Sacrificing The Legal Battle To Win The Political War

With the rising cost of healthcare taking center stage over the past few years, the terms “surprise” or “balance” billing have sadly slipped into the American lexicon.

If you are not familiar with the terms, lucky you as that means you, your family or friends likely have not recently been in need of a hospital’s services.

As a quick primer, NPR covered a story earlier this week of a teacher in Texas who sought care for a heart attack and subsequently spent 4-days in the hospital where he underwent surgery to have a stent implanted. When he returned home, he was was greeted with a bill north of $100,000 as the hospital where he was treated was not an in-network provider with his insurance company.

If you want additional details on how this could happen to someone with insurance, the NPR story does a nice job laying out the specifics of the case, but sadly this fact pattern is not uncommon across the nation. An insured patient seeks treatment only to later find their insurance does not cover their procedure or healthcare provider thus leaving them responsible for the balance of their bill.

Even if a patient is insured, they are ultimately responsible for any portion of a hospital bill their insurance carrier does not cover. Oftentimes this nuance is detailed in an insured’s summary of benefits, AKA that ream of paper your HR gives you each year after open enrollment that you likely toss into the garbage.

And if it is not detailed in your summary of benefits, you can bet you likely signed some sort of document at the hospital whereby you agreed to accept ultimate financial responsibility for any outstanding bills.

Which is a long way of me saying whether by insurance policy, or by a waiver you signed at the hospital, you as the patient are legally responsible for your bill. And since outstanding medical debt still ranks near the top of reasons individuals file for bankruptcy, courts have uniformly agreed who is ultimately responsible for a medical bill.

For in-house counsel, this is where it gets tricky. Legally any patients of ours who find themselves in a similar situation are ultimately responsible for their bill. I know I can seek legal action against them and will prevail 100 times out of a 100.

But since our hospital is a stalwart in our state and community, I find myself routinely defying the conventional legal wisdom of suing the patient when your success is all but predestined, in favor of other options which may be a bit more palatable to the general public. Options ranging from generous discounts and repayment plans to outright forgiveness of the patient’s balance depending on the facts of the case.

To be transparent, I still pursue a legal remedy when I believe it is warranted. Such as a when a patient refused to be discharged despite being perfectly healthy just because he liked our food, true story. But more often than not I find myself working with our business office to create individually tailored solutions which will not result in a teacher receiving a surprise bill for twice their annual salary.

No matter the industry in which you work or the clients you serve if you are in Biglaw, I can bet you will be faced with similar opportunities for flexibility along the way.

As attorneys, it is easier to view everything through the judicial lens and take refuge with the courts, especially when you know you will win. But in today’s age, sometimes winning the political war is more important than prevailing in the short term battle.

Don’t believe me? After NPR ran their story earlier, the hospital in question agreed to reduce the poor teacher’s outstanding balance to a mere $782.29.

If that’s not an indication their legal team wished they had chosen a more individually tailored path at the outset, I don’t know what is.

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Stephen R. Williams is in-house counsel with a multi-facility hospital network in the Midwest. His column focuses on a little talked about area of the in-house life, management. You can reach Stephen at [email protected].