This defense could save you from medical bankruptcy

I asked the folks at Facebook to give me examples of wacky medical bills they received. Warning: this is not the kind of question you should ask if you have high blood pressure, otherwise you will end up in the hospital yourself. Among the worst charges were:

Angiography: $ 157,000
Only one blood transfusion for MS, several of which are needed per year: $ 98,000
Three-day hospitalization: $ 80,000
A helicopter flight to a hospital for a child with a seizure: $ 50,000
Giving birth to a child (1.5 day stay, without NICU): $ 25,000
Giving birth to a child (by cesarean section with complications): $ 131,000
An emergency room visit that lasted less than an hour and resulted in a prescription for muscle relaxants: $ 2,500
Sheets used to cover a body en route from the hospital to the morgue: $ 600
A pair of socks: $ 70
A bottle of generic antacid tablets: $ 54

I can only read a number of them before I go blind with rage, but none surprises me. We are so used to being treated like cattle by the American health care system that horror stories hardly horrify. NPR even has a “Bill of the Month” segment full of stories that should confuse and infuriate anyone from any decent company. But here? They are only worth a few clicks. When the United States is remembered, I suspect it will not be affectionately, and the cruelty of our medical system will be taught as a quintessential example of an empire gone bad.

But what can we do if not accept the system as it is? The scale change we need must happen at the federal level, and Congress is forever stuck. There is little the president can (and won’t) do without Congressional approval, and federal courts are waiting with jaws open to skeletonize any attempt at progress. At the local level, it is almost impossible to organize effectively around this issue. What are we supposed to do, boycott medical care? Crowdfund of medical bills? These strategies are a bit like smoothing out all the wrinkles on your top sheet when there’s a pile of poop on your pillow. Is there a meaningful action we can take?

Yes! Well… maybe. We could use the state courts to make a little gash in the armor of the healthcare industrial complex. It’s long, but it could work.

Under the right circumstances, a contract can be declared unreasonable, meaning “so bad that even bad courts in a bad system designed for bad results cannot tolerate the meanness of it all”. A 2005 legal journal article hypothesized that the idea of ​​unfairness might apply to hospital billing:

“The primary factor… in finding hospital admission contracts procedurally unacceptable is that urgent medical services are a necessity and time is almost always of the essence. So even if a patient understands the terms of the hospital admission contract and decides that he does not want to accept them, he is not able to seek out another provider of urgent medical services. The patient must accept the conditions offered by the hospital because the patient needs the services.

The article goes on to explain that average hospital costs represented a 345% mark-up in hospital costs. According to the author, this is enough to push hospital bills into the realm of inequity, especially since the hospital has a gun to your temple as you sign all the admission forms and don’t not even say what they will charge you until you have to pay.

If a court were to agree that a bill is unreasonable, a provider could not successfully sue their patient for non-payment. So far, most litigation based on this theory seems to have failed. But I remain hopeful that an iniquity defense might be successful under the right circumstances. In 2007, the Arizona Court of Appeals rejected the argument in a case called Banner Health v. Medical Savings Ins. Co. Although the theory of inequity was a loser, a judge wrote a lengthy dissent, lambasting the hospital’s high markups and coercing patients. In a 2013 case called Via Christi Regional Medical Center, Inc. v. Reed, a trial judge actually ruled that a hospital’s billing practices were unreasonable, although the Kansas Supreme Court overturned the ruling. And a more recent California case indicates that a patient should at least be allowed to present evidence that a hospital’s prices were grossly unfair.

Although patients have lost, these cases mean that a handful of judges nationwide could be inclined to declare an outrageous medical bill unreasonable. All it takes is the right patient (the one who is crazy as hell and has nothing to lose), plus the right lawyer (the one who is willing to litigate, probably without getting paid), the right group of judges (those with a human heart in their chests instead of cold mechanical devices) and the right beak (really bad). It is a difficult recipe, but not impossible.

If you have a huge medical bill and are considering trying an unfair argument, know that it forces you to embark on an unpleasant journey. You will have to be sued for the bill and then challenge it in court, risking additional fees and costs. But the payoff could be huge. A win on the grounds of inequity could force providers to think twice before punishing people for the unforgivable crime of getting sick in America. •

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