Wednesday, July 31, 2013

The medical elite policy wonks need to listen to the real docs

Here are two real docs telling a story that seems to be lost to many of the medical elite who smoke the progressive pipe and sing the manta "medicine is too complex and important to be left in the hands of the individual physician and patient". See this commentary  from the blog In my Humble Opinion and these remarks from a practicing ophthalmologist in Texas which was featured on Dr. G.Keith Smith's website,Surgerycenterofoklahoma.





Wednesday, July 17, 2013

Will Obamacare bring social justice(as claimed by AMA and ACP) or "Shatter the Backbone of the Middle Class"?

Obamacare was lauded by some democratic senators and some medical organizations ( e.g. the AMA and ACP) as finally delivering  long awaited social justice to health care in the U.S. Labor unions supported Obama's candidacy as well as the bill. Now as some of the devilish details are oozing out of the hundreds of pages of dense legislative verbiage,labor union leaders are realized they may well not get the really good deal they believe they had been promised. 

Now three unions are demanding that the administration make changes in the interpretation of the statute ( can you say "waivers") to lessen any negative impact on various unions health care plans.See here for details.

One brief quote from a letter  to Democratic leaders in the House and Senate that was signed by Jimmy Hoffa :

 " We have a problem; you need to fix it. The unintended consequences of the ACA are severe. Perverse incentives are already creating nightmare scenarios."

Perhaps Obamaconcare might be a more appropriate name as more and more folks are realizing they were conned.

Sunday, July 07, 2013

How/why/when did physicians get tasked with being "stewards of resources"?

 Let's take at look at the the strange journey of physician's ethics from fiduciary duty to the patient to stewards of society's medical resources.


When I trained as an internist in the late 60s and early 70s,medical ethics seemed very straight forward and was so uncontroversial that is was rarely the topic for discussion.The physician had a fiduciary duty to the patient and he was to place the patient's interests first and do what was right for the patient and to do no harm to the patient.

It was a time when the hegemony of the third party medical payers (insurance companies and CMS) was not an issue. It was the era of "retail medicine" in which indemnity insurance followed the patients and the payments for physician's services were dispensed according to what was said to be "customary,reasonable and prevailing". Insurance companies did not determine which hospital a physician used,which consultants to be used for referrals nor what medications were approved for use.Physicians who vigorously advocated for their patients as it involved some hospital practice were not summoned before a kangaroo court on charge of being "disruptive".

As time passed there appeared on the scene a perfect storm of forces and events that accelerated medical costs.There were new diagnostic tests (mainly imaging procedures),new therapies,patients were spending what they considered to be other people's money and physicians believed they were ethically bound to do what they thought was right for the patient which often included more rather than fewer tests .


As medical care costs and expenditures increased, third party payers including large corporations who provided health insurance ( those who were self insured) took measures to control costs. There were larger deductibles and co-payments and more scrutiny by insurance companies on what exactly they would pay for. There were guidelines and pre approval rules for testing.The concept of gate keeper was born. These counter measures probably mitigated price increases a bit but costs continued to rise and continue they would as basically this was folks spending someone else's money and the fingers on the cost guns were in the hands of hundreds of thousands of physicians many in sole or small group practices whose actions continued to be largely outside of the control of the third part payers.

The problem was how to control the activities on these physicians who had been inculcated for many decades with the ethical imperative of do what is right for the patient. For one trained in that ethical environment, cost to " the system", be it United Health Care,Exxon, or Medicare,was not a major priority in their value or decision making calculus.

So various variations of carrots and sticks were employed by the third party payer.Pay for performance grew up as a type of bribe to docs to follow the cost cutting guidelines which went by the wink,wink,nudge, nudge name of quality guidelines.

Although carrot and stick techniques have a proven history of changing behaviors to some degree,what would be even better is to have at the triggers of medical cost initiation e.g physicians (or some alternative "health care provider", i.e NPs, PAs)  who  really believe their duty lies at least to a significant operational degree in cost saving and to preserving the medical collective's resources.

Enter the concept of physicians as stewards of society's resources.

I have not developed a detailed chronology of that part of the literature which deals with medical policy matters to be able to date with any precision when and how this concept arose. I have written before on some of the earlier papers in the mainstream medical literature.


In 1988 Hall and Berenson writing in the Annals of Internal Medicine said that "the traditional ideal" [the prime duty to the patient ] was "not compatible with the role that existing insurance contracts and manged care arrangements define for physicians." Their comments were not subtle when they said :

"We propose that devotion to the best interests of each individual be replaced with an ethic of devotion to the best interests of the group for which the physician is personally responsible."

Note:Berenson and Hall  glibly justify that ethical sea change because the role that insurance contracts define for the physicians. Here we might pause and remember that one of the defining characteristics of a profession is that members are bound by a ethical code that is largely self defined.

Over the next 20 years far from that proposal being dismissed out of hand as medical ethical heresy which is how many physicians at the time would have characterized it, it has become part of the generally accepted medical ethical package nestled in professionalism statements by many professional medical organizations and has become part of medical education .

The fiduciary duty to the patient seem to have been demolished ( or at least made secondary) with unsuccessful   attempts by physicians of the old school to battle  the propaganda juggernaut . The dogs bark and the caravan moves on.

We have traveled a long way since the Berenson article.Now we read of a suggestion that "cost-consciousness and stewardship of resources be elevated by the ACGME and the ABMS to the level of a a new seventh general competency." In other words, residents should be schooled and graded on their mastery of the skill set necessary to be good stewards of [society's] resources. ( reference, The Idea and Opinions Section, Annals of Internal Medicine,20 Sept 2011,Vol.155 no.6, by Dr. Steven E. Weinberger,of the American College of Physicians.

Interestingly, in the 1999 Ethics Statement of the council of Medical Specialty Societies (CMSS) there was no mention of physicians as stewards of medical resources but rather the document talked about physicians as stewards of medical knowledge.(As best I can determine the 1999 Ethic statement is the most recent)

A CFO of a HMO or now a ACO could not devise a better ethical precept- at least for their bottom line-  than for physicians to be ethically bound to "conserve medical resources".

Operationally to be a good steward one need only adhere to the organization's guide lines which may be derived from aggregate data and the statistical utilitarianism of outcome research or at times the opinion of self designated experts. Just ask the economist Fucks how to resolve the ethical conflict for the physician facing with the good of his patient or the good of the group. Who better to give ethical advise to physicians than an economist? See here for comments on Fuchs' "solution".

So we have gone from the primacy of the welfare of the individual patient and the fiduciary duty of the physician to the patient to a Two Master concept of professionalism.

Dr. Accad of the blog,Alert and Oriented, has commented that "Medicine is dominated by the collectivist Ideology".  I agree and one striking manifestation of that dominance chiefly driven by medical academia, is the acceptance of the concept of the physician as medical resource steward. What place does/will the traditional physician-patient relationship have in this formulation?


The medical ethicist Dr. Edmund Pellegrino in 1995 asked ...can physicians change the ethics of the profession at will ( as proposed by Berenson and Hall or Berwick and Brennan)) or is there a more fundamental and universal foundation for the ethics of medicine found in the special nature of the physician-patient relationship?

Pellegrino is quoted from an article entitled "Guarding the Integrity of Medical Ethics-Some Lessons from Soviet Russia" . The subversion of medical ethics that occurred in Russia suggested to Pellegrino two lessons.

1) corruption will afflict any health system not designed with care of the patient as the its primary driving force. 2) medical ethics must be independent of political exigency. "... a morally responsive profession is an indispensable safeguard for the sick against the statistical morality of utilitarian politics, even in democracies."

How did it happen? How did the ideological certitude that we had as residents in the 1970s in regard to our ethical obligations morph into the divided loyalties and the two master concept that now seem destined to become codified in the training program? Following the Mafia rule, we look to the third party payer who are the obvious beneficiaries of the stewardship concept but what did they do to achieve that change? Did the academic medical progressives pave the way with their rhetoric and lobbying?

Language can be used as a tool of change. Dr. Thomas Szazz, one of my favorite iconoclasts, said "Define or be defined". Physicians, once a profession that defined its ethics now has been and is being defined by a relatively small group of academic physicians . Patients are now designated as consumers of health care or customers,Both terms leave no room for discussion of the physician patient relationship.Physicians are redefined as stewards of resources.

New terms have been slipped into discussion about health care. These include "professionalism" which seems to be a pattern of behaviors and a system of values that has been unilaterally grafted onto the top of medical ethics largely as the results of a group ( not necessarily an organized group per se but they are active in some internists organizations) of internists whose views are basically liberal ( not in the sense of classical liberalism) or progressive. Then the term professionalism was used as a vehicle to dictate a series of given policies which according to the definers are the necessary characteristics of physician's professionalism , This include a striving for social justice and to be "stewards of medical resources". The operational meaning of the later terms is to conserve resources by following guidelines that to some degree and sometimes derived in part from cost effectiveness and cost comparative studies.

So here is how is worked. Physicians not only have to adhere to the usual medical ethical principles but they must also behave according to the new guidelines of professionalism ( which were conceived and promoted by a small group of like minded internists) which include being stewards of resources which practically means following guidelines.

So back to the title. The how was largely through the perhaps well intentioned persistent and well funded efforts ( think the Robert Wood Johnson Foundation et al) of the progressive medical elite subset of physicians to flim flam physicians to accept the 180 degree turn in professional ethics,the why was the increasing concern of the  third payers for the  increasing cost of medical care fueled in part by folks spending other people's money .The when is not identifiable  as one specific  date or event but rather more like the process of frog boiling over the post 25 to 30 years.

Addendum: 7/8/13 An apology is in order. On 7/7/13 I was drafting this posting and I hit post instead of save . As as result a rough form was published . The above is a rushed effort to smooth the edges.

Thursday, July 04, 2013

Obamacare in action substitutes "Rule by Rulers" for Rule of Law

 The term "Rule of Law" may be discussed in at least three  different contextual frameworks. The formal or so called thin interpretation states that law must be prospective,well known, and have the features of equality and certainty. The law must be clear and apply to everyone. The substantive or so called thick interpretation says that the law protects individual rights. In the functional approach rule of law is defined by contrast with rule of man. FA Hayek talks about the rule of law as contrasted with arbitrary government edicts or proclamations.

Whatever framework you prefer, the manner in which Obamacare so far has been administered by the government exemplifies rule by arbitrary governmental order or as Michael Cannon phrased it in his Cato commentary "Rule by Rulers" (see here). Quoting Mr. Cannon:

"...the IRS’s unilateral decision to delay the employer mandate is the latest indication that we do not live under a Rule of Law, but under a Rule of Rulers who write and rewrite laws at whim, without legitimate authority, and otherwise compel behavior to suit their ends. Congress gave neither the IRS nor the president any authority to delay the imposition of the Patient Protection and Affordable Care Act’s employer mandate. In the section of the law creating that mandate, Congress included several provisions indicating the mandate will take effect in 2014. In case those provisions were not clear enough, Section 4980H further clarifies:
(d) EFFECTIVE DATE.—The amendments made by this section shall apply to months beginning after December 31, 2013.
It is hard to see how the will of the people’s elected representatives – including President Obama, who signed that effective date into law – could have been expressed more clearly, or how it could be clearer that the IRS has no legitimate power to delay the mandate."

Read all of Cannon's essay in which he lists some of the various ways that the current administration  has behaved like "rulers" exercising powers  not delegated by the statute to protect Obamacare's image and to lessen any negative impact it may have on their supporters (think unions) and on elections (think Medicare advantage and the 2014 mid term congressional and fallout from the disruption of the employer mandate.)


So both houses of congress pass a law,with great fanfare the President signs the law and then SCOTUS declares most  the law is constitutional. And now an administrative agency simply ignores the letter and intent of the law and postpones a portion of it even though it has no statutory authority to do so. Will Madisonian checks and balances kick it to  play and somehow order the IRS to obey the law? I think not- most of the times legality or  fear of  judicial action does not impede the current trend of ruling by rulers.More and more no one complains and the courts are not called upon. The barking dogs in the blog world and the non Main Stream Media bark away (along with the occasional legislator) and the ruler caravan moves on.


Addendum: 7/5/2013 It just gets more and more unclear as more analyses are offered. See here for a detailed discussion about the issue of what exactly is being postponed.Does the administration really have the authority to do whatever they think they did?Does anyone have legal standing to bring legal action to force the administration of a statute? And even if the courts found for the plaintiff ( if one could be found) could the court really force the executive to do anything?  I'll bet that James Madison thought his checks and balances and "sufficient virtue" of the American people would have worked out better.

Addendum: 7/8/2013. More delays in Obamacare. In this posting from the Washington Post  we learn that some elements of Obamacare will be on the "honor system", at least for a while.Somehow I have a problem thinking about the IRS overseeing a honor system arrangement.