WHO OWNS YOUR BODY?
WHO OWNS YOUR BODY?: Doctors and Patients Behind Bars
by Madeleine Pelner Cosman, PhD, Esq.,
Praeger Publishing, (www.praeger.com)Westport, Connecticut ISBN: 0‑313-0327‑2
In 1993, Dr Madeleine Pelner Cosman, a health care attorney, reviewed Medicare and Medicaid litigation and legislation from their beginnings. She was startled to discover that the law most of us accepted as primarily gentle civil law had altered incrementally to brutal criminal law. Physicians are held to vague, arbitrary standards that provide accused doctors fewer rights and defenses than accused murderers, rapists and arsonists. If convicted, physicians were punished more harshly than the vilest criminals.
Cosman’s thesis for this volume implies that medical criminal law now poses a clear and present danger both to physicians and to patients. This new type of law aims to eliminate fraud in the government medical system, but lurches wildly into the personal rights of each American doctor and patient. It also collectivizes patients under “capitation” formulas (paying health care providers a certain amount per patient without regard to how many or how few services are provided) and bureaucratic decisions of “medical necessity,” placing at risk patients’ privacy, confidentiality of medical records, individual medical choices, personal liberty, and bodily integrity.
She warns that members of Congress and public health experts who favor a single standard of medical care for all, regardless of individual patient requirements, use the criminalization of the physicians and collectivization of patients to propel America to a government-controlled, single-payer national health care system.
Cosman contends that American Medicine is manacled with so many regulations that she’s calling Americans to alarmed a1ert. Physicians must obey 132,720 pages of government medical directives, laws, rules and regulations, including 111,000 pages of rules specifically controlling Medicare. The law governing medicine has shifted since 1965 from civil law to criminal law. The law was temperate civil law when Medicare and Medicaid were implemented. It was not coercive. It did not meddle in physicians’ decisions. It did not intrude in medical offices or hospitals. Section 1872 of the Social Security Act was thought to be strong enough to prevent, curb and catch potential frauds and abuses. Fraud required intent. No doctor could be prosecuted for medical fraud unless he knew a particular act was wrong and he did it willingly and intentionally.
But legal intentions and social suppositions changed as medical costs rose meteorically. Incrementally major laws have become more restrictive, oppressive and punitive. They incorporate increasingly sterner reporting standards and more vindictive criminal punishments. In chapter one, Attorney Cosman lists the eight laws and discusses what is forbidden, defining what is progressively more arbitrary and, therefore, more likely to entrap the innocent. The ordinary street thug must intend his vicious crime and actually do it. A doctor need not intend to defraud and need not perform the criminal act to be liable and jailed. Medicare fraud can be accidental. Fewer and less certain criminal procedures protect the constitutional rights of physicians than those of the professional thug, arsonist, rapist or murderer.
Cosman discusses the six white-coat crime hazards and the dubious nature of Medicare fraud. The Office of the Inspector General had previously estimated Medicaid fraud at 2 percent. The Health Care Financing Administration had estimated medical crime even lower, or 0.44 percent. An Assistant Inspector General admitted that he got a call from the Health and Human Services Secretary’s Office saying that he would be giving a speech in nine days and wanted an estimate of waste, fraud and abuse. A number of people sent in figures because they had to. He guessed the Secretary’s people just added up all the guesses and came up with an illusory 10 percent fraud idea. So the 10 percent is only a political proportion, not a statistical certainty. Some of the estimates were 1 percent, 0.1 percent and 0.01 percent. But it was an effective political statistic with no empirical foundation. It was so effective that 72 percent of retirees in an opinion poll of the American Association of Retired Persons (AARP) believed that if medical fraud were eliminated, Medicare would not go broke.
Cosman proceeds to give us a well-referenced report on a large number of actual instances of what passed as Medicare Fraud, such as inadequate or improper recording of information or codes, or providing uncovered services even if appropriate and helped patients. What Medicare considers lack of necessity often means only that Medicare does not want to pay for that medical or surgical procedure. Medical fraud under current medical law can be unintentional and trivial, not material, and not harm–can actually help–the patient, if the crime hurts the medical program by charging for the patient’s care.[baf1]
Medical fraud holds triple terror for a medical professional. First is the ease of conviction for alleged frauds that are not intentional. Second, many honest acts can be misinterpreted as medical fraud. Third, medical fraud under certain laws such as the False Claims Act has high, pre-established, statutory penalties “per incident” plus triple damages. Therefore, a small alleged fraud is punished harshly. A doctor who accidentally uses the wrong reimbursement code 100 times for a simple medical procedure costing $100 suddenly is worth a lot to prosecutors. Triple damages for each incident, $300 + $10,000 penalty = $10,300 per patient x l00 patients, escalates the fraud to $1,030,000. The more money involved in a fraud, the more severe the punishment after conviction. The more money involved in an alleged medical fraud, the better the press elevates the stature of the prosecutor. The more money involved, the more newsworthy the crime.
This volume is a veritable repository of essentially all the challenges in health care we face today and why. There is a chapter in which Cosman answers the frequently asked question, “Is Health Care a Basic Right?” Another important chapter on how health insurance shackles your employer discusses the cause of the colossal national deception that employers rather than employees actually pay for health insurance. And in her ninth and final chapter, Cosman gives numerous examples of how the return to choice in health care has unshackled American Medicine with Patient-Centered affordable health care.
Who Owns Your Body?: The Shackling of American Medicine is dedicated to helping the excellent, ethical physicians and surgeons who are caught by laws that are vague, arbitrary, illogical, capricious and vicious. Also at risk for accidentally violating medical criminal law are psychologists, pharmacists, chiropractors, podiatrists, audiologists, and physical, speech and occupational therapists.
Cosman asks if a physician does not own his or her own medical mind, who owns it? If a medical patient does not own his or her body, who owns it? Who should decide whether or how much money should be spent to save a patient’s life? Should a patient have the right to spend personal cash to protect the body he or she owns? These are not irrelevant questions. Medicare patients in both the United States and Canada do not have this option.
Americans merit the best medicine of a free society. It charts a path to medical abundance, medical integrity, and medical excellence. We have the courage, the intelligence and the rights to buy it. Who Owns Your Body?: Doctors and Patients Behind Bars reveals deceptions and misconceptions in modern American medicine. It should be read by every physician and health-care provider. Not to be aware of the issues in this volume, with actual examples of physicians in jail who have never given improper care, could cause you to lose your license, home, family and also place you behind bars.
We have come to a crossroads in America, both in education and medicine. Baylor sold its religious heritage to acquire federal funds. Hillsdale College, which avoided all federal funding, found even accepting veterans on a GI bill constituted government largess. They raised enough donations to fund every student that wanted to enroll to replace any government loan, scholarship, or any government program the student had acquired to keep the federal government from meddling into their educational affairs. Now health care has found that federal involvement can be a lethal arrangement. It is critical that all professions extricate themselves from government control. Physicians and all health care workers will want to seriously consider opting out of all federal health care programs as soon as they can safely do so without abandoning or harming their patients. Keeping 10 percent of their Medicare patients as charity cases may be less expensive in the long run than staying in Medicare.
Del Meyer, MD
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