The Arizona Supreme Court is the latest jurisdiction to decide that even without a formal doctor-patient relationship -- as with a pre-employment screening x-ray, in this case -- radiologists may still be liable for communicating serious abnormalities to patients.
The July 29 decision sets a precedent in Arizona, and keeps open the malpractice case against Phoenix radiologist Dr. Robert McCarver, Jr. The state's highest court said it was up to a jury to decide whether the radiologist erred in reporting abnormalities on a pre-employment screening x-ray to the company that contracted for his services, but not to the patient.
The decision is also in keeping with a nationwide trend, according to Dr. Leonard Berlin, chairman of radiology at Rush North Shore Medical Center in Skokie, IL, and malpractice columnist for the American Journal of Roentgenology.
"The lesson is that courts are expanding the duties of radiologists," Berlin said in an interview with AuntMinnie.com. "Ultimately, (for) a radiologist who reads an x-ray on a patient -- no matter who pays that radiologist -- the fact remains that the radiologist has a duty."
"Not all states agree, but more and more states are agreeing," said Berlin, who wrote about similar cases two years ago in his malpractice column (AJR, January 2002, Vol. 178:1, pp. 27-33).
In the Arizona case, a nurse named Christine Stanley had a chest x-ray taken for pre-employment tuberculosis screening required by her prospective employer, Mesa Christian Care in Mesa, AZ. Mesa had contracted with Osborne Nelson & Carr Portable X-ray to take the image; that company in turn contracted with McCarver to read the x-ray.
McCarver wrote in his report that Stanley's x-ray showed a "small nodule overlying the right sixth rib" and a "patchy consolidated parenchymal pattern superimposing the right third rib anteriorly and interspace." He sent his report to the Osborne company, which forwarded it to Mesa.
Mesa had a company policy to notify applicants of their x-ray results within 72 hours, but apparently failed to tell Stanley about the radiologist’s findings. Ten months later she was diagnosed with lung cancer. She then sued Mesa, Osborne, and radiologist McCarver for failing to communicate the abnormality earlier.
Mesa and Osborne were dismissed early from the case; the initial trial court also granted summary judgment to McCarver. That was reversed by the state appeals court, which said McCarver had a clear duty to Stanley. The radiologist then asked the Arizona Supreme Court to reconsider the appellate court's decision.
The state's highest court gave the radiologist a small break, saying that the automatic duty outlined by the lower appeals court was wrong. But the justices, in a 4-1 decision, said it was up to a jury to decide exactly what McCarver's duty was under the circumstances.
"We do not opine that Dr. McCarver has breached any duty. Rather, that issue is remanded to the jury for determination. We hold only that a doctor who, for consideration, undertakes to read x-rays, on which he observes serious abnormalities, must act reasonably in reading the x-rays and reporting the results," the justices wrote.
In other words, said Berlin, "The appellate court said, 'You'll always be held liable,'" and the Supreme Court said, "'You may be held liable.'"
The case will now return to the trial court, and Stanley's daughter must decide by mid-September whether to continue the litigation started by her late mother, according to McCarver's defense attorney Richard Kent.
"It's still not a case that's a slam dunk," said Kent, noting that a jury would also have to weigh whether the 10 months at issue would have made a difference in treating Stanley's lung cancer.
In making new law, the Arizona Supreme Court also explicitly rejected a concern raised in Kent's briefs that a decision holding McCarver liable would "chill" radiologists from reading pre-employment x-rays and similar exams.
"We suspect, based upon the ethical standards governing radiologists, that most radiologists do in fact communicate with some responsible party when a serious abnormality is discovered," the court wrote. "The paucity of case law on this subject further indicates that this is true. It also suggests that the threatened flood of litigation might instead be a trickle."
Alternatively, Berlin suggested, the Arizona case may be viewed as just another facet of a much larger problem that generates plenty of lawsuits.
A more frequent version occurs when a patient undergoes a routine preoperative chest x-ray, and a radiologist's report on unexpected abnormalities is filed after the patient is discharged, and not followed up.
"That is unfortunately an all-too-common problem that occurs," Berlin said. "It is a relatively common cause of malpractice litigation in the United States, and has been for the last dozen years."
"In those cases, usually the referring physician will be liable, but so will the radiologist," Berlin stated. "Because, in our standards today -- the ACR (American College of Radiology) standards -- if a radiologist sees something on an x-ray that is significant and unexpected, he or she is supposed to communicate directly to the referring physician."
In Berlin's view, that probably requires seeing the referring physician in person or catching him or her on the telephone. "Just sending a one-way e-mail or fax doesn't mean there's anyone on the other end looking at it," he observed.
"But when all else fails," Berlin said, "you can never go wrong telling the patient, because that's our ultimate client."
By Tracie L. Thompson
AuntMinnie.com staff writer
August 20, 2004
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X-ray management plan catches lung cancers early, May 28, 2004
Survey finds most small-bowel exams are substandard, April 16, 2004
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