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Lawsuits for Needless Tests? It's Possible
If a CT scan of your ED patient isn't medically necessary, can the patient sue you for ordering one? "The great big elephant in the room," says Matthew Rice, MD, JD, FACEP, an ED physician with Northwest Emergency Physicians of TEAMHealth in Federal Way, WA, involves risks from radiation from these studies. One study says the CT scans ordered by doctors each year could lead to thousands of added cancer deaths in the decades to come.1
"Twenty years from now, will the courts be inundated with litigation from cancers, then discovered, caused by excess radiation from CT scans obtained earlier in life that were 'unnecessary?'" asks Rice.
Although the scenario of patients suing for tests ordered unnecessarily has occurred, says Rice, "so far, their success has been limited, mostly because of the plaintiff's inability to prove specific damages, or with limited value."
Rice says that "the big unknown" is the risk of side effects or future damage to the patient if an unnecessary test is ordered. "That could be a real risk problem in the future.," he says. "Certain dyes with bad reactions, such as renal failure, can lead to litigation and the question of 'Was this really needed?'"
Ann Robinson, MSN, RN, CEN, LNC, principle of Robinson Consulting, a Cambridge, MD-based legal nurse consulting company. says although she has not come across a case where over-utilization per se was the basis for appropriate litigation, "I have little doubt that such a scenario has at least been attempted."
"It is rare, however, that patients perceive that too many tests are ordered," says Robinson. "More often, it is their perception that more tests equal better care, though we as providers do not always align with that philosophy."
Chris DeMeo, JD, a health care attorney with Munsch Hardt Kopf & Harr in Houston, TX, agrees that although a patient could conceivably sue the ED if a diagnostic test was ordered when it wasn't really necessary, this scenario is rare. He says that litigation more likely involves situations where the test was not unnecessary, but was not useful in diagnosing the patient's condition.
"Even then, liability is generally limited to situations where the patient is injured during the process of the test itself, or the test leading to a delay in treatment that results in an injury," says DeMeo.
Risks of an allergic reaction to contrast dye can be minimized by using an informed consent form or by not using contrast, says DeMeo. In other instances, such as a patient falling off the imaging table or suffering an intravenous line infiltration, liability would lie primarily with the technician performing the test and the hospital employing that individual.
A plaintiff might even raise an argument that an unnecessary test caused a delay in treatment and a bad outcome for example, if time was spent obtaining a CT on a patient with meningitis, thereby delaying the start of antibiotics; or, if a CT was ordered on a hypotensive patient who showed clear evidence of a ruptured abdominal aortic aneurysm, rather than sending the patient directly to surgery.
"With respect to an unnecessary test causing a delay in treatment leading to an injury, there would have to be expert opinion as to how earlier treatment would have lead to a different result," says DeMeo. "Unless there is the requisite measure of reliability in this opinion, it is subject to challenge and may be stricken."
To reduce these risks, many ED physicians are now having patients participate in decisions about use of CT scans. They are documenting that the patient was aware of the potential future risks, and accepted them for the purpose of obtaining diagnostic information from imaging with various forms of diagnostic radiation.
"Such imaging may be the asbestos litigation of the future, and devastating to medical imaging companies and medical providers," says Rice.