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Beware Legal Ramifications of Unnecessary Tests

BEWARE LEGAL RAMIFICATIONS OF UNNECESSARY TEST

Jul 25, 2012
By: George F. Indest III, J.D., M.P.A., LL.M.

Earlier this year, nine medical specialty groups each released lists of the top five medical tests and procedures that are overused and often unnecessary in their areas of medicine. They did so as part of an initiative by the American Board of Internal Medicine (ABIM) Foundation to reduce healthcare spending and improve care. Each list also included information about when a test or treatment may be appropriate based on clinical evidence and guidelines.

The lists cover a wide range of tests, procedures, and treatments, including stress tests, nonsteroidal anti-inflammatory drugs, electrocardiograms, and immunoglobulin G testing. Some of the services routinely are used, whereas others are appropriate only for some patients, such as those with certain cancers. Many of the tests listed by these specialty boards can lead to unneeded invasive procedures, overtreatment, unnecessary radiation exposure, and misdiagnosis.

The American Academy of Family Physicians and the American College of Physicians were among the medical specialty associations that released lists. Eight more specialty associations also will release lists of tests and procedures later this year.


LISTS FOSTER DISCUSSION

The medical specialty groups decided to create these lists as part of the ABIM Foundation's Choosing Wisely campaign, an effort aimed at promoting an educational dialogue between physicians and patients. Patients are being urged by these medical specialty associations to actively question their doctors when any of the listed tests or procedures are recommended.

In many cases, doctors may be reluctant to tell patients when a test or procedure is unnecessary, due to their fear of malpractice lawsuits. Now that a list of tests that may not be necessary exists, patients will have access to some of the same information as their doctors, and they can ask whether a test or procedure is warranted. This ability allows shared decision-making between patients and physicians and can result in less uncertainty by patients about the medical care they are receiving.

Another motive behind the creation of the lists is reducing the occurrence of unnecessary healthcare. The Congressional Budget Office estimates that unnecessary medical treatment accounts for one-third of medical spending in the United States. Because approximately $2.6 trillion is spent on healthcare each year, a reduction in unnecessary procedures would help decrease medical spending and medical costs.


DOCTORS NOT PLEASED

This action taken by the medical specialty groups has brought complaints from some doctors. Because of the recommendations, physicians may find it more difficult to address the needs of individual patients.

Additionally, when physicians perform fewer diagnostic tests and procedures, their income can be reduced, especially under fee-for-service payment schedules that pay for each patient encounter separately.


LAWS PROTECT PATIENTS

This situation also may have the side effect of promoting additional litigation against doctors, healthcare clinics, and hospitals that provide the "unnecessary" tests and procedures. Many states have laws that have been around for decades that prohibit unnecessary tests and procedures and sanction those who provide them. For instance, Section 766.111, Florida Statutes, which was enacted in 1985, states:

Engaging in unnecessary diagnostic testing; penalties:

(1) No healthcare provider licensed pursuant to chapter 458 [medical doctors], chapter 459 [osteopathic physicians], chapter 460 [chiropractic physician], chapter 461 [podiatrist], or chapter 466 [dentist], shall order, procure, provide, or administer unnecessary diagnostic tests, which are not reasonably calculated to assist the healthcare provider in arriving at a diagnosis and treatment of a patient's condition.

(2) A violation of this section shall be grounds for disciplinary action...

(3) Any person who prevails in a suit brought against a healthcare provider predicated upon a violation of this section shall recover reasonable attorney's fees and costs.

This Florida law not only provides a private cause of action by a patient against a health provider who orders or furnishes such "unnecessary" diagnostic tests, but unlike other tort and medical malpractice statutes, it allows the prevailing party in such a case to recover attorneys' fees and costs. This law may by itself promote litigation in the face of the lists of tests from the specialty groups.


FALSE CLAIMS CASES

Further, the law also may give rise to additional qui tam, "whistle-blower," and false claims cases, especially those brought by individuals.

Qui tam cases have been brought under the federal False Claims Act for the recovery of Medicare payments from hospitals, physicians, medical groups, nursing homes, insurance companies, diagnostic testing facilities, clinical laboratories, radiology facilities, and many other types of healthcare providers. These cases allege that a false claim was submitted to the government. If the test or procedure was unnecessary, then it seems almost axiomatic that a claim for it is false. The plaintiff (or relator) bringing such cases receives a percentage of the recovery, which often amounts to millions of dollars in successful cases.

Most states now have similar false claims act or qui tam laws providing similar causes of action and recoveries to individual plaintiffs (or relators) in the case of state Medicaid payments as well.

Because medical necessity is a requirement for practically every Medicare and Medicaid service, as well as most services paid by private health insurers, the lists provided by the specialty may very well be exhibit one in future lawsuits.


LISTS BENEFIT DOCTORS AND THEIR PATIENTS

I do not disagree with, and am not critical of, the specialties providing this valuable information to the public. If anything, such information makes for a more educated patient populace and provider group and serves to eliminate tests and procedures that have no proven medical efficacy.

A doctor should have the knowledge, skill, training, and confidence to know when such tests and procedures are not warranted. If a physician persists in ordering these tests solely for the means of increasing profits, he or she should be penalized. If not, the physician should be able to justify them.

ABOUT THE AUTHOR

GEORGE F. INDEST III, J.D., M.P.A., LL.M.

George F. Indest III, is the founder and managing partner of The Health Law Firm based in Altamonte Springs and Orlando, Florida. Mr. Indest is board certified by the Florida Bar in the legal speciality of Health Law. He is also board certified as a health care risk manager by the American Board of Risk Management, Inc. He is a member of the American Medical Association's Doctor's Advisory Network and serves as General Counsel for the Florida Chiropractic Physicians Association. His practice encompasses all aspects of business, corporate, transactional, regulatory and administrative health law practice, and he represents physicians, nurses, hospitals, home health agencies, long term care facilities and other health care providers. His practice also includes the litigation of professional licensing cases and business litigation, as well as Medicare and Medicaid audit and defense work. He was selected as the "Best Health Care Attorney in Orlando" by Florida Medical Business for 2000.

Mr. Indest served as in-house counsel at one of the Navy's largest teaching hospitals and was also in charge of the legal and medical risk management programs in the Navy's largest regional health care system which consisted of twenty-seven major hospitals and treatment facilities. He is on the Executive Council of the Health Law Section of the Florida Bar and has served as Chair of the Medical/Legal Committee of the Orange County Bar Association. Mr. Indest received his BA and JD degree, cum laude, from Tulane University and also was awarded an LL.M. degree, with highest honors, from the National Law Center, George Washington University, Washington, D.C., where his course emphasis was in health care law (legal medicine). He is a member of the state bars of Florida, Louisiana and the District of Columbia. Mr. Indest also serves on the Executive Council of the Health Law Section of the Florida Bar and is on the Board of Directors of a nonprofit charity nursing home and a number of other charitable organizations.

Mr. Indest lectures and writes frequently on health care legal issues having a number of publications to his credit. He is also an adjunct professor of health law for the St. Francis University Graduate School, Southern Adventist University Graduate School and for Barry University School of Law.

This article was originally published in Medical Economics.