Is drive-by doctoring legal?

Elizabeth Rosenthal’s latest article on abusive medical billing is worth a read. She details an apparently burgeoning practice of “drive-by doctoring,” where physicians and other medical professionals assist the primary physician assigned to a case and then charge exorbitant fees for their participation. When the provider is outside the patient’s network, those fees can get passed on either to insurers or to the patients themselves.

Is this legal, you might ask? Well, it’s complicated. A patient who agrees to undergo treatment with a physician or a hospital has entered into a contract with that provider. Usually, the contractual terms are contained in an incomprehensible form full of boilerplate language. One of those terms is typically that the patient agrees to pay for all medically necessary care in connection with her treatment.

Having a term like this in a provider contract makes sense, especially for medical emergencies. Patients don’t generally want their treating physicians to hesitate before seeking needed help from other medical professionals—even if those professionals happen to be outside the patient’s network.

As Rosenthal’s story demonstrates, however, this open-ended contractual term can be abused. Sometimes, for example, physicians are called in unnecessarily—when there’s no emergency or where a cheaper hospital employee could do the job. And when a patient receives care from an out-of-network physician, the physician has wide discretion in setting a price. If the patient’s already “agreed” to pay, why not charge a bundle?

In principle, patients and insurers can fight back. As with any take-it-or-leave-it contract full of boilerplate terms—what’s called a “contract of adhesion”—the courts won’t enforce a treatment contract to the extent that it deviates from a signer’s reasonable expectations. And reasonable patients neither consent to unnecessary care from unknown practitioners nor do they agree to pay exorbitant fees that bear no apparent connection to costs.

So yes, drive-by doctors can be sued for breaching their treatment contracts. (In extreme cases, they could also be sued for fraud or even criminally prosecuted.) But just imagine how hard it would be to win such a case. The plaintiff would have to prove either that it wasn’t medically necessary to call in the drive-by physician or that the physician’s fees were so out of line as to be unreasonable. That, in turn, would require expert testimony and intensive discovery—and all for the unlikely prospect, after a delay of several years, of convincing a judge to supersede a physician’s professional judgment.

Given the uncertainty and expense, it’s not usually worth it to bring these sorts of cases. That’s why drive-by physicians can get away with abusive billing practices—practices that exemplify the sort of economic exploitation that’s all too common in the medical industry. To prevent that exploitation, I agree with Mark Hall and my colleague Carl Schneider that courts should more aggressively deploy a range of common-law doctrines to protect patients. I fear, however, that litigation is just too cumbersome to be an especially effective deterrent.

More is needed—and more is coming. Earlier this year, New York enacted a law to protect patients from surprise charges. When in-network providers are unavailable and the patient has to get care from an out-of-network provider, the patient can’t be asked to pay more than the amount she would have paid to get care from an in-network provider.

That’s a big step forward, although it may not be big enough. New York’s law puts insurers on the hook for covering the patient’s out-of-network charges, which are then passed along to the rest of us in the form of inflated premiums. Disputes between insurers and out-of-network providers will be resolved in arbitration, and let’s hope that arbitrators won’t let providers get away with charging exorbitant fees. It’s possible, however, that New York’s law will just shift the costs of drive-by doctoring from patients to insurers.

But at least it’s a start. New York’s law could be the first move in a broader, national effort to eliminate drive-by doctoring. Surely something must be done to prevent the abuses that Rosenthal describes.


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