional liability insurance companies, agreed to settle the lawsuit for $300,000. Payment was apportioned equally on behalf of the radiologist and the hospital.
When radiology technologists employed by a medical facility such as a hospital, free-standing clinic, or private radiology office are sued for medical malpractice, it is generally the employer rather than the technologist who bears the legal responsibility, or is vicariously liable, for the alleged acts of negligence. As discussed in a previous article in this series, “vicarious liability” is a legal term that describes the imputing, or placing, of the negligence of one person on another.1 The most common type of vicarious liability is known as respondeat superior, a Latin term meaning “let the superior respond.” The rationale for this legal concept is that persons or other entities that order someone else to do something are acting as if they themselves are doing it. Courts reason that employers who assign specific duties to employees will obtain financial benefit from these employees, and thus the employers should be responsible for any harm caused as a result of these actions.2
Understanding the legal concept of vicarious liability is important for radiologists because the concept is directly applicable to the relationship between a radiologist and a radiology technologist. In most hospitals or clinics in the United States, technologists are employed by the hospitals or clinics, and radiologists are independent contractors. Under such an arrangement, the hospital or clinic that pays the salary of a radiology technologist usually assumes sole legal liability for negligent acts committed by the employed technologist. However, there are circumstances in which the liability for these technologists extends to radiologists who supervise, but who do not employ, the technologists. The legal means by which radiologists are held vicariously liable for negligent acts committed by radiology technologists is through the legal doctrine known as the “borrowed servant.” Reuter explains this doctrine as follows:
An employee can be directed or permitted by his permanent employer to become the servant or employee of a temporary employer. In making the determination as to which employer is vicariously liable for a specific negligent employee, the true criterion is which employer has the power to control the employee at the time the negligent act was committed.3
A Texas appellate court explained the borrowed servant concept this way:
As a general rule, a physician who exercises due care is not liable for the negligence of nurses, attendants or interns who are not his employees. However, one who borrows [temporarily] another’s employee may be liable … for the borrowed employee’s negligent acts if he acquires the same right of control over the employee as originally possessed by the lending employer (Baker v Story, 1981).
Preferring to use the term “apparent authority” or “implied authority” rather than the borrowed servant doctrine, an Illinois appellate court held that physicians (such as radiologists) can be held vicariously liable for assistants (such as technologists) if a plaintiff can show that a radiologist exerted sufficient control over an assisting technologist, and if the radiologist’s actions or statements reasonably led the plaintiff to believe that the technologist was controlled by the radiologist:
Apparent authority in an agent is the authority which the principal [radiologist] knowingly permits the agent [technologist] to assume, or the authority which the principal holds the agent out as possessing. It is the authority which a reasonably prudent person, exercising diligence and discretion, in view of the principal’s conduct, would naturally suppose the agent to possess (Petrovich v Share Health Plan, 1998).
In those instances in which both the technologist and the radiologist are employees of the same hospital or clinic, vicarious liability of the radiologist is an irrelevant point; legal liability for negligent acts committed by either the technologist or the radiologist will be borne by the employer. In cases in which a private office is owned and operated by a radiologist, it is the radiologist employer who will be held vicariously liable for any negligence of the technologist. What I shall address in the remainder of this article is the more commonplace scenario in which the technologist is employed by a hospital or clinic and the radiologist is an independent contractor. It is in these instances that courts must decide the degree, if any, to which the radiologist who temporarily has the right to control the technologist is liable for a negligent act of that technologist by determining whether the technologist being supervised is a “borrowed servant” of the radiologist.
Radiologists can incur vicarious liability for alleged negligence of technologists for patient injuries sustained under many circumstances. Patients may slip or fall in the radiology department or during an examination by a technologist; technologists may improperly implement certain radiology department policies that have been formulated by the radiologist; or technologists may act negligently while following explicit orders of, and being directly supervised by, radiologists. Let us focus on these circumstances in greater detail.
“Slip-and-fall” is a term commonly used by risk managers, attorneys, and insurance personnel to describe those lawsuits filed by patients who claim injury as a result of falling off examination tables, chairs, or carts; slipping on floors; tripping over furniture; or being inadvertently struck by equipment or portions thereof. These incidents may or may not occur in the presence of the radiology technologist or radiologist. Although the professional judgment of radiologists is usually not an issue in these matters, radiologists nonetheless are often named as sole or codefendants in such cases, and thus it is the radiologist’s professional liability insurance carrier that bears the cost of the defense and any monetary award. Researchers who described the nature of medical malpractice cases filed over a 20-year period in Cook County, Ill., found that slip-and-fall cases accounted for approximately 5% of all radiology-related cases.4
Patient injuries caused by a slip or fall can occasionally be substantial and result in a large settlement or jury award. A jury in Minnesota awarded $1.6 million to a 29-year-old man who sustained an epidural and subdural hematoma that caused permanent brain damage when he fell backward while standing for a facial bone radiographic examination (Doe v Fairview Riverside Hospital, 1998). The patient contended that the technologist should have secured him with safety straps in the vertical position or should have obtained the radiographs with the patient in a horizontal or seated position.
Indemnification payments can reach dramatic heights in cases involving cervical spine injuries that result in paralysis. In Illinois in 1997, a jury awarded $10 million to a patient who claimed to have become quadriplegic because a cervical collar was removed for a radiographic examination (Daubach v Lutheran General Hospital). In South Carolina in 1992, a jury awarded a patient $5 million because a cervical collar and other immobilizing devices were removed to obtain cervical spine radiographs in a patient who, after the examination, developed quadriplegia (Conyers v Nimmons).
Merely because a patient is injured by slipping on a floor or falling from a table or chair in the radiology department does not automatically mean that the patient will prevail in a malpractice lawsuit. The plaintiff may still have to provide testimony of a radiology expert witness that the radiologist breached the standard of care. In Florida in 1995, a woman who fractured her hip and pelvis when she fell off an x-ray table during a barium swallow examination filed suit against a medical imaging center and the radiologist who was in the room but was watching a television monitor, rather than the patient. The patient argued that expert medical testimony to prove negligence was not required because it was obvious to everybody that the defendant radiologist knew or should have known not to turn away from the plaintiff and leave her unattended. The court rejected the patient’s argument and ruled that a plaintiff’s expert was necessary to allege a breach of the standard of care:
The existence of a medical injury shall not create any inference or presumption of negligence against the healthcare provider, and the claimant must provide the burden of proving that an injury was proximately caused by a breach in the prevailing professional standard of care (McDonald v Medical Imaging Center of Boca Raton).
A second scenario in which a radiologist may become ensnared by a malpractice lawsuit involves the patient who sustains injury because a technologist has violated a policy or procedure formulated or approved by the radiologist. For example, a patient about to undergo a radiographic examination notices a sign on the wall of the radiology department that states, “If you are pregnant or think you may be pregnant, please notify a technologist or physician.” The patient informs the technologist that she is uncertain whether she is pregnant, but the technologist fails to communicate this to the radiologist and proceeds with the radiographic study. The patient undergoes the examination, learns shortly thereafter that she was indeed pregnant at the time, and eight months later gives birth to a child with congenital anomalies. One year later, the patient names both the technologist and the radiologist as codefendants in a medical malpractice lawsuit.
In another example of misapplication of a radiology department policy, a patient preparing to undergo infusion of contrast material for a CT scan in a department that selectively uses a low-osmolality contrast medium is given a form by the technologist that asks whether the patient has a history of allergy. The patient writes that he is uncertain about such a history and returns the form to the technologist. The technologist reviews the form and proceeds to administer a high-osmolality contrast medium to the patient without consulting the radiologist. The patient sustains a serious reaction to the contrast medium and files a malpractice lawsuit naming as codefendants both the technologist and the radiologist.
Radiologists may also risk vicarious liability for negligent acts of technologists in circumstances in which the technologist is following the direct orders of the radiologist. For example, the radiologist directs the technologist to inflate the retention cuff of an enema tip before commencing a barium enema examination. The patient sustains a perforation of the rectum and later sues both the technologist and the radiologist.
In another instance, the radiologist directs the technologist to apply pressure for 15 minutes to the groin of a patient who has just undergone femoral arteriography. The technologist decides to terminate the application of pressure after 5 minutes, and the patient later develops a hematoma that leads to serious complications. Both the radiologist and the technologist are later sued for malpractice.
The final example is a case from Illinois that illustrates how a radiologist who directly orders a technologist to modify a radiographic procedure may be held vicariously liable. An emergency department physician ordered radiographs of the cervical spine in a patient involved in an automobile accident. As the radiology technologist was performing the examination, the patient began to thrash and became combative. After completing, with difficulty, and then processing the anteroposterior, open-mouth, and oblique views of the cervical spine, the technologist brought the radiographs to the radiologist and asked whether the spinal examination could be terminated because of the patient’s belligerent state. The radiologist viewed the available radiographs and an earlier cross-table lateral view and, failing to detect any significant abnormality, told the technologist that completion of the full study by obtaining an additional lateral view was not necessary. The findings of the cervical radiographs were then interpreted by the radiologist as normal. Later that day, the patient exhibited symptoms consistent with cervical cord injury. A CT scan revealed a C6-C7 fracture-dislocation, and the patient became permanently quadriplegic. A medical malpractice case filed against the radiologist claiming that the fracture was missed because the radiographic examination of the cervical spine was inadequate and was eventually settled in 1995 for $1.5 million.5
Even though plaintiffs’ attorneys in every state know that it is the hospitals or clinics or both that employ radiology technologists and that it is not the independently contracting radiologists who are responsible for the technologists, and know that the hospitals or clinics or both will bear the primary liability for alleged acts of negligence committed by those technologists, nonetheless under certain circumstances, plaintiffs’ attorneys may decide to include radiologists as codefendants in malpractice lawsuits. Plaintiffs are particularly inclined to do this when it is unclear which of the parties is liable, when liability is questionable to begin with, or when uncertainty exists about the capability of a hospital or clinic to pay a high damage award because of financial problems or limited insurance coverage.
An example of a case in which negligence was uncertain is the lawsuit filed against a California radiologist and hospital, described in a previous article in this series.6 An emergency department physician ordered a chest radiograph of himself at a time when no radiologist was on the premises. The technologist obtained the radiograph without properly registering the physician patient, and the physician interpreted his own radiograph as normal. However, the radiograph was not interpreted by a radiologist because the radiologist on call never knew that the examination had been done or that the radiograph existed. Later it was learned that the emergency department physician was suffering from advanced carcinoma of the lung. A retrospective review of the original radiograph revealed that the lesion had been missed, and both the hospital and the radiologist were named as codefendants in the medical malpractice lawsuit that followed. Just before the trial was to begin, the hospital settled the lawsuit for $62,500. The case against the radiologist proceeded, however. At trial, the defense attorney for the radiologist argued that it was the radiology technologist who erred by performing the radiographic examination of the emergency department physician without insisting on proper registration and processing, and that the radiologist had no responsibility for these 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. Notwithstanding this argument, the jury found the defendant radiologist liable for malpractice and, in 1993, awarded $2.9 million to the family of the then-deceased emergency department physician (Grossman v Los Alamitas Medical Center).
In all malpractice lawsuits in which radiologists and technologists are codefendants, state appellate and state supreme courts carefully analyze the nature of the relationship between the two parties to determine the extent, if any, to which the radiologist may be liable. Let us review relevant appeals court rulings.
The question of whether a radiologist is liable for a technologist’s improper insertion or inflation of enema catheters during barium examinations of the colon has been addressed in the courts. In a Kansas case adjudicated in 1994, a patient whose rectum was perforated during tip insertion by a hospital radiology technologist sued the radiologist even though the radiologist was not in the room at the time of insertion. The lawsuit claimed that the radiologist should be held responsible for acts of medical personnel under his control during a radiologic procedure under the “captain of the ship” doctrine, similar to a surgeon who is generally responsible for hospital employees who assist in the operating room. The Kansas Supreme Court rejected this claim, ruling that the radiologist was not vicariously liable for the actions of the radiology technologist, adding that nothing in the law required the radiologist to be physically present to supervise every activity that occurred in a radiology department (Oberzan v Smith).
However, an Illinois appellate court took a contrary position in 1985. In a case of colonic perforation in which the facts were similar to those in Kansas, the Illinois appellate court ruled that the patient could sue the radiologist under the res ipsa loquitur doctrine (“the thing speaks for itself”), a legal concept that allows circumstantial evidence to imply negligence when the adverse occurrence is of a nature that does not ordinarily happen without negligence (Cassaday v Hendrickson).
Even earlier in an Oregon case adjudicated in 1978, a woman alleged that a fracture of the cervicothoracic junction was missed initially because her radiographs were inadequate. In holding that it was the radiologist rather than the radiology technologist who was liable, the Oregon Supreme Court stated:
It is the radiologist who reads the film and decides whether it is sufficient to enable a diagnosis of the area about which there is concern. While a technician is supposed to be skilled in taking of x-rays, he is not an expert in deciding whether they are sufficient for the purpose of a specific diagnosis. Therefore, had there been only one set of x-rays taken on the plaintiff when he was admitted and had those x-rays been satisfactory to and accepted by the radiologist and the treating physicians, who are not employees of the hospital, we would hold that there was no basis for a jury to find that the technicians were negligent (Simpson v Sisters of Charity).
In 1989, a Georgia appellate court addressed the liability of a technologist and a radiologist for injuries sustained by a patient who fell from an x-ray table while undergoing cervical myelography. The technologist and the radiologist were present during the incident, and both were sued for malpractice. A jury found the defendants not liable, and the plaintiff appealed. The appellate court pointed out that the plaintiff was not complaining about the result of the cervical myelogram procedure, but rather of an injury that allegedly occurred as a result of the radiologist’s failure to protect the plaintiff from injury during the myelography. The appellate court stated:
The issue as to liability was whether the doctor failed to exercise due care, skill, and diligence in conducting the procedures so that the patient’s slump or collapse toward the floor, which resulted in partial dislodging of the needle and subsequent injury, was proximately caused thereby (Clemons v Atlanta Neurological Institute).
The Georgia appellate court affirmed the jury verdict that the doctor was not negligent. In 1995, the Alabama Supreme Court also addressed vicarious liability of physicians for negligent acts of their assistants.
Although the case dealt with a surgical sponge retained in the abdomen of a patient after a laparotomy, the reasoning used by the state court to hold a surgeon liable for the action of a nurse who allegedly miscounted the number of sponges could apply equally to the liability of a radiologist for actions of a technologist:
The responsibility to remove the sponges was that of the doctor and not that of the nurses assisting him. He exercised exclusive control over the sponges from the time he placed them inside the plaintiff until he removed them. The mere fact that the defendant delegated the task of counting the sponges, once he had removed them from the patient, does not, in any way, relieve the defendant of his responsibility to remove them in the first instance. He had the duty and the responsibility of removing all the sponges. The nurse’s responsibility of counting them afterwards amounts to only an added precaution taken by the defendant to help ensure that he had properly performed his duty (Ravi v Coates).
Summary and Risk Management
The healthcare facility that employs radiology technologists and pays their salaries is ordinarily solely responsible for any negligent acts committed by the technologists while they are working under policies formulated and enforced by the facility. However, when technologists perform radiologic examinations or take other action in accordance with a verbal or written order from, or under the direct or indirect supervision of, the radiologist, that radiologist may be held vicariously liable for any injuries to a patient resulting from negligent acts committed by these technologists. The following pointers will assist radiologists in managing potential liability when supervising radiology technologists:
• Hospital- or clinic-based radiologists who have written contracts that set forth the duties and responsibilities of the radiologists should review these contracts with their legal advisors to determine the extent to which the radiologists could be found legally responsible for the actions of technologists. It may be possible to modify certain terms of the contract to lessen the likelihood of the radiologists’ incurring additional vicarious liability.
• Radiologists should review the language of all policies and procedures of their radiology department, clinic, or office to determine which policies and procedures have been developed by and are directly related to the health care facility, and which have been formulated or approved or both by the radiologist. It may be possible to clarify these policies and procedures to lessen the likelihood of the radiologists’ incurring additional vicarious liability.
• Radiologists should confirm with their professional liability insurance carriers that they are adequately covered for negligent acts committed by technologists who assist them, regardless of whether the technologists are under the direct supervision of the radiologists.
• In the final analysis, the degree of supervision of radiology technologists for which radiologists shall be held liable is that which a judge or jury determines to be reasonable. Radiologists must therefore use their best judgment to determine how much supervision of technologists is required for a specific radiologic examination or in the day-to-day operation of a health care facility.
— “Supervising Technologists” appeared in its original form in the American Journal of Roentgenology. It is reprinted here with permission from the American Roentgen Ray Society.
1. Berlin L. Vicarious liability. Am J Roentgenol. 1997;169:621-624.
2. James AE Jr, Sherrard T. Agency. In: James AE Jr (ed). Legal Medicine: With Special Reference to Diagnostic Imaging. Baltimore: Urban & Schwarzenberg; 1980:135-146.
3. Reuter SR. Toward a more realistic and consistent use of respondeat superior in the hospital. St. Louis Univ Law J. 1985;29:601-664.
4. Berlin L, Berlin JW. Malpractice and radiologists in Cook County, IL: Trends in 20 years of litigation. Am J Roentgenol. 1995;165:781-788.
5. Berlin L. Standard of care. Am J Roentgenol. 1998;170:275-278.
6. Berlin L. The importance of patient registration and processing. Am J Roentgenol. 1997;169:1483-1486.