Does a Lawyer Claim You Failed to Order Diagnostic Tests?

The use of high-tech diagnostic imaging in EDs has quadrupled since the mid-1990s, says a new report from the Centers for Disease Control and Prevention. In 2007, magnetic resonance imaging, computerized tomography, or positron-emission tomography scans were done or ordered in 14% of ED visits, which is four times as often as 1996.

"The impact of overutilization of diagnostic tests for "defensive medicine" is staggering," says Matthew Rice, MD, JD, FACEP, an ED physician with Northwest Emergency Physicians of TEAMHealth in Federal Way, WA. "There is little doubt that it occurs, adds impressively large amounts of dollars to health care and is often not even good for patients' health. The data for this fact is indisputable."

Rice says that his own personal experience, after practicing for over 30 years in emergency medicine, is that "about 25% to 33% of my care is related to defensive medicine."

A significant number of ED litigations do involve failure to order tests or interpret them. "One of the largest causes of action is failure to diagnose. At least part of the case often revolves around whether a test is ordered and interpreted properly," says Rice.

Rice says that it is much easier to defend a bad outcome when a test is normal, than it is to defend a bad outcome when the right test, if available, could have assisted in making the correct diagnosis and disposition of a given patient.

"Classic cases of not ordering the right test are numerous," says Rice. These include a complete blood count to help in diagnosis of infection, a urinalysis to assist in diagnosis of kidney disease, a chest X-ray that could have found a pneumonia or tumor, an ultrasound and/or d-Dimer to assist in diagnosis of a blood clot, or a computerized tomography scan that could have assisted in a diagnosis of appendicitis or pulmonary embolism.

"The examples are almost endless in an age of technology, and patient expectations," says Rice. He says these questions are commonly asked by plaintiff's attorneys: "Doctor, would test X have assisted you in your diagnosis? Was it available? Why would you not get it prior to the patient leaving the ED? For the sake of only $500, did you avoid this test that cost your patient their ability to work the rest of their life?"

Allegation Is Common

One of the most prevalent grounds for lawsuits in the ED setting is a failure to diagnose, which often goes hand-in-hand with a failure to order a diagnostic test, according to Chris DeMeo, JD, a health care attorney with Munsch Hardt Kopf & Harr in Houston, TX.

"The physician, however, is typically the one responsible for ordering tests. So unless the physician is an employee of the ED, the ED would not be the proper target for such an allegation," says DeMeo.

The exception to this rule is when the standard of care for a patient's presenting complaint requires a protocol that includes certain tests to be run without the need for a physician's order. One example of this type of situation would be a patient presenting with chest pain for whom cardiac enzymes and an EKG may be ordered.

"If a protocol is in place and is not executed, there may be a lawsuit," says DeMeo.

Alternatively, a patient may sue arguing that a protocol should have been in place but was not. "Regardless of the target or theory of the lawsuit, failing to order a diagnostic test is an extremely common allegation," says DeMeo. The riskiest areas, he says, involve diagnostic imaging related to cardiac disease/myocardial infarction or stroke.

Very Difficult Defense

The ED physician may have, in fact, been justified in not ordering a diagnostic test because this was not indicated based on their current knowledge of the patient's condition. However, if the test would have identified something, this "hindsight is 20/20" situation is "very difficult for the defense," says DeMeo.

"It will likely result in liability, absent a very conscientious jury and a defense team that at trial can impress upon the jury the importance of not using the "retrospectoscope" in judging the defendants' conduct," says DeMeo.

Even then, there will be the challenge of explaining why the test was not indicated, if in fact there was something there to be diagnosed. "Specifically, the plaintiff will argue that the main reason for using diagnostic imaging is to spot things that cannot be detected in a clinical exam," says DeMeo.

"It is rare to have conclusive evidence that a certain test would have been positive at the time of the events giving rise to the lawsuit, simply because the reason there is a lawsuit is because the test was not done," says DeMeo.

One situation where there could be some conclusive evidence of this, though, is where the patient has a retained sponge from an earlier surgery, presents to the ED with abdominal pain, and no scan is done. Later, the family physician orders a scan showing the sponge.

"In that case of course, the main liability would be with the facility that did the surgery. The ED liability should be limited to damages incurred from the date of the ED visit," says DeMeo.

Usually, the plaintiff's expert will take a later test result and try to 'back-date' the findings to come up with an opinion as to what would have been present and detectable at the time of the ED encounter. "At that point, there should be a vigorous battle on the reliability of the expert's back-dating methodology," says DeMeo.

While a connection has been shown between diagnostic testing and the prevalence of medical malpractice lawsuits, "it appears to be a one-way street with lawsuits impacting diagnostic testing, but not vice-versa," says DeMeo.

"Stated another way, there are published studies that point to the correlation of tort reform, and the resulting reduction in the frequency of malpractice litigation, and the reduction in the utilization of diagnostic testing," says DeMeo.

There is less published evidence, however, demonstrating that the reverse is true – that as the utilization of diagnostic testing has risen, that there has been a corresponding rise, fall or flat effect in the prevalence of malpractice lawsuits.

"The real concern for the physician from a litigation perspective when it comes to overutilization is in payer reimbursement actions, most notably Medicare recoupment claims and, in the extreme case, actions under the federal False Claims Act," says DeMeo.