Why 'Choosing Wisely' Won't Protect You in a Lawsuit

William Sullivan, DO, JD


October 27, 2017

In This Article

How Do Payment Guidelines Affect a Malpractice Case?

Insurance companies, including Medicare and Medicaid, routinely create medical treatment guidelines that are payment oriented. For example, Medicare guidelines require a 3-day hospital admission before Medicare will cover the costs of rehabilitative services. Commercial insurance guidelines often require preapproval before insurance companies will pay for certain procedures. If you order an MRI without obtaining preauthorization, the patient may be forced to pay for the test—if the test is performed at all.

While it's unlikely that such payment guidelines would be used as evidence of wrongdoing in a malpractice trial, other payment-related guidelines can be relevant to medical malpractice cases. If a clinician fails to document two aspects of a patient's past social and family history, a high-complexity visit cannot be billed under Medicare's payment guidelines.

In most cases, failing to document a patient's past family history would be unlikely to increase risk during a medical malpractice case. However, an expert could easily testify that a failure to inquire about a family history of heart disease would have caused a physician to underestimate a chest pain patient's risk of having a heart attack.

Plaintiff attorneys may also try to inappropriately use payment guidelines as proof of medical negligence. Consider, for example, the list of "never events" initially created by the National Quality Forum and later adopted by the Centers for Medicare & Medicaid Services (CMS). The most recent iteration of these "never events" includes serious injuries to mothers or neonates during low-risk labor and delivery, any injuries due to patient falls, development of stage 3 or 4 decubitus ulcers, and perioperative deaths in low-risk patients.[3] Prior iterations of the list classified Clostridium difficile infections and postoperative deep venous thromboses as "never events." While some of the events on the list, such as wrong-site surgeries, should legitimately never occur, under Section 5001(c) of the Deficit Reduction Act, the stated purpose of the list was to reduce healthcare expenditures under the Social Security Act.

During malpractice litigation, a plaintiff attorney could try to assert that violation of payment guidelines constitutes proof of improper care, thereby using payment guidelines to increase a practitioner's malpractice risk. For example, a plaintiff's attorney might allege that because perioperative patient deaths are considered a "never event" by CMS, perioperative patient deaths should "never" occur and a patient's death after surgery therefore constitutes per se negligence. Should this type of argument be raised, defendants and their attorneys should be quick to point out that payment guidelines were created for entirely different purposes than clinical practice guidelines and that payment guidelines were never intended to create a clinical standard of care.

What About Clinical Practice Guidelines?

There are more than 2500 guidelines related to diseases and thousands more guidelines related to treatment of diseases, according to a review of the National Guideline Clearinghouse.[4] Clinical practice guidelines may be used by either party in a medical malpractice lawsuit.

Plaintiffs may try to demonstrate that a physician was negligent for failing to follow a clinical practice guideline, while defendants may use adherence to guidelines as evidence that the standard of care was met. Unfortunately, in some cases, clinical practice guidelines are not based on the strongest evidence, and in other cases, medical technology tends to advance rapidly, potentially making some guidelines inapplicable or even harmful to patients.

It is therefore important to use clinical practice guidelines as outlines of general care that may change based on current medical research, and not as stringent datasets that necessarily define the standard of care. Examples of several types of clinical guidelines and how they may affect a physician's medical malpractice risk are discussed below.


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