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Protecting against liability when ordering screening tests


Physicians need to discuss the benefits and drawbacks of screening tests and procedures with patients and document the discussions in their records to protect themselves if they are sued for medical malpractice.

Primary care providers can be sued for medical malpractice for failing to order screening tests for cancer or other conditions when the applicable standard of care would ordinarily warrant such a test. But all physicians must remain cognizant that recommending screening simply pursuant to certain guidelines is insufficient.

Patients have alleged in malpractice lawsuits that the physician did not discuss the potential benefits and harms of the screening test or procedure with the patient, and therefore the patient was unable to make an informed decision as to whether to proceed. Simply following the guidelines of an agency, such as the U.S. Preventive Services Task Force, may not be enough to eliminate all liability.

The importance of communication

One of the primary barriers to the provision of preventive care such as screenings is a lack of communication between the physician and the patient.

The ordering physician, or other healthcare provider, must communicate to the patient the harms and benefits associated with the screening test or procedure to ensure that the patient makes an informed decision. Some practices use informational brochures and technological aids to assist with the dissemination of information to patients.

A 2013 report published in the Annals of Family Medicine analyzed a study concerning the informed decision-making process for prostate cancer screening. The study found considerable differences in the approaches employed by physicians as to the nature and extent of discussions with patients concerning the benefits and harms associated with prostate cancer screening. 

Many physicians indicated that they would order the prostate-specific antigen (PSA) test based on recommended age ranges for screening without discussing with the patient the benefits and harms associated with testing. Other physicians stated that there was some level of discussion with the patient.

However, the extent to which the physicians encouraged patient autonomy in the decision making process varied.

Next: A screening test case study


A screening test case study

The importance of communicating with the patient is demonstrated by a 2007 study published in the Journal of Law, Medicine & Ethics. In the study, potential jurors were presented with the following hypothetical malpractice suit alleging failure to perform a PSA test:

A 49-year-old patient was seen for a checkup and examined for minor problems. Notably, the patient had no symptoms related to the urinary tract, no family history of prostate cancer, and was considered to be part of a high-risk group for prostate cancer. 

The patient returned the next year for another checkup, and there were no significant changes to the patient’s symptoms or family history, and a PSA test was not ordered. 

Two years later, the patient moved out of state and was seen by another physician who ordered a PSA test, which lead to a diagnosis of aggressive prostate cancer.

The patient sued the original physician, alleging that had he been better informed about the PSA test by the original physician the patient would have requested the test. The patient’s expert argued that the standard of care was simply to perform the PSA test without discussion, and that if the PSA test was ordered the cancer would have been curable. 

The physician testified that he routinely discussed with patients over age 50 the benefits and risks of the PSA test, and that routine when encountering patients who meet that description reflected the recommendations of his professional society. 

But the physician did not fare well in this scenario. When potential jurors were presented with this scenario, the majority (approximately 83%) voted that the standard of care was breached.

Next, the study's authors conducted the same test scenario with another group of potential jurors, but introduced two new facts to the case:

  • During the initial encounter with the patient, the physician had documented in the medical record that there was a discussion about benefits and harms of the PSA test with the patient, and

  • the patient declined the PSA test. 

These two facts played a significant role in the outcome of the theoretical malpractice case, helping the physician’s case. A majority of the (about 72%) potential jurors now found that the physician had met the standard of care. 

Interestingly, when a video aid titled “Is a PSA Test Right for You?” was shown to a potential patient, an overwhelming majority (approximately 94%) felt the standard of care had been met by the physician. 

According to the discussions with the potential jurors, the video aid served several purposes. It educated jurors on the complexity of the decision of a PSA test, and documented the content that was provided to the patient. 

Also, the potential jurors felt that use of such tools demonstrated that the physician went to significant lengths to ensure that the patient understood the benefits and harms of the PSA test before deciding whether to get tested.

When guidelines are not enough

Although studies have demonstrated for years the need for physicians to discuss with patients the benefits and dangers of screening tests and procedures, few physicians have adopted the practice, instead relying on clinical guidelines. 

It is imperative that physicians discuss the pros and cons of screening tests and procedures with patients, and document the discussions in their medical records. Additionally, it is highly recommended that technological aids are used to ensure that the patient is able to make an informed decision of whether to proceed with the test.

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