unnecessary procedures

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On September 24, 2013, the American Academy of Family Physicians (AAFP) released its third list of commonly prescribed tests and procedures that may not be necessary. This list is part of the American Board of Internal Medicine (ABIM) Foundation’s Choosing Wisely campaign.

The Choosing Wisely Campaign was initiated to give patients a catalog of procedures, tests and treatments that have been overused, misused or have been identified as ineffective. Since its launch in April 2012, more than fifty (50) medical specialty societies have created lists of procedures, tests and drug treatments that deserve to be questioned before a physician orders them or patients accept them.

The purpose is to help patients become more discriminating about what care they receive. Physicians and health care providers also need to use this information to review the latest research and use that information to help avoid any litigation.

I’ve previously written about the Choosing Wisely campaign. Click here for part one and here for part two.

AAFP’s Updated List of Commonly Prescribed Tests and Procedures That May Not be Necessary.

1. Do not prescribe antibiotics for otitis media in children aged 2-12 years with non-severe symptoms where the observation option is reasonable.

2. Do not perform voiding cystourethrogram routinely in first febrile urinary tract infection in children aged 2-24 months.

3. Do not routinely screen for prostate cancer using a prostate-specific antigen (PSA) test or digital rectal exam. Evidence suggests that PSA-based screening leads to an overdiagnosis of prostate tumors.

4. Do not screen adolescents for scoliosis. Potential harms include unnecessary follow-up visits resulting from false-positive test results.

5. Do not require a pelvic exam or other physical exam to prescribe oral contraceptive medications. Hormonal contraceptives are safe, effective, and well tolerated by most women.

Click here to read the AAFP’s previous recommendations.

Health Care Providers and Professionals’ Responsibility to Patients.

A doctor should have the knowledge, skill, training, and confidence to know when such tests and procedures are not warranted. Also, a health care professional or provider should not be swayed by increasing his/her personal bottom line. Specifically, physicians that work in a fee-for-service setting that rewards doctors for performing more procedures are at risk for ordering unnecessary tests or procedures. 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.

Laws Protect Patients from Unnecessary Testing.

This situation 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, 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 produced by the specialty groups in the Choosing Wisely campaign.

Look for More Whistleblower/Qui Tam Cases.

As this list continues to grow, I believe that we will see more qui tam/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, nursing homes, 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.

We’ve recently written about a couple of whistleblower/qui tam cases stemming from unnecessary procedures. To read a blog on a group of Florida radiation oncology service providers accused of performing unnecessary and improperly supervised procedures, click here. To read a blog on Winter Park Urology’s settlement over allegations stemming from radiation therapy used to treat cancer patients, click here.

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.
To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Comments?

As a health care professional or provider what do you think of the Choosing Wisely campaign? Please leave any thoughtful comments below.

Sources:

Hand, Larry. “AAFP Releases Third Choosing Wisely List.” Medscape. (September 25, 2013). From: http://www.medscape.com/viewarticle/811638

Carman, Diane. “Useless, Costly Medical Procedures Targeted by Choosing Wisely Campaign.” Health Policy Solutions. (October 15, 2013). From: http://www.healthpolicysolutions.org/2013/10/15/useless-costly-medical-procedures-targeted-by-choosing-wisely-campaign/

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.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2012 The Health Law Firm. All rights reserved.