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Melissa B. Jacoby & Elizabeth Warren, Beyond Hospital Misbehavior: An Alternative Account of Medical-Related Financial Distress, 100 NW U. L. Rev. 535 (2006).

Abstract: Illness and injury have a significant financial impact on families, but recent news media reporting and lawmaker responses have framed these issues in terms of hospital mistreatment of the uninsured. In this article, we argue that the hospital misbehavior model imposes artificial parameters on a much broader health care finance problem. We demonstrate this empirically, using new data from the Consumer Bankruptcy Project to show that even insured families experience a wide range of direct and indirect financial consequences of illness or injury, including income loss. We also engage in a positive analysis of debtor-creditor law to challenge the assumption that hospitals misbehave when they engage in routine debt collection. Our health care finance system depends in part on self-pay obligation, and lawmakers in some states have given medical providers enhanced collection powers and incentives to be diligent beyond those given to other creditors. When hospitals engage in regular types of collection activity within the boundaries set by debtor-creditor law, they are playing out the role assigned to them by the health care finance system. We recognize that some hospitals have engaged in wrongdoing, and we cannot rule out the possibility that proposed changes in response to the hospital misbehavior model will have positive effects for some uninsured patients. Yet, we suspect that the negatives will outweigh the positives. If lawmakers believe they have solved the health care finance problem by imposing new limits on hospital behavior, they are less likely to tackle the larger issues that leave millions of responsible people struggling financially after a serious medical problem. The hospital misbehavior model also imposes costs on hospitals that hospitals may be ill equipped to bear, and it may lead to further reduction of necessary services at not-for-profit facilities. We recommend replacing the hospital misbehavior model with an expanded vision of health care finance issues that includes all forms of medical debt, direct non-medical costs, third-party payers, and lost income and opportunity - a full range of the economic fallout from a serious medical problems.