Four years ago, California’s healthcare workers declared open season on the law.
When Governor Pete Wilson issued emergency regulations prohibiting state employees from providing pregnancy-related care to undocumented immigrants, the reaction was swift and unequivocal. Public health professionals from San Francisco to Orange County declared they would defy the Governor and continue to provide care.
The defiance took two contrasting routes: legal and illegal. The San Francisco Public Health Department sued the Governor, arguing that his executive order was unfairly issued because there was no emergency. But a groundswell of revulsion against the regulations led clinicians to a far more extreme measure: Twenty thousand of them in the Bay Area signed pledge cards stating that they would disobey any law that required them to deny services.
Dr. Sandra Hernandez, then San Francisco’s public health director, recalled that her staff circulated through beauty salons in the Mission district to reassure immigrant women that they could still get care. “We intended to openly break the law,” said Nora Roman, a nurse at San Francisco General Hospital. “We expected whole facilities to break the law.”
As it turned out, they didn’t have to. Within the month, a San Francisco judge issued an injunction against the state order, so the clinicians stood down. But their threat was an early blueprint for medical insurrection, which has grown steadily beneath the surface of managed care.
It’s been almost six years since the Clinton Administration’s healthcare reform plan went down in flames, and public discontent with corporate medicine continues to grow. Doctors have tried to regain control of care by joining labor unions in record numbers; patients, and even some doctors, have sued HMOs. But healthcare professionals have also been crossing the line into subtly and overtly illegal acts–from manipulation of the system and defiance of laws they deem unjust to fraud and threats of violence–in defense of their patients.
At Cambridge Hospital in Boston, a group of doctors formally pledged to ignore provisions of the new welfare legislation and to make the hospital a “sanctuary” for all patients, including undocumented immigrants. In Toledo, Ohio, a distressed mother convinced the billing department of a major hospital to charge the care for her uninsured, dying son to an expired Medicaid card–and let the government try to catch up with them. In North Carolina, doctors overwhelmed by paperwork requirements write “The Body Is Clean” and other absurdist phrases on patients’ medical charts. Dr. Deb Richter, while working as a physician in Buffalo, told a managed-care representative who was trying to enter one of her examining rooms, “Get out, you’re not touching my patients,” and forced him from her office. Other healthcare professionals talk of organizing wide-scale civil disobedience to attract attention to the system’s injustices.
This type of resistance is particularly noteworthy in the hierarchical and tradition-bound medical profession, where radical forms of protest have been rare. When activism has emerged, it has usually been around relatively narrow issues, such as the need for better care or more research dollars for AIDS, breast cancer or spinal-cord injuries. But anger at HMOs for interfering with efforts to treat patients has cut through a broad cross section of healthcare professionals, from RNs in city emergency rooms and liberal family doctors to archconservative surgeons.
In 1997 a poll released by Louis Harris and Associates reported that more than half of America’s doctors believed the US health system is getting worse. Doctors in states dominated by HMOs were more likely to cite serious problems in caring for patients. Since then, as enraged doctors have drafted recruits, a new generation of medical practitioners has learned that the best way to treat patients may be to ignore the rules.
It is hard to say what impact these brushfires of protest will have or whether they have already contributed to the patients’ bill of rights passed by the House in October, which would make it easier for consumers to sue health insurance plans that deny care or provide poor treatment. But in any case, a patients’ rights bill will be unlikely to appease managed-care rebels, many of whom want not incremental reform but a universal healthcare system that will insure every American, including the 44 million who are currently uninsured. Some doctors even feel that the patients’ bill of rights is a deceptive and cosmetic measure that upholds a system of corporate medicine while masking the profit motive at its heart. “To feign surprise that profits are prioritized over patients’ well-being reminds one of the line from Casablanca: ‘I’m shocked, shocked, to find that there is gambling at Rick’s,'” wrote Dr. Larry Amsel of Columbia University in Tikkun.
A few managed-care companies, including United Health Group, Aetna and several Blue Cross plans, recently appeared to soften their reviewing procedures, offering members the right to appeal denials to an independent panel. But healthcare workers complain that the new policies are still too restrictive, and the phenomenon of medical road rage among patients and practitioners continues unabated.
One result is that some HMOs and hospitals have turned into virtual armed camps. Healthcare has become a booming business for companies that provide on-site security, several of which have even created their own healthcare divisions. In March 1998 the Occupational Safety and Health Administration issued beefed-up guidelines for security in healthcare facilities after its report showed that of all industries, healthcare had the highest incidence of assaults on employees. Joseph Gulinello, executive director of healthcare security at Burns International Security Services, attributes this in part to frustrations caused by managed care. “People have a certain expectation that they’re going to go and be treated right away, but they wait a long time, clinics are crowded, they are denied services. It’s an environment that leads to violence, and a lot of it has to do with being frustrated with not receiving quality care.”
Overt lawbreaking among clinicians is still unusual, but many have used threats and deception to help get procedures covered and claims paid. Some doctors are trying to force accountability on claims reviewers who crouch behind 800 numbers in their industrial parks by threatening, simply, to show up. As one doctor recalled asking, “If you don’t give me some indication as to why you’ve denied this, I will get in my car and I will be coming to the office, and you will give me some explanation.” Fifteen minutes later he got a call that his claim had been approved.
In another instance, when the hospitalization of a psychotic patient was denied, a psychiatrist told the reviewer, “I’m going to put her in an ambulance and send her over to you.” Claim approved. Bryant Welch, a Washington, DC-based attorney and psychologist who represents psychiatric patients against HMOs, points out that decisions to deny care to the mentally ill may have unforeseen repercussions. “These people are highhanded, and they’re hitting people at a time when they are desperate, and being contemptuous of them,” he said. “As the decisions become more and more draconian, they do run the risk of denying care to people who are barely holding on, so the danger of violent retaliation is going up.”
Dr. Johnathon Ross, a board member of Physicians for a National Health Program, who for years has been working to change the healthcare system, uses a combination of manipulation and outright threats at his Toledo, Ohio, clinic. Recently an uninsured patient in the throes of an asthma attack needed twenty tablets of cortisone, and Ross did not have them in his sample room.
So he turned to the hospital pharmacy.
Could the pharmacist spare twenty pills for a patient who could not afford to pay? No, the pharmacist responded, but the patient could buy an entire batch. Ross recalls that, without missing a beat, he said, “You’d better get the guards, then, because I’m coming down and I’m just going to take them. Let them try to stop me if they want.”
When he arrived at the pharmacy, the pharmacist handed him twenty pills without a word.
Ross says that when he perceives he has a choice between acting for the patient or obeying the system, he always chooses the former. He also games the system with procedural sleight of hand. For example, he books all his welfare patients for appointments at the beginning of each month. The clinic generates a bill of $55 for their visit but does not collect the payment. The bill gives his patients evidence that they are spending down their assets, so they can stay on Medicaid.
Ross’s practice of evading government regulators and private insurers is increasingly common. As Dr. David Himmelstein, co-founder of Physicians for a National Health Program, acknowledged, “It’s almost routine that you shape things in the chart to make it look like something the HMO is going to pay for. If a patient with a headache needs to know that it’s not a brain tumor, you shape the story: ‘Didn’t you have a little numbness in your hand at one time?’ The patient says, ‘Yes, there was that one time when my hand was a little numb.'”
Sometimes the confrontations between doctors and managed-care reviewers occur over taped 800 lines, allowing a glimpse of the angry exchanges that have become common. When Dr. Barrett Hyman, a gynecologist in Louisville, Kentucky, attempted to get a hysterectomy approved for Karen Johnson, a patient of his with cervical cancer, the recorded conversation with a high-level claims reviewer for Humana Health Plan, Dr. Martin Swartz, went like this:
“You’re kidding,” said Hyman, when Swartz recommended a less expensive and less effective treatment called a conization.
“I’d do a cone on my wife,” Swartz said, adding, “we’re not suggesting that anybody wait for invasive cancer.”
After a debate of several minutes, Hyman exploded, “I know good and well…you wouldn’t have your wife do it. So you’re working for the damn insurance company and I think you’re an ass…”
“What did you say?” Swartz demanded.
“I think this is an asinine approach to patient care,” responded Hyman.
Johnson ultimately borrowed money for the procedure and sued Humana, her lawyer entering the recorded conversation between doctors into evidence. Last year, a Louisville jury awarded her $13.1 million in punitive damages, even though her case did not involve either serious damage or death, and $100,000 for pain and suffering. (State laws restrict most patients from suing their HMOs, but she was allowed to sue because her husband was a federal employee.)
The escalation of threatened violence and the angry rhetoric does not come just from doctors and patients. Dr. Linda Peeno, who quit her job as the medical director of an HMO to become a whistleblower and expert witness for patients, said that she is on the “hit list” of a managed-care industry that regards her with “sheer hate.”
Her first threatening phone call came after she appeared on Dateline NBC, in a piece about a boy in Atlanta with meningitis who was directed by a Kaiser nurse to an emergency room forty-two miles from his home when he needed immediate care. He became severely ill and later had to have his hands and feet amputated. The family was able to sue because the boy’s mother was a federal employee. A jury came back with a $45 million verdict.
“After it aired, I got this call from a gravelly voice, ‘You better stop doing this stuff,'” Peeno recalled.
In March of 1998, after she published a testimonial in US News & World Report about the real decision-making processes of HMOs, she got another call: “It was a male, very nice, professional-sounding voice: ‘I am calling to tell you that if you make any more media appearances or testify in any more legal cases, harm will come to you.'”
But it was not until an anonymous woman called her husband on his private line, an hour before his office opened, and warned of harm “to her or someone in your family,” that she got scared.
The Peenos put in a security system and worked with the local police. But the calls kept coming, often catching her in places where she thought no one would know the number. Peeno, who describes managed care as “an industry bigger than tobacco,” says, “What they can’t deal with is that I’ve read more contracts and policies and procedures, and have become one of the most knowledgeable people in the country.”
But it is not just her own hard-earned knowledge that chills managed-care executives. It is the fact that moles inside their companies who “hate what they do” feed her information, she said. These sources are crucial to fighting managed care in court. “[HMOs] use and misuse the law,” said Peeno. “You can’t get documents. They tie up the process by either fighting you tooth and nail or they shower you with useless paper. Sometimes, you can’t even get the policy and procedure manual.” Peeno noted that many of the job descriptions for claims reviewers at HMOs say, “Must be able to endure extreme stress.”
Physicians for a National Health Program, which advocates a single-payer system like Canada’s and is one of the country’s most radical doctor groups, would like to see these brushfires of conflict organized into a national movement. Their members have joined in high-concept protests against HMOs, dumping managed-care literature into the Boston Harbor, marching to the Canadian Embassy in Washington, DC, to seek asylum from our healthcare system and descending on the Chicago Stock Exchange to demand that patients be put before profit.
But some members are impatient for more. At an annual PNHP meeting, the co-founder, David Himmelstein, asked, “Is this the time for civil disobedience? How long do we go on with this system and maintain peace? My children are getting to the age when I could spend some time in jail.” Johnathon Ross proposed that the group burn their medical licenses en masse, akin to burning draft cards. But the group deemed this to be an empty symbol. Someone else suggested that they block the lobby of a managed-care company and refuse to move.
The problem, said Ross, is that “you’ve got the golden handcuffs. If you commit a felony in the state of Ohio, you lose your license.” When doctors feel their livelihoods are on the line, their courage to resist often falters. And at times the resistance itself seems to arise more from self-interest than anything else. “When the medical profession has come together, by and large it’s been about their pocketbooks,” said Sandra Hernandez, San Francisco’s former public health director. “Patients have not been put at the center.”
This was the case in Dallas, Texas, where a group of doctors–widely described in the media as medical rebels–told Aetna that they were decamping from the HMO system and dropping 8,000 patients unless they chose to stay on voluntarily. While the doctors complained of patient-care problems, the dispute centered ultimately on money. According to Dr. Ralph Turner, chairman and president of the Genesis Physicians Practice Association, Aetna had agreed to provide the group with centralized data, like patient hospital days and prescription drug information, crucial for managing costs. When Aetna failed to do so, leaving the group in the dark and “financially responsible,” said Turner, the doctors rebelled.
The group ultimately dropped Aetna, which then used a provision in its contract to block Genesis from treating 300,000 additional patients in other plans and threatened the doctors with a price-fixing lawsuit. “We weren’t trying to blow up managed care,” said Turner. “We have managed-care companies that really want to work with us.”
The group’s concern over money is made visible to patients in the office of one Genesis doctor, Evan Bates. Three different signs stuck to the sliding door of the reception area say: “Payment is expected at the time services are rendered.” “$15 service charge on all returned checks.” “Sorry, we do not validate parking.”
By contrast, Johnathon Ross of Ohio has studiously removed every mention of payment from his office so that he won’t discourage patients from seeking care. But he also relies on a strange rapport with the system he detests. He uses the drug-company representatives for their samples, for instance, at the same time that he keeps a folder of every “bribe” they send him: offers of cruises and elegant dinners, golfing outings and family trips to amusement parks, in exchange for learning about or using some of their products. He sent this file, including the one about an evening of beef tenderloin and carrot cake to talk about advances in cholesterol-reducing drugs, to the Ohio Attorney General for investigation. He received no response.
On a recent day a drug representative wandered into his office, and Ross bristled with hostility as she unloaded a jar of candies bearing her company slogan and a bagful of samples. But when his patient, Wanda Williams, came in to get medication for a seizure disorder, her baby daughter in tow, the samples were crucial. “Welfare needs to know the gross of my husband’s income,” she said. “But if I don’t get my dilantin, I’ll die.”
In 1992 the St. Vincent Medical Center Auxiliary Foundation invited various medical practices to compete for a $50,000 grant to purchase medications. Most of the competitors showed up with a fancy presentation and glossy slides. Ross simply showed blank slides, to illustrate his empty medicine cabinets. He won the grant.
Ross seems a rare kind of doctor–for now. But as healthcare professionals grow angrier about scraping together care from a threadbare system, they are increasingly ready to defy the bureaucrats and insurers who get in their way.