ACA to address “ethically unacceptable” overtreatment

Rationing of care is issue

Because overtreatment imposes unnecessary harms upon a patient, it violates the normative rules of beneficence and nonmaleficence that pervade medical ethics, argues Erin Fuse Brown, JD, MPH, assistant professor of Law at Georgia State University College of law in Atlanta and former Visiting Fellow in Ethics and Health Policy with the Lincoln Center for Applied Ethics at Arizona State University’s Sandra Day O’Connor College of Law.

“This is treatment that is more harmful than good, either in terms of medical risks, emotional harms, costs, or all of the above,” says Fuse Brown. “From a utilitarian perspective, even if the incremental risk of harm or cost is fairly small on an individual basis, it adds up to a lot of wasted resources and excess morbidity when measured across the population.”

When limited health care resources are expended on overtreatment, fewer resources are available to provide necessary treatment to others, she explains. If the provider is overtreating in order to practice defensive medicine or to satisfy an uninformed and unreasonable demand by the patient, the provider is elevating his or her own interests in avoiding liability or time-consuming patient education over the patient’s well-being, says Fuse Brown. If the benefits clearly outweigh the risks or costs to the patient, then it is not overtreatment, it is appropriate treatment. “There are almost no reasons to overtreat that can justify the harms to the patient inherent in overtreatment,” she concludes.

Ethical obligation

Unintentional overtreatment that occurs due to the lack of coordination in the health care system, such as duplicative tests, are no less problematic in terms of the harm to the patient and the cost to the system just because it lacks nefarious intent, says Fuse Brown. “Providers have an ethical obligation to coordinate care to eliminate excess and unnecessary treatment,” she underscores.

Overtreatment accounts for as much as 30% of the U.S. health care budget, according to some estimates.1 “With zero expected benefit, there is no justification to expose patients to a risk of harm,” warns Howard Brody, MD, PhD, John P. McGovern Centennial Chair in Family Medicine and director of the Institute for the Medical Humanities at the University of Texas Medical Branch at Galveston.

By 2025, the cost of insuring the average U.S. family will rise to the level of expected income of the average U.S. family, according to a September 2009 report from the Social Security Advisory Board. “We know that the rise in health care costs in the U.S. are unsustainable,” says Brody. “The usual answer is that somehow or other we will need to ‘ration’ care.”

Brody says that to most people, rationing implies that providers are depriving someone of a possibly beneficial treatment because the treatment is expensive. “If any sort of rationing is to be implemented — which is an ethical issue that would require separate discussion — then before any possibly beneficial treatment is denied, it only makes sense first to deny access to all non-beneficial interventions,” he says. “Of course, what’s non-beneficial can be controversial, especially when the whole idea of overtreatment is so new to both physicians and the public.”

Fewer incentives to overtreat

The Patient Protection and Affordable Care Act (PPACA) addresses the problem of overtreatment in a number of ways, says Fuse Brown, as follows:

• The PPACA mandates the development and use of patient decision aids for certain categories of “preference-sensitive care,” in which the medical evidence does not clearly support one treatment over another but instead depends on the preferences and values of the patient, such as certain treatments for early-stage breast cancer.

“The use of decision aids is aimed at reducing unnecessary treatment by presenting current clinical evidence, risks, and benefits in an age- and culturally appropriate manner,” Fuse Brown says.

• The PPACA includes a variety of Medicare payment innovations designed to blunt the financial incentives for overtreatment created by fee-for-service reimbursement, including bundled payments, value-based purchasing, and the formation of accountable care organizations.

• The PPACA provides funding for comparative effectiveness research, which attempts to provide empirical evidence to guide and optimize treatment decisions.

“Comparative effectiveness research may, for example, supply empirical evidence to adopt a treatment protocol that is more effective than a more expensive or invasive alternative,” says Fuse Brown.

Difficult conversations

“Each patient and doctor must decide together which treatment is best for the situation based on guidelines as well as the individual patient’s circumstances and preferences,” says William A. Zoghbi, MD, FACC, president of the American College of Cardiology (ACC) and professor of medicine at The Methodist DeBakey Heart and Vascular Center, both in Houston.

With the many resources now available on the Internet, patients often have treatment options in mind before they even set foot in a doctor’s office. “These treatments may not be medically justified,” says Zoghbi. “In many cases, it may be easier — and even financially beneficial — for the physician to provide the treatment that the patient expects, despite not being necessary.”

This is where it is important for physicians to involve patients in the decision-making process, taking the time to explain that not everything that can be done should be done, that more is not necessarily better, and identifying which specific therapies are most likely to be beneficial, advises Zoghbi. “Conversations about appropriate care can be time-consuming and difficult, especially when patients are influenced by unreliable but ubiquitous outside sources,” he adds.

The “Choosing Wisely” campaign provides reliable information about commonly overused procedures in terms patients can understand, says Zoghbi, and helps start the conversation between the patient and physician.

In 2012, the ACC developed a list of five tests or procedures in cardiology that patients and physicians should question and discuss, to spark discussion about the lack of need for these tests or treatments. “Sorting through all of the evidence surrounding treatments can be a confusing and daunting task for physicians and particularly for patients,” acknowledges Zoghbi.

The Choosing Wisely campaign promotes a shared decision-making approach, as opposed to focusing on administrative rules to deny access, says Brody, with this overall message: “Before you have this intervention, you and your doctor really need to talk about it. Here’s some information that you can use to inform that discussion.” “This maximally respects patients’ rights and physicians’ judgment, while starting us on a pathway to limit harmful, non-beneficial overtreatment,” says Brody.


  1. Reilly BM, Evans AT. Much ado about (doing) nothing. Ann Intern Med. 2009:150:270–271.


  • Howard Brody, MD, PhD, John P. McGovern Centennial Chair in Family Medicine/Director, Institute for the Medical Humanities, University of Texas Medical Branch at Galveston. Phone: (409) 772-9386. E-mail:
  • Erin Fuse Brown, JD, Assistant Professor of Law, Georgia State University College of Law, Atlanta, GA. Phone: (404) 413-9180. E-mail:
  • William A. Zoghbi, MD, FACC, President, American College of Cardiology, Houston, TX. Phone: (713) 441-4342. E-mail: