Uploaded by Ben Morehead, Associate Publisher of Policy Review magazine 
and authorized agent for the copyright owner(s).

PLEASE DO NO HARM
A Doctor's Battle with Medicare Price Controllers
by Lois J. Copeland M.D.
From the Summer 1993 issue of Policy Review
To subscribe to Policy Review, call (800) 544-4843

     I am a physician, an internist in a solo practice, and I am
in mourning for the dignity and nobility of the medical
profession.
     I started in my current practice in Bergen County, New
Jersey, 18 years ago when I took over the practice of a retiring
physician. I was seven months pregnant with my first child at the
time, and I went into labor while making rounds on a Friday
night. I was back at work full-time three days later. I returned
to work as promptly after the births of my three other children.
It was not unusual in the early years of my practice to find me
arriving at the emergency room, a baby under each arm, to see a
patient.
     I consider myself an old-fashioned doctor. I try to get to
know my patients, and their families, in an effort to provide
quality care to them. Because I have a large practice, and work
12 hours a day, I have been well compensated financially, but I
do not charge outrageous fees, nor do I require my patients to
come to see me more than is strictly necessary. I make house
calls, and my practice includes a number of patients I care for
at no charge. Over the years I have become close to my patients,
many of whom are senior citizens; I regard a great number of them
as my friends.
     These close relationships, the opportunities to comfort and
heal, and the intellectual challenges of medicine have been
gratifying--so much so that despite the great difficulties of
raising a young family and having so little time to spend with
them, despite the long hours and intense effort my practice
demanded, I have felt, until lately, richly rewarded by my work.

Patient Against Doctor Against Government

     Most physicians know that this level of devotion to our
profession is disappearing in America. Government intervention in
medicine has taken away the dignity of the physician and the
privacy of the patient-physician relationship, and it threatens
the financial viability of private practice. Government price
controls have restricted many physicians' freedom to care for
government-insured patients adequately, reduced the number of
physicians willing to care for these patients, and still has not
reduced overall medical costs. Mountains of paperwork and
continual wrangling with health-system bureaucrats are
distracting physicians from the more important work of treating
the sick, while shrinking profit margins and hassles caused by
mandatory regulatory compliance are forcing many doctors out of
private practice. We are seeing more and more forced rationing of
care, especially for senior citizens.
     And finally, the government has denied older Americans
freedom of choice in health-care purchasing. The Medicare
bureaucracy has attempted to prohibit doctors from making private
contracts with their Medicare patients, even when no Medicare
reimbursement is being sought, effectively turning the large
majority of senior citizens in this country into disenfranchised,
second-class citizens, with little voice in the intimate
decisions of their own health care. Together, these federal
interventions have degraded the medical profession, pitting
patient against doctor against the government.
     I decided to act against this degradation, and in 1991,
along with five of my patients, I fought one part of the federal
health system, Medicare Part B, as administered by the Health
Care Financing Administration and the Medicare carriers. Our goal
was to regain freedom of choice for those senior citizens who
want full access to high-quality health care, as well as privacy
and dignity in their relationship with their physician. Our story
is a warning to those who, like the members of Hillary Clinton's
task force, believe that the solution to America's health-care
problems is government or third-party management.

The Distress of Medicare

     My greatest distress as a physician in private practice has
come from Medicare, specifically Medicare Part B, and the
agencies that administer the Medicare program. Medicare is the
government-sponsored health plan for Americans over 65 who are
not actively employed, and the disabled. Every American over the
age of 65 who collects Social Security is eligible for Medicare
coverage. Medicare is divided into two parts: Part A, which pays
for most hospital care for the elderly, as well as some
non-physician nursing-home and home health-care services; and
Part B, which covers physician services and related expenses.
Those eligible enroll in Part B by paying a premium that is
deducted from their Social Security benefits. It is Medicare Part
B that has caused some of my most disheartening and degrading
experiences as a physician.
     Medicare was conceived during the era of the Great Society
programs of the 1960s. Then-President Lyndon Johnson envisioned
Medicare as a low-cost, universal form of health insurance for
the retired and elderly. Although its goals were noble, one of
Medicare's unfortunate side effects was that private insurance
companies eventually stopped offering health-insurance policies
to retirees and senior citizens, since the market for such
policies faded as Medicare participation grew. It has been said
that President Johnson coerced insurers into dropping such
coverage in order to guarantee Medicare participation by all
seniors.
     Today there are virtually no insurance companies offering
primary, first-dollar health coverage to these groups. The great
majority of elderly Americans are enrolled in Part B out of
necessity; those who might choose another form of health coverage
really have no available options. Enrollment is automatic unless
specifically declined in writing. A 10-percent annual penalty
prevails in the premium if enrollment is delayed.
     Generally, physicians who see Medicare patients fall into
one of two Medicare categories: participating or
non-participating. Participating physicians are in direct
contract with the government to provide services to Medicare
patients; they bill their local Medicare carrier. The patient
pays the doctor the co-insurance fee for the service, but the
doctor collects the rest directly from Medicare.
Non-participating physicians who are in contract with their
patients are paid by their patient, and send a form to the
Medicare carrier so that the patient can be reimbursed for the
amount he paid to the physician, minus co-insurance. I always
have been a non-participating physician. I have taken on Medicare
patients gladly, but I want the minimum amount of government
intrusion possible in the patient-physician relationship. I want
to deal directly with my patients, not through a third party. I
do not wish to work for the government; I work for my patients. I
believe there is a great danger for my patients in my doing
otherwise.

Price Controls and Sanctions

     From the time I took over my practice in the early 1970s
until approximately the mid-1980s, my experiences with Medicare
were quite positive. The program was generously funded, and equal
to the best of the private insurance programs. The bureaucratic
problems were minimal; essentially, getting reimbursement from
Medicare for a patient visit or service was no different than
from any other insurance carrier. I and my patients were
satisfied with the program, and I was happy to accept new
Medicare patients.
     The situation began to disintegrate during the mid-1980s
when, faced with spiraling Medicare outlays and a mandate to cut
costs, Congress enacted a number of initiatives designed to
regulate doctors' fees for Medicare-covered services. While
refusing to raise Medicare premiums for participants--a
politically dangerous move, considering the number of elderly
voters in America--Congress in 1985 imposed a temporary price
freeze on Medicare physician services. Congress eventually lifted
the freeze, but replaced it with a sweeping new Medicare pricing
system, the Resource-Based Relative Value Scale (RBRVS), which
was enacted in 1989 and phased in during 1992. The RBRVS system,
which is still in place, has strict price caps for services and
fines and sanctions for doctors not in compliance, and is coupled
with controls over the volume of services a physician can provide
through the Medicare system.
     The RBRVS price limits fell far short of many doctors'
actual costs of services, including mine, but the regulations
prohibited physicians from charging more than the limiting
charges on the RBRVS schedule. And as so often happens when price
controls are in effect, many doctors immediately looked for ways
around the limits. Some started limiting the number of Medicare
patients they would see, or stopped seeing them altogether.
     In addition to the price controls, the Health Care Financing
Agency (HCFA)--the division of the Department of Health and Human
Services (HHS) that administers Medicare--and my state Medicare
carrier set new reporting procedures under the RBRVS system for
those seeking Medicare reimbursement. The new method required
that my office file a complicated claims form, coded with
specific Medicare designations, for each and every patient
service I provided to a Medicare-enrolled patient, whether that
patient was seeking reimbursement from Medicare or not. Filing an
incorrect or improper claim could result in a $2,000 fine;
overcharging or establishing a private agreement with a patient
to pay more than the limiting charge for a service risked a
similar fine, and potentially even a loss of license.
     The effect of all these regulations was a staggering amount
of paperwork for me and my office staff, and continually
shrinking income from my Medicare patients. While the price I
could charge my Medicare patients was frozen, or in some cases
actually declining, my other expenses were going up. I continued
to give my office staff their well-earned annual raises, and to
pay increased prices for everything from office and medical
supplies to garbage removal. Malpractice-insurance costs
continued to climb, although they are more stable now than a few
years ago. Medicare was paying only about 50 percent of the costs
for services I provided to Medicare patients, a situation that
continues today.

The Medicare Gap

     A few examples of the current gap between my regular fees
and Medicare reimbursement illustrates the problem. I generally
charge one flat fee for return visits, other than comprehensive
physicals, no matter how long the duration of the visit. This fee
for non-Medicare patients is $60; the allowed Medicare charge for
an intermediate visit is $36.81. My fee for an initial
hospitalization of a non-Medicare patient, which includes
initiation of a treatment plan, history, physical examination,
and hospital chart documentation, is $275, but I am allowed to
charge a Medicare patient only $122.71 for this same care. An
electrocardiogram (EKG) is another common procedure performed by
internists. I charge my non-Medicare patients $50 for an EKG, but
the maximum charge allowed for my Medicare patients is only
$32.33. Surgeons suffer even greater disparities. In my region,
surgeons typically charge $1,200 to $2,000 for a carpal tunnel
release, a common procedure performed on the wrist. Medicare
allows a maximum charge of $300 for this surgery. With most
surgeons paying more than $40,000 annually in malpractice
insurance fees alone, it is no wonder that fewer of them are
willing to accept new Medicare patients.
     I found myself in the same bind as so many other doctors--
raising fees for my younger patients to make up for the Medicare
shortfall. My younger patients were often far less wealthy than
my Medicare patients, and I was outraged at having to transfer
additional costs onto these younger people--many had children in
school and mortgages to pay. But my expenses were not frozen just
because Medicare payments were. And I refused to engage in
fraudulent activity just to compensate for my Medicare losses.
The business side of my practice began to suffer, as did my
morale.
     I could have solved this dilemma, as many of my colleagues
have, by refusing to take on new Medicare patients, or by telling
my current Medicare enrollees to find another physician, or by
refusing them timely appointments. But a number of my older
patients were and are my friends, and I did not want to cut them
off; it was not their fault that they had no alternatives to
Medicare coverage. And I was troubled by the ethics of such a
decision. How could I be the kind of old-fashioned doctor I had
always been if I started turning away those who needed my help?
How could I possibly refuse to treat a sick patient?

Confusion and Anger

     Price controls and paperwork were not my only Medicare
problems. The state carrier of Medicare, Blue Cross/Blue Shield
of Pennsylvania, (which has a contract with HCFA to administer
the Medicare program in New Jersey) often delayed reimbursement
to my Medicare patients by challenging my medical decisions,
denying payment for services already rendered, by requesting
additional information for claims even when the diagnosis or
treatment ordered was unquestionable, and sometimes by denying
claims altogether, usually because of some administrative mistake
originating not in my office, but in the carrier's. One of these
letters to a patient falsely stated that I was a chiropractor in
explaining why my services had been denied payment.
     Unfortunately, in these cases it is often the patient, and
not the doctor, who is notified of the denial. Complicated,
jargon-filled, official letters from the carrier can confuse and
anger a Medicare patient; when the letter refuses or delays
reimbursement on the basis of an alleged misdiagnosis or
treatment error by the doctor, the result is often a rift between
doctor and patient, with the patient accusing the doctor of
improper care, or of holding up the patient's reimbursement.
     This type of misunderstanding can go to extremes. A former
patient arrived in my office one day angry over a Medicare
reimbursement problem. Thinking I was at the hospital, she called
me dishonest in front of my office staff, other patients and,
most unfortunately, my 10-year-old daughter, who happened to be
there at the time. The episode angered me and my staff, but
deeply hurt my child. Although this patient eventually was made
to understand that the mistake was not ours, I knew that our
relationship had been too severely damaged to continue. After 17
years of caring for this woman and other members of her family, I
had to ask her to find a new physician. This story illustrates
the aspect of Medicare that I resent the most: the atmosphere of
suspicion and distrust that has grown up between doctors and
their patients because of Medicare's intrusion in the patient-
physician relationship.

Hassle Letters

     Appealing a Medicare denial is the doctor's job, not the
patient's, because the physician must write a letter to the
Medicare authorities justifying his or her treatment. I have a
large file of what I call "hassle" letters: copies of letters I
have written to the state Medicare carrier, and in some cases to
HCFA or other Medicare oversight agencies, justifying my medical
decisions, challenging the delays, the "down" or "up" coding of
claims to a different (and always lower) level of payment, and
the intimidating and sometimes threatening language the various
Medicare agents use in communicating with physicians and
patients.
     My hassle file is filled with many letters defending
treatments that Medicare was obligated to cover. One letter
defends daily hospital visits to a patient on a respirator and
intravenous fluids who suffered from complete respiratory failure
and terminal cancer. The Medicare bureaucrats suggested that
daily treatment of this patient was excessive. As I stated in my
letter of protest:

     This is the most outrageous denial I have ever received....
     This person was absolutely in need of my professional
     services, and required daily medical attendance. Whether you
     wish to pay for the medical services or not does not affect
     the medical need. Mrs. Jones [not her real name] was well
     aware of the inadequacies of Medicare during her life ...
     [she] always paid her bills despite Medicare denial and was
     in full agreement of her responsibility to pay my bills
     despite your attempts to cut back on your insurance
     obligations. In addition ... how could any reasonable person
     know that Medicare would not support the hospitalization of
     a terminally ill patient on a respirator?

     Medicare won't even let you mourn in peace. From another
letter to the Medicare administrator:

     I returned from my vacation ... to receive your letter
     (a"medically unnecessary" denial letter) with regard to my
     visit to the Emerson Convalescent Nursing Home on June 6,
     1988. Please be advised that I was required to visit at that
     time by the administration of the convalescent center, as
     Mr. Smith had passed away suddenly and it was necessary and
     required by the nursing home that I personally come and
     pronounce my patient. In the past year I had received
     communication from the Medicare Administration that visits
     for the pronouncement of death would be covered.... I did
     not feel it was appropriate or in good taste to call Mrs.
     Smith during her acute grief to notify her that the visit
     may or may not be covered by Medicare.

     Writing these letters took a great deal of time. My office
staff was already overburdened with paperwork, and I could not
afford to hire someone with the medical expertise to respond
adequately to all the denials. Since I was threatened with
unconscionable fines, I always took them home to do at night. My
family paid the price for this. I would come home from a full day
of office visits followed by hospital rounds at 8:00 or 9:00
P.M., eat a quick dinner left for me on the table, and then spend
another two or three hours writing letters to Medicare agencies.

Forbidden Private Contracts

     By 1990, I had become very depressed by these government
intrusions on my practice, and was seriously considering leaving
medicine. I began speaking about my Medicare problems to many of
my patients. In the fall of that year, a letter written by one of
these patients appeared in the local newspaper under the title,
"Medicare Red Tape Is Jeopardizing American Health Care." She
professed her shock at hearing that I was contemplating leaving
my practice. She wrote that her physician was being "driven from
the profession in which she excels by the heavy hand of
government bureaucracy."
     Many of my older patients well could afford to pay me
privately, and some wanted to make such an arrangement to help me
meet my costs for providing their medical care. Under such a
contract, I would provide a specific service for an agreed-upon
fee--or in some cases, for no fee at all, since Medicare
regulators threatened me with a $2,000 fine if I failed to charge
any patient the deductible, and another $2,000 fine if I failed
to file the proper form with Medicare. Several of my patients
were poor, and I did not wish to charge them anything--not even
the Medicare deductible. In such cases, no Medicare-reimbursement
claims would be filed because reimbursement would not be sought.
The Medicare regulators no longer would intrude in these
patients' care when a private contract existed. I was still
willing to see Medicare patients, and my own ethical standards
would not allow me to turn away Medicare patients who could not
pay outside the system, but for private contract patients over
age 65, Medicare would not be able to interfere in the
patient-physician relationship.
     But such an agreement was prohibited by the Medicare
carriers, who were backed up by HCFA. The justification for
disallowing private contracts was that physicians would
overcharge their elderly patients without the Medicare
authorities acting as a watchdog. The implication was that a
patient was not intelligent enough after age 65 to make his or
her own decisions. So even if I treated someone privately, and no
Medicare reimbursement was desired by the patient, I had to file
the proper Medicare claims forms proving that I had not charged
more than the maximum allowable fee on the RBRVS schedule--an
insidious form of price control. No confidentiality was allowed
to a patient over age 65: all visits and diagnoses had to be
filed with the bureaucracy, or I would be fined $2,000 per
occurrence of failure to comply.
     The prohibition against such private contracts had been
upheld in 1988, when Federal Appellate Judge Abner Mikva ruled in
New York State Ophthalmological Society v. Bowen that a Medicare
beneficiary would have to resign from Part B in order to
privately contract. Judge Mikva's dictum resulted from the
mistaken supposition of both the defendant and plaintiff in this
case that the original Medicare law prohibited private
contracting, a supposition that was stipulated by both plaintiff
and defendant at the outset of the case. The Mikva ruling often
has been used by the Medicare regulators to justify the
prohibition of private contracts. This regulation not only
unfairly restricted me, but took freedom of choice away from my
patients, who could not contract for any medical services outside
of the Medicare arena.
     Few patients over 65 could afford to"go bare"--to risk
having no health coverage at all--and no other coverage was
available to people over 65 who were not actively employed. The
grim fact was that in America, if you were retired, elderly, or
disabled, you were forced into Medicare by lack of alternatives,
and you lost the freedom to make personal medical decisions, as
did your physician when treating you.

Stewart v. Sullivan

     My frustration and rage grew, but I decided I would not give
up my practice or my Hippocratic ethic without a fight. I began a
letter-writing campaign to my congressional delegation, to
officials in HHS and HCFA, to other members of the medical and
insurance communities, and even to the White House. The letters
helped air my complaints, and I received replies to some of them,
but the replies did not offer solutions, and nothing changed.
     I attempted to stimulate private-sector interest in an
alternative private insurance policy to replace Part B, and
travelled to Connecticut to meet with one insurance executive who
told me, "The golden age of medicine is dead." His vision of the
future was clinics with hard benches and whatever doctor was on
call that day taking care of the poor and the Medicare-enrolled.
He saw no future for the private practitioner because we were
"too inefficient."
     It was then that I called the Library of Congress and found
that the original Medicare statutes were still intact. I sought
advice and support from medical and legal experts, and talked to
my Medicare patients. A number of my Medicare-insured patients
volunteered to join with me in a lawsuit to establish their
freedom of choice of medical care and their right to contract for
medical care outside the Medicare system. Of the 20 or so
patients who volunteered to participate in the suit, my attorney
and I chose five who represented a wide cross-section of my
practice and of Medicare enrollees.
     The five patients formed a diverse group, with different
reasons for pursuing the case, but in common was their belief
that their personal freedoms had been abridged by the Medicare
regulation against private contracting. James Stewart had just
turned 65 and entered into the Medicare system, and was angry at
his sudden loss of the right and freedom to select the medical
care and the doctors he desired and could pay for, a right he had
enjoyed at age 64. Some physicians had stopped taking Medicare
patients, shrinking the pool of care available to Medicare
patients. When I asked him if he would go to court with me, he
agreed on the condition that we found a good lawyer. As he said
later, "Why should I wake up with fewer rights on turning 65 than
I had the day before?"
     Joan Kennedy Taylor, my patient and a writer knowledgeable
about constitutional law, was convinced that allowing private
contracting might actually save the Medicare program. With
Medicare outlays so far outpacing income, she argued that the
Medicare trust fund soon could be bankrupt; private contracting
by those who could afford to pay for their own care would save
Medicare funds for those who were needy.
     Connie Streich, my retired former office assistant, had
helped hold my practice together when I first arrived; she
remembered the days when Medicare transactions had been generous
and simple, and was shocked at the monster that Medicare had
become. Miss Streich had suffered her own problems with Medicare
reimbursement since her retirement, requiring me to justify
much-needed reimbursement; she was also my friend. She told a
reporter later that she saw the toll the Medicare battles were
taking on me, and said, "Really, I wanted to get involved to help
Lois." Connie Streich was also one patient for whom I wanted to
waive my fee, and therefore her deductible payment, but Medicare
forbade me to do so or I would incur a $2,000 fine.
     Trudy Drucker, a patient of great devotion, was worried that
I would have to stop taking Medicare patients or leave my
practice, and did not want to lose me as her physician. Ms.
Drucker also loved the prospect of a good fight, and she was
willing to fight hard to keep the liberties she believed were
essential to being an American.
     Warren Klose, the last of our group, had been told by
Medicare that he could not pay me for a visit he requested
because the bureaucrats felt the visit had been medically
unnecessary. His wife was upset that she could not appeal
Medicare's decision because the amount was less than $100--the
minimum allowable in the appeals process. Mr. Klose was angry at
his and my abuse by the Medicare system, and wanted to protest
the degrading treatment we had received.
     Kent Masterson Brown, legal counsel for the Association of
American Physicians and Surgeons, who had successfully battled
the Medicare bureaucracy in Ohio, agreed to represent us, and
began an intense study of the original Medicare statute and
subsequent changes in the law. The American Health Legal
Foundation, which supports litigation to resist compulsory
political medicine, recognized the importance of this case and
volunteered to help support the legal expenses. The Freedom of
Choice Fund was initially started by many patient contributions,
and the staffs of my area hospitals donated to it generously.
With this backing, on January 31, 1992, these five patients and I
filed suit in federal court in Newark, New Jersey, to enable
Medicare patients to contract privately for medical care outside
Part B without resigning from Part B. Our case became known as
Stewart v. Sullivan.

Our Honesty Used Against Us

     Kent Masterson Brown was confident that we would win the
freedom to contract because his research had revealed no explicit
prohibition in the Medicare law or regulations published in the
Federal Register against such arrangements. Medicare law
repeatedly states that with respect to Part B, Medicare is an
entitlement, not a compulsory requirement, and the original
Medicare statute specifically states that nothing in the Medicare
law prohibits a beneficiary from obtaining health-care services
through any other means of payment or insurance. It appeared that
HCFA and the carriers formulated their prohibition of the private
contract by leaving out the implied "if" in the law discussing
physician submission of claims. Services "for which payment is
made under this part" does not translate into "all services for
any medical need must be paid under this part." The bureaucrats
then enforced their interpretation with threats and intimidation
of physicians who may have wished to deal with their
senior-citizen patients privately.
     It may seem unbelievable to those who do not deal with
government programs and the bureaucracies that administer them
that physicians actually were coerced into following a regulation
that did not exist. But physicians across the country had been
told by their carriers and by HCFA that private contracts were
prohibited by Medicare law. Physicians believed this must be true
if we were so told. Physicians did not ask for proof, or check
the statute itself, or ask to see the citation in the Federal
Register. They made their judgment based on what they were told
by the appropriate authorities. Until the lawsuit challenged this
prohibition in court, physicians naturally assumed the
prohibition was in the law. The great majority of physicians have
honest, ethical natures, and the bureaucracy used these
attributes against us.

An Absolute Victory

     Our freedom-of-choice lawsuit, Stewart v. Sullivan, was
heard in oral arguments on September 14, 1992, in federal court
in Newark. Judge Nicholas Politan asked the U.S. attorney
representing HHS to identify the source of the carriers'
statements that seemed to prohibit private contracting. Mr.
Robbins replied, "We don't know where those statements came
from." Mr. Robbins also could not verify that Louis Sullivan,
then-secretary of the Department of Health and Human Services,
interpreted the Medicare Act to prohibit private agreements, or
whether Dr. Sullivan would try to sanction me for treating
patients outside the Medicare program.
     Judge Politan did try to "flush out" the intent of the suit
as a means for me to charge more than the limiting charges of the
Medicare RBRVS schedule. Our attorney pointed out that private
contracting would allow the doctor to charge more or less than
the RBRVS rates, and that in any event, freedom of choice, and
not allowable charges, was the point of the lawsuit.
     Based on this testimony, as well as various internally
contradictory statements in correspondence from HHS, Judge
Politan ruled on October 26, 1992 that he did not believe that
the secretary had clearly. articulated a policy against private
contracting. Judge Politan dismissed the case after finding for
us on a critical point: if Secretary Sullivan had articulated a
clear policy against private contracting, such a policy would
constitute an "injury in fact," giving both me and my patients
standing to sue. He stated that we, the plaintiffs, would find
relief in his court.
     We considered this ruling to be an absolute victory. Kent
Masterson Brown stated in a press release after the decision, "If
the Secretary does come forth with a clear policy [against the
private contract], we'll be back in court immediately.... At
present, there is nothing to prevent patients from seeking
private care on a case-by-case basis. On reaching 65, patients
become entitled to use Medicare benefits. This entitlement does
not require patients to use those benefits to the exclusion of
all other methods of providing for medical care."
     The opinion in Stewart v. Sullivan upheld the idea that we
citizens of the United States have the right to do that which we
are not expressly prohibited from doing, as stated in the Ninth
Amendment and as articulated in the Declaration of Independence.
To say otherwise creates the dangerous context in which the
citizen acts only by permission of the government or state,
rather than by right.

After the Ruling

      Since Judge Politan's ruling, I have accepted new Medicare
patients with the understanding that, at some times and for some
services, I might seek a private contract with them outside of
Medicare to provide payment to me. This has not driven patients
away, although patients who want to use Medicare exclusively are,
of course, free to go to another doctor who will agree to that.
Certainly it is far more ethical for a physician who cannot deal
with Medicare for a particular service to offer the private
contract to a person seeking medical help than to refuse to see
the patient altogether. The plaintiffs all have remained in my
practice.
     Oddly, the case has received little publicity from the lay
media. I have traveled extensively discussing the case with
physicians, giving speeches and interviews in the medical press,
and encouraging doctors and patients to stand up for their
rights. Private contracting is spreading, but many physicians,
still unfamiliar with the case, are afraid to cross the Medicare
carriers and HCFA. I receive many calls each week asking me about
the suit and the waiver form that I now use with private patients
over the age of 65. As recently as March of this year, one of my
wealthy older patients was denied care in Durham, North Carolina,
because the clinic she went to for help in an emergency was not
accepting new Medicare patients, even though she wanted to pay
for treatment herself. She had to make a number of calls and
obtain help from a friend to find a doctor who was willing to
make a contract with her privately to provide her care. This
patient was well aware that the private contract was lawful,
because she had contributed $500 to the Freedom of Choice Fund.
     Succeeding in this lawsuit has by no means solved all my
professional problems. My income continues to shrink, and the
regulations, paperwork, and expenses continue to increase. And I
miss the special relationship I had with the senior citizens in
my care before the imposition of coded claims, fines, and
threats.
     I still seriously consider leaving the profession that I
love and for which I have sacrificed. As my son enters his first
year of college this year, I cannot encourage him toward a career
in medicine, even though both of his parents are dedicated
physicians. Many young people of talent and ambition look at the
health-care system in America today and see no future for
themselves; many physicians in private practice are seeking other
options. My hospital staff is giving a dinner this summer for a
physician considerably younger than I am who has had the
"courage" to leave medicine.

A Warning to the Health Task Force

     The Medicare headaches that I and many other physicians have
suffered are not unusual in the current system--in fact, they are
routine. Medicare is really not a partisan issue, since both
Republicans and Democrats have helped build the system. My
problems with Medicare began during the Reagan administration,
and it was George Bush's bureaucrats who denied my patients
freedom of choice.
     But it seems likely that these problems will intensify under
the Clinton administration. Having witnessed first-hand the
ensnarement of doctors and patients in the Medicare web, I dread
the prospect of government health care management. My chief
concern about the Clinton health plan, whatever form it
eventually takes, is that it will politicize the entire
health-care delivery system, and dramatically increase
restrictions on the way physicians are able to treat their
patients, interposing the bureaucrat in all patient-physician
encounters.
     Managed competition, which now seems to be the cornerstone
of the Clinton plan, is supposed to be a way to give all
Americans access to health care. In reality, it may cause a
number of serious side effects: individuals will have less choice
in their health-care decisions; there may be less access to
certain providers and fewer services overall; and development of
the new technologies that have made American health care the best
in the world will stagnate. The massive new bureaucracy that will
be required to administer such a system will increase red tape
and delays as well as costs. Price controls on health services
will force doctors out of practice.
     I cannot imagine continuing under such conditions; the
danger is that the pool of talented, dedicated, innovative
physicians will give way to doctors working not for their
patients, but for a government or corporate paycheck. The civil
servant mentality will predominate, rationing will be inevitable,
and the Hippocratic ethic, which emphasizes the good of the
patient, will disappear. Under such a system, the profession of
medicine that Americans have known and come to rely on will cease
to exist.

LOIS J. COPELAND is a physician in private practice in Hillsdale,
New Jersey.

To reprint more than short quotations, please write or FAX Ben
Morehead, Associate Publisher, Policy Review, 214 Massachusetts
Avenue, NE, Washington, DC 20002, FAX (202) 675-1778.
