What If Patient Threatens to Sue If Test Isn't Ordered?

After the actress Natasha Richardson died in 2009 from an epidural hematoma that media reports emphasized could have been diagnosed with a head CT scan, EPs were flooded with requests for the test, even for patients with very minor head injuries, recalls John Burton, MD, chair of the Department of Emergency Medicine at Carilion Clinic in Roanoke, VA.

"The way EPs reacted to that particular event was to order a lot of CT scans," says Burton. "They were generally unwilling to get into arguments with patients, particularly when the EPs knew that they could miss one subarachnoid hemorrhage patient amongst all those people they were refusing."

Should the EP agree to order a diagnostic test simply because a patient asks for it, to protect against the possibility of a lawsuit? "The answer to this question is probably different than it was 10 years ago," says Ben Heavrin, MD, assistant professor of emergency medicine at Vanderbilt University Medical Center in Nashville, TN. EPs are increasingly evaluated and, at times, reimbursed, based on patient satisfaction scores, he notes.

"Should an emergency physician counsel a patient that a test is not necessary, and should the patient still demand the test, there is an incentive to order the unnecessary test to keep the patient happy," says Heavrin. "Additionally, happy patients are less likely to sue should a bad outcome arise."

Thus, says Heavrin, patient satisfaction and the threat of litigation both drive the use of testing when it is not clinically indicated. If an ED patient demands a diagnostic test that isn't clinically indicated, Heavrin says to document that this was discussed with the patient and that the risk from unnecessary radiation outweighs the benefits of any information expected to be obtained from the test. "Not only does that provide a good defense, it is, more importantly, the right thing to do clinically to not order the test," he says.

A child with a benign abdominal examination and otherwise benign work-up for abdominal pain, for example, suffers a real risk of harm from an unnecessary CT scan of the abdomen, says Heavrin.

Identify risks on both sides of the argument so you are prepared to share this information with patients, recommends Sandra Schneider, MD, professor of emergency medicine at University of Rochester (NY) Medical Center. "It takes a little digging to get that information. But once you have it, you can share it with your entire group. Then, everybody is saying the same thing."

Schneider says she sees both patients who have had far too many CT scans and come in requesting another one, and patients who really need a CT scan but refuse it due to concerns about cancer. She recommends looking up previous medical records or asking patients if they've had additional scans at other facilities.

When Schneider learned that one of her patients had received 15 CT scans for chronic abdominal pain during the past several years, she convinced him to try pain medication before ordering another scan. After four hours, he reported that the pain was still present so he received the scan.

"It came back as normal, but almost nothing would dissuade him from getting the test," Schneider says. "That happens very frequently. Patients have heard stories about people having multiple tests, and it's the last one that shows where the problem is."

Good Clinical Judgment

If an ED patient demands a diagnostic test that isn't clinically indicated, Robert I. Broida, MD, FACEP, chief operating officer at Physicians Specialty Ltd. in Canton, OH, says that the "academic school of thought" maintains that the EP should only order what is clinically indicated based on peer-reviewed, evidence-based studies.

"In reality, many patients will simply 'shop elsewhere' and find another physician who will acquiesce," says Broida. "This ends up costing the health care system two visits instead of one. Also, if the patient is right and the test turns out to be positive, there could be problems."

Simply ordering a test because a patient demands it is "the easy way out, but it is horribly wrong," says Bruce Janiak, MD, professor of emergency medicine at Georgia Health Sciences University in Augusta. When patients ask for needless tests, Janiak typically tells them: "I can't believe you would want me to do something that I think is wrong. You may need the test at some time in the future, but it is not indicated now.'

"That usually ends the conversation," he says. "Rather than order needless tests, take the time to explain to people why they aren't necessary. And if the patient says he'll sue you if you don't order the test, give them the Yellow Pages and tell them to go find an attorney."

In this scenario, Janiak says to document that you informed the patient that there is no indication for the test, and that the patient was angry and threatened to sue. However, Janiak says that in his 40 years of practice, he can count on one hand the number of patients who couldn't be satisfied. "What we don't know is what percentage of patients nod their heads, but immediately go across town to the next hospital to ask for the test," he says.

Legal Risks For "Needless" Diagnostic Tests in Children

If a moderately dehydrated child with gastroenteritis requires intravenous fluids, but is otherwise well-appearing and afebrile, the EP could "make a reasonable argument" for checking electrolytes, according to Emory Petrack, MD, FAAP, FACEP, a medical-legal consultant and principle of Shaker Heights, OH-based Petrack Consulting.

However, says Petrack, "One is hard pressed to argue why a complete blood count (CBC) or other testing would be needed in an otherwise healthy patient. If there is a significant abnormality, such as an elevated white count," he explains, "this could spur further unnecessary testing."

Petrack notes that there is increasing evidence that pediatric patients with mild head injuries who have not lost consciousness, do not have significant vomiting, and have a normal neurologic exam probably do not need head CTs.

"It's very important to keep up with the current literature, especially paying attention to large multi-center studies or meta-analyses, to help determine current standards of care," says Petrack.

A recent study looked at 42,412 children with minor blunt head trauma, and found that the rate of CTs was lower if patients were observed.1 Clinical observation before making a decision regarding CT scan use seems to be a safe and potentially effective strategy to manage a subset of children with minor blunt head trauma, according to the researchers.

In terms of a single head CT scan being ordered by an EP, this should have no impact on a future lawsuit involving a cancer diagnosis, says Nathan Kuppermann, MD, MPH, one of the study's authors and a professor of emergency medicine and pediatrics at University of California — Davis Health System.

"There are many strategies for caring for children with minor head trauma. Some include CT scans, and others don't," says Kuppermann. "To prove that one should or should have not used a CT scan is almost impossible. There is very much clinical judgment involved."

Many Unnecessary CTs

Many pediatric patients are still receiving unnecessary head CTs, however, because EPs want to protect themselves against lawsuits, adds Petrack. "If a CT is clearly not indicated, and there is an adverse outcome, such as cancer, down the road, at some point, I suspect we will start seeing medical-legal action against providers," he says.

While Petrack says it would be very difficult for a plaintiff's attorney to prove the cancer is from a specific CT scan, the risk is believed to be at least partially dose-related. A head CT is equivalent in dosing to about 100 chest X-rays, he notes, while an abdominal CT is equivalent to approximately 400 chest X-rays. "It's a lot of ionizing radiation, and we've become particularly concerned about this exposure in growing children," he says.

While there are frequently times when it's clearly appropriate to order an abdominal CT, many situations are borderline, at best, says Petrack, and other less invasive modalities, such as ultrasound or observation, for low-risk situations, may be more appropriate.

"However, at this point, I suspect clinicians believe the risk of not obtaining a CT, with a potential near-term adverse outcome of a perforated appendicitis, outweighs the more nebulous risk of medical-legal action years down the road," says Petrack.

In a low- to medium-risk situation, Petrack has a frank discussion with a parent about the risks and benefits of CT and ionizing radiation, using as a "benchmark" what he would do if it were his child. "I believe this generally leads to good decision making and satisfied parents," says Petrack.

Too often, however, EPs aren't even considering the risk of radiation when deciding what tests to order, says Petrack. "I see physicians sometimes ordering a complete cervical spine CT in a child who is unlikely to have a cervical spine injury, when plain films would be adequate," he says.

Good Documentation

"Anytime you order a test, you have to know why you are ordering it and what result you are hoping to see," says Mark Meredith, MD, assistant professor of emergency medicine and pediatrics at Vanderbilt University School of Medicine in Nashville. "If you are ordering a test just to order it, it's obviously not very good practice."

If you order a CT scan for a head-injured child because you are legitimately concerned, says Meredith, "then I think that legally you are covered, assuming you are following the guidelines that are out there. Obviously, we don't want to do a CT scan on every child who hit their head."

As for lawsuits involving future cancers in children, Meredith says that good documentation on why the EP ordered the scan and what concerns the EP had would become particularly important. Timing of the injury, presence of a hematoma, loss of consciousness, and persistent vomiting are all very important things to document, whether you order the CT scan or not, he advises.

"I tell parents I am treating their child just as I would want my own child treated," says Meredith. If Meredith wants to encourage them to get the CT scan, he explains the risks of not finding out if there is a bleed present, while if he wants to dissuade parents from a CT scan he doesn't believe is warranted, he explains the risks of radiation and recommends observing the child instead.

If an EP sees very few pediatric patients a day, however, he or she will be "a lot less comfortable sending them home without a diagnostic test," says Meredith. "There are definitely more lab tests ordered than there need to be on most pediatric patients who are not treated at a pediatric facility."

Most children get a CBC and a basic metabolic panel, for example, says Meredith, when it's not clinically indicated. For instance, Meredith gives the example of a child who had a seizure at home and is getting back to his or her normal baseline, but has a CBC ordered at a community ED showing an elevated white blood cell count that is a result of the seizure.

"They can't send the patient home because of the concern about a possible infection. Now the physician doesn't know what to do, except transfer the patient to a higher level of care," Meredith says.

A child may come in with abdominal pain without a convincing story or examination indicating appendicitis because it's the first day of his or her symptoms, so the EP chooses not to do a CT scan. The next day, the patient comes back with appendicitis, and the family is angry that you didn't catch it the previous day. To avoid a lawsuit in a scenario like this, says Meredith, "that's where good discussions with the family about why follow up is so important come into play."


1. Nigrovic LE, Schunk JE, Foerster, et al. The effect of observation on cranial computed tomography utilization for children after blunt head trauma. Pediatrics 2011: 127(6);1067-1073.


For more information, contact:

• Nathan Kuppermann, MD, MPH, Professor, Emergency Medicine and Pediatrics, University of California — Davis Health System. E-mail: nkuppermann@ucdavis.edu.

• Mark Meredith, MD, Division of Emergency Medicine, Vanderbilt University School of Medicine, Nashville, TN. Phone: (615) 343-2996. Fax: (615) 343-1832. E-mail: mark.meredith@Vanderbilt.edu.

• Emory Petrack, MD, FAAP, FACEP, Petrack Consulting, Inc., Shaker Heights, OH. Phone: (216) 371-8755. Fax: (216) 928-9400. E-mail: epetrack@petrackconsulting.com.