No diagnostic test ordered? Be sure chart includes the reason it wasn’t
Plaintiff might decide against pursuing claim
Financial Disclosure: Physician Editor William Sullivan, DO, JD, FACEP, Author Stacey Kusterbeck, and Executive Editor Joy Dickinson, report no consultant, stockholder, speaker’s bureau, research, or other financial relationships with companies having ties to this field of study.
Malpractice suits involving failure to order diagnostic tests resonate well with lay jurors, according to David P. Sousa, JD, senior vice president and general counsel at Medical Mutual Insurance Co. of North Carolina in Raleigh.
"The sad reality is that there are still physicians willing to serve as medical experts in malpractice cases who will almost always be critical of the choice to just not do one more thing that may have prevented the adverse outcome," he says.
Sousa says that he rarely sees any documentation as to why a diagnostic test wasn’t ordered. Ideally, the chart would state that a plain chest X-ray was done, and a CT was considered, and give the reasons why the physician and patient decided against it, for example. "That is a note that you never see," Sousa says. "Instead, what happens is the physician uses his or her best clinical judgment, and there is virtually no explanation that appears in the chart that documents the thought process."
Sousa says this absence, in large part, is due to time constraints faced by physicians. "But it is a behavioral adjustment that physicians need to make," he says. "If that’s in the chart, it becomes very difficult for the expert witness to take the position that the physician didn’t order the test because he never thought about it."
A reasonable explanation of why a diagnostic test wasn’t ordered "is a red flag to the plaintiff attorney that this is going to be a hard case to prove," adds Sousa.
Sousa recently successfully defended an internist at trial. The case involved a failure to diagnose rectal cancer in a 44-year-old man who was seen on three occasions over a four-month period with varying complaints of rectal bleeding. The physician had recommended a colonoscopy three times, once in the presence of the patient’s wife, and each time, the patient was told of the need for testing, the reason for it, and the risk in not doing it.
The patient declined the test. The physician was meticulous in charting the discussions and the patient’s refusal to be tested. A flexible sigmoidoscopy was scheduled, and the patient cancelled the test, which was well-documented. "Unfortunately, the plaintiff’s attorney still took and fully pursued the case to verdict," says Sousa. "The jury found that all appropriate tests were ordered and recommended, as evidenced by the chart notes, and returned its verdict in less than 30 minutes."
Show test was considered
Keith C. Volpi, JD, an attorney at Polsinelli in Kansas City, MO, has defended several cases in which the allegations included failures to order imaging studies.
In one such case, a man was brought to the emergency department by ambulance after a motor vehicle accident, and he was discharged home without undergoing any imaging studies. The patient returned the following morning with a significant closed-head injury that the family alleged would have been caught on head CT. In another case, a patient underwent a chest CT that showed some scar tissue in the area of a previous surgery. More than a year later, a malignant tumor developed in the area of the previous scar tissue. The patient alleged that a mammogram shortly after the chest CT would have identified the malignant tumor.
"Nothing about the patients’ physical examinations or diagnostic studies indicated the need for additional imaging," says Volpi. "In other words, the imaging studies were not clinically indicated."
Volpi says he isn’t sure that any amount of documentation would have changed the perception of the family, but believes it would have changed the perception of the jury. "I always want the worst thing that a jury can say about my client to be that he made an incorrect medical decision after appropriate attention and consideration," he says. "The best way to send a jury this message is to document the risk/benefit analysis of a decision." In this case, the physician could have identified the scar tissue as an abnormal finding that would normally warrant further imaging and stated that this patient was different because her medical history made the scar tissue a normal finding. "We don’t want a jury to think that the scar tissue was simply never identified or considered," he explains.
These cases underscore the reason many physicians practice defensive medicine: the risk of a poor, unanticipated outcome that leads to a lawsuit. "It’s easier for a physician to scan everyone, just so that no one can criticize him for failing to do so," Volpi adds. "It is very difficult to sell to a jury all the reasons for not ordering a CT, when they see it as a relatively effortless procedure."
Contemporaneous charting of reasoning for not ordering a CT is better than explaining the same reasoning during litigation, says Volpi. "Jurors are smart enough to know that lawyers and doctors can craft a good explanation for most things in the midst of litigation. But if we can hold up a medical record that proves the physician’s thought process at the time of the treatment, I think that goes further," he says.
He instructs his physician clients to document all aspects of the clinical picture that led to a decision not to order a diagnostic test. "More often than not, the records are simply silent on this, and a plaintiff’s attorney concludes there was lack of attentiveness," Volpi says. "If a physician identifies a test as common under the circumstances but has a good reason for not ordering it, chart that."
If the physician simply makes a progress note stating that the procedure was considered and why it was determined to be unnecessary, "that goes a long way in litigation," he says. "A jury is more willing to accept a regretful decision that was reached after sufficient time and attention than what they view as lack of attentiveness."
Sparse charting hurts defense
Catherine J. Flynn, Esq., an attorney with Weber, Gallagher, Simpson, Stapleton, Fires & Newby in Warren, NJ, has represented physicians in many cases alleging failure to obtain diagnostic tests.
"When you know the outcome is not a good one, it’s always easy to look back retrospectively and say, You should have ordered a test, and you would have picked up the diagnosis,’" she says.
No documentation or very sparse documentation makes these lawsuits difficult to defend, adds Flynn. For example, a chart might say the patient complained of a lump in her breast, that an evaluation was done and nothing was palpated, but it says nothing about recommendations for diagnostic testing.
"The lawsuit occurs months or years after a test needed to be done, so it’s very hard to pull together the facts when time has lapsed," says Flynn.
The plaintiff can show the jury the patient’s mammogram, chest film, or CT scan revealing the eventual diagnosis, while the physician defendant is left to explain why a diagnostic test wasn’t ordered at a time when the bad outcome could arguably have been prevented. If physicians can show the standard of care for not ordering the test was met, however, the claim will be defensible, says Flynn.
"If it is a gray area, and the physician is asking, Should I or shouldn’t I order this test?’ and it’s something someone may question, that’s when they have to document why they are not proceeding," says Flynn. (See related story, below, on what to do if a patient refuses a diagnostic test.)