Further Observations On Lying Doctors

DrRich | March 1st, 2011 - 8:26 am

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In his last post, DrRich analyzed whether the young Wisconsin doctors who stood out on street corners proudly offering fake “sick excuses” to protesting teachers were engaging in an act of civil disobedience. DrRich respectfully kept an open mind on this question, but after careful deliberation concluded that it is very unlikely that their actions constituted classic civil disobedience as espoused by Thoreau or Gandhi.

Instead, these doctors were, in a professional capacity, lying. They did not lie in any truly malicious way, however. They lied because they have been trained to believe in a higher cause than mere professional ethics, namely, the cause of social justice. They lied in full confidence that telling lies to advance such a noble cause is a natural duty of the medical profession. They never expected to be criticized for it (except perhaps by Rush Limbaugh and sundry teabaggers and the like), and they almost certainly will be stunned into indignant incoherence if they end up actually receiving the full punishments their actions allow.

But what really interests DrRich is the near-perfect silence we have seen from the mainstream news media regarding this sad episode. While it’s easy to find stories about the phony sick excuses all over Fox News and conservative websites, major outlets like the New York Times, Washington Post, CNN, CBS and NBC – sources one might expect to express at least some sympathy for these doctors and their work to advance a just cause – have reported next to nothing about it. When a left-leaning mainstream outlet does report on the episode (for instance, this article appearing in the Atlantic), rather than expressing any support for the Wisconsin doctors, they express at least mild dismay. It seems plain to DrRich that the mainstream media wish the whole thing hadn’t happened, and that perhaps their silence might help it go away as soon as possible.

So here we’ve got a small cadre of youthful and idealistic physicians, behaving in a manner entirely consistent with what they’ve just learned during their medical training, and not only are they facing formal investigations and potential punishment, but also the very people and organizations whom they were surely counting on for support have retreated into an embarrassed silence, or worse, criticism.

What gives?

What gives, DrRich thinks, is the great discomfort being experienced by left-leaning people and organizations by such a blatant, public display of the New Medical Ethics and its ultimate implications. That is, while they don’t actually object to the fact that the doctors were committing professional fraud for the advancement of what passes for social justice, they wish they hadn’t done it out in the open.  Calling attention to the fact that doctors will lie so readily might cause folks to want to take a closer look.

And since lying doctors are part of the plan, such scrutiny might turn out to be inconvenient. You see, Dear Reader, whether the payer is a private insurance company or the Feds, a principle mechanism of healthcare cost-cutting is to coerce the doctors to ration healthcare at the bedside. As a result, many more times per day than one would care to think, doctors are being placed into the unfortunate position of deciding, not whether to lie, but to whom to lie. Do they lie to the insurance companies and Medicare (in order to give one of their patients a needed medical service which, according to insurance company rules or government “guidelines,” they may not have)? Or instead, do they lie to the patient (usually committing a lie of omission, in which they fail to tell patients about some needed and available but forbidden medical service)?

The answer is – both. DrRich, as usual, backs up his outlandish generalizations with data:

Item 1: In a survey conducted by the American Medical Association’s Institute for Ethics, published in the April 12, 2000, issue of the Journal of the American Medical Association, 39% of American doctors admitted that they sometimes or very often manipulated reports to their patients’ health plans so their patients might gain coverage for needed medical care. These manipulations included exaggerating the severity of the patients’ condition, changing the billing diagnosis, or reporting symptoms the patient did not have. And 72% admitted using one of these tactics at least once in the past year. More than a quarter said that gaming the system was necessary in order to provide high quality care to their patients, and 15% asserted that it was ethical.

This survey elicited a deluge of criticism against the cheating doctors. Ethicists called for doctors to stop applying “insular” ethical norms and to begin using the norms that professional ethicists have long established against lying to health plans (which are busily engaged in covert rationing). Similarly, the AMA and the American College of Physicians have published strongly worded statements opposing the manipulation of reimbursement rules. And the federal government has made such “misstatements” to health plans a federal crime, punishable by huge fines, jail terms, and loss of license.

That doctors continue to do this anyway, DrRich has heard some physicians express, reflects that many physicians consider lying to a health plan to be a sin on par with the sin of lying to the SS when they knock on the door to ask if you are hiding a family of Jews in the attic.

Item 2: Another survey, published in the July/August, 2003, issue of Health Affairs, reported that nearly 33% of American doctors admit that they routinely withhold from their patients pertinent information about optimal medical treatments, because they suspect the patients’ health plans won’t cover those treatments. In response to this survey, the American Association of Health Plans, the group representing the very organizations that were pulling out all the stops to make sure that doctors do exactly what this study confirms they are doing, expressed shock at these results, and told the AMA News at the time that AAHP officials “actually find it difficult to believe that that’s going on.” (They found it difficult, no doubt, because they observed just how rapidly spending was still accelerating.) Meanwhile, the authors of the study could only conclude (with seeming surprise) that doctors are “rationing by omission” on their own volition.

These two surveys reveal some of the confusion and frustration being felt by doctors as a result of coercion to withhold medical services, and the guidance they’re getting from their professional organizations as to what to do about those rules. How are they to square those rules and that guidance with their time-honored obligation to always do what’s best for their patients?

So what’s a doctor to do when a patient needs a treatment but they know the health plan won’t pay for it? There are only three choices:

1) Tell the health plan whatever you must in order to get the needed treatment for the patient.
2) Don’t tell the patient about the treatment since they can’t have it anyway.
3) Tell the patient about the treatment they need, and then tell them they can’t have it.

The most truthful thing would be to choose Door Number 3. After all, a patient has a right to know what medical treatment he needs, whether or not he’s allowed to have it. Informing a patient that his insurance won’t pay for the needed treatment gives him useful information. It lets him know that his health plan is not adequate to his needs and gives him an opportunity to respond appropriately to that information. For instance, a patient might appeal to the health plan directly, seek intervention by his local Congressperson, or ask his employer (who is the health plan’s true customer), to intervene on his behalf. He can even raise the funds to pay for the therapy himself (and if he is not a Medicare patient perhaps it will be legal for him to purchase it).

What patients actually do when doctors choose Door Number 3, however, is to beg, demand, threaten, implore, and plead for the doctor to do something to fix things, since after all, it is the doctor who started the problem in the first place by insisting that this forbidden therapy is the only one that will do. So, the moment doctors choose Door 3, they are placed under incredible pressure to go back and choose again – Door Number 1, their patients are communicating to them, is actually the correct choice. This, plus wanting to avoid all the anguish and drama that follows telling the truth, leads doctors who are inclined to lie to health plans (and thus risk angering the entities that determine their ability to make a living, not to mention committing a federal crime), to choose Door Number 1 in the first place. If doctors are not inclined to risk their livelihoods and freedom by deceiving health plans, they will probably simply default to Door Number 2 – rationing by omission.

The above two items reflect the proportion of doctors willing to admit in a survey which group they routinely lie to – health plans or patients. Most of the other doctors, one suspects, would just rather not say.

Item 3: In 2000, the AMA filed an amicus brief with the Illinois Supreme Court on behalf of a Dr. Portes, asserting that doctors have no duty to inform their patients when health plans have given them financial incentives to withhold medical care. Apparently a patient of Dr. Portes died of a heart attack shortly after the doctor allegedly refused to refer him to a cardiologist. As it turned out, the patient’s health plan apparently had agreed to pay the doctor’s medical group 60% of any funds not used on referrals to specialists. A lower court in Illinois had found that Portes had a duty to disclose this financial relationship to patients, since it might clearly impact their interpretation of his medical recommendations, and Portes appealed. In this appeal, the AMA sided with the doctor.

The AMA said in its amicus brief that the obligation imposed on doctors by the lower court amounted to an “insurmountable burden,” since it was hard for doctors to keep track of all the sundry ways that health plans might induce them to behave in this way or that way, and besides, the need to disclose would impinge on the doctor’s valuable time with the patient and therefore disrupt the doctor-patient relationship. Interestingly, the AMA’s own Council on Ethical and Judicial Affairs (CEJA) had previously written that, “physicians must assure disclosure of any financial inducements that may tend to limit the diagnostic and therapeutic alternatives that are offered to patients….” In explaining why its amicus brief differed from the opinion of its own Ethics Council, the AMA explained that its CEJA standard was just an ethical one and not a legal one.

So what we have here is: a) A health plan induces doctors to withhold medical care; b) a doctor acts on that inducement; c) as a result, predictable harm comes to a patient; d) after which, the doctor and the AMA declare that he shouldn’t have to inform patients of all relevant information because; e) to do so would harm the doctor-patient relationship.

This is all just too precious for words.

One can easily see how very confusing it has become for doctors to decide just when they must lie, and whom they must lie to.

Obviously, doctors are now in a position where, just to get by, it behooves them to lie repeatedly to either patients, or to insurers, or both. Their ethical obligation to always be straight with the patient has been turned on its head by the new ethical obligation to do what’s right for the collective.  In more cases than doctors – or the insurance companies and government health plans which (between them) “own” the doctors lock, stock and barrel – would like to admit, lying has become a way of life for many in the medical profession. It is not something they’re proud of (well, at least the older ones aren’t proud of it). It’s just something that is necessary for survival. Most doctors, to their credit, hate this. It’s one of the reasons so many doctors are so frustrated with their lot.

In any case, this is not a truth to which anyone would like to call the public’s attention. So for those callow youths in Wisconsin to don their white coats and go out to the street corners, in front of the cameras, to commit lie, after lie, after lie, and to do so with such obvious pride, and such obvious confidence that what they were doing was not only right but was expected of them as members of the medical profession – that indeed, they could do no less – was to call unwanted attention to what has become an unfortunate truth about our healthcare system and what it has done to our doctors.

No wonder the mainstream media largely ignored this embarrassing episode. Fortunately, the public (despite the best efforts of Fox News) still has not realized how generalized the problem is. The sooner Fox stops fulminating about it and moves on to whatever the next left-wing travesty turns out to be, the better. And perhaps no permanent harm will yet be done to the public’s perception of the truthiness of the medical profession.

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