Much is being made throughout the blogosphere and on talk radio about the new Medicare regulation that compensates physicians for discussing end of life options with their patients. As I said yesterday over at The Corner, these are not “death panels.”
A Forbes blogger makes the same point–in a too caustic fashion, since the original Obamacare legislation had real problems in this regard (which I mentioned in my The Corner post). Be that as it may, Rick Ungar is wrong about the potential for rationing in Obamacare and Medicare. Indeed, in some respects, it is already here. From his post, “Death Panel Scam Set to Reignite:”
The more desirable outcome of such a physician-patient conference would be a written, advanced directive that will legally set forth the patient’s wishes for their treatment at the end of their life. Yet those who continue to object point out that this provides physicians to push a government agenda designed to ration health care at the end of life. Think about this for a moment. Have you ever met a physician who is interested in rationing health care? After all, rationing health care is in no way beneficial to those who practice of medicine.
Poppycock. Has Ungar never heard of capitation? Hospitals could benefit financially from health care rationing because Medicare pays them a flat rate for Medicare admittees via the Diagnosis Related Group (DRG). This means the sooner a patient is discharged, the more profit (or less loss) is left for the hospital. Doctors in HMOs receive flat payments for the services they offer their patients, as well. Indeed, under the economics of much of health care today, medical professionals and institutions often make less money–or sustains a greater loss–the sicker and more care a patient needs.
Moreover, as we have discussed here, some very powerful medical groups support rationing, as does Dr. Donald Berwick, the (temporary) head of Medicare. (Yes, he’s been trying to walk that stand back lately, but it won’t do him any good. One year and out!)
Unger then steps deeper in it:
Physicians tend not to be politicians. Nor do they have any track record of supporting government actions that limit health care. Indeed, their history reveals that their positions are in direct opposition to any such action. The opposition is foolish and detrimental to the wellbeing of our senior citizens. It also sanctions the waste of taxpayer money in situations that benefit absolutely nobody. Let’s be clear. If a patient, after discussing the options with their physician, elects to request that every possible measure be taken to save their life, no matter what their situation, I’m all for it. We must -and we should – honor their wishes. But if a patient executes an advance directive, after thinking it through, they are not only doing the right thing for themselves and their families, they are doing what is best for society by not using up resources they do not wish to use.
I’m glad Ungar supports the right to receive the care a patient wants, but he is clearly not up to speed on what is happening in Health Care Land. He apparently has never heard of Futile Care Theory, for example, in which advance directives that request treatment can be explicitly overruled by physicians and bioethics committees based on quality of life determinations and (at least implicitly) cost/benefit analysis. We have discussed that form of ad hoc rationing often here.
Unger is right that the new regulation is not a death panel. But those who worry about seniors and other Medicare recipients, such as people with disabilities, being abused by explicit and futile care-style rationing in the medical system, are not paranoid alarmists. To the contrary: The danger is clear and present.
(Unger also states in his post that the regulation will allow doctors to discuss assisted suicide where legal and be compensated. I don’t know if that is true. Federal law prohibits federal funds to be used in assisted suicide. I will try and find out about this and report here when I do.)
December 28th, 2010 | 4:50 pm
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December 28th, 2010 | 5:13 pm
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December 28th, 2010 | 8:51 pm
End-of-life care discussions are excellent things to encourage. They are not, however unmixed blessings. Whatever the general history of physicians, there are certainly some who believe than many types of life are not worth living, and not all can be depended upon to keep their opinions out of it. While MD’s are certainly trained to keep bringing in new information and consultation that might change the perspective, it is also a large part of their training to be The Decider. This carries over into entirely non-medical subjects, as anyone who has discussed many matters with physicians can attest. (Not that this is universal, of course. But unwarranted assertion and assurance are more common in that group than most others.) Partly-medical topics, then, are unlikely to be exempt from this personality trait.
Now imagine bureaucrats (I am one, in about 25% of my job) and their history.
Such decisions are hard – piercingly hard, depressingly hard – there is no way around that. Doctors are often among the best advisers. What has worried the life-defending groups in the current debate is the enormous potential for abuse, even in a system that is 90% kindly and supportive of individual decisions. Anyone running the numbers cannot help but think: the cost of keeping this person alive could pay for a lot of preventative care for poor children – not that the choice ever presents that way. Local hospital actuaries at least have to operate with the knowledge that the people they are talking about are nearby. They may in fact be in the building and their families in the lobby. A person making calculations in DC can more easily regard all parties as mere numbers on a page.
This is the worry: that this one small step, bringing many blessings and not ethically very different from our current system, pricks a barrier with a hole that might be widened
December 29th, 2010 | 10:33 am
Wesley,
I have to begin by noting that this is one of the better criticisms I can recall reading of one of my pieces- which is not to say I agree with it.
While I have, indeed, heard of capitation and DRGs, I think you would find that, in the matter of life and death decisions, physicians have a way of doing what is right rather than what is profitable. This may strike you as a polyanna response, however there is both research and experience to back up the statement.
Yes, capitation gives a physician motivation to avoid unneeded tests – it does not provide physicians with motivation to advice patients to give up their lives without a fight simply because it might – somewhere down the road- make the doc a few extra bucks.
Regarding ‘futile care’, yes – there may be a few places that permit such a thing (although I think only Texas might permit something like this) but you know as well as I that if a patient has signed an advance directive asking the hospital/physicians to do everything possible to save their lives, any such hospital/physician would have to be a complete idiot to risk denying that wish. This is simply not going to be permitted in very many courts- certainly not the courts of California where I live and practice law.
You can always find a bogeyman behind every tree if you are searching for conspiracies. You can extrapolate any rule of government to its worst possible conclusion.
Is it possible you are partaking in such a exercise?
Wesley J. Smith Reply:
December 29th, 2010 at 10:53 am
Rick: Thanks for replying. Actually, there have been attempts to overturn advance directives that wanted “everything done.” Lawsuits have resulted. This trend is being pushed in very high places. So, I think you are a bit naive about that. And no, capitation won’t lead to doctors advising patients to give up their lives without a fight. But, as we move along–especially if doctors perceive they have a dual mandate, e.g. to the patient AND society, it could lead to some, shall we say, conflicts. Take a look at what is happening to the NHS in the UK, where doctors are now going to become the rationers.
So, while we agree that doctors should be compensated for these discussions–so long as they are voluntary and non coercive–the idea that Obamacare will lead to rationing is clearly not paranoid. Besides, you know what they say: Just because you are paranoid, that doesn’t mean they are not really after you.
December 29th, 2010 | 10:57 am
Since you’re linking this issue to health care rationing, I’ll call your attention to a newly released study from the Kaiser Foundation that shows that, due in part to the recession, the number of Americans whose health care ration is Zero has risen recently.
Also, the impact of losing the gamble of going without health insurance, in the form of deep debt and medical bankruptcy, is also rising. What do you think that does for our economy? What does that do for health care costs when the providers don’t get paid?
BTW, before you attack the Kaiser Foundation as some kind of socialist Obama front, I’ll call your attention to their Board of Directors, which includes former Sen. Bill Frist.
Our health care system is not broken. Our method of providing access to it is definitely broken, and the ACA is only the first step in fixing it.
December 29th, 2010 | 10:12 pm
Rich-it bothers me that someone in your position is ignorant of futile care battles and laws. In fact, Texas and Virgina both have such laws, and New Jersey attempted to legalize futile care overrides of patient directives a few months ago. There are also several prominent websites and scholarly journals that push rationing. The disability rights community has been pushing against rationing fort years, and will continue to do so regardless of what happens with Obamacare. Please educate yourself.
December 30th, 2010 | 9:36 am
Speaking of ignorance Safepres according to the National Right to Life Committee, ten states have laws requiring life-sustaining treatment pending transfer, but there are no time constraints imposed on arranging the transfer.
Forty-one states and two territories have laws regarding the continuation of life-sustaining treatment pending transfer but pro-life analysts have proclaimed all these existing laws inadequate and ineffective. Apparently law has to be very extreme in its intrusiveness or very tyrannical in order to satisfy some quarters.
I could proclaim that YOU might want to educate yourself but that would hardly serve any purpose other than to incite you to attack me and the information that follows.
The Texas Advance Directives Act was recently (2007) up for reform and revision. At the time it seems forces were marshalled on either side that essentially agreed on some of the key issues being raised but still couldn’t seem to reach any level of compromise. This article sums up the positions rather nicely:
http://www.law.uh.edu/healthlaw/perspectives/2007/(CM)TXFutileCare.pdf
Ultimately the specific proposed reforms were not implemented although advocates of reform and revision were planning to pursue a push for voluntary compliance with the reform proposals:
http://www.chron.com/disp/story.mpl/special/07/legislature/4846112.html
Hopefully at some point the sides in these discussions will be capable of putting aside the high level of emotion and the inflammatory behaviors and get some real work done which might begin with at least the consideration of some level of compromise.
Wesley J. Smith Reply:
December 30th, 2010 at 10:20 am
Amazed: Compromise is good. But not always. Sometimes it lets the wolf in the door. If efficacious life-sustaining treatment can be unilaterally withheld becuse doctors or a bioethics committee thinks that isn’t a life worth living–even though an advance directive stated to the patient, it is–then we have created a principle that puts our health care in the charge of others. Futilitarians have already told me that once “inappropriate” care, to use the jargon, is put under their control, they next will target “marginally beneficial care.” When I asked for an example, it was an 80 year old getting a mammogram.
I don’t think we can open the door to futile care, or if we do, it shouldn’t be internal hospital procedures. Make it in the open, subject to cross examination, and appeal. Better yet, education and not coercion.
December 30th, 2010 | 4:01 pm
“I don’t think we can open the door to futile care, or if we do, it shouldn’t be internal hospital procedures. Make it in the open, subject to cross examination, and appeal. Better yet, education and not coercion.” – Wesley Smith
I agree except that the door has already been opened and I would argue a little too far as in the example of what Texas enacted. Now it appears that activists and concerned citizens in that state are having a very hard time even inching that door closed a bit.
If a “bioethics committee” is to be involved it should be operating outside the sphere of influence of the hospital in question and certainly not composed of members of the hospitals own choosing.
As far as challenges to advanced directives that should properly fall into the hands of the courts for resolution but with the hospital having to cover the associated costs regardless of outcome- if the hospital wants to proceed with a challenge the hospital should bear the entire cost of putting their challenge before the courts. This should be a federal mandate.
I would predict that if states were allowed to mandate arbitration or some other process as envisioned on the state or local level that it would lead to the creation of a hodge podge of secretive and unaccountable committees or otherwise obscure and less than transparent processes and unknowable procedures, rules and policies.
For lack of a better expression the playing field should be level and all the players, procedures and rules known and knowable beforehand(even if deciding such matters isn’t what anyone would call a “game”).
Hopefully the law in Texas doesn’t end up a model for law in other states.
January 7th, 2011 | 1:11 pm
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