Where's the Handbasket?


handbasket-picnic-basketI got two e-mails today asking for a comment on two recently publicized court cases. They both tie in to one common theme: It’s pretty clear where our medical system is headed – now it’s just a matter of the vehicle we’re going to use to get there. The one to the right is probably the most common one used to get to this destination.

One involved the California Supreme Court’s decision to bar emergency physicians from “balance billing” in the emergency department. Before this decision, there was a tension between emergency physicians who wanted to be paid fairly and insurers like United FraudCare that want to charge patients as much in premiums as possible while paying as little as possible to the medical providers so that they can keep earning their $45 billion per year and maintain their #35 ranking on the Fortune 500.


Emergency physicians refused to sign on with the insurers given the low compensation that was being offered. Then, when an insured patient was seen in the emergency department, the emergency physicians received some of their fee from the insurer and “billed” the patient for the “balance” of the fee – hence the term “balance billing.”


Now, the California Supreme Court’s decision states that even if the emergency physicians have no agreement with the insurer, they have to take what the insurer pays them as compensation. Emergency physicians can’t bill the patients for the “balance.” If the providers deem that the emergency physician’s services are worth 25 cents, that is what the physicians have to take. The physicians can try to get the remainder of their fee back from the insurers. Patients can’t get billed for it. Of course, if the insurers don’t pay the remainder, what recourse do physicians have? Nothing. Can’t stop treating the insurer’s patients. Federal EMTALA statutes state that emergency departments have to provide an evaluation and stabilizing treatment to EVERYONE. So if emergency physician groups don’t like it, they are stuck filing more lawsuits and paying more lawyers’ fees to try to get paid fairly.

The other case involved a rheumatologist who was forced to pay $400,000 because he allegedly “refused” to pay for a sign-language interpreter for a deaf patient. The physician was only making $49 per visit from Medicare, but would have to pay $150 to $200 per visit for a sign language interpreter. Instead, the physician used the patient’s family and used written notes to communicate with the patient. The patient sued the physician for discrimination under the Americans With Disabilities Act.

My opinion of both of these cases is that they are a good thing.

Kidding aside. I really am glad that they are happening.

Think about the effects of cases like these.

How many emergency physicians are going to want to work in California? I know I wouldn’t even think about a job offer there – knowing that I would likely be able to collect little to nothing for my services because the California Supreme Court held that some magical contract is created between all emergency physicians and all insurers and that those contract terms de facto provide insurers with unlimited bargaining power. Once service contracts run out with the hospitals, I foresee a lot of hospitals having a difficult time staffing their emergency departments. Care will suffer, people will die on waiting room floors, public outrage will force immediate change.

How many private practitioners are going to want to accept deaf patients into their practices? If we’re talking about providing translation in general, how many physicians will want to accept anyone that doesn’t speak English into their practices? Paying money out of your pocket for a translator so that patients can come to you for treatment is not economically sustainable. If the results of this case are widely disseminated, a lot of physicians who were previously “getting by” with writing things on paper will now have a disincentive to keep deaf patients in their practice. There’s absolutely no incentive to accept new deaf patients into physician practices. As more and more deaf patients are unable to find health care, public outrage will force immediate change.

With cases like this, we’ll get to the “change” our system needs a whole lot quicker. Of course, physicians will stop practicing, those seeking to enter the health care field will think twice about it, care will suffer, and, unfortunately, lots of people will become sicker and will die sooner in the process.

But we will get the change we need.

Hopefully there will still be physicians willing to practice once all of these changes occur.


  1. As a California based ER doc, I (and others) have been waiting for things to deteriorate in the manner you describe. As it stands today in our department, there are still more reasons to work than reasons not to. This can change quickly, however, and we all need to pay close attention to protect our communities, our patients, and ourselves.

  2. Maybe we will get the changes we need. The government that is managing the banking problem by giving billions of dollars to the companies that caused the problem, will suddenly become logical and altruistic.

    Eventually, the change may come, but the government seems to think that the answer to a problem is more government intervention, even if the original problem was too much government intervention.

  3. Yeah, it’s a ridiculous thing. Many practices I know, no longer accept medicare assignment, this way they can bill the patient for the remainder of the bill, as medicare’s reimbursment’s are so paltry. United seems to be trying the same thing.

    I am also in the process of completing my doctoral degree with an emphasis on health policy, and organizational behaviour, and there are some pretty serious changes that are going to be coming down the pike.

  4. Cali ER’s are a disgrace — not to the staff, but to the system — they’re understaffed and awash in a sea of un- and under- insured people.

    I’m sure the balance billing ruling will make it marginally worse, but I’d still say it was the right call. My wife recently spent almost two weeks in ICU after a sudden and serious medical problem. We went to the ER covered by our insurance. Drove past a Kaiser facility to get there (though only ‘cuz we didn’t know how sick she was). She survived, thank god, but only barely. And a week or so after she was discharged I got a balance bill from a practice I’d never heard of.

    Don’t doubt for a second they provided vital services and deserve every penny. But I have no control over who consults or provides other services, and I understood that the hefty premiums and large deductible would cover everything.

    I’m sure the insurance companies are robbing docs, and I don’t have a good solution, but getting a surprise bill because I didn’t stand at the doorway and quiz practictioners about their affiliations 24/7 ain’t right. (‘just a sec. Hmmm, let me check. Oh, seems your practice and my insurer are beefing. Let’s have the attending call another provider…’)

  5. Aidian, that’s exactly what the insurance company wants you to do, get mad at the system, feel that you have been wronged by having no control on who takes care of your wife and at what price. What really is the price of your wife’s life? That all depends on you. “She survived, thank God” you said. What about thank to the expertise of the consultants who spend years of costly training so they can save patients like your wife. Don’t they deserve the thanks and get compensated properly.

    Who control the price of goods. Is it the seller or the buyer. You are the buyer and you pay through your insurance company. Your “insurance” is cheating the seller buy paying only a third of what the product is worth. The seller bills you for the rest, now you are upset with the seller. Be upset with your insurance who is keeping 2/3 or more of your money so they can live the high life. If you look closer at their pocket you might see the hands of lawyer, judges and politicians in it.

    But you’re not upset with them, just us lousy thieves.

  6. Yes, outrage will happen. But, given #4 poster’s experience, the outrage will not be directed towards the judges and politicians who made it happen. It will be directed towards the ‘greedy, insensitive’ doctors who want to get paid fairly for their services.

    For years I wanted to go to medical school. I’ve been told many times I would be a good doctor. I didn’t get in the first time I applied due to a snafu with my college advisor, and I never re-applied. Mainly because I don’t want to deal with this kind of stuff. Helping people is a noble calling, and I do that as an EMT and firefighter. Both of which pay less than an MD, but have a hell of a lot less overhead and less expensive schooling to get there.

  7. Pingback: You Get What You Pay For « WhiteCoat’s Call Room

  8. What happened to the old idea of patient owned insurance cooperatives where the insureds get all the money not paid out in costs, minus management costs to which all the insureds agree. Doesn’t that give the patients bargaining power to reduce physician costs and keep out the profit motive of stockholder owned insurance companies. I’m not an economist. But wouldn’t that work?

  9. Just goes to show why tort reform has got to be a major part of health care reform. As long as patients can file frivolous lawsuits, malpractice insurance costs will continue to rise, driving up charges for everyone, everywhere. Stepping on frivolous lawsuits would also reduce costs by reducing the unnecessary expense of CYA tests and procedures.

    As far as “balance billing” goes, I agree with banning it because it does not address the real problem. If the insurance company doesn’t pay enough, the solution is not to drive the patient into bankruptcy. The solution is to make the insurer pay better rates. Hospital associations and doctors’ associations need to be doing a better job of addressing this problem, not chasing patients who probably can’t pay their bills anyway.

    Expecting “educated consumers” to solve the problem ignores the fact that many Americans simply aren’t educated enough, savvy enough, or (in the face of a serious illness) emotionally stable enough to do so. The Medicare Part D problems demonstrated that graphically, as confused seniors turned to public librarians to find out which plan to sign up for. (I was a public librarian at the time, and I got these questions, which I was supposedly qualified to answer after a 2-hour seminar). Oh yeah, that’s a great way to determine what plan will help you most with your complex drug costs.

    Finally, we as a nation need to face that death is a fact of life. So much medicine is futile (such as my fathers CABG — he also had advanced emphysema, so he died in 2 months anyway) or merely prolongs life with no quality.

    I successfully stopped my 85+ year old (now 90 YO) grandmother’s doctor from having a pacemaker implanted in her. She’s blind, mostly deaf, severely arthritic, and housebound, and says every day that she wants God to take her because her quality of life is pretty much zero. A pacemaker? Why? So her heart arrhythmia can’t kill her? Great, then she can live who knows how many miserable years until cancer, infected bedsores, or pneumonia manages to kill her more slowly and painfully instead. At some point one has to accept the inevitable and go with dignity. As it happens, my grandmother has both Medicare and private insurance, and it wouldn’t have cost us anything to get the pacemaker — it wasn’t the $$$ that motivated this consumer, it was quality of life.

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