Chapter 3 – The Cowing of the Medical Profession

This is Chapter 3 of my book-in-progress, “Open Wide And Say Moo! – The Good Citizen’s Guide to Right Thoughts And Right Actions Under Obamacare.” Comments are fervently sought; you can leave them here.

You can read my rationale for undertaking this project, and thus opening myself up to the possibility of public failure, humiliation, derision, disapprobation, and unwanted scrutiny, here.

And here is the up-to-date archive for all the chapters that have been posted so far.
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Update – September 1, 2012

Open Wide and Say Moo! is now revised and published!

 

You can find it on Kindle here.

 

Now available in the audiobook version!

 

 

 

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Chapter 3 – The Cowing of the Medical Profession

“Did you really think that we want those laws to be observed? We want them broken. You’d better get it straight that it’s not a bunch of boy scouts you’re up against . . . The only power any government has is the power to crack down on criminals. Well, when there aren’t enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What’s there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced nor objectively interpreted and you create a nation of law-breakers.”


- Floyd Ferris, bureaucrat – Atlas Shrugged

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The doctor who tells his patient to open wide and say moo is, in fact, projecting.

For the once proud, once ethical medical profession has been officially broken and domesticated. This, of course, is incredibly sad for the profession.

But it is life-threatening for patients.

And while it began a long time ago, the gradual destruction of the medical profession became a headlong rush in the 1990s, and ended with a final, formal capitulation in 2002. To be sure, doctors did not go voluntarily, but were coerced – by both the avaricious insurance companies and the ruthless government – to sacrifice their professional autonomy for the sake of their personal comfort and safety. The coercion was intense, but still, their resistance was remarkably feeble. In the end they did not fight as they might have to protect either their profession or their patients’ welfare. When the time came they chose not to defend their professional integrity with their lives, their fortunes or their sacred honor.

It is a sorry tale, but it must be told.

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After the collapse of the Clinton healthcare reform plan in 1993, both the triumphant HMOs and the beaten-back government plotted their moves. For the insurers, the pathway seemed open and clear. For government policymakers, chastened as they were, the pathway forward seemed no less clear – but it would have to be negotiated in a somewhat less open manner than they had originally hoped.

When these two powerful entities sat down in their respective bunkers to figure out next steps, they each came to the same conclusion: At the end of the day, the key to controlling the healthcare system was to control the behavior of physicians.

This became apparent the moment the accounting experts from the HMOs and various government agencies studied the matter in order to determine where all their money was going. What they saw horrified them.

They saw, 1.5 million times per day, a single doctor sitting down with a single patient, and – just between the two of them – deciding which extraordinarily expensive healthcare resources they would like to consume for the possible benefit of that individual patient. And, once reaching a decision, the doctor then would calmly scribble something on a prescription pad, or write a line in a hospital chart, and instantaneously all the resources of the massive, mindless healthcare system would heave into action, bending to the doctor’s will. And, seeing all this, the HMO executives and the government policymakers, separately but with equal fervor, each sat up and cried, “My God! They’re spending MY money!”

Something had to be done to get these doctors – the engines of all healthcare spending – under control. The strategies the insurance industry and the government used to control the behavior of doctors were quite different from one another – but both were effective. And as a result of these efforts, as we enter the era of Obamacare, the Central Authority will find the medical profession to be quite compliant and docile to its needs. To be sure there will be a bit of whining from physicians, and expressions of dissatisfaction and similarly ineffectual complaints, but these are easily dealt with. Doctors will not pose any real obstacle to Obamacare. They have been fully domesticated.

What The HMOs Did

HMO executives, being businessmen, set out to control doctors the only way they knew how – by attacking them in their wallets. Promise them riches beyond belief (or at least the wherewithal to make a decent living) if their behavior pleases you, but make sure they know that destitution awaits if they should displease you.

It did not take long for these smart business experts to figure out that to control the physicians’ wallets, you need simply take control of the flow of their patients.

Doctors in the early 1990s were used to getting their patients by the hard work of establishing their professional reputation, and relying on referrals from appreciative colleagues and by word of mouth. When the HMOs suddenly moved in, before physicians ever realized what was happening, that model disappeared virtually overnight.

Under the HMOs, insurance products no longer covered patients for whichever doctor they chose to see. Instead, in exchange for reduced premiums, their health insurance covered them only if they received their care from doctors who had been admitted to the HMO’s “physician panel.” Doctors all over the land quickly learned that patients they had cared for, sacrificed for, and worried over for years, and who (they thought) regarded them as part of their family, dropped them like a hot potato the moment they had the opportunity to choose a health insurance plan which was marginally cheaper, but which did not include them on its panel of physicians.

And it quickly dawned on doctors that, if they were going to maintain themselves in anything like the style to which they had become accustomed, they needed to get on every panel of every HMO that served their area. It was the only way to allow all their patients to continue to have access to them.

But once doctors were “captive,” (i.e., completely dependent upon their position on HMO panels for their livelihood), the game was was all over except the shouting. Physicians were cooked virtually before they knew what had happened to them.

At first, the HMOs were happy to have all physicians on their panels. This is because at first, the HMOs’ major priority was signing up just as many patients as they could – so including as many doctors as possible on their physician panels was an important aspect of recruiting subscribers.

But once this initial sign-up phase was over, the HMO executives no longer had use for all those doctors on their panels. Some were expendable. They let their doctors know it by terminating a few of them from time to time, apparently arbitrarily and without explanation – leaving the surviving doctors to guess the reason for it.

But since doctors are generally pretty smart, they were good at guessing the heart’s desire of the HMO executives.

It should be obvious that HMO executives would be anxious to get rid of doctors who spent a lot of their money, and retain the ones who did not. To distinguish between the two, HMOs set up “performance standards.” These standards, following the usual fiction, were billed as “quality” measures, but in general they actually seemed aimed at determining how much money various doctors were spending. Often, something like 10% of the physician’s annual reimbursement was held back as a “withhold,” payable to the doctors only if they met the published performance standards. Doctors who failed to meet performance standards not only did not get the rest of the money they had earned, but worse, were in danger of being cut loose from the HMO’s panel altogether, thus jeopardizing their livelihood.

This system quickly got physicians into the right frame of mind, and focused them quite nicely on whose interests they actually needed to keep at the forefront when they were making clinical decisions for their patients. It also prepared them to put up with more of the HMOs’ new management techniques.

Once each quarter, some men in dark suits would come to visit. They were “practice consultants,” and they were there to help. The practice consultants would use data the HMO had accumulated to assist the doctor in re-titrating his or her decision-making processes, in order to guarantee they were practicing medicine to everyone’s best advantage.

For instance, the practice consultants might say, “Dr. Smith, we notice that the patients in your practice cost our HMO an average of $342 each last quarter. This is unfortunately higher than the target we set for you of $315. We are distressed to have to mention that this puts you in some jeopardy regarding your “withhold,” and possibly of further action as well. But we are here to help. Let’s see how we can do that. Ah! Here’s something. Notice that you sent four patients last quarter to Cardiologist Jones, and Cardiologist Jones spent an average of $4300 doing whatever it is he did to evaluate and treat those patients. And you sent three patients to Cardiologist Wilson. And she only spent $2100 per patient. That is quite a difference, isn’t it, Dr. Smith? Hmm. Well, Dr. Smith, you know we would never tell you how to practice medicine – you’re the doctor! – but we thought you might find this cost differential interesting, as you decide where to refer your next patient.”

And while Cardiologist Jones and Cardiologist Wilson have entirely different areas of expertise, which Dr. Smith had formerly taken into account when deciding where to refer his patients, his new-found wisdom now dictates that it might be best if Cardiologist Wilson would become his new go-to cardiologist for all cardiac-related problems his patients might have. And Cardiologist Jones, when he notices a marked decrease in his referrals during the following quarter (since the men in suits visited lots of primary care offices in the area), will probably never know that he (as well as many patients) has become the victim of trickle-down covert rationing.

Another common methodology to improve the quality of care, in a manner that would save the HMO money, was to institute Pay for Perfomance programs. P for P initiatives provided primary care doctors with a checklist of 10 or 12 items that they would need to accomplish during each patient visit, if they would like to be paid. The checklist consisted mainly of things that everyone would have to agree are useful – things like checking and discussing blood pressure and cholesterol levels, and reviewing their dietary and exercise habits, smoking habits, &c. There would be nothing on the list that anyone could possibly object to. However, the lists were so constructed that it was impossible to complete them in less than 10 minutes or so. And that, too, would have been fine, except that in order to meet the patient load the HMOs required, doctors needed to see a patient every 12.5 minutes. And here you can begin to see the true brilliance of P for P.

P for P saw to it that the routine health maintenance stuff got done each and every visit. But P for P also saw to it that there would be little or no time for “ad libbing,” that is, for the patient to bring up new, potentially-expensive medical issues, or, if the patient managed to blurt something out, for the doctor to adequately assess it. At best, the patient would have to reschedule another visit, for perhaps a month or two later. By that time the problem might be resolved, or might have run its course. Or perhaps something else might happen to make the new medical issue, well, moot.

Severely limiting the doctor’s face time with patients, then carefully scripting, down to the minute, what is to take place during that limited time, creates an opportunity for real cost savings. This is the kind of benefit you get when you apply modern management techniques to a trade whose processes really hadn’t changed much since the Middle Ages.

Through these and other creative applications of business principles, in a matter of a couple of years the HMOs owned doctors, lock, stock and barrel. And to make it official, in the middle years of the 1990s (once doctors realized that being retained on HMO physician panels was a matter of life or death), HMO executives invented the “gag clause,” which they added to the doctors’ contracts when it came time for renewal. Gag clauses said something like this:

“The physician agrees not to take any action or make any communication or representation to patients or patients’ families, potential patients or potential patients’ families, employers, unions, the media, or the public that would tend to undermine, disparage, or otherwise criticize the healthcare coverage provided by [insert name of HMO here]. The physician further agrees to keep all proprietary information such as payment rates, reimbursement procedures, utilization-review procedures, or other processes and procedures related to billing, collection, or review, strictly confidential.”

Agreeing to keep such potentially vital information from their patients – information which might materially affect a patient’s decisions regarding his or her own healthcare – was of course a direct violation of medical ethics. Medical ethics, however, had long since gone by the boards. The moment they had acceded to “performance standards” that enticed them to withhold medical services – and also acceded to sundry other coercions which HMOs had dreamt up to make sure physicians answered to their needs instead of their patients’ – doctors had already become deeply complicit in bedside healthcare rationing, essentially, rationing by omission. The gag clauses just put it in writing. So, apparently believing they had no good options, and already having lost the professional integrity which they ought to have held dear, doctors signed contracts by the thousands with gag clauses in them.

After a few years the gag clauses were noticed by “patient advocates” and other species of troublemakers, and strong objections were raised to them. The objections were based on the notion that it’s not nice for HMOs to gag physicians from telling their patients things that they ought to know. So, gag clauses were finally removed from HMO contracts.

But the damage had been done; the essential point had been made. When HMOs had asked doctors for a declaration of fealty that superceded all pre-existing professional obligations, doctors gave it, and with barely a protest. Whether or not gag clauses continued to appear in the contracts was immaterial. Once a dog learns to heel you can get rid of the leash, and the dog still heals just fine.

What The Government Did

The defeat of the Clintons’ healthcare reform plan certainly set the government policymakers back. The Progressives’ plans for a government takeover of the healthcare system, all in one grand campaign, had been foiled. But Progressives always take the long view, and they were undismayed. They quickly regrouped, and began stealthily instituting as much of the defunct Clinton plan as they could, piece by piece, through various laws, budgets, executive fiats and riders on Congressional bills.

Like the health insurance companies, Progressives in the government also recognized that it was imperative for them to gain control of the behavior of doctors. Hillary probably had said it best: “The problem with our healthcare system is too many greedy doctors using too much expensive technology.” So the name of the game was controlling the greedy doctors, the decision-makers on the ground.

The methodology they employed to do so was fundamentally different from the methods used by HMOs. HMOs naturally concentrated on controlling physicians by the power of economics, through simple threats to their livelihood. But as Ayn Rand taught us so many years ago, the power of the government over its citizens derives from regulatory (ultimately, prosecutorial) intimidation.

There is no need for the government to go all Robespierre, however. Actual bloodshed can be minimized. The Feds can usually get the effect they need by sending in the regulators – always backed by the threat of legal violence, of course – to harass a few people, ideally for what appear to be entirely arbitrary reasons. This action always proves wonderfully intimidating to the rest, and is an effective way to focus people’s attention on that which you would like them to focus.

I will be devoting much of the rest of this book to the abuse of government power with regard to healthcare, and don’t want to get too distracted by that topic here. So I will simply describe a single foray the government made in the time frame we’re talking about – the late 1990s – aimed at teaching doctors what is expected of them, and letting them know who they really work for. By doing so, I hope to make a bit more understandable why the medical profession made a complete and disastrous capitulation in 2002.

The E&M Guidelines

During the second Clinton administration, a new set of tortuous documentation requirements were imposed on American physicians by our government. The E&M guidelines, for “evaluation and management,” apply to the documentation that physicians are obligated to provide in support of their Medicare billing. The E&M guidelines, first instituted in 1995 and revised in 1997, were part of the Clintons’ great healthcare fraud reduction initiative. Ostensibly, the new, very strict documentation requirements would reduce the opportunity for fraudulent billing.

However, the E&M guidelines were, from the very beginning, a Regulatory Speed Trap of the first order. Regulatory Speed Traps work like this:

1) Over a long period of time, regulators will promulgate a confusing array of disparate, vague, poorly worded, obscure and mutually incompatible rules, regulations and guidelines.
2) Individuals or companies which need to provide their products or services despite such hard-to-interpret regulations, will necessarily render their own interpretations (usually with the assistance of attorneys, consultants, and the regulators themselves), and will act according to those interpretations.
3) By their apparent concurrence with, or at least by their failure to object to, such interpretations of the rules, the regulators over time allow de facto standards of behavior to become established.
4) When it becomes to their advantage, the regulators will reinterpret the ambiguous regulations in such a way that the formerly tolerated de facto standards suddenly become grievous violations.
5) Regulators aggressively, but selectively and arbitrarily, prosecute newly felonious providers of those products or services.

The E&M guidelines are so convoluted as to be unworkable in any objective way. Through their utter opacity and complexity, only partially reflected by the 48 pages of dense prose that comprise them, the E&M rules (for “rules” is what they are) in fact greatly magnify the doctor’s opportunity for making inadvertent documentation errors, and thus of producing a “fraudulent” bill.

Under the E&M rules, writing what used to be a simple progress note in a patient’s chart requires the physician to assemble a complicated set of “elements” from Column A and Column B, as from a Chinese menu, for each of four subject areas of the patient “encounter” – the history, the physical exam, the assessment, and the plan. Then somehow, one must translate the result (which reads like – and often is – a computer-generated form letter) into a billing code.

Despite the morass of confusion caused by the E&M guidelines, any failure to follow them to the complete satisfaction of the Central Authority is a priori evidence of Medicare fraud or abuse. And therefore, the E&M guidelines assure that with each and every patient encounter, the thing that will be foremost in the physician’s mind is not the needs of the patient, but how to fill out the complex documentation in such a way as to avoid the appearance of committing a crime.

In practical terms, this means filling out the documentation so as to blend in with the masses, so that one’s records will be passed over by the sharp eyes of the greedy forensic accountants (who are paid by commission for detecting instances of substandard documentation, now construed as “fraud or abuse”), or even worse, by the sophisticated software now being deployed to detect ever-more nuanced gradations of “outliers.”

The bottom line is that virtually any doctor who uses the E&M guidelines, and virtually all doctors do, are always guilty of healthcare fraud. It’s just a matter of who gets investigated.

Even if this documentation mess resulted in a straightforward means of determining proper billing codes (which it does not), it results in a medical progress note that is virtually undecipherable. This means that when another doctor (or even the same doctor on a different day) tries to read the progress notes to figure out what’s been going on with the patient (which used to be the point of medical progress notes, before they became primarily a vehicle for auditors), they cannot. Compliance with the E&M guidelines often actively confounds patient care.

The E&M guidelines were recognized immediately by doctors as a complete abomination. Indeed, the great hue and cry from angry physicians caused the Secretary of HHS to appoint a special commission to review the E&M guidelines in 2001. The special commission reviewed the evidence and concluded that indeed, the E&M guidelines were entirely counterproductive to patient care. In June, 2002 the commission voted (20-1) to recommend abandoning them altogether.

But HHS declined to follow the recommendations of its own commission, instead leaving the E&M guidelines in place “temporarily,” and vaguely promising to revise them “soon” in order to make them less dangerous to patient care – knowing full well that the saurian lassitude of the bureaucracy would easily outlast the fleeting indignation of the medical community. And, as the bureaucrats predicted, there has not been any substantial noise from doctors about revising these guidelines for several years now. A whole new generation of doctors has been weaned on them, and does not know any better. The E&M guidelines have become as permanent as the IRS.

(This simple example ought to teach us how difficult it will be to roll-back any of our new healthcare reforms in the future, even ones that are officially deemed to be harmful.)

Not only has HHS failed to take (or, alternately, succeeded in not taking) the steps it promised to take to revise the E&M guidelines, they also have vigorously pressed forward with audits and prosecutions for the federal crime of healthcare fraud, based on physicians’ inadequate compliance with them.

In a well-publicized test case, instituted by the government shortly after the E&M guidelines were first implemented – apparently to let doctors know they were deadly serious about this – criminal charges were brought against a Montana family doctor, alleging medical coding violations. But the government’s own expert concluded that the prosecutors were holding the doctor to standards that were not yet in force at the time the bills were submitted, and that the government was applying its new rules retroactively. The expert was so disturbed by his findings that he even offered to switch sides and testify for the defendant. Unfazed, the government simply switched tactics, dropping criminal charges and instead initiating a civil suit against the doctor for $37 million – which is way more money than the average family doctor has on hand. The defendant, breaking from the usual pattern, fought the government instead of settling. And after a long, long time, she was finally cleared – but not before she had spent over $300,000 out-of-pocket in legal fees.* Nonetheless the Feds had made their point to the physician community, loud and clear: We intend to vigorously prosecute physicians for violation of these guidelines, whatever you may think of them, and whether we’re acting fairly or unfairly.

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*Paul Rosenzweig, Senior Legal Research Fellow, The Heritage Foundation, testimony on “Sentencing and Enforcement of White Collar Crimes,” Subcommittee on Crime and Drugs, Committee on the Judiciary, U.S. Senate, June 19, 2002, p. 9.
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Every doctor in America suddenly realized just how serious the Feds were about enforcing these ridiculous, clinically counterproductive coding guidelines.

Frightened by the prospect of prosecution for Medicare fraud, many doctors adopted the tact of systematically “downcoding” their Medicare bills, figuring that they are unlikely to be brought up on fraud charges for underbilling. And normally one might think that the Feds would consider this a victory, since it would result in their keeping money they should be paying out. But the Feds’ purpose here was only secondarily to save money. Their primary purpose was intimidation – showing those doctors who’s the boss. So Medicare let doctors know that systematic downcoding may also be considered a fraudulent act, since it shows contempt for the law, and doctors suspected of doing so will be audited.

Because of the clear and present danger the E&M guidelines pose to every doctor, a multi-million dollar industry has sprung up to help physicians better comply with these coding guidelines. Physicians across the country are spending the time and money allotted for their continuing medical education learning to become better accountants, rather than better physicians.

Which brings me to a very interesting point about the E&M guidelines: It is not actually possible to follow the E&M guidelines accurately.

It turns out that coding correctly is impossible. This was proven in a formal study conducted a few years after these guidelines were instituted. A group of government-sanctioned coders took a sample of typical doctor-patient visits, coded them according to the E&M guidelines – and they all got different answers. If government-approved coders, using the government’s own guidelines, cannot figure out how to arrive at what prosecutors will always insist is the singular correct answer, then what hope do mere doctors have? (The results of this study were published in the Annals of Emergency Medicine in September, 2002.)

Obviously, then, since there is no “right” way to comply with the coding rules, all a doctor needs in order to become guilty of abusive billing, if not outright fraud, is for the fickle finger of the Feds to point his way, and initiate an audit. Violations are virtually guaranteed to be found during any audit. So what we’ve got here is a well-documented, openly acknowledged, published-in-peer-reviewed-literature Regulatory Speed Trap.

Here’s what happens to doctors who are suspected of committing coding abuse (which is to say, to any doctors who are visited by Federal auditors):

1) A small sample of their patients’ charts is audited.
2) The coding error rate (which is determined by the auditor) will be calculated for that sample, then that error rate is applied by extrapolation to every Medicare bill the doctor has submitted for the past 6 years (the statute of limitations).
3) For each violation in coding the doctor is estimated to have committed during those six years, the doctor must pay: a) triple the amount of restitution, plus b) $11,000.00 per coding violation.

It is not unusual for audited doctors to be hit with hundreds if not thousands of coding violations over a 6-year period, and the fines will almost always amount to well over 7 figures, if not 8. However, if it’s just abuse the doctor has allegedly committed and not fraud, often the Feds may offer a settlement deal in the low 7 figures.

And here’s what happens if the coding violations are judged by the auditor to be fraudulent (which involves the determination of intent, and therefore, unfortunately, often appears a somewhat arbitrary designation):

1) All the above.
2) Jail

And, as we have seen, if you somehow escape being convicted on criminal charges, the government still has the prerogative to come back at you with civil charges, where the burden of proof is lower.

Any doctor who has come anywhere near such a process wishes fervently for the good old days, when it was only the HMOs making your life miserable. Yes, HMO executives can be nasty sons of guns. But they can only decide not to pay you what you are owed, or perhaps throw you off a panel. They cannot decide to wipe out your life savings, take your professional license, or put you in jail.

The Feds know that the E&M guidelines are harmful to patient care. Their own commission came to that very conclusion in 2002. The Feds know that failing to comply perfectly with the E&M guidelines in each and every case does not really indicate fraud and/or abuse, but is the necessary outcome when you institute a complex set of rules that not even the government’s own approved coders can interpret.

That the Feds continue to impose the E&M guidelines on physicians, despite the harm that they know this causes, tells us something very important about their underlying motives. When you are in the business of covertly rationing healthcare, controlling the behavior of physicians – getting them under your thrall – is Job One. And as George Orwell observed for us, when you want to control the behavior of some people, a critical step is to control the mode, the rules, and even the very language of communication.

That physicians continue to comply with such oppressions, despite the harm they know this causes, and (with notable exceptions) without serious complaint, tells us something important about them, too.

What The Doctors Did

Despite the intense, unrelenting attacks against them by the health insurers and the government, it remains striking how completely physicians capitulated to the pressure and abandoned their professional responsibilities, and how quickly they did it. And in doing so, physicians threw away two thousand years of tradition, jurisprudence and ethics.

Medicine was one of the three original professions, the other two being the clergy and attorneys. Today, anyone working in any area of endeavor, as long as they have sufficient expertise that that somebody is willing to pay them to do it, calls themselves a professional. So we have professional hairdressers, chefs, sanitation workers, hit-men, and athletes. And by this definition, I suppose doctors can still call themselves by that name as well.

But by the original definition of the word, they gave up that privilege in 2002.

Originally, the term “professional” was defined not merely by somebody’s knowledge or expertise, but rather, by the special quality of the fiduciary relationship they had with their clients – a relationship marked by an absolute duty to place the needs of the client ahead of the professional’s own personal interests, or the interests of any third party.

In the case of physicians, this relationship is called the doctor-patient relationship.

To really understand what the doctor-patient relationship is supposed to be like, it is quite sad that today it might be necessary to have a look at a different profession, one whose members are often despised by physicians, but one that has managed to hang on to its professional integrity to this day – namely, the lawyers.

Say you are arrested for robbing a bank. Say the arrest was not unexpected, since you actually did rob a bank. Say that while you didn’t actually mean to do it, you shot a teller in the process, and the teller subsequently died. And finally, say you were caught red-handed.

Given this series of unfortunate circumstances, what rights can you expect?

It turns out that under the law, you have many rights. Despite the overwhelming evidence against you (the surveillance tapes, the eyewitnesses, the being-caught-at-the-scene-with-the-smoking-gun-in-your-hand, &c.), you have the right to a fair trial; you have a right to be considered innocent until a jury of your peers declares you guilty; and you will have the right of appeal (assuming you won’t like the verdict). But more importantly than anything else, you have a right to counsel, to an advocate, a knowledgeable professional who is obligated to defend you to the limits of her abilities, and to fully protect all of your interests under the law.

Society recognizes that the legal system is a morass of rules and regulations that ordinary citizens cannot hope to navigate on their own. Society acknowledges the need for any citizen caught up in the complex legal system to have a personal advocate who will hold that citizen’s interests above all others. Even when the accused party is as obviously guilty and as deserving of punishment as you obviously are, most of us would shudder to think of the abuses that would occur if people (even the likes of you) had to face a hostile legal system without the guidance of their personal attorney.

When you are sick, you are no more capable of navigating the complex healthcare system than is the accused felon of navigating the complex legal system, and you are no less in peril if you run afoul of that system. And your need of a personal advocate, a professional whose job is to protect your interests against the conflicting aims of a hostile healthcare system, is no less acute.

When you are sick, you should be entitled to at least the same protections as when you rob a bank. And this is what the doctor-patient relationship is actually for.

In recent years the “doctor-patient relationship” has been taken in hand by certain “experts,” who (in the way of teaching doctors to work more “effectively”), have reduced the whole thing to a series of tricks from the interpersonal-relationship trade. These may include looking your patients in the eye; displaying sympathetic expressions (practicing with the use of mirrors may be necessary); nodding as they speak (with all the sincerity of a Dr. Welby bobble-head); freely showing them your emotions (even if you have to manufacture them); remembering their birthdays and childrens’ names (yet another benefit of computerized medical records), and similar strategies for convincing patients that they have your full attention, and that nothing can be more important to you at this moment than their welfare. Such techniques are designed to get your patient’s thinking to the right place – which is to say, to get them to understand without too much fuss or muss why the efficient course of evaluation and treatment you have selected for them (with the kind assistance of various government expert panels) is the correct one.

I think it’s the same training they give annuity salespersons.

Obviously, none of that has anything to do with the real doctor-patient relationship. The real doctor-patient relationship is a sacred covenant, one which is formed when a patient goes to a doctor for help, and the doctor agrees to give that help. Under that covenant, the patient agrees to take the physician into his confidence, and to reveal to her even the most secret and intimate information related to his health. The physician, in turn, agrees to honor that trust, and to become the patient’s advocate in all matters related to his health, placing his personal best interest above all other considerations. This strong relationship of mutual trust is what patients have always expected, what most doctors have striven for, and what everyone else (medical ethicists, professional societies, and those who enforce the law of the land) have traditionally agreed – and even demanded – must be the standard.

And for over 2000 years, the precepts of medical ethics were aimed squarely at guaranteeing the integrity of that relationship. Fundamentally, these ethical precepts held physicians to the high standards of behavior embodied in the classic doctor-patient relationship, and further, gained physicians admittance to the small society of “professionals.”

Unfortunately, by the late 1990s, perceptive physicians noticed a big problem. Namely, thanks to the various perfidies being visited upon them by HMOs and the government, doctors could no longer act in accordance with their fundamental ethical precepts. They were being pressured to place the vital interests of the insurers and the government ahead of the vital interests of their patients. They were coerced into violating their sacred duties under the doctor-patient relationship. And, as we have seen, doctors gave in to that pressure.

Soon, influential thought leaders in medicine and medical ethics expressed alarm at what was going on. Clearly, they said, something needed to be done about it. And they decided to act.

But the action which the medical thought leaders finally took was not to fight back against the pressures being placed on physicians to violate their most fundamental ethical principles. Instead, the medical thought leaders launched an effort to change the precepts of medical ethics, to make medical ethics comport with the actual behaviors which modern doctors were being coerced to adopt.

Changing millenia-old ethical precepts proved to be surprisingly easy. This is because it is surprisingly easy today to find respected ethicists who will sanction just about any nefarious activity you can think of, as long as that activity furthers some higher cause which is to their liking. These ethicists are called utilitarians.

The solution to the physicians’ ethical dilemma was initially proposed as early as 1998, in an article by Hall and Berenson in the Annals of Internal Medicine (volume 128, p 395) which stated: “It is untenable for the medical profession to continue asserting an idealistic ethic that is contradicted so openly in clinical practice. . .We propose that devotion to the best medical interests of each individual patient be replaced with an ethic of devotion to the best medical interests of the group. . .”

This influential article, among other things, led to the formation of a commission to formally study the issue (the issue, again, being that if it becomes difficult to follow ethical precepts, then one ought to go ahead and change them).

This effort was led by the American College of Physicians, the main professional organization of experts in internal medicine, and this organization was quickly joined by virtually every other major physician organization in the world. Physician-leaders completed their ethical overhaul of the medical profession impressively quickly, and published it in 2002. They called it “Medical Professionalism in the New Millennium: A Physician Charter. “(Annals of Internal Medicine, February 5, 2002). With its publication a two-thousand-year tradtion of medical ethics was ended. It is the suicide note of the medical profession.

The innovation of the Millennialists was to proclaim a new ethical precept: the precept of Social Justice. The precept of Social Justice charges physicians with effecting “the fair distribution of healthcare resources.” That is, it renders it ethical for doctors to decide which patients ought to get those limited resources, and which ought not to get them; it specifically and directly justifies covert bedside rationing by physicians.

The reason this new ethical precept was deemed necessary is explicitly because doctors cannot any longer adhere to the old ones. (“It is untenable. . .to continue asserting an idealistic ethic,” according to Hall and Berenson. “Indeed, the medical profession must contend with complicated political, legal, and market forces,” according to the Millennialists themselves.

Ostensibly, the precept of Social Justice gives doctors who are too introspective (admittedly, not a big problem with many of us) an out when they find themselves having to place the interests of payers ahead of the interests of their patients by, say, failing to mention certain medical options that might be available. “Sure, I’m violating classic ethical principles,” they can now tell themselves, “but I’ve got to do that to honor this new one.”

The bottom line is that, having been coerced by the the insurers and the government (both of which control the doctors’ professional viability, and one of which also controls their status regarding incarceration vs freedom) to place the payers’ needs ahead of the needs of patients, doctors found themselves in utter violation of their fundamental ethical precepts. The proper response of physicians (and their professional organizations such as the ACP) would have been to reassert those ethical obligations, to push back against the payers, and enlist the cooperation of their patients (who, after all, have a particularly vital interest in the matter) in doing so. Instead, they have taken a path of lesser resistance, re-defining medical ethics to comport with their new, coerced behavior.

What Does This “New Ethics” Do To the Doctor-Patient Relationship?

The addition of the precept of Social Justice to the ethical obligations of the physician renders the classic doctor-patient relationship inoperative.

The New Ethics breaks the covenant from the outset. It renders “ethical” the divided loyalty of the physician. Today, when patients go to a doctor for medical advice, they do not know – and cannot know – whether that advice is being given to advance primarily the patient’s own well-being, or the well-being of the society that desires a “fair distribution of healthcare resources.”

With the formal adoption of this New Ethics, patients essentially have been cut loose, and set adrift to fend for themselves in an increasingly hostile healthcare system, without being able to rely on the kind of personal advocate they’ve been conditioned to expect, the same kind of advocate an accused murderer is still granted without question or hesitation. What’s worse, nobody has told patients that they have been abandoned in this way. They think their doctor is still working for them.

Less obvious, but no less profound, are the consequences this New Ethics has on the profession of medicine. Abandoning their primary obligation to the individual patient means that physicians have committed the “original sin.” They have abdicated their traditional, ethical, and legal roles as patient advocates; they have broken a sacred pact. They have fully compromised themselves as professionals; indeed they have become professionals in name only, and not in fact. And as a result, to their utter frustration, they find themselves standing naked before their enemies, the very insurers and regulators who forced them to abdicate their sacred obligation in the first place.

And it is in this utterly subservient position that we find our doctors – our protectors, our advocates – when Obamacare comes to town.