Medical Malpractice Risks When Undertreating and Overtreating

Doctors are facing a catch 22, that in my view will result in greater medical malpractice risk for a practicing physician.  With medical costs skyrocketing, managed care struggling, and legislative pressures to effect price controls, doctors are now required to make cost a primary factor in their decision making processes when evaluating and treating patients.

Overtreatment may be bad for healthcare costs, but doctors are now moving too far in the other direction--undertreatment. Managed care organizations (MCOs), accountable care organizations (ACOs), and other new payment forms designed to lower costs are regularly exerting pressure on doctors to avoid various tests and procedures. Government, hospital, or insurance companies have developed systems that now monitor the physician's practice, and now "pressure" physicians to do less costly testing and fewer treatments and procedures.

However, this has created a situation where the physician is faced with increased iability if a diagnosis is missed.  Moreover, the patient is put at risk as well.  The danger to the patient is in missing the diagnosis or in failing to offer the best treatment. And of course, the physician can be sued for malpractice for failure to diagnose or treat properly. Doctors are held to the standard of care of the reasonable physician in his specialty at the time of the treatment regardless of financial demand by third party payers, MCOs, or the newly proposed ACOs.

An ACO is a network of doctors and hospitals sharing responsibility for providing care to patients. In the new federal healthcare law, an ACO would agree to manage all of the healthcare needs of a minimum of 5000 Medicare beneficiaries for at least 3 years.

ACOs will create additional administrative costs and will probably reduce physician reimbursement. But for physicians, these organizations have not carefully considered the increased malpractice liability that comes when physicians are asked to limit expenditures for tests and treatments of ACO patients. The key question is how can doctors deliver the same standard of care under these pressures to underevaluate and undertreat, and at the same time gain protection from medical malpractice exposure?  Presently,the physician remains responsible and liable for their patients' care.

Physicians and their advocacy organizations have been relatively quiet about this matter; probably because the proposed ACO model which is due to start in January 2012 offers doctors and hospitals financial incentives to provide good quality care to Medicare beneficiaries while keeping down costs. It appears that healthcare providers would get paid more for keeping their patients healthy and out of the hospital.  And this would be in addition to fee for service reimbursements.  In this ACO model, hospitals would be held accountable not only for the cost of the care they provide but also for the cost of services performed by doctors and other healthcare providers in the 90 days after discharge.

So, now that there is a financial incentive to do less for patients, the prime concern with undertreatment is that a diagnosis with its subsequent complications would be missed. Consider these simple examples:

1. A 62 year old patient presents to an ACO emergency physician complaining of a headache. She performs a physical exam, but orders no lab tests or imaging studies even though she knows that the patient could possibly have a serious condition. Nothing significant is found on physical exam, and the patient is treated symptomatically with a mild analgesic.

She returns several days later still complaining of headache. Further testing now reveals dysequilibrium and episodes of dizziness. However, the ACO gatekeeping manual still says that testing is not yet warranted.  No brain CT scan or MRI is performed, causing a further delay in this patient's evaluation.  This pressure by the ACO to minimize testing in order to keep expenses down has caused a delay in diagnosis and referral to a specialist. Two days later, the patient has a full blown stroke, and is now a quadriplegic, and in a vegetative state.

Taking the decision away from the trained physician to order a CT scan or an MRI resulted in a horrific outcome that was completely preventable.  The physician delivered poor care, that care was orchestrated by the ACO, the costs associated with a poor patient outcome completely dwarf the original cost savings, the patient suffers damage, and the hospital and physician are sued for millions. 

2. A 48 year old business executive presents to his ACO physician for an evaluation of abdominal pain which began the day before. Nothing specific is found but the physician has a gut feeling that something else may be occurring, and believes that imaging should be done.  He also would like to refer the patient to a general surgeon for a consultation.  However, the ACO puts limitations on this physicians ability to do what he think is correct. By conforming to the rules and regulations of the ACO, he misses a rupturing abdominal aneurysmand the patient dies.  The family sues the physician.

3. Another patient comes to an ER with chest pain, but a heart attack is not diagnosed. The patient is admitted for probably cardiac ischemia but the ACO prevents the cardiologist from performing a stress test or angiography on a timely basis, and the patient subsequently has a full myocardial infarction, from which he never recovers.  The family sues the hospital and physician.

Is the converse true?  Is it dangerous to overdiagnose or overtreat?  Consider the following:  a patient could develop a reaction to an unnecessary antibiotic ranging from a simple rash to a fatality; ordering CT scans and other radiologic exams carries the real risk of exposure to radiation, especially in younger children; invasive procedure such as a biopsy or surgical procedure may have complications including infection, bleeding and even death.  But the bottom line is that good medical practice requires judgment.  Only a trained physician has the judgment necessary to make decisions for the patient.  And because bad outcomes still occur even with correct judgment, a certain amount of bad outcome is expected as a consequence of normal medical practice. 

And what about standards of care?  The standard of care is a moving target; it changes over time. 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.  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 carefully scrutinized and if necessary, adjusted. It need not require every expensive test or treatment for every single diagnosis for each and every patient without careful consideration.

One way to guard against increased medical malpractice liability in the face of pressures to keep costs down is for physicians to employthe concept of informed refusal. If the doctor gives the patient a real option to refuse the proposed diagnostic evaluation and treatment, and carefully documents it, many patients will do just that. If the doctor is straightforward about the chances of success and the side effects/risks/benefits/and alternatives involved, the patient may choose to forego the treatment of his own accord. Costs will have been cut and the physician would not have increased his liability exposure.

Copyright © 2020 - & Dr. Barry Gustin