In the forums over at Big Fat Blog, there’s a discussion going on about the 15 South Florida OB/Gyns (out of 105 that the Sun Sentinel surveyed) who limit their practices to women who weigh less than 200 pounds (and additional practices that set other, slightly higher weight limits, 250 lbs., e.g.).
The offending doctors claim they’re discriminating because their equipment or exam tables are inadequate and that fat patients are at higher risk for complications and should go to specialists.
Many of the voices chiming in, both at Dr. Freedhoff’s site and BFB are jumping on the blame-the-lawyers bandwagon. In other words, the enemy is our litigious society. Doctors are afraid of lawsuits. This makes me uncomfortable. We common citizens should think HARD before throwing away our legal protections. Conflict alert: I am married to a lawyer. I’m also the daughter of a lawyer, and the sister of a lawyer, and sister-in-law of a lawyer. My family is lousy with lawyers. Though I am not one myself, I am fond of lawyers. Even if I wasn’t, however, I think this blame-the-lawyers thing wouldn’t pass the smell test.
For one thing, the assault on “frivolous lawsuits” strikes me as overblown, exaggerated and wrong-headed as the “war on obesity.” The Duke Law Review has the best summary I could find of the “frivolous lawsuit” scare, and it makes a measured argument for how exaggerated it is. Brief summary: Those cases that are, indeed, frivolous are rare but over-reported in the news media, simply because they are more interesting than the millions of run-of-the-mill claims that get settled every day. Moreover, often these cases are oversimplified in the mainstream media (imagine that!) and outright misrepresented by insurance spokespeople and the like who benefit by portraying them as “frivolous,” when a closer examination of the facts would reveal otherwise.
Frivolous claims are not some great industry for legit or competent attorneys, because judges already have the power to throw out “frivolous” cases and even issue $anction$ against the attorneys who file them. Some pro-business legislators have suggested that attorney’s “game the system” by filing frivolous cases on the notion that corporations will “settle” in order to avoid going to court. That’s ridiculous and backwards. Corporations keep their attorneys on retainer, so it’s no additional cost to them to go to court. More often, corporations (including insurance companies) routinely deny claims, even when legit, because they know how difficult and expensive the claim will be for a lone citizen. A claimant has a hard enough time securing an attorney for a good but marginal case; finding an attorney stupid enough to take a “frivolous” case and risk a judge’s $anction is enormously difficult. Finally, if a claim does make it to a jury and receive what sounds like an extreme or “frivolous” judgment, often an appeals judge later lowers the award, but this fact never becomes part of the story that creates a particular case’s urban legend.
My husband, who represents claimants in workers’ comp cases (injuries that happen on the job) must frequently deliver disappointing news to clients about how an insurance company is dragging its feet, or some such. Some clients tell him that they understand how challenging his job is (because of all the frivolous cases, of course) and he must be happy to see them walk in the door, since their claim is legit. “Actually, your case IS exactly the “abuse” that you’ve heard about. Any claim to a profit-making entity – the employer or its insurance company – impedes the first mission of the company, which is profit making, and is, therefore, “frivolous.” Your claim, some would say, will steal jobs by dinging the insurance company’s coffers and, therefore, raising premiums for your employer, which will presumably prevent your employer from hiring new people.” The client sits dumbfounded: “But I’m a loyal employee and it was an accident.” My husband hands his client a tissue, and continues to work on the “frivolous” case.
So, if the enemy isn’t lawyers, who is it? The insurance companies? (Conflict alert: my sister is a lawyer for an insurance company.) I don’t think so. Yes, they made some boner investment decisions during the financial bubble and are now trying desperately to survive the economic recession. Moreover, it is annoying when profit-making usurps the stated goal of providing a shared-risk pool to protect clients from adverse events. (Although, when that happens it provides work for lawyers, which is good.) Insurance companies also may try to convince the rest of us to give up our legal protections and give them more favorable (profitable) laws by overstating how much fraud and abuse happens, but that’s to be expected. It’s a logical part of their playbook. We put up with these shenanigans because we do need their services, the shared risk pool, and they will – and this is most important – play by the rules they’re given, generally. We’re the fools (we become the enemy) if we allow them to trick us into thinking that a society governed by corporate elites for the benefit of corporate elites is superior to a society where corporations are subject to reasonable regulations imposed by a government of the people for the people.
So, if not lawyers or insurance companies, who is the enemy? I think it is (drum roll) “Fee For Service.” For the past two weeks, I’ve been reading the enormous amount of thought and consideration that Dr. Sharma devotes to his patients before recommending them for bariatric surgery. (The series begins here.) The patients must suffer from debilitating conditions, in addition to being obese, before he considers even preparing them for the idea of such surgery, and then he presents the hazards as well as the benefits. That doesn’t happen here in the US.
Apparently, it doesn’t happen consistently in Canada either. Dr. Sharma has a nice quote in an otherwise poorly written article about a study that calls for more oversight of private weight-loss surgery practices. Apparently, in Canada, if you’ve got money, you may have a private weight-loss procedure, and you’ll be subjected to the same kind of misinformation and skewed, overly optimistic prognosis that you might receive in the states. (Irony alert: the article reports that the study reveals that some clinics provided incorrect or inaccurate information about weight-loss procedures on their websites, then in the very next sentence it inaccurately describes gastric bypass surgery. I sigh at the state of modern journalism.)
In the US, since health care is entirely private, there is no model for what Dr. Sharma does in consulting with patients. In the US, a fat person asks her primary care physician for a referral to a surgeon. The PCP may know very little about bariatrics and may simply make the referral with no questions and few reservations, as long as the patient’s BMI is high enough. From there it’s a pretty direct and uninterrupted process from first appointment to the operating room. How much information a patient receives and the quality of aftercare depends on the philosophy and integrity of the practice. In any event, for many weight-loss surgeons (and they often use that language instead of a more neutral “bariatrics”), the object is to make a nice living by performing surgeries – collecting fees for service. Of course, they may be convinced that this is the best interest of fat people, and when they make someone’s life better, they feel good. When they don’t, then, “Oh, well. That’s the state of the art at this time.” Do they agonize to the degree that Dr. Sharma has over the past two weeks? I think that’s uncommon.
So, what is the answer to fee for service? Many people in the comments on these pages have expressed dissatisfaction with health care as it is, but I don’t have a clear vision for what the alternative looks like. Public healthcare, the UK teaches us, does not preclude fat bias and discrimination, rationing and other scary possibilities. Hmmmm. I open the floor for discussion.