Catering to one physician creates test dilemma.

Q A physician in our area orders unusual tests. Once a month, we get her request for a very esoteric test neither our lab nor our reference lab offers. Her position is: "I order the test; you figure out where to get it because I need it." The last time she ordered, I discovered after days of research that the test was referenced in a university research paper; the test was not even available for general use. Do we have a responsibility to chase down and perform any test ordered? If not, where can we draw the line?

A Your question is more a public relations one than a legal one. A small dose of common sense tells you that no laboratory can be expected to offer every test known to mankind. The menu of routine tests will vary from place to place depending on patient population, hospital size, and the overall patient demographic. A small rehabilitation hospital might not offer HIV testing or blood typing in-house; however, a large acute-care facility almost certainly will. State regulations, accreditation agencies, and patient load will, ultimately, determine what is regularly needed and with what urgency. This helps establish which tests must be available in the institution, at what hours, and which can be relegated safely to "send out" status for a reference lab.

As the medical field advances and as the patient population shifts, re-evaluating the menu of standard tests and the turnaround times available for them occasionally becomes necessary. One point laboratories look for in order to evaluate the need for test-menu change is increased demand from physicians. In cases that truly indicate a need for revision, a demand for change will usually come from multiple sources, be accompanied by an identifiable medical necessity, and generally involve testing that is easily available, whether at the reference level or a new or conveniently adapted form.

The adoption of troponin testing rose out of the need for quick, bedside testing for the evaluation of cardiac complaints. Originated in university research, the test was translated into an effortlessly managed and marketed test kit for general use. Early on, clinicians aware of the test often alerted labs about its development. Together with pathologists, they made plans for its inclusion in the routine test menu. At that point, the test became a staple of lab testing--not before.

You have one physician regularly asking for tests that have not even made it to the reference-lab level. Although she feels it is the lab's duty to run down and perform every test she might believe necessary for her personal style of medical care, common sense says that just is not so. Tests are eliminated when a better one comes along (who is injecting urine in rabbits to test for pregnancy these days?) and are not generally adopted until they are well established as reliable, efficient, and reproducible. One physician's "whim" is not enough to commandeer the lab for testing in general, let alone a single, esoteric test. Keeping that in mind, labs do have a duty to make a "good-faith effort" to supply the truly needed but unusual test.

The problem then becomes one of policy, procedure, and economics. The lab should have a clearly established procedure for performing in-house tests (including bedside testing), for "routine" reference testing, and for needed tests that do not fall into either category. A well-defined way of deciding what tests simply cannot be done should be included. Formulating a policy that works well will take some preparation on the part of the laboratory staff and will require support from the medical staff and administration, but it can save you problems in the long run.

A clearly defined duty probably does not exist for the ordinary hospital lab to offer--or to go to great lengths to procure--esoteric tests. Unless your legal advisor indicates otherwise, I believe you have a great deal of latitude in adjudging just what efforts are required on the part of the lab. I think you will be surprised just how much it costs to chase down these tests. Document how much time, effort, and expense have been siphoned from regular lab duties to ascertain how, where, and at what cost to order these unusual tests for this one physician. Armed with the knowledge that researching referral tests is not a free service from either the perspective of the patient or the hospital, you may be able to begin to define limits that are reasonable, enforceable, and supported by the medical community as a whole.

One "bright-line" way to distinguish send-out tests that are the sole responsibility of the lab from those that are not is to develop a policy that puts the burden of finding a testing facility (including all details: type of specimen, type of preservative, shipping procedures, and costs) on the physician who wants a test that is not on the standard and approved list of offered send-out tests. You may also want to consider whether the pathologist or a designee either of the hospital or of the medical staff should additionally approve the send-out in such a situation, once all the information is obtained.

In general, shifting the obligation to research these unusual tests from the laboratory staff to the physician desiring them should quickly reduce the demand. Making your process work smoothly will require the assistance of the administration and the medical staff. Once they understand how big a drain such capricious requests are on overall lab resources, they will likely be more than willing to help.

Barbara Harty-Golder is a pathologist-attorney consultant in Chattanooga, TN. She maintains a law practice with a special interest in medical law. She writes and lectures extensively on healthcare law, risk management, and human resource management.

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By Barbara Harty-Golder, MD, JD

MLO's "Liability and the Lab" is intended to provide risk management and human resource management education; it is not intended to provide specific legal advice. If you require legal advice, the services of an attorney should be sought. Dr. Harty-Golder welcomes your questions, which can be sent to her at [e-mail]. Unless otherwise noted as "confidential" by readers, all queries will be considered for publication without further notice to them. Names, institution, city, and state will be removed before publication.