As sonographers we focus on taking care of our patients. In recent years, we have begun to pay attention to our own health and well being. But how often do we consider our legal risk? Questions and discussions pertaining to what a sonographer should or should not do are frequently seen on Connect@ASE , but what is entailed if you are subpoenaed in a malpractice law suit? I hope this month’s communication will offer some food for thought. —Elizabeth McIlwain, Council Chair
How much do you know about the legal aspects of sonography? How likely is it that you or someone you know may be summoned in a lawsuit for suspected medical malpractice involving ultrasound? To work as a cardiovascular sonographer, one needs detailed knowledge and understanding of the disease process, a high level of competency, and clinical interpretive skills to properly perform the exam. The sonographer following department protocol will extend the exam as necessary to provide appropriate diagnostic information to the interpreting physician. Cases against sonographers are rare, as the reviewing physician is ultimately responsible for the interpretation of the study. However, it is not unlikely that a sonographer may be involved in a medical malpractice lawsuit.
It is important that sonographers have a basic understanding of medical legal litigation, understand the health care provider’s role in the process, and are able to identify sources of medical legal litigation and to develop practical skills to reduce the risk of litigation.
The average medical malpractice case takes about five years and about $50,000 to close. There are 4 elements to a medical malpractice lawsuit: Duty, Breach, Causation, Damages. It lies upon the plaintiff (patient or patient’s family) to prove that wrong doing or negligence occurred, prove damages suffered, and prove that the person in question is guilty of fault. Relevant state laws vary and will determine the statute of limitation (time a person may have to decide if they want to seek the advice of an attorney). The attorney may then seek multiple continuances to gather information. The pleadings occur during the first 2-3 months and begin with a summons and complaint, followed by an answer from the defendant. Factual discovery follows during the next 6-12 months; both sides provide written evidence, depositions, and motion practice. Expert discovery occurs during the last 1-3 months before going to trial. Trial can occur 1-2 years after filing and can last from 1-3 weeks. An appeal can occur as late as 1-3 years.
Most sonographers feel protected by knowing their organizations provide them with coverage against medical malpractice. Sonographers should be aware that there may be serious gaps in employee coverage and it is worth investigating their exact policy coverage. Sonographers often moonlight off-hours, take calls at other institutions, or work in consulting positions where their institutional coverage may not extend protection. Many organizations, including the ASE, and health care providers offer personal professional liability insurance. This additional insurance coverage may be necessary if you work outside of your institution or if your institution’s coverage is not adequate to protect you and your credentials.
Malpractice litigation is generated by bad outcomes and significant damages to people. Cases are built by identifying poor patient care, bad charting and documentation, bad testimony, and inflammatory issues. The main sources of evidence are the medical record, policies, protocols, guidelines, and training materials. Medical malpractice is charged in many different types of patient care situations including neglect to properly treat the patient, failure to inform the patient of risk of a procedure or medication, unprofessional conduct, patient abuse, inadequate record keeping, over medication, and practicing medicine without a license. Sonographers may find themselves cited, especially if they provide a preliminary report to anyone other than the interpreting physician.
There is a scope of practice, a code of ethics, and practice standards for the profession of diagnostic sonography to use as tools in reducing the risk of liability. These documents have been endorsed by the ASE and other sonography-related professional organizations. All sonographers should be familiar with and in compliance with these documents. Understand the scope of practice and know your limitations as a sonographer; practice without bias and be culturally competent and sensitive to others. Lab accreditation through the Intersocietal Accreditation Commission (IAC) can provide further protection against liability by setting in place the necessary policies, protocols, and procedures to assure proper compliance with regulations. The best strategy to reduce risk seems to be to provide quality patient care, present factual and timely documentation in the medical record, understand your institution’s policies and procedures,and maintain compliance with lab policy.
The testimonial of a vascular sonographer involved in a medical malpractice lawsuit is enlightening reading and can be found at the following link: www.intersocietal.org/iac/news/newsletter%20archive/2009/icavl/documentation.htm .
After 10 years the final decision in the case came down to proper documentation by the sonographer.
As the current medical environment continues to change it is likely that ultrasound exams will continue to grow in demand, increasing the possibility that legal issues will arise. Sonographers should be aware of this possibility, and lab policy and quality assurance programs should address it.