By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
On April 4, 2012, nine different medical specialty groups each released its list of the top five medical tests and procedures that are overused and often unnecessary. Each list also includes 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 (NSAIDS), electrocardiograms and immunoglobulin G
(IgG) testing. Some of the services are routinely used, while others are only for specific kinds of patients, such as those with certain cancers. Many of the tests that are listed by these specialty boards can lead to unneeded invasive procedures, overtreatment, unnecessary radiation exposure and misdiagnosis.
The nine medical speciality associations that released lists include the American Academy of Allergy, Asthma & Immunology; the American Academy of Family Physicians; the American College of Cardiology; the American College of Physicians; the American College of Radiology; the American Gastroenterological Association; the American Society of Clinical Oncology; the American Society of Nephrology and the American Society of Nuclear Cardiology. Eight more speciality associations will also release lists of tests and procedures later this year.
The medical specialty groups decided to create these lists as part of an effort aimed at promoting an educational dialogue between physicians and patients. Patients are being urged by the medical specialty associations to actively question their physician when any of the listed tests or procedures are recommended by the physician.
In many cases, physicians may be reluctant to tell a patient when a test or procedure is unnecessary, due to their fear of malpractice suits. Now that there is a list of tests that may not be necessary, patients will have access to some of the same information as their physicians, and they can ask if a test or procedure is warranted. This allows shared decision-making between patients and physicians and results in less uncertainty about the medical care that is being given.
Another motive behind the creation of the lists is reducing the occurrence of unnecessary health care. The Congressional Budget Office (CBO) estimates that unnecessary medical treatment accounts for one-third of medical spending in the United States. Because approximately 2.6 trillion dollars is spent on health care each year, a reduction in unnecessary procedures would help to decrease medical spending and medical costs.
This action taken by the medical speciality groups has not been received without complaints from some physicians. 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.
We query whether this may also have the side-effect of promoting additional litigation against physicians, health care clinics and hospitals that provide the "unnecessary" tests and procedures. Many states, such as Florida, have state laws that have been around for decades which prohibit unnecessary tests and procedures, and provide sanctions to those that provide them. Section 766.111, Florida Statutes, which has been around since 1985, states:
Engaging in unnecessary diagnostic testing; penalties.—
(1) No health care 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 health care 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 health care 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 statutes and medical malpractice statutes, it allows the prevailing party in such a case to obtain their attorney's fees and costs. This by itself may promote litigation in the face of the lists of tests from the specialty groups.
Furthermore, this may also 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 (FCA) 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 health 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, often amounting to millions of dollars, in successful cases. Most states now have similar state 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.
With medical necessity being a requirement for practically every Medicare service and Medicaid service, as well as most services paid by health insurers, the lists provided by the specialty may very well be "Exhibit 1" in future law suits.
This commentator does not disagree with and is not critical of the specialty groups or their providing this valuable information to the public. If anything, such information makes for a more educated patient populace, more educated provider group and serves to eliminate tests and procedures which have no proven medical efficacy. A health provider should have the knowledge, skill, training and confidence to know when such tests and procedures are not warranted. If the health provider persists in ordering such tests solely for the means of increasing profits, there should be strong repercussions, if not, the health provider should be able to justify it.
A list of the specialty associations which have published lists of unnecessary medical tests and procedures, along with copies of those lists, follows:
Recommendations Provided by Medical Specialty Boards:
American Academy of Allergy, Asthma & Immunology (pdf)
American Academy of Family Physicians (pdf)
American College of Cardiology (pdf)
American College of Physicians (pdf)
American College of Radiology (pdf)
American Gastroenterological Association (pdf)
American Society of Clinical Oncology (pdf)
American Society of Nephrology (pdf)
American Society of Nuclear Cardiology (pdf)
Rabin, Roni C., "Doctor Panels Recommend Fewer Tests for Patients," New York Times (Apr. 4, 2012). From:
Samadi, David B., "Fewer Medical Tests Need?" Fox News (Apr. 10, 2012). From:
American Board of Internal Medicine Foundation, "Choosing Wisely," "Lists" (2012). From: http://choosingwisely.org/
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: unnecessary medical tests, medical procedures, physicians, healthcare providers, medical speciality groups, medical associations, diagnostic tests, unnecessary health care, medical treatment, medical negligence, medical malpractice, medical necessity, false claims act, litigation, attorney's fees, causes of action, qui tam relator, Medicare Medicaid whistle blower, medical costs, health costs