Construction Mistake Leads to Radiation Exposure, Lawsuit Claims

Employees at a medical office in St. George, Utah, say they were exposed to unsafe levels of radiation for months after a CT scanning room in a neighboring clinic was constructed without the lead shielding required to block radiation, a recent lawsuit claims. More than two dozen staff members at the St. George Endocrine and Diabetes Clinic reported symptoms such as headaches, fatigue, dizziness, and nausea, which the clinic’s director eventually suspected could be linked to the Intermountain Health CT lab next door, KUTV reported on Sept. 24.

Although the health care company said that its room — which shares a wall with the diabetes clinic — had passed a scatter survey, a subsequent test revealed radiation levels far exceeding the state maximum, and it was eventually discovered that the drywall had no lead shielding at all.

“The radiation exposure is a really tragic situation,” said Alec Ossorio, Manager, Commercial Insurance, Burns & Wilcox, Oxford, Mississippi. “It is a strong reminder of how critical it is for construction, health care, and engineering firms to have proper controls and oversight in place. It showcases how a single breakdown in the process — something as simple as the lack of lead-lined drywall — can cause catastrophic damage.”

The lawsuit names Medical Physics Consultants, general contractor CRC Construction, and subcontractor B & S Drywall, alleging negligence and fraudulent concealment. When companies are sued over negligence or mistakes in their professional services, associated financial losses can be covered by Errors & Omissions (E&O) Insurance, also known as Professional Liability Insurance.

“When you have individuals getting sick and their livelihoods potentially affected, it really becomes very serious,” said Kyle Moore, Broker, Professional Liability, Burns & Wilcox, Indianapolis, Indiana. “That can significantly drive up the cost of a claim — not just potential payouts or settlements, but even just the defense costs. Some of those claims could come in years down the road.”

‘A complicated situation’

According to KUTV, the lawsuit claims that one of the clinic staff members has been diagnosed with leukemia, and the other workers face an increased cancer risk due to the radiation exposure. A total of 27 individuals were reportedly exposed to excessive radiation levels at the clinic, including three children, Radiology Business reported on Sept. 25.

An attorney representing the plaintiffs said it is not yet known why the lead lining was not installed or how the original scatter survey came back clear, KUTV reported. In this type of lawsuit, “all parties will usually be brought into the suit,” Ossorio explained. “It is a complicated situation,” he said.

Regardless of who is ultimately found liable, each of the companies could face immediate legal expenses, which can be covered by E&O Insurance. “Everybody involved in a project — from design to build to completion — needs E&O Insurance,” Moore emphasized. “If you are providing a service for a fee, that creates a professional exposure. The policy can really help in the event something does go terribly wrong, as it did in this case.”

Everybody involved in a project — from design to build to completion — needs E&O Insurance. If you are providing a service for a fee, that creates a professional exposure.

In addition to E&O Insurance, a company’s Commercial General Liability (CGL) Insurance could also respond, potentially providing coverage for third-party bodily injuries resulting from a firm’s completed operations. CGL Insurance policies often exclude pollution, making Environmental Pollution Liability (EPL) Insurance another key safeguard, as radiation “could be considered contamination,” Ossorio said.

From hidden error to major exposure

While a lawsuit over missing lead shielding is unusual, it is not unprecedented. In 2014, five hospital workers from Methodist Medical Center in Oak Ridge, Tennessee, filed lawsuits alleging more than seven years of excessive radiation exposure from a CT scanner room that lacked proper shielding in adjacent walls. The lawsuits named the health system and the construction and design companies involved in building that portion of the hospital, WBIR reported at the time.

Both cases highlight how construction oversights may not surface until long after a project is completed, when impacts could be more severe.

“You are looking at potential long-term litigation, damage to reputation from the health care side as well as the contractor and subcontractors, cleanup and remediation costs, regulatory fines, even class-action lawsuits,” Ossorio said. “It could be devastating.”

When professional errors are discovered while a project is still under construction, corrections can be covered by the rectification component of an E&O Insurance policy, Moore pointed out. “If an engineer has a design and realizes the design is flawed and they want to fix it before a claim is filed, the policy can pay for the expense of redoing the design,” he said.

It is one of many considerations construction companies should discuss with their insurance broker. Excess Liability Insurance is also frequently recommended for clients in the construction and health care industries, Ossorio added. “A $1 million limit is oftentimes not going to cut it in a catastrophic situation like this,” he said. “Excess Liability Insurance is useful for everybody, but there are certain sectors where it is even more important.”

Proactive steps to mitigate risk

At a time when lawsuits are becoming more common and the cost of being sued is rising, risk management is more important than ever, Ossorio said. “Judgments coming from juries are increasing,” he said. “We are in a very litigious world and I think individuals are more willing to file a lawsuit now than they have been in the past.”

Contract review is essential, Moore said, and it may be offered by insurance carriers as an added benefit for policyholders. “It ultimately comes down to protecting your business,” he said. “Review your contracts and make sure you are not indemnifying someone that you should not be indemnifying. Some of the contracts we see are so broadly worded that they are really taking on exposure that is not theirs.”

Review your contracts and make sure you are not indemnifying someone that you should not be indemnifying. Some of the contracts we see are so broadly worded that they are really taking on exposure that is not theirs.

Health care entities often carry “very high limits,” Ossorio said, “but if they are carrying those high limits, it is essential that they are requiring everybody down the line from them to carry equal limits.”

“If there is a $25 million judgment and the hospital carries $25 million in limits but the drywall company only carries $10 million, they are going to go after the hospital to get the additional limits,” he said. “Contractors also need to make sure they are properly vetting their subcontractors, verifying insurance coverage, and properly documenting everything. Use strong contracts rather than cookie-cutter subcontractor agreements and have them reviewed by an attorney. That can make a big difference in a claim.”