Overtreatment and Informed Consent: A Fraud-Based Solution to Unwanted and Unnecessary Care

According to multiple accounts, the administration of American health care results in as much as $800 billion in wasted spending due largely to the provision of overly expensive, inefficient, and unnecessary services. Beyond inflicting fiscal pain on the nation’s pocketbook, this waste has no clinical benefit — and often results in unnecessary hospital stays, cascading follow-up procedures, and time-wasting inconvenience for American patients. But aside from the mere annoyance of unnecessary care, the administration of overtreatment — that is, unnecessary care in and of itself — causes harm to the patient. Excessive care is deficient care. Unnecessary care risks potential medical error and infection, and often subjects the patient to excessive recovery and rehabilitation. In addition to the fiscal reasons, it is not a stretch to observe that it makes little or no sense for American patients to desire unnecessary care. But yet, as a general matter, today’s modern and patient-protective legal and bioethical framework governing American health care purportedly forcefully protects patients from undesirable care by requiring their informed consent before any procedure or service. The importance of informed consent is well settled, and it is recognized as a sacred value in American health care. In law and bioethics, this value is so sanctified that in cases where providers fail to achieve informed consent, legal recourse is available for the wronged patient. The prevalence of overtreatment, when juxtaposed with the sanctity of informed consent, is a perplexing legal and policy-based problem. Specifically, this disconnect that results — between the robust protection of informed consent and patient autonomy on one hand, and the nagging problem of undesirable and harmful overtreatment on the other — calls out for a reasoned legal resolution. While overtreatment plagues American health care, the legal academy has yet to creatively and sufficiently examine the role that the doctrine of informed consent, when coupled with the enforcement tools employed by the Department of Justice, could play in reining in unnecessary care. This Article fills that gap. By suggesting a path forward that bolsters the legal force of informed consent to provide a patient-centered “backstop” to prevent unnecessary procedures in American health care, this Article argues that a stronger version of informed consent must contain the answer to the intractable problem of overtreatment. Building on previous scholarship that sought to impose different legal and policy-based controls on providers to prevent overtreatment, this piece shifts the focus to the other side of the hospital bed, making clear that viable legal tools are available to the federal government and can be employed to protect patients from undesirable care. The patient’s protections can be expanded in an effort to limit the injurious effects of American overtreatment