Diagnostic Test Not Ordered? Protect Yourself Legally By Explaining Why

Document your rationale

Editor's Note: This is the first of a two-part series on liability risks involving ordering of diagnostic tests in the ED. This month, we'll cover the legal ramifications of deciding not to order a test, the legal risks of unexpectedly abnormal results, how ED protocols can help an EP's defense, and a new quality measure that increases liability risks for EPs. Next month, we'll report on possible lawsuits for future cancers, strategies if patients threaten to sue because a test wasn't ordered, and liability risks specific to pediatric patients.

More than half of emergency physicians (EPs) say the main reason they conduct the number of diagnostic tests they do is fear of lawsuits, according to a recent survey of 1,768 EPs conducted by the American College of Emergency Physicians in March 2011.

However, EPs have a "major false impression that you need to order tests because this will somehow be protective in a lawsuit," according to Bruce Janiak, MD, professor of emergency medicine at Medical College of Georgia in Augusta. "I don't think that is true at all."

In fact, ordering appropriate tests based on evidence-based medicine and good clinical judgment is the best possible approach, says Janiak. "The evidence that supports extra testing is simply not there," he adds. "And there is evidence that refutes extra testing."

While ordering tests won't necessarily prevent lawsuits, it will make them easier to defend, according to Robert I. Broida, MD, FACEP, chief operating officer at Physicians Specialty Ltd. in Canton, OH. It is extremely common for a plaintiff's attorney to allege that a particular test should have been performed that would have instantly made the diagnosis and saved the patient's life, he says.

"This has tremendous jury appeal, especially when it is a common test that the jurors might have experienced previously," says Broida. "Doing the test and having it be normal prevents this type of unfounded assertion. "

Since the assertion is made after the fact, when there has been an untoward outcome, says Broida, it's easy to criticize the EP for failure to order a test. "With the significant personal and professional impact of a lawsuit on the physician defendant, it is understandable why defensive medicine is so common," he says.

A lawsuit is one of the most distressing things an EP may encounter during an entire career, says Ben Heavrin, MD, assistant professor of emergency medicine at Vanderbilt University Medical Center in Nashville, TN. "It is tough to quantify the negative impact of this fear, but it is real and significant."

While testing should be ordered only when clinically indicated and not due to fears of litigation, says Heavrin, "unfortunately, the medical/legal environment makes this quite difficult to achieve."

Since each patient presents with a unique set of circumstances, says Heavrin, the decision to proceed with diagnostic testing depends on the EP's history and examination. "In emergency medicine, the stakes are high," he says. "Usually, the patient-provider interaction is an isolated one. A provider in the ED feels an obligation to rule out both emergent illness and occult illness."

For this reason, says Heavrin, there will always be legitimate legal risks to not performing a test. While EPs have several valid clinical decision support tools to dictate when radiographs should or should not be ordered, such as the Ottawa Ankle Rules and the National Emergency X-Radiography Utilization Study criteria, he says, these tools never get the odds of missed injury to zero.

"They come very close to zero, but a miss rate of almost zero is not the same as zero," says Heavrin. "In a medical/legal environment where standards of care are proven after the fact in court based on a reputed 'expert,' these decision support tools may not provide a perfect defense."

If the EP chooses not to order a test that is commonly ordered for a particular clinical condition, Broida advises discussing this with the patient and family. "Document both the rationale and the discussion in the medical decision-making section of the ED record," he says.

Heavrin says the ED chart should include a discussion of why certain tests were ordered or not ordered, and how such tests, if ordered, affected the treatments rendered and the ultimate disposition given.

"Such documentation of medical decision-making is the key to providing a defense, should litigation arise," says Heavrin.


For more information, contact:

• Robert I. Broida, MD, FACEP, Chief Operating Officer, Physicians Specialty Ltd., Canton, OH. Phone: (330) 493-4443. E-mail: RBroida@emp.com.

• Ben Heavrin, MD, Assistant Professor of Emergency Medicine, Vanderbilt University Medical Center, Nashville, TN. E-mail: benjamin.heavrin@Vanderbilt.edu.

• Bruce Janiak, MD, Professor of Emergency Medicine, Medical College of Georgia, Augusta. Phone: (706) 721-7144. E-mail: bjaniak@georgiahealth.edu.