Do patients have property rights in healthcare?

October 30, 2019
David J. Goldberg, M.D., J.D.

Dr. Goldberg is Director of Skin Laser & Surgery Specialists of New York and New Jersey, Director of Mohs Surgery and laser research, Mt. Sinai School of Medicine, and Adjunct Professor of Law, Fordham Law School.

Dermatology Times, Dermatology Times, November 2019 (Vol. 40, No. 11), Volume 40, Issue 11

If the public pays for the training of physicians, can it be argued that the public has an ownership property interest in American healthcare? David J. Goldberg, M.D., J.D., provides his insight.

In practice for 20 years, Dr. Derm sees a large number of skin cancer patients. He is recognized as being one of the best oncologic dermatologists in his state. Over the course of the last 10 years, he has seen Mr. Skin for multiple skin cancers. The last time Mr. Skin was seen in the office was three years ago. After that visit, Mr. Skin was “discharged” from the practice for not showing up for numerous visits, as well as refusing to pay either insurance deductibles or co-pays on three different occasions over the course of two years. Since that time, Mr. Skin has found a different dermatologist. The new dermatologist recently biopsied a lesion on Mr. Skin that proved to be early invasive melanoma. Mr. Skin, understandably anxious, seeks an appointment with the “skin cancer expert,” Dr. Derm.

READ MORE: Am I liable if the patient wasn’t mine?

Mr. Skin is given an appointment to see Dr. Derm. However, when Dr. Derm sees Mr. Skin in the waiting room, he refuses to see him. Mr. Skin is fuming and seeks to sue Dr. Derm for not seeing him. A law student friend tells Mr. Skin that, increasingly, legal experts have re-explored the notion that patients seeking medical care may have a “property right” to that care. He cites the fact that as the 2020 presidential race nears, this is an increasingly discussed issue. What is this property right? Does it exist?

Medical education is an extraordinarily expensive enterprise. It is heavily dependant on public funding. The total educational costs for an MD degree have increased every decade. New physicians, in general, often carry enormous debt once they have graduated (there are some exceptions such as the tuition free medical school education at NYU). Yet, physicians entering into practice are felt to have paid only 2.3% to 21% of the total direct costs of their own education. The rest of the funds, in fact, come from a variety of sources. The public contribution to these funds varies tremendously from school to school. On the average, though, direct state and federal government appropriations and government funded grants and contracts constitute about 38% of total revenue.

For graduate medical education (GME), the taxpayer funds an even greater proportion of physician training. Almost 20 years ago, Medicare was contributing $76,530 per resident. That number has increased tremendously
since then. Clearly, the American taxpayer does underwrite a substantial share of physician training. With that, increasingly, patients as well as some legislators feel strongly that Americans have a right to healthcare and to see the physician of their choice. This would include Mr. Skin’s right to see Dr. Derm.

Financial support for medical research has also evolved into a publicly funded model. Almost 83% of biomedical research articles and 80% of clinical research articles come from either government sources or academic institutions for which public money pays the majority of research costs.

What becomes clear is that American medicine, while not wholly publicly funded, still requires public funding for its existence. Few physicians would ever be trained if they had to underwrite the full cost of their training. 

At a minimum it would appear that the public’s substantial investment in educating physicians, financing the delivery of healthcare and funding medical research must be viewed as a potential “property” interest of the public. If the public pays for the training of physicians, then can it be argued that the public has an ownership property interest in American healthcare? At the very least, in both legal and economic terms, can the public’s ownership interest in healthcare be understood as an interest in a property that one might consider the “public good”? Is there a fundamental right to healthcare?

RELATED: What are my liabilities with telemedicine?

The American ownership of U.S. healthcare has not only strong proponents among legal scholars, but is also grounded in rational legal and economic terms. It is certainly a hot ticket political issue. In the end, though, does the American taxpayer actually have a constitutional right to healthcare? Does Mr. Skin have a constitutional right to receive healthcare from Dr. Derm?

Although there are a variety of constitutional rights to healthcare (including prisoners), there is no generalized healthcare right guaranteed by the U.S. Constitution. Dr. Derm cannot be forced to see Mr. Skin. Time will tell if patients and their elected legislators try to change this notion. That has not happened as of yet. ƒ

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