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Association of American Physicians and Surgeons, Inc.
A Voice for Private Physicians Since 1943
Omnia pro aegroto

Volume 55, No. 1 January 1999

THE END OF LIFE

Until recently, a very few Americans knew in advance the precise time and manner of their death: those who were on death row, awaiting their date with the executioner.

There is in fact only one way in which any physician can know with certainty the time of a patient's demise. Most physicians can probably recall one or more patients who defied their prognostications, living months or years longer than expected, and sometimes even making an astonishing recovery.

The key to understanding the "end-of-life" campaign is to recognize that "end" is not just a noun, but also a verb.

"To end life" sounds less harsh than "to kill."

The idea is to end life before it becomes not worth living (lebensunwertes). The Oregon physician-assisted suicide law arbitrarily defines that point to occur no sooner than six months before the projected time of natural death.

At the actual end of life, the physician has a corpse, not a patient. At that instant, an absolute, irreversible, natural change of state makes all the AMA's Education of Physicians for End of Life Care (EPEC) materials utterly irrelevant.

The transition point under discussion in this campaign is not death, but rather the point when a particular life reaches a zero or negative value. Then one would no longer wish for a person to live long and prosper, but for the nonperson to die more quickly so that the collective can prosper more.

This point is relative, not absolute like death-and so are the ethics invoked in determining it.

The ethics are supposedly multicultural: "Dan Callahan, director of international programs, races out of the building for the airport. Once again he is off to a conference abroad to work with members of one of his international committees on the goals and values of contemporary medicine in an increasingly interdependent world," reads a Hastings Center fundraising letter. Yet the whole agenda begs the questions at the heart of the world's cultures: Why did Egyptians build pyramids? Why did Christians bury suicides at the crossroads? Why did Hamlet pause and ask: "For in that sleep of death what dreams may come?"

End-of-life "choices" may be presented as "options": even if the manner-of-death decision forecloses other possibilities (such as stepping back from the precipice at the last instant).

But avoiding the issue is not an option, given the pervasive nature of the supposedly multicentric campaigns by the new AMA Institute for Ethics (focusing on end-of-life care, genetics, managed care, and professionalism), the ACP/ASIM Center for Ethics and Professionalism (including the same foci), the Robert Wood Johnson Foundation "Last Acts" program, and so on.

A number of techniques are helping to win acceptance for the physician as killer:

  • Desensitization (watch Doctor Death kill a patient on national television-rather like forcing medical students to watch pornographic films);

  • Surveys (like one distributed by the American Academy of Neurology, which helps frame the questions as primarily legal rather than moral and shows that more and more physicians are moving toward acceptance of euthanasia);

  • Incentives (win a grant, or attend a Saturday morning seminar and get a great parking place for the football game that follows, or engage in the activity that gets the highest reimbursement under the proposed new AMA/HCFA E&M Documentation Guidelines);

  • Punishment (in addition to nonpayment, "regulatory requirements...expose providers to significant civil and criminal sanctions for failure to comply with `medical necessity' requirements," noted a memorandum from System Integrity Office at Providence Health System-and how could futile care be medically necessary or appropriate?);

  • Semantics (the Oregon Department of Health defines assisted suicide as a form of "comfort care");

  • Interactive propaganda and peer group pressure (once physicians complete their continuing medical education, they are urged to "share" with others who missed the opportunity -the "train-the-trainer" process); and

  • Control of the data (death certificates in Oregon are deliberately unclear in case of physician-assisted suicide, and there is no way of knowing whether certain groups are disproportionately affected-Medical Economics 5/11/98).

The difficulty of obtaining reliable data on euthanasia is eloquently shown by the Dutch experience. It is said that more than 60% of Dutch cases of euthanasia are unreported, in violation of their own guidelines. Involuntary euthanasia is not legally sanctioned in the Netherlands; however, euthanasia there is always voluntary by definition, even when done "without explicit request." (See JAMA 1997;277:1720-1722, 278:817-818, and 278:1492-1493).

The logically consistent endpoint of this discussion is the view of Australian philosopher Peter Singer, recently appointed Professor of Bioethics at Princeton's University Center for Human Values. Singer has been denounced by Catholic bishops, prominent rabbis, and parliamentarians of Helmut Kohl's Christian Democratic Party (who compared him to Hitler's henchman Martin Bormann). He cannot speak on the Continent without being assailed by disabled protesters (Wash Times 7/6-12/98). Singer does not believe that the concept of a moral right is helpful or meaningful. He judges the value of any action by whether it increases the sum of pleasure in the universe, as by removing "miserable beings."

In Singer's view, it is the failure to accept killing that is horrific (Wall St J 9/25/98).

The outcome of this culture war is not yet determined, but the end of the Hippocratic tradition could be at hand.


Collectivist Morality

From the two central features of every collectivist system, the need for a commonly accepted system of ends of the group and the all-overriding desire to give to the group the maximum of power to achieve these ends, grows a definite system of morals, [which] differs from [ours] in one point which makes it doubtful whether we can call it morals; that it does not leave the individual conscience free to apply its own rules and does not even know any general rules which the individual is required or allowed to observe in all circumstances....

The principle that the end justifies the means is in individualist ethics regarded as the denial of all morals. In collectivist ethics it becomes necessarily the supreme rule; there is literally nothing which the consistent collectivist must not be prepared to do if it serves "the good of the whole," because "the good of the whole" is to him the only criterion of what ought to be done....[C]ollectivist ethics...knows no other limit than that set by expediency....

Friedrich Hayek, The Road to Serfdom
quoted in Investor Weekly 5/6/98, Prudential Securities

 

W.C.A. Hospital Ethics

The attending physician's statement on a form entitled "DNR - Therapeutic Exception" reads as follows:

"I have determined to a reasonable degree of medical certainty that the patient would suffer immediate and severe injury from a discussion of CPR. I have ascertained the wishes of the patient to the extent possible without subjecting the patient to risk....I have determined that ... (a) the patient has a terminal condition; (b) the patient is permanently unconscious; (c) resuscitation would be medically futile; or (d) resuscitation would impose an extraordinary burden on the family in light of the patient's medical condition and the expected outcome of resuscitation."

 

Consumer Self-Help in Oregon

In the wake of Oregon's physician-assisted suicide law, Oregon homemaker Patricia Smith has written a book entitled "Ten Ways to Protect Yourself and Loved Ones from Euthanasia," $7.00 from 4-U Publications, PO Box 895, Canby, OR 97013. Topics include "How do I know if I can trust my doctor?" and "Why are living wills dangerous?"

 

Arbeit Macht Frei

In the last 20 years, there has been a three-fold increase in the U.S. prison population. With more than 1.8 million persons incarcerated, the U.S. has more prisoners per capita than any other country, and the population is expected to double again by the year 2005. The increase is primarily attributed to harsher sentences for first-time drug offenders. The average federal sentence for a first-time, nonviolent drug offense is longer than for rape or manslaughter (Prison Legal News, 12/98). At the same time, the number of inmates working in federal prison industries, at wages from 23 cents to $1.15 per hour, has grown from 5,000 in 1980 to 20,000 today.

While prison employment may enable prisoners to develop positive work habits and useful skills, the Coalition for Government Procurement states that prison industry often displaces other workers, destroying more than 2,000 jobs in the furniture industry alone since 1993. The government is required to give preference to goods made by federal prison inmates (Thomas Sowell, Forbes 10/5/98).

In November, representatives of the Public Health Committee of the Pima County Medical Society toured a medium-security federal prison near Tucson, where the factory produces mail bags for the U.S. Postal Service and bags for servicemen. The warden and the contracted prison physician explained tuberculosis and suicide precautions. The delegation was not permitted to interview an inmate because the appearance of access to a private physician might be perceived as favoritism and might also tend to undermine the authority of the prison physician.

The warden had no statistics on homosexual rape, one of the most dreaded risks of incarceration. He stated that many assaults were unreported because victims viewed the lockdown (protection against retaliation for snitching) as worse than continuing to live with abusive perpetrators.

 

A Growth Industry

In an interview with Medicare Compliance Alert editors, Wayne W. Oakes, acting chief of the FBI's health care fraud unit, was asked: "Will you ever reach a point-because you get more money every year with HIPAA-where you have enough agents?" He replied: "I don't think so because what happens here is when you fund, say 46 positions, and you use part or most of that $9 million enhancement, what happens is the cost of that agent increases each year because there are promotions involved." Also, investigations are much more sophisticated, he said. It is expensive to execute 35 search warrants in 17 states, ending up with box loads of records that have to be stored and analyzed (MCA 7/13/98).

 

Protecting the Public System

The main threat to Canadian medicare is not chronic deficits and waiting lists, but rather the private sector. Bill 37 in Alberta was introduced to regulate private surgical facilities that otherwise may serve to "help shorten waiting lists for some procedures the public system has trouble providing."

Bill 37 "will prohibit a private treatment facility from providing surgical services, now provided in public hospitals, to any Canadian covered by a provincial health plan." Uninsured services, now provided outside the public system, could be offered only by facilities accredited by the College of Physicians and Surgeons of Alberta and formally approved by the Minister of Health. Debate on the bill has been deferred until the spring of 1999 (see http://www.health.gov.ab.ca).

Duplication of services in the public and private sectors is considered to cause erosion of the public facilities, especially if physicians are permitted to straddle the two systems. Critics say that quality and the profit motive are incompatible goals.

If physicians are able to choose to accept more pay rather than less, "instead of the best doctors doing the most difficult work, they are doing the most lucrative work," stated Richard Plain, Vice President of the Consumers' Association of Canada (CMAJ 1998;159:551-552).

 

AAPS Calendar

Feb. 20, 1999. Board of Directors meeting, Dallas.
Oct. 12-16, 1999. 56th annual meeting, Coeur D'Alene, ID


Elastic Clauses

On November 12, the government's appeal of Judge Lamberth's sanctions in the case of AAPS v. Clinton was heard in the U.S. Circuit Court for the District of Columbia, before Judges Ginsburg, Buckley, and Henderson.

U.S. attorney Jacob Lewis argued that Judge Lamberth had fundamentally misapplied the law and made the erroneous assumption, based on Ira Magaziner's sworn declaration, that the government was relying on the all-employee exemption to the Federal Advisory Committee Act (FACA). The truth of the declaration became immaterial, in the Department of Justice's view, when the government decided it would be "unduly burdensome" to demonstrate and that the "horde theory presented fewer problems."

Arguing for AAPS, attorney Thomas Spencer said the Department of Justice was taking the position that "litigation is a game of Pin the Tail on the Donkey, in which plaintiffs are forced to grope around in the dark as the government constantly shifts the target."

If the government's view prevails, Mr. Spencer noted, the FACA is turned on its head. Whoever shows up becomes an employee, with no need to file any of the supposedly required forms: "a self-fulfilling definition."

Mr. Spencer reminded the Court of the defendant's tactics of obstructing discovery. Discovery sanctions had been ordered, but never assessed.

"The implication of the government's argument is that language is infinitely elastic, when used by government, and truth is whatever furthers the government's goals," concluded AAPS Executive Director Jane M. Orient, M.D.

The Judges did not grant Ira Magaziner's request to be heard separately during the hour-long argument. Magaziner was chairman of the Interdepartmental Working Group of the Health Care Task Force and now serves as the President's advisor on the Internet and electronic commerce, a position he plans to leave by the end of 1998. Justice Department lawyers said that Judge Lamberth had not relied on Magaziner's sworn statements [even though the Judge said that he had]. Moreover, they claimed that Magaziner had "merely signed statements that had been drafted for him by government lawyers" (Robert Pear, NY Times 11/13/98).

 

United Seniors Case Heard

On October 23, the case of United Seniors Association v. Shalala was heard in Circuit Court for the District of Columbia before Judges Williams, Sentelle, and Garland. Plaintiff's attorney Kent Masterson Brown conceded early in the hearing that the litigation did not concern the right to contract privately for services covered under Medicare, but only for those services which, under a clear standard, would not be covered. Price controls, which can adversely impact the availability of necessary services, are explicitly not being challenged in this case.

The Court acknowledged that there is no market-based insurance available to seniors as a result of the heavily subsidized Medicare program. The Court also stated that "the current medical insurance is ludicrous in the way it covers things that in a normal insurance market would not be covered at all." The Court challenged the U.S. attorney to cite a constitutional basis for §4507 of the Balanced Budget Act.

Mr. Bondy stated: "Well, the power, whatever the power is to promulgate Medicare. I'm not even sure standing here right now what that is."

The Court replied: "It may be perfectly true that Medicare is unconstitutional. Okay? But that's not challenged....It doesn't do [any] good to say whatever involves the unchallenged statute must also involve the challenged statute."

The plaintiff did not claim that patients could not obtain necessary medical care. In the Court's understanding, "they're not claiming nearly so much that they're deprived of medical care as that they're deprived of the right to contract for it."

Mr. Bondy acknowledged that the two issues are related.

"Sure they're related," stated the Court. "[Y]ou still can't say...under the U.S. Constitution,...Big Brother's going to look after you; you don't need the freedom to contract for your own...medical care." Judge Sentelle also asked: "The government knows better than they [do] what [it is that] they want?"

Much of the argument hinged on the definition of a noncovered service. If the doctor knows that under the applicable conditions Medicare will not pay for a service, the Court wanted to know if the service could be regarded as noncovered. Mr. Bondy said that it would.

"Well, apparently [your opponent] didn't read the rule this way, and neither did we," said the Court.

The Court suggested that if HCFA produces regulations consistent with the position taken in the courtroom, which requires considerable "interpretation" described as a "novel" reading of the statute, there would be little difference between plaintiff and defendant.

The Court advised Mr. Brown to sit down and to accept that the plaintiff could win by losing: "If we accept the government's position, which is the same as your position, then there will be nobody to appeal."

Regulations issued November 2 do not implement the interpretation discussed in Court.

A decision may be handed down in a few months.

"This case may establish the right of an asymptomatic patient to buy a screening PSA or an extra look at a healing wound from a doctor who has not opted out of Medicare," stated AAPS Executive Director Jane M. Orient, M.D. "But what about life-saving surgery for a leaking abdominal aortic aneurysm, if this is not available due to Medicare regulations and price controls?"

 

Y2K and Medicare Participation

AAPS Director Lawrence Huntoon, M.D., reminds physicians that if they sign a Medicare Participation Agreement, they are agreeing to accept whatever Medicare allows as payment in full for an entire year, even if that amount is zero. The steady revenue stream could abruptly stop, especially after January 1, 2000. According to the director of civil agencies information systems at the General Accounting Office, progress toward solving the Y2K problem is so poor that under the worst-case scenario "no claims could be processed." HCFA has "not documented the severity of the impact of year 2000-related failures," testified Joel Willemssen. Only 44% of "mission-critical" HHS programs will be "2000 compliant" by the target date of March, 1999.

HCFA is required to reimburse Medicare contractors for "all allowable costs"; therefore, its ability to "exert financial leverage over its contractors to direct funds toward [Y2K- related] activities is limited," according to information officer John Callahan (AM News 7/13/98).


Members' Page

Death in the Village. As the AMA rolls out its Education for Physicians on the End of Life Care (EPEC) program, "trainers" will be collaborating with the Robert Wood Johnson Foundation funded program to change the culture of death in America. The goal is to reach every practicing physician in the United States within two years (AM News 7/1/98). RWJF has already implemented a "Pathways" program in Kansas City through its Midwest Bioethics Center to meet the needs of dying patients. A pilot training program is now being introduced in 30 internal medicine residencies. One of the benefits of EPEC is to lower costs by teaching physicians how to "recognize futile care earlier" (by futility of care guidelines?) and thus "stop delivering inappropriate care."

Ms. Susan Buchanan, an attorney who runs the Colorado Collective for Medical Decisions, a futilitarian think tank, is "excited" about the program (ibid.). The word "collective" is key here, because it's not just part of their name, it's an integral part of their philosophy. Apparently, if it takes a village to raise a child, it also takes a village to decide when it is time for an individual to die.
Lawrence R. Huntoon, M.D., Ph.D., Jamestown, NY

 

A Northerly Breeze from Paradise. The French Canadian newspaper reports that hospital personnel took it upon themselves to disconnect a 76-year-old patient from a life-saving respirator (La Presse 7/14/98). Needless to say, the patient's family had serious misgivings about the incident.

The lesson to be learned from this tragedy is that if doctors are de facto employees of the state rather than of patients, they will-sooner or later-obey government directives rather than dutifully serving the needs of patients.

Excluding a few clairvoyant students of political philosophy, no one predicted such a horror story at the inception of Canada's socialized health care system.
Robert Gervais, M.D., Mesa, AZ

 

A Purpose Behind Managed Care? I read with interest Ernest White's observation (AAPS News 10/98) concerning the GOP's response to the Democrats' HMO bashing. He thought that the GOP was playing into the hands of Clinton Care/Universal Coverage. Wouldn't it be interesting if federal laws that [resulted in] insurance companies practicing medicine were specifically created by thoughtful and clever socialists in order to precipitate an eventual "crisis" so that the federal government could rush to the aid of the victimized American people? Maybe the "managed cost/rationed care" insurance system was never more than a straw man.
P. Michael Moffett, M.D., Colorado Springs, CO

 

Consequences of Price Controls. One effect of having a Neosocialist organization determining our fees is to give payers the right to direct activities that should only be guided by our professional judgment. Another issue is that it gives them the excuse to access medical records, made much easier if the records are computerized. This will produce an underclass of people who have a red flag in their electronic billboards.
James P. Durand, M.D., Mt. Vernon, IL

 

Where Is It Leading? We have before us the example of the Weimar Republic. [Its culture was also corrupted] with the cancers of nature worship and addiction to everything from drugs to sex, dramatically represented by the effete art of the period now rightly called the Age of Decadence....

Most frighteningly, the seeds of racism were sown at that time. The division then was between Aryans and Untermen- schen, Gypsies and Jews being at the bottom of the pile. Unequal qualities [used to categorize people in America], based on trivial but group characteristics, are now being enshrined in Affirmative Action and the whole panoply of racist laws: the thesis that is the harbinger of a reaction (the antithesis).

We also see in the schools with Goals 2000 a psychiatric categorization ("profiling") of all children....There is no classification for "normal" in the DSM-IV....

We are seeing the Nazification of America, the destruction of the fabric of an integrated society, in the name of some good. (Would you expect its introduction in the name of evil?)
Thomas Dorman, M.D., Kent, WA
from Fact, Fiction & Fraud in Modern Medicine, 6/98

 

The Pogrom Continues. After six years of despair, the federal court handed down a judgment against us for $77,000. Only minutes before the deadline, the government filed an appeal. As they promised at the last hearing when the judge lowered the penalty to this "small" amount, they will again request "more than the Krizeks are worth." The Hungarian prosecutor Bruce Hegyi was removed from our case.... He was obviously not cruel enough, and he was replaced by a woman. It was said in the Nazi camps that women were more effective.
Mrs. Blanka Krizek, Washington, DC

 

Unalienable Rights. In my opinion, the fraud, duress, and coercion elements [referred to in the Nuremberg Code] are present when patients are sold an insurance policy without knowing that every word they exchange with their doctor may become subject to scrutiny...for economic reasons. [There are] certain rights that are unalienable or "incapable of being surrendered." The right to privacy in patient-physician communications even predates the U.S. Constitution.
James R. Merikangas, M.D., Woodbridge, CT