JOURNAL OF VASCULAR SURGERYVolume 39, Number 3 Jones, McCullough, and Richman 693

A recent survey found that 56% of physicians wouldfalsify insurance claims to cover the expense of their pa-tients’ therapy for peripheral vascular disease to be paid.6

However nobly considered, this behavior qualifies as nei-ther political activism, civil disobedience, nor proper benef-icence. It is merely criminal deception and, at worst, has asits intent a guarantee that someone will pay the physician. Ifwe think that a law is ethically unjustified we may work tochange it through the political or judicial process. A judicialchallenge would involve open disobedience to the law withthe intention of provoking criminal or civil litigation, and awillingness to accept attendant consequences, not falsifica-tion of records. Option A is therefore ruled out altogether.Option D surely fulfills one’s obligation as a citizen ofconscience, and would therefore be a good thing to do inthis case, but it does nothing to address the immediateproblem.

If it is true that this patient reported her muscle spasmswithout knowing the cause of them, she still has a pre-existing condition. Reliable clinical judgment cannot placeher claudication in any other category, given that it is achronic condition with chronic symptoms. As a matter ofprofessional integrity, which requires the surgeon to prac-tice to standards of intellectual and moral excellence, thesurgeon must be honest both with the patient and with herinsurer. The surgeon in this case should respond to thebilling clerk’s query with a clear statement that the patienthas a pre-existing condition. The surgeon should thenexplain to the patient that this is what has been done.

The surgeon should also explain, however, that this isnot the end of the matter. Fiduciary responsibility clearlydirects the surgeon in this case to offer and implementclinical management appropriate to the patient’s diagnosis.Fiduciary responsibility includes an obligation to undertakereasonable advocacy on behalf of the patient, especially forpayment for the management of a painful and increasinglydebilitating condition.5,7 Option B emerges on this ac-count as the most ethically appropriate next step, afterhonest reporting through the billing clerk. This option ofrefraining from deception and fulfilling patient fiduciaryobligations through an appeal process is the recommendedpolicy of the American Medical Association’s Council onEthical and Judicial Affairs.8 Options C and E are notacceptable because they assume that the surgeon has no

fiduciary responsibility of reasonable advocacy for this pa-tient; they also amount to a kind of moral abandonmentthat itself would be insupportable.

Although the short-term results of deceiving insurancepayers has benefits for both patients and surgeons, Sade9

notes several undesirable long-term effects: (1) the fraudmay be detected, with legal or social consequences; (2) thephysician’s own integrity is compromised and virtue iseroded; (3) the physician-patient relationship is compro-mised (“If this physician lies to them, will he lie to me?”);(4) a potential for future diagnostic confusion is created;and (5) systemic problems with health care remain unad-dressed and unresolved.

Delivery of medical care requires knowledge and re-sources. As long as physicians decline to acknowledge theirpartnership and mutual responsibilities with third-partypayers, some obligations will go unmet. Physicians are theinitiators and principals in our health care system, but theother participants, including commercial third-party insur-ers, are essential as well. Provision of medical care could notproceed without the cooperation and mutual integrity ofeach these major participants.

REFERENCES

1. Bondeson W, Jones JW. The ethics of managed care: professional integ-rity and patient rights. Boston: Kluwer Academic Publishers; 2002.

2. Kovner A, Jonas S. Health care delivery in the United States, 6th ed. NewYork: Springer Publishing Company; 1999.

3. Starr P. The social transformation of American medicine. New York:Basic Books; 1982.

4. McCullough L, Jones JW, Brody B. Principles and practice of surgicalethics. In: McCullough L, Jones JW, Brody B, editors. Surgical ethics.New York: Oxford University Press; 1998. p 3-14.

5. Morreim E. Balancing act: the new medical ethics of medicine’s neweconomics. Dordrecht (The Netherlands): Kluwer Academic Publishers;1991.

6. Freeman VG, Rathore SS, Weinfurt KP, Schulman KA, Sulmasy DP.Lying for patients: physician deception of third-party payers. Arch InternMed 1999;159:2263-70.

7. Wildes K, Wallace R. Relationships with payers and institutions thatmanage and deliver patient services. In: McCullough L, Jones JW, BrodyB, editors. Surgical ethics. New York: Oxford University Press; 1998 p.367-83.

8. The American Medical Association. Ethical issues in managed care.JAMA 1995;273:330-5.

9. Sade RM. Deceiving insurance companies: new expression of an ancienttradition. Ann Thorac Surg 2001;72:1449-53.

Authors requested to declare conditions of research funding

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