Isaac D. Buck

Volume 73, Issue 2, 191-232

“The biggest crime you can commit in America is being sick.”

Grimly demonstrated by the COVID-19 pandemic, hospitals serve as the central hub of American health care. Increasingly exercising market power, setting clinical standards, and fostering innovation, hospitals’ influence over health care delivery and access is unmatched. They are the behemoth in the delivery chain, exerting unrivaled control.

As such, hospitals have naturally become the locus of the worst of the collision between consumerism and universality, between cost and access—a gloomy setting for citizens who simply cannot afford the health care they need to flourish, or to survive. Indeed, the price of American health care—a cost that is increasingly borne by American patients—is unsustainable. Those costs continue to rise thanks to a pernicious mix of increasingly brittle and ineffective insurance plans, a squeeze on public funding, and a lack of price sensitivity among the providers of American health care. Patients are suffering. And hospitals are not getting paid.

In a predictable but catastrophic turn, hospitals are suing their former patients for unpaid medical bills. Litigation has replaced systematic financing. The operating room has been swapped for the courtroom. And adversarial proceedings now follow the Hippocratic Oath.

Tracking the phenomenon of these lawsuits, this Article lays out the harms that result to the American health care system. When hospitals sue patients, they harm public health and destroy patient trust. And they shatter widely held beliefs, highlighting the inadequacy of policy goals and the inequity of health finance rules.

Further, once and for all, they expose the failure of the consumer-based paradigm of American health care, spotlighting the inapplicability of moral hazard and demonstrating the means by which individuals with private insurance and high deductibles—a rapidly growing population in the United States—are inadequately protected against the very actors that undertake to protect their health and wellbeing. This Article makes the moral, legal, and policy-based argument that hospital lawsuits against former patients must be brought to an end. American patients simply cannot afford it.