A man presented to a hospital’s emergency room with symptoms that included abdominal pain. He was examined by an emergency department physician and a surgeon. A radiologist, a contract employee, performed an abdominal scan and interpreted the results. The radiologist's initial conclusion was that the man had a diverticular abscess, and although the radiologist discussed this diagnosis in person with the surgeon, it was unclear whether he and the surgeon discussed the possibility of a neoplasm (cancer). The surgeon conveyed the diverticulitis diagnosis to the man and recommended that he be admitted to the hospital for observation. The man refused and was discharged from the emergency room. The surgeon also advised the man to follow up with her for a sigmoid colectomy (removal of the left part of the colon), although he never did.
The radiologist dictated his radiology report, dated the day after the man's visit, to a hospital transcriber. In his report, the radiologist noted that an abscess associated with a diverticulitis would be a first consideration with neoplasm as the etiology being the second consideration. The impression section of the radiologist's report read, “Pelvic abscess ... approximates 4.5 x 3 cm in size. The results of this study were communicated to [the ER physician and surgeon].” The radiology report did not indicate whether copies were delivered to either the ER physician or surgeon. In a sworn statement, the surgeon said that she did not receive the report noting the secondary neoplasm diagnosis and that she would have expected to receive it. The surgeon stated that had she seen the word “neoplasm” in the report, she would have tried to do whatever she could to contact the patient. The man was diagnosed with Stage III colon cancer fourteen months later.
The man sued the hospital. The complaint alleged that, as the result of a communication failure between the surgeon and the contract radiologist, the hospital failed to tell him about his cancer diagnosis. The hospital filed a motion for summary judgment. The man filed his own motion for summary judgment, including an affidavit from his treating oncologist, stating that the fourteen-month delay in treatment had a significant negative impact on his chances of survival. The man also filed an amended summary judgment motion, relying on an affidavit from a radiologist. The radiologist’s affidavit stated, “It is absolutely the standard of care that a radiologist reading a diagnostic film communicate the results of his diagnostic impression to the physicians known to be managing the care of the patient, particularly so when the observed condition is considered urgent or potentially cancerous.”
The District Court granted the hospital summary judgment because the man did not specifically plead vicarious liability relating to the radiologist, the hospital's apparent agent, and failed to establish a genuine issue of material fact through expert testimony. The Court of Appeals affirmed.
The Supreme Court of New Mexico reversed and remanded. The court held that the complaint was sufficient to put the hospital on notice that it was vicariously liable for the actions of its employees and agents; genuine issues of material fact existed as to the hospital's breach of duty, precluding summary judgment; and expert testimony was unnecessary to establish the standard of care.
The complaint was sufficient to put the hospital on notice that it was vicariously liable for the actions of its employees and agents. The court noted that New Mexico’s Rules of Civil Procedure and Statutes do not require a civil complaint to specifically recite reliance on theories of vicarious liability or apparent agency in order to provide fair notice of a cause of action. The complaint not only named the surgeon, emergency room physician, and contract radiologist but it indicated the hospital's vicarious liability for any other employees or agents involved by alleging that the patient's cancer was allowed to grow unchecked as a consequence of the apparent failure by the hospital through an administrative inadequacy. Identifying which of the hospital's employees or agents negligently failed to communicate the radiology report to the surgeon was immaterial. The very nature of a medical emergency dictates that hospitals providing emergency room services be held responsible for the actions of professionals providing such care when the elements of apparent authority are established. The hospital’s affirmative defenses indicated that it recognized the theory underlying the allegations.
Genuine issues of material fact existed as to the impact the delay in cancer diagnosis had on the man's survival, the hospital's duty to provide the man with a diagnosis, and the hospital's breach of duty, precluding summary judgment. The man’s affidavits set forth specific facts showing that there was a genuine issue for trial, as required by the language of Rule 1–056(E) NMRA. The surgeon's statement indicated she would have done whatever she could to “get ahold of” the man had she known of the possible neoplasm, which was certainly material to the man's negligence claim. His treating oncologist's affidavit stated that the delay in diagnosis had a “significant impact” on his chances of survival, “decreasing the potential for cure by 35%.” These were material facts that supported his injury and the hospital's role in that injury. The man’s affidavit from a radiologist stated that how to transmit a cancer diagnosis from a radiologist to the treating physician was “simply a basic communication issue no different than any other communication issue in any other walk of life.” The court went so far as to say that though it need not decide whether the man provided expert testimony because this case hinged on an ordinary negligence standard of care, which does not require expert testimony, even if expert testimony were required to establish a medical standard of care in this case, the court believed the man provided the requisite expert testimony.
Expert testimony was unnecessary to establish the standard of care for the failure to communicate. Communication of the cancer diagnosis by one doctor to another was subject to review under an ordinary standard of care because the communication was not so far removed from common knowledge that a layperson factfinder could not logically consider whether the failure to communicate was negligent. Negligence of a doctor in a procedure which was peculiarly within the knowledge of doctors, and in which a layman would be presumed to be uninformed, would demand expert medical testimony as to the standard of care. However, if negligence can be determined by resort to common knowledge ordinarily possessed by an average person, expert testimony as to standards of care is not essential.
The Supreme Court of New Mexico reversed and remanded the trial court’s grant of summary judgment in favor of the hospital.
See: Zamora v. St. Vincent Hosp., 2014 WL 4638900 (N.M., September 18, 2014) (not designated for publication).
See also Medical Law Perspectives, October 2012 Report: Mistakes in Diagnosing Cancer: Liability Concerns for Misdiagnosis, Failure to Diagnose, and Delayed Diagnosis
See also Medical Law Perspectives, December 2012 Report: When Urgency Leads to Errors: Liability for Emergency Care