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Volume 65, No. 5 May 2009
With Constitutional checks and balances disconnected, the
nation is hurtling toward a centrally planned economy.
Soon the keystone is to be set in the arch: government
control of medicine, either through a public Medicaid-for-all
plan, or government approved and mandated "private" plans (a.k.a.
fascism). In the 1950s, the AMA also recognized the truth
in Lenin's insight about the importance of medicine (see AAPS News, April 2009). It is even more
true today.
Medicine is now a much larger sector in the economy:
approaching one-sixth. It affects almost everyone, and at a time
of greatest vulnerability. It engages the most highly educated
group of professionals the only one with the moral duty, and
potentially the financial ability, to protect patients. It
possesses a window into everyone's fears, desires, and
weaknesses.
Doctors dependent on government for their livelihood can
protect patients against a tyrannical government only at great
personal peril.
The Importance of the Oath
German-speaking seniors in Tucson, who lived through the war
in Europe, ponder the mystery of why German generals bowed to an
Austrian corporal who was clearly mad. It's because they changed
the oath, said a 90-year-old former Wehrmacht conscript.
Previously, the military swore fealty to the Vaterland. Hitler
got them to swear to obey the F�hrer.
Physicians no longer swear to prescribe for the good of
their patients, according to their knowledge and judgment, or to
do no harm. The new oaths say or imply that the greater duty is
to the collective (www.aapsonline.org/ethics/oaths.htm). Applicants for membership in the AMA
must pledge to uphold the AMA's Principles of Medical Ethics, and
to disclose violations. The AMA is required, it says, to report
denial of membership to the National Practitioner Data Bank.
AMA Principle #2 states that "a physician shall uphold the
standards of professionalism [undefined], and strive to report
physicians deficient in character or competence."
Principle #3: "A physician shall respect the law and also
recognize a responsibility to seek changes in those requirements
which are contrary to the best interest of the patient."
It might be interesting to ask an AMA official whether there
is any circumstance in which a physician has a duty to
disobey a law that requires him to harm a patient.
Professionalism
While "autonomy...is the cornerstone of physician
professionalism," autonomy must be surrendered to achieve a
"balance for patient safety and quality" and to control cost.
"Medical students...should be fully socialized in their role as
agent rather than autonomous decision maker." Physicians must
"trust that standards are wise" (JAMA 2008;300:2913-15).
"There can be no universal coverage without universal
submission," writes James Bovard (Am Conservative
3/9/09).
Autonomy, moreover, conflicts with the physician's ethical
obligation to work for "social justice." Each physician must ask,
write Darrell Kirch and David Vernon of the Association of
American Medical Colleges, whether the inefficiencies of old
delivery models and 1- or 2-physician practices are acceptable,
and whether behavior must shift from "autonomous, market-based
individualism" to "greater social accountability and team
behavior" (JAMA
2009;301:1482-1484).
Changing the Law
American colonists carried petitions to the Court of St.
James, bowed to the King, and walked backward in his presence.
Their petitions were unavailing.
Today, a scientist attempted to walk the halls of U.S.
Senate buildings, delivering to each office a copy of a book
containing the names of 32,000 signatories to a petition. He made
it through the first office building, but then Security blocked
him from entering the others. The books might be a vehicle for
delivering drugs, or anthrax powder, he was told.
When asked "What happened to our right to petition the
government for redress of grievances?", a staffer for Rep. Ron
Paul said, "It's in the same place as our other rights."
A citizen is not allowed to go door to door in the Arizona
legislature either; a staffer has to invite you to enter.
The DeMint Amendment, which passed the Senate on a voice
vote, requires a "point of order" calling for 60 votes on any
proposed legislation that would prevent Americans from keeping
their current health care plan. Anything else, apparently, can be
forced through as part of the filibuster-proof "budget
reconciliation" process. The Kyl Amendment, which would have
codified the promise that comparative effectiveness research
would not be used for rationing care, was defeated on party
lines. Changing a law may be virtually impossible.
The Ultimate Recourse
Physicians have long accommodated to increasingly onerous
government and other third-party demands, in order to serve their
patients. But is there a point at which they are morally
obligated to assert their professional independence, instead of
following orders? What is that point? Performing abortion?
Forcing psychiatric medication on a dissident? Withholding a
beneficial medical service? Entering confidential information
into a national database? Involuntary euthanasia?
American colonists signed a document that put them at high
risk of being hanged for treason, and took up arms.
Mahatma Gandhi urged noncompliance: "...Then they will have
my dead body, not my obedience."
Will American physicians draw a line or set the keystone?
Our last issue included a
copy of a document authored by one of our members, Richard
Amerling, M.D., of New York, an update of the version posted on our website since 2004.
Recall that at the Continental Congress in 1776, Thomas
Jefferson's draft was extensively marked up by the delegates.
Another copy is enclosed that you may mark up, and possibly sign
as revised. We received about twice as many anonymous cards
stating a doctor had signed than we received declarations; here's
another opportunity to return yours. Many members offered
interesting suggestions; for example, an internet petition to
become binding when a critical mass is reached. No one responded
that "physicians have a duty not to declare
independence, but to submit to the established authorities,
government and third parties, no matter what."
Please consider what actions you would take, and
under what circumstances, to preserve the integrity of our
profession. And send us your comments.
It appears that the "long march through the institutions"
counseled by Italian Marxist Antonio Gramsci is achieving the
desired effect of leading Americans to embrace socialism.
The leftist vision requires disposing of such documents as
the Declaration of Independence. Rather than being based on
"self-evident truths," George Soros concluded that it was merely
a statement of our "imperfect understanding of the world around
us" (AIM Report April A-2009).
Socialism is the mechanism that "transforms government from
its noble role as a protector into a predator," writes John
Loffler (NewsWithViews.com
7/23/08). The path that other countries have followed to chaos,
economic ruin, and ultimate self-destruction begins with the
promise of something for nothing. As dependence swells, so do the
bureaucracies to control the givers and the takers. In stage two,
people begin to see that their earnings are confiscated by
taxation or destroyed by inflation, and begin to take evasive
action. The dragon wants to monitor all that citizens do, in the
name of morality or security in order to be sure the plunder is
paid. Productive enterprise becomes increasingly dangerous. In
stage three, faith in government dissolves, along with faith in
the currency. Those who relied on promises that can't be kept are
outraged. So are citizens who were bled to feed the dragon. Brute
force may be required to restore order fertile ground for
dictators.
America is entering stage 2, Loffler thinks, and is at an
economic and moral crossroads.
More of the formerly uninsured have told Harvard School of
Public Health surveyors that they've been hurt by mandates and
expenses than say they've been helped by subsidies and coverage.
They are poorer thanks to mandatory premiums but do not
necessarily have better access to physicians. The safety-net
community clinics and public hospitals are being defunded
(Physicians Practice, April 2009). Between 2007 and
2008, medical spending in Massachusetts increased 23%. No other
state has seen such a steep increase (CPR 4/9/09).
Emerging as one of the fastest growing internet applications
is doctor bashing or, as it is euphemistically described,
physician ratings. The majority of sites allow anonymous
postings, with no verification that the poster is even a patient.
State and federal laws prohibit physicians from responding to
these statements. And most sites have only one or two anecdotal
postings for a specific physician; such a sample size lacks
statistical validity.
Medical Justice has developed the only remedy we know of to
prevent cyber-smearing internet posts. A free one-year trial is
available to AAPS members: see enclosed flyer.
If all medical insurance had the same purportedly low
administrative costs as Medicare, it is alleged, the savings
would be enough to cover all the uninsured. Not so, say Greg
Dattlio and Dave Racer, using Congressional Budget Office
figures.
About 12.7% of outlays by private insurers are for non-care
("administration"), compared with 26% by all internally
administered government programs (Medicaid, SCHIP, veterans,
military). Medicare, in contrast, is externally administered by
private companies, with 6% spent on non-care. If Medicare were
administered internally, it would add $1 trillion to costs over
the next 10 years. The reasons private companies pay more for
non-care with their own claims include: taxes and other govern-
ment assessments; smaller average claims; greater scrutiny of
claims (thus less fraud); and the costs of marketing and premium
collection. CMS costs for enrollment, outreach, and auditing do
not count as administration, and the IRS collects the premiums
and revenue. (For a 2-page summary, see www.freemarkethealthcare.com).
The tax system also imposes costs on the economy over and
above the revenues generated, notes Benjamin Zycher. The lowest
plausible estimate of that "excess burden" raises the true cost
of delivering Medicare benefits to 25% of outlays, or double the
net cost of private insurance. (Medical Progress Report No. 5,
October 2007, www.manhattan-institute.org/html/mpr_05.htm).
The deeper question, Zycher writes, is whether health
insurance is to be an efficient risk-pooling mechanism, or a
vehicle for redistributing wealth.
"Single-payer systems inexorably must ration care," he
writes, but a deregulated system not tied to employment could
provide, like life insurance, powerful incentives to purchase
actuarially fair coverage for chosen benefits when young. The
problem of the poor could be addressed in many ways.
Jun 5-6, 2009. Workshop on Building a Healthy
Independent Practice, briefing, and board meeting, Dallas, TX.
The Federal Trade Commission (FTC) has announced that
physicians who defer payments owed by their patients are likely
to fall within the definition of "creditor" and thus be subject
to the Red Flag Rules, which are part of the Fair and Accurate
Credit Transactions Act of 2003 (FACTA). Penalties are up to
$2,500 per violation. The FTC, unlike the Office of Civil Rights,
which administers HIPAA, has lots of money to go after violators
(MCA 3/23/09; www.ftc.gov).
The Rules are meant to protect against identity theft. "Red
flags" include identification documents that appear to have been
altered or forged; an address on an application that is
fictitious or a mail drop; a Social Security number that is not
appropriate for the date of birth.
If you are covered by the rule, you will need written
policies and procedures for implementation. If you are a HIPAA-
covered entity, your business associate agreements need to
include compliance with these rules (MCA 4/6/09). See:
www.worldprivacyforum.org/pdf/WPF_RedFlagReport_09242008fs.pdf
"The FTC rule provides another strong incentive for
physicians to become third party free and collect at the time of
service," writes Dr. Lawrence Huntoon.
In fact, the FTC noted the concern that physicians may begin
to demand payment for services up front.
The Provider Conscience Clause represents "conscientious
objection gone awry," writes Julie D. Cantor, M.D., J.D., who
represents Planned Parenthood in an unrelated legal matter. We
need to "restore selfless professionalism in medicine" (N
Engl J Med 2009;360:1484-1485).
"There comes a point at which toleration breaches the
standard of care." We allow current conscience-based exceptions
on sterilization and abortion only "because abortion remains
controversial in the United States." If we permitted a broad
range of beliefs to hinder patient care, surgeons might refuse to
order transfusions, and internists to treat overweight diabetics.
"Medicine needs to embrace a brand of professionalism that
demands less self-interest, not more.... Conscience is a burden
that belongs to the individual professional; patients should not
have to shoulder it."
Conscientious objection makes sense with military
conscription, Cantor acknowledges, but it is worrisome with
professionals who freely chose their field. Anybody with qualms
about abortion, sterilization, or contraception should not
practice women's health, she asserts.
"Health care providers...should cast off the cloak of
conscience when patients' needs demand it."
Most Americans do not share Cantor's views. A March Polling
Academy poll of 800 Americans found that 87% believe it is
important to "make sure that healthcare professionals in America
are not forced to participate in procedures and practices to
which they have objections." The percentage was 95% of those who
are pro-life, and 78% of those who back legal abortion. When the
question was framed specifically to refer to abortion, support
for the Conscience Clause outpaced opposition by a margin of more
than 2 to 1 (63% v. 28%), including 56% of those who voted for
Obama, and 60% of those calling themselves pro-choice (LifeNews.com 4/8/09).
For AAPS comments on the Obama Administration's proposed
rescission of the Clause, see www.aapsonline.org.
The Texas Medical Association opposes the strong reforms
proposed by AAPS in HB 3816 to limit the power of the Texas
Medical Board, and impose some oversight. In a letter to several
AAPS members, TMA president Josie Williams, M.D., said the
reforms would "reduce medicine's professional standing in Texas
and diminish the agency's ability to protect public safety." For
example:
"The bill sets higher standards for TMB to prove a violation
than for a personal injury trial lawyer to prove a medical
liability case. The plaintiffs' attorneys will use this as one
more argument in their campaign to reverse the 2003 liability
reforms."
"This objection is absurd," writes AAPS General Counsel
Andrew Schlafly. The tort reform is in the constitution, and is
not at risk. The standard for revoking a doctor's license should
be higher than for making him pay money.
Williams also asserts that the bill would weaken TMB's
authority to sanction physicians for "non-therapeutic
prescribing" not subjected to rigorous scientific investigation.
Schlafly responds that the bill still allows TMB to sanction
physicians for treatments likely to harm patients.
"The Board should not be quashing innovation in the absence
of potential harm," he said. Its job is to protect the public,
not to control the practice of medicine. [For letter and
response, see
www.aapsonline.org/tmaopposition.php.]
Also noteworthy is that incoming TMA president William
Fleming III, M.D., comes from the Federation of State Medical
Boards (FSMB), which opposes restricting the power of state
boards. In a 1996 presentation to FSMB, Fleming essentially
equated "unproven" medical treatment "that has not yet gained
general acceptance in the U.S." with fraud or quackery.
After 2 years, the Ninth Circuit finally handed down a
decision in Colwell v. HHS, a 2003 case that challenged
a Clinton Executive Order requiring translation services for
patients with limited English proficiency. While acknowledging
that plaintiffs had standing and that the case was ripe, the
Court nonetheless found that it lacked "prudential ripeness"
because plaintiffs had not been threatened with HHS actions
against them yet. The Court noted that HHS spends less than
$500,000 annually on enforcement and has not moved beyond the
voluntary compliance stage yet. No recipient has had HHS funding
terminated for noncompliance yet.
"The Court clearly manufactured an excuse not to resolve the
legal issues," writes Sharon Browne of Pacific Legal Foundation,
the principal attorney for plaintiffs.
After a month-long trial, a federal jury in Miami Beach
acquitted Dr. Ali Shaygan of 141 charges of illegally prescribing
painkillers to his patients, including a man who died of a drug
overdose. Then U.S. District Judge Alan S. Gold issued a
reprimand and ordered the U.S. government to pay the defendant
more than $600,000 partial payment of his legal fees. The
prosecutors had asked two witnesses to secretly tape record
conversations with defense attorney David Markus and his
investigator, without obtaining permission from supervisors or
informing the defense (Miami Herald 3/11,3/13,4/9/09).
The Waxman Plan. Forget about "comparative
effectiveness research. Rep. Waxman appears to be going for the
ultimate "cost savings" initiative. Nancy Nielsen wrote: "Waxman
talked about high costs of care at the end of life and wondered
if a reduced insurance premium might be available to patients who
have at least considered an advance directive" (AM News
3/30/09). This at a time when the MOLST (Medical Orders for Life
Sustaining Treatment) is looking to expand nationwide. If you
think we have problems with errors in electronic records now,
wait until we have a fully functional electronic MOLST system in
place. If the ambulance's database says you are a "discount"
patient, there will be no appeal.
The EHR Is About Control. The cause of the "perfect
storm" in medical records, the subject of an Apr 3 article in
Medical Economics, is plain to anyone except vendors,
politicians, and the "experts" who advise the politicians and
profit greatly from the relationship. How incredibly arrogant are
the know-nothings who barge in and presume to instruct us in how
to manage our practice and our record-keeping! The medical
record, refined over centuries, was developed by and for
physicians not attorneys, insurers, politicians, etc. It is
arranged to reflect the thought flow of the physician. The
interlopers find it unsuitable for their purpose which
is control. Some variant of the word "compliance" occurs 49 times
in the article. To control the population, it is necessary to
know what people are doing, and the results of one's efforts to
control them. The purpose of the electronic health record is to
make physicians accountable to the state, rather than to
patients, and to create a dossier on every citizen. The EHR is a
Trojan horse that will open the gates to an invading army of
bureaucrats and central planners. Dissidents will be identified
and punished. We must reject this poisonous gift, and resist
every effort to implement such a system, for our patients' sake.
EHR + CER. The combination of coerced national EHR and
"comparative effectiveness research" will be a nightmare. Much
can be done with terabytes of dirty data and a political agenda
to control costs (or simply to control). HHS nominee Sebelius
endorses using EHR to do CER on the "relative strengths and
weaknesses of alternative medical interventions." Good luck to
private physicians and medical innovators, to pharma, and to
patients. Slowing down EHR adoption is the key to slowing down
the potential for abuse.
Who Is Our Audience? I've spent some time with
government care devotees. They seem to have different
motivations. One group has deluded itself into thinking that what
is good for big business is good for America. They run a big
health plan; they want to expand their business; making people
buy their plan is good. The second group thinks that people make
wrong choices and need the firm hand of the people making the
rules to get them to shape up. The third type hates insurance
companies and is for anything that wipes them out. It is a subset
of people who intensely dislike private anything, and think
government is better at everything. This mindset is prevalent in
government and people who work for nonprofits, even if the latter
depend on private companies for their existence. To deny that
public service and nonprofits have a higher moral purpose would
shred their character.
Those who deny plain evidence to save their thought utopia
fall somewhere between Mussolini and Lenin (types 2 and 3).
Forget about changing their minds, even if they put on a show of
reasonableness. It is more productive to work on people who
haven't made up their minds, or who have been lied to. With
enough opposition, the Krupp types may fall into line as they
just want to be on the winning side. Mussolini types may tack
differently. Lenin types will just soldier on.
What, and When? It was not enough to have crypto-
socialism. We will now move toward openly socialist philosophy.
Society behaves like an alcoholic who would rather drink himself
to death than give up his addiction. My question is: What should
be done when dignified and chivalrous methods of fighting do not
work? When one has to stop fighting within the system, and to
start fighting the system? Our Founding Fathers did just that. It
is sad that after 200 years, we have to start over.
When Will They Quit? If you had a business, and people
kept paying you less and less as your costs went up, would you
keep doing business with them? How low do reimbursements have to
go before doctors will consider splitting from third parties?
The Pool. Today people commonly think of insurance as a
big pool of money that everybody contributes to and takes from as
needed: a "socialistic" idea that leads to the Tragedy of the
Commons. Once you pay your fee, you want to get as much as you
can before others grab it all. The emphasis in "risk pool" should
be on "risk," not "pool." Real insurance is a contract; there is
no unallocated pool of money.
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