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Deceiving insurance companies: new expression of an ancient tradition11This editorial inaugurates a planned series of articles, published at irregular intervals, which address contemporary ethical issues facing general thoracic and cardiac surgeons. Dr Robert M. Sade, Associate Editor for Ethics, will lead this effort and plans a series of editorials and pro and con discussions. The intent of these articles is to raise the sensitivity of our readers to ethical issues and to support the high …

2001; Elsevier BV; Volume: 72; Issue: 5 Linguagem: Inglês

10.1016/s0003-4975(01)03076-4

1552-6259

Robert M. Sade,

Patient Dignity and Privacy

Perform these duties calmly and adroitly, concealing most things from the patient while you are attending to him … revealing nothing of the patient's future or present condition.Hippocrates of Cos (460–377 bc)Two divergent threads of thought regarding truth telling have persisted since ancient times. Examples taken from Plato and Aristotle may illustrate this dichotomy, although ideas from elsewhere in their writings suggest that their views were not as opposed as these excerpts suggest. Plato held that lying in general is to be avoided, but with certain exceptions. "The lie in words is in certain cases useful and not hateful, in dealing with enemies—that would be an instance, or again when those who we call our friends in a fit of madness or illusion are going to do some harm, then it is useful and is a sort of medicine or preventive" [1PlatoRepublic, II:382, translated by B. Jowett. The dialogues of Plato Vol 1. Random House, New York1937: 646Google Scholar]. In fact, the ideal society Plato describes in the Republic is a fabric woven from lies told to ordinary citizens by philosopher-kings, who alone are capable of understanding truth.Aristotle, however, is most concerned with the effects of lying on personal character:[The truthful person] is truthful both in what he says and how he lives simply because that is his state of character. Someone with this character seems to be a decent person. For a lover of the truth, who is truthful even when nothing is at stake will be still keener to tell the truth when something is at stake, since he will avoid falsehood as shameful when something is at stake, having already avoided it in itself when nothing was at stake. And this sort of person is praiseworthy. [2AristotleNichomachean ethics, iv:4.93, translated by T. Irwin. Hackett Publishing, Indianapolis, IN1985: 110-111Google Scholar]According to Aristotle, lying undermines character and, in the long term, makes achievement of the good life more difficult.Over the centuries since ancient times, these two approaches—Platonic justification of some deception for short-term gain and Aristotelian insistence on honesty to make possible long-term goals—have each had advocates among philosophers and theologians. Nearly all have generally supported telling the truth, but a dichotomy has persisted between those who maintain that deception and lying are always or nearly always wrong and those who find frequent exceptions to this requirement. This dichotomy persists today in the debate over how best to respond to denial of payment by insurance companies in contemporary health care.Deception in medicine, recent shift to honestyFor purposes of this discussion, I distinguish between deceiving and lying, after Sissela Bok: To deceive is to communicate messages intended to make others believe something the deceiver does not believe to be true, including omission of relevant information. To lie is to speak or write an intentionally deceptive message. Thus, lying is a subtype of deception [3Bok S. Lying. Moral choice in public and private life. Vintage Books, New York1999: 13-16Google Scholar].The use of deception by physicians has deep roots. The tradition of deceiving patients "for their own good" was well established in ancient times, as noted above, and remained integral to medical practice until the latter part of the 20th century. Gradually over the last several decades, traditional practices of deceiving patients with the intent to reduce their suffering has given way to attitudes of truth telling to facilitate patients' self-determination. New emphasis on respect for patient self-determination in this country has led to a not seen before level of truthfulness in dealing with patients.This trend is reflected in the American Medical Association (AMA) code of medical ethics. When the code was first written in 1847, based largely on Thomas Percival's earlier writing (1803), deception was generally accepted: "The life of a sick person can be shortened not only by the act, but also by the words or manner of a physician. It is, therefore, a sacred duty to guard himself carefully in this respect, and to avoid all things which have tendency to discourage the patient and depress his spirits" [4Baker R. Emanuel L. The efficacy of personal ethics the AMA code of ethics in historical and current Perceptive.Hastings Cent Rep. 2000; 30: S13-S17PubMed Google Scholar]. This exhortation to avoid the harmful effect of words on patients in the AMA's first ethical code, reminiscent of the Hippocratic view expressed in the epigraph above, is absent from the current strongly worded principles of medical ethics, adopted by the AMA in 1980: "A physician shall deal honestly with patients and colleagues …" [5Council on Ethical, and Judicial Affairs, American Medical Association. Code of medical ethics: current opinions with annotations, 2000–2001 edition. Chicago: American Medical Association, 2000:xiv.Google Scholar]. This principle is developed further in opinion 8.12: "Patients have a right to know their past and present medical status and to be free of any mistaken beliefs concerning their conditions" [6Council on Ethical, and Judicial Affairs, American Medical AssociationOpinion 8.12, Code of medical ethics current opinions with annotations, 2000–2001 edition. American Medical Association, Chicago2000: 174-175Google Scholar]. This opinion also contains a specific warning that acting for personal protection should not override honesty: "Concern regarding legal liability … should not affect the physician's honesty with the patient." This view is a considerable departure from the Hippocratic and early AMA view of deception.These guidelines reflect, to some extent, the realities of recent medical practice. For example, a survey in 1961 asked physicians whether cancer patients should or should not be told that they have cancer; 88% thought they should not be told [7Oken D. What to tell cancer patients a study of medical attitudes.JAMA. 1961; 175: 120-128Google Scholar]. By 1979, a striking shift had occurred: a survey using questions nearly identical to those of the earlier study found that 98% of physicians believed patients should be told they have cancer [8Novack D.H. Plumer R. Smith R.L. Ochitill H. Morrow G.R. Bennett J.M. Changes in physicians' attitudes toward telling the cancer patient.JAMA. 1979; 241: 897-900Crossref PubMed Scopus (534) Google Scholar].The new deception: lying to insurance companiesDespite this recent apparent change in attitude toward telling patients the truth, a new manifestation of deceit in medicine has appeared recently: misrepresentation of patient information to insurance companies. Consider the following case:A 60-year-old man has severe emphysema for which no treatment other than an operation for lung volume reduction is beneficial. This relatively new operation is considered experimental, is being studied under a National Institutes of Health protocol, and is not covered by the patient's private insurance policy. The attending surgeon completes the required operation, and asks the surgical resident who assisted during the operation to dictate the operative note. The surgeon asks the resident not to use the term "lung volume reduction," but to stress the few blebs seen on the surface of the lung, naming the operation "resection of emphysematous blebs." The resident initially hesitates, and the attending surgeon angrily states, "Well, then, I'll dictate it myself!" On discussing this incident with colleagues, the resident is surprised to learn that some attending surgeons usually dictate their own operative notes in order to assure that no statements are made or operative procedures recorded that might result in denial of insurance coverage. On occasion, the resident is told, some surgeons alter an admission diagnosis to gain insurance coverage for their patients. The resident wonders how long it will take to learn all these tricks of the trade.The practice of lying to insurance companies appears to be widespread among physicians. A recent survey asked internists whether they would support a fellow physician who deceived a third-party payor to secure coverage for a specified group of services. The physician would not gain from the transaction. The proportion of physicians who approved of such deception varied according to the perceived severity of threat to the patient if a service were denied: for example, coronary bypass operation (58%), arterial revascularization (56%), mammography (48%), emergency psychiatric referral (32%), and cosmetic rhinoplasty (3%) [9Freeman V.G. Rathore S.S. Weinfurt K.P. Schulman K.A. Sulmasy D.P. Lying for patients physician deception of third party payors.Arch Intern Med. 1999; 159: 2263-2270Crossref PubMed Scopus (118) Google Scholar]. In another study, 70% of physicians admitted that they would choose to misrepresent a patient's symptoms in order to convince an insurance company to fund a routine mammogram, if the company would otherwise refuse to pay for the procedure [10Novack D.H. Detering B.J. Arnold R.M. Forrow L. Ladinsky M. Pezzullo J.C. Physicians' attitudes toward using deception to resolve difficult ethical problems.JAMA. 1989; 26: 2980-2985Crossref Scopus (152) Google Scholar].In a third study, when asked why they miscode, many physicians reported that they consider doing so is necessary to "provide high-quality health care today" [11Wynia M.K. Cummins D.S. VanGeest J.B. Wilson I.B. Physician manipulation of reimbursement rules for patients between a rock and a hard place.JAMA. 2000; 283: 1858-1865Crossref PubMed Scopus (149) Google Scholar]. Participants in these studies were most likely to approve of deception when the condition was life threatening, and approval was related to the clinical severity of the condition. This finding suggests that study participants were not likely to choose miscoding as a first option, but that they would do so if they believed that serious harm would result to the patient if coverage were denied. Rates of willingness to miscode decline for palliative care and sink even lower for diagnostic procedures. In each of these situations, there are more options for care, less urgency to provide the care immediately, and more time available to pursue an appeal. Few physicians were willing to miscode to secure cosmetic procedures for their patients, suggesting that their willingness to deceive does not extend to serving a patient's vanity. Most physicians who advocated miscoding in at least one of the vignettes also reported feeling torn between their professional obligation to act as an advocate for their patients, and their contractual obligations to preserve the integrity of the insurance system.The data from these studies are consistent with the view that physicians miscode because they are committed to acting as advocates for their patients. On this view, miscoding only manipulates a tool, insurance coverage, to promote the well-being of patients.The insurance company as the enemyThe AMA code of medical ethics advocates dealing honestly with patients and colleagues, as noted above. The code, however, goes further than this, extending the principle of honesty to dealing with insurance companies: "Physicians shall make no intentional misrepresentation to increase the level of payment they receive or to secure noncovered health benefits for their patients" [12Council on Ethical, and Judicial Affairs, American Medical AssociationOpinion 9.132(2), Code of medical ethics current opinions with annotations, 2000–2001 edition. American Medical Association, Chicago2000: 229-230Google Scholar]. Truth telling is clearly held in high regard by many ethicists. Why, then, as pointed out in the studies cited previously, are physicians generally so willing to deceive insurance companies?For Plato, some lies are justified for their immediate practical benefits. He gave the example of the utility of lying to an enemy. In Platonic terms, many believe that insurance companies of modern times have become the enemy, so, according to this line of reasoning, deceiving them is fully warranted. They are the enemy because they prevent the patient from receiving needed care, which the physician is morally obligated to assure the patient will receive.Is the insurance company truly the enemy? The flaws, inefficiencies, and perversities of our current health care financing system make this belief appear to be true [13Sade R.M. Health care reform implications for clinical medicine.Ann Thorac Surg. 1994; 57: 792-796Abstract Full Text PDF PubMed Scopus (1) Google Scholar]. Health insurance for most residents of the United States is obtained through their employers, largely because of public policy developed over the last several decades. Health insurance is tax deductible, and therefore substantially less expensive when purchased by an employer than when purchased by an individual. The employer, however, is acting as the patient's agent. When a health insurance policy is purchased, patients or their agents (the employers) choose a policy based in part on higher or lower cost. Lower premiums are generally associated with fewer or less costly benefits. Employers tend to choose policies that are less expensive because of the financial savings to them. Employees are free to buy a more comprehensive health insurance policy on their own, but seldom do so because of the large additional financial burden. They almost always choose instead to accept the insurance selected and purchased for them by their employer. Thus, when an insurance company denies payment for a procedure because it is not covered, patients are getting what they (or their agent) have paid for.Some argue that insurance companies use deceptive practices in selling policies or keep details of coverage purposely vague, so purchasers do not really know the precise terms of their insurance coverage. On this view, patients should not be held rigidly to seemingly arbitrary decisions of their insurance companies, and lying to the companies is justifiable as an antidote to their deceptions. There is no doubt that many companies do not reveal the details of covered illnesses and procedures, sometimes defending this practice as protecting proprietary competitive information (much as Coca-Cola keeps secret its formula for Coke). Some may even engage in corporately sanctioned deceptive sales practices. But when an insurance company deceives purchasers, there are legal remedies for fraud. When a company protects information as proprietary, we may not like that practice, but the company is legally entitled to do so. We can, and do, decry such practices as reprehensible. Employers and employees are free to take their business elsewhere to more reliable companies, or to make efforts to change the insurance laws. Lying to the insurance company, however, does little to rectify the problem the company has created for its policy holders.Deception serving self-interestSome kinds of deception are clearly self-serving and unrelated to benefiting patients, such as upcoding removal of a sternal wire to "sternal debridement," or embellishing an incidental single suture closure of a patent foramen ovale by naming it "repair of atrial septal defect." I confine my discussion here, however, to the morally more ambiguous case of miscoding ostensibly for the benefit of the patient.It is not altogether clear when a surgeon lies to an insurance company for the benefit of a patient that it is his or her only motivation. The surgeon also stands to benefit himself or herself and his or her organizations in several ways. By obtaining insurance coverage for the patient, the surgeon and others (eg, practice partners, hospitals of affiliation) secure payment that otherwise would have been uncertain. Time and energy do not have to be expended in appealing to an insurance company. When a surgeon deceives a third party, the motivation may be partly to serve the interests of the patient, but also may be partly to serve the surgeon's financial and other self-interests.An interesting illustration of deception serving self-interest can be seen in the case of the resident physician being asked to dictate an operative note in a deceptive manner, cited above. That case was hypothetical, and I have used it in teaching exercises with surgery residents and attending surgeons. When asked if the sort of deception the case describes is acceptable, all but a small minority respond affirmatively. I then point out that the operation has already taken place, so nearly all of the benefits from the lie will accrue to the surgeon and the hospital, in the form of assuring payment of their bills. No medical benefit accrues to the patient, who has already had his operation (though the patient may be spared the bother of negotiating payment of the bill). On a second showing of hands, the consensus among the physicians hearing the case does not change: they still believe the deception to be acceptable. This poll suggests that no bright line separates the perception of morality in actions that benefit patients from those that benefit physicians, at least for the dictation of operative notes.Benefits and harms of deceptionThe paramount ethical consideration in the practice of clinical medicine traditionally is balancing benefits and harms [14Fletcher J.C. Miller F.G. Spencer E.M. Clinical ethics history, content, and resources.in: Fletcher J.C. Lombardo P.A. Marshall M.F. Miller F.G. Introduction to clinical ethics. 2nd ed. University Publishing Group, Frederick, MD1997: 13Google Scholar]. In evaluating a proposed action, benefits should outweigh harms. How does this balance play out in considering lying to insurance companies? Both short- and long-term effects of deception must be considered.In the short term, when surgeons lie to insurance companies, benefits accrue to both the patient and the surgeon. The patient receives an operation or service he or she might not have received if insurance coverage were denied, for example, if the hospital would not allow the patient to be admitted without assurance of payment, which the patient cannot afford. If the patient would have received the operation even without coverage, he or she is spared the necessity of negotiating with providers to pay the bills. The surgeon benefits by being paid a fee, which might not have occurred without insurance coverage. The surgeon also avoids the inconvenience and loss of time an appeal to the insurance company would consume. Moreover, the surgeon avoids the discomfort and anger he or she might feel at having to deal with an adversarial insurance company. There seem to be little immediate harm. In the short term, benefits to both patient and surgeon appear to outweigh substantially the harms of lying to the insurance company. Deception is expedient.But what of the long term? Does the balance of benefits and harms change? Long-term benefits of misrepresenting patient information include the patient being appropriately cared for, and the surgeon being financially better off. There are noteworthy long-term harms as well, however. There is a practical risk to the surgeon that the deception will be detected and therefore he or she is vulnerable to the charge of fraud (which may, in fact, be true), with all its social and legal consequences. Moreover, by practicing deception routinely, the physician undermines his or her own character and future well-being. David Hume, the 18th century philosopher, made the point in this way:Honesty, fidelity, truth are praised for their immediate tendency to promote the interest of society; but after those virtues are once established on this foundation, they are also considered as advantageous to the person himself, and as the source of that trust and confidence, which can alone give a human any consideration in life. One becomes contemptible, no less than odious, when he forgets the duty, which, in this particular, he owes to himself, as well as to society [15Hume D. Enquiries concerning the human understanding and concerning the principles of morals. 2nd ed. Clarendon Press, Oxford, UK1957: 238Google Scholar].If a physician lies for a patient, how is the patient to know that the same physician is not willing also to lie to him or her? Mutual trust and confidence inevitably may be eroded when deception enters the relationship, even if it is directed externally. Loss of trust is a critically important harm because trust comprises the very foundation of the physician–patient relationship [16Pellegrino E. The commodification of medical and health care the moral consequences of a paradigm shift from a professional to a market ethic.J Med Philos. 1999; 24: 243-266Crossref PubMed Scopus (136) Google Scholar].Deception may lead directly to harming the patient in the long term, because of the potential for future confusion and misdiagnosis [17Morreim E.H. Gaming the system, dodging the rules, ruling the dodgers.Arch Intern Med. 1991; 151: 443-447Crossref PubMed Scopus (83) Google Scholar]. This concern may be particularly pertinent for the most socially and economically vulnerable, because they have the least access to health care insurance, and are the most likely to switch insurance providers and to lose health care coverage. Each of these outcomes compromises continuity of care. One can readily imagine how miscoding could be undetected by the future physicians of these patients, and how such miscoding could easily lead to misdiagnosis. In such a situation, a well-intentioned earlier decision to assist a patient might lead to harmful future consequences that the surgeon cannot predict.Patients are often not told of misrepresentation in coding. Yet, unless the surgeon makes the patient a coconspirator, he or she is acting paternalistically. Unless the act of miscoding is discussed and has the patient's agreement, the surgeon may be undermining the very autonomy he or she should seek to uphold.Another long-term harm is systematic: whereas miscoding might serve an individual patient in a given situation, it does nothing to change a flawed health care system, miscoding serves only to perpetuate the problem. Moreover, miscoding is arbitrary and capricious, insofar as it best serves patients who have a personal relationship with their surgeons—those patients for whom one cares about enough to undertake risks. This might exclude substantial portion of a surgeon's patient population, including the very patients who could benefit most from health care reform.Beyond its harmful effects on individual surgeons and patients, when deception of insurance companies becomes as widespread as it is now known to be, the entire profession suffers from undermining of the trust that is essential to the physician–patient relationship. This will especially be the case when the media bring to light, as is ultimately likely, the extent to which surgeons personally benefit from deceiving third parties under the cloak of protecting the patient's interests.Society as a whole is harmed as well. The dishonesty of surgeons who assist patients to gain what does not rightfully belong to them undermines the actuarial foundation of the insurance industry, making it more difficult for patients, their employers, and insurance companies to control the cost of health care. Also, in helping one patient by lying to an insurance company, the surgeon harms large numbers of others, specifically, other policyholders who pay premiums.By dealing dishonestly with insurance companies, surgeons fail to put the real problem squarely on the table for open consideration by the insurance company, the employer, and society. The problems related to denial of needed care remain hidden and unresolved. It would be better for surgeons to try to obtain coverage by advocating openly and honestly for the patient, requesting coverage by the insurance company through the appeal mechanisms many companies have in place. This course may be the best way to preserve the trusting relationship of individual patients with their physicians and of all patients with the medical profession.Undoubtedly, surgeons are in the difficult position of wanting to serve the patient's best interest, but being unable to do so because of an agreement the patient (or the patient's agent) has made with an insurance company. The remedy for this situation, however, is not for the surgeon to deceive the insurance company, but rather, to work toward changing the system so that such deception is not needed. There are a number of ways to achieve reform, ranging from creating a single-payor, nationalized health insurance system to creating a competitive insurance market through tax reforms that would encourage patients to choose, purchase, and own their own insurance policies. I do not intend to enter that debate at this point, having done so in the past [13Sade R.M. Health care reform implications for clinical medicine.Ann Thorac Surg. 1994; 57: 792-796Abstract Full Text PDF PubMed Scopus (1) Google Scholar]. My intention is only to point out that dishonesty may not be the best solution to the difficulties surgeons face daily in caring for patients. Indeed, dishonesty may contribute to the perpetuation of a profoundly unsatisfactory health care financing system.ConclusionSurgeons have many motivations to deceive insurance companies. Some of them serve the patient's interests, whereas some serve the surgeon's interests. Clearly defining the relative power of the several motivations is difficult. Personal conversations with colleagues have persuaded me that many believe their only motivation in misrepresenting patient information to an insurance company is to help the patient. Often, they believe this in the face of clear evidence to the contrary (eg, when lying is the only way they will receive payment for their services).Many physicians not only find it to be acceptable to deceive insurance companies, but do so with a feeling of pride, believing it to be a praiseworthy act. The loss of a sense of wrongdoing when lying is perhaps the most baleful consequence of deceiving insurance companies. It may sometimes be necessary to deceive in order to achieve a good or prevent an evil so great that it overrides the harmful effects of deception on trustworthiness and trusting relationships. In my view, however, such lies should be necessary rarely, if ever, and should never be a cause for rejoicing or complacency. This point was stated well by Dorotheus of Gaza in the fifth century: "If one does not lie with fear and sorrow, then one does wrong even when one lies for good and necessary cause" [18Dorotheus of Gaza. Instructions, 9.96–103. Cited in B. Ramsey, Two traditions on lying and deception in the ancient church. The Thomist 1985;49:504–33.Google Scholar]. Perform these duties calmly and adroitly, concealing most things from the patient while you are attending to him … revealing nothing of the patient's future or present condition. Hippocrates of Cos (460–377 bc) Two divergent threads of thought regarding truth telling have persisted since ancient times. Examples taken from Plato and Aristotle may illustrate this dichotomy, although ideas from elsewhere in their writings suggest that their views were not as opposed as these excerpts suggest. Plato held that lying in general is to be avoided, but with certain exceptions. "The lie in words is in certain cases useful and not hateful, in dealing with enemies—that would be an instance, or again when those who we call our friends in a fit of madness or illusion are going to do some harm, then it is useful and is a sort of medicine or preventive" [1PlatoRepublic, II:382, translated by B. Jowett. The dialogues of Plato Vol 1. Random House, New York1937: 646Google Scholar]. In fact, the ideal society Plato describes in the Republic is a fabric woven from lies told to ordinary citizens by philosopher-kings, who alone are capable of understanding truth. Aristotle, however, is most concerned with the effects of lying on personal character: [The truthful person] is truthful both in what he says and how he lives simply because that is his state of character. Someone with this character seems to be a decent person. For a lover of the truth, who is truthful even when nothing is at stake will be still keener to tell the truth when something is at stake, since he will avoid falsehood as shameful when something is at stake, having already avoided it in itself when nothing was at stake. And this sort of person is praiseworthy. [2AristotleNichomachean ethics, iv:4.93, translated by T. Irwin. Hackett Publishing, Indianapolis, IN1985: 110-111Google Scholar] According to Aristotle, lying undermines character and, in the long term, makes achievement of the good life more difficult. Over the centuries since ancient times, these two approaches—Platonic justification of some deception for short-term gain and Aristotelian insistence on honesty to make possible long-term goals—have each had advocates among philosophers and theologians. Nearly all have generally supported telling the truth, but a dichotomy has persisted between those who maintain that deception and lying are always or nearly always wrong and those who find frequent exceptions to this requirement. This dichotomy persists today in the debate over how best to respond to denial of payment by insurance companies in contemporary health care. Deception in medicine, recent shift to honestyFor purposes of this discussion, I distinguish between deceiving and lying, after Sissela Bok: To deceive is to communicate messages intended to make others believe something the deceiver does not believe to be true, including omission of relevant information. To lie is to speak or write an intentionally deceptive message. Thus, lying is a subtype of deceptio