Property rights' and healthcare : Can a difficult patient force me to be his doctor

May 1, 2008

Dr. Derm, in practice for 20 years, has a large number of skin cancer patients in his practice. He is recognized as being one of the best oncologic dermatologists in his state.

Key Points

Dr. Derm, in practice for 20 years, has 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, Dr. Derm has seen Mr. Skin for multiple skin cancers; most recently, three years ago.

After that visit, Mr. Skin was "discharged" from the practice for refusing to pay either insurance deductibles or co-pays on three different occasions over the course of two years.

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 him that, recently, legal experts have re-explored the notion that patients seeking medical care may have a "property right" to that care.

What is this "property right"? Does it exist?

Medical education is an extraordinarily expensive enterprise. It is heavily dependent on public funding. The total educational costs in 1997 for an M.D. degree were somewhere between $72,000 and $93,000 per student per academic year. Graduate medical education is even more expensive, at an estimated $130,843 in direct costs per intern/resident in 1997 dollars.

In 2003, the total cost of training an internist through three years of residency was between $792,000 and $883,000. The cost of a general surgeon, completing five years of residency, fell between $1,057,000 and $1,142,000.

Physicians entering into practice are felt to have paid only 2.3 to 21 percent 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 percent of total revenue.

For graduate medical education (GME), the taxpayer funds an even greater proportion of physician training. In 2002, state taxpayers, through Medicaid funding, contributed $2.7 billion in direct and indirect payments for GME, or roughly $27,500 per medical resident. In the same year, Medicare contributed $7.55 billion - or roughly $76,530 per resident.

Clearly, the American taxpayer does underwrite a substantial share of physician training.

Financial support for medical research has also evolved into a publicly funded model. By 1999, 61 percent of research at top research institutions was federally funded. The impact of this federal funding can also be seen in terms of research output.

Almost 83 percent of biomedical research articles, and 80 percent of clinical research articles, come from either government sources or academic institutions for which public monies pay the majority of research costs.

What becomes clear is that American medicine is not wholly publicly funded, but public funding is essential to its existence.

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"?

Public ownership of United States healthcare has not only strong proponents among legal scholars, but is also grounded in rational legal and economic terms.

In the end, though, does the American taxpayer 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 (prisoners are included in this group), there is no generalized healthcare right guaranteed by the U.S. Constitution. Dr. Derm cannot be forced to see Mr. Skin.