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Can a Radiology Tech be Held Liable for Medical Malpractice?

July 1, 2021

In March 2018, an 88-year-old patient was admitted to a hospital for “increased episodes of confusion and weakness.” Her family told the triage nurse and attending ER physician that she was a “fall risk” and that she “needed her cane for everything, . . . anytime that she was up she needed the cane for assistance.” The ER physician ordered a CT scan of the patient’s head and a chest x-ray. A staff radiology technician (“the tech” or “the radiology tech”) at the hospital performed both tests. When the radiology tech came to retrieve the patient from her room, she asked her family if she could stand on her own. The tech testified that the family said the patient could stand, but that her legs were not strong enough to walk distances, and she couldn’t walk very far without her cane. The radiology technician testified that she assured the family that the patient wouldn’t have to take any steps and that she would have devices to hold onto. The tech saw the patient had her cane with her in the room, but didn’t take the cane with her to the imaging department.

In the x-ray room, the tech positioned the patient so she was standing facing the control room. The tech had the patient raise her hands above her head and grasp onto a bar. At the patient’s right hip was the gurney and to her left was the x-ray machine. There was also a metal bar that came up from the ground for the patient to hold if needed. There was nothing behind patient. When asked, the patient told the tech that she wasn’t dizzy and that she could stand.

The tech told the patient to take a deep breath. A radiology student was poised in the control room to take the x-ray. The tech made it just to the edge of the control room’s half wall, the student took the x-ray, and the patient suddenly “became very rigid and just fell straight back.” Blood splattered from the back of the patient’s head. The patient was alert on the ground with her eyes open, and she told the tech that she had fallen but felt okay.

The ER physician ordered an additional CT scan of the patient’s head which revealed a “new acute subarachnoid hemorrhage” that had “developed since the prior CT”. The patient was transferred to another hospital where she was diagnosed with traumatic subarachnoid hemorrhage, traumatic subdural hematoma, a concussion with loss of consciousness, scalp lacerations, and seizure. She was discharged to her home where she died two weeks later.

The Medical Malpractice Lawsuit

The personal representative of the patient’s estate filed a two-count negligence complaint: one count against the hospital, and one count against the tech. Count I alleged the hospital was liable for the negligent acts of its agents and employees. Count II alleged the tech was negligent for failing to properly monitor, observe, and supervise the patient to prevent her from falling and suffering injuries leading to her death.

The hospital moved to dismiss the case, contending that the facts of the claim satisfied the two part-test for medical malpractice claims because the claim (i) happened within the course of a professional relationship; and (ii) raised questions of medical judgment beyond the realm of common knowledge. The hospital said that because the claim sounded in medical malpractice but didn’t comply with the filing requirements to file a notice of intent to sue and to file an affidavit of merit with the complaint, the medical malpractice claim should be dismissed.

The plaintiff argued that her claims sounded in ordinary negligence because the case didn’t involve medical judgment, as the tech based her decision that the patient was able to stand after speaking with her family and observing the patient’s movements… not on medical expertise. As a result, the plaintiff felt that the tech’s actions could be evaluated by a jury without medical expert testimony.

The plaintiff subsequently filed a supplemental brief citing LaFave v Alliance Healthcare Servs— a new case in opposition to the hospital’s motion for summary disposition. The plaintiff argued that this new Court of Appeals decision held that only healthcare professionals licensed and registered under Article 15 of the Michigan Public Health Code were capable of being sued for medical malpractice and that MRI technicians weren’t included. The plaintiff asserted that, similar to the MRI technician in LaFave, the tech here was an MRI technician with the same certification, and therefore not in the category of professionals able to be sued in a medical malpractice case.

The Trial Court’s Opinion

At trial, the judge in Eaton Circuit Court found that the plaintiff’s claim sounded in ordinary negligence and denied the hospital’s motion to end the case. Also, the trial court found that the hospital was capable of malpractice, but that the tech wasn’t. Under Michigan Statute § 600.5838a(1), the court acknowledged that the tech was an employee of the hospital but found that the tech wasn’t “engaging or otherwise assisting in medical care and treatment.”

Moreover, the trial court found that the tech didn’t have any special medical training, held the same certification that the technician did in LaFave and that the LaFave Court determined that an MRI technician wasn’t a medical professional capable of malpractice. The trial court also found that plaintiff’s claim against the tech didn’t raise questions of medical judgment, reasoning that any layperson could talk with the family and personally observe the patient to determine whether it was safe for the patient to stand while the x-ray was taken. The trial court concluded that summary disposition was inappropriate because the hospital wasn’t able to prove that the claims occurred within the course of a professional relationship and raised questions of medical judgment as to both the hospital and the radiology technician.

On appeal, the defendants argued that the trial court misapplied the holding in LaFave and erred in finding that plaintiff’s claims sounded in ordinary negligence and not medical malpractice.

Court of Appeals Opinion

In a per curiam opinion, Judges David H. Sawyer, Cynthia Diane Stephens, Michelle M. Rick examined whether the trial court erred by misapplying the holding in LaFave to find that a radiology technologist could never be sued for malpractice. The Court of Appeals wrote that initially in any purported medical malpractice case, a court must determine if the claim is being brought against an individual or entity that’s capable of malpractice. The Court stated that under the common law, only physicians and surgeons were potentially liable for medical malpractice. However, the LaFave case said that with Michigan Statute § 600.5838a, the state legislature expanded the scope of who may be subject to a medical malpractice action to include other professionals and entities. As a result, § 600.5838a(1) states:

[A]a claim based on the medical malpractice of a person or entity who is or who holds himself or herself out to be a licensed health care professional, licensed health facility or agency, or an employee or agent of a licensed health facility or agency who is engaging in or otherwise assisting in medical care and treatment, whether or not the licensed health care professional, licensed health facility or agency, or their employee or agent is engaged in the practice of the health profession in a sole proprietorship, partnership, professional corporation, or other business entity, accrues at the time of the act or omission that is the basis for the claim of medical malpractice, regardless of the time the plaintiff discovers or otherwise has knowledge of the claim.

Thus, the hospital can be directly liable for medical malpractice in that capacity, the Court said. However, the tech wasn’t a “licensed health care professional” as she wasn’t “an individual licensed or registered under article 15 of the public health code” and “engaged in the practice of his or her health profession in a sole proprietorship, partnership, professional corporation, or other business entity.” There’s no licensure requirement for radiology technologists in Michigan, and radiology technologists are not among the professions listed in article 15 of the public health code, the Court of Appeals said.

But is a MRI Tech “Engaging in or Otherwise Assisting in Medical Care and Treatment”?

LaFave held that an MRI technician wasn’t a licensed medical professional under Michigan Statute § 600.5838a and Article 15 of the Public Health Code; however, the trial court didn’t reach the issue of whether the MRI technician was engaging in or otherwise assisting in medical care and treatment. The Court of Appeals explained that whether (1) a person is a licensed medical professional or (2) an employee of a health facility engaged in or assisting in medical care and treatment are two different avenues to argue that the individual would be capable of medical malpractice under Michigan Statute § 600.5838a.

In the first instance, the Court of Appeals explained that the court doesn’t analyze whether the individual engaged in or assisted in medical care and treatment. But in the second, the person’s employer is the hospital or licensed medical facility, and the court does examine if the individual engaged in or assisted in medical care in treatment. Thus, the Court of Appeals said that just because a tech isn’t a licensed or registered medical professional doesn’t mean she wasn’t engaging or otherwise assisting in medical care or treatment.

The Court of Appeals found that the tech could only be held capable of medical malpractice if she qualified as an employee of a licensed health facility or agency who was “engaging in or otherwise assisting in medical care and treatment.” The Court said it had previously acknowledged that x-rays constitute medical care and treatment. Plus, a tech’s transporting and movement of a patient for the purposes of performing medical care and treatment qualifies as “engaging in or otherwise assisting in medical care and treatment.” In addition, the Michigan Supreme Court has held that the claim sounded in malpractice because the act that formed the basis of the suit constituted the rendering of medical care and treatment.

As a result, the Court of Appeals found that both the hospital and the radiology technician are capable of medical malpractice because the hospital is a licensed health facility, and the radiology tech is an employee of a licensed health facility engaged in or assisting with medical care and treatment. The trial court’s decision was affirmed. Young v. Eaton Rapids Med. Ctr. (In re Estate of Kilburn), 2021 Mich. App. LEXIS 3162 *; 2021 WL 2026174 (Mich. App. May 20, 2021).

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