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 Dr. House and the Great American Experiment [15:11m]: Play Now | Play in Popup | Download (144)

DrRich’s Independence Day Address to his Loyal Readers:

DrRich has always found it fascinating that the television show, “House MD” has remained so popular for so long. After all, Gregory House embodies the polar opposite of what we all say we want in a modern physician. House may be brilliant, but he’s antisocial, arrogant, sloppy and rude. He holds his patients in contempt, and considers them to be mentally deficient, or prevaricators, or both. He will take any action he deems necessary, however illegal or immoral it may be, to make sure his patients get whatever medical interventions he has determined they need, whether they (or anyone else) likes it or not.

And when he does what he does, the individual autonomy of his patients never, ever enters his mind.

Given that House extravagantly violates his patients’ autonomy whenever he can find any excuse to do so, joyfully proclaiming his great contempt for them and their individual rights, then why is his story so popular in America and around the world?

DrRich believes that the answer to this question ought to remind us of the fundamentally precarious nature of individual autonomy within our healthcare system, and within our culture.

Individual Autonomy in Medicine

Maintaining the autonomy of the individual patient has become the primary principle of medical ethics. And medical paternalism, whereby the physician knows best and should rightly make the important medical decisions for his or her patient, is supposed to be a thing of the past.

It has been formally agreed, by medical ethicists all over the world, that patients have a nearly absolute right to determine their own medical destiny. In particular, unless the patient is incapacitated, the doctor (after taking every step necessary to inform the patient of all the available options, and the potential risks and benefits of each one) must defer to the final decision of the patient – even if the doctor strongly disagrees with that decision. Hence, the kind of behavior which is the modus operandi of Dr. House should be universally castigated.

The notion that the patient’s autonomy is and ought to be the predominant principle of medical ethics, of course, is entirely consistent with the Enlightenment ideal of individual rights. This ideal first developed in Europe nearly 500 years ago, but had trouble taking root there, and really only flowered when Europeans first came to America and had the opportunity to put it to work in an isolated location, where rigid social structures were not already in place. The development of this ideal culminated with America’s Declaration of Independence, in which our founders declared individual autonomy (life, liberty and the pursuit of happiness) to be an “inalienable” right granted by the Creator, and thus predating and taking precedence over any government created by mankind. And since that time the primacy of the individual in American culture has, more or less, remained our chief operating principle. Individual autonomy – or to put it in more familiar terms, individual freedom – is the foundational principle of our culture, and it is one that is perpetually worth fighting and dying to defend.

So the idea that the autonomy of the individual ought rightly to predominate when it comes to making medical decisions is simply a natural extension of the prime American ideal. It is obvious, most think, that this ought to be the governing principle of medical ethics.

Dr. House: The Champion of Beneficence

But unfortunately, it’s not that easy. There’s another principle of medical ethics that has an even longer history than that of autonomy – the principle of beneficence. Beneficence dictates that the physician must always act to maximize the benefit – and minimize the harm – to the patient. Beneficence recognizes that the physician is the holder of great and special knowledge that is not easily duplicated, and therefore has a special obligation to use that knowledge – always and without exception – to do what he knows is best for the patient. Dr. House is a proponent of the principle of beneficence (though he is most caustic and abrasive about expressing it). DrRich believes House is popular at least partly because the benefits that can accrue to a patient through the principle of beneficence – that is, through medical paternalism – are plain for all to see.

Obviously, as “House MD” nicely illustrates, the principles of beneficence and of individual autonomy will sometimes be in conflict.  When two worthwhile and legitimate ethical principles are found to be in conflict, that is called an ethical dilemma. Ethical dilemmas are often resolved either by consensus or by force. In our culture, this dilemma has been resolved (for now) by consensus. The world community has deemed individual autonomy to predominate over beneficence in making medical decisions.

DrRich’s point here is that Dr. House (the champion of beneficence) is not absolutely wrong. Indeed, he espouses a time-honored precept of medical ethics, which until quite recently was THE precept of medical ethics. There is much to be said for beneficence. Making the “right” medical decision often requires having deep and sophisticated knowledge about the options, knowledge which is often beyond the reach of many patients. And even sophisticated patients who are well and truly medically literate will often become lost when they are ill, distraught and afraid, and their capacity to make difficult decisions is diminished. Perhaps, some (like House) would say, their autonomy ought not be their chief concern at such times. Indeed, one could argue that in a perfect world, where the doctor has nearly perfect knowledge and a nearly perfect appreciation of what is best for the patient, beneficence should take precedence over autonomy.

Why Autonomy Predominates

In this light it is instructive to consider just how and why autonomy came to be declared, by universal consensus, the predominant principle of medical ethics. It happened after World War II, as a direct result of the Nuremberg Tribunal. During that Tribunal the trials against Nazi doctors revealed heinous behavior – generally involving medical “research” on Jewish prisoners – that exceeded all bounds of civilized activity. It became evident that under some circumstances (circumstances which were extreme under the Nazis, but which are by no means unique in human history) individual patients could not rely on the beneficence of society, or the beneficence of the government, or even the beneficence of their own doctors to protect them from abuse at the hands of authority. Thus, the ethical precept which asks patients ultimately to rely on the beneficence of others was starkly revealed to be wholly inadequate; and indeed, invites horrific results. Thus the precept of individual autonomy won out not because it is so inherently superior, but by default.

Subsequently, the Nuremberg Code of medical ethics was drafted and formally adopted worldwide. The Nuremberg Code officially declared individual autonomy to be the predominant precept of medical ethics, and the precept of beneficence, while also important, was declared to be of secondary concern. Where a conflict occurs between these two ethical precepts, the patient’s autonomy is to win out.

Again, this declaration was not a positive statement about how honoring the autonomy of the individual represents the peak of human ethical behavior. Rather, it was fundamentally a negative statement: Under duress (the Nuremberg Code admits) societies (and their agents) often behave very badly, and ultimately only the individual himself can be relied upon to at least attempt to protect his or her own best interests.

House vs. Autonomy and the Great American Experiment

DrRich will take this one step further: when our founders made individual autonomy the organizing principle of a new nation, they were also making a negative statement.

From their observation of human history (and anyone who doubts that our founders were intimately familiar with the great breadth of human history should re-read the Federalist Papers), they found that individuals could not rely on any earthly authority to protect them, their life and limb, or their individual prerogatives. Mankind had tried every variety of authority – kings, clergy, heroes, philosophers and professors – and individuals were eventually trampled under by them all. In the spirit of the Enlightenment, and because everything else had been tried many times and had failed, our founders declared individual liberty to be the bedrock of our new culture.

There is an inherent problem with relying on individual autonomy as the chief ethical principle of medicine, namely, autonomous patients not infrequently make very bad decisions for themselves, and then they – and their loved ones, and sometimes society – have to pay the consequences. The same occurs, of course, when we rely on individual autonomy as the chief operating principle of our civil life. The capacity of individuals to fend for themselves – to succeed in our competitive culture – is not equal, and so the outcomes are decidedly unequal. Autonomous individuals often fail – either because of inherent personal limitations, bad decisions, or bad luck.

So whether we’re talking about medicine or society at large, despite our foundational principles we will always have the temptation to return to a posture of dependence – of relying on the beneficence of some authority, in the hope of achieving more overall security or fairness – at the sacrifice of our individual autonomy.

In DrRich’s estimation the popularity of “House MD” is entirely consistent with this very strong tendency. Indeed, he thinks, the writers are compelled to make Dr. House as unattractive a person as he is, just to temper our enthusiasm for an authority figure who always knows what is best for us and acts on that knowledge, come hell or high water. If a figure such as Dr. House was also a compelling personality and had a gift with words, he would become almost Messianic – far too dangerous a prospect for a television program.

Those of us who defend the principle of individual autonomy – and the economic system of capitalism that flows from it – all too often forget where it came from, and DrRich believes this is why it can be so difficult to defend. We – and our founders – did not adopt it as the peak of all human thought, but for the very practical reason that ceding ultimate authority to any other entity, sooner or later, guarantees tyranny. This was true in 1776, and after observing the numerous experiments in socialism we have seen around the world since that time, is even more true today.

Individual autonomy will always be a very imperfect organizing principle, both for healthcare and for society at large. Making it an acceptable principle takes perpetual hard work, to find ways of smoothing out the stark inequities that will always result, without ceding too much corrupting power to some central authority. This is the Great American Experiment.

Those of us who have the privilege of being Americans today, of all days, find ourselves greatly challenged. But earlier generations of Americans faced challenges that were every bit as difficult. If we continually remind ourselves what’s at stake, and that while our system is not perfect or even perfectable, it remains far better than any other system that has ever been tried, and that we can continue to improve on it without ceding our destiny – medical or civil – to a corruptible central authority, then perhaps we can keep that Great American Experiment going, and eventually hand it off intact to yet another generation, to face yet another generation’s challenges.

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Now, read the whole story.

DrRich explains it all in, Fixing American Healthcare – Wonkonians, Gekkonians and the Grand Unification Theory of Healthcare.

Now on Kindle!

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 Medicare Already Does It (Limiting Individual Prerogatives, Part 4) [12:33m]: Play Now | Play in Popup | Download (32)

Part 1 of Limiting Individual Prerogatives

Part 2 of Limiting Individual Prerogatives

Part 3 of Limiting Individual Prerogatives
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DrRich could go on and on about how our government is intent on restricting the right of individuals to spend their own money on their own healthcare, but (for now, at least) this will be the final post in this series. DrRich has made his point.

Even some of his critics, who have accused DrRich in the past of being overly paranoid on this topic, seem to have gotten it. Some who previously were quite vocal have remained suspiciously silent. Others have fallen back to quasi ad hominem accusations (suggesting, for instance, that DrRich must be a follower of Mr. Beck, with all the horrific connotations that condition entails). And then there is the esteemed Praveen (author of the excellent True Cost Blog), who conceded as follows: “Massachusetts’ attempt to ban direct pay is both unfortunate and unconstitutional. Perhaps you’re right, and the bureaucrats are sneakier than I think.”

So maybe DrRich should just declare victory and move on.

But it is important to make one final point, namely: the notion that our government is intent on limiting our individual healthcare prerogatives is far more than just one of DrRich’s theoretical constructs. Indeed, our government has been acting on this intent for over 15 years. The main case in point, of course, is Medicare.

It has always been recognized that every American citizen “is the proper guardian of his own health,” (Supreme Court Justice Joseph Story, 1873), and accordingly, has a natural right to employ his own individual resources to that end. Roe v. Wade, for instance, was a particularly explicit recognition that a woman has a fundamental right to purchase medical services which she determines to be necessary for her own well-being.

Indeed, when Medicare became law in 1965, Congress also explicitly recognized this right, stipulating that nothing in the new law “shall be construed to preclude [an individual] from purchasing or otherwise securing protection against the cost of any health services.” (DrRich reminds his readers once again that a bold, restrictive statement like this, appearing in legislation, generally heralds an outcome opposite to the statement itself.)

DrRich has already pointed out that under Hillarycare, private medical practice would have been nearly criminalized out of existence. So one ought to expect that the Clinton administration would view an individual right to purchase healthcare as a threat. And indeed, it did. But, as it happens, the erosion of the rights of Medicare “beneficiaries” began even before the Clinton administration. (And even again, DrRich must remind his readers that any universal healthcare plan, even under a Republican administration, will always tend to limit individual liberties.)

In 1991, Medicare administrators published a “carrier bulletin” warning physicians that direct-pay contracts between patients and doctors were strictly prohibited, unless the contract was initiated solely by the patient, and even then, payment rates must be set by Medicare, and further, if the patient later became dissatisfied with that (patient-initiated) contract, Medicare would severely (and retroactively) sanction the physician.

When physicians sued Medicare to prevent this odious new policy from being implemented (Stewart et al. v. Sullivan), the government took the position that it had, in fact, not made any new policy after all, arguing that stuff that shows up in its “carrier bulletin” doesn’t really count. But once this argument was successful in having the lawsuit thrown out in a summary judgment in 1992, Medicare then cynically turned around and immediately made that selfsame new policy “official,” by publishing it in their 1993 Medicare Carrier’s Manual.

But the Feds were still not satisfied. The new, restrictive policy technically still allowed private-pay contracts, as long as the patient initiated them. So the Clinton administration engineered an amendment to the Balanced Budget Act of 1997 – Section 4507 – which prohibited any self-pay contracts whatsoever between Medicare patients and their doctors for medical services which are covered under Medicare. Under Section 4507, which is still the law today, if a doctor provides even one self-pay medical service to a single Medicare patient, that doctor is punished by complete banishment from the Medicare program for at least two years.

The federal government was eventually challenged again in court over Section 4507, but that lawsuit was also thrown out in a summary judgment. The rationale the government offered to the court in justifying its restrictions on individuals’ prerogatives, however, is instructive: “…what you will have is a system whereby the rich can buy what they want and those many beneficiaries who are on fixed income will not be able to afford those services” (United Seniors Association et al. v. Shalala). So again, the interest of the collective (“social justice”) was invoked to justify a law which stifles an individual’s fundamental right to purchase medical services he or she determines to be necessary for his/her well-being.

In any case, since 1997 Medicare patients have been able to purchase Medicare-covered services for themselves ONLY if they obtain that service from a doctor who agrees to opt out of Medicare entirely. This severely limits a patient’s opportunity to self-pay for covered services. The fact that Medicare patients can still buy these medical services from direct-pay physicians, however, is one reason the government hates direct-pay practices, and wishes to stamp them out. More importantly, while some primary care physicians have indeed opted out of Medicare in order to establish direct-pay practices, this path is not a realistic option for medical specialists. So in practical terms, the only “covered services” available for self-pay by Medicare patients, on even a limited basis, are primary care services.

There are several legitimate reasons a Medicare patient might want to self-pay for a medical service that is covered by Medicare. If Medicare “covers” heart valve surgery, for instance, a patient might want to pay for a new, minimally-invasive surgical approach that is inadequately reimbursed by Medicare, rather than the big, open-heart surgery that Medicare reimburses fully. Or, one might want to self-pay for “covered” psychiatric care, or for treatment for a venereal disease, in order to keep embarrassing or harmful medical records out of government-controlled databases.

Furthermore, it is important to recognize that just because a healthcare service is “Medicare-covered” does not mean that it will be covered for a given patient. Whether a specific individual is covered is often determined by a “medical necessity” ruling, made by a bureaucrat. Section 4507 essentially precludes a patient’s ability to purchase a denied (but “covered”) medical service, no matter how badly they want it, or believe they need it.

One can argue, and with some merit, that at this juncture denials of medically necessary services by Medicare have been relatively judicious, and therefore that the “Section 4507 rule” has not had much of an actual impact. In fact, it is likely that most Medicare beneficiaries do not even know that this rule exists.

But while its impact might be relatively small so far, the Section 4507 rule has now been in place for 13 years – it is well-established. So, once Medicare begins reducing reimbursements to physicians and hospitals, to the point where they can no longer afford to offer certain services to Medicare patients (and Medicare has just recently begun doing so, specifically, for some cardiac imaging studies), those patients will be left in the cold. Services which are officially “covered” by Medicare, but which are reimbursed at such a low rate that they cannot actually be provided to them, will become unavailable even to Medicare patients who are willing and able to pay for those services.

DrRich’s main point, once again, is that our government has a deep and abiding need to limit our individual prerogatives when it comes to our healthcare, and has been acting on that need for a long time. The principle for these limitations on our individual liberties, the principle of social justice, has already been established, and has survived court challenges.

Extending these limitations on personal liberties to Obamacare, and broadening their usage, will not require any major changes in direction, or principles, or policy, but will merely require an expansion of already existent – and even “venerable” – rules, rules which have been an established part of Medicare for many years.

DrRich has expressed the idea that such restrictions by our government on such fundamental individual liberties are a very big deal indeed, and, in fact, signal an end to the Great American Experiment. His critics admonish him, however, that he makes too much of it, that, presumably, our government in its benign wisdom is just doing what’s best for us.

DrRich begs his readers to forgive him if he sees, in such a reply, even more evidence that the only nation in the history of mankind to be founded on the principles of individual freedom is well on the way to abandoning those exceptional principles, for the sake of the same, soothing-but-empty blandishments that have been offered, throughout human history, by well-meaning people who end up producing – or becoming – tyrants.

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 Breaking the Doctor-Patient Relationship (Limiting Individual Prerogatives, Part 3) [20:54m]: Play Now | Play in Popup | Download (14)

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Part 1 of Limiting Individual Prerogatives

Part 2 of Limiting Individual Prerogatives

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The thing about Progressives is that the characteristic which makes them most endearing (and, which makes them most attractive to the unaware), is the very characteristic which makes them the most dangerous.

Fundamentally, Progressives believe in the perfectibility of mankind, or at least, of society. Indeed, they have discovered the very Program which will lead to the perfect society, a society which will maximize the good of the whole. Their vision is so compelling, and their ends so utterly and undeniably right, that it becomes legitimate for them to engage in whatever means are necessary to achieve it. (Indeed, for those who have been paying attention, “By Whatever Means Necessary” appears to have supplanted “Hope and Change” as the catchphrase of our current political leaders.)

The thing that always trips up Progressives (and their more revolutionary cousins, the Communists), is, of course, human nature. In order for their Program to work, it is necessary for each individual to behave in the prescribed fashion. And, at the end of the day, a substantial proportion of the population (any population) will insist on striving for their own individual benefit, rather than (as the Program requires) for the benefit of the collective.

The major competing system of societal organization – capitalism – recognizes this facet of human nature (i.e., the essential imperfectability of mankind, as manifested by the non-suppressibility of self-interest), and attempts to channel it into relatively productive and non-destructive (but still competitive and individually-directed) behaviors that limit the damage, and maximize the public good to a reasonable degree.

In contrast, Progressives attempt to change human nature to fit their inherently superior Program.

The fact that you cannot change human nature to fit the Program is what makes them dangerous. Their initial wide-eyed optimism that us folks will just “get it,” once they explain it to us, invariably evolves to an essential contempt for our limited intellectual capacity. This contempt justifies all manner of prevarications, to fool us into going along. Even in societies where the tyranny of correct-thinking has gone so far as to elicit the cooperation of the people at the point of a gun (rather than through the preferred methods of “education” or misdirection), the achievement of the predicted perfect society is invariably prevented by the recalcitrance of human nature. (The final realization that not even an all-powerful central authority can make people behave in the prescribed way always produces a nearly psychotic frustration that – in virtually every Communist country – has led to atrocities against various subsets of the recalcitrant people.)

DrRich does not believe there will ever be pogroms in the United States.

But this does not mean that the Progressives will always be kind and gentle as they attempt to achieve their goals. As DrRich sees it, in the U.S. the Progressives have clearly evolved to the “contempt for the masses” phase of their Program, a phase which justifies all manner of techniques – just this side of violence – to get us all to cooperate. Currently they are intent on demonizing their opponents as being racist, stupid, uneducated, selfish, overly dependent on outmoded supernatural beings, violent, and (of course) obese. This demonization is quite useful, since there is obviously no need to address any actual ideas put forth by such as these, even if they were capable of the feat of “ideas.”

Healthcare is, at present, the chief battleground in the war between Progressives vs. non-Progressives in the U.S., and the outcome of this battle will likely determine the success or failure of the entire Progressive Program. And the most fundamental (and emblematic) aspect of this battle is over what to do about the “doctor-patient relationship.”

The classic doctor-patient relationship was a celebration of the primacy of individual rights. And, for over 2000 years (at least since the advent of the Hippocratic Oath) guaranteeing the sanctity of that relationship was the basis of all medical ethics.

Until very recently doctors, patients, philosophers and ethicists recognized that, when you are sick, you are no more capable of navigating a complex and hostile healthcare system than are accused felons a complex and hostile legal system, and you are no less in peril if you run afoul of that system. And, just as the felon has a right to a personal advocate, a professional whose job is to protect his individual interests against the conflicting aims of the “system,” so does the patient. That is (quaint conventional wisdom held), when you are sick, you should be entitled to at least the same protections as when you rob a convenience store. And the doctor-patient relationship was supposed to guarantee you that right.

This is why, throughout the ages, the basic precepts of medical ethics were aimed at guaranteeing the sanctity of the doctor-patient relationship. Fundamentally, these ethical precepts required the physician to place the needs of his or her individual patient above all other considerations.

It should be clear to everyone that, under either our “old” healthcare system or the one that Obamacare promises us, this formulation of the doctor-patient relationship cannot be allowed to stand. Neither the insurance executives nor government officials can allow spending decisions – that is, decisions on how to spend their money – to be made by individual patients (and their personal advocates). For this reason, the classic doctor-patient relationship had to go.

And so, in 2002, official medical ethics was formally amended to require physicians (while still giving lip service to their obligation to individual patients) to strive for a “just distribution of healthcare resources.” That is, official medical ethics now makes it ethical for physicians to ration healthcare, covertly, at the bedside – and indeed, makes it unethical for them to fail to do so.

The New Ethics has been enthusiastically supported by medical ethicists worldwide (a field which now seems to be dominated by utilitarians), and worse, has been embraced by all the world’s major medical professional organizations. DrRich has not embraced the New Ethics (on the grounds that it places individual patients at great peril, and destroys the profession of medicine), and neither have many (possibly a majority) of older physicians. But it has been taught in medical schools around the world for over a decade, and in another decade it is likely that the vast majority of practicing physicians will accept as a matter of course that their primary obligation is to control healthcare costs, and only secondarily to try to meet the needs of their individual patients.

The plan, therefore, is for Obamacare to provide physicians with directives from expert panels on which medical services to supply to which patients and when, and for the New Ethics to allow physicians who go along with such directives to live with themselves. The feasibility of this plan depends entirely on physicians acceding to the program.

So, incentives are being put in place to “help” doctors cooperate. Quality measures will be implemented, with “quality” being defined as doctors doing what they’re told, and reimbursement will be tied to one’s quality rating. Possibly more persuasive will be the fact that the Feds can construe the failure to follow handed-down rules, regulations and guidelines, at any time, as a federal crime. (Even doctors who don’t mind being labeled as “substandard quality” – perhaps even considering the label as a badge of honor – will mind going to jail.)

But by whatever means necessary, the happiness of the government is to be the doctor’s first consideration, and not the happiness of their individual patients. The classic doctor-patient relationship is being terminated with extreme prejudice.

To see just how important it is to destroy the doctor-patient relationship, one merely has to observe what is happening to primary care doctors who have the audacity to leave the system, and set up a direct-pay medical practice.

Part of the problem, to be sure, was caused by these doctors themselves. The first few to do so unabashedly catered to rich patients, and to attract the rich, referred to themselves as “concierge” practitioners. This name (and its elitist connotations) have been forcibly affixed to all direct-pay practitioners, even as this style of practice has evolved into a much more democratic form. Today, more and more doctors are starting direct-pay practices (in which patients pay the doctors out of their own pockets) which are easily affordable to anyone who can afford a cell phone or cable TV contract.

While many direct-pay practices offer patients certain benefits they can usually not get from primary care doctors who remain in the approved system (such as phone and e-mail access, same-day appointments, appointments lasting as long as necessary instead of the allotted 7.5 minutes, etc.), the fundamental benefit, to both the patient and the doctor, is that it restores the classic doctor-patient relationship. The physician’s primary obligation is no longer to the 3rd-party overlord, or to the Progressive ideal of social justice, but to the patient.

And while critics (who abound) attack direct-pay practitioners for their elitism, laziness, and greed, their real issue is that direct-pay practitioners are acting as if their primary duty is to their individual patients, and not to the needs of society. This latter fault simply cannot be tolerated.

Having gained nearly complete control over the behavior of primary care practitioners, it is critical for Progressives – in making sure that practice by handed-down “guidelines” is not simply the only legal way to practice, but also the only ethical way to practice – to shut the door to any alternative forms of primary care. Direct-pay practitioners are a menace because they threaten to raise the expectations of both doctors and patients. Perhaps, doctors and patients might tell themselves, there really is a way to maintain individual autonomy within the healthcare system.

The attacks on direct-pay practitioners have followed the usual scheme Progressives follow when they discover a faction they need to suppress. First, they were ridiculed. “For a Retainer, Lavish Care by ‘Boutique Doctors,’” said a headline in the New York Times in 2005. Then, they were demonized, widely attacked for their elitism, laziness, greed, and lack of fundamental medical ethics. In this latter effort, it was not difficult to find fellow physicians – generally, from the medical organizations which promulgated the New Ethics – to lead the attacks. There are countless examples. DrRich will give just two.

Anthony DeMaria, then President of the American College of Cardiology, criticized the practice of direct-pay medicine in an article in the JACC in 2005, saying, “Personally, I do not mind if people acquire yachts or personal trainers if they have enough money, nor would I object if they secured a physician at their beck and call. However, unlike yachts, health care is not discretionary, and everyone should be entitled to the same quality.” As a matter of social justice, direct-pay physicians improve healthcare quality for only some patients, and so have no place in the healthcare system.

In an article in the New England Journal of Medicine, Troyen A. Brennan (M.D., J.D., and M.P.H., so we know we’re in trouble) really gets to the point. Referring to direct-pay practices as “luxury primary care,” he notes that “traditional medical ethics is rather poorly equipped to address issues related to luxury primary care.” That is, while “traditional” medical ethics always places the individual patient first, that kind of thinking is now outmoded. “(M)ost ethicists now agree that the financial structure of health care is an important subject for ethical consideration. Access to health care, in particular, is a salient ethical issue.” Direct-pay practitioners threaten (by their elitism and the limited size of their practices), to limit access to primary care, and thus are in fundamental violation of medical ethics.

The argument here, for those who missed it (advanced by fellow physicians no less), is that, of the two competing ethical precepts now established by New Medical Ethics (i.e., the physician’s obligation to the individual patient vs. the physician’s obligation to society), clear primacy is to be given to the physician’s obligation to society. Physicians must (like it or not) participate in covert bedside healthcare rationing. Physicians who take the only path remaining to them that allows them to make the individual patient their primary obligation are to be castigated as ethically deficient.

When ridicule and demonization fail to suppress their opposition, Progressive dogma indicates it’s time to resort to force. The first pass in this regard, of course, is always to render the opposition illegal. (Actual violence is reserved for criminals who persist in their misbehavior, despite more polite efforts to get them to behave lawfully.)

Making direct-pay medical practice illegal has not been accomplished yet, but clear efforts have been made in this regard. Noting with alarm the rise of direct-pay primary care, numerous Congresspersons have issued statements of concern, suggesting that perhaps Congress should look into the propriety of such activities.

Indeed, the first step by Congress has already been taken. In 2003, as part of the Medicare Prescription Drug, Improvement, and Modernization Act, Congress directed the GAO to study and report on the effect of direct-pay practices on Medicare patients. The GAO did so in 2005, and a fair paraphrase of its report is as follows: “The practice of direct-pay medicine is not currently a threat to Medicare patients, because the direct-pay movement is not large enough yet to have an impact. If it does begin to have an impact on Medicare patients, action will have to be taken.” That is, direct-pay medicine was considered OK in 2005 not because it was inherently an ethical and legal form of medical practice, but simply because there were not enough practitioners at that time to significantly affect Medicare patients. The clear implication is that Congress stands ready to pass laws outlawing – or, at least, severely limiting – direct-pay practices, as soon as those practices begin to “impact” the system.

Certain state governments are not waiting for Congress to ban direct-pay practices. The state of Maryland (and a few others) have taken the creative position that, because many direct-pay practices work on a retainer basis, they meet the definition of a health insurance company. And as a health insurance company, to be considered legal entities, they have to have millions of dollars set aside to pay for unforeseen “claims.” (Interestingly, this same argument was not applied to Maryland lawyers, who also often work on a retainer model.) According to the Baltimore Sun, the state’s stance in this regard has already successfully caused several primary care physicians to abandon their plans to become retainer practitioners.

Less devious (but more draconian) than the state of Maryland is the state of Massachusetts (whose universal healthcare system, we’ve all heard, is a preview of Obamacare circa 2015). A bill is under consideration in the Massachusetts Senate (Bill 2170) which requires doctors, as a condition of their licensure, to accept payment rates as determined by the government. If it passes, it will be the first actual legislation in the U.S. to ban direct-pay medicine, if only by making it completely impracticable. (Thanks to Dr. Wes for pointing out this important development.)

Since medical licensing is controlled by the various states, of course, it would take 50 bills like the one in Massachusetts to really get rid of direct-pay healthcare. But there are other ways for the Feds to accomplish the same thing. Now that the federal government directly controls all student loans, for instance, it would be a simple matter to make those loans contingent on agreeing to become primary care doctors working strictly within the government controlled system, or to offer loan forgiveness for doctors who agree to do so, or to rescind favorable re-payment conditions (retroactively, and decades after the fact, if necessary) for doctors who go to a direct-pay model later in life.

DrRich does not really know how the Progressives will actually place the final nail in the coffin of the doctor-patient relationship. All he knows is that they have – well, more than the desire – the deep and abiding need to kill that relationship, once and for all. Unless we the people decide we ought to stop them, this is going to happen.

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Part 4 of Limiting Individual Prerogatives