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

William Sullivan, DO, JD


October 27, 2017

In This Article

The Validity of CMS Quality Indicators

CMS has created a Hospital Compare website wherein consumers can review how well hospitals have met certain quality guidelines chosen by CMS. Again, although many of these guidelines are based on sound medical practice, other CMS guidelines have the potential to increase a physician's medical malpractice risk.

For example, in November 2005, a study of 45,852 patients in the COMMIT trial[9] showed that subacute administration of metoprolol in patients with acute myocardial infarction decreased subsequent reinfarction and ventricular fibrillation. However, the same study showed that early metoprolol administration in acute myocardial infarction significantly increased the incidence of cardiogenic shock.

Despite these findings, CMS continued ranking hospitals lower on its Hospital Compare website when hospitals did not follow CMS guidelines to provide beta-blockers on arrival to patients suffering from acute myocardial infarctions. Clinicians were then put in the unenviable position of either prescribing a medication during a timeframe that was proven to cause patients to have worse outcomes or to have their hospitals labeled as providing inferior care if they refused to follow CMS guidelines in prescribing the medication.

Fortunately, CMS retired this quality guideline. However, CMS continues to create additional quality guidelines that also may have negative clinical consequences. For example, the CMS guideline that all pneumonia patients have blood cultures performed before receiving an initial dose of antibiotics may delay administration of antibiotics, significantly increases the cost of care, and seldom has an effect on a patient's outcome. Negative cultures do not exclude a bacterial pneumonia, while positive cultures infrequently change treatment. In addition, CMS Hospital Consumer Assessment of Healthcare Providers and Systems (HCAHPS) guidelines such as those suggesting that a patient's pain should "always" be well controlled will probably only aggravate the current opiate abuse epidemic while subjecting physicians to allegations of low-quality care when a patient's subjective expectations are not met.

Although clinical practice guidelines generally provide a good summary on evaluation and treatment of medical conditions that can decrease a practitioner's liability when followed, not all clinical practice guidelines are appropriate. The potential conflict between clinical practice guidelines or "quality measures" and generally accepted medical care underscores the need to review the research and studies supporting the guidelines, and to compare the guidelines with current literature when deciding whether the guidelines constitute appropriate medical practice— for purposes of both clinical care and malpractice litigation.


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