Patient's right to choose raises points with common grounds. (Liability and the Lab).

Q We recently had a patient come our lab with a requisition from a competing lab. His physicians had ordered testing, but this presented a problem for him because, not only was it rather far from his home, it was closed. He wanted us to perform the testing. When we called his physician to ask him to submit his order on our form, he refused, saying he required his patients to get their testing at the other lab. Can he do this? What are our options if the patient wants to use our services?

A State laws and administrative rules governing orders for lab tests, as well as hospital policies regulating acceptance of out-of-system requisition forms, vary from place to place, so it is not possible to give a comprehensive answer. Even so, your question raises some interesting points on which there are some common grounds.

In general, an order for a laboratory test is akin, though not identical, to a prescription for drugs. It differs from a referral to another physician because there is generally not a personal relationship between the patient and the medical director of the laboratory -- as there would be in the case of a referral to another clinician. Therefore, there is more latitude in how that order for testing may be filled. Usually, the patient retains the right to decide what facilities (hospitals, laboratories, pharmacies and radiology facilities) he wishes to patronize. Because law and policy may vary on the form in which a request for testing must be presented, getting the appropriate paperwork might be required, but in general, if a patient requests to patronize a particular facility; the physician should accede to the request.

In the past, there was some justification for a physician's preferring one lab over another. Before the introduction of international units, labs varied in their reporting standards, making it difficult to compare results. Some labs were less reliable when performing esoteric tests, making it important to select an experienced facility. Advances in technology, inspection requirements, quality assurance programs and reporting standards have largely smoothed out such differences.

Today, patients may be discouraged from utilizing certain lab facilities by their insurance policies and HMOs if they have established panels that provide services at a discount. Even in such a case, patients may generally go "out of network" if they are willing to pay for the services or the difference in cost (again, depending on contract provisions, and state laws and regulations). In either case, the decision of which facility to patronize rests with the patient.

When a physician evidences such a preference for a single laboratory, it is reasonable to wonder whether his patients are exclusively under insurance contracts that mandate use of a particular facility. The physician's reluctance to have patients go to another facility may also stem from the recent proclivity of some labs to charge physicians, rather than patients, for lab tests when insurance disallows payment. It may also be an indication of an impermissible relationship between the lab and the physician, either an undisclosed ownership relationship or a kickback relationship, both of which are impermissible under the provision of the various Stark acts.

From the perspective of the lab, it is important to sort out, before performing any testing, whether the requisition of the other facility represents a valid order in your own facility. An examination of your own policies or a quick call to your in-house counsel should permit that determination to be made easily. If it is a valid order for your facility, it would be acceptable to perform the test and to report the test results as you generally do. If the outside requisition does not represent a valid order, the test should not be done, and the patient must either present a valid order or have his work done at the other facility. In either case, it is probably best to have the patient undertake the discussion with the physician about where testing will be done.

Barbara Harty-Goldeer is a pathologist-attorney consultant in Sarasota, FL. She has experience in clinical laboratory medicine in academic centers, community hospitals and freestanding laboratories. She maintains a consulting law practice with a special interest in medical law. She writes and lectures extensively on healthcare law, risk management and human resource management.