Will Future Suits Allege Cancer From Needless ED CT Scans?

Editor's Note: This is the second of a two-part series on liability risks involving ordering of diagnostic tests in the ED. This month, we 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. Last month, we covered legal ramifications of deciding not to order a test, 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.

Will we someday see television ads from personal injury lawyers asking viewers if they've received needless CT scans in EDs and later been diagnosed with cancer? Researchers have estimated that 29,000 future cancers could be related to CT scans performed in the United States in 2007 alone.1

If low-yield, high-radiation studies are being considered for a head-injured patient, the emergency physician (EP) should thoroughly discuss the various options with the family, says Robert I. Broida, MD, FACEP, chief operating officer at Physicians Specialty Ltd. in Canton, OH.

"It is quite reasonable to evaluate a patient carefully, document thoroughly, provide great instructions, and avoid the unnecessary radiation exposure," he says, as long as there are reliable family members to monitor the patient after discharge. "If all of these items are present in the medical record, the case should be quite defensible, based on current medical literature."

On the other hand, says Broida, it will be quite difficult for EPs to base their defense on reluctance to order a diagnostic test due to a risk of cancer 30 years from now, if a patient has an undiagnosed epidural hematoma. When the EP doesn't order a test, it is essential that the history and physical and medical decision-making are exemplary, he says.

"Juries have a hard enough time understanding that the science says the CT is not indicated," says Broida. "They will not be forgiving if the physical exam is incomplete and there is a devastating outcome."

The older the patient is, the less concern there is about risks, adds Bruce Janiak, MD, professor of emergency medicine at Georgia Health Sciences University in Augusta, whereas there is a great deal of concern about the cumulative effect of radiation on younger patients. "Right now, it's theoretical, but a generation from now we could be seeing a great increase in cancers," he says.

Add Layer of Protection

When ordering a CT scan, Sandra Schneider, MD, professor of emergency medicine at University of Rochester (NY) Medical Center, recommends that EPs get a consent form signed or document the statement, "I have discussed with the patient that there is a small risk of cancer from getting a CT scan," or both. "Just getting a consent form won't totally protect you, but it does add a layer of protection," says Schneider. "I personally plan on doing this."

If the patient doesn't want the CT, Schneider advises documenting: "I have discussed with the patient that there is a 1 in 100 risk of subarachnoid hemorrhage. They have chosen to take that risk and not have a CT scan because of the risk of cancer."

The EP "is really between a rock and a hard place," says Schneider, when it comes to legal risks involving CT scans. "There are a number of disease entities that are very difficult to diagnose, and CT scan is very good at finding these things," she says, including subarachnoid hemorrhage. At the same time, she notes that the scans carry a risk of cancer.

"The risk is probably a 20-year risk, so we have yet to see these cases start, but I have a feeling that it may be coming," says Schneider. "The problem is going to be the cause and effect and how this plays in a jury."

Risk of Missed Diagnosis

John Burton, MD, chair of the Department of Emergency Medicine at Carilion Clinic in Roanoke, VA, reviewed three large lawsuits against EPs in a single year, each claiming that if the EP had ordered a CT scan, he or she would have found a diagnosis that ultimately killed the patient.

All were seven-figure cases, and all of the claims alleged the EP failed to get the CT scan, but the cases involved head, neck, and chest CTs, he says.

"There is a certain mentality among EPs of 'I've never been sued for ordering a CT scan,'" says Burton. "When you look at those cases, you have to say that it does look pretty improbable, particularly when the diagnoses you might pick up are life-altering."

While there is growing concern about needless ordering of CT scans because of cancer risk, this is currently an "academic argument," notes Burton. "When you are trying to decide whether to order a CT scan or not, and you really believe there may be the presence of the illness, the risk of missing the diagnosis far, far outweighs any radiation risk," he says.

Reference

1. de Gonzalez AB, Mahesh M, Kim KP, et al. Projected cancer risks from computed tomographic scans performed in the United States in 2007. Arch Intern Med. 2009; 169(22):2071-2077.