Is Medical Care a Right?

The Annual meeting of the Association of American Physicians and Surgeons (AAPS) met recently in Cincinnati, across the Ohio River from the Blue Grass country, to discuss whether Medical Care is a Right. Robert Cihak, MD, radiologist, author and columnist of an e-journal, was presiding. Jane Orient, MD, internist, author and Executive Director of the AAPS, opened the conference with a presentation of the basic constitutional issues of rights andprivilege. The Constitution of the United States protects natural and unalienable rights to life, liberty and property. Aright is something one possesses free and clear that can neither be created nor revoked by government. In contrast, aprivilege is an entitlement granted by government that has the power to limit, restrict or revoke that privilege at its own discretion or whim. The government may not rightfully deprive some people of rights in order to bestow privileges on others.

If government grants a “right” – which is actually a privilege – to medical care, then the government has the power to ration and regulate medical care, force patients to pay for others’ car, and to abrogate patients’ protected rights to choose their physicians and contract for care they deem necessary in accordance with the highest standard of medical practice.

If medical care is a right, then there is no right to buy your own care or your own health insurance, provide or receive truly personal or confidential care, set your own fees based on value provided, practice according to your own best judgment, profit from prudent use of resources or profit from investment in drug research.

In other countries that have various forms of socialized medicine, there have never been enough financial resources to pay for optimum care. Governments in Europe and elsewhere seemingly have an unlimited ability to tax, with rates of 40 to 80 percent on income as it is earned, and 15 to 20 percent of income as it is spent (sales or value-added taxes). If healthcare costs were allowed to float to patient demands or 15 to 25 percent of GDP, there would be no funds left for food and shelter, much less for the ingenuity of humankind to improve the plight of mankind. Hence, a large share of the money has to come from physicians and other providers who are required to give their services at a reduction of income. This has been likened to indentured servant-hood.

The Social Security Act of 1965 (PL89-97) Section 1801 reads “Nothing in this title shall be construed to authorize any federal officer or employee to exercise any supervision or control over the practice of medicine.” Today there are thousands of laws, 132,000 pages of federal regulations and many written and unwritten policies that do just that. There are medical organizations that are proposing a single payer – ultimately the government that utilizes absolute control since private monopolies are not allowed. The UK proposed to limit doctor visits to five per year and antibiotic prescriptions to three per year. The proposal failed but did point out the power bureaucrats would like to impose over our profession, forgetting that the patients ultimately suffer. Can single payer please everyone? It will please fewer patients over time. It may please the passengers of Southwest Airlines whose motto tells it all: All of our passengers fly First Class.

Physicians for a National Health Plan were invited to present their point of view at the AAPS forum. They did not respond to the invitation. Dean Clancy, a full time staffer to the House Majority Leader, addressed the group and responded to questions by video from Washington, D.C. He outlined proposals that congress is considering, including enrolling every child in Medicare up to age 18, then again at age 65. Mr. Clancy also pointed out that the Robert Wood Foundation keeps increasing the number of uninsured in this country from 30 to 37 million, to 40+ million, with one estimate as high as 60 million. The Cato Institute suggests the number is closer to 15 million.

Kathryn A Serkes, Square One Media Network President and AAPS Public Relations Counsel, stated that Capitol Hill sees doctors and hospitals as villains and most doctors as crooks. Who do people blame for cost increases in healthcare? A recent public poll indicates that 33 percent feel they are doctor and hospital related, 32 percent maintain they are caused by insurance companies, 16 percent blame government rules and regulations and 14 percent feel they are due to medication costs.

Support for Universal Access to Health Care comes from 57 percent of academia and 87 percent of the public. A Strategic Health Source poll found that Americans want it all. They want more and better care at less cost, 86 percent want more choice, 79 percent want tax credits, 50 percent support a government-run system.

Serkes calls this a political war based on distortion of facts. Single Payer Mythology includes: Better Health; Emphasis on Prevention; Physician Autonomy; Saving Money; Equitable Access; and Universal Coverage.

She cautioned us to be aware of these “Socialized Medicine” talking points used by proponents of “Single Payer:” The market has failed; Payments will change but care will not; It’s our money – we should control it; US health care system is NOT the best; There should be public stewardship of payment; We must have cost controls; Limit specialists who eat up the dollars; Opponents (such as doctors) will lie to prevent socialized medicine from happening.

Serkes concluded that proponents of socialized medicine will use any tactic to achieve their goals. They are forming a number of alliances, organizing grass roots groups, piggybacking with various groups (e.g., disability groups, American Public Health Assn, ANA), using spokesmen from academia and other professions and supporting students in public debate – all to influence law makers.

Robert Oldham, MS II, Former Congressional Intern in Tom Delay’s office stated that he was more conservative than other interns curious of his point of view. He felt the perception on Capitol Hill is that the AMA is a conservative group. Mr Oldham stated that about 70 to 80 percent of entering medical students are pro-government. A physician from the audience stated that the public wants the government out of healthcare and that medical students need to be informed of this.

Healthcare in Socialized Systems

Louis Omdahl, RN, a nurse manager, described her observations of Government Medicine practiced in Russia. Since1983, medicine has been organized regionally. In 1991 they tried health insurance, believing there must be a better way than government payment. Russia is behind not only in general healthcare, but in preventive care as well. Care for the elderly is almost nonexistent. The average woman has seven abortions because she cannot afford birth control. Russians view American programs that depict 911 as fantasy or propaganda. Evidently, this is viewed as being too far fetched when you cannot get any care at all. A Russian emigrant called 911 and was surprised when he was taken to the hospital. He only wanted a shot of morphine for his chest pain. They see the TV program ER as a spoof. In Russia, 60 percent of rural areas still do not have water or sewers. The average physician makes about $100 per month.

Robert Gervais, MD, a Board Certified Ophthalmologist practicing in Phoenix, told of how Medicare (HCFA) closed his surgical center. Although he had met all licensing criteria during his many years of operating, he was reviewed in1999. A month later, he received a report advising him that certain deficiencies needed to be corrected within six working days. Although he attempted to accomplish six months of work in six days, his center was closed on December 26, 1999. He was without income until May 24, 2001, when his center was reopened. He thinks his comments on the morality of government medicine may have angered the reviewer.

He also reported on healthcare in Canada, where he was schooled and trained. He sees welfare medicine as the complicated system where everyone is forced to buy everyone’s healthcare but his own. The question should be, “Why must the government be in our examining room?” The Canadian government has maintained that there is unlimited healthcare available. However, to prevent cost escalation, the government must control the cost of the examination. All provinces with socialized systems have local budgets. Rationing occurs to meet this budget. A patient Dr Gervais knew had an abnormal chest x-ray, showing a possible carcinoma, and was given an appointment to obtained a CT scan several months later. However, since the patient knew the radiologist, the scan was done the next day. Gervais also noted that 50 percent of Canadians live within 50 miles of the US border, which gives them one non-governmental option. 480-981-1345 Email: rpgervais@earthlink.net

Restoring Private Insurance. Why Employer-Based Insurance Failed

Gerry Smedinghoff, Director of Actuarial Services for TriWest Healthcare Alliance in Phoenix, spoke concerning Public vs Private Healthcare. The Healthcare Industry is the only sector of the economy that is failing, and there is nothing employers can do about it. The categories of healthcare that have decreased in cost over the past 10 years include liposuction, breast implants and laser eye surgery. None are covered by employer-sponsored health plans; patients have complete control and responsibility for their use. There are no categories of employer-sponsored healthcare that have decreased in cost in the last ten years because doctors and patients have ignored the laws of economics in making healthcare decisions for more than 50 years. Doctors and patients are no more above the laws of economics than pilots and skydivers are above the laws of gravity. By defying the laws of economics, costs have increased 124 percent above CPI since 1957; technology is assumed to increase cost; quantity or LOS is decreasing; time spent increases with waits for patients, physician and payment; choices are decreasing for patients and physicians; and trust is virtually nil from a patient, physician or HMO viewpoint. If laws of economics had been followed, these all would have been reversed.

We have a Jim Crow Health Care System with a privileged class and a disenfranchised class. With private goods (food, clothing, car, house, etc.), everyone chooses what they want, when they want it. No one suffers from another’s choice. With public goods (roads, laws, healthcare), no one chooses; everyone gets the same thing in the same way. This could be called Rational Ignorance: “I don’t know; and I don’t care.” This has minimal consequences if we’re talking about motor oil or soft drinks, but has huge consequences when we progress to education, retirement, and healthcare.

Responsibility for healthcare gradually shifted from the employer in the 1950s to the federal government in the 1960s, with Medicare and Medicaid and a Marxist labor theory of value. Responsibility shifted to managed care in the 1970s because of the perception that physicians were irresponsible, getting rich by keeping patients sick. People actually believed in one-stop shopping that would provide all services to all people in all places at all times at the highest quality at the best price. Smedinghoff then cited a number of historical HMO model disasters that were responsible for healthcare’s shift to PPOs in the 1980s. Healthcare was thought to be suffering high costs because of the lack of economies of scale. However, economies of scale do not work when there is no market choice by patients, no synergy (illegal in healthcare) and no savings accrued from the large healthcare mergers we have witnessed. If economies of scale would work, then General Motors should have the cheapest healthcare costs, which it doesn’t.

In the 1990s, the era when Managed Care flourished, physicians were not only considered incompetent, but even dangerous. Physicians were profiled by actuaries, accountants and utilization reviewers. However, managed care is more accurately defined as medical care managed by people who have no knowledge of medicine or contact with the patient. This has progressed to Capitation, a complete reversal in roles. Actuaries, trained in risk management, tell doctors how to practice medicine, while doctors, trained in medicine, are forced to manage risk. Managed care causes huge inefficiencies with pre-certification delays, oversight with utilization review, inspection with retrospective case reviews and reworks with second opinions and claims. Overproduction causes government interference with HIPAA, forcing defensive medicine and the poor design of RBRVS, CPT, and DRGs.

Smedinghoff states we need simple solutions for a complex world. He suggests we tear down the wall of segregation – assign the IRC and ERISA to the dustbin of history. Transform healthcare from a public choice to a personal and private choice, and return responsibility to the patient. “Just as war is too important to be left to the generals, and just as the education of your children is too important to be left to the government, your health is way too important to be left to your employer.”

Greg Scandlen, A Senior Fellow at the National Center for Policy Analysis, who publishes a weekly newsletter,Health Policy Week, feels that health benefits in the 21^st Century are moving to Defined Contribution Plans. He believes that Managed Care was based on the false premise that fee-for-service medicine was inflationary. Many factors are now forcing the change. The 25-years cost-containment effort is no longer effective due to the diversity and mobility of the changing workforce with its growing regulations such as COBRA, HIPAA, PBOR, et al. There is increasing patient dissatisfaction, not just in the US but throughout the world. The safety net is frayed with the uninsured and increasing Medicare fiscal problems. Patients are educating themselves and managing their medical information through the internet. Medical Services cannot be managed through a single payer in the era of Genome nano-technology.

As the annual rate of growth continues to increase, one must wonder if the US spends too much or too little on healthcare. Although the government and others think we spend too much, the public still feels we spend far too little. How much change is needed? Eighty percent of most countries feel we need fundamental changes in the healthcare system. The UK, Australia, Canada, and the US are similar in this regard. In Canada, the 80 percent happiness at the inception of government medicine has since decreased to 20 percent. The core problem is that these systems rely on third-party payment and will ration care to keep patients from getting the care they desire.

Scandlen feels we must unify the consumer and the payer. We must know the costs of coverage. We need more direct pay with pay stubs. We need more choice of plans, providers and benefits. There must be equal tax treatment for non-employed insured. There must be better information, now feasible through the internet, that should also integrate resources, as well as allocate spousal benefits and tax credits with more accountability to both plans and providers. We must move to individual ownership, allowing employers to contribute to individual premiums with portability and continuity of care. There is less need for regulation. We must reform insurance market regulations, roll back state mandated benefits, rate restrictions and repeal the premium tax.

There has to be public policy change, including an expansion of MSAs. The worst conservatives are those on Capitol Hill who only think of modifying the liberal agenda. They have nothing unique or original. In short, we must develop a new way of thinking about financing healthcare.

The Rest Of The Story

That was just the first half day of a three-day meeting. Other presentations were equally informative. One was by Jim Redden, an investigative reporter for the Portland Tribune and author of the chilling book, SNITCH CULTURE — How Citizens are Turned into the Eyes and Ears of the State. A review of this book will appear in an upcoming issue. Sally Satel, MD, a psychiatrist and author of the PC, MD – How Political Correctness is Corrupting Medicine, also gave a presentation. Her book was reviewed in the September/October 2001 issue of this journal.

The Knock on the Door: Fraud & Abuse; Audits & Prosecutions

One of the more important presentations each year is from Andrew Schlafly, Esq, legal counsel for the AAPS. He presented one horror story after another of the governmental prosecution of physicians. Although most of these prosecutions are without substance, each one does destroy a colleague’s professional life, practice, license, and sometimes costs him his family. Unfortunately, our professional organizations are frequently with the prosecutor, on the government’s side.

We had a follow-up report from Jeff Rutgard, MD, who presented his case last year after spending five years in prison for alleged billing errors – not following the AMA-HCFA codes. He now has obtained faculty and other evaluations of all his charts. All supported his operations as well as the charges. Through the Freedom of Information Act, he was able to obtain the billings of the other ophthalmologists in his area, who all used the same codes for which he was prosecuted. As you may recall, he and his associate’s 22,000-patient practice was eliminated, and he was fined the entire lifetime medical earnings of his surgicenter, or $16 million. After the appellate judge stated there were no significant errors in his practice and no complaints from his patients, the case was returned to the trial judge. However, Dr Rutgard was unable to find an attorney that would go up against the judge that handed down the first ruling against him. He wanted another hearing to clear his name so he could get his medical license back. The attorneys, however, alleged that if they went up against the ruling of the trial judge, that was essentially thrown out by the appellate judge, they would lose future cases with this judge. As you may recall, the billing clerk that reported Dr Rutgard, subsequently told a different story in another trial. Tom Dawson, the next speaker, stated that the government knew what they wanted in using a soft approach to Rutgard’s employees who changed their story when confronted with a conspiracy action from Rutgard.

Two years ago we heard about the Doctor Vargo case. The authorities followed her in a plane and indicted her for having large billings in her military clinic. The government was compelled to withdraw its criminal case against her. She was then sued in civil action. The AMA News reported that the case was now settled, without explanation from the state, and she did not have to pay any fines, only six years of attorney fees. No professional reasons were given. She is prevented from commenting on her case. Every year we hear of several cases of medical fraud or false claims which are, in fact, nothing more than government harassment in an otherwise civil society.

The Administrativectomy

The final session on Saturday was the Administrativectomy: The High-Tech, Patient-Friendly, Third-Party Free Practice. David MacDonald, DO, presented Healthcare, A New Perspective. His organization, the American Association of Patients/Providers (Medical Care Giver) has reached the DECISION POINT: They are out of all contracts with all HMOs and insurance carriers. No more malpractice premiums. They don’t use AMA/HCFA codes. Being accused of being CLUELESS in SEATTLE, he continues to recruit members from industry and business leaders throughout the west. The last speaker on Saturday was Thomas Dorman, MD, an Israeli Paratrooper in the 1956 Sinai Campaign, medical doctor from Edinburgh University in Scotland, and Editor of a hard-hitting Newsletter, Fact Fiction & Fraud in Modern Medicine. He gave an interesting presentation on administrativectomy with many pointers on how physicians can regain control of their destiny by eliminating all administrators.

Decision Time

I feel that this conference brings us to the front lines of medical practice every year, preparing us for the real leadership we need for our profession. The intrusiveness of HIPAA is not fully appreciated by the rank and file membership. When this law is fully implemented by April 1, 2003, all physicians will essentially be criminals. The only question remaining is, when will you be caught. Nearly all participants strongly recommended that all doctors be out of Medicare, Medicaid or any other government program by this date if they don’t want to face financial ruin and possibly time in prison.

This conference is also about one-third the cost of the CMA Leadership Conference in La Quinta which I have attended in the past. But it points in nearly the opposite direction. An AMA member reported that the AMA lost another 26,000 members last year. During this dues-paying season, I’m approached almost daily as to whether it is now time to throw in the towel with CMA and our local society. I still feel it’s best to work from within. Most of the physicians where I practice have already given up on the AMA. It’s time for a change in direction. Are we up to it or will we become, in the 21^st Century, indentured servants to the government that was founded to protect our freedoms and not enslave us?