Sometimes medical errors occur because an unnecessary test or procedure is suggested to an unwitting patient. This is such an extremely common problem that the American Board of Internal Medicine started an initiative called “Choosing Wisely” to identify specific areas of overutilization in various specialties of medicine. You can read more here: http://www.choosingwisely.org/doctor-patient-lists/.
Under Ohio law, overuse of tests and procedures can form the basis of a medical malpractice claim if the test or procedure results in serious harm or wrongful death. Physician groups often assert that a proliferation of medical negligence lawsuits has led them to practice “defensive medicine.” In this argument, defensive medicine means that the physician ordered tests or procedures that were unneeded but ordered to avoid even the remotest possibility of a lawsuit.
I am not buying this argument for several reasons. First, doctors and hospitals profit off of tests. Indeed, many physicians make their living as diagnosticians. Thus, they are driven by financial considerations, not fear of lawsuits, to order unnecessary tests. Second, the number of medical negligence lawsuits has steadily declined in recent years. The enactment of unneeded tort reform legislation to protect wrongdoers and the rising costs of litigation mean that many injured patients cannot afford to bring a medical malpractice claim even in the face of obvious medical errors. Fourth, medical practice guidelines establish when a particular test or procedure is necessary. None of these recommendations are based on the need to “cover yourself.” Finally, in situations where a test or procedure is available but would provide limited useful diagnostic assistance, the physician owes a duty to discuss the pros and cons of the procedure with the patient, along with viable options. This process, known as informed consent, should include the risks of the procedure and the purpose for doing it. If there are no good reasons for it and it carries a risk of injury, the patient is allowed to decline the test or procedure. The physician would simply document the refusal and then be covered against a lawsuit arising out of the failure to perform the test or procedure.
The “Choosing Wisely” campaign reflects that many physicians are ordering unnecessary tests and procedures for no other reason than ignorance or greed. Either way, their patient is put at unnecessary risk when this is done. We have handled cases arising out of unnecessary and dangerous procedures, including cardiac stenting and ablation for atrial fibrillation. The link to the “Choosing Wisely” website lists many other commonly overused tests and procedures.
