Legally, the radiologist who reads the study (and bills for it) has established the basic elements of a contractual service with the patient and is bound by the duty of assuring safe administration of the exam.
“The lawyers are coming! The lawyers are coming!”
Actually, they’ve already arrived. Or at least one has, at this year’s RSNA meeting. Craig Frischman, a medical malpractice plaintiff’s attorney, joined noted MRI safety expert, Emanuel Kanal, MD, FACR, on the dais to present on the unique legal responsibilities and liabilities faced by MRI providers and radiologists.
During their talk, the repeated refrain regarding liability was that there is one person, above all others, with whom the patient has an implicit contract for safe and effective care - and that is the radiologist. Legally, the radiologist who reads the study (and bills for it) has established the basic elements of a contractual service with the patient and is bound by the duty of assuring safe administration of the exam.
“Wait! How can someone who provides services that are likely separated by both time and distance from the MRI exam be legally responsible for the administration of that exam?”
Legally, it doesn’t matter that the radiologist’s shift started four hours after the exam was complete, or that the radiologist actually reads in a different state than where the exam took place. He or she is legally responsible for the safety of the exam. If he or she won’t be there when the exam is performed, then the radiologist needs to demonstrate prospective attention to safety standards.
“No way! Radiologists provide their services to the referring physician, not directly to the patient.”
For the radiology exam, the radiologist is that patient’s doctor and the radiologist is responsible for the exam. The Hippocratic Oath affirms the physician’s duty to the patient, above all else, and civil law takes this oath seriously. Yes, this duty includes the read and report, but it also includes the administration of the exam.
“But my employment contract states that I’m only responsible for providing read services, and excludes all else.”
A physician cannot contract away their legal duty of care to the patient, so perhaps the only thing that such a contract clause might get you is a clear pathway to sue your employer (or, more likely, your insurance company suing them to subrogate their loss) after you lose or settle the claim against you.
Even if your insurance company recovered 100 percent of what they paid in settlement, it won’t change the fact that it is recorded in the national databank as a successful medical malpractice claim against the radiologist.
I was fortunate to have a short while with both of the presenters prior to their talk, during which Mr. Frischman offered some concrete steps to both map and measure performance in managing risk in the MR exam.
First among his recommendations was the ACR Guidance Document for Safe MR Practices. Irrespective of whether the ACR requires it for MR accreditation, it represents the de facto industry standard for safety.
A defending radiologist’s or provider’s obligation would be to disprove the applicability of the Guidance Document from a civil standpoint, because the document exists, authored by a professional society, has been published and freely disseminated, and is recognized as standard by many other organizations. The ACR’s reluctance to incorporate it into its own standards is, at this point, moot with respect to the document’s status as legal standard.
Mr. Frischman indicated that the safety elements contained within the ACR Guidance Document, as with any legally recognized standard, are the “floor,” the minimally acceptable set of performance criteria. These include safety training, rigorous screening of patients, 4-Zone access restrictions, ferromagnetic detection systems, and situational awareness.
Overall, the tone of the presentation was clearly to help radiologists avoid finding themselves on the opposite side of the courtroom from Mr. Frischman, or one of his colleagues, by helping to myth-bust some of the popularly held misconceptions about radiologists’ role and responsibility with respect to exam safety.
Tobias Gilk, M.Arch, is president of Mednovus Safescan, and senior vice president of RAD-Planning. He has previously served on the ACR MRI Safety Committee, and contributed to most of the contemporary design and construction standards for MRI facilities. He has published more than 100 articles and papers on MRI safety.