This Defense Could Save You From Medical Bankruptcy

Hospital Town
Dan Canon.

I asked the people of Facebook to give me examples of outlandish medical bills they’ve received. Beware: This is not the kind of question you should ask if you’ve got high blood pressure, or you’ll end up in the hospital yourself. Among the worst charges were:

An angiogram: $157,000 A single blood transfusion for MS, of which several per year are required: $98,000 A three-day hospital stay: $80,000 A helicopter ride to a hospital for a child having a seizure: $50,000 Giving birth to a child (1.5 day stay, no NICU): $25,000 Giving birth to a child (via C-section with complications): $131,000 An ER visit that lasted less than an hour and resulted in a prescription for muscle relaxers: $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 so many of these before I go blind with rage, but none of them surprise me. We’re so used to being treated like livestock by the American healthcare system that the horror stories barely horrify. NPR even has a “Bill of the Month” segment full of tales that should confuse and infuriate anyone from any decent society. But here? They’re only worth a couple of clicks. When the United States is remembered, I suspect it will not be fondly, and the cruelty of our medical system will be taught as a quintessential example of empire gone wrong.

But what can we do if not accept the system as-is? Change on the scale we need has to happen at the federal level, and Congress is forever gridlocked. The president can’t (and won’t) do much without Congressional approval, and the federal courts are waiting with open jaws to skeletonize any attempt at progress. At the grassroots level, it’s nearly impossible to effectively organize around this issue. What are we supposed to do, boycott medical care? Crowdfund medical bills? Those strategies are rather like smoothing all the wrinkles in your top sheet when there’s a pile of shit on your pillow. Is there any meaningful action we can take?

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

Under the right circumstances, a contract can be declared unconscionable, meaning “so bad that even bad courts in a bad system designed for bad outcomes can’t countenance the badness of it all.” One law journal article from 2005 theorized that the idea of unconscionability could apply to hospital billing:

“The overriding factor…in finding hospital admission contracts procedurally unconscionable is that urgent medical services are necessities, and time is virtually always important. Thus, even if a patient understands the terms in the hospital admission contract and decides he does not want to agree to them, he is in no position to shop for an alternative supplier of urgently needed medical services. The patient must agree to the terms the hospital offers, because the patient requires the services.”

The article goes on to explain that the average hospital charge was a 345% markup from the hospital’s costs. According to the author, that’s enough to push hospital bills into the realm of unconscionability, especially since the hospital has a gun to your head at the time you sign all the admission forms and doesn’t even tell you what they’re going to charge you until you have to pay.

If a court were to agree that a bill is unconscionable, a provider couldn’t successfully sue its patient for nonpayment. So far, most litigation based on this theory appears to have failed. But I’m holding out hope that an unconscionability defense could succeed 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.. Though the unconscionability theory was a loser, one judge wrote a lengthy dissent, lambasting the hospital’s high markups and coercion of patients. In a 2013 case called Via Christi Regional Medical Center, Inc. v. Reed, a lower court judge actually held that a hospital’s billing practices were unconscionable, though the Kansas Supreme Court overturned the decision. And a more recent California case says a patient should at least be allowed to present evidence that a hospital’s pricing was grossly unfair.

Though the patients lost, these cases mean that a handful of judges nationwide might be inclined to declare an outrageous medical bill unconscionable. All that’s needed is the right patient (one who’s mad as hell and has nothing to lose), plus the right lawyer (one who’s willing to make the argument, probably without getting paid), the right set of judges (ones who have human hearts in their chests instead of cold mechanical contraptions) and the right bill (a really bad one). It’s a difficult recipe but not impossible.

If you’ve got an enormous medical bill, and you’re thinking about trying an unconscionability argument, be aware that it requires you to embark on an unpleasant journey. You’ll have to get sued for the bill and then challenge it in court, risking additional fees and costs in the process. But the payoff could be big. A win on unconscionability grounds might force providers to think twice about punishing people for the unforgivable crime of getting sick in America. •