AAPS News – Jan 1999

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Association
of American Physicians and Surgeons, Inc.
A Voice for Private Physicians Since 1943
Omnia pro aegroto

Volume 55, No. 1 January 1999

THE END OF LIFE

Until recently, a very few Americans knew in advance the
precise time and manner of their death: those who were on death
row, awaiting their date with the executioner.

There is in fact only one way in which any physician can
know with certainty the time of a patient’s demise. Most
physicians can probably recall one or more patients who defied
their prognostications, living months or years longer than
expected, and sometimes even making an astonishing recovery.

The key to understanding the “end-of-life” campaign is to
recognize that “end” is not just a noun, but also a verb.

“To end life” sounds less harsh than “to kill.”

The idea is to end life before it becomes not worth living
(lebensunwertes). The Oregon physician-assisted suicide
law arbitrarily defines that point to occur no sooner than six
months before the projected time of natural death.

At the actual end of life, the physician has a corpse, not a
patient. At that instant, an absolute, irreversible, natural
change of state makes all the AMA’s Education of Physicians for
End of Life Care (EPEC) materials utterly irrelevant.

The transition point under discussion in this campaign is
not death, but rather the point when a particular life reaches a
zero or negative value. Then one would no longer wish for a
person to live long and prosper, but for the nonperson to die
more quickly so that the collective can prosper more.

This point is relative, not absolute like death-and so are
the ethics invoked in determining it.

The ethics are supposedly multicultural: “Dan Callahan,
director of international programs, races out of the building for
the airport. Once again he is off to a conference abroad to work
with members of one of his international committees on the goals
and values of contemporary medicine in an increasingly
interdependent world,” reads a Hastings Center fundraising
letter. Yet the whole agenda begs the questions at the heart of
the world’s cultures: Why did Egyptians build pyramids? Why did
Christians bury suicides at the crossroads? Why did Hamlet pause
and ask: “For in that sleep of death what dreams may come?”

End-of-life “choices” may be presented as “options”: even if
the manner-of-death decision forecloses other possibilities (such
as stepping back from the precipice at the last instant).

But avoiding the issue is not an option, given the pervasive
nature of the supposedly multicentric campaigns by the new AMA
Institute for Ethics (focusing on end-of-life care, genetics,
managed care, and professionalism), the ACP/ASIM Center for
Ethics and Professionalism (including the same foci), the Robert
Wood Johnson Foundation “Last Acts” program, and so on.

A number of techniques are helping to win acceptance for the
physician as killer:

  • Desensitization (watch Doctor Death
    kill a patient on national television-rather like forcing medical
    students to watch pornographic films);
  • Surveys (like one distributed by the
    American Academy of Neurology, which helps frame the questions as
    primarily legal rather than moral and shows that more and more
    physicians are moving toward acceptance of euthanasia);
  • Incentives (win a grant, or attend a
    Saturday morning seminar and get a great parking place for the
    football game that follows, or engage in the activity that gets
    the highest reimbursement under the proposed new AMA/HCFA E&M
    Documentation Guidelines);
  • Punishment (in addition to nonpayment,
    “regulatory requirements…expose providers to significant civil
    and criminal sanctions for failure to comply with `medical
    necessity’ requirements,” noted a memorandum from System
    Integrity Office at Providence Health System-and how could futile
    care be medically necessary or appropriate?);
  • Semantics (the Oregon Department of
    Health defines assisted suicide as a form of “comfort care”);
  • Interactive propaganda and peer
    group pressure
    (once physicians complete their
    continuing medical education, they are urged to “share” with
    others who missed the opportunity -the “train-the-trainer”
    process); and
  • Control of the data (death certificates
    in Oregon are deliberately unclear in case of physician-assisted
    suicide, and there is no way of knowing whether certain groups
    are disproportionately affected-Medical Economics
    5/11/98).

The difficulty of obtaining reliable data on euthanasia is
eloquently shown by the Dutch experience. It is said that more
than 60% of Dutch cases of euthanasia are unreported, in
violation of their own guidelines. Involuntary euthanasia is not
legally sanctioned in the Netherlands; however, euthanasia there
is always voluntary by definition, even when done “without
explicit request.” (See JAMA 1997;277:1720-1722,
278:817-818, and 278:1492-1493).

The logically consistent endpoint of this discussion is the
view of Australian philosopher Peter Singer, recently appointed
Professor of Bioethics at Princeton’s University Center for Human
Values. Singer has been denounced by Catholic bishops, prominent
rabbis, and parliamentarians of Helmut Kohl’s Christian
Democratic Party (who compared him to Hitler’s henchman Martin
Bormann). He cannot speak on the Continent without being assailed
by disabled protesters (Wash Times 7/6-12/98). Singer
does not believe that the concept of a moral right is helpful or
meaningful. He judges the value of any action by whether it
increases the sum of pleasure in the universe, as by removing
“miserable beings.”

In Singer’s view, it is the failure to accept killing that
is horrific (Wall St J 9/25/98).

The outcome of this culture war is not yet determined, but
the end of the Hippocratic tradition could be at hand.


Collectivist Morality

From the two central features of every collectivist system,
the need for a commonly accepted system of ends of the group and
the all-overriding desire to give to the group the maximum of
power to achieve these ends, grows a definite system of morals,
[which] differs from [ours] in one point which makes it doubtful
whether we can call it morals; that it does not leave the
individual conscience free to apply its own rules and does not
even know any general rules which the individual is required or
allowed to observe in all circumstances….

The principle that the end justifies the means is in
individualist ethics regarded as the denial of all morals. In
collectivist ethics it becomes necessarily the supreme rule;
there is literally nothing which the consistent collectivist must
not be prepared to do if it serves “the good of the whole,”
because “the good of the whole” is to him the only criterion of
what ought to be done….[C]ollectivist ethics…knows no other
limit than that set by expediency….

Friedrich Hayek, The Road to Serfdom

quoted in Investor Weekly 5/6/98, Prudential
Securities

W.C.A. Hospital Ethics

The attending physician’s statement on a form entitled “DNR
– Therapeutic Exception” reads as follows:

“I have determined to a reasonable degree of medical
certainty that the patient would suffer immediate and severe
injury from a discussion of CPR. I have ascertained the wishes of
the patient to the extent possible without subjecting the patient
to risk….I have determined that … (a) the patient has a
terminal condition; (b) the patient is permanently unconscious;
(c) resuscitation would be medically futile; or (d) resuscitation
would impose an extraordinary burden on the family in
light of the patient’s medical condition and the expected outcome
of resuscitation.”

Consumer Self-Help in Oregon

In the wake of Oregon’s physician-assisted suicide law,
Oregon homemaker Patricia Smith has written a book entitled “Ten
Ways to Protect Yourself and Loved Ones from Euthanasia,” $7.00
from 4-U Publications, PO Box 895, Canby, OR 97013. Topics
include “How do I know if I can trust my doctor?” and “Why are
living wills dangerous?”

Arbeit Macht Frei

In the last 20 years, there has been a three-fold increase
in the U.S. prison population. With more than 1.8 million persons
incarcerated, the U.S. has more prisoners per capita than any
other country, and the population is expected to double again by
the year 2005. The increase is primarily attributed to harsher
sentences for first-time drug offenders. The average federal
sentence for a first-time, nonviolent drug offense is longer than
for rape or manslaughter (Prison Legal News, 12/98). At
the same time, the number of inmates working in federal prison
industries, at wages from 23 cents to $1.15 per hour, has grown
from 5,000 in 1980 to 20,000 today.

While prison employment may enable prisoners to develop positive
work habits and useful skills, the Coalition for Government
Procurement states that prison industry often displaces other
workers, destroying more than 2,000 jobs in the furniture
industry alone since 1993. The government is required to give
preference to goods made by federal prison inmates (Thomas
Sowell, Forbes 10/5/98).

In November, representatives of the Public Health Committee
of the Pima County Medical Society toured a medium-security
federal prison near Tucson, where the factory produces mail bags
for the U.S. Postal Service and bags for servicemen. The warden
and the contracted prison physician explained tuberculosis and
suicide precautions. The delegation was not permitted to
interview an inmate because the appearance of access to a private
physician might be perceived as favoritism and might also tend to
undermine the authority of the prison physician.

The warden had no statistics on homosexual rape, one of the
most dreaded risks of incarceration. He stated that many assaults
were unreported because victims viewed the lockdown (protection
against retaliation for snitching) as worse than continuing to
live with abusive perpetrators.

A Growth Industry

In an interview with Medicare Compliance Alert
editors, Wayne W. Oakes, acting chief of the FBI’s health care
fraud unit, was asked: “Will you ever reach a point-because you
get more money every year with HIPAA-where you have enough
agents?” He replied: “I don’t think so because what happens here
is when you fund, say 46 positions, and you use part or most of
that $9 million enhancement, what happens is the cost of that
agent increases each year because there are promotions involved.”
Also, investigations are much more sophisticated, he said. It is
expensive to execute 35 search warrants in 17 states, ending up
with box loads of records that have to be stored and analyzed
(MCA 7/13/98).

Protecting the Public System

The main threat to Canadian medicare is not chronic deficits
and waiting lists, but rather the private sector. Bill 37 in
Alberta was introduced to regulate private surgical facilities
that otherwise may serve to “help shorten waiting lists for some
procedures the public system has trouble providing.”

Bill 37 “will prohibit a private treatment facility from
providing surgical services, now provided in public hospitals, to
any Canadian covered by a provincial health plan.” Uninsured
services, now provided outside the public system, could be
offered only by facilities accredited by the College of
Physicians and Surgeons of Alberta and formally approved by the
Minister of Health. Debate on the bill has been deferred until
the spring of 1999 (see http://www.health.gov.ab.ca).

Duplication of services in the public and private sectors is
considered to cause erosion of the public facilities, especially
if physicians are permitted to straddle the two systems. Critics
say that quality and the profit motive are incompatible goals.

If physicians are able to choose to accept more pay rather
than less, “instead of the best doctors doing the most difficult
work, they are doing the most lucrative work,” stated Richard
Plain, Vice President of the Consumers’ Association of Canada
(CMAJ 1998;159:551-552).

AAPS Calendar

Feb. 20, 1999. Board of Directors meeting, Dallas.

Oct. 12-16, 1999. 56th annual meeting, Coeur D’Alene, ID


Elastic Clauses

On November 12, the government’s appeal of Judge Lamberth’s
sanctions in the case of AAPS v. Clinton was heard in
the U.S. Circuit Court for the District of Columbia, before
Judges Ginsburg, Buckley, and Henderson.

U.S. attorney Jacob Lewis argued that Judge Lamberth had
fundamentally misapplied the law and made the erroneous
assumption, based on Ira Magaziner’s sworn declaration, that the
government was relying on the all-employee exemption to the
Federal Advisory Committee Act (FACA). The truth of the
declaration became immaterial, in the Department of Justice’s
view, when the government decided it would be “unduly burdensome”
to demonstrate and that the “horde theory presented fewer
problems.”

Arguing for AAPS, attorney Thomas Spencer said the
Department of Justice was taking the position that “litigation is
a game of Pin the Tail on the Donkey, in which plaintiffs are
forced to grope around in the dark as the government constantly
shifts the target.”

If the government’s view prevails, Mr. Spencer noted, the
FACA is turned on its head. Whoever shows up becomes an employee,
with no need to file any of the supposedly required forms: “a
self-fulfilling definition.”

Mr. Spencer reminded the Court of the defendant’s tactics of
obstructing discovery. Discovery sanctions had been ordered, but
never assessed.

“The implication of the government’s argument is that
language is infinitely elastic, when used by government, and
truth is whatever furthers the government’s goals,” concluded
AAPS Executive Director Jane M. Orient, M.D.

The Judges did not grant Ira Magaziner’s request to be heard
separately during the hour-long argument. Magaziner was chairman
of the Interdepartmental Working Group of the Health Care Task
Force and now serves as the President’s advisor on the Internet
and electronic commerce, a position he plans to leave by the end
of 1998. Justice Department lawyers said that Judge Lamberth had
not relied on Magaziner’s sworn statements [even though the Judge
said that he had]. Moreover, they claimed that Magaziner had
“merely signed statements that had been drafted for him by
government lawyers” (Robert Pear, NY Times 11/13/98).

United Seniors Case Heard

On October 23, the case of United Seniors Association v.
Shalala
was heard in Circuit Court for the District of
Columbia before Judges Williams, Sentelle, and Garland.
Plaintiff’s attorney Kent Masterson Brown conceded early in the
hearing that the litigation did not concern the right to contract
privately for services covered under Medicare, but only for those
services which, under a clear standard, would not be
covered. Price controls, which can adversely impact the
availability of necessary services, are explicitly not being
challenged in this case.

The Court acknowledged that there is no market-based
insurance available to seniors as a result of the heavily
subsidized Medicare program. The Court also stated that “the
current medical insurance is ludicrous in the way it covers
things that in a normal insurance market would not be covered at
all.” The Court challenged the U.S. attorney to cite a
constitutional basis for §4507 of the Balanced Budget Act.

Mr. Bondy stated: “Well, the power, whatever the power is to
promulgate Medicare. I’m not even sure standing here right now
what that is.”

The Court replied: “It may be perfectly true that Medicare
is unconstitutional. Okay? But that’s not challenged….It
doesn’t do [any] good to say whatever involves the unchallenged
statute must also involve the challenged statute.”

The plaintiff did not claim that patients could not obtain
necessary medical care. In the Court’s understanding, “they’re
not claiming nearly so much that they’re deprived of medical care
as that they’re deprived of the right to contract for it.”

Mr. Bondy acknowledged that the two issues are related.

“Sure they’re related,” stated the Court. “[Y]ou still can’t
say…under the U.S. Constitution,…Big Brother’s going to look
after you; you don’t need the freedom to contract for your
own…medical care.” Judge Sentelle also asked: “The government
knows better than they [do] what [it is that] they want?”

Much of the argument hinged on the definition of a
noncovered service. If the doctor knows that under the applicable
conditions Medicare will not pay for a service, the Court wanted
to know if the service could be regarded as noncovered. Mr. Bondy
said that it would.

“Well, apparently [your opponent] didn’t read the rule this
way, and neither did we,” said the Court.

The Court suggested that if HCFA produces regulations
consistent with the position taken in the courtroom, which
requires considerable “interpretation” described as a “novel”
reading of the statute, there would be little difference between
plaintiff and defendant.

The Court advised Mr. Brown to sit down and to accept that
the plaintiff could win by losing: “If we accept the government’s
position, which is the same as your position, then there will be
nobody to appeal.”

Regulations issued November 2 do not implement the
interpretation discussed in Court.

A decision may be handed down in a few months.

“This case may establish the right of an asymptomatic
patient to buy a screening PSA or an extra look at a healing
wound from a doctor who has not opted out of Medicare,” stated
AAPS Executive Director Jane M. Orient, M.D. “But what about
life-saving surgery for a leaking abdominal aortic aneurysm, if
this is not available due to Medicare regulations and price
controls?”

Y2K and Medicare Participation

AAPS Director Lawrence Huntoon, M.D., reminds physicians
that if they sign a Medicare Participation Agreement, they are
agreeing to accept whatever Medicare allows as payment in full
for an entire year, even if that amount is zero. The steady
revenue stream could abruptly stop, especially after January 1,
2000. According to the director of civil agencies information
systems at the General Accounting Office, progress toward solving
the Y2K problem is so poor that under the worst-case scenario “no
claims could be processed.” HCFA has “not documented the severity
of the impact of year 2000-related failures,” testified Joel
Willemssen. Only 44% of “mission-critical” HHS programs will be
“2000 compliant” by the target date of March, 1999.

HCFA is required to reimburse Medicare contractors for “all
allowable costs”; therefore, its ability to “exert financial
leverage over its contractors to direct funds toward [Y2K-
related] activities is limited,” according to information officer
John Callahan (AM News 7/13/98).


Members’ Page

Death in the Village. As the AMA rolls out its
Education for Physicians on the End of Life Care (EPEC) program,
“trainers” will be collaborating with the Robert Wood Johnson
Foundation funded program to change the culture of death in
America. The goal is to reach every practicing physician in the
United States within two years (AM News 7/1/98). RWJF
has already implemented a “Pathways” program in Kansas City
through its Midwest Bioethics Center to meet the needs of dying
patients. A pilot training program is now being introduced in 30
internal medicine residencies. One of the benefits of EPEC is to
lower costs by teaching physicians how to “recognize futile care
earlier” (by futility of care guidelines?) and thus “stop
delivering inappropriate care.”

Ms. Susan Buchanan, an attorney who runs the Colorado
Collective for Medical Decisions, a futilitarian think tank, is
“excited” about the program (ibid.). The word
“collective” is key here, because it’s not just part of their
name, it’s an integral part of their philosophy. Apparently, if
it takes a village to raise a child, it also takes a village to
decide when it is time for an individual to die.

Lawrence R. Huntoon, M.D., Ph.D., Jamestown, NY

A Northerly Breeze from Paradise. The French Canadian
newspaper reports that hospital personnel took it upon themselves
to disconnect a 76-year-old patient from a life-saving respirator
(La Presse 7/14/98). Needless to say, the patient’s
family had serious misgivings about the incident.

The lesson to be learned from this tragedy is that if
doctors are de facto employees of the state rather than of
patients, they will-sooner or later-obey government directives
rather than dutifully serving the needs of patients.

Excluding a few clairvoyant students of political
philosophy, no one predicted such a horror story at the inception
of Canada’s socialized health care system.

Robert Gervais, M.D., Mesa, AZ

A Purpose Behind Managed Care? I read with interest
Ernest White’s observation (AAPS News 10/98) concerning
the GOP’s response to the Democrats’ HMO bashing. He thought that
the GOP was playing into the hands of Clinton Care/Universal
Coverage. Wouldn’t it be interesting if federal laws that
[resulted in] insurance companies practicing medicine were
specifically created by thoughtful and clever socialists in order
to precipitate an eventual “crisis” so that the federal
government could rush to the aid of the victimized American
people? Maybe the “managed cost/rationed care” insurance system
was never more than a straw man.

P. Michael Moffett, M.D., Colorado Springs, CO

Consequences of Price Controls. One effect of having a
Neosocialist organization determining our fees is to give payers
the right to direct activities that should only be guided by our
professional judgment. Another issue is that it gives them the
excuse to access medical records, made much easier if the records
are computerized. This will produce an underclass of people who
have a red flag in their electronic billboards.

James P. Durand, M.D., Mt. Vernon, IL

Where Is It Leading? We have before us the example of
the Weimar Republic. [Its culture was also corrupted] with the
cancers of nature worship and addiction to everything from drugs
to sex, dramatically represented by the effete art of the period
now rightly called the Age of Decadence….

Most frighteningly, the seeds of racism were sown at that
time. The division then was between Aryans and Untermen-

schen, Gypsies and Jews being at the bottom of the pile.
Unequal qualities [used to categorize people in America], based
on trivial but group characteristics, are now being enshrined in
Affirmative Action and the whole panoply of racist laws: the
thesis that is the harbinger of a reaction (the antithesis).

We also see in the schools with Goals 2000 a psychiatric
categorization (“profiling”) of all children….There is no
classification for “normal” in the DSM-IV….

We are seeing the Nazification of America, the destruction
of the fabric of an integrated society, in the name of some good.
(Would you expect its introduction in the name of evil?)

Thomas Dorman, M.D., Kent, WA

from Fact, Fiction & Fraud in Modern Medicine,
6/98

The Pogrom Continues. After six years of despair, the
federal court handed down a judgment against us for $77,000. Only
minutes before the deadline, the government filed an appeal. As
they promised at the last hearing when the judge lowered the
penalty to this “small” amount, they will again request “more
than the Krizeks are worth.” The Hungarian prosecutor Bruce Hegyi
was removed from our case…. He was obviously not cruel enough,
and he was replaced by a woman. It was said in the Nazi camps
that women were more effective.

Mrs. Blanka Krizek, Washington, DC

Unalienable Rights. In my opinion, the fraud, duress,
and coercion elements [referred to in the Nuremberg Code] are
present when patients are sold an insurance policy without
knowing that every word they exchange with their doctor may
become subject to scrutiny…for economic reasons. [There are] certain rights that are unalienable or “incapable of being
surrendered.” The right to privacy in patient-physician
communications even predates the U.S. Constitution.

James R. Merikangas, M.D., Woodbridge, CT


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