By: Guest Authors

By: Robert W. Kinchloe, M.D.

“When I use a word,” Humpty Dumpty said, in rather a scornful tone,
“it means just what I chose it to mean–neither more nor less.”
Through The Looking Glass And What Alice Found There
Lewis Carroll

The current debate in this country has been labeled a “Health Care Debate.” In reality the debate is not about health care it is about government control and rationed medical care primarily to the elderly and eventually to the weak. The changes proposed are only the first steps to dismantling the private insurance industry by which most of us get medical care even though more than 80% of people rate themselves currently satisfied with their health insurance. How do we know this is only a first step ? Look at the history of medical care reform in Europe, UK and Canada.

Imposing a government-controlled medical system on satisfied citizens is a drastic cure for a solvable insurance and cost problem. It is like cutting off your arm because you can’t get a splinter out of your finger. The insistence by many in Congress and by the White House for government control rather than fix the current system suggest that some in Washington have an agenda having little to do with medical care.

There is no doubt that our current medical delivery system is not perfect. We must allow more competition, do away with politically imposed rules and mandates. And make sure the chronically ill, the unemployed, and the poor are able to purchase coverage and receive care. But just because our medical care system has flaws is no reason to kill the patient. If Congress concentrated on allowing competition, finding and curing the waste and fraud in Medicare-Medicaid, and fixing the tort system, the debate would be over next week.

The Arguments for Government Control

Why does government need to control medical care? The most common answer is because medical care costs too much and the costs keeps going up.

Medical costs are high. Why? One reason is we have medical devices, procedures, drugs, and cures we thought impossible even 10 years ago. And Americans have those things instantly available in abundance. In 1950, you couldn’t spend money on polio prevention, heart stents, dialysis and multiple thousands of other things. Americans’ life expectancy has been increased in large part because of American medicine’s innovations. At the turn of the 20th century the average life expectancy was 46. Now it is 78. The average cost of getting a new drug to market is $1.5 billion over an average 16 years of research and development. Should we do without research and development because it is expensive? If the government institutes drug price controls will companies continue the risky investment needed to bring new drugs to market? If we let government take over drug development paid for with our tax dollars, will research and development be less expensive? Obviously, a rhetorical question but it could be a life and death answer.

Rising costs are not unique to medicine. Houses cost more because rather than one bathroom and no air conditioning as in the 1950′s, we now have multiple bathrooms, central air, built-in appliances, microwave ovens, and a host of other conveniences which many of us consider essential. Cars cost more because they have more conveniences and more safety devices.

The issue in medical care costs as with other purchases is one of value. There is, of course, a big difference between cost and value. Cancer survivors will undoubtedly tell you chemotherapy that costs thousands of dollars a day is worth every dime it cost.

Another reason for rising costs in all aspects of U.S. life but particularly in medicine is politicians and the increasing and often contradictory regulations annually imposed on the medical care system. Politicians analyze little. They are in the business of re-election. Their primary currency is distribution of mandates to satisfy some group and gain votes. As a result, politicians have passed a thicket of regulations on insurance companies, doctors and hospitals compelling strict compliance without the slightest regard for the soaring costs. Now on top of already smothering regulations the proposals in Congress seek to impose 1100 more pages of regulations and mandates and more bureaucracies. What if a government magic wand was used to reduce laws, rules, and regulations? How much less would medical care cost?

The second part of the cost argument is that we spend more on health care than any other country. But merely because other countries spend less is not an indictment of our medical care system. Shouldn’t we first examine and compare what we get for our money and what they get for theirs?

In Canada and UK, medical visits and routine procedures have long lines and long waits. It has been documented that government care in UK and Canada kills. Breast cancer death rates are higher. Prostate cancer deaths in UK exceed the USA death rate by 38%. UK heart attacks fatality rates are 20% higher than America’s. Perhaps this corresponds to the fact that angioplasties were 22% less common in the UK. In 2008, Lancet Oncology published a study documenting that Americans have a better survival rate than Europeans for 13 out of the 16 most common cancers.

Last year, London’s Daily Mail complained that thousands of people were being held in ambulances because the emergency departments could not treat them in the government mandated four hours. Holding them in ambulances, however, caused an ambulance shortage. Others needing emergency care couldn’t get to the hospitals.

Canadian doctor shortages are well documented. The House Ways and Means Committee heard testimony from a Canadian physician describing the doctor shortage and the lotteries where Canadians compete to obtain doctor appointments. Ten to 12-week waits for MRIs, 32 weeks to see the neurosurgeon, and nearly nine months to see an orthopedic surgeon are documented. A Canadian Supreme Court justice in a legal opinion documented that Canadian patients die as a result of waiting for public health care. The Canadian Medical Association president recently acknowledged that the Canadian medical care system is imploding and is not delivering the care patients need.

Interestingly, the Dutch in 2006, abolished their decades-old government single payer system in favor of requiring every citizen to purchase medical insurance from profit-making private insurers. At the same time, doctors, hospitals and pharmacies were allowed to negotiate prices with insurers. Today, the Dutch vote with their feet. If an insurance company has high prices or low quality, competition allows them to change insurers once a year. The Dutch medical care system has converted from government inefficiency to a decentralized private insurance-based system with competition as the whip that drives down costs and increases quality.

It seems obvious that other countries do indeed spend less because they have intentionally and arbitrarily limited access to the medical care we in the United States obtain in mere minutes to hours.

But, the argument continues, in other countries that spend less they live longer than in the U.S. where we spend more. We are expected to conclude from that statement that we waste money on medical care that does not make us healthy. But are we sure that it is the medical care system that is responsible for the 3-36 month gap in life expectancy? Or is it lifestyle choices like drugs, alcohol, obesity, and risk-taking behaviors that creates the difference? A raw comparison does not indict our medical care system. A raw comparison indicts our health care.

And therein lies the fallacy of the comparisons between our country and any other. The difference between health care and medical care.

Health care is what you can do for yourself — diet, exercise, quitting tobacco, alcohol moderation. Health care is lifestyle.

Medical care is what the doctor does for you after you get cancer, heart failure, stroke, either from your lifestyle choices or just plain bad luck, or after you have an accident. Americans are more obese, use more drugs, have a higher homicide rate, and differ from other countries in other lifestyle choices, in genetic makeup, and a host of other ways. No matter how big the bureaucracy Congress imposes, it is doubtful that American lifestyle choices will change soon. But lifestyle choices and the resulting consequences do not justify destroying our medical care system and more importantly, imposing government rationed medical care which is the hallmark of every government controlled medical system in the world.

The simple truth is that when it comes to medical care, there is no country to compare to the USA. Detractors say other countries’ systems are better but Americans consistently respond to polls indicating satisfaction with medical care they receive regardless of comparisons to other countries. Is it a perfect system? No, it can be improved in many ways. But the need for improvement does not require government options or government co-ops.

The second argument for radically changing medical care is that so many Americans—maybe 46 million – or 15% of the U.S. population – do not have medical insurance. What in that statement MANDATES government control of the medical care of the other 85%? The real questions to be asked (assuming the statistic is true—ever ask how THEY know the number without insurance?) is whether medical care will be better or worse if government takes over and how do we cover those needing insurance and maintain the insurance system that 80% of Americans like?

Is 46 million real? There is ongoing debate about the number but it is virtually certain it is not 46 million. Neither Congress nor the President offer more proof than simply repeating the figure as if that will make it true. (Lenin thought so. He said “A lie told often enough becomes truth”). As far back as 1990, in a book by bioethicist Daniel Calahan, arguing for universal government medical care, Calahan cites the number of uninsured Americans: 40 million. It seems that no matter the population, no matter the economy, the uninsured figure changes little.

Whatever the number, why are people without insurance? It isn’t poverty childhood or old age. The poor, children, and the elderly are covered by Medicare and Medicaid programs. Government data from the Census Bureau reveals that the uninsured figure is closer to 20 million if those already on government programs and illegal immigrants are excluded. Of that figure, a certain number can afford insurance or they are eligible for existing government coverage but opt not to apply. Those who can afford insurance and choose to spend their money on other things include the young and healthy (bulletproof) and those that like to live in the moment, as they say.

The uninsured most in need today are the victims of the economy who have lost jobs or simply cannot afford insurance, those who are being excluded because of pre-existing conditions, and those with chronic diseases. The straight forward insurance and other fixes to our medical care system discussed below can take care of those deserving people without dismantling the medical care system relied on by the rest of us and giving carte blanche to a new gargantuan government bureaucracy.

Other arguments for government control include unknown numbers of people who cannot get medical treatment and the increasing number of Americans going bankrupt because of medical bills.

First, every person in the United States needing medical care gets medical care. Non-profit hospitals (most hospitals in the USA are non-profit) are required by federal and state law to provide substantial charity care in return for tax-exemption. Free medical care is also provided by physicians, medical schools, state and county hospital districts, neighborhood clinics, religious organizations, and dozens of other charities. And we all know every hospital, for profit or not for profit, is required by law to treat every person showing up in an emergency room, whether a citizen or not. Sometimes that ER care extends into months and even years and many millions of dollars for just one person if that person’s condition is such that they cannot be discharged.

And one issue the House and Senate bills refused to address is medical care for illegal immigrants. The border states spend billions a year on illegal immigrant hospital and medical care. Even non-border states are forced to make tax payers shoulder the burden. Take Nevada. University Medical Center provides $20 million a year in dialysis for approximately 80 uninsured illegal immigrants. End stage renal disease is a Medicare covered malady. Illegals do not qualify for Medicare, only Medicaid. No medical dollars and no insurance means the local Clark County tax payers pay. And the illegal immigrants have figured out that they can get dialysis in the Emergency Room, which is four times more costly, because hospitals cannot refuse to treat whoever shows up on their doorstep.

Congress argues over how to ration medical care for Americans. At the same time it refuses to address an issue that if dealt with would decrease costs and allow its own citizens to receive the medical care they deserve and their tax dollars bought.

Bankruptcies are part of a misinformation campaign. A study by Harvard University researchers is often cited as proof that medical debt is the cause of almost 65% of bankruptcies. Conclusion: government take over will save everyone including the bankrupt. What the Harvard University researchers did not reveal is that they are co-founders of an organization dedicated to implementing a national single-payer medical care system. True to character close study of their data reveals manipulation and a fatally flawed analysis which predictably supports their view. The personal bankruptcies data published by the Federal Reserve and the Department of Justice reveal medical debt rose only slightly between 2001-2007, and half of personal bankruptcies involved no medical debt. In 90% of bankruptcies with medical debt, the debt was less than $5,000. Among the minority reporting medical debt, only a few had enough medical debt to cause bankruptcy.

Manipulation of medical care data for a presumed greater good known only to a few has been seen recently in the multi-billion-dollar global AIDS industry. A long time insider has written a whistle-blower book revealing how the United Nations HIV/AIDS program exaggerated the threat to the general population and manipulated medical data for more than 10 years to increase funding for global AIDS, which in 2007 reached $10 billion annually. In reality, the incidents of HIV was decreasing for that decade. UN officials continued the data charade calling for more and more money to fight the non-existent epidemic. It is déjà vu all over again for Lenin.

The point is, when there seems to be an agenda to change something that most find workable it pays to question the stories and statistics that the proponents of change use to persuade.

Then the argument goes, “but we all pay for the care of the uninsured.” Yes, that is true. That is not a reason to dismantle a medical care system working for most Americans. The Congressional Budget Office (CBO) estimated the 10-year price tag for the proposed Congressional medical care overhaul at $1 trillion. For even half that price, couldn’t we buy insurance for the uninsured? The answer is we can undoubtedly do it for even less if we implement a plan of insurance reform, deregulation, and tort reform outlined below.

Some have said that if we just decrease the age for Medicare, that will solve our problem (whatever the problem is perceived to be). In particular, Dr. Howard Dean has recently made that proposal. This proposal is not new. It has been around since at least the HillaryCare debates. But Medicare’s trustees recently told us Medicare is now spending more than it brings in. It will be unable to pay its bills by 2017. Even the President agrees. Recently, in Portsmouth N.H. he acknowledged Medicare is “unsustainable” and “running out of money.” Social Security is a little better off. It won’t be broke until 2037. Today, Social Security’s unfunded 75-year liability is $5 trillion. Medicare’s unfunded liability is $36 trillion. Medicaid, medical and long-term care for the poor, is funded by state and federal tax dollars.

Today, Medicare/Medicaid underpays doctors and hospitals. The system is so overwhelmed that part of the government option reform plan is to save money by reducing reimbursement rates to doctors and hospitals even more. Today, Medicare pays doctors 20% below market rates, and hospitals 30% below. Medicaid pays 30%-40% less than Medicare. Further reductions in payments means reduced and non-existence medical care. Why would any reasonable person propose adding more passengers to the Titanic?

The government’s ability to underpay, write the rules, and subsidize are the most powerful reasons that any government option insurance plan or co-op plan will decimate private insurers. A private insurance company cannot compete with government when government writes the rules of the game and has unlimited funds and pays no taxes. Agreeing to drop the government option in favor of a government co-op is merely sleight-of-hand. A government co-op is just the government option with a non-bureaucratic name. The result is the same when it comes to government competing against insurance companies. It simply boils down to the golden rule: He who has the gold, he rules. Is there any doubt that the government co-op will dominate in five years?

When the President says he guarantees you will be able to keep your insurance plan under his proposal, he is dissimulating. The power to underpay for medical services is the power to drive out private competitors and the power to ration care without calling it rationing. If doctors and hospitals restrict their care to conform to government payments, they must of necessity conform to the government’s idea of what is reasonable and necessary for a particular disease. As doctors and hospitals phase out unpaid care, your choices become limited. In turn, hospitals will not invest in the latest technologies or build new facilities. Consider also the supply of doctors. At a time when we need more, who will be able to afford a medical education (average debt $125,000) when the government underpays? So when the President says you will be able to keep your doctor under his plan, the question he should be asked is, whether your doctor will keep you or your insurance plan much less continue in a practice he/she cannot afford.

How do we know this will happen? Look at Canada. Look at the UK. Lotteries for doctor appointments. Long lines. Long waits. Limited number of general practitioners. Limited number of specialists. Limited procedures. Limited technology.

Even the CBO disagrees with the President. The CBO’s estimates 23 million will lose their current insurance plan under the bills now in Congress. Independent think tanks predict 114 million will lose their current health care coverage, including 106 million who currently have employer-provided medical care.

But under paying doctors and hospitals is only one form of rationing. Other forms are directly called for in the House legislation. And while the President and many in Congress profess they have not read the actual bills, (what precisely do we elect them to do?) (Representative Conyers, perhaps in a fit of honestly, said on July 27, talking about the Health Care Bill: “what good is reading the bill if it’s a thousand pages and you don’t have two days and two lawyers to find out what it means after you read the bill?”), it should be an embarrassment to them that citizens can read the bills and many have done so.

Let there be no doubt, the President and Congress are engaged in a colossal bait-and-switch. Their propaganda does not match the reality in the proposed bills much as the promise that we would watch the medical care debate on C-Span never materialized. Instead of debating on C-Span the President offers arguments based on red and blue pills and the illogical, vulgar charge that doctors only make medical decisions based on how much money they can make by surgically removing healthy body parts. It was a grotesque insult to an honorable profession.

Perhaps amid all the controversy and debate, we have also failed to ask a basic question: Why does it take 1100 pages of legislative legalese if the purpose is just to insure people who lack insurance? Those who have waded through the gargantuan house bill have actually found things having nothing to do with medical care and insurance, things like ear marks for bicycle paths and urban farmers’ markets. Any wonder the President didn’t want to show this to the American people on C-Span.

Fortunately, internet sites provide analysis of HB 3200 and the Kennedy Senate bill. They have done what Congress should do. Perhaps the President would benefit from reading the sites. Without doubt what the President and Congress is selling as medical care reform is not what we the people will be buying with our tax dollars.

The promise is that you can keep your health care plan. The bills say otherwise. The fine print, full of legalese, exchanges, qualified plans, and more, will cause most of us to lose our current plans within months and at most 60 months from the law’s adoption. Keep your doctor if you like him or her. No. The bills call the process by different names but the result is the same.

Fortune magazine’s analysis specifies five freedoms you now have in medical care that will be obliterated in any version of government care now being considered: The freedom to choose what’s in your plan, to be rewarded for healthy living, or pay your real costs, freedom to choose a high deductible, freedom to keep your current plan and to choose your doctors.

Another part of reform involves The Health Choices Commission, part of which Sarah Palin called the death panel. Perhaps the metaphor seemed exaggerated but it takes little imagination to project this Commission only a few years into the future when the unelected, unknown bureaucrats in a windowless room in Washington accumulate more cost-cutting power in the next Congress and begin using the real rationing mechanism that will eventually phase out the heavy handed underpayments – rationing by cost effectiveness. A committee, bureaucrats, perhaps doctors, perhaps lay people, but all appointed by politicians, will decide what treatments are efficacious and cost effective. In non-bureaucratic words, a government committee decides if your age justifies the expense of your proposed treatment. The older you are, the less money will be spent.

In addition, decisions will be based on statistics, not on individual circumstances. For example, statistics indicate one-year survival rate after liver transplant of about 85% for adults and children. The percentage drops to 60% if the patient is critically ill at transplant. What imagination does it take to conjure up the scenario where the commission says liver transplant is too expensive for just a 60% survival chance. NO exceptions. You, if you need the transplant and are critically ill, have been deprived of a 60% change at life. Now, suppose it is President Obama who is critically ill and needs a liver. Exception? And if you can afford it, do we let you purchase a liver transplant that someone else can’t afford?

How can we know that the health choices bureaucracy will ration care by age and cost effectiveness? Because one of Obama’s top medical advisors is Dr. Ezekiel Emanuel, a medical bioethicist, brother to Obama’s Chief of Staff, and the likely architect of the House Bill judging by Emanuel’s published writings. In one of his books, Health Care Guaranteed, Emanuel outlined a universal government controlled medical care plan that parallels the proposed House Bill. Emanuel advocates the total destruction of the existing medical care system and replacing it with a government plan similar to the Federal Reserve Banking System – a national health board supplemented by twelve regional health boards. The President and Emanuel have given us a glimpse of what these health boards will decide once they gain more power.

In April the President told the New York Times that old, chronically ill patients account for approximately 80% of the health care dollars we spend. It was his belief that end of life care decisions should be guided by an independent group. To get an idea how this “independent” group might think, one should look at Emanuel’s 1996 writing where he advocated that medical care must be reserved for the non-disabled and not given to those who are prevented from being participating citizens. His example? A patient with dementia. In the June 2008 AMA Journal, he wrote that doctors take the Hippocratic Oath too seriously. That doctors should consider whether medical care dollars could be better spent on another patient considering of course society’s goals not the patient’s circumstances. In January this year in the British medical journal Lancet, Emanuel wrote that allocation of health services by age was not discrimination. He advocated basing medical decisions on a priority curve where between the ages 15–40, one receives priority medical care while younger or older get whatever is left over. Death panels may indeed be an appropriate description.

Medicine like any endeavor has finite resources. Not everything can be done for us that our imagination can conceive. Medicine is constrained by the overall society restriction not to waste finite assets needed to care for society at large and to use the assets in a reasonably productive manner. Some say this is rationed medical care by price. So our choice is rationing our medical care by free market forces or by government bureaucrats. Would you rather Fed Ex run medical care or the post office bureaucrats? We can make the free market work for us with some needed fixes. All it requires is for politicians to stop social engineering solutions that we can’t pay for, that are 100 times more expensive than estimated, and that always have debilitating unintended consequences the “experts” didn’t foresee.

The question is, do we want government bureaucrats deciding who gets what medical care or do we want doctors, patients, and a free market unfettered by politically imposed mandates and regulations to decide using reason and individual circumstances? Judging solely by government’s track record, the question is really not a test of one’s intellect.

There is little that government has undertaken that turned out good. The Post Office has not made a profit in decades despite having a monopoly on delivering first class mail. Its loss this year is $7 billion. However, Fed Ex and UPS do the same job and both make a profit. Amtrak cost taxpayers billions each year. Airlines make a profit. The VA System is rife with inefficiencies, and long waits. But, for profit and not for profit hospitals until recently have delivered reimbursed care, charity care, research and development as well as having the most up to date cutting edge equipment.

Government efficiency, an oxymoron, can best be illustrated by two departments started under President Carter. The Department of Energy formed in 1977 had as one of its primary missions to make the United States energy independent. The Department of Education started in 1979 with the mission of increasing educational levels throughout the United States. After 30 years, thousands of employees, dozens of programs, and billions of dollars, both goals have not only not been obtained, they have actually slipped further from our grasp.

One of the truly monumental government failures is the amount of waste and fraud in the Medicare/Medicaid-Social Security-Veteran’s Administration System. Every President and Congress since LBJ has promised to root out fraud and waste in government spending particularly in medical care. As with all government programs, government waste and fraud in medical care continues and increases yearly in exponential amounts. The bureaucratic adage is spend all of the budgeted money or risk getting less next year. Even if it is spent wastefully or given to those perpetrating fraud. Governments in general prove daily what Milton Friedman said: “no one spends other people’s money as carefully as he spends his own.” And the same is true when it comes to preventing waste and fraud.

Experts estimate that fraud and waste in Medicare totals $30 to $60 billion per year or about $1 out of $3 spent. Medicaid fraud and waste is $30 billion per year. In New York alone it is estimated that as much as 40% of the state Medicaid claims are fraudulent. The scams are repeated over and over – phony companies, phantom services, unscrupulous doctors, prescriptions for the dead, and home health billing for hospitalized patients. Currently, U.S. medical care expenditures are about $2.1 trillion per year. About half is Medicare-Medicaid. If that half of the nation’s medical payments is managed so poorly by the government, why would any rational person think the bureaucrats will do better when they take over the other half? The answer is that there is nothing new in the Obama plan dealing with waste and fraud. It will be business as usual for the scam artists. Private medical insurers do not have any where near the billions upon billions of fraud and waste inherent in government administered medical programs. Why? If they can do it, why not government?

It makes more sense for Congress to work on recovering the billions of our tax dollars yearly lost to fraud and waste before imposing another bureaucratic fix modeled on a wasteful Medicare/Medicaid system not to mention the new taxes called for in the pending bills. If Congress just recovered Medicare-Medicaid fraud and waste, there would be more than enough money to pay for those without insurance.

Everyone has seen President Obama and others in Congress saying their goal is not single-payer universal medical care. On the other hand, there is also a 2004 video of where Obama openly admits that his goal is a single-payer system. Representative Barney Frank has eschewed the President’s dissimulation and frankly admitted this as the goal. The point is there is no doubt that whatever system is put in place the final result, using Europe as a historical model, is bureaucratizing the entire medical care system. The ultimate litmus test for Congress and the President should be that they and their families be participants in the plan. As it now stands, Congressman John Fleming, M.D., a Louisiana family physician, notes that under the current democratic medical care bill members of Congress are “curiously” exempt from the legislation and will retain their existing gold-plated Capitol Hill coverage (funded 75% by taxpayers with multiple plan choices all of which are from private health care insurance companies). Dr. Fleming has sponsored House Resolution 615 requiring Congress to sign up for whatever plan legislators pass.

Changes We Need

The answer to the medical care problem is not government. Bureaucracy, political horse trading and bargaining to satisfy constituencies for political payoffs and some expected advantage or payback, the political mandates with endless rules and regulations that fail to prevent fraud, abuse, and waste, those are the problems. And all of those problems, now existing in government run medical care systems, would be exponentially multiplied by the proposed 1100 pages of mandates, formulas, and regulations. And don’t forget, even though the 1100 pages creates an arbitrary medical care system, the 1100 pages are merely an outline. The details are largely left to interpretation and implementation by the Byzantine bureaucracy that the bills create. The devil, as they say, is in the details. Has the IRS made paying your taxes simpler?

The answer to our medical care is improving what we have, covering those who can’t get insurance for whatever reason, including pre-existing and chronic conditions, and recovering our tax dollars now wasted in fraud and abuse. Surely, American ingenuity and resourcefulness can increase medical care efficiencies while keeping the humanism in the care that we now have. Although the President repeatedly says that Republicans and others have offered no alternatives that is not true. Alternatives abound. Think tanks across the nation offer viable alternatives. These alternatives improve on what we already have which is the best medical care system the world has seen.

What needs to change?

First. Reasonable insurance reforms. Allow large groups of people to get together and buy insurance. Relax anti-trust and federal laws allowing states to ban medical insurance sales across state lines. Allow insurance companies to work together if need be. Reduce politically mandated “standard benefits packages” – a major cause for the rise in health care costs. For example, Connecticut’s standard benefits packages require reimbursement for hair transplants, hearing aids and invitro fertilization. But why would a healthy headful of hair 20-year old want to pay for hair transplants, hearing aids and invitro fertilization? (In 2007 there were 1900 different mandates nationwide).

Prohibit insurance denials based on preexisting conditions. Guarantee portability. Streamline billing codes. Reduce regulations to a minimum. Streamline prescription and medical records.

Second. Eliminate regulations on doctors and hospitals and encourage medical care institutions to merge to deliver care far beyond their own walls and into the community at large. Allow doctors and hospitals and medical schools and other delivery systems to get together to negotiate with insurance carriers, suppliers, and with patients. In other words, reduce anti-trust regulations and other regulations that prevent groups from negotiating as a unit.

Third. As Charles Krauthammer and others suggest, disconnect medical care insurance from employers. Through use of the Tax Code or otherwise, return money to employees so that they can buy their own medical care insurance just like they buy car or house insurance. Then medical insurance becomes instantly portable. And if medical insurance can be purchased across state lines from companies willing to package different products, powerful competition would lower cost for everyone.

Fourth. Make certain that it is patients, families, and doctors that make end of life decisions based on individual facts and circumstances. Clinical decisions cannot be made in Washington based on numbers, cost and arbitrary mandates. At the same time, an open discussion between physicians, patients, and families should begin on end-of-life care. This is a most important goal because a substantial fraction of our health care dollar is spent in the care of patients during the last six months of life. In the words of Drs. Hartzband and Groopman in their article in the New England Journal of Medicine, efforts to achieve this goal will require a thoughtful collaboration between evidence-based medicine (medicine based on best available data to help create standardized therapies and treatments) and humanism, that is to say, seeking to understand the patient as a person focusing on individual values, goals, and preferences with respect to clinical decisions especially death and dying.

As a society, we must begin seriously to discuss the issue of keeping alive patients clearly at the end of life just because we can do it technically and because someone will not consent to allowing peaceful death. We must also address doctor education and training instilling the never give up and always continuing to confront and solve, as Dr. Sherwin Nuland says, The Riddle presented by the dying patient’s disease. While it is generally beneficial to patients for their doctors to struggle against the odds, we must also teach physicians to give up on The Riddle at the proper time and help us die with dignity and grace.

Fifth. Last, but perhaps as important as any change to the medical care system is medical malpractice reform. Democrat proposals do not touch this essential lynch pin presumably because of the party’s devotion to trial lawyer campaign contributions. The Byzantine labyrinth of rules, regulations, and mandates dictating how we live and how we die should at least regulate this most costly and unique aspect of American medical care. Not only is there the expense of defending against the trial lawyers who bet on winning lottery-like verdicts from malpractice lawsuits, there is also the considerable expense of the continued practice of defensive medicine. Both aspects of malpractice – casino-style lottery-like jury verdicts and defensive medicine – yearly add billions to the cost of medical care. Those dollars are much better used to assist families having difficult obtaining insurance and paying for primary medical research for chronic diseases.

Malpractice suits are not designed to deter malpractice. For example, thousands and thousands of lawsuits have been filed accusing obstetricians of causing cerebral palsy in newborns. Billions of dollars have been paid in settlements and verdicts, but the incidents of cerebral palsy worldwide remains the same as it was 50 years ago. In other words, if doctor’s negligence was causing cerebral palsy, the incidents should have decreased particularly in view of the technological advances in the interim years.

Our fault finding tort system has not improved medical care. In the now famous Harvard medical practice study, researchers identified real cases of medical malpractice and followed them for 10 years. The only significant predictor of payment in the court system was the existence of disability. There was no association between actual negligence and the patient being compensated for the injury. In other words, in the tort system the factor dictating payment to the patient was the severity of injury on trial not the doctor’s negligence. The system was unfair to both patients and doctors.

This study makes perfect sense. Juries and judges, untrained in medicine, unfamiliar with epidemiology, unfamiliar with the rudimentary aspects of the scientific method or scientific reasoning, of necessity make decisions based on a host of other non-scientific factors including the most dominant of all – sympathy. To most jurors, an incontinent, mentally retarded, sometimes blind, sometimes deaf, sometimes both, wheel-chair bound child, fed through a stomach tube connected to a giant plastic syringe is so shocking and so foreign to their daily experience that they only think in emotional terms when deciding liability. (The description is that of a child with cerebral palsy).

What to do? As Krauthammer suggests, abolish the entire medical malpractice system. Create a new pool from which people injured from medical errors can be paid. Adjudication is by a judge educated in medicine and science. Dispense with lay juries. At the same time, these medical courts could deal with bad doctors and revoke licenses. Whatever the system, it must be simplified, be efficient, less time consuming, and less costly than using lay people to judge a doctor’s competence.

Trial lawyers, of course, would protest particularly lamenting the fact that injured victims would not have a trial by jury. They would say that tort litigation is the only way to impose higher safety standards and protect patients.

Trial lawyers would not mention their own profit motive. Trial lawyers work on contingent fees. Trial lawyers are not altruistic. They are paid 33-50% of patient’s recoveries. In return, lawyers pay all expenses. In drug and device litigation, for example, expenses easily reach multi-million dollar levels. No recovery? The lawyer still pays the expenses and is not paid for his/her time. Either way, trial lawyers have powerful multi-million dollar motives to overreach, shade the truth, invent facts, recruit questionable experts, and otherwise disregard truth and ethics.

Trial lawyers and tort law have accomplished some good things. The Ford Pinto for example. But tort law trial lawyers have also spawned junk science – some examples among many being Bendectin, breast implants, and vaccines causing autism. All of these have now been proven to be solely based on junk science. Yet, billions of dollars were recovered for nonexistent medical injuries. And the lawyers profited most of all.

Tort litigation is not the crucible of truth its proponents describe. Common sense reveals the folly of 12 any town USA jurors, with no scientific knowledge or training, deciding complex issues of medicine and science in an emotional, sympathy filled atmosphere. Do we really expect them to find truth?

If big paydays were removed from medical malpractice, would trial lawyers be as eager to participate? Suppose, for example, trial lawyers were told that they could sue whatever medical cases they thought were worthy but rather than being paid on a contingency fee basis with the chance for a multi-million dollar payday, a lawyer was paid a government lawyer’s salary. With the money incentive taken out of the tort system, how many trial lawyers would be pursuing those evil doctors they talk about so much?


The bottom line is that the vast majority of Americans are content with their medical care and their medical care insurance. Why overhaul something that is working for most Americans? Tweek it, yes. Overhaul it and let government become the sole arbiter of your medical care – no. The more government gets out of the way, the better our medical care becomes. As someone said, with government in charge of medical care we would have the efficiency of the post office and the compassion of the IRS. And like the post office your friendly government medical shop would close sat 1 p.m. on Saturday, all day Sunday, and on every conceivable holiday. Does anyone believe that Washington bureaucrats will actually bring us better medical care?

We should be talking about how to keep the good, how to jettison the bad, and improve what is working. Instead of the open debate we were promised by the President, around a big table with doctors, nurses, hospitals, insurance companies and interested others, negotiations televised for all to see, we get the worst of politics as usual. Secret drafts of secret bills negotiated with unknown participants in dark rooms, deals with pharmaceutical companies, endorsements by organizations who then claim they never endorsed anything, and perhaps most frustrating of all, a President and Congress aggressively endorsing plans that don’t actually exist except in competing drafts of bills that run to several thousand pages of dense legalese and none of the people who defend the plans have actually read the drafts. To say that this is a colossal bait-and-switch may be an insult to con men.

The broken promise of open debate and inclusive participation is fueling deep distrust of government. That deep distrust combined with the imperious inability of many in Congress and the Administration to hear the fears of ordinary people who will have to live and die with the medical care decisions being made in Washington, fuels the anger playing out in the town hall meetings across the nation. To ordinary Americans it seems that many politicians have forgotten that an election is not a coronation and election does not magically confer an intellectual superiority on those who happen to win a few more votes than the other candidate.

Many in this country feel that trying to communicate with Washington is the same as Alice trying to communicate with Humpty Dumpty. Upon first meeting him, Alice noticed that he kept his eyes steadily fixed in the opposite direction taking not the least notice of her. In talking to him she quickly found out that words did not mean the same to Humpty Dumpty as they did to everyone else—they meant whatever he wanted them to mean whenever it suited his purposes.

And when Humpty Dumpty was confronted with his bait-and-switch he reacted as does Washington, he pretended to know the difference and excused his inability to know the details on his lack of time to look it over thoroughly.

Humpty Dumpty asked Alice to compute the remainder of 365 minus 1. Alice did the calculation in her memorandum book and handed it to him for confirmation:
“Humpty Dumpty took the book and looked at it carefully.
“That seems to be done right——-” he began.
“You’re holding it upside down!” Alice interrupted.
“To be sure I was !” Humpty Dumpty said gaily
as she turned it round for him.
I thought it looked a little queer. As I was saying, that
seems to be done right—though I haven’t time
to look it over thoroughly just now . . . .” ”

Sound familiar?

Robert W. Kinchloe, M.D. is a practicing physician in Austin, Texas.
He has practiced anesthesiology for 25 years

Thomas P. Sartwelle, LL.B. is a trial lawyer in Houston, Texas.
He has practiced personal injury defense including extensive
medical malpractice defense for 42 years.