Left and Right Marker Error by a Reporting Radiographer: Whose Legal Responsibility - Case Study Example

Left and Right Marker Error By A Reporting Radiographer: Whose Legal Responsibility? Not all errors are negligent in medicine1 because doctors are expected to make mistakes during the course of their careers.2 While malpractice suits attach liability when doctors depart from the ordinary level of care expected of their peers,3 exactly how juries evaluate manifest errors remains unclear. Obvious errors, however, tend to move juries even further towards finding for a plaintiff. This problem of evaluating error is particularly acute in the specialty of Radiology.4 The ease with which a plaintiff can have films taken later in time invokes a variation of hindsight bias, to which the radiologist must answer why he or she did not identify the condition earlier in time.5 The bias may be justified if the errors are attributable to environmental conditions or matters of knowledge over which the providers have some degree of control. However, the bias is undeserved when providers have absolutely no control over the factors giving rise to the error.6 In Radiology malpractice suits, courts and juries indiscriminately attach blame to both variations of error, creating synthetic solutions that fail to improve the quality of care that radiologists deliver to future patients.7 Such case for medical malpractice is a special type of professional malpractice and, as such, forms part of the law of tort. It is concerned with claims for damages for injuries suffered by patients (and others) at the hands of doctors and other health care professionals such as radiographers.8 Except in situations where a patient sought private, there is really no contract between a patient and the doctors. Even in these exceptional situations, the courts have been most reluctant to impose greater obligations on the doctor than are imposed in tort such that a a health care professional will only be held to contract to exercise reasonable care and skill (the tortious duty) rather than warranting a particular outcome from the treatment (a usual contractual duty elsewhere). Thus, for the vast majority of patients in England and Wales, it is the law of tort which provides the only basis, if any, for a claim for damages against radiographers for an alleged malpractice case: Thake v. Maurice [ 1986] QB 644 (CA); Eyre v. Measday [ 1986] 1 All ER 488 (CA). In order to determine as to who has legal responsibility in cases where there is a left and right marker error on a report (the “error” for brevity) by a reporting radiographer, resort to the standards and duty of care imposed upon health care professionals (including radiographers) under the law of tort is therefore warranted. The Fourfold Test of Negligence and the Bolam Test. Since medical malpractice is just a special specie of the law of tort, it necessarily follows that all the other requisites (or the four fold test) for a claim in the law of tort to succeed must still be satisfied. Hence, it must first be established that there is a duty of care owed by a health care professional to his patient which the health care professional took for granted. Then, it must be shown that the health care professional breached such duty of care applying the Bolam test discussed below such that if a health care professional fails below the standard of a responsible body of medical men, the health care professional will be considered negligent. Thirdly, a causal link between the breach of that duty and harm to the patient must be established. Fourthly, it must be shown that such harm was not too remote. In the landmark case of Bolam v Friern Hospital Management Committee [1957] 1 WLR 583, Mr. Bolam was a voluntary patient at mental health institution run by the Friern Hospital Management Committee where he agreed to undergo electro-convulsive therapy or ECT. During the course of electro-convulsive therapy treatment administered to him at the hospital, Mr. Bolam sustained bilateral "stove-in" fractures of the acetabula. ECT treatment consisted in the passing of an electric current through the brain of the patient which, when given unmodified, i.e., without the prior administration of a relaxant drug, resulted in violent muscular contractions and spasms, attended with a known, though slight, risk of bone fracture. In accordance with his normal practice, the doctor treating Mr. Bolam had given the ECT unmodified, and without applying any form of manual restraint other than to support the patient’s chin and hold his shoulders, nurses being present on either side of the couch in case the patient fell off. Mr. Bolam claimed damages alleging that the defendants were negligent for: (1) not using relaxants, (2) not restraining him, and (3) not warning him about the risks involved. Expert witnesses testified as to the different techniques adopted in giving ECT where some used relaxant drugs, some restraining sheets, and some manual control. However, all agreed that there was a firm body of medical opinion opposed to the use of relaxant drugs, and also that a number of competent practitioners considered that the less manual restraint there was, the less was the risk of fracture. It was also the practice of the defendants doctors not to warn their patients of the risks of the treatment (which they believed to be small) unless asked and if asked, they said that there was a very slight risk. Mr. Bolam’s witness testified that it would not be right not to warn a patient of the risks of the treatment. The court in Bolam ruled that a doctor who had acted in accordance with a practice accepted at the time as proper by a responsible body of medical opinion skilled in the particular form of treatment in question was not guilty of negligence merely because there was a body of competent professional opinion which might adopt a different technique. It was likewise ruled that in determining whether or not the plaintiff was entitled to succeed on his allegation of failure to warn, the material considerations were, first, whether or not the defendants, in not warning him of the risks involved in the treatment, had fallen below a standard of practice recognized as proper by a competent body of professional opinion and, if a good medical practice did require warning, then, secondly, would the plaintiff, if warned, have refused to undergo the treatment, and that it was for the plaintiff to show to the satisfaction of the court that, had he been warned he would not have taken the treatment. The jury ruled against the patient and returned a verdict in favour of the defendants. The Bolam test would therefore be: “… In the ordinary case which does not involve any special skill, negligence in law means a failure to do some act which a reasonable man in the circumstances would do, or the doing of some act which a reasonable man in the circumstances would not do; and if that failure or the doing of that act results in injury, then there is a cause of action. How do you test whether this act or failure is negligent? In an ordinary case it is generally said you judge it by the action of the man in the street. He is the ordinary man. In one case it has been said you judge it by the conduct of the man on the top of a Clapham omnibus. He is the ordinary man. But where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.”9 Hence, the standard of care in medical negligence actions is the standard of the reasonable professional, namely the “reasonable doctor” and it is the same in both diagnosis and treatment10 determined at the time of treatment and not at the later time of the trial.11 The appropriate test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill but it is only sufficient if he exercised the ordinary skill of an ordinary competent man exercising that particular art. This means that a reporting radiographer will be tested against the competence of another reporting radiographer and not of a specialist of any sort. Conversely, the standard that a health care professional has to attain is that of the ordinary competent health care professional of his speciality, meaning, a health care professional who professes to exercise a special skill must exercise “the ordinary skill of his speciality”: Maynard v West Midlands RHA [1984] 1 WLR 634. The rules of liability for medical malpractice also follow the general law of negligence. So, for example, just as a learner-driver (or a reporting radiographer in this case) will be judged by reference to the standard of care and skill displayed by an experienced driver (or a radiologist in this case),12 so it will be no defence for a reporting radiographer to attribute the plaintiffs loss to his inexperience.13 In this case, however, a strong case could be made against the hospital (under the principle of vicarious liability) for using an inexperienced staff for tasks that required prior experience or allowing them to practise without adequate supervision. The same could be said for over-stretched or overworked reporting geographers. While courts are conscious of the long hours some health care professionals have to work in some hospitals and may feel some sympathetic to them,14 courts are unlikely to exonerate them solely on such a ground.15 Expert Evidence on Standard. Carelessness in a medical malpractice action is always proven by adducing expert evidence. Res ipsa loquitur may raise an inference of carelessness against the doctor as in the most obvious cases where forceps are left inside the plaintiffs body,16 where the surgeon cuts off the wrong foot (similar to the left right marker error of reporting radiographers) or the plaintiff wakes up in the course of a surgical procedure having been given a general anaesthetic.17 In complex technical cases, however, it has been less effective for the plaintiff18 where the patient and/or defendant health care professional call expert evidence, res ipsa loquitur is unlikely to apply since the court will be called on to reach a conclusion based on all the evidence.19 There is ample scope for a genuine difference of expert evidence in a medical negligence case both in the realm of diagnosis20 and in treatment as well. A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that art. In Sidaway,21 Lord Scarman said that “In short, the law imposes the duty of care; but the standard of care is a matter of medical judgment.” Also, it does not matter if there were more than one practice accepted within the profession as long as the defendant adhered to one: Maynard v. West Midlands RHA [1984] 1 WLR 634 such that the courts preference of one body of opinion to another was no basis for a conclusion of negligence. English courts went further in medical cases than in negligence cases involving other professions, where expert evidence of practice is only some evidence, perhaps even strong evidence that the defendant was not careless but is not conclusive.22 Furthermore, proving that the negligence caused the plaintiffs loss is another task that the patient has to overcome.23 To address this concern, courts have applied the “but-for” test enunciated in Barnett v. Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428. Consequences of Negligence. The duty of care owed by a health care professional to his patients relates to their care (diagnosis, advice and treatment). A patient may claim for injury negligently caused by the treatment (iatrogenic injury) or where the doctor negligently fails to improve or cure the patients condition. Such actions may include damages for physical injury and financial loss and mental distress and suffering arising from the injury. In appropriate circumstances, a patient may also claim for psychiatric injury caused by the doctors negligent treatment. Because there is a pre-existing duty of care, the patients claim will be governed by Page v Smith [1996] AC 155 where as a “participant” or “primary victim”, the patient will not be required to satisfy the restrictive rules applied to “secondary victims.”24 If it can be shown that injury was foreseeable, damages for psychiatric injury can also be recovered.25 The duty may extend to cases where the doctor communicates false information or accurate information carelessly after the treatment is completed.26 Similarly, a patient can also claim economic loss caused by the doctors advice or report.27 Most Common Sources of Errors. The role of a reporting radiography is but a delegation or an extension of the normal duties of a few very experienced radiographers whose tasked is limited to specific imaging such as the extremities. Errors made in radiographic diagnoses are typically divided into errors of knowledge, errors of perception, and errors of judgment. Errors of knowledge frequently, though not always, result in culpability determinations. Errors of perception and errors of judgment afford sufficiently unique challenges and concerns to the field of radiology to merit separate consideration in the area of human error. A radiologists error of knowledge exists if he or she either did not learn, or learned but had forgotten, some crucial bit of medical information that the “average radiologist” should know.28 If this lapse or lack of knowledge results in the misinterpretation of a radiograph, then that misinterpretation could potentially fail to meet the standard of care.29 While other specialties are also held to this standard of care, radiology differs in that a radiograph is essentially a picture of anatomy, and the radiologist is looking for distorted or abnormal anatomy. Literature and practice in radiology recognize that occasions arise when, despite the best of efforts, a radiologist simply will not perceive an obvious abnormality.30 How exactly this occurs is a matter of long-standing debate.31 While the exact cause of perceptual errors remains elusive,32 it is most likely multi-factorial. The most common explanations are known as “satisfaction of search,” discussed supra, and the “search for meaning.” The “search for meaning” principle explains our ability to fill in missing gaps of visual information in order to make sense of partial or incomplete images. Another explanation, while not as well investigated, is termed the “cocktail-party effect.”33 The cocktail-party effect is an auditory phenomenon whereby a listener, in a room full of people engaged in various conversations, can tune out the speaker closest to him or her and actually direct his or her attention to a separate conversation occurring some distance away.34 In fact, the listener can tune out all other unwanted conversations to the exclusion of the conversation of interest. A visual analogy to this phenomenon may be seen whereby an observer looking at an image can focus on one isolated aspect and effectively tune out the remainder of the image. This results in an incredible amount of the image remaining essentially “unseen,” even though it may be otherwise obvious. While errors in perception occur when a radiologist fails to perceive a pertinent abnormality on a radiograph, errors in judgment occur when a radiologist perceives the abnormality, but either discounts or misinterprets it. That is, the area of interest may be perceived but discounted, or perceived as abnormal but given a lower level of significance than actually turns out to be the case.35 In this circumstance, similarities and significant differences again exist between radiology and other medical specialties. Here, we have another situation in which an error does not always entail malpractice. Specifically, the errors committed by various health care professionals (referrer error on wrong information on request card; practitioner (imaging radiographer) on wrong labeling on x-ray or omission of labels, radiologist on incorrect task delegation or lack of mentoring; employer based on vicarious liability for failure to provide adequate training, supervision, scheme of work, protocol and appropriate audit;36 or the reporting radiographer on incompetence and unreasonable workload and human error) are all to be resolved applying the Bolan test discussed above together with the fourfold test in the tort of medical negligence, i.e. the standard of the ordinary skilled man, the reasonable radiographer, exercising and professing to have that special skill. It need not be emphasized that if it is established that the patient’s loss results from the concurrence of the negligence of all - the referrer, the practitioner, the radiologist or the reporting radiographer, then their liability to the patient for negligence is solidary together with their employer under the principle of vicarious liability. In the 2007 case of Majrowski v Guys and St Thomass NHS Trust, 1 A.C. 224 [2007], the House of Lords stated that under the principle of vicarious liability, a blameless employer is liable for a wrong committed by his employee while the latter is about his employers business. Hence, the negligence of one of the co-employees or any of the health care professionals is also attributable to the employer. All told, the determination as to who is legally responsible for the patient’s injury or loss rests on factual considerations of each specific case and the surrounding circumstances. References AB v Tameside and Glossop HA [1997] 8 Med. LR 92 (CA) Berlin, J. W., & Berlin, L. (2001). Radiographic Errors: When and Why Do We Make Them? How Can We Eliminate or Minimize Them? Do They Constitute Malpractice? Contemporary Diagnostic Radiology, 1, 4. Berlin, J. W., & Berlin, L. (2001). Radiographic Errors: When and Why Do We Make Them? How Can We Eliminate or Minimize Them? Do They Constitute Malpractice? Contemporary Diagnostic Radiology, 1, 4. Berlin, L. (1977). Does the “Missed” Radiographic Diagnosis Constitute Malpractice? Radiology, 123, 523, 525. Berlin, L. (1996). Possessing Ordinary Knowledge. Am. J. Roentgenology, 166, 1027-29. Berlin, L. (2003). Failure to Diagnose Lung Cancer: Anatomy of a Malpractice Trial. Am. J. Roentgenology, 180, 37, 44. Berlin, L., & Hendrix,, R. W. (1998). Malpractice Errors in Radiology: Perceptual Errors and Negligence. Am. J. Roentgenology, 170, 864. Bolitho v City and Hackney HA (1997) 39 BMLR 1 (HL) Bull v Devon AHA [ 1993] 4 Med LR 117 Edward Wong Finance Co. Ltd. v. Johnson, Stokes & Master (A Firm) [1984] AC 296 (PC) Hughes v Lloyds Bankpic [1998] PIQR P38 (CA) Hunter v Hanley 1955 SC 200, 204 Johnstone v Bloomsbury HA [ 1992] 1 QB 333 (CA) Kapp, M. B. (1997). Medical Error Versus Malpractice. DePaul J. Health Care L., 1, 751, 754-55. Kennedy, & Grubb (Eds.). Select Bibliography. Principles of Medical Law. Lewis v Weston Area Health NHS Trust [2008] Unreported (QBD) Queens Bench Division Mahon v Osborne [ 1939] 2 KB 14 Maynard v West Midland Regional Health Authority [1984] 1 WLR 634 (HL) McCandless v. McWha, 22 Pa. 261, 269 (1853) Mohr, J. C. (2000). American Medical Malpractice Litigation in Historical Perspective. J. Am. Med. Assn, 238, 1731, 1732. Nettleship v Weston [ 1971] 2 QB 691 Phelps v Hillingdon LBC [1997] 3 F.C.R. 621 Potchen, E. J., & Bisesi, M. A. (1990). When is it Malpractice to Miss Lung Cancer on Chest Radiographs? Radiology, 175, 29. Ratcliffe v Plymouth and Torbay HA Ratcliffe v Plymouth and Torbay HA [ 1998] Lloyds Rep. Med. 162 (CA) Reynolds, A. G., & Flagg, P. W. (1977). Cognitive Psychology (18th ed.). Scott Foresman & Co. Roe v Minister of Health [1954] 2 QB 66 Sidaway v Bethlem Royal Hospital Governors [1985] 1 All ER 643 at 649. Smith, M. J. (1967). Error and Variation. Diagnostic Radiology, 64. Sosman, M. C. (1950). The Specificity and Reliability of Roentgenographic Diagnosis. New Eng. J. Med, 242, 849, 849. Stevens v Bermondsey (1963) 107 SJ 478 Tredgett and Tredgett v Bexley HA [1994] 5 Med. LR 178 Tuddenham, W. J. (1962). Visual Search, Image Organization, and Reader Error in Roentgen Diagnosis. Radiology, 78, 694, 701. Wells, C. (2000). Disasters: A Challenge for the Law. Washburn L.J., 39, 496, 499. Whitehouse v Jordan [1981] 1 WLR 246 (HL) Wilsher v Essex AHA [ 1986] 3 All ER 801 (CA) X (Minors) v Bedfordshire CC [1995] 2 A.C. 633 HL Read More