Why Did You Order Unnecessary Test? Protocol Is One Defense

If there is absolutely no credible reason to think that a patient's symptoms are due to a heart attack, says John Burton, MD, chair of the Department of Emergency Medicine at Carilion Clinic in Roanoke, VA, you shouldn't be ordering tests such as cardiac enzymes. If you do, and the patient later sues because he or she had a cardiac condition that wasn't identified in the ED, he says, the plaintiff's attorney will be able to ask the question, "If you didn't believe it was a heart attack, then why did you order that test to begin with? You must have been considering it."

"They will try to shoehorn the medical decision-making from the back end, by the tests that you ordered," says Burton. "That is something we see a lot in these cases."

An ideal answer to this question, says Burton, would be: "As part of the routine workup at this ED for patients who arrive with chest pain, we do a standardized evaluation using an agreed-upon protocol."

"That is a very strong argument for the defense," says Burton. "The EP can then say, 'I was acting within the context of this protocol, and this patient fell within that context.'" The argument is that the protocol is what drove the ordering of the test, explains Burton, not the fact that the EP had any particular suspicion of myocardial infarction or unstable angina.

"You can't rest your entire defense on a protocol," says Burton, but it's increasingly the case that tests may be ordered on patients because of a protocol, which an individual EP assessing that patient wouldn't necessarily have ordered.

Details Can Backfire

Burton sometimes sees a very detailed explanation in a patient's chart about why the EP isn't considering a certain diagnosis. "The EP may say, 'I don't think this is meningitis because the patient doesn't have A, B, or C.' Then the patient is discharged and dies of meningitis," he says.

A plaintiff's attorney or expert later reviewing the medical record gets the impression that the EP is trying to talk him or herself out of a diagnosis being considered, says Burton. "When the EP gets very detailed about why they don't think the patient has something, it can be injurious," he says. "When the patient does have that illness, you can attack the EP on their medical decision-making and rationale."

If the EP says, "The chest pain was reproducible and, therefore, I didn't think it was a heart attack," for example, a plaintiff's attorney can go find something in the literature to refute this, says Burton.

For this reason, Burton advises using the "less is more" approach when charting medical decision-making. If an EP charts, for instance, that, "based on the Pulmonary Embolism Rule-out Criteria (PERC) rule, this patient did not appear to have a PE," the plaintiff can argue the relevance of the PERC rule, says Burton. It then becomes a question of whether the PERC rule is strong enough for a successful legal defense, which depends on the diagnosis.

"In the case of PE, probably so. In the case of a chest pain patient, probably not," says Burton.

The bottom line, says Burton, is that, "if you're going to quote it, you're going to have to live with it, even if the patient has what you're saying they don't have. If you get very specific, you are locked into a certain argument. The plaintiff's attorney can always make a counterargument."

Burton advises using more general terms, such as, "Based on today's evaluation in the ED, the patient did not appear to have a presentation consistent with pulmonary embolism."

"If you are faced with explaining that when a suit is brought against you two years later because the patient died of pulmonary embolism, you can provide the details," he says. "Of course, at that time, you will know what the diagnosis was."