Radiology Practice Successfully Defended by Tom Leverage
Tom represented the medical group that employed the internists who treated the patient as well as the radiologist who read the x-ray in question. The internists were represented by separate counsel.
The case presented very many interesting issues of medicine and law. After a protracted discovery phase, several of the co-defendants were removed from the case by summary judgment motions.
This included a radiologist who read a chest x-ray taken at a hospital on July 24, 2003. This radiologist found an area of opacity in the lower lobe of the right lung. The radiology report indicated that the radiologist favored an infiltrate. The radiologist recommended treatment with antibiotics and a follow up chest x-ray.
The patient brought that report to the medical group on August 5, 2003 when she came to see her primary care physician with complaints of cough with productive sputum and chest pain. The patient’s primary care physician at the group examined the patient, read the report, and ordered a stat chest x-ray. The primary care physician read the x-ray herself and agreed with the prior interpretation of an infiltrate. Since the patient had signs and symptoms of pneumonia, the primary care physician sent the patient to a hospital to be evaluated and treated.
The patient was admitted to the hospital on August 5, 2003; had a portable chest x-ray taken in the emergency room on August 6, 2003 that was read as normal; and began treatment with IV antibiotics for the presumed pneumonia. The patient was discharged in an improved condition on oral antibiotics on August 8, 2003 with instructions to see her primary care physician on August 11, 2003.
On August 6, 2003 a radiologist employed by the group represented by Tom read the stat chest x-ray taken at the group on August 5, 2003 as a normal study. Her report was not typed until August 7, 2003 and not seen by the primary care physician until August 25, 2003. The primary care physician testified at the trial that when she saw the report of the group’s radiologist, she knew that she had seen something different on the film – the film was in fact not normal. She initialed the report and sent it to be filed in the chart. The report as written therefor had no impact on the treatment of the patient.
The plaintiff’s expert in radiology argued that the group’s radiologist should have noted a mass-like opacity and should have recommended a CT scan or a consultation by a pulmonologist. However, the defense argued that the area in question was not suspicious of cancer and did not require the recommendation by the radiologist for a CT scan or a consultation by a pulmonologist. The defense argued that the standard of care only required that the group’s radiologist write a report that was consistent and similar to the report written by the prior radiologist on July 24, 2003.
The defense was strengthened by the application of the law of the case doctrine based on the previously obtained summary judgment with respect to the findings by the radiologist who interpreted the July 24, 2003 chest x-ray. That radiologist did not consider the findings to be suspicious of lung cancer, did not recommend a CT scan or a consultation by a pulmonologist. The defense argued that these findings were unassailable.
The patient did not return to her primary care physician on August 11, 2003 as ordered, but came to the group on August 12, 2003 for complaints relating to side effects from taking antibiotics. The doctor she saw on that date was not her primary care physician. However, that doctor gave the patient a referral for a chest x-ray. The patient never returned for that follow-up chest x-ray.
On August 18, 2003, the patient signed herself into a different hospital for treatment for alcoholism. A chest x-ray taken on August 19, 2003 at that hospital was read as normal indicating that an area that looked nodular in the lower lobe of the right lung was the right nipple. On August 21, 2003, the patient signed herself out of that hospital against medical advice.
The patient did not return to the medical group until the spring of 2004. She was soon diagnosed thereafter with incurable Stage IV lung cancer.
Based on pathology and radiographic findings, the defense offered expert testimony from an oncologist that this patient’s disease was incurable even as far back as August 2003.
Although the verdict sheet given to the jury admitted a departure by the group’s radiologist, the jury concluded that that departure was in fact not a substantial factor in causing the patient’s death.
The jury returned a defense verdict for the group, as well as for the primary care physician, and the physician who saw the patient on August 12, 2003.