Chnical Radzology (1985) 36, 475-478 0009-9260/85/525475502.00 © 1985 Royal College of Radiologists

The Radiologist and the Courts OSCAR CRAIG

Department of Diagnostic Radiology, St Mapy's Hospttal, London

This communication is based on a paper given at a symposium on management in departments of diagnos- tic radiology. It was thought worthwhile to consider the medico-legal responsibility of consultant radiologists. This responsibility can be considered under various headings.

1. PERSONAL LIABILITY

The legal duty to exercise care and skill was imposed on the professional man over 100 years ago by Chief Justice Tindal in Lanphier versus Phipos. In his judge- ment in the case, Tindal said the following.

'Every person who enters into a learned profession undertakes to bring to the exercise of it, a reasonable degree of care and skill. He does not undertake, if he is an attorney, that at all events you shall gain your case, nor does a surgeon undertake that he will per- form a cure, nor does he undertake to use the highest degree of skill. There may be persons, who have higher education and greater advantages than he has, but he undertakes to bring a fair, reasonable and competent degree of skill.'

This means that a doctor is liable only if he fails to exercise that standard of skill and care that would be expected of a normal, prudent doctor of similar status and experience.

There is little doubt that medical litigation is increas- ing. As an example of this, the number of cases referred to the Cases Committee of the Medical Protection Society in 1974 was 259, while in 1983 it was 650. This only includes those cases thought to be difficult for one reason or another, thought to be expensive or in which there was a matter of principle. Others not in these categories are dealt with by the medical secretariat of the society.

Table 1 gives the figures for litigation in the specialties over the past few years. The combination of orthopaedics and accident and emergency, comprising 27% of the total figure, is of paramount importance to

Table 1 - Breakdown of number of cases of litigation in various specialties over the past few years (n=2056)

Specialty Consultants Junior Total staff

General surgery 192 154 346 (17%) Obstetrics/gynaccology 148 154 302 (15%) Casualty/trauma 19 258 277 (14%) Orthopaedics 157 102 259 (13%) Anaesthetics 85 135 220 General medicine 48 106 154 Psychiatric 61 31 92 Ear, nose and throat 37 24 61 Ophthalmology 17 17 34 Other surgery 49 22 71 Others 129 111 240

the radiologist. In an analysis of 222 cases of litigation involving diagnostic radiology, 75% concerned trauma and 25% concerned non-traumatic cases. The message is that radiologists should especially concern themselves with reporting cases referred from the accident and emergency department. Many radiologists complain that, owing to staff shortages, they are unable to cope with the very heavy reporting load. This is accepted. An analysis of the figures for the past 5 years has shown that there has been an average increase in the work load of 35%, with an average increase in consultant staff of only 12%. In some areas the situation is more serious: an increase in work load of at least 45% and an increase in consultant staff of only 4%. In Northern Ireland the increase in work load is 48%, with no increase in the level of consultants. In addition, the radiologists in Northern Ireland are working at a level of 11 consultants below their establishment.

To add to this staffing problem, we know that radiological time has become more precious with the great increase in time-consuming procedures such as ultrasound, computed tomography (CT) and interven- tional procedures. If selective reporting becomes a necessity, as it does in some areas, then it would be unwise to neglect the accident and emergency cases, where the radiographs may be interpreted by young doctors with no radiological expertise. Although all radiographs should have a radiological report, it would be better to leave the follow-up chest radiographs for interpretation by the chest physician, or the post-opera- tive orthopaedic case to the orthopaedic surgeon. This is not ideal, but would result in less litigation than the alternatives.

It should be remembered, however, that the radiolo- gist is medico-legally responsible for providing a diag- nostic service. If the staff shortage is such that a complete service is not possible, the radiologist should convey this to the Health Authorities in writing. In this way, the Health Authorities may then bear at least some, if not all, of the burden for this failure to provide adequate staff to fulfil requirements. It is expected, of course, that a preliminary notification to the medical committee of the hospital will be made, before the final step is taken.

The radiologist must attempt in his reporting to con- vey the result to his clinical colleagues in as short a time as possible. It is negligent if a report, when completed, rests in the department for an over-long period and, as a result, the patient suffers avoidable harm.

2. CLINICAL RESPONSIBILITY

I wish to quote from a letter received from a very senior member of our specialty.

'I wonder whether you could let me know what the

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Royal College's policy is on who has clinical respon- sibility for patients whilst they are within an X-Ray Department. Is it the consultant radiologist, or the radiologist in training conducting the investigation, or does the patient, during the time he is within the X-Ray Department, remain the clinical responsibility of the referring clinician?'

This seemed a very reasonable and logical question. It surprised me that we had not thought more deeply about this problem before, and I was, thus, charged to draw up an answer that was medico-legally sound. I took the precaution of checking the answer with medico-legal experts.

It would appear that the following points are valid. (a) Clinical responsibility rests with the referring physi-

cian for the condition for which the patient is referred.

(b) Clinical responsibility rests with the radiologist for whatever investigation he is undertaking.

(c) This latter responsibility may be delegated to a junior, but this delegation must be a proper one. An improper delegation will be the responsibility of the consultant in charge.

(d) Any emergency in the department that is dealt with by the radiologist is his responsibility, but, if it is beyond his competence, advice and help should be sought, which may then align the responsibility elsewhere.

These are observations in general, but there may be differing circumstances that could alter the case. An example of these would be the occurrence of a cardiac arrest in a hospital, or in X-ray rooms where no cardiac arrest team was available.

3. RESPONSIBILITIES OF DELEGATION

It is quite proper and necessary to delegate respon- sibility to manage a department effectively. Investiga- tions are delegated to juniors. It is quite wrong to think that, if a junior is performing an investigation, this is at all times the medico-legal responsibility of the consul- tant. If the investigation is within the competence of the junior, having due regard for his training and experience, then the delegation is a proper delegation. The procedure is then the clinical responsibility of the junior. If the investigation is outside the junior's compe- tence, then this is an improper delegation. The respon- sibility for this improper delegation will then rest with the consultant who delegated. There is also a respon- sibility on the part of the junior to refuse to perform a requested procedure which he knows is beyond his com- petence. A good example of this was a non-radiological senior house officer who was requested by his clinical chief to perform vertebral arteriograms. The results were the basis of a medico-legal action, in which both the consultant and the juniors had to bear the medico- legal responsibility.

Some further aspects of delegation must be con- sidered. The consultant in charge of the department has a vicarious responsibility for the staff under his manage- ment, including radiographers, nurses, receptionists and porters. It is for this reason that 'standing orders' within a department are so important. The staff must be aware of the orders for the routine running of the

department and for the actions necessary for emergency procedures. If these are clearly known then some responsibility rests with the staff in carrying out these orders.

A word of caution is that a radiologist must be careful not to delegate a medical problem to non-medical per- sonnel. This is a grey area when we consider radiogra- phers performing ultrasound. Guidelines regarding this have been issued by the Royal College of Radiologists in their newsletter (Craig, 1983). It is clear, however, that it would be difficult to defend in court a medical decision made by a radiographer or other non-medical staff, if this decision was incorrect.

4. INFORMED CONSENT

Radiologists seem to have many problems over con- sent forms and the necessity to obtain informed consent. It is, logistically, not reasonable or, in fact, possible to obtain consent forms for every radiological procedure, such as intravenous urography, barium examination, cystography and the like. However, even for these routine procedures, the radiologist should inform the patient of the nature of the examination and why it is being performed. He must be prepared to listen and answer any questions about it. After all, this is just good doctoring. However, we are now involved in more com- plex issues: all the vascular procedures and all the inter- ventional procedures where informed consent is essential. The question 'how much should you tell the patient?' is frequently asked. I am told that, in the United States of America, where litigation is at a disastrous level for both the good of the patient and the profession, lists of all possible complications may be presented to the patient prior to a signature being obtained. This is, at the moment, not recommended in this country

You may, in effect, by so doing, so frighten the patient that a refusal to have the examination is encouraged. The guideline in this country is to inform the patient of those complications that have a relevant incidence and at all times so to inform the patient that you are acting in the best interests of the patient. A refusal, because of a tiny incidence of a serious complication, to have an examination that is medically indicated might prevent the examination being carried out, and this would not be in the best interests of the patient.

It is recommended that a record of your conversation with the patient should be made in the patient's notes. In

"this way, if the case leads to litigation many years later, you do not have the impossible task of trying to recall such a conversation. Radiologists have not, in the past, considered the necessity of this, but such a practice should now be encouraged.

5. NECESSITY TO VISIT

The question has arisen quite frequently as to what need there is for the radiologist to visit his patients in the wards following any radiological examination. It is, logistically, not possible for the radiologist to visit every patient following many routine procedures, such as intravenous urography, barium examination, cholecystography, intravenous cholangiography,

THE R A D I O L O G I S T AND THE COURTS 477

cystography, urethrography and others. However, there now exists a large number of procedures, such as vascu- lar investigations and interventional procedures, follow- ing which the radiologist should visit the patient in the ward to ensure that any possible complication is noted and acted upon. In addition, in complex radiological cases, including neuroradiological procedures, the department should have standing orders for the conduct of these cases. The radiographers and nursing staff in the hospital should be aware of these standing orders for the post-investigation care of the patient. In a court case for negligence following any post-investigation complica- tion, the question 'what are the standing orders and have they been observed?' will undoubtedly be asked. We have, in the Medical Protection Society, documented cases where this failure has led to claims of negligence.

6. STANDING ORDERS

The consultant in charge of the department is respon- sible for the standing orders of that department. There are routine projections for every radiographic investiga- tion and the radiographer should know the protocol to follow in each case. Of course, whether or not to do four routine views of a skull or four routine cervical spine views in every case may be the decision of the radiologist in charge of the case.

If a consultant or radiological trainee digresses from standing orders, he must be able to defend this in court if legal action were to be taken concerning the case. Stand- ing orders are, as we have noted, essential for the after- care of patients following complex radiological pro- cedures. This has been dealt with, but it should be ensured that the radiological, radiographic and nursing staff are aware of these orders.

7. LOW-OSMOLAR CONTRAST MEDIA

Questions arise frequently as to the legal position regarding low-osmolar contrast media. Is it necessary to use these for all intravascular procedures? If not, when should they be used?

Guidelines for the use of these contrast media were published by Grainger (1984). It was suggested that painful vascular investigations warranted the use of these media. With regard to their use for intravenous urograms and other investigations, ~such as CT, it was suggested that cases known to be at risk, because of a history of allergy, asthma or a past reaction, certainly justified the use of these media. It was suggested that there was no necessity to use low-osmolar contrast media in all cases, as this did not appear to be justified and, in addition, would add an enormous financial burden to the budget for contrast media throughout the country. It was, however, thought wise to inform the Local Health Authority that there would be an increase in the use of these media and that an increase in the budget allowed for contrast media would be necessary.

The courts are influenced by what is considered as 'common practice' and 'accepted practice' within a specialty. It is certainly neither common practice nor accepted practice to use low-osmolar media for all cases where contrast medium is injected. However, it might

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be that a patient's history would suggest the wisdom of using a contrast medium associated with a lower inci- dence of reactions; not to do so might prove difficult to defend in court.

8. PARAMEDICAL REFERRALS

There is some doubt as to whether or not requests for radiography from paramedical sources, such as osteopaths, chiropodists and acupuncturists, should be honoured. From conversations, I believe that the profes- sion is divided on this issue. However, the General Medical Council (1981) stated quite clearly that if a radiologist was to perform a radiological investigation for such paramedical personnel, believing that to do so was in the interests of the patient, then his actions could be defended. The General Medical Council did not state that it was the radiologist's duty to respond positively to such a request - that is a decision for each individual - but it did give the radiologist the opportunity to do so in the interests of the patient.

9. DUTY TO PROVIDE A SERVICE

The Royal College of Radiologists and, indeed, the Department of Health and Social Security (1974) firmly believe that managerial responsibility for the radiologi- cat department must rest with a radiological consultant. However, a manager may delegate some of his respon- sibilities and, indeed, may have to do so.

The radiologist has a duty to the hospital to provide a service. This includes the taking and the interpretation of radiographs. We know that in many centres this has extended to the provision of an ultrasound service and also includes a wide variety of interventional tech- niques. The staffing must be adequate to do this and staffing is the responsibility of the employing authorities. The radiologist has a duty to maintain his equipment in working order. He delegates the mainte- nance, but must be sure that there is adequate mainte- nance. The radiologist is responsible for ensuring that the safest possible irradiation levels are maintained for the patients and, indeed, for the staff. Checks on irradia- tion levels and on scattered irradiation should be made. This responsibility will also be delegated, but must be seen to be done.

It is clear that the health and safety regulations should be followed within the department and that those people working in the department should have read and noted the Code of Practice (Anonymous, 1972).

CONCLUSION

It is the intention of this paper not to cause anxiety about litigation, but to answer some of the problems that arise from day to day within the department. It is cer- tainly wrong for our actions to be dictated solely by a fear of litigation, and there is no need for this. The medico-legal societies deal very efficiently with any problems we have in this field. If problems do arise, then the first step should be to contact the society to which

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you belong and take the sound and experienced advice that you are given.

REFERENCES

Anonymous (1972). Code of Practice for the Protection of Persona Against Ionizing Radtauons Artsing From Medical and Dental Use, 3rd edn. HMSO, London.

Craig, J. 0 . M. C. (1983). Responsibilities in diagnostic ultasound. Royal College of Radiologists Newsletter, No. 15, p. 9.

Department of Health and Social Security (1974). Organisauon of the Scientific and Technical Services, HSC(IS) 16.

General Medical Council (1981). Annual Report, 14. Grainger, R. G. (1984). The clinical and financial implicanons of the

low-osmolar radiological contrast media (letter). Clinical Radio- logy, 35, 251-252.