Legally, a just culture presents a double-edged sword for ACR members. Why? Radiologists and radiation oncologists have expertise as diagnostic and therapeutic caregivers — and are the “physician of record” in many cases. When they miss a finding or improperly administer a protocol that allegedly harms a patient, and/or fail to communicate their findings, those acts and omissions frequently carry medical-legal consequences. This column will outline the paradox of whether a just culture — that emphasizes analyzing errors without blame — may function in a U.S. liability system that demands accountability. We will discuss the impact of a new state law that mandates direct communication of findings. Will ACR members in that state be able to comply with that law and work toward a just culture? Additionally, we will assess whether a member may — and should — apologize to a patient for making an error.
In 1994, Leonard Berlin, MD, FACR, an ACR member and leading medical-legal authority, wrote, “Radiologists unanimously recognize that they must fully disclose to a patient or patient’s family the occurrence and nature of any complication that occurs during a radiologic procedure. Radiologists do not uniformly agree, however, that they must disclose whether, and the degree to which, the complication may have been caused by a radiologist’s mistake or error.”1
Twenty-five years later, Berlin’s observation remains valid. So how would radiologists and radiation oncologists who do not detect a finding, however subtle — or oversee therapy that might compromise a patient’ medical condition — fare in a just culture? A Pennsylvania law that took effect in October will challenge their prospects — at least for diagnostic radiologists. The Patient Test Result Information Act of 2018 requires that a patient must be directly notified within 20 days when a diagnostic imaging study occurs that identifies a “significant abnormality.”2 Under this statute, that abnormality is one that “would cause a reasonably prudent person to seek additional or follow-up medical care within three months.” Notably, the law excludes routine OB US exams, plain X-rays, ED imaging services, and inpatient imaging services.
Pennsylvania law now mandates that a physician who performs the exam — usually a radiologist— must notify the patient directly. This represents another communication that the radiologist must make separate from the customary report to an ordering physician. The law’s effect on radiological care remains uncertain. However, we believe that requiring direct communication of certain findings may increase the risk of claims that patients will lodge in Pennsylvania courts, asserting that a radiologist failed to advise them of a diagnosis within the prescribed period. ACR members in Pennsylvania will have to incorporate the 20-day deadline within their clinical workflow. Radiologists from two Pennsylvania hospitals have devised reporting methods that will satisfy the law’s reporting requirements. In a September 2019 JACR® article, they described an approach to balance taking sufficient time for consultations with ordering providers with directly notifying patients.
Radiologists may bear more liability for failing to communicate information in a timely manner — or not at all.
Reflections on medical mistakes in an analytical, neutral framework may benefit members and patients. Nevertheless, Pennsylvania-type laws impose time pressures that will accelerate the clock for members. Radiologists may bear more liability for failing to communicate information in a timely manner — or not at all. Will reporting directly to patients cause more errors to occur in those states? A just culture in our litigious nation will not prevent lawsuits, verdicts, and settlements against ACR members.
Direct communication of results to patients means having difficult conversations with them. Should an ACR member who makes a medical error apologize to the patient? Ethically and perhaps morally, one could argue “yes,” in certain contexts. However, specific admissions may well cost ACR members. Several states have enacted laws that provide immunity for expressing remorse or regret to patients.3 However, very few states protect members against admissions of fault. Consequently, even if members receive immunity, such laws will not preclude an aggrieved patient from suing them. A statement such as, “I’m sorry that I missed ABC finding in your loved one’s study,” may stay out of court. Yet members risk losing valuable time having to defend against potential liability for an underlying claim that they failed to meet the legal standard of care for.
Communication to patients in certain situations now has legal force in one leading jurisdiction. Other states may enact similar reporting laws. Ultimately, a patient and their attorney will regard a just culture as one that benefits them, not necessarily an ACR member.