Overcharging: Selective Interpretation

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When I was in medical school, admittedly eons ago, our pharmacology professor taught us that certain substances, such as nicotine and caffeine, were habit-forming, not addictive. The difference was in the withdrawal symptoms. Stop smoking, and you could experience symptoms similar to those of a bad cold, lasting a few days. Stop using cocaine, morphine, or alcohol, and you might convulse, hallucinate, or even die. In any event, you’d be SICK!!!

For that matter, you could experience the same sort of addiction withdrawal symptoms upon stopping, say, Valium. I recall a patient telling me she had become addicted to the stuff, and had to be hospitalized, with severe withdrawal symptoms, upon attempting to rid herself of the addiction. On the other hand, we all know people who gave up smoking, and not one of them, to my knowledge, suffered any severe consequences.

Well, that’s all changed. No, it’s not pharmacology. It has more to do with litigation than physiology. A new definition of addiction is: a disease process characterized by the continued use of a specific psychoactive substance despite physical, psychological, or social harm. Notice the absence of any reference to withdrawal symptoms. This is because, according to one author, many new addictive drugs do not cause severe withdrawal symptoms. (Of course, in my day, we would have said they weren’t addictive, for that very reason

Addiction seems necessary for legal reasons. In other words, if a person injures someone or damages someone’s property because he has deliberately ingested some mind-altering substance, he could be sued. Big deal. But if he was acting under the influence of some substance that rendered him virtually helpless to resist — was addictive — then the maker of that substance might be sued. Hence, if the tobacco companies were to be taken to the cleaners, it was necessary that tobacco be addictive, whether or not it really was. All that was required was a change in the definition of addiction. And so be it!

Let’s hope the trial lawyers never discover the statistical connection between colon cancer and the use of toilet paper. Look out, Mr. Whipple!

In any event, the "addictive" nature of tobacco has proven to be a puff of good luck to the trial lawyers. Two legal firms, one in St. Louis, and the other in South Carolina, have billed 1.8 billion in legal fees regarding a case in Madison County, Illinois, which yielded a $10.1 billion judgment against Philip Morris. That works out to a little more than $13,000/hour. That’s thousands more than I made in my first year in practice.

I was struck, to say the least, by the differences between the medical and legal professions. Most of my patients are elderly, and thus on Medicare. Even though I am not a "participating physician" (meaning I’ve entered into no agreement with Medicare) I am still expected to follow Medicare rules, including the fee schedule which Medicare distributes each year. I recall once being chastised by Medicare for absent-mindedly charging last year’s fee — I think it was around $67 — instead of the then-current $63 for a certain service. Medicare informed my patient that I’d overcharged her, and demanded that I send a refund check to the patient, with a copy of the check (both sides!) to Medicare, or face civil penalties. Gosh!

To be sure, a retired Illinois appellate court judge, testifying in support of the $13,000 hourly fee, admitted it raised some eyebrows. But it was not his job, he declared, to verify the hours worked. "It’s basically an honor system. I don’t have any way of knowing if he worked those hours."

By contrast, there’s no honor system for doctors. Medicare will pay for the checkups a glaucoma patient receives if they are no more frequent than every six months. If the patient’s pressure seems to be going out of control, and additional medicines are prescribed, prudence dictates that the effect be assessed before another six months rolls around. In such a case, the physician had better take steps to prevent himself from being called on the carpet by Medicare, and made to explain why the interval between visits was only six weeks, or two months.

If I were younger I’d dump medicine and become a trial lawyer. I bet Mr. Whipple has deep pockets — and I could charge astronomical fees, knowing that it’s "basically an honor system," and nobody would have any way of knowing if I actually worked all those hours. If what’s sauce for the goose isn’t sauce for the gander, maybe it’s time to become the fowl that’s getting the better sauce!

Dr. Hein [send him mail] is a semi-retired ophthalmologist in St. Louis, and the author of All Work & No Pay.

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