An Ethical Dilemma

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An Ethical Dilemma

 

Cicero once said, “Treat not with men who have no honor. You are both dishonored in the exchange but they have nothing to lose.”

What then is the proper course of action when confronted with a powerful organization that one believes is behaving unethically? The easy answer, the one that most people will give automatically (and somewhat self-righteously), is to refuse to do business with that organization.

But what if the organization is behaving in a perfectly legal and businesslike manner? What if, nevertheless, that behavior violates you own code of ethics, and arguably the larger ethical standard of ‘what is right and just’?

I find myself wrestling with that question right now. Many of my peers think I’m overstating the problem or that I’m being too idealistic. Many agree that the organization may not be a paragon of virtue, but they are scrupulously obeying the letter of the law, so there are no grounds for complaint.

The large hospital system that operates the hospital where I do most of my elective surgery (not the trauma center where I also work) has instituted a policy of requiring payment in full of that portion of the total bill for which the patient is responsible BEFORE any non-emergent surgery can be scheduled. In other words, if you have one of the 80/20 insurance plans sold under the ACA exchange, or if your employer provided plan has such a payment scheme, the hospital wants your 20% up front. They won’t waive it or let you finance it other than on a major credit card. The only exceptions are ‘emergencies’.

So far so good. I am a big proponent of individual responsibility. Patients are responsible for the deductibles on their insurance plan, and a prudent person puts money aside for that. I don’t have a big problem with such a policy for purely elective surgery such as the asymptomatic hernia or the elective hysterectomy or gallbladder surgery. But the hospital is taking a hard line on what constitutes and emergency. Specifically, an emergency is a life or limb threatening problem or one that will cause the patient irreparable harm if not treated immediately. The key word is immediately, as in today, not tomorrow or next week.

Recently I received word from yet another patient that she was unable to go ahead with surgery due to the policy of demanding payment in advance of her copayment of 20% of her anticipated hospital bill. I was asked if her surgery was an emergency. Usually for scheduled cases I do not certify them as emergent, but in this case I answered that it was. The patient had originally been scheduled for a laparoscopic cholecystectomy in a month, but came to my office urgently with crescendo symptoms. Her right upper quadrant pain had become much worse and was now almost continuous and required narcotics for control. I moved her surgery up to the next available day, 48 hours after seeing her in my office. She went straight to the registration area to set up her surgery and was told she would have to pay a large sum in advance based on her insurance plan. She did not have the money or the available credit on a credit card to pay. After I said it was an emergency, she was referred to hospitals Chief Medical Officer who reviewed her case and apparently her finances and somehow decided that it was appropriate for her to pay $500. Again, she stated she did not have that much cash and so she cancelled her surgery. I eventually did her surgery at the trauma center where I work and where there is no review of a surgeon’s decision that a surgery is urgent or emergent.

This is not the first time this has occurred. I and several other surgeons have had patients in need of cancer surgery have the same issue with respect to demands for advance payment of large sums prior to scheduling surgery. I have discussed this personally with the CMO and also with the Medical Staff President. While I understand the issue of bad debt resulting from patients failing to pay their share of their medical bills, I have little sympathy for the system’s pleas of financial hardship as a result of it. On any given day, thirty percent of my billing is bad debt. As a solo private practitioner, my ability to tolerate and finance that debt is surely more limited than a large organization such as the one that owns and operates my primary hospital. If this bad debt is so crippling, then how is this same hospital system able to buy hospitals all over the state and take over management of the state medical school?

I object strongly to having my clinical judgment as a surgeon over ruled by the hospital CMO, especially when he is neither a surgeon nor in the active day-to-day practice of patient care. I further think it is inappropriate for him to be making financial judgments with respect to a patient’s ability to pay. It is one thing to ask for advance payment for a purely elective surgery such as the repair of an asymptomatic hernia. It is both medically and morally indefensible to place financial considerations ahead of care in cases of cancer surgery or where a surgeon has declared that the surgery is urgent or emergent. To limit waiver of the advance payment to life threatening emergencies only may satisfy any legal responsibility, but such a policy compromises patient care in situation such as my patient’s. She did not have a life-threatening problem but was unable to function normally until her surgical disease was addressed. This policy needs to be changed. I know the satisfaction of a single patient means little to the hospital, but this particular patient has refused to have anything to do with the hospital, now or in the future. As more and more people experience similar treatment, patient satisfaction is sure to suffer.

I suggest that first, the CMO actually discuss the clinical situation with the patient’s surgeon if he chooses to over rule the declaration of an emergency. Second, a third category of ‘urgent but not emergent’ needs to be created for patients such as mine – people who are not in imminent danger of death or complication but who still need surgery as soon as practically possible. Third, the CMO should be removed from any financial decision making about how much it is appropriate for a patient to pay if that is to be less than full payment. There are financial professionals who do that job all the time in the business world. The hospital needs to hire appropriate people to look at this issue the same way that a debt counseling service would. The current situation is unconscionable for an organization that professes to make a positive difference in people’s lives.

 

While the policy is unquestionably legal, adhering to the strict letter of the law, it is not, in my opinion, ethical. It does not support justice or do what is best for the patients who seek care at this institution.

So what does a lone surgeon do? I have written multiple letters of protest, brought the subject up at departmental meetings, and had conversations with the CMO and the CEO of the hospital, all of which have proven futile. Do I continue to bring my patients here and thereby tacitly support this policy? Do I resign from the staff? That would hurt no one but me. In fact, I’m sure the CEO and a number of administrators would be glad to have me out of their hair. Resigning would also inconvenience my patients, most of whom live near my office. There is no alternative hospital that isn’t owned by the same system within 15 miles.

For now, I will continue to protest this policy at every opportunity. But am I just being naïve? Is this the way of the future? The ACA has made the high deductible, 80/20 plans the industry standard. There will be more pressure on hospitals and patients both. But through all the argument over personal responsibility, bad debt, and the definitions of medical necessity and emergency care, we need to maintain or commitment to doing what is best for our patients. We need to continue to do right and seek justice.

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