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The Hippocratic Underground: Civil Disobedience and Health Care Reform
The Hippocratic Underground: Civil Disobedience and Health Care Reform
Care Reform
Macauley, Robert.
Health care reform is bottled up. Socially responsible physicians, forced to curtail care to uninsured
patients, should respond with organized, open defiance, by billing the costs of the care to the accounts
of patients covered under Medicaid or Medicare. Reverse cost-shifting: maybe it could work, certainly it
would be justified.
In general, when physicians believe a law is unjust, misleading statements could undermine the doctor-
they should work to change the law. In exceptional cir- patient relationship and should seek constructive
cumstances of unjust laws, ethical responsibilities should ways to resolve such dilemmas.”2
supercede legal obligations. In spite of this, a recent study found that 39 per-
—American Medical Association1 cent of physicians admitted to manipulating reim-
bursement rules at least “sometimes” in the previous
T
hroughout their training, physicians are year. The authors hypothesize that “these physicians
taught to play by the rules, especially when may see manipulation of reimbursement rules as an
those rules are the law of the land. In the era indirect, or covert, form of patient advocacy and
of managed care, this includes accurate billing of even a professional obligation.”3 Another study
third-party payers, with the result that patients must found that “physicians consistently assumed that so-
pay out-of-pocket for uncovered services. Bernard ciety would provide greater justification ratings [for
Lo writes in his introductory textbook of medical deception] than they would.”4 Indeed, 26 percent of
ethics, “There are strong ethical reasons for physi- Philadelphians surveyed approved of a physician
cians not to misrepresent the patient’s condition to misrepresenting a patient’s condition to secure fund-
third parties. Physicians should keep in mind how ing for a necessary procedure, and this percentage
rose to 50 percent among those who felt physicians
did not have sufficient time to appeal coverage deci-
Robert Macauley, “The Hippocratic Underground: Civil Disobedi-
ence and Health Care Reform,” Hastings Center Report 35, no. 1 sions.5
(2005): 38-45.
38 H A S T I N G S C E N T E R R E P O R T January-February 2005
Is violating the law in order to jority of New Jersey’s 22,000 physi-
provide necessary medical care ever cians refused to offer non-emergent
ethically justified? As John Rawls puts
it more generally: “At what point does Recently, physicians care unless certain regulatory goals
were met, signaling a change in the
the duty to comply with laws enacted have shown a willingness tone of the debate and the range of
by a legislative majority (or with exec- tools physicians were willing to use.14
utive acts supported by such a major- to work outside These work stoppages were illegal,15
ity) cease to be binding in view of the and although they were temporary
right to defend one’s liberties and the conventional channels. and arguably moderate, they elicited
duty to oppose injustice?”6 Commen- some strong reactions. Sidney Wolfe,
tators typically think about this ques- In 2003, thirty-nine director of Public Citizen’s Health
tion by discussing individual cases— Research Group, declared that “the
should a physician deceive an insur- surgeons in West Virginia strike by doctors clearly violates the
ance company to benefit this patient AMA ethical code.”16
with these conditions. The question and the majority of New The work stoppages were not ex-
should also be examined on a societal Jersey’s 22,000 amples of civil disobedience, however,
basis, by appeal to the broader notion for the physicians’ goal was to induce
of civil disobedience. physicians refused to the government to establish a ceiling
of $250,000 for pain and damage
The Need for Reform offer non-emergent care awards in malpractice suits. As Rawls
writes, “Civil disobedience cannot be
unless certain regulatory
T he need to reform the United
States health care system has
long been recognized. Motivations goals were met.
grounded solely on group or self-in-
terest. Instead one invokes the com-
monly shared conception of justice
behind such reform range from re- that underlies the political order.”17
spect for human dignity (the United There is some hint that the AMA
States is the only developed nation marily through “proper” channels, ethical code might tolerate some
that does not guarantee basic health such as publication, testimony before forms of civil disobedience. As Wolfe
care for all citizens), distributive jus- government at various levels, lobby- noted, the code is opposed to collec-
tice (some citizens are privy to the ing elected officials, and grass roots tive activities that might jeopardize
most advanced technologies in the mobilization. Prior to 2004, only a patients’ health, and it objects that
world, while others are deprived of handful of articles discussed civil dis- “strikes reduce access to care, elimi-
even the most basic services), and obedience as it relates to the practice nate or delay necessary care, and in-
economic pragmatism (health care of medicine, and none have done so terfere with continuity of care. Each
expenditures have risen from 10 per- recently.12 Faced with such powerful of these consequences is contrary to
cent of Gross Domestic Product in opposing special interests, most re- the physician’s ethic. Physicians
1985 to 15 percent in 2003 to a pro- formers ultimately fall into a category should refrain from the use of the
jected 18 percent in 20137). Well- for which Henry David Thoreau, in strike as a bargaining tactic.” But the
known proposals for reform include his famous essay on the subject, had code also states that “collective activi-
the Physicians for a National Health only disdain: ties aimed at ultimately improving
Program plan for universal coverage patient care may be warranted in
They hesitate, and they regret, and
through single-payer national health some circumstances, even if they cre-
sometimes they petition; but they
insurance,8 expanded coverage ate inconvenience for the manage-
do nothing in earnest and with ef-
through tax credits and free market ment.”18 The question is whether
fect. They will wait, well disposed,
reform,9 and universal coverage con- civil disobedience as a method of
for others to remedy the evil, that
taining elements of both methodolo- protest and means to social change
they may no longer have it to re-
gies.10 In the past, though, proposals rightly falls under the rubric of “col-
gret. At most, they give only a
for universal coverage have failed lective activities” that are appropriate
cheap vote, and a feeble counte-
under a deluge of criticism from pro- for physicians to engage in.
nance and God-speed, to the right,
fessional organizations, including the
as it goes by them.13
American Medical Association, and Definition of Civil
intensive public relations campaigns Recently, however, physicians have Disobedience
funded by groups with a financial in- shown a willingness to work outside
centive to maintain the status quo.11
Until recently, physicians advocat-
ing health care reform have acted pri-
conventional channels. In January
and February 2003, thirty-nine sur-
geons in West Virginia and the ma-
R awls has defined civil disobedi-
ence as “a public, nonviolent,
conscientious yet political act con-
40 H A S T I N G S C E N T E R R E P O R T January-February 2005
universal coverage by the health in- ered evaluations and interventions. the patient believed that the therapy
surance industry and the proponents One must distinguish, however, both would be covered, the case does not
of limited government who decry yet between private and government- fall under the rubric of civil disobedi-
another “entitlement,” reform funded insurance, and between insuf- ence properly understood, because
through normal political channels ficient coverage and complete lack of civil disobedience is defined as “a po-
“may reasonably be thought fruit- coverage. litical act” designed to change “the
less.” As long as one is evaluating private law or policies of the government.”
Finally, the specific form of civil insurance, complete lack of coverage In such a case, the concerned
disobedience being considered must presents no moral dilemma. For even physician has two options: evasive
carry with it some reasonable possi- if there exists a basic human right to noncompliance (that is, “gaming the
bility of success. Rawls writes, “Since health care, no private company has a system,” with the inherent danger of
civil disobedience is a mode of ad- moral obligation to provide it for a depriving other patients of resources
dress taking place in the public specific person. Not only would it be owed them), or the private sector
forum, care must be taken to see that arbitrary to pick any one health insur- equivalent of civil disobedience,
it is understood.”31 Given the nega- ance company to fund an uncovered which some have called “direct ac-
tive responses to the physicians’ patient’s costs, but it would siphon tion.” Defined as “the strategic use of
strikes of 2003 and the potential for immediately effective acts, such as
misconstruing the purpose of civil strikes, demonstrations, or sabotage,
disobedience—whether through sim- to achieve a political or social end,”
ple misunderstanding or because of
propaganda from opposing special in- The government is a this kind of direct action differs from
direct civil disobedience in that it
terest groups—this final caveat is ex- does not appeal to government to
legitimate target for civil
tremely important. change laws.35 It attempts to compel a
disobedience precisely private group to change its policies.
Civil Disobedience and Health When the documentarian Michael
Care Reform because, if there is a Moore picketed the offices of an
HMO that initially refused a life-sav-
universal human right to
A s it relates to the practice of med-
icine, civil disobedience has his-
torically been carried out to support basic health care, it is
ing pancreas transplant to one of its
policy holders, he was engaging in
this kind of direct action. By evoking
minority groups who either were ig- a public outcry and generating nega-
nored by the majority (such as when the government that tive publicity, Moore pressured the
women called for birth control in the company into changing its policy on
incurs an obligation to
early twentieth century and persons “experimental” therapy, at least in
with AIDS demanded additional provide it. that case.36
funding in the late twentieth centu- The government is a legitimate
ry32) or were simply unable to speak target for civil disobedience precisely
for themselves (as in animal rights33 off funds that should be directed to- because, if there is a universal human
and anti-abortion protests34). The ward the care of patients already en- right to basic health care, it is the gov-
same can be said for other areas of rolled in the company. ernment that incurs an obligation to
medicine that, though they fall out- There have been well-publicized provide it. In terms of insufficient
side the scope of this paper, might cases of insufficient coverage, such as coverage, though, the question must
lend themselves to civil disobedience, HMOs refusing so-called “experi- be asked: What degree of health care
such as the use of medical marijuana mental” therapies or rejecting poten- can properly be deemed a basic
and the needle exchange programs tially life-saving interventions on a human right? One might argue that
mentioned above. And the same cost/benefit analysis. Also, in markets basic preventive care, emergency care,
seems to be true of using civil disobe- with a limited range of options, pa- and short-term, clearly efficacious
dience to agitate for universal cover- tients may be forced to enroll in a life-saving treatment are basic human
age; the rights in question pertain to a plan whose benefits fall short of rights. But what of expensive thera-
substantial minority group with little “basic health care.” But these also are pies that have only a modest chance
political voice or power. not appropriate contexts for civil dis- of success? In terms of preventive
The most obvious way physicians obedience. No law is broken as long care, how often must expensive
might engage in direct civil disobedi- as the private insurer lives up to the screening procedures like
ence to improve health care financing formal agreement with the insured colonoscopy be performed to meet
is to manipulate billing systems in patient. Further, even if the insurer the condition of “basic health care”?
order to fund necessary but uncov- should cover the excluded service, or if Clearly there is an extreme to be
42 H A S T I N G S C E N T E R R E P O R T January-February 2005
Mr. Jones), the government would Mr. Jones if some of his records are
have no way of knowing if a given found under another patient’s name.
charge for services for Mr. Brown
(which Medicaid is obligated to The physicians involved One might also raise the objection
that if Mr. Jones receives essentially
cover) was provided to him or not. free medical care in this manner, he
would have to be
Certainly the expressed willingness of might be less likely to seek employ-
a physician to bill incorrectly is not a willing to suffer the ment that offers health insurance or
crime. It would likely lead to in- attempt to purchase his own cover-
creased governmental oversight, but if consequences of their age. But since such an argument
the disobedience were taken up on a could just as easily be leveled at any
wide enough basis, by enough physi- illegal actions. As Rawls “entitlement”—and indeed, often
cians, governmental scrutiny of indi- is—it does not seem uniquely com-
vidual charges would quickly become writes, “We must pay a pelling in this case.
impractical. Perhaps the most interesting and
The physicians involved would certain price to convince complex agent in this case, though, is
have to be willing to suffer the conse- Mr. Brown, the covered patient who
others that our actions
quences of their illegal actions. As puts himself at risk to help a person
Rawls writes, “We must pay a certain have, in our carefully he might not even know. The argu-
price to convince others that our ac- ment here assumes that such compas-
tions have, in our carefully considered considered view, a sionate (understood literally) patients
view, a sufficient moral basis in the take part voluntarily. An idealist
political convictions of the communi- sufficient moral basis in might view the risk taken by the
ty.”46 And the financial consequences physician as part of his “oath of of-
are significant,47 especially if borne by the political convictions fice.” Mr. Brown, on the other hand,
an individual physician rather than has taken no vow to help patients in
by an institution (as would probably of the community.” need, and by agreeing to take part in
be the case here, since few institutions this deception, he incurs many costs.
seem likely to participate in such an His medical care would become more
action). Moreover, intentional viola- it overlooks the fact that much of the complex by virtue of another person’s
tion of government regulations could cost of health care delivery lies out- medical records in his file. He would
lead to professional penalties (includ- side physician fees (medications, tests, pay a financial penalty in the form of
ing suspension of one’s medical li- and many other interventions and copayments and deductibles generat-
cense) and even incarceration. services). To counter it, physicians ed by the care of uninsured patients.
At the same time, collectivity is the should not keep any reimbursement Indeed, he could become an unin-
strongest defense. Just as the state that may result from deceptive sured patient himself if he were at
governments of West Virginia and billing. These usually meager funds some point denied health insurance
New Jersey never thought to prose- should be redirected to ameliorating because of pre-existing conditions
cute the physicians who took part in the burden others have assumed that he does not, in fact, have. His
those strikes, or even to revoke their (such as defraying Mr. Brown’s copay- willingness to engage in fraud might
medical licenses, so also the federal ments or deductibles) and continuing well be seen as complicity in the
government almost certainly would the battle through more conventional crime, even if he took no active role
not prevent a substantial number of channels for health care reform. (save, perhaps, accepting some level
physicians from practicing medicine There are also some significant im- of reimbursement from Dr. Smith for
in a way that attempts to meet the plications for the uninsured patient, the expenses he incurs).
needs of a selectively underserved Mr. Jones, who receives care this way.
population. If charges for office visits or laborato- The End Result
Great care must be taken to avoid ry tests are billed to another account,
any public perception that the physi-
cian might somehow profit from this
endeavor. After all, some might sim-
record-keeping quickly becomes
nightmarish. It might be necessary to
develop a second set of charts (akin to
L et us assume that a bloc of physi-
cians decided to engage in this
form of direct civil disobedience on
ply say that a physician should pro- psychiatrists’ practice of keeping a set behalf of their uninsured patients and
vide free medical care to any patient of “personal notes” separate from the enough compassionate covered pa-
who cannot afford it, even if it is not official chart), which would likely be tients agreed to participate. What
properly his obligation do so. This subject to subpoena.48 Other physi- might be the end result? Given the
criticism has some merit, even though cians might have difficulty treating open nature of civil disobedience,
44 H A S T I N G S C E N T E R R E P O R T January-February 2005
plan,” is available at http://www.ibiblio.org/ 24. Certain innovations with an extreme- 82_million_uninsured_report.pdf?docID=3
nhs/NHS-T-o-C.html. ly narrow focus, such as so-called “bou- 641.
11. The Health Insurance Association of tique” or “concierge” medicine, bypass the 41. P.B. Ginsburg, “Can Hospitals and
America spent $17 million in 1993 on tele- health care finance system altogether. How- Physicians Shift the Effects of Cuts in
vision commercials opposing the Clinton ever, given that they are focused principally Medicare Reimbursement to Private Pay-
plan. See D. Bunis, “The Harry and Louise on patients of means, their underlying moti- ers?” Web exclusive, Health Affairs (2003):
Show,” www.salon.com, January 20, 2000, vation does not appear to be altruistic. The 473, at http://content.healthaffairs.org/
available at http://archive.salon.com/ shift of some physicians back to a straight cgi/reprint/hlthaff.w3.472v1.pdf.
health/log/2000/01/20/harry_and_louise/. fee-for-service model often excludes patients 42. D.G. Smith, Paying for Medicare: The
12. J.F. Childress, “Civil Disobedience, who could not afford insurance in the first Politics of Reform (New York: Aldine de
Conscientious Objection, and Evasive Non- place, and also makes no allowance for high- Gruyter, 1992).
compliance: A Framework for the Analysis cost diagnostic and therapeutic procedures.
(R. Lowes, “No Coding, No Insurance— 43. For example, deductibles and copay-
and Assessment of Illegal Actions in Health ments for managed care forms of these pro-
Care,” Journal of Medicine and Philosophy 10 No Kidding,” Medical Economics 81 [2004]:
44-48.) grams, or premiums for Medicare Part B
(1985): 63-83; see also “Militant Morality: (and Part A, as well, if neither the patient
Civil Disobedience and Bioethics,” special 25. Childress, “Civil Disobedience, Con- nor their spouse has paid the Medicare pay-
section in Hastings Center Report 19, no. 6 scientious Objection, and Evasive Noncom- roll tax for at least ten years).
(1989): 23-45. pliance,” 68-69.
44. A. Marks, “Medical Care Paid for in
13. H.D. Thoreau, Walden and Civil Dis- 26. H.B. Acton, “Political Justification,” Cash—And Cheaper,” Christian Science
obedience, ed. P. Lauter (Boston, Mass.: in Civil Disobedience: Theory and Practice, Monitor (April 7, 2004).
Houghton Mifflin, 2000): 22. ed. H.A. Bedau (New York: Pegasus, 1969),
233. 45. False Claims Act, 31 USC §3729-
14. Associated Press, “West Virginia Doc- 3733 (1998).
tors Protest Insurance Costs,” New York 27. M.L. King, Jr., “Letter from Birming-
ham City Jail,” in Civil Disobedience: Theory 46. Rawls, A Theory of Justice, 367.
Times (January 2, 2003); R. Hanley and M.
Newman, “New Jerseyans Expect Doctors and Practice, 73. 47. See J. Manier, “U.S. Sues U of C in
Not to Be In,” New York Times (January 30, 28. Rawls, A Theory of Justice, 505. Medicare Overbilling: Liability Could Run
2003). Up to $100 Million,” Chicago Tribune
29. Ibid., 373. (March 14, 1999); P. Beluck, “In Crack-
15. The Federal Trade Commission and 30. Ibid., 373. down on Health Care Fraud, U.S. Focuses
the Justice Department have consistently 31. Ibid., 376. on Training Hospitals and Clinics,” New
deemed self-employed physicians as “inde- York Times (December 22, 1995).
pendent contractors” for whom striking is 32. See H.R. Spiers, “AIDS and Civil
illegal according to the National Labor Rela- Disobedience,” Hastings Center Report 19, 48. In re Estate of Bagus, 691 N.E. 2d 401
tions Act of 1935. In addition, a New Jersey no. 6 (1989): 34-35. (1998).
law authorizing physicians to engage in col- 33. P. Singer, “To Do or Not to Do?” 49. M.K. Wynia, “Civil Obligations in
lective bargaining with managed care plans Hastings Center Report 19, no. 6 (1989): 42- Medicine: Does ‘Professional’ Civil Disobe-
specifically excludes the right to strike: “The 44. dience Tear, or Repair, the Basic Fabric of
provisions of this act shall not be construed 34. G. Leber, “We Must Rescue Them,” Society?” Virtual Mentor 6 (January 2004),
to . . . permit two or more physicians . . . to Hastings Center Report 19, no. 6 (1989): 26- at http://www.ama-assn.org/ama/pub/cate-
jointly engage in a coordinated cessation, re- 27. gory/11780.html.
duction or limitation of the health care . . . 35. The definition is in the American 50. Thoreau, Walden and Civil Disobedi-
which they provide” (Title 52:17B-207). Heritage Dictionary of the English Language, ence, 26.
16. S. Wolfe, “The Doctor Discipline 4th edition (New York: Houghton Mifflin,
Crisis in New Jersey,” at http://www.citi- 2000).
zen.org/congress/civjus/medmal/articles. 36. M. Moore, The Awful Truth (airdate
cfm. April 11, 1999).
17. Rawls, A Theory of Justice, 365. The 37. Rawls, A Theory of Justice, 372-73.
West Virginia and New Jersey work stop- Given that the Difference Principle is, per-
pages are actually instances of conscientious haps, the most innovative and most contro-
objection, rather than civil disobedience. versial component of Rawls’s theory of jus-
18. American Medical Association, tice, the fact that it is not the foundation of
“AMA Code of Ethics (1994),” at his conception of civil disobedience broad-
http://www.ama-assn.org/ama/pub/catego- ens the applicability of his thought in this
ry/8524.html. area.
19. Rawls, A Theory of Justice, 364. 38. U.S. Census Bureau, “Health Insur-
20. Childress, “Civil Disobedience, Con- ance: 2003,” at http://www.census.gov/
scientious Objection, and Evasive Noncom- hhes/hlthins/hlthin03/hlth03asc.html.
pliance,” 67. 39. C. DeNavas-Walt, B.D. Proctor, and
21. E.H. Morreim, “Gaming the System: R.J. Mills, Income, Poverty, and Health Insur-
Dodging the Rules, Ruling the Dodgers,” ance Coverage in the United States: 2003,
Archives of Internal Medicine 151 (1991): http://www.census.gov/prod/2004pubs/
443-47. p60-226.pdf.
22. Rawls, A Theory of Justice, 366. 40. Families USA, “One in Three: Non-
23. Thoreau, Walden and Civil Disobedi- Elderly Americans without Health Insur-
ence, 23. ance, 2002-2003,” June 2004, at http://
www.familiesusa.org/site/DocServer/