Fear of lawsuits driving unnecessary diagnostic tests

An overwhelming majority of emergency physicians believe their department runs too many diagnostic tests on patients. Nearly all of the doctors (97%) responding to a national survey published online in Academic Emergency Medicine last month acknowledged ordering advanced imaging that was not medically necessary.

The problem goes well beyond the computed tomography (CT) or magnetic resonance imaging (MRI) that was at the heart of the survey. 85% of the respondents said generally that their department runs too many diagnostic procedures. These procedures can range from blood and urine testing to scans. The survey respondents primarily blamed the extra tests on concerns over malpractice lawsuits and the fear of missing a low probability diagnosis.

Based on these survey results, it wouldn’t surprise me if we start to see some whistleblowers from the emergency room come forward. The False Claims Act is the primary tool for the government to target physicians and hospitals billing for procedures and tests that are not medically necessary. Because Medicare only reimburses health care providers for conduct that is reasonable and necessary, providers that are not intentionally ordering medically unnecessary tests are violating the law and subject to treble damages. A whistleblower that reports Medicare fraud can earn a reward of between 15 and 30 percent of the U.S. Government’s recovery.

In the past, there have been a couple qui tam lawsuits related to practices in the emergency room. The allegations in these lawsuits have involved the unnecessary admission of patients to the hospital and overbilling by the improper coding of the services rendered.

The abstract of the survey is available online.  Emergency room physicians or nurses who wish to discuss filing a qui tam lawsuit should discuss their evidence with one of our False Claims Act lawyers.

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