By Thomas A. Mobilia, Esq., and Daniel L. Freidlin, Esq
Monday, July 10, 2017
Radiologists are frequent targets of medical malpractice lawsuits alleging a failure to diagnose, failure to properly communicate imaging results or failure to make appropriate recommendations. The failure to communicate claim typically arises in the context of a critical finding identified on an imaging study where timely treatment may be the difference between life and death. Effective and timely communication of the radiological findings is essential in the defense of such lawsuits.
The American College of Radiology (ACR) periodically publishes Practice Parameters which serve as a guideline to assist practitioners in providing appropriate care. Although ACR explicitly states that its Practice Parameters are not intended to establish legal standards of care, they are often cited either directly or indirectly by expert witnesses retained by plaintiff’s attorneys to support their position that the defendant — the radiologist — committed malpractice. The “ACR Practice Parameter for Communication of Diagnostic Imaging Findings” addresses the components of the radiology report and effective communication of its findings.
Although the final radiology report is the definitive documentation of an imaging study and its findings, ACR recommends that the radiologist undertake “non-routine communication” of the result to the ordering physician when findings: (1) suggest a need for urgent intervention, (2) are different that a prior interpretation of the same study, or (3) are such that the patient’s health may worsen over time if untreated. Where there is an urgent finding on an imaging report, such as a deep vein thrombosis, the radiologist has the duty to immediately notify the referring physician so that the patient can be timely treated.
Verbal communication is the preferred method of conveying critical radiologic findings. When not feasible, expedited methods of communication such as electronic communications, i.e., e-mail, text messaging, instant messaging, facsimile and instant messaging, should be utilized. When electronic means are used, the radiologist should make sure that the patient health information (PHI) is secure and the transmission of PHI does not violate HIPAA. The ACR Practice Parameter states that “[t]imely receipt of the report is more important than the method of delivery.” Depending on the immediacy of intervention, the radiologist should consider employing multiple methods of delivery simultaneously. Moreover, if the clinician cannot be reached expeditiously, it may be appropriate for the results to be conveyed directly to the patient.
Equally important in terms of mitigating litigation risk is documentation of the routine or non-routine communication. Medical malpractice lawsuits are often initiated years after the events at issue, by which time memories have faded and reconstruction of key events is compromised. Accordingly, contemporaneous and thorough documentation in the patient’s chart of all methods utilized by the interpreting radiologist to convey non-routine communications to the ordering clinician is of utmost importance. The documentation should include the time and method of each communication, the recipient of that communication, as well as substance of the conversation. If efforts to speak directly to the clinician were unsuccessful, the failed attempts should be documented. If the radiology report was transmitted electronically, i.e., fax or e-mail, written confirmation that the results were delivered should be maintained.
It is insufficient to send the final radiology report to the clinician with the expectation that it is received. Imaging findings must be transmitted in a manner which ensures that the patient receives timely and appropriate care. The radiologist must consider the acuity of the radiological findings in determining the appropriate means of communicating the results. If critical findings are identified, the radiologist should make every effort to communicate directly with the referring physician. From a risk management perspective, the communication must be documented for use in the defense of future litigation. If the communication is not documented, the plaintiff’s attorney will argue that it never took place.
Thomas A. Mobilia, Esq., and Daniel L. Freidlin, Esq., are Partners at Martin Clearwater & Bell LLP. For more information, visit www.mcblaw.com.