Tucson Blvd. Suite 9
Tucson, AZ 85716-3450
Phone: (800) 635-1196
Hotline: (800) 419-4777
of American Physicians and Surgeons, Inc.
A Voice for Private Physicians Since 1943
Omnia pro aegroto
Volume 52, No. 4 April 1996
``COVERAGE'': A FAUSTIAN BARGAIN
``You all know,'' said the Guide in The Pilgrim's
Regress by C.S. Lewis, ``that security is mortals' greatest
The desire for security is exploited in the drive to bring
about ``universal coverage,'' starting with the most vulnerable.
``There are children in this state who are not covered,''
declared the president of a county medical society. His
passionate concern about the children, no doubt well-intentioned,
superseded any possible worry about kitchen-door Clinton Care via
proposed state legislation-even though this man said that he
hated the Clinton Plan.
But what if this sacrosanct ``coverage'' is actually harmful
to children as well as all other mortals? What if the current
crisis is due not to the 15% who are not covered, but to the 85%
who are ``insured''?
True insurance, including sickness insurance, is a voluntary
means of sharing the risk of financial loss due to improbable
misfortunes. The business of insurance is the accurate pricing of
Present-day ``health insurance coverage'' largely
constitutes socialized (and thus mandatory) redistribution of
wealth. Through mandated benefits and other restrictions on
private insurance contracts, favored groups force others to bear
costs they would not willingly incur, for benefits they do not
need. Tax-financed insurance is simply socialized medicine with a
Unlike voluntary charity or mercy, which blesses both him
who gives and him who takes, socialism eventually curses those
who at first appear to benefit, as well as those obligated to
provide, by abrogating everyone's basic rights. (For a useful
and relevant perspective on how the institution of slavery harmed
the white race as much as the Negro, see Up From Slavery
by Booker T. Washington.)
In a 1976 essay commissioned by Time, Dr. John H.
Knowles, President of the Rockefeller Foundation, reviewed the
rise of taxpayer-funded insurance, concluding that ``the cost of
sloth, gluttony, alcoholic overuse, reckless driving, sexual
intemperance, and smoking is now a national, not an individual
responsibility.'' (Taxpayer-subsidized, employer-purchased
first-dollar coverage or prepayment for consumption leads to the
same conundrum.) Further, as Knowles stated in
Daedalus: ``the idea of a `right' to health should be
replaced by the idea of an individual moral obligation to
preserve one's own health-a public duty, if you will.''
What used to be called morality is now in the province of
the updated and expanded version of ``public health,'' as Jacob
Sullum explains in the January, 1996, issue of Reason.
What used to be mere vice becomes a crime as soon as the
perpetrator is relieved of bearing its full consequences and is
allowed to impose some of the cost on his neighbor.
In a high-crime environment, people willingly relinquish
their rights in exchange for a modicum of security. The right to
privacy is an early casualty, but by no means the last or even
the most serious. (See the March issue of AAPS News
and written testimony presented by AAPS to the Maryland House
of Delegates in this month's Legislative Supplement.)
Another casualty is freedom of speech. Various ``gag
clauses'' commonly found in HMO provider contracts were collected
by journalist Robert Pear (NY Times 12/22/95). Even if
such wording is outlawed, physicians can be constrained from
giving their best advice by less formal means. But even if
physicians may speak freely, they may be unable to practice
according to their best judgment.
In a 1996 opinion adverse to Robert Carlen, M.D. (Carlen
v. Dept of Health Services of Suffolk County, US District Ct
for the Eastern District of NY, CV 93-0187), Judge Wexler noted
Dr. Carlen's concerns about following orders from administrative
superiors in treating prisoners (see AAPS News June 1991).
``His medical license and reputation would be at risk for
participating as a joint tortfeaser [with defendants], especially
because he was not permitted to state his disagreements on the
official medical records.'' Nonetheless, Wexler ruled that this
was not sufficient to assert a claim for denial of equal
protection of the laws because ``plaintiff does not allege that
he was treated differently from other similarly situated County-
Governmental and private entities have now developed at
least 350 ``practice guidelines'' to assure that physicians are
treated equally in being deprived of their professional autonomy.
The guidelines also permit delegation of triage (which in wartime
is performed by the most experienced surgeon) to nurses and other
While physicians are the first subjects of constraints, the
pressure to control the behavior and attitudes of patients will
also continue to mount as costs inevitably climb.
In answer, advocates of ``coverage'' shed tears. ``Children
First'' is the title of their plan-but it doesn't mean first into
the lifeboats. They will actually be first into the jaws of the
HMO; if they're lucky, it will be of the herbivorous, rather than
the omnivorous or carnivorous type. (This was the classification
presented by cardiologist-turned-executive Jacque J. Sokolov in
February, 1996, as he explained to physicians how to profit from
arbitrage as they develop AHPs.)
These advocates are modern alchemists (Access to Energy
3/96), capable of turning tears into gold, as for HMOs with
$12 billion in the bank. We've heard their line before.
``We shall banish want, we shall banish fear, the essence of
our movement is human welfare...Rooted in a fuller life for every
citizen, from childhood to old age,...'' promised Adolf Hitler.
He did provide universal coverage-at a price reckoned in human
blood, like all bargains with Mephistopheles.
A Lampoon Is Worth 10,000 Harpoons
A set of 13 Huntoon Lampoons about managed care, suitable
for copying for bulletin boards, waiting rooms, physicians'
mailboxes, etc. is available for $5.
Michigan Board Refuses to Give Ruling
On Nov. 1, 1995, AAPS requested the Michigan Board of
Medicine to issue a declaratory ruling on whether or not a
physical examination was required for each and every office visit
coded as 99215, 99214, 99213, 99212, 99211 or, if in 1990, as
90070, 90060, 90050, or 90040. At its January 10, 1996, meeting,
the Board voted 13 to 1 to decline to give the ruling. Mr.
Edgardo P‚rez-DeL‚on spent one year in jail for submitting claims
for office visits during which medical advice was given but no
physical examination was performed. Under a new measure recently
signed into law by Governor Engler, a person convicted of
insurance fraud would be subject to up to four years in prison
and/or a $50,000 fine (BNA's Health Care Policy Report
2/5/96). Thus, a definition of what constitutes fraud is
increasingly urgent, and AAPS will continue to seek
Proposed Ban on Capitation in Oregon
Oregon ophthalmologist Gordon Miller, M.D., of Salem, is
collecting signatures for a ballot initiative that would outlaw
the use of capitation by insurance carriers for compensating
medical professionals. The attempt to send capitation to the
guillotine is expected to provoke a ``bloodbath.''
The HMO industry considers recent public outcry over
incentives to withhold care a ``media circus.''
``Despite its effectiveness in aligning incentives,
improving quality, and reducing the cost of care, capitation has
become a new rallying point for those who see managed care as a
threat to consumers-just as one-day maternity stays were in
1995'' (Capitation Management Report, Feb, 1996). PR
advice to managed-care advocates: ``Providers can help health
plans shine up capitation's image by offering themselves for
media interviews-but let the payer do the dirty work. HMOs have a
huge incentive to keep capitation as a way of life.''
Oregon physicians have generally not been paid by
capitation, but according to a publication of the Medical Society
of Metropolitan Portland, the ``big Blues capitation train is
about set to leave the station, and before year-end, physician
who want to treat HMO Oregon patients in the future had better be
``I guarantee if they're not with a group or MSO by January
1, 1998, they ain't (sic.) going to be in our system,''
said Roger Lyman, CEO of Blue Cross and Blue Shield's HMO Oregon.
He believes that independent doctors are ``not long for this
world.'' But even those who sign up may not ``make the cut.''
Dr. Miller, who previously sponsored a successful initiative
campaign on campaign finance, stated that ``I draw the line at
withholding care in order to earn more money.'' He is seeking
both moral and financial support for his signature drive. (For
information, call 503-370-1318.)
AAPS has not officially given the measure an unqualified
endorsement (it has a few objectionable features, such as using
revocation of licensure as a penalty), but congratulates Dr.
Miller for bringing this issue into the public debate.
Alan Keyes Not Arrested
Illustrating the late Petr Beckmann's observation that
``everyone has freedom of speech as long as not many people are
listening,'' Presidential candidate Alan Keyes got a free ride
around Atlanta in a police car. When WSB-TV barred him from
participating in a debate, his supporters chanted ``Let Him
Speak'' outside the building, according to Bert Loftman, M.D., of
Atlanta. Keyes was handcuffed, forced into a police car, and
eventually dropped off near a public telephone. Nevertheless, he
was later told that he had not really been arrested. Videotapes
are still available of Alan Keyes' talk at the 1995 annual
meeting of AAPS. The cost is $20.
The Ponzi State. Charles Ponzi was a genius, with a
longer-term view than most criminals: he delivered on his
promises, at first. When the scheme started to fall apart, the
early suckers rallied to support him.
The Ponzi state (welfare state) will also fail when
taxpayers learn that its promises are worthless; it offers them
only high taxes with no hope of big handouts (Quackgrass Press,
Ste. #601, 105-150 Crowfoot Cr. NW, Calgary, AB T3G 3T2).
Iatros to Meet in Scotland. Call Dr. Tim J. Winning,
Berato, Barrs Brae, Kilmacolm PA 13 4DE, Renfrewshire, Scotland,
phone: 01505 874473 for information about the meeting scheduled
from Thurs., Sept 26 until Sunday, Sept. 29, 1996. The theme is
``The 21st Century, Can Medicine Survive?''
The History of HMOs, by Cristina Rizza, M.D., Americans
for Free Choice in Medicine, 1525 Superior Ave Suite 100, Newport
Beach, CA 92663.
For Internet Surfers: AAPS: http://www.misnet.com/aaps
Task Force Documents and AAPS v. Clinton on CD-ROM,
50,000 pages with every word indexed: a data mining resource.
Call (800)635-1196 for information.
Medical Confidentiality in Maryland
by Andrew Schlafly, Esq
The Maryland law regarding disclosure of medical records
presents a difficult legal challenge. Under Maryland case law,
there does not appear to be a common law patient-physician
privilege that would entitle patients to forbid the disclosure of
their medical records. Rather, any rights which Maryland
patients retain with respect to their medical records must derive
either from Maryland statutory law or from federal or state
constitutional law. As a Maryland Court held in Rubin v.
Weissman, 59 Md. App. 392, 401-02, 475 A.2d 1235, 1239-40
Communications made to a physician in his professional
capacity by a patient are neither privileged under the
common law of Maryland, nor have they been made so by
statute. Robinson v. State, 59 Md. App. 392, 475
A.2d 1235, 249 Md. 200, 221, 238 A.2d 875 (1968);
O'Brien v. State, 126 Md. 270, 284, 94 A. 1034
(1916); Stevens v. Barnhart, 45 Md. App. 289,
295-296, 412 A.2d 1292 (1980); Franklin v. State, 8
Md. App. 134, 141, 258 A.2d 767 (1969). Courts and Judicial
Proceedings Article 9-109 establishes a limited privilege
for patient-psychiatrist and patient-psychologist
communications. As there is no common law patient-physician
privilege, ``[i]t exists by legislative grant. . . .''
Bremer v. State, 18 Md. App. 291, 334, 307 A.2d 503
Nevertheless, the physician-patient privilege has been long
recognized by courts of English-speaking countries. Even though
Maryland courts apparently do not recognize this privilege at its
common law, the Maryland statutes and interpretations of the
federal constitution have reaffirmed this basic right.
Maryland has enacted a series of statutory provisions which
protect patients against disclosure of their medical records
without their consent. Psychiatric patients enjoy special
statutory protection against dissemination of their
communications with their physicians, as reflected in the
decision quoted above.
The Maryland Health-General Code Ann. 4-301, 4-302, 4-
303, 4-305, 4-306, 4-308, 4-309 (1995) (text available on request
from AAPS) contains both good news and bad news. The goods news
is that these provisions affirm the right of confidentiality of
the patient to his or her medical records, and even recognize the
right of the patient to forbid his or her physician from
disclosing certain information. (See, e.g., id. 4-
302(c). The bad news is that these provisions allow disclosure
``[a]s otherwise provided by law,'' id. 4-
302(a)(2)(ii), which the Maryland legislature has apparently so
provided. However, the force of this provision is somewhat
mitigated by a ``good faith'' safe harbor for physicians:
Section 4-308 allows any health care provider to withhold
disclosure if he or she is acting in good faith.
While we have a statutory basis for asserting the right of a
patient to avoid disclosure of his or her medical records, we may
have an even stronger basis under the federal constitution. The
Supreme Court has recognized a ``right to privacy'' by patients
in their medical records. As a federal court in California
recently declared (Soto v. City of Concord, 162 F.R.D.
603, 618 (N.D. Cal. 1995), footnote omitted):
The Supreme Court has recognized a limited privacy interest
in the confidentiality of one's medical records, derived
implicitly from the United States Constitution. Whalen
v. Roe, 429 U.S. 589, 599-600, 51 L. Ed. 2d 64, 97 S.
Ct. 869 (1977); Doe v. Attorney General of U.S.,
941 F.2d 780, 795-96 (9th Cir. 1991) (establishing that
information regarding a person's HIV status would fall
within the ambit of the privacy protection afforded medical
information); Caesar v. Mountanos, 542 F.2d 1064,
1067 n.9 (9th Cir. 1976), cert. denied, 430 U.S.
954, 51 L. Ed. 2d 804, 97 S. Ct. 1598 (1977) (holding that
right to privacy encompasses doctor-patient and
psychotherapist-patient relationship); Pagano v.
Oroville Hosp., 145 F.R.D. at 695-98 (establishing that
state constitutional right to privacy is consistent with
This constitutional right, recognized in California, can be
asserted in Maryland as well. The Maryland Courts will
apparently allow legislative derogations of the physician-patient
privilege, but will probably interpret such legislation narrowly.
The federal constitution imposes limitations on attempts by state
legislatures to intrude into the privacy of patients.
Because of these legal considerations, patient ``non-
consent'' language should be drafted in terms of ``privacy''
rather than ``patient-physician'' privilege. For patients who
wish to withhold consent to disseminate their medical records,
the following language is suggested:
I, _______________, hereby assert my constitutional
right to privacy and expressly forbid my physician, and
anyone acting under his or her control, from releasing
any of my medical records to a third party without my
express consent. In particular, I decline to consent
to the release of my medical records for the purpose of
entry into a computer database which may be accessed by
third parties outside of the offices or hospitals
utilized by my physicians.
Doctors Sue Western Ohio HMO
Physicians who founded a ``community-oriented and physician-
directed'' non-profit HMO claim that their own money in the form
of withheld fees was used to expand the subscriber base during an
early period of deficits and thus solidify the corporation's
financial hold over them. After a position of market dominance
was secured, the corporation's deficits rapidly turned into
multimillion dollar profits. Physicians' withheld fees were
never returned; instead, they were allegedly conveyed to a third-
party purchaser of the company, enhancing the value of shares
purchased by insiders. Stock initially valued at $300,000 was
soon sold for more than $13,000,000.
A class-action lawsuit, case number 98-2548, has been filed
in Montgomery County, Ohio, by a number of physicians including
AAPS members David Westbrock, M.D., and John Boyles, Jr., M.D.,
against Western Ohio Health Care Corporation, Western Ohio
Foundation for Medical Care, and their directors. Plaintiffs ask
for compensatory and punitive damages totalling more than $62.5
million. A trial is scheduled for April 15.
Dr. Westbrock believes the case is a ``national precedent,''
which will be ``very helpful in exposing the corruption and
perversities of the current system.''
It takes more than a master to make a
Withholding. A study of 12 HMOs in New York City,
reported in the February issue of the NY State Medical Society's
News of New York, concluded that the shift in financial
risk from HMOs to ``providers'' sometimes meant withholding care:
subscribers either paid out of pocket for necessary medical care,
or went without.
Some of the provider contracts allow the HMO to withhold up
to 50% of fees. Who, besides a prostitute working for a pimp,
would enter a contract like that? The study also found that many
physicians said they usually got nothing back from the withholds.
Some contracts (such as Aetna and Choice Care) allow HMOs to
reduce payments to whatever they like whenever they like.
Rising even faster than enrollment are complaints.
PruCare's complaints increased 658% as enrollment grew 70%. Also
rising-even faster than doctors' and hospitals' expenses -are
HMO's administrative costs.
On the very same page as these scathing revelations we find
a summary of our State Medical Societies that are forming their
own managed care networks. They haven't yet gotten the picture:
it's not just managed-care companies, it's the managed-care
concept that's bad. Our medical staff reportedly paid
$7,000 for two one-hour pep talks on managed care, and the same
``consultants'' want $25,000 to ``help'' physicians group
together to sign capitation agreements and form an integrated
system. Then doctors are to pay to join-$32,000 initially and
probably more later for actual operations. I think that some of
these consultants could bring in a batch of tainted Kool-Aid, and
some of the doctors would be willing to pay for the ``privilege''
of drinking it. Quite apart from the ethical issues, it's time
for competency testing.
My advice to patients who are set on joining HMOs is that
they learn to bake. Many patients who got sick while members of
HMOs used bake sales to pay for their care.
Lawrence R. Huntoon, M.D., Ph.D., Jamestown, NY
Unnecessary Service. To Medicare: I've been asked to
certify that anesthesia was medically necessary in this
particular case: an 84-year old man required a change in his
pulse generator. It's the custom in Ozark, Alabama, to use
anesthesia when we operate on patients, as making incisions
without it is exceedingly painful. This custom seems to date all
the way back to Queen Victoria receiving chloroform for her
delivery....The art has developed to the point where we now feel
that monitoring such items as heart rate, EGD, and oxygenation
are also essential, especially in pacemaker-dependent patients
who are having a procedure in which their pacemaker is
temporarily disconnected and arrhythmias are exceedingly common.
This is the standard of care in Ozark, Alabama. If this is not
the standard of care in other areas, we would be happy to accept
referrals of any patients who wish this high standard.
Edward R. Teitel, M.D., Ozark, AL
Managed Care Is Cannibalization of prior investments in
medicine. Through adhesion contracts with doctors and hospitals,
managed-care companies force economically unreasonable conditions
upon ``providers'' who fear being left out if they don't sign up.
Physicians and hospitals will survive, for a while, continuing to
pay retail prices for their fixed overhead while absorbing
catastrophic losses through ``capitation'' and receiving
wholesale payment....It is entirely analogous to the ``leveraged
buyout'' craze of the 1980s when solid, productive corporations
were bought out for their cash flow, eventually creating massive
debt where solid capital assets once existed.
Stephen Katz, M.D., Fairfield, CT
Can Patients Choose? Some people oppose Medical
Savings Accounts on the grounds that patients can't be depended
upon to make good economical choices. But I'm convinced from my
work as a psychiatrist that people with average intelligence who
are strongly motivated make better decisions than bright people
who have little personal motivation. Furthermore, who has more
right to make choices in a clinical situation than the patient in
consultation with his physician?
James Pendleton, M.D., Abington, PA
The Crucial Test of Law. In The God of the
Machine, Isabel Patterson wrote that well-meaning people
often ignore the principle of individual freedom (except as
applied to themselves). They become obsessed with fanatical zeal
to improve mankind. ``It is at this point,'' she says, ``that the
humanitarian sets up the guillotine.''
Good intentions are not enough to guide our destiny;
fundamental principles must. Ask of any proposed law: what
effect will it have on our unalienable rights. If it infringes on
these rights, it must not pass. It may yet pass under the guise
of administrative law. If it does, contest it!...Too often,
under the assumption that the end justifies the means, those in
power become infallible, their faith as devout and ardent as that
of the ancient Aztec priest.
Anthony Orlandella, M.D., Dana Point, CA
April 13. Freedom in Medicine seminar (see enclosure).
June 1. Board of Directors, Airport Marriott, St. Louis.
Oct 10-12. 53rd annual meeting, La Jolla, CA.
Legislative AlertStatement on
The Health Care Access and
Cost Commission (HCACC)
Medical Care Data Base Collection
Notice and Informed Consent
House Bills 1030, 1031, and 557
Maryland General Assembly, February 29, 1996
by Jane M. Orient, M.D.
AAPS is present here because Maryland is the first state in
history to compel physicians to report to the government every
time they see a patient.
This places physicians in the dilemma of whether to violate
state law, or violate the Oath of Hippocrates.
The Oath of Hippocrates states:
``All that may come to my knowledge in the exercise of my
profession..., which ought not to be spread abroad, I will keep
secret and never reveal.''
The Oath further states that: ``I will prescribe regimen
for the good of my patients according to my ability and my
judgment and never do harm to anyone.''
AAPS opposes coercive data reporting to the government
1. Such disclosures violate patients' rights.
2. Such disclosures can be harmful, either through
unauthorized disclosures or through the intended use of the data.
3. There is no compelling public interest served by
collecting the data; rather the rights of the public are being
sacrificed for private interests.
Any patient could be harmed by the disclosure of medical
information. The fact that a patient saw a certain doctor,
whether for hemorrhoids, or impotence, or a face lift, or
premenstrual syndrome, or gonorrhea, or cancer, should not be
spread abroad. Patients usually share such information
reluctantly, and only because they hope to obtain relief, relying
on the professional ethics of their physician.
Patients often consent to release information to their
insurer, in return for third-party payment. Traditionally, they
had to consent to release only that information necessary for
processing their claim.
Under Maryland law, even if amended by exempting patients
who pay directly, patients will have comprehensive information
released to the state government as a condition either of
obtaining treatment or of using any form of insurance.
Disclosure is not likely to stop at a governmental agency, which
presumably has some accountability to the public. Data also may
be transferred to private special interests. Insurers and other
``risk-bearing'' entities have a financial stake in this
information, which could enable them to gain a competitive
advantage in bidding for managed-care contracts.
One example of such data transfer is that some states have
granted to the Robert Wood Johnson Foundation a ``nonexclusive,
irrevocable, perpetual, royalty-free license to use and to
license others to use any and all data collected in connection
with the grant.'' These states include New York, Kentucky, and
The data bank constitutes a serious intrusion into all
patient-physician relationships in the state. Opponents of the
amendment requiring patient consent have tacitly admitted to the
fact that many will object to this intrusion. (They don't want
to require consent because they think patients will not grant
it once they know the government will have access to their
records.) Is there a compelling state interest that might
justify such a violation of individual rights?
Some believe that having medical records on a central
computer would expedite treatment, especially in emergencies.
Based on 25 years of clinical experience, I can testify that this
is not the case. In a true emergency, the most important
information is the history of what happened in the last hour or
the last five minutes. This will not be in the record, even if
there were time to read it. Patients with serious allergies
should wear a wristband and not count on the availability of a
computer. (What if their identification is lost or the computer
In most situations, the traditional methods of obtaining the
old record work quite well. Even if the record cannot be found,
the patient or family can usually supply the most important
information. These interviews are indispensable for practicing
good medicine because old records are not always accurate or the
situation may have changed. In any case, the data required by
Maryland are, at best, of minimal help to the clinician. The
data set is not designed to answer scientific questions and is of
no value for clinical research. It is, after all, derived from
an insurance form whose purpose is to collect payment.
The Senate heard testimony from an emergency physician who
stated the data bank would help him in the case of persons who
frequent emergency room instead of having a regular physician and
whose records are thus not available. However, spokesmen for the
data commission testified that no personal identifiers
would be in the data base! Thus, it would be useless to this
Insurance interests testifying against a bill that
would require managed-care entities to disclose information (they
also testified for requiring patients to give
information) stated that consumers' questions would be answered
by the ``report cards'' that could be produced once the data bank
was receiving comprehensive information. Consumers needed to
know results, not incentives, they state. However, the data to
be reported will not provide information about the
seriousness of the patients' illnesses or the clinical outcomes.
Hence, they will be useless for this purpose as well.
To see just how useless, legislators could look at a study
that a witness specifically alluded to as supporting her
position: a study of outcomes of patients with diabetes or
hypertension. This study looked at a vast array of data on a
well-defined population (which, by the way, deliberately excluded
patients who were seriously ill). The data bank would contain
hardly any of the needed measurements. It would be even less
informative than the study, which came to the hardly surprising
conclusion that patients who aren't very sick don't change much
over a couple of years, regardless of their source of medical
treatment. (See Journal of the American Medical
Testimony by the executive director of the HCACC gave still
more reason to be skeptical of the value of the data. If
personal identifiers were to be stripped from the data set (as
this official says he intends at this time), it would be
impossible to do longitudinal studies. Without identifiers,
patient records from one year could not be matched with those
from a subsequent year. Thus, it seems likely that the
commission will change its policy and leave the identifiers, thus
making reassurances based on present policy quite worthless. (If
the commission honestly intends never to use certain information,
then it should have no objection to being stripped of the
statutory authority to collect it in the first place.)
Witnesses opposed to requiring patient consent stated it was
``imperative'' to have all of the data, lest there be a
``biased sample.'' Of course, all samples are less than
100%, by definition. There is no reason to expect that persons
who value their privacy are medically different from
persons who do not. The real problem of bias is with the
entities collecting and reporting the data. Since the basic
motivation for filling out an insurance form is to obtain
payment, it is highly likely that the data will be distorted in
the direction that will tend to maximize payment; this will be
true no matter how complete the ``sample'' is.
It is axiomatic in science that the observer should be
disinterested. Yet insurers are advocating report cards based on
data that they themselves define and control! Indeed, the most
important information on ``access'' concerns procedures that
aren't done and diagnoses that are missed. It
is really rather preposterous to be talking about ``bias'' due to
informed consent in a data set that has an inherent and far more
Electronic data are subject to error, and once errors are
made, it can be very difficult to eradicate them. Even more
worrisome is the fact that electronic data are easily altered.
For example, one Medicare carrier has repeatedly deleted claims,
in whole or in part, or changed the data, most notably by
changing the status from ``unassigned'' to ``assigned,'' despite
the fact that altering the claim is illegal.
The executive director of HCACC denigrated worries about the
integrity of the data or unauthorized leaks. He observed that
witnesses spoke of data on the Internet, or data transmitted
electronically, or data in the hands of entities other than
HCACC, or computers linked by telephone. Therefore, he thought
the witnesses ``confused.'' However, the fact is that once a
data set is in any kind of electronic format, it is easily
transferred into another format. It may be possible to encrypt
data so well that an unauthorized ``hacker'' could never break
into the data base. But all it takes is one authorized insider.
Penalties, however severe, are applied only after the damage is
Most attention has been focused on the peril of leaks and of
harm to individuals. However, the legislature needs to consider
the harm from the authorized and intended use
of the data.
Just what is the intended use? Many of the named
specific uses are bogus (for reasons outlined above). The
overall use is to aid in making ``public policy'' decisions about
how ``we'' spend ``our'' health care dollars. One labor
representative expressed frustration with rising costs, and felt
data were imperative to identify ``where all the money is
going,'' in order to find ``unnecessary visits'' and ``overpriced
services.'' (How information on what prices are leads
to knowledge about what they should be is another
issue.) The obvious though unstated conclusion is that somebody
(other than the patient, who ultimately is also the payer of
premiums) is going to decide what services will be available (or
unavailable) and at what price.
Also obvious is the fact that individual patients will be
harmed by such decisions in order that ``society'' (or third-
party payers) will benefit.
Those who will benefit most will be entities that profit
from ``arbitrage'' (their term) while decreasing the ``medical
loss ratio'' (the amount spent caring for the sick and the
injured). Such entities buy and sell groups of patients as if
they were commodities.
Data could also be used by governmental agencies to enforce
``global budgets,'' that is to ration medical care by restricting
the amount that the citizens of the state are collectively
allowed to spend for it. This was the purpose of the Clinton
Health Care Task Force proposal for an all-payer computerized
data base, as revealed in documents available at the National
Archives II in Maryland.
These goals are clearly in conflict with the needs and
desires of the patients whose rights are being abridged.
The degree of harm already done by the rationing of medical
care is an unanswered question. I have received oral,
undocumented reports that in some areas, where managed care is
dominant, it is now ``routine'' to deprive patients of food and
water-not just patients like Nancy Beth Cruzan, but patients who
are simply old and sick. When I asked a managed-care consultant
about these reports, he stated that they simply showed a need for
ongoing audits (``quality assurance'').
The quality and integrity of the data are crucial for
conducting a meaningful audit. The HCACC data will be useless
for revealing potential problems but highly useful for obscuring
such problems, particularly if they are controlled by the wrong
people (entities who have a conflict of interest).
The Maryland state data base could place a tremendously
powerful tool in the hands of persons intent on controlling
individuals or instituting massive changes in the medical system
to the irreparable detriment of many patients. The good
intentions of current caretakers are irrelevant. The actual
potential of the tool is the issue. We cannot foresee all future
changes in the political scene.
Leaving aside the question of risks and benefits, we believe
that it is fundamentally wrong to sacrifice our individual
patients to the abstract interests of the state or a corporation,
thereby treating them as commodities rather than persons with
unalienable rights. It is also wrong for the state to
criminalize a physician's free exercise of his religion, as in
living by his conscience and keeping his professional Oath.
But even if we were to assert that utilitarian benefit
overrides rights formerly called unalienable, proponents have yet
to prove that there is a net benefit. At best, the data base is
experimental. It is unethical to use human beings as
experimental subjects without their fully informed and purely
Therefore, AAPS supports H.B. 557 as a step in the right
direction. We oppose H.B. 1030 and 1031 because they are mostly
cosmetic and tend to obscure the fundamental flaws in the act
they amend. To the extent that H.B. 1030 provides some relief for
self-paying patients, it discriminates against those whose
financial situation precludes renouncing the risk-sharing
mechanism of insurance.
Return to the