Malpractice Risks Rise With New Pressure on Doctors to Undertreat

Lee J. Johnson, Esq.; Frank J. Weinstock, MD

Disclosures

August 04, 2011

In This Article

Valid Reasons for Overtreatment?

Certainly, reduction of much expensive and unnecessary treatment would be advantageous to Medicare and to our economy as a whole.

Defensive medicine is a reality to all doctors. There is the fear that if a test is not ordered or a treatment not offered there could be liability down the line if a patient gets sicker. The safer and more expensive course is to order all tests and treatment so that if a patient does get sick, the doctor will be able to show that he did everything possible.

In fields such as emergency or urgent care medicine, where the exam is usually limited to 1 visit, doctors may order many tests.

Also, patients often have expectations that include pressure to test, test, test. There is an expectation that patients will receive a prescription or a treatment for every complaint. Physicians must talk with patients and develop a good rapport so that the patients may accept less testing when it may not be indicated or if it is potentially dangerous.

Does the Standard of Care Help or Hinder Doctors?

The standard of care is a moving target. It is possible that new initiatives may influence the standard as it will be interpreted in the future. The doctor is held to the standard of a reasonable physician in his specialty at the time of the treatment. And the reasonable physician is usually deemed to be what other physicians in the locale or in the country are doing.

The standard changes through time. For example, with the HIV epidemic, the testing of blood became the standard of care. Today we have much more technology and a much greater availability of clinical information, which have raised the standard of care to new levels of testing and treatment.

If there are financial incentives or studies showing the limitations or harmfulness of some tests and treatments, it's possible that the standard may change. In the field of oncology, for example, studies have shown that certain tests do not reduce the mortality rates and others may have side effects that outweigh the benefits.

To determine whether the standard of care is met, judges and juries look to accepted practice standards of physicians in the relevant specialty. The law says you must meet a minimum standard of care regardless of the patient's coverage or ability to pay. If you undertake to treat someone, you must act with the same level of diligence as other physicians in similar situations. If you don't, you'll breach your duty to your patient and may be held liable for any injury resulting from your dereliction.

A legal and societal evaluation of the standard of care can be adjusted. It need not require every expensive test or treatment for every single diagnosis for each and every patient without careful consideration.

Informed Refusal

When there are financial incentives to keep costs down and to reduce unnecessary treatment, doctors should use the concept of informed refusal. If the doctor gives the patient a real option to refuse the proposed treatment, many patients will do just that. If the doctor is completely honest about the chances of success and the side effects/risks involved, the patient may forego the treatment of his own accord. Costs will have been cut and the physician would not have increased his liability exposure.

Mentally sound adults have the right to refuse any treatment as long as it's an "informed refusal." Make sure that you tell patients of the risks, benefits, and alternatives to a proposed treatment or procedure, including the option of no treatment. Document the conversation. If the patient still refuses the treatment or is otherwise noncompliant, ask her to sign a "refusal of consent" form.

MCOs and ACOs may make doctors feel they're no longer in charge of treatment decisions, but they are still accountable for errors, including over- or underutilization of diagnostic tests and procedures.

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