Health law is largely a matter of state law, however, many aspects are common to all jurisdictions. Licensing by state medical boards, physician malpractice liability, hospital liability, and even nurse liability. One area has seemed to slip through the cracks however: technician liability. A recent article documenting the “malpractice” of radiology technicians underscored the dangers of allowing healthcare personnel to get away without regulation or liability. The New York Times article highlighted the dangerous practice of over-radiating premature babies. Radiation exposure, an unavoidable feature of X-rays and CT scans, is not only harmful for babies but also increases cancer risks in adults and can be very damaging for unborn and developing infants. As a result, the practice of full body X-ray scans is largely discredited, and furthermore was the subject of near panic for the Director of the Radiology Department.
Who is Liable?
There are many theories of liability under which some combination of the medical professionals involved can be held liable. Technicians may still be liable under a general negligence theory. Hospitals can be found liable under agency or vicarious liability for the actions of its employees (or apparent employees) and under theories of corporate negligence, which recognize duties such as oversight and adoption of “adequate rules and policies.” See Thompson v. Nason Hospital, 591 A.2d 703. Furthermore, physicians and nurses have reporting and oversight responsibilities which they may breach especially often where they are involved in reading X-ray scans.
One party that is probably less likely to be liable is the manufacturer. In order to hold the manufacturer liable in such a case, plaintiffs would have to plead a design defect. The majority of jurisdictions use a risk-utility analysis—essentially a two-prong balancing test requiring the plaintiff show that a reasonable alternative design would have reduced the plaintiff’s harm and that the defendant’s failure to adopt the reasonable alternative design has rendered the product unsafe. (See Restatement (Third) of Torts: Products Liability § 2(b)) Some courts use a consumer expectation test, where the point is to determine whether the product meets consumers expectations, however, even this standard might prove difficult in an area where consumers probably do not have very evolved or technical expectations. Furthermore, the Restatement Third advocates an even higher standard for medical devices. Section 6(c) articulates the standard, “A prescription drug or medical device is not reasonably safe due to defective design if the foreseeable risks of harm posed by the drug or medical device are sufficiently great in relation to its therapeutic benefits that reasonable healthcare providers, knowing of such foreseeable risks and benefits, would not prescribe the drug or medical device for any class of patients.” Id at §6(c). Such a standard requires a plaintiff so show that the product is essentially of no benefit to any class of patients. Thus, it would prove difficult to hold manufacturers liable for medical devices that have such wide spread acceptance, use, and benefit.
As the article points out, legislative and institutional solutions are warranted. State licensing requirements, regulation, and certification of technicians would undoubtedly reduce instances of lack of knowledge and dangerous use of the complicated technology. Hospital policies that require continuing education, certification, and oversight would likewise contribute to more professional and knowledgeable employees. Many of these suggestions are part of the Constancy, Accuracy, Responsibility and Excellence in Medical Imaging and Radiation Therapy (CARE) bill, a bill that would institute standards, certification, and education requirements for technicians and other imaging and radiation specialists. However, this bill has become a casualty to the political process. Unfortunately, this gap in both liability and legislation leaves us uncertain as to whose responsibility it is to fill it.