Marking the Image Legal Issues, Part 3

Today I want to discuss markers and marking the image. To make your image a legal document in a court of law, radiation must go through your marker and have it show up and be readable on the image. Please know this has not changed at all with the advent of digital radiography. If you level and window and still can’t tell if it’s an L or R it doesn’t count. If you annotate an L or R it doesn’t count. By the way, the marker does not need your initials or the BB’s to make it legal, it just needs the L or R.
There are not that many imaging departments that adhere to a 100% marking policy. 100% means there is NO reason good enough to not have your marker on the image (not even a pregnant woman’s abdomen). At every talk I give where I cover these legal aspects I ask how many people have a 100% marking policy at their facility and it’s about 1 or 2 out of 100. This means for most of us not having the marker show up is not that big of a deal and for those 1-2%, their radiologist’s or hospital has had a close scare or an actual legal incident because of a mismarked image.
Part of the problem with most digital equipment is there is not anything showing right and left sides (like the ID flasher from film cassettes). Some CR cassettes now have a built in BB marker that proves what is left or right depending if the patient is supine or prone. Other than that you have to just believe that the image is coming up on your monitor with the patient in the anatomical position. I know for a fact that with our CR equipment has failed hundreds of times over the past 10+ years and even though it is set up as a PA it appears on the monitor as an AP (or visa versa). I haven’t seen it happen in our DR rooms, but it definitely is easy to make a mistake if you have the choice of picking AP or PA body parts. We have both choices for chest and abdomens.
How easy it would be to pick an AP upright abdomen on the control panel but expose it as a standing PA. Then your marker doesn’t show up but you notice that the bowel pattern or air in the stomach is on the incorrect side, so you flip the image. The same scenario would occur with a chest and the heart is on the wrong side. Those are easy to notice that something is wrong. But how about if you just took a 1-V Pelvis? There wouldn’t necessarily be any organs you can see to help you out.
Let me just give you a scenario that actually happened at a hospital in California. It was about 3am and the tech shot a stat PCXR in the nursery on a newborn with a CR cassette. He had marked it, but when the image came up he could see that he had put the marker on the incorrect side so he flipped the image side to side, annotated a big X over his L and put in an R. He was bummed that he had been so tired that he had mismarked the image. Just after 6am there was another stat PCXR on the baby but a different tech that had just started his shift went to do it. He also marked it, but when the image came up he could see that he had put the marker on the incorrect side so he flipped the image side to side, annotated a big X over his L and put in an R. He was bummed that he had begun his shift with a mismarked image. About 3 hours later there was a third stat x-ray on the baby and a third tech went to shoot it. He also marked it, but for the first time actually believed his marker and was shocked to see that the baby had been born with Sidus Inversus. Unfortunately everyone working on the newborn for the past 6 hours had no idea that that their patient had Sidus Inversus as the first two techs had been convinced that they had suffered from a case of Markerus Inversus and had changed a perfectly taken and marked image (and legal document) and turned it into an incorrectly “marked” non legal document. The happy ending is nothing happened to the infant because of the mistakes made by the 2 techs, but you can easily see how that could have gone bad in a myriad of ways.
I’ll close by saying that with digital equipment we need to be more diligent in marking, making sure that the marker is placed on the correct side and that it will show up on the image.

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21 Comments to “Marking the Image Legal Issues, Part 3”

  1. Christiane says:

    Great post Dennis,

    I assume it is all over the world the same problem , but the Doctors and hospital authorities are not consequent enough of establishing their 100% policy.
    We as manufacturer are very often asked if we don’t provide an automatic identification of the patient side!!!!How? ….Somehow a weird request to be honest ….radiographers should not forget what they have learned and the law says….label your image!!!

    • Hi Christiane,
      I totally agree with you about the 100% policy. And how weird to request an automatic identification? That sounds impossible. So many people are just getting lazy and sloppy these days and they want everything to be done for them. We NEED to take responsibility!!
      All the Best,
      Dennis

    • Hi Christiane,
      I totally agree with you about the 100% policy. And how weird to request an automatic identification? That sounds impossible. So many people are just getting lazy and sloppy these days and they want everything to be done for them. We NEED to take responsibility!!
      All the Best,
      Dennis

  2. Brian says:

    The confusing issue for technologists esp. multimodility techs is that digital markers are ok to use in other modilities ie. U/S, CT, Interventional and Mammo but not in radiology.

    • Hi Brian,
      That is a weird one. In CT it would be kind of a problem putting a marker in a place tht didn’t get in the way or cause artifact. I didn’t know that mammo didn’t need a marker.
      Dennis

      • Roberta Scism says:

        Annologue Mammo Imaging you must manually put your letter marker onto the film for it to be visible, but todays Digital Mammo Imaging does it for you. It is built into the system to have the Side, Position, and Tech initials.

        I can agree to see how technologists that bounce back and forth from modalities that have marking technology to modalities without could allow for human errir. I have to admit I too have taken a patient from the mammo room where my initials are on the imaging across the hall and performed a chest radiography and forgotten to tape my marker on the buckey. No excuse I was wrong. I am personally working on a system as to where I am keeping my markers to reduce the change of forgetting.

  3. Nicole says:

    I agree wholeheartedly that films need to be marked EVERY time, but I think in alot of cases sometimes it IS placed but just doesn’t make the field of view because one of a myriad of reason, incorret collimate/to film size in a bucky film (some old machines have either ceased to collimate to film size or are just inaccurate) I don’t know I for one would rather be diligent about both marking films, and if marker doesn’t show up to be even more diligent about marking it correctly afterward if possible. I mean you risk exposing the patient again just to have a marker shown? It’s a catch 22

    I mark my films almost every single time (unless I’ve misplaced it for a time) and still probably about 10-15% just don’t show on the digital like they used to in conventional, or people (esp. students) may be afraid of placing the marker in an area of interest, placing it a little further out and the marker is missed.

    • Hi Nicole,
      I think my percentage for not having a marker show up are about the same as yours. Since my department does not need to have a marker show up, I (we) would never repeat an image for this reason.
      Dennis

  4. David Clunie says:

    Hi Denis

    On what basis do you assert that “to make your image a legal document in a court of law, radiation must go through your marker”?

    Can you point to specific legislation, regulation or case law that requires this?

    David

    • Hi David,
      I cannot point to a place where this law was ever changed. This has been the only way a “film” was a legal document for the past 50+ years and I have never heard that anything changed just because we are digital. It would make sense that anything added after the fact would not be a legal document as anything can be added in with annotation. Radiation going through your marker is the only thing that is permanent, which has been and still is the guiding thought.
      Dennis

      • David Clunie says:

        Thanks for the reply.

        Can you point to specific legislation, regulation or case law that specifies that it is “this way” (radiation going through the marker) for film either?

        I.e., I was not asking if anything had changed for digital, I was asking for a legal reference for the presumption that it was every true for film either (as opposed to best practice or urban myth or an old wives tale). I.e., if one were in court, what precedent would one point to in order to establish that radiation had to go through a lead marker, as opposed to some other means of marking the side?

        David

        • Hi David,
          I only know that this was what was tacught since I was a student over 35 years ago with film. I have full belief that it was true then and is the same now. But I don’t have any written proof that it’s so.
          Sorry.
          Dennis

  5. Ted says:

    Hello Mr Bowman,
    Do you know a case where the image was mismarked with annotation (versus a lead marker) and the image was presented in court?
    Do you know any court case that involves a mismarked (with permanent lead marker) and the case went to trial?
    Do you know any court case where an annotation marker was used, the case went to court , and the defendant lost or settled the case because it was not a permanent marker?

    Thanks for your assistance

    • Hi Ted,
      I don’t know of any cases where an annotated image was taken to court. I do know there are quite a few 100% marking needed departments in the US though and they have told me that there is not any reason good enough to turn in an image without a real marker on it. I would have to believe these hopitals have been sued, or know of others that have because of marking incidents.
      On of our techs went to a one week training the in the Midwest and that department not only had a 100% marking policy, but if you didn’t get a mrker on an image, you were dinged for that. If you had over 10 of these incidents, you were fired.
      Sorry I can’t give you any actual cases.
      Dennis

  6. Cindy says:

    Dennis, may I have permission to reprint this article, Marking the Image Legal Issues, Part 3, for my radiology students? I’d be happy to give you more info in a private email. Thanks for discussing this important topic!

    • Hi Cindy,
      You have my permission to reprint this article. Sorry I didn’t get bakc to you sooner. Your email got lost in the shuffle. If you get time, p;ease write me about how it goes for you. My email is drs@redshift.com
      Thanks,
      Dennis

  7. Tonya Krone says:

    I would also like permission to reprint this article, Marking the Image Legal Issues, Part 3, for my Radiography faculty and students. Correct permanent marking of films is so very important and students are seeing technologists just annotate much of the time in their clinical rotations,

    I have been a technologist/radiography educator for over 40 years. I don’t know any actual court cases but I can tell you that I have seen several hospitals settle out of court for mistakes made due to improperly marked radiographs. One particular instance I will never forget. One of my radiography students incorrectly marked a portable chest done in the ER. The patient had a partially collapsed lung. When the ER physician (a resident) went to put in a chest tube to reinflate the lung, he insert the chest tube into the wrong side and collapsed the other lung!!!! So two mistakes definitely cause this patient additional pain and suffering; the first due to the incorrectly marked radiograph (which had been “O.K.ed ” also by a technologist so actually 3 mistakes), then second, the ER resident not looking closely enough at the image to recognized it was incorrectly marked or that this patient had sidus inversus!

  8. Jane doe says:

    Hello Brian, I take great pride in my job as a radiologic technologist for 14 years. I worked for a military facility for a long time and was fortunate to work in a very strict environment as far as making sure everything was done correctly from a legal standpoint. I have been employed at the most recent hospital for 1 year. I have been very disappointed with their lack of concern for doing what’s right from a legal and ethical standpoint. I recently did a hand x-ray on a 18 yo boy. I did the correct hand but mismatched it . I caught it at the end of the exam and repeated all 3 images. I came into work the next day with a write up and it was called an incident because this facility said that I should never repeat any images if it’s mismarked. They said is needless radiation to the patient. They said to put a digital marker on it and write in notes what happened. However, the digital marker is not saved in pacs. So legally and ethically I feel like I did the right thing and the facility I work for is setting me up for failure. Please tell me how you feel this should have been handled. I feel very discouraged because I felt as though I did what was in the best interest of the patient.

    • Hi Jean,
      I knew what you meant. Our system sometimes saves the annotation and sometimes it doesn’t. We have the ability to write s “sticky note” which always opens up before anyone can view the images. Here we can write anything we want and everyone will see it. BUT if we burn the images on a CD or film, the note is lost (and here is where we almost never see the annotation either).
      I think you are correct that the hospital is setting itself up for failure. I guess if that’s what they want to have as their policy it would be great to have them put it in writing. This way if anything legal ever comes of something like this, it will be all on them. The good part is it does save radiation to the patient. This case was just a hand so it’s not that big of a deal, but it would be if an C, T or L-spine was mismarked.
      Best Regards,
      Dennis

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