Managed Care: Can lying be good medicine?

Some doctors lie to insurers to help their patients. Others cut corners to protect themselves.

By Robert Lowes
Senior Editor

The Hippocratic oath tells you how to act ethically toward patients. Keep them from harm and injustice, it says; you owe patients your unswerving allegiance.

The oath, however, offers little guidance on relating to other parties that figure heavily in your professional life—the federal government, health plans, hospitals, maybe an employer. What do you owe them? If their agendas jeopardize a patient's well-being, how do you resolve the conflict? What if a health plan won't pay for a needed treatment, for example, or asks you to follow a dubious clinical guideline?

Sixty years ago, these questions didn't come up because physicians essentially answered only to patients. The doctor, usually a soloist, performed a service. The patient paid the bill out of his own pocket. The rise of third parties changed all that. Health insurance covering physician charges started becoming widespread after 1940. Because they footed the bill, insurers wanted a say in how doctors practiced. The birth of Medicare and Medicaid in 1965 brought the government into the picture. Meanwhile, doctors increasingly abandoned solo practice to join groups—not just as partners, but as employees. By 1999, 38 percent of physicians were employed, according to the American Medical Association. Some work for hospitals, which have gained more power over employed and independent doctors alike due to widespread consolidation.

As a result, doctors now find themselves accountable to a wide array of organizations. All can pressure a physician to practice a certain way—and punish him financially if he won't comply.

The results of our ethics survey suggest that most physicians keep a clear conscience about how they deal with third parties and patients. However, a sizable minority step into gray zones as they cope with heavy-handedness by third parties.

Would you fudge to help patients?

Doctors feel pressured when they recommend a course of care for a patient but fear the insurer won't pick up the tab. If that happens, the patient may either forgo treatment or pay for it himself, possibly causing real financial hardship. Or the physician may end up providing an unreimbursed service.

To find out how the prospect of an insurance company denial affects physicians' actions, we asked doctors, "Have you ever exaggerated or misstated a patient's diagnosis to a third party in order to secure authorization for a treatment, procedure, or hospital stay that might otherwise have been denied?" Twenty-one percent answered Yes.

"I've exaggerated menstrual flow to get a hysterectomy authorized," says one Provo, UT, ob/gyn. Another physician says he overstated the severity of a patient's dehydration to get permission to hospitalize her.

Sometimes, the deception is more blatant, such as when doctors substitute a diagnosis that guarantees insurance coverage for one that would mean rejection. "When I treat a depressed patient, I'll put down fatigue because the insurer won't pay for depression," says one doctor.

Phony symptoms represent perhaps the most flagrant fibs. To secure a colonoscopy for a patient with a family history of colon cancer, one doctor says he reported a nonexistent bloody stool.

An Alabama primary care doctor discovered the word "headache" works similar magic. "My patient was a 73-year-old man who had been treated earlier for brain cancer," says the doctor. "He came to the office one day feeling confused and dizzy. To rule out a recurrence of the brain cancer, I wanted a CT scan, but a hospital clerk said Medicare wouldn't pay for it based on the man's symptoms. After 45 minutes, the clerk said 'headache' would get the CT scan approved, so that's what we settled on."

Internists lead the pack in fudging diagnoses, with 32 percent admitting to this tactic. The most truthful specialists are pediatricians; only 10 percent say they've misled insurers. Evanston, IL, internist Matthew Wynia, director of the AMA's Institute for Ethics, speculates that internists may face more temptation to exaggerate because they treat so many Medicare patients and therefore contend with picky Medicare regulations. Pediatricians may face fewer insurance hoops.

Wynia's research suggests that fudging diagnoses is even more widespread than our survey indicates. According to a study that he co-authored, published in JAMA in 2000, 39 percent of physicians reported deceiving insurers within the previous year.

Some doctors in our survey feel no remorse about fibbing. "I don't give a hoot what anybody thinks," says one semiretired general surgeon in Pennsylvania. He once falsely claimed a woman had a fever so she could have a few more days in the hospital after abdominal surgery. "I'm going to send my lady home when she's ready to go home," he says.

Other dissemblers suffer from a guilty conscience. "I feel real crummy about it," says the Alabama doctor with the brain cancer patient. "It's not the right thing to do, but it's also not right when a patient with obvious neurological changes and a history of brain cancer can't get a test."

Most doctors (79 percent) say they don't play games with insurers. "My integrity and personal honor would not allow me to do that," asserts Iowa City, IA, cardiologist Thomas Layman. Organized medicine is on his side: The AMA's Council on Ethical and Judicial Affairs states that "physicians should make no intentional misrepresentations . . . to secure noncovered health benefits for their patients."

Honesty is the best policy, for several reasons. Inserting a false diagnosis or symptom in a patient's record could keep him from getting insured someday, or could lead to a treatment error. And when a patient knows a doctor has lied on his behalf, he may wonder if the doctor will lie to him as well, says Matthew Wynia. "Lying erodes trust." He notes, however, that in many cases, patients ask their doctors to fool insurers.

Mohit Ghose, a spokesperson for the American Association of Health Plans, says doctors afraid of an insurance veto have an alternative to committing fraud: "They can resort to appeal processes both inside and outside the health plan."

Although he considers physicians' dishonesty wrong, Wynia sympathizes with doctors who feel obligated to lie. "If doctors believe deception is the only way to get care for their patients, it's an indictment of our system," he says.

Do you upcode to get even?

It's not hard to find doctors who believe that insurers cheat them out of income, but how many fight fire with fire? When we asked doctors, "Have you ever 'upcoded' claims to make up for those you felt were unfairly denied or 'downcoded' by third parties?" only 7 percent said they had. These doctors, of course, run afoul of the AMA's Council on Ethical and Judicial Affairs, which forbids deception aimed at increasing a doctor's level of payment.

The smaller the practice, the higher the rate of deliberate upcoding, we found. Ten percent of soloists say they upcoded, compared with 6 percent of doctors in groups of 10 or less and 3 percent of doctors in groups of 10 or more. Coding consultant Joy Newby in Indianapolis speculates that doctors in large groups find it harder to upcode because they're under more supervision and tougher Medicare compliance plans. Plus, she says, salaried doctors in large groups don't have the same incentive to upcode as soloists do.

Experts say intentional upcoding is dwarfed by unintentional upcoding. That's when a physician performs the services signified by the selected code, but fails to adequately document those services in the medical chart. "It's not so much committing fraud as it is committing something dumb," says Todd Welter, a Denver practice management consultant. And far more physicians deliberately downcode than upcode, Welter adds. "They think they're reducing their risk of prosecution under fraud and abuse laws."

Guidelines: always follow?

We also asked physicians: "Have you ever followed treatment guidelines promoted by hospitals, insurers, or your group, even though you didn't believe they represented the best approach for your patient?" Twenty-six percent of respondents replied Yes.

Today's practice-guideline movement has sparked great controversy among physicians. Proponents say that guidelines based on solid medical evidence will improve patient care by replacing idiosyncratic decision-making by doctors, who too often navigate according to their limited personal experience. However, physicians sometimes chafe under even the most authoritative guidelines, contending that they may not apply in a given patient's circumstances. Physicians reserve their harshest comments for guidelines they believe are mere cost-cutting tools with little scientific support. One commonly cited example is the hospital-discharge guidelines created by Milliman USA (formerly Milliman & Robertson).

Milliman has been roundly lambasted for advocating hospital stays considered too short for a patient's good. Some third parties that subscribe to Milliman guidelines crack down hard on wayward doctors, even threatening to dismiss them.

The AMA urges doctors who receive such threats to stick to their convictions. "Regardless of any allocation guidelines or gatekeeper directives," states the Council on Ethical and Judicial Affairs, "physicians must advocate for any care they believe will materially benefit their patients."

Fortunately, our survey indicates that 74 percent of physicians resist guidelines they deem flawed or inappropriate for their patients. One such physician, Louisville ob/gyn J. Barrett Hyman, diagnosed Karen Johnson, a mother of two, with carcinoma in situ of the cervix in 1995. Hyman recommended a hysterectomy, but Humana—Johnson's insurer—would only pay for a conization, a less radical, less expensive procedure. Humana based its decision on guidelines developed by an outside utilization review company. Hyman stood his ground against Humana and its UR doctors, but failed to change their minds. He performed a hysterectomy free of charge, and Johnson paid the hospital bill herself. She then later sued Humana for breach of contract and bad faith. She won a $13 million jury verdict, but ultimately settled for about $2 million while the verdict was under appeal.

To Hyman, even the one-doctor-in-four survey results on compliance with guidelines are troubling. "All doctors," he says, "ought to be opposing things they know aren't good for patients."

Robert Lowes. Managed Care: Can lying be good medicine?.

Medical Economics

2002;19:86.