A patient’s bone cancer goes undiagnosed when radiologists outsource the reading of the MRIs.
Mr. D was a 42-year-old nurse practitioner in a suburban family practice clinic. He had come to expect a rush of injured weekend athletes on Mondays and had always been able to successfully help or refer them. So he was taken by complete surprise when one such patient filed a malpractice suit.
The 32-year-old man, who had been trying to start a family for six years, had injured his knee while running in a touch-football game. He came to the clinic the next day. After examining the swollen knee, Mr. D prescribed crutches to prevent the joint from bearing any weight and sent the patient for an x-ray to rule out fracture.
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While the radiologist did not find a break, he did find a calcified spot on the upper tibia. He described it as “an area of increased bone density and calcified growth” and recommended an MRI of the knee to rule out neoplasm.
Mr. D called the patient at home to tell him about the radiologist’s findings and recommendation. The man said he was feeling much better; his pain and swelling had mostly receded. Nevertheless, he returned to the radiology center about a week later for a noncontrast MRI.
It was at this point that the radiology center put itself at risk. Instead of having a staff physician read the MRI immediately, the center transmitted the scans over the Internet to a subcontractor. He read the clinical notes—“knee trauma”—that had been entered by a radiology clerk. The subcontractor later testified that he never saw Mr. D’s handwritten request for the exam, which included the statement “R/O neoplasm of tibia,” nor did he have access to the previous x-ray that showed the calcified spot.
On the basis of the clerk’s notes, the subcontractor radiologist looked for evidence of knee trauma, including fracture, torn ligaments, and torn meniscus. He found increased synovial fluid with some possible blood and a partial tear of the medial meniscus and anterior cruciate ligaments. He reported these findings accordingly. When Mr. D read the report, he assumed the MRI showed no evidence of neoplasm, as there was no mention of the calcified spot. He told the patient about the torn ligaments and said that otherwise the films were “normal.”
Two years later, the calcified growth turned out to be bone cancer. Before starting chemotherapy, the patient placed sperm in a sperm bank, and a year later his wife became pregnant through in vitro fertilization. This was the ironic culmination of years of trying to start their family, and it intrigued the jury.
The patient’s cancer went into remission. After receiving the bills for his treatment, he sued the radiologist and Mr. D for failing to recognize bone cancer on the MRI. Mr. D showed the notification documents to his supervising physician before sending them on to the insurance company. “You’re not in trouble,” the physician said confidently. “The radiologist is.” Unfortunately, the physician turned out to be wrong.
During the deposition phase of the case, the patient described in great detail how he had injured his knee, gone to the radiology center for the MRI, been reassured that the calcific tibial growth was not significant, and been subsequently diagnosed with bone cancer. He blamed his wife’s difficulty conceiving on the chemotherapy, and his missed diagnosis on “those doctors’ messing up.” Next, Mr. D gave his account, reconstructing his actions from his clinical notes. He ran into trouble only when he came to the phone call explaining the need for an MRI. Here, the cryptic notation read: “T/C pt, agrees MRI.
Schedule.” But he recalled the conversation quite well because the patient had asked several questions. For example, he remembered he had explained that the MRI was necessary to check for bone cancer, as opposed to a benign bone growth, on the tibia. The lawyers’ questions turned to Mr. D’s request for the MRI. It clearly indicated the need to rule out neoplasm, as suggested by the report on the plain films.
After Mr. D’s deposition, the lawyers called their expert witnesses. Each directly contradicted the other about whether the delayed diagnosis had harmed the patient and whether the failure to conceive was related to the chemotherapy.At trial, the patient and his wife came across as a solid, plainspoken couple whom the jury could relate to. Their story was simple and understandable: They had had trouble conceiving a child, and, after the knee injury, had followed Mr. D’s recommendations for the x-ray and MRI. Why, then, had the diagnosis of bone cancer been missed?
The jurors nodded in sympathy and brought back a verdict for $3.5 million, assessing 50% from Mr. D and his supervising physician and 50% from the radiology group on an “ostensible agency” theory.
Legal theory
The doctrine of ostensible agency attributes the actions of an apparent employee (the “ostensible agent”) to an apparent employer. While the radiology group that took the MRI technically did not employ the radiologist who read the film, a reasonable person might think that it did. That’s why the group was liable for the subcontractor’s negligence.
In states with “comparative negligence” statutes, a jury can assign percentage of blame to the different parties involved. Here, the jury attributed 50% of the blame to Mr. D and 50% to the radiologists who hired the subcontractor to read the MRI. The $3.5-million verdict would therefore be assessed at 50% from each of them, or at least their insurance companies.
This sharing mechanism is important to plaintiff’s lawyers who obtain large verdicts with multiple defendants. It makes it less likely that the judgment will exceed the limits of an individual policy, forcing the lawyer to go after a clinician’s personal assets. As one plaintiff’s lawyer put it: “The more insurance companies involved, the merrier the plaintiff’s lawyer is.”
Protecting yourself
Jurors may not be educated in the niceties of MRI diagnosis, but they can appreciate how poor communication can cause a medical disaster in a likable patient. This case illustrates how several incidents of miscommunication combined to produce a preventable adverse result.
Although the jury attributed half of the liability to Mr. D, this was not an objective assessment of fault. That would have placed more responsibility on the radiology group’s poor communication with its subcontractors. Mr. D’s request note was adequate, in that it accurately communicated his request for an MRI to “R/O neoplasm.” It was not his fault that the radiology clinic failed to forward the request form to the reading radiologist, thus triggering the train of events that ended in the lawsuit.
Unfortunately, Mr. D’s experience is common. If you refer a patient to a provider who makes a mistake that ends in an adverse event, expect to be included in the lawsuit that follows.
Often unsure where the blame lies for an adverse event, jurors tend to follow the plaintiff’s lawyer’s suggestions for apportioning blame. This hurts relatively innocent parties like Mr. D. Thus, providers have to be careful to whom they refer patients. A disorganized or incompetent specialist reflects on your own competence and poses a liability risk as well.
