Medicolegal Considerations

Medicolegal Considerations

Russell A. Tolley *

false imprisonment

res ipsa loquitur

respondeat superior

The American society in which we live and work as health care professionals is “a nation ruled by laws, not by men.” This quote suggests that law establishes the relationship not only between the individual and the government, but also between individuals. The dominant power over our lives is not the authority of a king, junta, or popularly elected president. Rather, political power is embodied in a complex system that is known simply as “the law.”

Law is not a single entity; it is a composite body of customs, practices, and rules. In our society, these rules and practices come from the federal and state constitutions, the statutes of both state and federal legislatures, regulations issued by the administrative agencies of the executive branch of government, and the interpretations of these constitutions, statutes, and regulations that are rendered by the courts. The law that arises from the courts’ interpretations of these constitutions, statutes, and regulations is known as case law. Community values generally inform and shape the rules formed by particular administrations, legislatures, and courts. However, any reading of contemporary affairs makes the notion clear that perceived community values and our laws are not always in agreement. The history of law—in all forms—is a history of accumulating wisdom and experience that is mixed with substantial amounts of give-and-take among all segments of society.

The underlying motivation for all forms of law is to protect people and property, to provide for correcting injustice, and to compensate for injury. The specific area of the law that most concerns health practitioners is known as medical malpractice.

Medical malpractice

You probably know about large medical malpractice awards to injured patients. Even large medical institutions can be financially devastated when they are required to pay such amounts. To reduce the risk of such medical malpractice awards, you should understand the nature of the legal relationship between the individual patient and health care providers.

The legal rights that exist between the individual patient and those who provide health care to that patient are essentially the same rights that exist between any two individuals, with some significant exceptions. One of these exceptions is that, unlike two individuals who act on roughly equal footing to transact the sale of property or to enter business contracts, the relationship between a patient and a health care provider is rarely that of two equals. Because society has allowed physicians to practice medicine, it also imposes on them the duty to conduct that practice according to accepted standards. In effect, along with special privilege must go special responsibility. Failure to meet this special responsibility can leave a physician or other health care practitioner open to lawsuits alleging wrongful or negligent acts that result in injury to a patient. The law refers to such wrongful or negligent acts generally as torts.

Torts

Torts are not easy to define, but a basic distinction is that they are violations of civil, as opposed to criminal, law.* For this discussion, we can also say that tort law is personal injury law. Torts include specific conditions in which the law allows for compensation to be paid to an individual when that individual is damaged or injured by another.

Two types of torts have been defined: (1) those resulting from intentional action and (2) those resulting from unintentional action.

Intentional Misconduct

Several situations can occur in which a tort action can be brought against the health professional because of some action that was deliberately taken.

1. A tort of civil assault can be filed if a patient is reasonably fearful that he or she was injured by the imprudent conduct of the radiologic technologist. If found liable, the radiologic technologist could be held responsible for providing financial compensation to the patient for damages.

2. A civil battery tort would be an appropriate proceeding when actual bodily harm has been inflicted on a patient as a result of intentional physical contact between a health care provider and a patient, again with potential for liability against the radiologic technologist. A health worker cannot touch a patient for any reason unless a valid consent is given by the patient to receive medical care. (The elements that are required for a valid consent are discussed later.)

3. Other forms of intentional misconduct include invasion of privacy; defamation, whether spoken (slander) or written (libel); and false imprisonment. An example of invasion of privacy is when a radiologic technologist publicly discusses privileged and confidential information obtained from the attending physician or the patient’s medical record. An example of false imprisonment would be unnecessarily confining or restraining the patient without the patient’s permission. If during the performance of a radiographic examination, a patient is strapped to the table or similarly confined without having given permission to be so restricted, that patient would have grounds for a charge of false imprisonment.

Unintentional Misconduct (Negligence)

If the determination is made that a health care provider acted negligently, he or she may be held liable for specific actions that cause injury to patients, even though the actions were unintentional. Negligence can be the basis for tort action because the radiologic technologist, although intending to help, actually caused damage by failing to perform as the patient and the employing hospital had the right to expect that person to perform.

As is the case in the majority of American legal principles, the idea of negligence as a basis for civil liability came from English common law. The concepts of medical negligence and liability have a long history, dating at least to the fourteenth century. We have written records that in 1373 Justice John Cavendish decided the case of Stratton v Swanlond with the conclusion that if the patient was harmed as a consequence of the physician’s negligence, that physician should be held liable. Justice Cavendish added that if the physician did all he could, he should not be held liable, even if no cure was obtained. More than 500 years ago, the basic ingredients of negligence and liability were expressed in an English-language court.

Negligence can be defined as a breach or a failure to fulfill an expected standard of care. Generally, the standard of care required is that degree of care that would be used by a “reasonable person” under the circumstances. For health care professionals, however, the standard of care is modified somewhat and is determined by the degree of care or skill that a reasonable health care professional would exercise under the circumstances. This definition means that the radiologic technologist owes a duty to the patient based on the standard of care that a reasonable radiologic technologist is expected to provide under similar circumstances.* Failure to perform to this expected standard of care will constitute negligence and result in liability. For a health care professional to be found negligent in a court and subsequently held liable for damages, the civil proceeding must establish the following elements:

1. That a duty of care (or standard of care) was owed by the radiologic technologist to the patient

2. That a breach of that duty occurred by the radiologic technologist

3. That the cause of injury was the radiologic technologist’s negligence

4. That the injury to the patient actually occurred

Each of these elements is discussed below:

1. The standard of care owed to the injured person. The radiologic technologist must exercise the care that a reasonable radiologic technologist is expected to exercise under the same circumstances. If a physician instructs radiologic technologist Boswell to radiograph patient Abbott’s right leg, Boswell has a duty to radiograph Abbott’s right leg properly. If Boswell radiographs Abbott’s right leg, Boswell will have performed as a reasonable and prudent radiologic technologist would have acted under similar circumstances. If, however, Boswell radiographs Abbott’s left leg, Boswell is breaching the standard of care by failing to follow the physician’s directions.

Boswell does not have a duty to exercise care above and beyond what a reasonable radiologic technologist would exercise. For example, Boswell does not have the responsibility to repair broken bones that are discovered while radiographing patient Abbott.

Evidence about what the standard of care should be usually consists of the testimony of an expert witness, such as a competent radiologic technologist or radiologist. Testimony will concentrate on what conduct would be reasonably expected under the circumstance based on customarily accepted standards within the medical community.

2. Breach of the standard of care. A breach is failure to exercise reasonable care. What if Boswell radiographs the right leg but the quality of that radiograph is not adequate to provide diagnostic information? If a radiologic technologist has the duty to ensure that radiographs are clear and of the highest quality for the physician’s diagnosis, then giving the physician an inadequate radiograph is a breach of the radiologic technologist’s duty. If a patient’s condition deteriorates because the physician could not properly interpret the radiograph, then the patient would have grounds to sue the physician and the radiologic technologist. How inadequate need a radiograph be before a jury would declare the technologist in breach of duty? This question is difficult and is one that would be resolved in court with the assistance of expert witnesses and by the judgment of a jury on a case-by-case basis.

3. The radiologic technologist’s negligence must be shown to be the direct cause of the patient’s injury. The breach of duty must be the factual cause of the injury. If the radiologic technologist has the duty to make sure that a dizzy or semiconscious patient does not fall from the examination table, it would be a breach of that duty if the radiologic technologist left the room. If, on the radiologic technologist’s leaving the room, the patient fell from the table and sustained injuries, a jury hearing the tort action would likely agree that the radiologic technologist’s breach of duty (negligence) caused the injuries; this judgment is reached because leaving the room would be closely related to the patient’s falling from the table. Suppose, however, that the radiologic technologist leaves the room and on return finds that the patient is very upset that the radiologic technologist left the room, although the patient did not fall off the table. Days later, the patient is standing in the hall telling his wife that the radiologic technologist had left him alone while he was semiconscious on the examination table. In describing the incident, the patient becomes upset, faints, and, as a result, fractures an arm. The patient might argue that the radiologic technologist caused the fractured arm. The patient probably would not prevail in court, however, because he or she would have difficulty proving that the radiologic technologist’s action was a “proximate cause” of the fractured arm. If the cause of injury is too remote from the breach of duty (the negligence), even though factual cause seems evident, then the negligence is not the proximate cause of injury.

4. The patient sustains actual injury. A personal injury case or tort will not be successful in establishing liability if no damages occur. If a patient falls from an examination table because the radiologic technologist leaves the room but does not incur any injuries, the patient cannot expect to receive compensation.

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Tags: Introduction to Radiologic Technology

Mar 2, 2016 | Posted by admin in GENERAL RADIOLOGY | Comments Off

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