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

William Sullivan, DO, JD

Disclosures

October 27, 2017

In This Article

Choosing Wisely Can Both Help and Harm

The Choosing Wisely® initiative is one example of clinical practice guidelines that have the potential to both help and harm physicians accused of medical malpractice. The Choosing Wisely campaign was created by the ABIM Foundation to challenge medical specialty organizations to create a list of tests or procedures that can be used to "spark discussion" between patients and physicians regarding the utility of the tests.

In determining whether Choosing Wisely guidelines will protect physicians from a medical malpractice lawsuit, the basis for the guidelines and the research behind the guidelines need to be considered. Some Choosing Wisely guidelines are straightforward and appropriate. For example, the American Academy of Orthopaedic Surgeons recommends that patients with osteoarthritis of the knee stop taking glucosamine and chondroitin. There is simply no reliable evidence that these supplements improve symptoms in patients with osteoarthritis of the knee.

However, many other Choosing Wisely guidelines subject practitioners to a low but significant risk of missing serious diseases if the guidelines are followed. Consider, for example, the American College of Physicians (ACP) recommendation to avoid imaging in patients with nonspecific low back pain. This recommendation was based on a joint clinical practice guideline from the ACP and the American Pain Society that had only moderate-quality evidence.

While a vast majority of patients with nonspecific back pain will have no serious cause for their symptoms, about 130,000 of the 19 million outpatient visits for back pain each year will have symptoms caused by cancer; about 1900 back pain visits will be due to a spinal infection, and about 7600 back pain visits will be caused by cauda equina syndrome. Many of the patients with each of these dangerous conditions will present with "nonspecific" back pain; a recommendation not to perform imaging that goes against a physician's clinical judgment under such circumstances could prove catastrophic to patients.

Similarly, the American College of Radiology's Choosing Wisely recommendation not to perform CT scanning on patients with low pretest probability of pulmonary embolism will result in missing between 0.1% and 4.8% of pulmonary emboli. Up to one third of patients with missed pulmonary emboli will die from their condition.

On one hand it may provide some protection from malpractice risk if a defendant physician is able to show that the utility of a test was questioned under the Choosing Wisely initiative. However, when a diagnosis is missed because a physician chose to follow a Choosing Wisely guideline, there are multiple arguments that a plaintiff's expert could use to counter the defendant physician's assertions.

Perhaps the patient's symptoms did not fit entirely within the guideline's vague parameters (eg, the back pain was not "uncomplicated" or the patient was not "low-risk" for pulmonary embolism). Perhaps the guideline itself was based on less than adequate evidence or on studies that have since been disproven. Or perhaps the expert could show that the intent of Choosing Wisely guidelines was to encourage discussion between physicians and patients rather than to completely recommend against testing.

The disclaimers contained in Choosing Wisely guidelines, such as "use of this report is at your own risk" and "the ABIM Foundation ... [is] not liable for any loss, injury, or other damage related to your use of this report," also seem to show the ABIM Foundation's acknowledgement that the guidelines in its own initiative will not insulate practitioners from liability when a diagnosis is missed.

Choosing Wisely guidelines could also increase malpractice risk for physicians under certain circumstances. Suppose, for example, that a patient has an anaphylactic reaction to intravenous contrast during a CT scan and suffers an adverse outcome. A Choosing Wisely guideline advising against performing a CT scan for the patient's symptoms or diagnoses could provide a compelling argument that it was negligent to perform the test which caused the patient's adverse outcome.

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