Where Medicine Meets Ethics, Economics, and Law

I did some catching up recently with a friend who’d been diagnosed with a pretty aggressive breast-cancer, about a decade ago. Happily, she’s remained cancer-free ever since the original treatment, and there haven’t been any complications pertaining to her post-mastectomy augmentation.

Through the wrinkles of her insurance and the “center of excellence” facility at which she was treated, all aspects of her care and follow-up were covered. Which puts the best face on a bad situation: You’ve got enough to worry about without adding financial considerations into the mix.

Last month, she found out that there had been a recall on the breast-implants she’d received. Evidently there was something like a 0.1% chance of lymphoma in recipients. I think most people would consider 1:1000 to be non-trivial odds when a potential new malignancy is on the line. Heck, that seems downright probable when you compare it to the odds people eagerly take on as they play the lottery.

For whatever reason, however, the recall was only for implants “on the shelf.” That means that none were to be placed in any more patients-but, if you were a patient who already had them, you were on your own. I imagine there’ll be some sort of class-action suit for such folks, but would you really want to wait for that and roll the dice on getting your own lymphoma in the meantime? Or would you want to get the darned things removed ASAP?

Related article: What to Do When Facing a Medical Malpractice Lawsuit

Notwithstanding the “everything’s covered” aspect of her care, her doc informed her of some bad news: This wasn’t considered a “covered” complication of treatment, and thus, according to the rules, if she wanted to have the implants removed (let alone replaced with something safer), she’d have to pay out of her own pocket.

He also had some good news: He wasn’t going to play by the rules, because it made no sense that she should be on the hook for this. Thus, according to his record, she had some sort of discomfort or other complication which did qualify for removal/exchange of the implants, at no cost to her. She is now at home and healing nicely from the procedure.

The 4 Stages of Medical Negotiation

The ethics of the situation, and the surgeon’s solution for it, can be debated by people who enjoy doing such things. My point in relaying all of this (other than to share a friend’s tale that has a happy ending, because they can be rare), is that the surgeon did something that I call “negotiating the swamp.” Something that most practicing docs have to do on a daily basis.

The swamp is a region at the borderlands between healthcare, economics, law, and governmental regulation. Docs find themselves and their patients in the morass all too frequently, trying to get the right diagnostic or therapeutic stuff done. If they stroll along as they would on solid terrain, the doc risks not getting paid for his services, the patient risks getting unduly charged, and both are subject to outsiders interfering in the choices and decision making as to what healthcare is appropriate (or even permitted).

Physicians have different attitudes and approaches to such negotiation. It bears more than a little resemblance to the “stages of grief” that readers have probably heard of. Fitting, really: A young and idealistic doc, emerging from medschool, has his head full of clear-cut notions as to how healthcare is properly conducted, and then he runs face-first into the real world, where little of that is allowed to happen without resistance. From day one of clinical work, docs are given ample opportunity to grieve over healthcare not being what it was supposed to.

The first stage of grief: Denial. This is where one refuses to countenance that the doc-patient relationship is being interfered with by insurance companies, lawyers, the government, etc. Denying reality doesn’t prevent it from happening, though, and this results in desired patient care not happening, the patient having to pay an unjust amount, or the doc not getting paid for the work he did. (Alternatively: The doc’s employer not getting paid, and the doc getting flak for it.)

The second stage: Anger. Following one or more episodes of such outcomes, or being aware that they are impending if he plays by the rules, the doc is outraged by this state of affairs. She might get vocal about it-to the patient, to her colleagues, or to her superiors. Maybe she rails about it in communications with her professional society, or her member of Congress. Does any of this have the desired effect? Probably/usually not.

The third stage: Bargaining. This would be where “negotiating the swamp” takes place. The doc knows what will happen if he plays by the rules-so he doesn’t. He documents things in non-straightforward, even untrue ways to game the system for a desired outcome. I most commonly encounter this in cases where a referrer’s provided “clinical history” is at odds with what his patient tells the rad-tech. If, for instance, the patient tells the tech that he has no symptoms and has no idea why this scan is happening, and the referrer wrote “chest pain,” I tend to believe the patient-but I also believe that if I don’t dictate my report with a history of chest pain, the imaging-study isn’t going to get reimbursed.

The fourth stage: Acceptance. I hope that vanishingly few docs have been so beaten down by the swamp that they no longer even try to get the right things done. It could perhaps be said that a lot of docs have learned how to negotiate the swamp so thoroughly that, to them, it’s become a reflexive part of how they practice medicine. Maybe, then, they’ve “Accepted” the need for negotiation to the point that it no longer even irks them when they have to do it.

I haven’t gotten there yet, myself. I still occasionally find myself shifting into Anger at having to negotiate.

But hey, I’ve only been doing this for a couple of decades so far.