Volume 62, No. 11 November 2006
QUALITY OR DEATH
It is hard to be opposed to “quality” in housing, in
physicians, in medical care, or in life.
When people demand “universal access” to care, it is
understood and usually specified that it must be “quality” care.
And numerous agencies of government assure that substandard
quality will not be permitted. But what does this really mean?
An Economic Perspective
In a 1924 treatise entitled Economics for Helen: a Brief
Outline of Real Economy, Hilaire Belloc writes:
In any civilisation it is thought that human
beings must not be allowed to sink below a certain
level…. This does not mean that no one is allowed to
starve or die of insufficient warmth. It means that any
particular civilisation…has its regulation minimum
and lets men die rather than fall below it.
In the England of his time, Belloc estimated that the
average laborer had to produce at least �2 of economic value per
week, or life would not be worthwhile. Labor would cease, and the
civilisation would “run to famine and plague.”
In 1928, George Bernard Shaw advocated radical equality,
including equal pay for all. In The Intelligent Woman’s Guide
to Socialism, Capitalism, Sovietism, & Fascism, he writes:
Under Socialism you would not be allowed to be
poor…. If it were discovered that you had not
character and industry to be worth all this trouble,
you might possibly be executed in a kindly manner; but
whilst you were permitted to live you would have to
live well.
It is thus a matter of quality or equality or death.
In America today, those whose labor is not worth the minimum
wage are not allowed to work, substandard housing is condemned
and torn down, and physicians who “fall below the standard of
care” are delicensed, or even imprisoned.
Defining the Quality of Medical Care
Inevitably, the bureaucratic definition of quality will
involve a statistical metric. Problems include confounding
variables, the lack of power with small samples, and the ability
to falsify paper audits. Those who insist on “objective” measures
end up measuring what they can, given the available data, and
then often confuse these proxy measures with real endpoints,
notes Linda Gorman. Persons who focus on long checklists can miss
huge problems because they’re just one item on the list; or they
miss problems that are slowly getting worse because they focus on
the list rather than the patients.
At an Oct 5 Heartland Institute Emerging Issues Forum,
Richard Dolinar, M.D., queried whether outcomes data measured the
doctors or the patients. Under “pay for performance,” weather
forecasters in Chicago would get nothing, and those in Phoenix
would get all the bonuses.
Worse quality of care can lead to better apparent health
outcomes. Gorman points out that the UK systematically
discriminates against older patients. If British diabetics die
younger of kidney failure, there will be fewer (and healthier)
older diabetics in the UK than in the U.S.
Flawed Process, Perverse Outcome
The process of measuring, whether it presumes to judge
either the process or outcome of medical care, has not itself
been validated. Moreover, it influences medical practice, and its
own outcome is likely to be the achievement of its real purpose:
rationing care. Trumped-up statistical measures, writes Gorman,
take the place of the all-powerful Oz on the throne, and hide the
little man behind the curtain. Slash-and-burn cost-control
policies change the “standard of care” for the worse.
The Right to Access “Poor Quality”
At his father’s memorial service, Terry Bennett, M.D., was
approached by a man bearing all the stigmata of alcoholism. He
pulled up his sleeve to show an arm with a crazy quilt of an old
injury. When drunk, he had punched his fist through a window,
then pulled it back. He couldn’t move his fingers and was
bleeding to death. But he knew what to do.
“I went to the Bar and fished your dad out.”
In his office, the elder Dr. Bennett “reached in there, into
what was left, and he fished out those little spaghettis, and he
tied them back together, in knots, it took him a long time, and
then he sewed it all back together and bandaged it up.”
“Doc, take a look at it, it ain’t pretty, but it works
perfect…. And,… he wouldn’t let me pay him.”
This virtuoso had done, while intoxicated, alone in his
office, multiple tendon repairs that ordinarily take a team of
surgeons and technicians in an operating room, with no guarantee
that the patient’s hand would ever work again.
Today, Doc would probably be delicensed to “protect”
patients, while many hospitals have no hand surgeons available to
operate on penniless drunks at any hour.
Insistence on “quality” can be dangerous because the
alternative to poor care is all too often no care.
Additionally, the self-appointed guardians are themselves subject
to corruption, incompetence, or short-sightedness. Innovative
care by definition deviates from the standard.
Malpractice lawyers, regulators, prosecutors, and “experts”
cannot guarantee quality or safety. They can and do block access
to the best available care by outlawing it, by driving
costs out of reach, or forcing prices so low that no one offers
the service. The real-world alternatives are free competition on
the basis of quality and price or a drive to Utopia that ends
with mediocrity for all, and death to the hindmost.
Quality of Life, and Oxygen
Bioethicists have now determined that “supplemental oxygen
is a form of life-sustaining medical treatment.” Thus, “requests
to discontinue oxygen should be honored with the same
judiciousness as requests to withdraw other forms of life
support,” if the quality of life is “unacceptable.” This to be
distinguished from physician-assisted suicide, they say, and “the
fact that the primary purpose of [requests to remove treatment]
is to escape the burden of life itself, rather than the burden of
therapy, does not absolve physicians of their duty to
heed patients’ request for therapy withdrawal [emphasis added].”
Benzodiazepines and opioids may be administered to relieve
dyspnea or anxiety (JAMA 2006;296:1397-1400).
Reelection Year
Joseph Sobran proposes a cure for the status quo in
Washington. “When the voters have made such a hash of democracy,
the only hope lies with the nonvoters.” He argues that if 10% of
the electorate always voted against the incumbent, it would put
an end to the career politician and reduce the accumulation of
power. Few politicians would be worth bribing. “American politics
could be peacefully revolutionized” (The Reactionary
Utopian 9/26/06, www.griffnews.com).
AAPS 63rd Annual Meeting
Resolutions
The following Resolutions were passed by the Assembly and
are posted at
www.aapsonline.org/resolutions.htm:
Voluntary Health Insurance
The purchase of health or medical insurance should be
voluntary, and no individual should be forced to purchase
insurance, nor should any business be forced to provide insurance
for its employees.
Health Information Technology
AAPS opposes any health information technology system that
is not voluntary; any health information system must be patient-
centered, market-driven, and have no embedded, direct link to
pay-for-performance; and participation in a government program
should not be contingent upon the use of electronic health
information technology.
Narcotic Drug Recycling
AAPS supports revision of federal rules to allow for the
prudent recycling of all viable medications including narcotics,
and urges Congress to take action to implement those changes.
Direct Insurance Payment to Policyholder
AAPS urges insurance companies to facilitate the direct
submission of medical claims by the policyholder; and AAPS
encourages insured patients to file insurance claims directly
with their insurance company, and to negotiate terms of payment
with their physician(s) at time of service.
Physician Pricing Transparency
AAPS encourages physicians to voluntarily make public their
prices for medical services, particularly for direct payment by
patients.
State Pricing Transparency
AAPS urges all state governments and agencies to make public
the premiums paid for state employees and state-sponsored health
plans, including Medicaid and S-CHIP, and to publicly post the
reimbursement rates paid to hospitals and individual providers
under those plans for specific medical services and procedures.
Federal Pricing Transparency
The federal government should make public the terms of the
contracts, and premiums paid, for federal employees and any other
federally-sponsored health plans, including Medicare, the Federal
Employee Health Benefit Program (FEHBP), and Congressional health
plans, and to publicly post the reimbursement rates paid to
hospitals and individual providers under those plans for specific
medical services and procedures.
Abstinence Education
AAPS endorses educational programs that emphasize the
benefits of premarital abstinence and marital fidelity; endorses
educational programs that teach ways to reject sexual advances
and the harmful effects of bearing children out of wedlock on
children, parents, and society; and encourages parents to examine
school curricula and resources pertaining to sexual activity for
age appropriateness, accuracy, and acceptability.
Patients’ Safety
AAPS supports that the Federal Health Care and Safety
Code require that all healthcare facilities, private or public,
receiving Federal funds, including but not limited to Medicare
and Medicaid, must comply with the Federal Constitution.
AAPS urges Congress, all state legislatures, and all state
medical boards to extend existing physicians “Whistleblower” and
“Patient Advocate” protections to all physicians in the country,
not just to those who are employees of hospitals, managed care
organizations, States, and federal institutions.
AAPS urges Congress to rescind the following paragraph in
the Health Care Quality Improvement Act of 1986:
A professional review body s failure to meet the
conditions described in this subsection shall not, in
itself, constitute failure to meet the standards of
subsection (a)(3) of this section.
Officers Elected
Robert P. Gervais, M.D., an ophthalmologist from Mesa, AZ,
assumed the presidency, and the following officers and directors
were elected:
President-Elect: Tamzin Rosenwasser, MD, Lafayette, IN
Secretary: Charles McDowell, Jr., M.D., Alpharetta, GA
Treasurer: R. Lowell Campbell, M.D., Corsicana, TX
Directors: Lawrence R. Huntoon, M.D., Ph.D., a neurologist
from Lake View, NY; James L. Pendleton, M.D., a psychiatrist from
Bryn Athyn, PA; Mark Schiller, M.D., a psychiatrist from San
Francisco, CA; George R. Watson, D.O., Park City, KS; and Todd B.
West, M.D., a family physician from Tallahassee, FL.
AAPS Calendar
Oct 10-13, 2007. 64th annual meeting, Cherry Hill,
NJ.
“No man who has the truth to tell and the power to
tell it can long remain hiding it…without ignominy”
(Hilaire Belloc).
Dr. Bennett’s Freedom of Speech Upheld
In a very unusual action, Judge Edward J. Fitzgerald,
III, of the Merrimack County (NH) Superior Court has enjoined
the medical licensure board from prosecuting a physician as a
result of three complaints based on his communications with
patients (Terry M. Bennett, M.D. v. New Hampshire Board of
Medicine, No. 05-E-478).
Patient A complained that Dr. Bennett had made
offensive remarks to her concerning her obesity. The Board
also resurrected an allegation made 4 years earlier that Dr.
Bennett had advised Patient S, who had an inoperable brain
tumor, to buy a pistol and shoot herself. Dr. Bennett denied
ever having made such a remark and noted that the patient
apparently “becomes confused” and is not “clear about what was
real.” The complaint had been dismissed as unfounded. Later,
Patient D complained of Dr. Bennett’s answer to a question
about whether she could contract hepatitis B from her son:
“Not unless you’re having sex with him.”
The Board refused to allow Dr. Bennett to depose his
accusers and was planning to allow them to testify
anonymously, thus denying the doctor the right to cross-
examination.
The Court held that postponing review until after entry
of final judgment by the Board “might result in immediate and
irreparable harm to the petitioner in that he could lose his
license to practice medicine as a result of an unfair
abridgment of his rights.” As the doctor is 67 years old, he
could lose his ability to practice for the rest of his
professional life, as appeals wended their way through the
system.
The Court noted that there were no allegations of
inappropriate or inadequate care, or evidence of adverse
health impacts from the doctor’s statements. And “to the
degree that the Board has defined unprofessional conduct, it
has specifically stated that rude behavior is not generally
actionable unless accompanied by other acts….” A “remarkably
subjective standard,” which leaves determinations about
treating a person with “dignity and respect” to the
“sensitivities of the listener,” is not the “narrow type of
regulation that could comply with constitutional
requirements.”
Physicians do not forfeit their freedom of speech by
obtaining a professional license. Indeed, it is “within the
public interest to foster open and frank discussions between
physicians and patients,” even though “the Court does not
condone in any way the type of comments made by the
petitioner.”
The Motion for Injunctive Relief and the Court’s Order
are posted at www.aapsonline.org under “Licensure.”
Tip of the Month: Few realize that the IRS has
strict internal procedures preventing the disclosure of tax
returns to others in government. Many jurors, for example,
falsely fear access by the prosecutor to their tax returns.
Such access would not be allowed. Just as phone wiretaps are
very rare, disclosure of tax returns by the IRS is very rare.
But prosecutors can seize tax returns found during a search of
an office or home, even though not listed on a search warrant.
The first question by a prosecutor after a search can be: “Did
you get his tax returns?”
HIPAA Status and Electronic Information
An entity that only receives, but does not
transmit electronic health information, such as
remittance advice, is not a HIPAA-covered entity (see
http://questions.cms.hhs.gov; search on “receive health
information electronically”).
Court Rejects Absolute Immunity
Bruce Feyz, M.D., was referred by his hospital for
psychiatric examination and placed on indefinite probation
when he persistently defied standing orders and wrote
individualized orders. He requested that nurses obtain the
medication history by asking patients what pills they take,
instead of copying directions from prescription bottles.
Dr. Feyz subsequently brought suit against this private
hospital, “alleging civil rights violations, invasion of
privacy, breach of fiduciary duty and public duties, and
breach of contract….” [Bruce B. Feyz, M.D. v. Mercy
Memorial Hospital et al., Supreme Court of Michigan No.
128059 (June 24, 2006)].
The Court rejected the proposition that judges are not
competent to intervene in peer review matters, which
effectively turns qualified into absolute immunity for
hospitals:
argument that courts are incompetent
to review hospital staffing decisions
as a basis for adopting the judicial
nonintervention doctrine. This claim
overlooks the reality that courts
routinely review complex claims of
all kinds. Forgoing review of valid
legal claims, simply because those
claims arise from hospital staffing
decisions, amounts to a grant of
unfettered discretion to private
hospitals to disregard the legal
rights of those who are the subject
of a staffing decision, even when
such decisions are precluded by
statute.
The Court also adopted the “actual malice” standard,
holding that a review entity is “not immune from liability if
it acts with knowledge of the falsity, or with reckless
disregard of the truth or falsity, of information or data
which it communicates or upon which it acts.”
Patients Beware: Filling Prescriptions a Crime?
Richard Paey, a wheelchair-bound chronic pain patient
now serving 25 years in a Florida prison, sent AAPS a
handwritten letter and a news clipping (John Tierney, “Just
Doing His Job,” New York Times 1/31/06). Paey filled
prescriptions from an out-of-state doctor for 25 pills/day,
containing less total oxycodone than a single high-strength
OxyContin pill. Prosecutor Scott Andringa told the jury that
the doctor wasn’t practicing proper medicine; therefore, the
prescriptions were illegal and Paey shouldn’t have filled
them.
If his appeal fails, Paey suggests that AAPS advise
patients not to have out-of-state prescriptions filled in
Florida.
Paey refused to take a deal requiring him to testify
against his doctor. But then the doctor gave hostile
testimony, claiming not to have authorized the contested
prescriptions.
Andringa told 60 Minutes that it was
“reasonable” to infer that Paey was a drug dealer, although
two months of surveillance yielded no evidence. He told
Tierney that while he was not “thrilled” about the case, “I’m
only proud that I did my job as a prosecutor.” Paey is likely
to die in prison.
Dr. Rottschaefer Moves for New Trial
The U.S. Supreme Court denied Dr. Bernard
Rottschaefer’s petition for writ of certiorari (AAPS
News, October 2006), but he has
again filed a motion for a new trial on the basis of
depositions in malpractice suits. This sworn civil testimony
reveals that every single witness against him lied in the
criminal case, falsely claiming not to have had a medical
complaint.
Correspondence
A Seat at the Table. The AMA has a long history of
compromise and “go along to get along” on government-run
medicine. Doctors fear that if they appear “confrontational,”
the public will think they are not “compassionate” and that
they oppose “medical care for all.” Meanwhile, the AMA tells
its membership that it can’t risk its ability to have a say in
what is going on. Curiously, the AMA always seems to come away
from the table with some sort of deal that serves as a revenue
source for the AMA. CPT codes are one example. I believe that
P4P guidelines will be another. This is a well choreographed
dance that we have seen before. Physicians need to learn to
recognize it.
Lawrence R. Huntoon, M.D., Ph.D., Lake View, NY
Legislative Remedies. We lose every time we ask
legislators to do us a favor. Remember that Mark Twain called
them the only distinctly native American criminal class.
Del Meyer, M.D., www.medicaltuesday.net
Non-Insurance. We enrolled in one of the faith-based
medical cost-sharing programs in 1997 and began talking about
it in our office. We received a “cease and desist” order from
the state of New Jersey, though we weren’t selling anything
and received no commission. We were hauled before the
Department of Banking and Insurance, and after a two-hour
inquisition were able to persuade them that this was not
insurance but people voluntarily banding together to help each
other out. We must avoid confusing words like “deductible,”
“premium,” and “co-pays.” About 10 years later, we have saved
nearly $100,000, while remaining “covered” for big bad
unforeseen medical events that thankfully did not occur.
Alieta Eck, M.D., Somerset, NJ
The Free Market Is Out There. I am telling my
uninsured patients to travel. I have sent blood specimens to a
suburb of Chicago since finding out how expensive local labs
are. I told an uninsured man with worsening saddle anesthesia
to drive to Boston for an MRI; he saved $400. The oligopoly of
hospitals will be worthless if people refuse to patronize
them, just as Martin Luther King showed that a racist bus
company could be attacked fiscally with a boycott. He who
feeds the mouth that bites him must soon wear a prosthetic
hand.
Edward J. Harshman, M.D., Thomaston, ME
Safety Valve. More Medicare beneficiaries are
showing up at my clinic, telling me they can’t get into a
doctor who accepts Medicare for 2 to 3 months. I am seeing
only those who have Medicare Part A, but not Part B, on their
cards. The waits to see a doctor are getting longer, so that
some are resorting to my clinic even though (as they tell me)
I am not a “real doctor” because I don’t accept third-party
payment even though I am boarded in both internal and
emergency medicine.
It’s simple economics: if you don’t pay doctors to
provide medical care, they won’t provide it, regardless of
demand.
I might now be called the “overflow doctor” or the
“doctor to the uninsured.” I refuse to participate in an
irrational, wasteful, impersonal system. If the government
does not reach the ultimate coercion level, requiring doctors
to accept public insurance as a condition of licensure, I will
always have work to do. Eventually, I will probably be able to
charge whatever I want for my time and skills, as retiring
baby boomers choose to transfer their wealth to good doctors,
rather than allowing it to be confiscated by government after
they die.
Robert S. Berry, M.D., Greeneville, TN
Prices. Where else besides in “sliding scale”
clinics and socialized health “insurance” is price based on
the income of the buyer? This destroys the informational
content of the price, which is not supposed to be a punishment
for consumption but rather a measure of the values of buyers
and sellers.
Greg Scandlen, Consumers for Health Care Choices
Agreement Irrelevant. It doesn’t really matter
whether one agrees with market theory, any more than it
matters whether one agrees with gravity or the first law of
thermodynamics. Gravity is “unfair” to elderly people who fall
and suffer injuries. The first law is unfair to those damaged
by wind. And market theory is unfair to those who aren’t
interested in providing value to receive value. Tough. Reality
exists.
Sean Parnell, Heartland Institute, Chicago, IL
The Value of Medical Care. Medical services are
worth what consumers are willing to pay in a free market; not
a penny more. Physicians must either accept that fact or give
up on the idea of consumer-directed medical care.
Thomas W. LaGrelius, M.D., Torrance, CA
Judging Doctors. I’ve had my best referral
experiences operating on the theory that left to themselves,
competent people usually prefer to associate with other
competent people. It follows that if you find one competent
person, he will refer you to others. This is all you really
have to go on when information asymmetry is permanent and not
in your favor.
In medicine, government is doing its best to see that
competent people don’t clump. Physician referrals are viewed
with suspicion. And specialty hospitals, oh the horror!
Instead, we get systems of ratings by the substantively
uninformed.
Linda Gorman, Independence Institute, Golden, CO
