Communication Key in Avoiding Malpractice Minefields

Radiologists must be good stewards of communication with referring physicians as well as patients if they are to provide optimal care and avoid losing a malpractice claim.

That was the message attendees took from an RSNA 2009 refresher course “Malpractice Minefields in Radiology: Mammography, Interventional Radiology, and Failure to Communicate,” and a Mock Jury Trial case stemming from a malpractice lawsuit focusing on “the failure to communicate.”

Leonard Berlin, M.D. NorthShore University HealthSystem

Robert A. Schmidt, M.D. University of Chicago Medical Center

Robert Vogelzang, M.D. Northwestern Memorial Hospital

According to an annual claims survey, in nearly 60 percent of malpractice lawsuits involving radiologists, the referring physician has never been directly contacted with urgent or significant unexpected findings, said Leonard Berlin, M.D., chair of the RSNA Professionalism Committee who moderated the “Malpractice Minefields” presentation.

Dr. Berlin presented cases in which the referring physician failed to read a radiologist’s report, resulting in a delayed diagnosis—and occasionally even a patient’s death. “In malpractice cases, far more common than the urgent finding is the significant but non-urgent finding,” said Dr. Berlin, a professor of radiology at Rush University’s College of Medicine in Chicago and vice-chair of the Department of Radiology at NorthShore University HealthSystem, Skokie Hospital in Illinois. “Radiologists tend to treat non-urgent results as routine.”

Delay in breast cancer diagnosis is now the most common cause of medical malpractice suits, said presenter Robert A. Schmidt, M.D., a professor of radiology and director of breast imaging research at the University of Chicago Medical Center. “The radiologist is the specialist most frequently sued even though he’s the least likely to have had contact with the patient,” said Dr. Schmidt.

In almost 60 percent of those breast cancer cases, the patient discovered the lesion herself, Dr. Schmidt said. Most patients are young—under 40 years of age.

“These patients make up less than 5 percent of all breast cancer cases, but over a third of indemnity claims,” said Dr. Schmidt. “Palpable masses with a negative mammogram unequivocally require a tissue diagnosis. And with a palpable lesion, you should always, always, always do ultrasound.”

With no evidence showing mammography benefits patients under 40, those cases should be treated as diagnostic exams, he advised.
Simply talking to the patient can help identify palpable lesions, according to Dr. Schmidt who related a case of a woman whose mammogram revealed only fibrocystic breasts, when the woman herself indicated a lump in an entirely different area. “I asked her, ‘Is it like a grape?’ She said no. ‘Is it like a lima bean?’ She didn’t know what a lima bean is. I said, ‘Is it like a pea?’ She said no. Then I asked, ‘Is it like a dime?’ And she said yes. There was indeed a discoid lesion that the mammogram hadn’t found.”

Lawsuits Stem from Complications

Another presenter, Robert Vogelzang, M.D., director of vascular and interventional radiology at Chicago’s Northwestern Memorial Hospital, explained trends in malpractice suits resulting from complications after interventional procedures, using his own professional experience and mistakes as examples.

“Every one of these is a known complication—not one is out of the blue,” Dr. Vogelzang said. “I’m continually struck by the number of lawsuits that come not from the complications themselves but by the failure of the staff to recognize or react,” he said. “So often the staff will say, ‘Oh, the pain is not related, it doesn’t mean there’s been a complication.’ You should always investigate pain.”

Dr. Schmidt recommended that radiologists familiarize themselves with American College of Radiology (ACR) guidelines and apply them to practice. “Those investigating your case love to be able to refer to written guidelines,” he said. “You might not read them, but lawyers do.”

ACR guidelines are deliberately ambiguous, said Dr. Berlin, but they indicate that “in non-routine clinical situations, the delivery of a diagnostic imaging report should be expedited in a manner that reasonably ensures timely receipt of the findings.”

Mock Trial Reconstructs Real Case

The RSNA 2009 Mock Jury Trial reconstructed a real-world case stemming from a lawsuit focusing on “the failure to communicate.”

Communication was also the key issue in the Mock Jury Trial presented at RSNA 2009, also moderated by Dr. Berlin.

The trial reconstructed a real-world malpractice case brought by the family of a 55-year-old Chicago patient who died of lung cancer about a year after a radiologist recorded a suspicious finding in the patient’s radiology report but did not verbally communicate the finding to the referring physician.

The RSNA 2009 trial produced a “not guilty” verdict from its volunteer jury, which voted 10 to 2 in favor of the radiologist. Some jurors decided that by taking an additional step and sending a confirmed fax to the referring physician’s office, the radiologist was more than dutiful.

“Reporting findings like this was what he had done every day for 10 years,” one juror explained. “Some argued that the fax he sent—and he received confirmation that the fax went through—was an additional step. Also, there was no policy in place to say he should have done otherwise. How far should he have gone to police his co-workers?”

“Although the jury found in favor of the radiologist in this particular mock trial, radiologists should realize that in the ‘real world’ of one-way faxes without confirmation of receipt do not exempt the radiologist from liability,” said Dr. Berlin. “The majority of lawsuits stemming from failed communication either end in the jury finding against the radiologist or are settled with payment made on behalf of the radiologist prior to trial.”

Radiologists should go the extra mile in any situation in which communication is uncertain, said Dr. Berlin. “You can’t go wrong with contacting the patient directly,” he said. As stated in the ACR guidelines, “Regardless of the source of the referral, the diagnostic imager has an ethical responsibility to ensure communication of unexpected or serious findings to the patient. Therefore, in certain situations the radiologist may feel it is appropriate to communicate the findings directly to the patient.”

In every case, radiologists should keep meticulous documentation of how, when and to whom their reports are communicated, Dr. Berlin said. “Put a name on the report,” he urged. “Write the name of the person the findings were communicated to. You can’t just say ‘communicated to the referring department.’ If the referring physician says he never got a note from the radiologist, and the radiologist produces a note with a name on it, the jury will believe the radiologist.”

Most PACS are adding features that can confirm, for example, whether an e-mail message with a radiologist’s report has been opened and read, said Dr. Berlin. No matter what the method, he advised radiologists to use common sense to ensure communication is received.

“If you’re not sure, make a call. If you don’t get a hold of anyone at the referring office at 5:00 p.m. on a Friday, try again Saturday morning. If you don’t get anyone Saturday, try again Monday,” Dr. Berlin said. “We have a moral obligation to the patient, and the future of success in radiology will depend on that connection.”