By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
This year, seventeen (17) medical specialty societies added their names and recommendations to a list of medical procedures that are overused and often unnecessary. This updated list was released in February 2013, and includes ninety (90) new tests and procedures. The first version of the list was released in April 2012, with recommendations from nine (9) leading medical groups. It was created as part of the American Board of Internal Medicine (ABIM) Foundation’s Choosing Wisely campaign to help reduce healthcare spending and improve patient care.
An article I previously wrote on the first list was published in Medical Economics. Click here to read the entire article.
Open Communication Between Physicians and Patients.
In 2011, the ABIM found that the United States spends more than $2.5 million a year on healthcare, which is more than $8,000 a person. Studies have suggested that the high cost of healthcare in the U.S. is driven largely by the price of tests and procedures.
The motive behind this list is to promote an educational dialogue between physicians and patients. These medical societies are urging patients to actively question their doctors when listed tests and procedures are recommended. It’s believed that reducing the amount of unnecessary tests and procedures will help decrease medical spending and medical costs.
Laws Protect Patients from Unnecessary Testing.
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 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 attorney's fees and costs. This law may by itself promote litigation in the face of the lists of tests from the specialty groups.
A Sampling of What Procedures and Tests are Now Included on the List.
Some of the items the societies suggest avoiding include:
1. American Academy of Pediatrics (AAP): Antibiotics for apparent viral respiratory illnesses, such as sinusitis or bronchitis;
2. American Academy of Neurology (AAN): Electroencephalography for headaches;
3. American Academy of Ophthalmology (AAO): Antibiotics for pink eye;
4. American Society for Clinical Pathology (ASCP): Population-based screening for vitamin D deficiency;
5. American Urological Association (AUA): Routine bone scans in men with a low risk of prostate cancer;
6 Society of Nuclear Medicine of Molecular Imaging (SNMMI): PET/CT scans for cancer screening in healthy individuals.
A number of recommendations were made by multiple groups.
1. The American Academy of Family Physicians (AAFP) and the American College of Obstetricians and Gynecologists (ACOG): both urged against scheduling elective labor inducements or cesarean deliveries before 39 weeks. This action is associated with an increased risk of learning disabilities, respiratory issues and other possible problems in infants.
2. The American Academy of Hospice and Palliative Medicine (AAHPM) and the American Geriatrics Society (AGS): both recommended against percutaneous feeding tubes in advanced dementia patients because studies have shown the tubes don’t result in better patient outcomes. Oral feeding is recommended instead.
The ABIM hopes to release a third list later in 2013, which will include thirteen (13) more healthcare societies.
A full list of the current recommendations can be found on the “Choosing Wisely” website.
Look for More False Claims and Whistleblower Cases.
I believe that with this updated list will come more qui tam or “whistleblower” and false claims cases.
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 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 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.
The Good, the Bad and the Legal.
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.
Contact Experienced Health Law Attorneys.
The Health Law Firm routinely represents pharmacists, pharmacies, physicians, nurses and other health providers in investigations, regulatory matters, licensing issues, litigation, inspections and audits involving the Drug Enforcement Administration (DEA), Federal Bureau of Investigation (FBI), Department of Health (DOH) and other law enforcement agencies. Its attorneys include those who are board certified by The Florida Bar in Health Law as well as licensed health professionals who are also attorneys.
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Have you reviewed this new list of tests and procedures that have been deemed unnecessary? As a healthcare professional, what do you think of the list? How important is it for patients to be educated on their options for medical care? Please leave any thoughtful comments below.
Levey, Noam. “Doctors List Overused Medical Treatments.” Lose Angeles Times. (February 20, 2013). From: http://www.latimes.com/health/la-na-medical-procedures-20130221,0,6234009.story
Indest III, George. “Beware Legal Ramifications of Unnecessary Tests.” Medical Economics. (July 25, 2013). From: http://medicaleconomics.modernmedicine.com/news/beware-legal-ramifications-unnecessary-tests
Lee, Jamie. “Choosing Wisely Campaign Expands List of Questionable Tests, Procedures.” Modern Healthcare. (February 231, 2013). From: http://bit.ly/YLFVtu
Pittman, David. “17 Doc Groups Add to ‘Overused’ Test List.” MedPage Today. (February 21, 2013). From: http://bit.ly/VAW2g6
About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.
Tag Words: physicians, doctors, unnecessary tests, unnecessary procedures, American Board of Internal Medicine (ABIM) Foundation, Choosing Wisely, false claims cases, whistleblower, qui tam, Medicare, Medicaid, health law attorney, health care attorney, health care lawyer, health lawyer, Florida health law attorney, Florida health care attorney, defense attorney, defense lawyer
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