Mrs Paul walks stiffly into the office, settling into a chair with obvious relief. "This pain is just the worst thing there is. Even getting the mail is bad. What in the world can I do?"
Dr Jones removes Mrs Paul's shoe. The woman's foot is grossly misshapen, and she winces in pain throughout the examination. The bunion clearly has affected her mobility; Dr Jones notes that Mrs Paul has gained 15 pounds since her first appointment with this Medicaid HMO. Yes, Dr Jones thinks. I could remove that bunion surgically. Of course, bunion removal isn't covered in this new insurance plan—but bone spur removal is. Mrs Paul wouldn't know the difference. I can't get all my patients everything they need—people would begin to notice—but at least I can help one person at a time.
Whose interests must the physician uphold? Those of the insurance organization that formulates the rules and provides the payments? Or those of the patient, who cannot afford the procedure but possibly would have less pain and better mobility if she were treated? The ethical challenge facing physicians like Dr Jones is one that has long been the province of law and jurisprudence: the tangled morality of breaking rules in order to provide "true" justice.
Health insurance plans have created a legal microcosm of rules and regulations. By buying or qualifying for a health insurance policy, an individual enters into a common set of rules with all the other people covered by that particular insurer. The insurers may try to create a system that philosopher and ethicist John Rawls might call "formally just": the rules are clearly stated, changed only with due notice, and applied equally to all cases, with proper opportunity for appeal and judgment.1 The actual rules that are being enforced in this way may or may not be what Rawls calls "substantively just"; the content of the rules, regardless of the system in which they are enforced, may or may not provide what the community considers to be good and fair treatment.
The physician has a dual role in this system. First, he or she has the responsibility to act for the insurers by upholding the rules of coverage, both to preserve the integrity of the system and to protect patients from unfair and unequal treatment. Second, the physician has the often opposing responsibility to act for the patient by deciding whether a policy or rule is substantively just; that is, whether it provides the patient with a basic standard of health care or whether upholding the rules would damage the health of the patient.
In miscoding a procedure on an insurance form, however, the physician violates both of these responsibilities. By furtively disobeying an unjust rule, the physician violates the rights of other patients within the system and fails to defend openly the patient's need for the procedure. Even if the physician believes that the insurance system is antithetical to good care, the ethical step is not to evade the rules but rather to fight them openly for the sake of all patients within the system.
In the immediacy of the traditional patient-physician encounter, the needs of an individual patient are more salient than this ethical responsibility to the community. The increasing control of health care by insurance organizations, however, has forced population-based medicine into doctors' offices and given physicians far greater accountability to patients outside their own practices.
Misrepresenting a diagnosis seems like an innocuous way to deal with insurance rules because unlike an individual patient, the insurance provider is anonymous and has tremendous resources. If insurance has a face, it is often that of a highly paid CEO; expenditures for health care totaled over $1 trillion in 1997, making the cost of a bunion removal seem trivial in comparison.2 Why, then, should doctors honor the rules of this twisted game?
In medicine, the patient-physician relationship has always been held sacred; physicians have a responsibility to treat patients appropriately, respect their confidences, and act as their advocates in a confusing and impersonal health care system. But what responsibility does a physician have for the faceless other patients, the people who could be adversely affected by preferential treatment of his or her patients? For example, aggressive use of broad-spectrum antibiotics has created the specter of vancomycin-resistant staphylococci and other pathogens that threaten new populations of patients. Analogously, miscoding procedures so that insurance will finance them depletes the shared pool, leaving other patients to face stricter rules or to be denied insurance altogether. The "tragedy of the commons," as Garrett Hardin put it, happens when every person pursues his or her own interests within a shared community resource.3 Each individual may reason that taking a bit more of the pie will not damage the resource; however, when each individual acts on this reasoning, the commons are destroyed. Medical insurance, private or public, cannot command an infinite system of resources. Instead, insurance creates a finite "medical commons,"4,5 which should be distributed according to a sound system of rules.
In Oregon, an attempt to distribute the medical commons by rationing Medicaid resources has led to strict cut-offs for procedures of lower priority.6 The cut-off line on a list of prioritized procedures is adjusted according to budgetary considerations and Health Care Financing Administration (HCFA) restrictions.7 However, doctors have circumvented the guidelines by miscoding uncovered procedures; the increasing costs of the system have led to abandonment of the original goal of covering all uninsured citizens and exclusion of more procedures from coverage.8 In other insurance systems, the losses due to miscoding are more difficult to pinpoint; or premiums rise so that some people cannot afford them, or a preventive program is cut, or perhaps an administrator's raise decreases. Certainly, the patient in the office with the throbbing foot is of more immediate concern than these considerations. Yet the physician must weigh these unseen costs against the benefits to the individual patient, just as he or she must consider the risk of creating resistant bacteria, which could harm unknown patients, when prescribing powerful antibiotics. The medical commons is a reality: there is only so much health care to go around.
For a physician to break the rules selectively on behalf of certain patients is biased medicine, patently unfair, and discriminatory. The discrimination arises because the only way to "game the system," or to subvert the rules of the insurance plan, is to do so occasionally. An unusual pattern of cases, such as miscoding a large number of deviated nasal septae for an uncovered procedure like rhinoplasty, would be too recognizable. The physician, then, must choose which patients merit this procedure and which do not. The hotly debated case of baseball player Mickey Mantle illustrated dramatically how these choices can be biased: although Mantle had cancer of the liver, a condition that often rules out transplant, he was placed at the top of the waiting list and quickly received a transplant, prompting accusations of medical favoritism.9
In daily practice, the basis for preferential selection may be more subtle, even unconscious; it may involve personal sympathy for particular patients or implicit judgments about the value of health for different people. Miscoding procedures necessitates ad hoc, bedside rationing of care, a practice often decried as discriminatory.10 Preferential selection violates the integrity of a system in which similar cases should be treated similarly.
If a scientist invents or misrepresents data, we call it intellectual dishonesty; so, too, a doctor who miscodes a diagnosis is falsifying data, an act that can have widespread ramifications in the scientific community. A system rife with miscoded procedures may lead researchers to track an inaccurate pattern of disease, which could lead to inappropriate allocation of research to the fabricated diagnosis or procedure and corresponding neglect of the true disease. Statistical analysis of insurance records, particularly those collected by HCFA, is used extensively in epidemiological research and in economic forecasting. Miscoding corrupts these data and, paradoxically, will tend to lower the priority of the very procedure that the physician is underreporting.
More insidiously, the idea that physicians miscode solely to provide the patient with needed care masks a less noble ethical decision: the choice not to provide care pro bono. Pro bono care has long been a part of medicine, and many physicians consider it an essential part of their work. Between 1990 and 1994, the percentage of physicians providing uncompensated care and the amount of time spent on such services both rose, with about 68% of physicians providing some pro bono care.11 Despite Medicare and Medicaid subsidization, hospitals still finance a key component of uncompensated care for indigent patients.12 While physicians and hospitals cannot and should not bear the full burden of supporting inadequate insurance systems, they can continue to help needy individuals by providing service free of charge for procedures that may be useful but are of low priority. In this way, the rules of the insurance system are upheld, the patient receives care, and the physician preserves both professional and personal integrity.
For the sake of all the patients in the system, the physician should appeal unjust rules, voice opposition publicly, and advocate openly and honestly for the needed treatment. This kind of activism takes time and effort, jeopardizes the physician's relationship with insurance providers, and may well threaten a career with an HMO. Physicians feeling helpless and alone in the face of unjust insurance regulations would do well to remember the lessons of civil disobedience, first expressed by Henry David Thoreau and taken up by Martin Luther King, Jr, and other civil rights leaders: the collective voices of all those opposed to an unjust rule can break it, while silence and subterfuge only make it stronger.
For most physicians, population-based medicine is antithetical to the goals of bedside care. Yet considering the needs of the population can save lives as well, by distributing the medical commons equitably, by determining which treatments can maximize the health of the community, and by providing accurate data on health trends. Physicians must bridge the gap between people and numbers, treating individuals fairly and humanely while recognizing the impact of individual decisions within a larger system.
Rifkin DE. Community Considerations: The Many Effects of Miscoding. JAMA. 1999;282(17):1676-1679. doi:10.1001/jama.282.17.1676-JMS1103-4-1