Medicolegal Sidebar: Unnecessary Medical Care and Physician Liability

Introduction

Whether commonly prescribed medical interventions are truly beneficial and medically necessary has long been recognized as a medicolegal concern [1, 2, 7, 16]. In 1953, the Executive Director of the American College of Surgeons, Paul Hawley MD, commented that the public would be outraged if it knew the amount of unnecessary surgery that was performed [16]. In 1976, the American Medical Association called for congressional hearings to address a report that cited 11,900 patient deaths from unnecessary surgery done during 1974 [7].

Today, well-designed clinical trials can identify procedures that do not offer any benefit. But data alone may not change long-held clinical practices. Studies have shown no long-term benefit of surgery for low-back pain when compared to nonsurgical treatment [15], yet spinal decompression and fusion operations for chronic low back pain continue to be performed at high rates in the United States [3]. Similarly, studies have also shown that knee arthroscopic surgery for degenerative meniscal tears has no advantage over sham surgery [14], but arthroscopic meniscectomy is commonly performed across the United States [11].

In a previous column [2], we discussed how medically unnecessary procedures, when performed deliberately for monetary gain, may be construed as criminal activity. In this column, we address the reasons that drive unnecessary treatments, potential sources of civil liability from such treatments, and what physicians can do to reduce medically unnecessary procedures.

Doing Nothing Is Hard To Do

In an interview with USA Today, Lucian Leape MD, Adjunct Professor of Health Policy at the Harvard School of Public Health, noted that medical overtreatment is driven primarily by financial incentives [5]. Fee-for-service payments, for example, incentivize hospitals and doctors to do more, which may include unnecessary medical interventions. And patients are more than willing to undergo additional testing if it adds to their peace of mind. The culture of surgical training itself, and the personality types of surgeons, may also nudge young surgeons toward choosing surgical care over nonsurgical interventions [10].

But doesn’t the physician have an obligation to step in when he or she believes a requested procedure yields little or no value for the patient? Atul Gawande MD, MPH, Professor of Health Policy and Management at the Harvard School of Public Health admitted that “it is difficult to do nothing” [8]. In older patients with prostate carcinoma for example, surgery carries risks that probably outweigh any benefits, since most patients will die with the disease rather than from it. Even so, with better screening to identify prostate carcinoma earlier, some patients may pressure surgeons to intervene.

The practice of defensive medicine contributes to excessive testing, which physicians believe may discourage medical malpractice lawsuits. A 2012 study showed that more than 96% of orthopaedic surgeons reported performing medical interventions out of a concern for medical liability, leading to an estimated USD 2 billion in annual costs [13]. In 2007, economist David M. Cutler said that “most estimates suggest that about 20% to 30% of medical spending could be eliminated with no adverse effects on patient outcomes” [6]. In 2010, the Institute of Medicine reported that 30% of all U.S. healthcare spending, or about USD 765 billion a year, was not necessary [9]. Excessive healthcare spending is likely to continue as long as physician worries about medical liability lead to the ordering of additional tests to avoid a missed diagnosis or lead to interventions in hopes of avoiding poor outcomes.

Liability Risk From Overtreatment

In medical malpractice lawsuits, the plaintiffs must show that the physician violated the standard of care. Since medical practices vary across physicians and geographic regions, the lack of medical necessity is an attractive, alternative theory for plaintiffs who cannot otherwise show a standard of care violation. This area of jurisprudence is undeveloped, with courts generally relying on competing expert witness testimony to identify the lack of medical necessity. Unnecessary surgery was the main allegation, for example, in Lee v Brain and Spine Specialists, P.A., where a Maryland plaintiff underwent a four-level cervical fusion after a motor vehicle accident. Radiographs and MRI were negative except for a small herniated disc. When esophageal injury and vocal cord paralysis occurred from improper retractor placement, which are known complications of cervical surgery, the plaintiff alleged that the operation should never have been done in the first place [12].

In 2012, Louisiana cardiologist Dr. Mehmood Patel was criminally charged and convicted of performing unnecessary coronary stent placement and balloon angioplasty procedures [18]. From 1999 to 2003, Dr. Patel had been the highest-billing interventional cardiologist in Louisiana. Similarly, in United States v McLean [17], a busy cardiologist was convicted of fraud; he had placed coronary stents in vessels with only 50% blockages. Government experts convinced the jury that without at least a 70% coronary blockage, coronary stenting was medically unnecessary. In 2015, an Indiana family filed a lawsuit against a now-deceased orthopaedic surgeon, alleging unnecessary performance of a distal clavicle resection on their 16-year old wrestler son; a medical review panel consisting of three orthopaedic surgeons agreed that the operation was not necessary, and the jury returned a verdict in favor of the injured patient [19].

The above convictions leave unanswered questions for physicians who are concerned about unnecessary treatments. In patients with stable angina, medication alone may be equally effective to coronary stents, even with 70% coronary blockage. Since expert testimony did not address stable versus unstable angina, it is possible that the government’s own experts were also sometimes placing unnecessary stents. If the McLean threshold for 70% coronary blockage constitutes medical necessity, is stent placement in a 69% blocked coronary vessel always unnecessary? Can technology reliably distinguish between 69% versus 70% coronary occlusion? In the above example of the distal clavicle resection, would most reasonable orthopaedic surgeons not advise a patient to either live with pain, or have an elective operation that could return a patient to sports, as the defendant orthopaedic surgeons claims to have done? As these examples show, in some conditions, few, if any, bright lines exist to guide clinicians between necessary versus unnecessary treatments.

Analysis

In economic transactions, if the seller has superior information, the buyer is usually disadvantaged. In physician-patient interactions, the physician has vastly superior medical knowledge; this information asymmetry may itself contribute to excessive treatment. In other words, since physicians are financially incentivized to perform more surgery and tests, they may be motivated to overstate the benefits of certain tests and procedures, while understating their risks when communicating with their patients. Patients in turn may accept this information as authoritative and proceed with a test or intervention as advised by their physicians, when the driving motive may be financial gain, rather than meaningful patient benefit.

Instead of acting as a defensive shield, data suggest that medical overtreatments may increase professional risk. A 2013 study of the National Practitioner Data Bank showed that more than 1000 physicians had made monetary settlements in malpractice claims involving unnecessary or inappropriate surgical procedures since 2005 [5]. We believe that case law will eventually evolve to recognize and compensate patients for damages related to overtreatment. Also, in time, informed-consent law likely will come to require a more-thorough discussion of the relative benefits and attendant risks of procedures, in order to balance the inherent information asymmetry in the physician-patient relationship.

Discussion

Shared decision-making, a patient-centered practice model in which clinicians and patients share available clinical evidence and the patient is encouraged to consider all options toward independent decision-making, may be effective in reducing the incidence of unnecessary medical care. While supported by the medical community, the application of shared decision-making may be limited by the time pressures of medical practice [16]. For example, in a study of patient-physician encounters related to lung cancer, investigators found that a discussion of the risks and harms of screening procedures for lung cancer, while highly relevant, was virtually nonexistent [4]. Shared-decision making could work to reduce unnecessary medical treatments if physicians are forthright about treatments that may be available as an option, but in fact have limited to no value for the patient, regardless of whether the physician has other incentives to prescribe the treatment. If time is limited, educational resources could help patients distinguish between treatments that add value, versus those that add only costs and risks.

Medical overtreatments are an unresolved concern in our society and contribute to patient injury and increased costs. The law evolves in response to changing societal values and concerns. As society increases its focus on medical procedures and tests that add no value, the legal landscape related to medical necessity will change accordingly. Excess medical testing and treatments may be driven by a legitimate concern on the part of physicians to shield themselves against the risk of litigation. There are few, if any restraints against routine overtesting and overtreating arising from such liability concerns. As the examples from case law show, physician liability from medically unnecessary treatments usually arises when financial incentives and greed overwhelm concerns for patient welfare and ethical standards. In reality, most physicians focus on doing what is best for their patients. An honest disclosure of the true value, or lack thereof pertaining to a test or procedure will help patients make rational treatment decisions. Tools such as shared decision-making and the informed consent process can drive evidence-based patient choices that are economically and medically appropriate.