Fordham Law


How far does liability travel when a patient neglects to seek healthcare early?

David Goldberg in Modern Medicine, June 01, 2011

Media Source

By:  David Goldberg, M.D., J.D.

Joe Skin died of metastatic malignant melanoma because he could not afford the $100 it would have cost him to see a local dermatologist two years earlier, when he only had melanoma in situ. Unable to afford the original fee, he left his pigmented lesion untreated, until a seizure from metastatic disease ended with him having multiple surgeries at a cost of $350,000 to taxpayers.

Unfortunately, Mr. Skin died anyway. But does his dermatologist have any liability?

Rationing woes

Wholly avoidable, Mr. Skin's death is an obvious example of the current policy of rationing healthcare on the basis of ability to pay. Most Americans, however, including members of the U.S. Congress, deny that healthcare rationing occurs in the United States.

During last year's battle over healthcare reform, Republicans asserted that healthcare reform would lead to rationing of healthcare, and Democrats vigorously denied that the United States rations or that healthcare reform would result in this.

The reality is that 46 million Americans lack access to healthcare, and with this, rationing inevitably occurs. Access to healthcare has been rationed for decades in the United States based on a person's ability to pay.

According to the National Center for Health Statistics, in 2007 healthcare costs constituted 16.2 percent of the United States gross domestic product. The U.S. government paid 46 percent of this amount. In 2008, government healthcare spending increased significantly, totaling $2.2 trillion (approximately $7,681 per resident).

Private individuals also bear the burden of rising healthcare costs. According to the Kaiser Family Foundation, since 1999, health insurance premiums for employee-sponsored coverage have increased by 131 percent, placing increasing cost burdens on employers and workers. Because wages continue to grow at a much slower pace than healthcare costs, many face difficulty in affording out-of-pocket spending. Thus, financial resources for healthcare have become scarce.

Based on this premise of scarcity, healthcare legal scholars have argued that we as Americans must accept the notion that healthcare must be, and will be, rationed. For example, economist Katherine Baicker, Ph.D., has noted that from an economic perspective, there is no way to get around the concept of rationing.

When the government pays for healthcare, Dr. Baicker argues, there is much less to fund public schools, roads and other necessary public services. Yet the question remains: What will work? What is the most effective way to ration healthcare?

Examining disparities

The problem is only exacerbated by the 45.7 million people who, according to a Kaiser Family study, do not have insurance and are not entitled to non-emergency healthcare. Eleven percent of the uninsured are in fair or poor health, compared to 5 percent of those covered by private health insurance.

The uninsured, it has been stated, are less likely to receive recommended preventive and primary care services, face significant barriers to care and ultimately face worse healthcare outcomes. An Urban Institute study showed that uninsured women with breast cancer are diagnosed later during its development, when treatment is less effective. Increasing the risk of serious harm, uninsured men with hypertension are more likely to go without screenings and prescribed medication and to skip recommended doctor visits.

It is not a stretch to suggest the same may be true for patients with undiagnosed malignant melanoma. Data from the Institute of Medicine's reports show that on average, the uninsured only receive about half the care that privately insured patients receive. The uninsured also tend to wait longer and get sicker before seeing a doctor.

In the end, the dermatologist, having never seen Mr. Skin before he died, had no legal obligation to take care of him. However, if the dermatologist had known about the situation, he would likely lose sleep over the question of his ethical obligation to have seen this patient.

David Goldberg, M.D., J.D., is director of Skin Laser & Surgery Specialists of New York and New Jersey; director of laser research, Mount Sinai School of Medicine; and adjunct professor of law, Fordham Law School.