Suits Against EDs Unlikely to Involve Over-ordering of Tests
Failure to order test is far easier argument for plaintiff
Over-ordering of diagnostic tests is a key focus of policymakers and insurers, but is unlikely to come up during malpractice litigation, according to health care attorneys and risk management experts interviewed by ED Legal Letter.
"You are much more likely to hear a complaint of that nature from a third party payer than from a plaintiffs’ attorney," says Joseph P. McMenamin, MD, JD, FCLM, a Richmond, VA-based health care attorney and former practicing emergency physician (EP).
The reality is that the EP may someday have to explain to a plaintiffs’ attorney why he or she didn’t order a diagnostic test, says McMenamin.
"As a society, we are somewhat hypocritical, by criticizing physicians for exposing patients to needless risk and then turning around and suing them if they don’t diagnose every disorder," says McMenamin.
It’s far easier for a plaintiffs’ attorney to make the argument, "The EP saved the hospital $300, but cost my client his life because he didn’t get a CT scan," than to make the case that a patient was harmed because the EP subjected him or her to an unnecessary diagnostic test, he notes.
"This is because the amount of radiation in a single CT is so modest that the likelihood it could cause malignancy or any other harm is minimal," says McMenamin. "The criticism will more commonly arise from those that pay the bills than the lawyers that sue doctors."
McMenamin says that for this reason, the temptation is strong for EPs to "err on the side of diagnostic thoroughness. Obviously, you don’t want to miss a diagnosis, and many medical conditions do lend themselves to more successful treatment when detected early."
Emphasis on over-ordering of diagnostic tests, however, "is going to become more pronounced in the future, not less," says McMenamin. "There will come a point where doctors’ freedom to order diagnostic studies will be curtailed. To a degree, in fact, it already is."
EP Is "the One on the Front Line"
There is a feeling among some EPs that the need to eliminate even low-probability disorders is a high priority for liability protection, says James Scibilia, MD, a Beaver Falls, PA-based pediatrician and member of the American Academy of Pediatrics’ Committee on Medical Liability and Risk Management.
"Some of this comes from prior near miss’ experiences of physicians or colleagues, or information learned about particular malpractice cases in the community," he says.
Another factor, says Scibilia, is the current mechanism in malpractice litigation in which opposing experts provide perspectives on care to non-medical court members who may not be savvy concerning the medical issues.
"The possibility of an expert’ second guessing your assessment, even when appropriate, leads to the increase in a variety of diagnostic tests and referrals," he says.
Regarding the possibility of increased long-term cancer risks in patients receiving CT scans, Scibilia says most EPs tend to look at the overall risk to a single patient as negligible compared to their potential liability risk of missing a rare finding.
"The problem is, if a patient comes in with a severe headache, the likelihood that it’s due to a subarachnoid hemorrhage [SAH] is remote — it’s probably less than 1% — and yet, if the EP says, you don’t need a CT scan, we can just watch it,’ and it turns out to be SAH, then there are big problems," says Leonard Berlin, MD, FACR, professor of radiology at Rush University and University of Illinois, both in Chicago, and author of Malpractice Issues in Radiology.
In one case, a defendant EP told the plaintiff attorney that he didn’t order a CT scan because the likelihood of an SAH was less than 1%. "The attorney said, But in this patient, it was 100%, wasn’t it, doctor?’" says Berlin. "That is the issue."
The EP will pay the consequences if he or she makes the wrong decision, says Berlin. "It’s very easy for politicians or policymakers to say we could cut down on the utilization of CT scans if EPs were far more conservative. But the EP is the one on the front line," he says.
If the EP believes a test isn’t indicated and the patient agrees, "that’s wonderful, but by all means, the EP should document it," says Berlin. "Otherwise the patient can say, You never explained that to me. You just refused to do the screen.’"
On the other hand, says Berlin, if a parent demands a head CT for a child with a minor head injury even after the EP recommends a "wait and see" approach, "the EP will be very foolish if he doesn’t agree to do it, because if there turns out to be an injury later on, there’s going to be a big problem."
Data Prevent Duplicative Testing
EPs sometimes order diagnostic tests simply because they’re unaware that duplicative testing has already been done, says Brian Dawson, MD, MBA, FACEP, an EP at Johnston Memorial Hospital in Abingdon, VA.
"EPs are chief complaint-oriented, and don’t always have the time to spend looking through all the charts and data that exist in the EMR," says Dawson, co-founder of Abingdon, VA-based Brily Innovations, whose Align system gives EPs data on recent diagnostic tests obtained by frequent ED visitors.
"We’ve found that this has reduced testing in a certain subset of patients," says Dawson. In a pilot test of 100 patients followed over 14 months, ED visits were reduced by 2000 compared to the previous 14-month period.
One patient in the pilot study had 36 brain natriuretic peptide levels done. All were negative, and it was determined that the patient had chronic obstructive pulmonary disease, not congestive heart failure. "So ordering that test again on subsequent visits is likely to be of no benefit to that patient," says Dawson. "But without knowing that information, many EPs might order it as part of their work up for shortness of breath."
Another patient had multiple EKGs, all of which showed an ST-elevation myocardial infarction (STEMI) pattern. The patient actually had pulmonary disease and an abnormal baseline EKG.
"Before our program, that patient went to the cath lab three times unnecessarily," says Dawson. "No one did anything wrong because when he showed up, the EKG had the STEMI pattern and quick action was indicated. But because we provided the EP with meaning from prior data, we removed what could be called an unnecessary test in retrospect."
One patient had almost 30 CT scans in a five-year period at the same institution. "The problem is that the EPs don’t find out until after the fact," says Dawson. "If the patient comes in and has a history and exam consistent with appendicitis, many EPs will just order the scan and move on." With the patient’s imaging history, the EP can discuss other options with the patient, and document "patient’s report was reviewed. We had a discussion and the patient chose not to proceed with another CT scan at this time."
In some cases, it may be appropriate to scan the patient again, acknowledges Dawson. "It doesn’t stop the EP from ordering the test," he says. "It just gives the EP a better, faster way of getting meaning from the existing medical data, and that understanding allows us to reduce some tests."
For more information, contact:
- Leonard Berlin, MD, FACR, Rush University, Chicago, IL. Phone: (847) 933-6111. E-mail: firstname.lastname@example.org.
- Joseph P. McMenamin, MD, JD, FCLM, McMenamin Law Offices, Richmond, VA. Phone: (804) 921-4856. E-mail: email@example.com.
- James Scibilia, MD, Beaver Falls, PA. E-mail:
- Brian Dawson, MD, MBA, FACEP, Brily Innovations, Abingdon, VA. E-mail: Brian@BrilyInnovations.com.