How incidental radiology findings can lead to malpractice litigation

Brianne Goodwin, JD, RNA 60-year-old male presents to the local emergency room in the early morning hours with complaints of nausea, abdominal pain radiating to the chest, and dysuria. He reports a prior history of kidney stones. A cardiac work-up is negative, and both urology and general surgery are consulted.

The urologist and general surgeon agree to obtain an ultrasound to look for both kidney and gall stones. The ultrasound comes back showing cholelithiasis, and the surgeon reports this to the urologist. In the meantime, the patient’s urinalysis results are positive and antibiotics are ordered for a urinary tract infection. The patient is admitted, undergoes laparoscopic cholecystectomy, and is discharged home quickly.

Nearly 30 months later, the patient is seen for a routine physical exam by his primary care physician, who palpates a firm abdominal mass. An ultrasound is performed that shows a large right kidney mass, with comparison to a previous ultrasound showing it had nearly doubled in size. Further workup reveals metastatic perinephric leiomyosarcoma, which the patient eventually died from.

What previous ultrasound, you might be wondering? The missing piece in the case above is that of the incidental radiology finding. At the time of evaluation in the emergency department, the ultrasound also showed a cystic lesion adjacent to the right kidney and recommended a computed tomography scan with contrast for correlating clinical concern.

Also by Brianne Goodwin, JD, RN: Is your scribe raising your risk of a malpractice lawsuit?

The ultrasound report with this incidental finding was routed electronically to the urology attending, among others. A nurse going through the radiology in-basket in the urology office looked at the report, but noted that the patient had never been seen in the clinic by a urologist, and assumed the report was routed incorrectly. Thus, the consulting urologist was never made aware of this finding.

This is a classic, and not-infrequent, example of the patient who falls through the cracks with an incidental radiology finding. Whose responsibility is the communication of the incidental finding? Should the urologist have accepted the word of the general surgeon regarding cholelithiasis, or should she have read the report on her own? Was the finding present on the preliminary report, or only the final report? Did the urologist’s confirmation of a UTI and prescribing of antibiotics provide a false sense of issue resolution, and contribute to non-review of the ultrasound? Was the incidental finding embedded in a multi-page report, making it hard to find? Did the emergency physician know of this result and not communicate it to the urologist? All of these questions are critical when developing facts in a lawsuit and when putting organizational policy into place.

The use of diagnostic imaging in the emergency department has surged in recent years, and so too, have incidental findings. For example, one study found that there was a fourfold increase in emergency department use of CT scans to evaluate respiratory symptoms over a 9-year span (bit.ly/Testsincrease).

Not surprisingly, not all incidental findings are communicated to patients. One 2011 study found that 33.4% of CT scans performed in an ED had an incidental finding; only 9.8% of these were reported to the patient (Emerg Med Int 2011; 2011:624847).

Mishandling of an incidental finding can lead to a medical malpractice lawsuit, whether the finding itself turned out to be malignant or whether the monitoring of that finding would have increased surveillance and caught another lesion inadvertently (bit.ly/Incidentalfindingliability).

Next: Develop, follow policy

Develop, follow policy

There are many schools of thought on the best ways to manage incidental findings, and the best answer for one organization may not be the best for another. What is important is that health care organizations develop a policy on how incidental findings are routed and communicated, and systematically audit that the policy is being followed. If asked in court why you did not follow up on a particular finding, pointing to an institutional policy is more of a defense than having no reason at all.

Read: Transplanted kidney found to be cancerous; patient sues

If you are in receipt of a radiology report documenting an incidental finding, you should not assume that another provider has dealt with it unless you see clear documentation of this in the medical record. If it is a finding outside of your specialty, it would be prudent to communicate this information to the patient’s primary care or admitting physician, with a note in the chart to memorialize the communication. If the patient is not established in your organization, make sure the patient has a copy of the radiology report and document that he or she has been told how to best follow up. This way, if the patient chooses to do nothing with this information, you have helped to insulate yourself from litigation.

Incidental radiology findings are low-hanging fruit that organizations should develop processes for handling proactively. Although a great number of these findings are benign and will remain benign, the small number that turn into cancers or other growths requiring surgical intervention or significant medical treatment have the potential to become low-hanging fruit for a plaintiff’s attorney.

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Informed consent: A medicolegal guide for urologists

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Missed kidney cancer diagnosis leads to death, legal action

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