Unwanted Medical Treatment Triggers Millions in Sanctions

I have written about recent large verdicts and settlements in cases where clinicians resuscitated an incapacitated patient contrary to her advance directive, POLST, and/or agent's directions. These are clear cases of unwanted medical treatment. The patient has literally and specifically said "do NOT do that." But clinicians administered the rejected treatment anyway.

But these wrongful prolongation of life cases are only one species of unwanted medical treatment. Even when patients sign a consent form authorizing the treatment, it can still be unwanted when the patient did not understand what she was signing. A particularly clear example comes from a case, last week, in Michigan.

Cardiologist Dinesh Shah ordered various tests without regard to medical necessity. Obviously, the patients would not have agreed to undergo these tests if they knew the tests had no diagnostic value. “Subjecting patients to unnecessary testing in order to fill one’s pockets with taxpayer funds will not be tolerated. Such practices are particularly concerning because overuse of some tests can be harmful to patients,” said Acting Eastern District of Michigan U.S. Attorney Saima Mohsin.

Shah paid $2 million to settle the qui tam False Claims Act case brought by former employees. He also entered a 3-year corporate integrity agreement with the Office of Inspector General for the United States Department of Health and Human Services.

Unfortunately, the False Claims Act is used only in cases where there was no clinical indication for the procedure or test. It was not warranted by the patient's condition from a purely clinical perspective. But suppose there were some clinical basis for offering the test or procedure. If the patient does not want that procedure, it is just as "medically unnecessary."

So much of medicine is preference sensitive, meaning there is no "correct" option. These decisions are value laden and are for the patient to make. If the patient rejects (or would reject with an accurate and balanced presentation of options), then that treatment is not the right option for that patient. Providing it is wrong. And billing for it is fraud.