Leonard Berlin, MD, FACR

In 1971, a federal court in Indiana found a radiologist negligent for failing to promptly communicate to the attending physician radiographic findings of a skull fracture. The radiologist had dictated a correct report, but delivery of the report was delayed for a number of days. “Due care would have required that the radiologist telephone his report to the attending physician,” stated the court.1 In the three and one-half decades that have since passed, the issue of the degree of legal responsibility imposed upon radiologists to communicate significant radiologic findings directly to patients or their referring physicians has come before federal and state appeals courts with increasing frequency. In nearly every case, the courts have ruled that radiologists do indeed have such an affirmative legal duty, and in fact, there has emerged a judicial trend characterized by expansion rather than restriction of the communi-cation duty.

Concurrent with and perhaps influenced by judicial activity, the American College of Radiology began developing Standards (later called Practice Guidelines) to assist radiologists in providing “appropriate radiologic care for patients.” The original ACR Standard on Communication, issued in 1991, called for “direct communication of unusual, unexpected, or urgent findings to the referring physician… in some circumstances.”2 Subsequent revisions in 1995, 1999, and 2001 strengthened the direct communication provision by specifying that such communication should be accomplished either in person or by telephone.3

Communication problems in diagnostic testing have always existed, but they have increased geometrically in recent years, today accounting for nearly 50% of all errors made in physicians’ practices.4 The impact of miscommunication on malpractice litigation is dramatic. Breakdown in communication is an increasing cause of and is now a factor in up to 80% of all malpractice lawsuits.5 With regard to radiology, allegations of failure or delay in communication now represent the fourth most common primary malpractice claim lodged against radiologists6; 25% of all ACR members have been involved in at least one malpractice claim involving allegations of communication failure and payments to the plaintiff in such cases average $1.9 million.7

Is the medical legal landscape associated with radiologic communication changing? Let us explore this question. Within the past 15 months, two events have occurred that are likely to significantly influence both the extent of the legal duty owed by radiologists to communicate significant radiologic abnormalities, and the methods by which radiologists can execute that communication. The first of these is a recent decision of the Arizona Supreme Court; the second is a major revision of the ACR Practice Guideline on Communication that will become effective October 1, 2005. Let us first briefly review the court decision.

RECENT DECISION

An Arizona radiologist was contracted to interpret preemployment chest radiographs and to report his findings to a potential employer. Upon observing a nodule in the right lung on the radiograph of a prospective woman employee, the radiologist appropriately notified the potential employer of the finding. The employer, however, failed to inform the patient of the abnormality. Ten months later, the woman was diagnosed with lung cancer, and subsequently died. A malpractice lawsuit was filed against both the employer and the radiologist, but the employer declared bankruptcy, leaving the radiologist as the sole defendant. The trial court dismissed the radiologist from the lawsuit on the grounds that he did not owe any legal duty to the plaintiff, inasmuch as he had been contracted to render interpretations by the third-party employer. The plaintiff appealed the dismissal to the Arizona Appellate Court, which reinstated the litigation, ruling that notwithstanding the fact that he was under contract by a third party, the radiologist had a duty to communicate findings to every patient in whom he “detects a medical condition for which further inquiry or treatment is appropriate.”8 The court acknowledged that ordinarily the patient’s primary care physician obtains the radiologic results and advises the patient of their meaning, but then added a sentence that should command the attention of the radiologic community: “If there is no referring physician or the referring physician is unavailable, the duty to inform the patient shifts to the radiologist.”

The radiologist then brought an appeal to the Arizona Supreme Court, which affirmed the appellate decision, agreeing that 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 forego timely treatment, and he should have acted with reasonable care in light of that knowledge.”9 The court then emphasized, “The trend now favors imposing a duty and 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.”

Whereas the Arizona Appellate Court had held that if no referring physician is available, the duty to inform the patient automatically shifts to the radiologist, the Supreme Court modified this position slightly, as follows:

A doctor who undertakes to read X-rays, on which he observes serious abnormalities, must act reasonably in reading the X-rays and reporting the results. Whether the radiologist acts reasonably is a matter of the standard of care, to be resolved by the jury.

Whether this duty required direct communication with the subject of the x-ray regarding any abnormalities discovered may depend upon factors such as whether there is a treating or referring physician involved in the transaction, whether the radiologist has the means to identify and locate the patient, and other factors that may be present in a particular case.

Following the Supreme Court decision, the patient’s family dropped the lawsuit and thus we will never know whether an Arizona jury would have found the radiologist negligent. Nor will we ever know whether, given similar circumstances, another jury in another state would find another radiologist negligent. What we do know, however, is that while the Arizona Supreme Court decision is not binding on courts in other states, nonetheless other state courts do take notice of such decisions and may well follow similar reasoning. What we also know is that given the fact that juries are often sympathetic to patients who have been injured while under medical care and may have difficulty in understanding why a radiologist would not directly inform patients of significant abnormalities, it is reasonable to believe that juries may be more likely to find radiologists negligent than not under such circumstances.

NEW GUIDELINES TO DEBUT

Let us now turn to the ACR Practice Guideline for Communication of Diagnostic Imaging Findings, which becomes effective October 1, 2005.

The term “direct communication” is no longer used in the revised guideline, but instead two categories of radiologic communications are delineated, “routine” and “non-routine.”10 Routine reports are communicated “through the usual channels.” “Non-routine” findings are defined as those “that may be seriously adverse to the patient’s health and the radiologist reasonably believes are unexpected by the treating or referring physician.” Delivery of non-routine reports “should be expedited by the radiologist in a manner that reasonably ensures timely receipt of the findings.”

The guideline contains additional departures from previous versions. Whereas previously the guideline indicated that direct communication could be accomplished only in person or by telephone, the revised guideline points out that “there are other forms of communication that provide documentation of receipt, which may also suffice to demonstrate that the communication has been delivered and acknowledged.” The guideline goes on to specify certain alternative forms of communication, such as “text pager, facsimile, voice messaging, non-traditional approaches…and a system that explicitly requests confirmation of receipt of the report by the clinician.”

Let us return to the question, “Is the landscape regarding radiologic communication changing?” Clearly it is in flux, but the direction is not so clear. On the one hand, the courts have expanded and strengthened the duty imposed on radiologists to timely communicate radiologic abnormalities to referring physicians and perhaps to patients themselves. The traditional means of communicating radiologic findings through dictating a report and then transmitting that report to physicians satisfies the duty in “routine” cases, but not if significant findings adverse to the patient’s health may become delayed or lost. On the other hand, the ACR’s Practice Guideline has been liberalized so as to offer to the radiologist a panoply of options in providing the communication required when urgent or significant abnormalities are encountered.

As the radiologic community accelerates into the world of digital radiology and electronic communication, there is good reason to anticipate that communication failures will diminish and eventually be eliminated. Until that happens, however, in order to provide optimal patient care and to avoid malpractice litigation, radiologists must make every effort to both satisfy their legal duty and adhere to ACR Practice Guidelines by assuring that radiologic findings that they believe may be seriously adverse to the patient’s health are promptly and successfully communicated to patients and their physicians.

Leonard Berlin, MD, FACR, is a radiologist, Department of Radiology, Rush North Shore Medical Center, Skokie, Ill, and professor of radiology, Rush Medical College, Chicago.

References:

  1. Keene v Methodist Hospital, 324 F Supp 233 (ND Ind 1971).
  2. American College of Radiology. ACR standard for communication: diagnostic radiology. In: Standards. Reston, Va: American College of Radiology; 1991
  3. Berlin L. Duty to directly communicate radiologic abnormalities: has the pendulum swung too far? AJR Am J Roentgenol. 2003;181:373-381.
  4. Fernald DH, Pace WD, Harris DM, West DR, Main DS, Westfall JM. Event reporting to a primary care patient safety reporting system: a report from the ASIPS collaborative. Ann Fam Med. 2004;2:327-332.
  5. Levinson W. Physician-patient communication: a key to malpractice prevention. JAMA. 1994;272:1619-1629.
  6. Physician Insurers Association of America and American College of Radiology. Practice standards claims survey. Rockville, Md: Physician Insurers Association of America; 1997.
  7. Kushner DC, Lucey LL. Diagnostic radiology reporting and communication: the ACR guideline. JACR. 2005;2:15-21.
  8. Stanley v McCarver, 63 P3d 1076 (Ariz App 2003).
  9. Stanley v McCarver, 92 P3d 849 (Ariz 2004).
  10. American College of Radiology. ACR Practice Guideline for Communication of Diagnostic Imaging Findings. In: Practice Guidelines & Technical Standards 2005. Reston, Va: American College of Radiology; 2005.