When the Clouds Hung Oppressively Low in the Heavens: Unhealthy Cost-Cutting in France and in the U.S.
| Author | Pierre Loiseau |
| Pages | 945-961 |
Pierre Loiseau was born in 1963 in Perpignan, France. He is the holder of two doctorates, one in medicine (University of Paris VI, 1991) and one in law (Perpignan, 2004). In the medical field, he specialized in Personal Injury Assessment (Legal Medicine Institute, University of Montpellier, 1992), in sports medicine (University of Montpellier, 1995) and emergency medicine (University of Amiens, 1995) and also holds diplomas in Clinical and Therapeutic Nutrition Science (2001), "Wound Management" (2004) and Gerontology (2007). His doctorate thesis in law was published in 2005: "La maîtrise des dépenses de santé confrontée à la responsabilité médicale aux Etats- Unis et en France » (Health Cost Control vs. Medical Liability in the United States and in France), Presses universitaires d'Aix-Marseille. He was a Resident in Pathology/Legal Medicine at the Office of the Deputy Chief Medical Examiner, Morgantown University Hospital, Morgantown, West Virginia, 1991-1993. He has taught Corporal Damage Assessment at the University of Montpellier Medical School, Fundamentals of Law and Comparative Legal Systems at the University Laval (Quebec) Law School, and Health Law at Louisiana State University Paul M. Hebert Law Center (2007).
Page 945
During the whole of a dull, dark, and soundless day in the autumn of the year, when the clouds hung oppressively low in the heavens,1 I had been passing alone, on horseback, through a singularly dreary tract of country; and at length found myself, as the shades of the evening drew on, within view of the melancholy House of Usher. I know not how it was-but, with the first glimpse of the building, a sense of insufferable gloom pervaded my spirit.2
There is an enduring assumption that the United States and France are, and will remain, at the two extremes of the health care social spectrum: private scarcity versus public laxity. The picture presented today, however, tells us quite a different story about what is covered, i.e., the various "slices" of the population covered by health insurance: in the U.S., 59.3% are covered by the Page 946 "salaried scheme,"3 13.8% by Medicare, 13.2% by Medicaid, 8.9% by the "self-willed scheme," and 15% of the population is not covered at all. In France, 80% are covered by the "salaried scheme," 9% by the "farming scheme," 11% by the "not-salaried-not- farming" schemes,4 0% by the "self-willed scheme," at least in theory, because health insurance5 is mandatory. 100% of the population is therefore covered.6
In the U.S., Medicare and Medicaid are solely financed- through state and federal budgets7-by taxpayer contributions, often by contributions from salaried workers.8 In France, the farming scheme and the not-salaried-not-farming schemes are largely financed-in the name of solidarity-by contributions of the "richest scheme," always the salaried scheme. Page 947
Of course, this Essay presents the healthcare issue in the form of a caricature, since being overly detailed in such a complex area of the law will not necessarily give the reader the best view from which to analyze the system. The salaried worker shows a tendency to foot the bill;9 comparative studies tend to affirm this notion. This is a running paradox; every time our health care system is keen to expand, there is, to some extent, some retraction in the air. In its embryonic stage, "nationwide health insurance" is indeed a raggedy patchwork.10
The U.S. is now facing the same challenge that confronted France at the end of the 1970s: to stretch that patchwork to cover 100% of the population. France's victory was a pyrrhic victory; soon after the effective "generalization" of the health care cover, a "definitive plan" came to eradicate the deficit forever-then another one, and still another followed. The same thing is likely to happen in the U.S.,11 with the same cortege of disarray: this endless stack of "deficit remedies" has driven France to very uncertain waters. There is still hope, however, to find a two-fold lifeboat.
Few, indeed, will pretend that health law is not somewhere between law and medicine; it would be, therefore, a clean cut to sever said cost-cutting into only two parts: "legal" and "medical." We will try to go further and add a third part. What is going to happen next? The "Three Sisters" have the answer.
He held them sixpence all too dear,
With that he call'd the tailor lown.
He was a wight of high renown,
And thou art but of low degree:
'Tis pride that pulls the country down; Page 948
Then take thine auld cloak about thee.12
Legal cost-cutting is plain and simple: access to health care is denied because the insurer says so. The law (contract law in the U.S., statutory law in France) simply says that you are not entitled to coverage and that is that. The so-called therapy you are looking for may, or may not, be necessary: insurers do not care. Note that one may derive some benefit from this miserliness: the treatment turned down may have been iatrogenic. Insurers do not care: cost- cutting is their one and only goal.
Some U.S. insurers offer discounted premiums by making payment for state-of-the-art treatments, such as grafts or transplants, very difficult;13 very recently French insurers have taken more drastic measures, as depression and back pain are no longer covered.14 This is a reminder that France is mainly a nation of salaried workers: under productivity pressure, blue-collar workers suffer from back pain while white-collar workers suffer from depression.15 Legal cost-cutting is, therefore, self- explanatory.
But legal cost-cutting is not doomed to be aimed against the patient. An overlooked form of legal cost-cutting is the enforcement of public health guidelines; the percentage of salt in industrial, or collective, food may be, by law, reduced by five percent every year. The subsequent reduced incidences of arterial hypertension would then be so substantial that the corresponding savings would likely solve most of the actual lack of funding. Correlatively, when the tobacco industry is sued in the U.S., the quest for damages does not take the patient into consideration. Despite its assumed intrusiveness, legal cost-cutting is, at least, expected to be straightforward.
The French health care scheme has a so-called public mission. Authorities are reluctant to say that the insured cannot receive certain treatments; instead, a variable percentage of the health care Page 949 treatments are not reimbursed, supposedly to educate the patient- to teach him moderation, and probably wisdom. "Lifestyle" backlash is the Anglo-Saxon response to this educational argument.16
It has become clear that the unreimbursed percentage is not pedagogical any longer; this percentage has reached such a size that the would-be patient has to subscribe to a "complementary" health insurance plan. As expected, this intrusion of private protagonists has been, and continues to be, ever-growing: public authorities have finally been forced to reverse this trend by creating a public complementary health insurance plan for indigents.17
In order to prevent cost sharing from penalizing people with serious medical problems--the way Health Savings Accounts threaten to do--the [French] government limits every individual's out-of-pocket expenses. In addition, the government has identified thirty chronic conditions, such as diabetes and hypertension, for which there is usually no cost sharing, in order to make sure people don't skimp on preventive care that might head off future complications.18
As expected, the number of "beneficiaries" of the said "thirty chronic conditions" soon became too high. In order to reduce the impact, the drug prescriptions form was split into two different zones: a full-reimbursed zone, and a partly-reimbursed zone, dedicated to the drugs not "directly linked" to one of the already mentioned "thirty chronic conditions." Consequently, family doctors do not have enough time to complete these new forms Page 950 properly, while the French national health insurance system does not have enough advising doctors to check them.
This is a general rule: entropy is always increasing. On top of that, dealing with expensive and inexpensive items at the same time generates a "supplement" of unwanted heat.
The new U.S. public health insurance program is envisioned to be offered alongside existing private insurance plans.19 The French experiment suggests that these mixed, new programs which combine public and private insurance will run out of money sooner or later: a nationwide health insurance scheme may, therefore, be the best and most efficient way to increase coverage for all medical conditions, from expensive diseases, i.e., those that are severe and chronic, to inexpensive ones, i.e., those that are mild or acute.
Almost everyone is wealthy enough to afford treatment for the flu; however, almost no one is rich enough to pay for cancer or chronic arthritis treatment. Nobody can deny that private insurers are eager to cover the "inexpensive" diseases,20 so is it the duty of the public sector to cover what the private sector is not keen to insure? Case law lightens up the shaded zones, and a sharp separation21 between two distinct "health fields" (i.e., public and private) will, like in Germany,22 hopefully result. Covering inexpensive diseases is a very lucrative business, so the private health insurers will be affluent enough to pay the tax financing23 Page 951 that the public scheme must commit to treating expensive diseases. But this hypothesis will remain just that, a hypothesis, as long as there continues to be more substantial medical cost-cutting.
"There is nothing worse than half-measures."24
Medical cost-cutting is somewhat more subtle: access to health care is denied for one's own good. The insured, so they say, is e...
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