- Civil Disobedience:The Devil Is in the Details
To the Editor:
Robert Macauley's article, "The Hippocratic Underground: Civil Disobedience and Health Care Reform" (HCR, Jan-Feb 2005), is thoughtful, but unfortunately doesn't withstand scrutiny. His three preconditions for civil disobedience to achieve universal health care (genuine injustice, exhaustion of legal channels, and a reasonable prospect of success) need a fourth: it won't cause unacceptable harms. His remedy—billing uninsured patients' care to the accounts of willing Medicare/Medicaid patients—harbors many hazards.
How will Dr. Smith choose which uninsured patient ("Jones") to assign to which insured patient ("Brown")? Should she just tell Brown "I'm putting an AIDS patient on your account"? Will she explain the consequences of having a given illness on his record? Macauley worries that Brown might later be denied coverage because of preexisting conditions he doesn't have. Probably not an issue. With few exceptions, Medicare/Medicaid qualification is by age or income, not health status. Brown's real harm could be losing his job if he suddenly "has" epilepsy.
Both patients could be harmed myriad ways. When Jones enters the hospital and bills are submitted under Brown's name, the supporting medical documentation must be in Brown's chart. Once it is, both patients could be harmed by being given the wrong medications or being denied necessary interventions based on the other's medical history. Similarly, many people with chronic illnesses have medications mailed monthly. As Jones' meds are sent to Brown (Jones' "address" is now Brown's home), Brown, inadvertently thinking they are his, may use them and be harmed. Or he may delay forwarding them to Jones.
Jones' information in Brown's charts raises privacy issues. If Brown reads his own record, as entitled by HIPAA, he will learn private information about Jones. He could use this against Jones—a little blackmail over STDs, perhaps?
Also, it may be impossible to pull off the ruse. Macauley envisions utilization reviewers poring over mountains of paper charts, having "no way of knowing if a given charge . . . was provided to him or not," ultimately throwing their hands up and relying "only on patient recall." Not likely. Electronic claims submission is mandatory for Medicare and imminent throughout the health care industry. Medical records supporting those claims are likewise increasingly electronic. Hence, we can reasonably expect fraud-detecting software. When Brown files a claim for his mammogram, or suddenly turns from Caucasian to Asian and back, the feds just might smell a rat.
As Macauley implies, both Smith and Brown are committing insurance fraud (U.S. v. Milligan, 17 F.3d 177 [6th Cir. 1994]). Smith may be filing the claims, but Brown is actually making them, so both can be found guilty of felonies. Additionally, providers and patients can be removed from Medicare/Medicaid. As civilly disobedient physicians are dropped from provider rosters, fewer people will have access to care. Particularly for Medicaid, reimbursement rates are so low in some places that it is difficult for insured patients to find any provider willing to take them. As physicians disappear from provider panels, these patients' difficulty will increase. When patients lose insurance after being caught abusing it, the number of uninsured will increase.
The devil is in the details.
E. Haavi Morreim
University of Tennessee
To the Editor:
Robert Macauley has provided an important addition to the small but growing literature on professional civil disobedience. Unfortunately, several practical issues would likely preclude action along the lines he suggests. Ultimately these are quibbles, however. I agree that organized professional groups taking civil disobedient action is within the realm of possibility. Indeed, coordinated physician actions that border on civil disobedience are already occurring, as the author notes, so the time is ripe for discussion of what sorts of substantive and procedural standards should exist to justify such action.
While most Hastings Center Report readers are probably convinced that health care is (or should be) a right, some might argue that this right is very limited and perhaps is already met through existing mechanisms. Like Macauley, I believe this contention is wrong, but that is not the point...