The Hippocratic Underground: Civil Disobedience and Health Care Reform

Abstract

In general, when believe a law is unjust, they should work to change the law. In exceptional circumstances of unjust laws, ethical responsibilities should supercede legal obligations. --American Medical Association (1) Throughout their training, are taught to play by the rules, especially when those rules are the law of the land. In the era of managed care, this includes accurate billing of third-party payers, with the result that patients must pay out-of-pocket for uncovered services. Bernard Lo writes in his introductory textbook of medical ethics, There are strong ethical reasons for not to misrepresent the patient's condition to third parties. Physicians should keep in mind how misleading statements could undermine the doctor-patient relationship and should seek constructive ways to resolve such dilemmas. (2) In spite of this, a recent study found that 39 percent of admitted to manipulating reimbursement rules at least in the previous year. The authors hypothesize that may see manipulation of reimbursement rules as an indirect, or covert, form of patient advocacy and even a professional obligation. (3) Another study found that physicians consistently assumed that society would provide greater justification ratings [for deception] than they would. (4) Indeed, 26 percent of Philadelphians surveyed approved of a physician misrepresenting a patient's condition to secure funding for a necessary procedure, and this percentage rose to 50 percent among those who felt did not have sufficient time to appeal coverage decisions. (5) Is violating the law in order to provide necessary medical care ever ethically justified? As John Rawls puts it more generally: At what point does the duty to comply with laws enacted by a legislative majority (or with executive acts supported by such a majority) cease to be binding in view of the right to defend one's liberties and the duty to oppose injustice? (6) Commentators typically think about this question by discussing individual cases--should a physician deceive an insurance company to benefit this patient with these conditions. The question should also be examined on a societal basis, by appeal to the broader notion of civil disobedience. The Need for Reform The need to reform the United States health care system has long been recognized. Motivations behind such reform range from respect for human dignity (the United States is the only developed nation that does not guarantee basic health care for all citizens), distributive justice (some citizens are privy to the most advanced technologies in the world, while others are deprived of even the most basic services), and economic pragmatism (health care expenditures have risen from 10 percent of Gross Domestic Product in 1985 to 15 percent in 2003 to a projected 18 percent in 2013 (7)). Well-known proposals for reform include the Physicians for a National Health Program plan for universal coverage through single-payer national health insurance, (8) expanded coverage through tax credits and free market reform, (9) and universal coverage containing elements of both methodologies. (10) In the past, though, proposals for universal coverage have failed under a deluge of criticism from professional organizations, including the American Medical Association, and intensive public relations campaigns funded by groups with a financial incentive to maintain the status quo. (11) Until recently, advocating health care reform have acted primarily through proper channels, such as publication, testimony before government at various levels, lobbying elected officials, and grass roots mobilization. Prior to 2004, only a handful of articles discussed civil disobedience as it relates to the practice of medicine, and none have done so recently. (12) Faced with such powerful opposing special interests, most reformers ultimately fall into a category for which Henry David Thoreau, in his famous essay on the subject, had only disdain: They hesitate, and they regret, and sometimes they petition; but they do nothing in earnest and with effect. …