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 46, No. 6 June 1990
FASCIST MEDICINE IN THE 1990s?
The United States will have some sort of national health
plan by the mid-1990s, according to most participants at the 1990
National Health Forum held in Washington, March 13-15. But it
probably won't be ``socialized medicine.''
Princeton economist Uwe Reinhardt explained that while the
term ``socialized medicine'' applies to the VA system in the US,
Canada and West Germany have ``socialized insurance.'' Such
nations have traded freedom from government interference (as
prevails in a price-competitive market system) for egalitarian
distribution. Cost control occurs on the supply side only,
instead of partly on the demand side.
In Canada and Europe, money flows from third-party payers to
``providers'' through a small number of ``money pipes''-one pipe
in the monopsonistic Canadian system. In the US, there is an
alternate pathway, directly from patients to ``providers.''
About 28% of the health care dollar (50% of the ambulatory health
care dollar) flows in this manner.
``Americans need a dose of pluralism with everything,''
Reinhardt said. ``They pay a 25% pluralism surcharge.''
Besides (allegedly) increasing costs, the alternate pathway
is hard to control. In addition, some believe it hinders
universal access. Americans are not willing to pay very much in
taxes for health care for the poor. ``If all are in the same
pot, the cap might be removed,'' stated Ron Anderson, MD,
Administrator of Parkland Memorial Hospital in Dallas. It was
only passage of the anti-dumping law that persuaded the Texas
legislature to raise the cap on Medicaid expenditures, he said.
In Reinhardt's view, the US is ``stumbling, keister back-
ward, toward the type of statutory, national health insurance
system operated in West Germany''-an employer-based system
derived from Bismarck's Krankenkassen. The present East German
system is probably about the same, he noted.
Although giving a fairly clear exposition of the definition-
nominally private ownership of health care resources under
government control-Reinhardt stopped short of using the word:
Although the well-intentioned Americans advocating such a
system might be horrified by the use of the term, John T. Flynn
stated in 1944 that ``the test of fascism is not one's rage
against the Italian and German war lords. The test is-how many
of the essential principles of fascism do you accept?'' He
predicted that ``fascism will come at the hands of perfectly
authentic Americans...who wish to commit this country to the rule
of the bureaucratic state'' (Chron Culture, May 1990).
One essential principle (that allowed German physicians to
cooperate in genocide) was the idea that ``physicians were no
longer caretakers of an individual patient, but rather promoters
of the health of the German people'' (Sprung, CL: Changing
attitudes and practices in forgoing life-sustaining treatments.
JAMA 263:2211-2215, 1990).
The related concept that medicine is a ``social good''
appears to be axiomatic to most members of the National Health
Council, including Reinhardt, as well as to many medical leaders.
For example, MSM Watts, MD, editor of the Western Journal of
Medicine, proposes a new role for medicine as ``physician to
society'' (West J Med 152:414, 1990).
How shall this role be fulfilled? The American College of
Physicians has issued a position paper calling for a
``substantial restructuring of the entire US health care system''
so that physicians could meet their obligation to provide for
universal access (Ann Intern Med 112:636-661, 1990). The paper
deplores ``patchwork reform,'' echoing the terminology of an
earlier article (Waitzkin, H: A Marxist view of medical care.
Ann Intern Med 89:264-78, 1978), which advocated revolutionary
change-including the destruction of private medicine.
The methods being used to extend government control over
medicine have been compared with the techniques of German
National Socialists by Joseph Scherzer, MD, of Scottsdale, AZ.
``In the beginning of the Holocaust, individual rights were
slowly abridged-minor ones at first. The populace used denial to
... minimize the importance of successive incursions upon their
liberty and freedom.'' Scherzer noted that resistance was
effectively nullified by imposing regimentation slowly, step by
Other physicians charge that fascist methods are already
being used in the guise of investigating Medicaid fraud.
Nathaniel S. Lehrman, MD, a psychiatrist in solo practice in New
York City, states that 22 armed officers barged into his office,
guns drawn, and held him captive for 8 hours while
indiscriminately ransacking his patient records and personal
effects. After some 500,000 pages of records had been
confiscated, Dr. Lehrman was charged with contempt of court for
withholding records and was faced with a demand to prove himself
innocent. (The judge did not find him guilty of contempt because
of insufficient evidence, under standards applied to criminal
According to numerous articles in Psychiatric Times,
Mediplan fraud investigators frequently trample on due process
rights. Intimidated by threats of criminal prosecution, a number
of physicians have pleaded guilty to a misdemeanor and lost their
licenses to practice medicine as a result. (Problems such as
these will be discussed at the annual meeting by Carol Brown, MD,
of Hawaii, who is suing the government after being found innocent
of Medicaid fraud in a jury trial. Her attorney Steven Geshell
will also speak.)
Will medicine be under fascist control in the 1990s?
The New, Improved Horse-and-Buggy Doctor
Imagine a general medical practice with an overhead of just
$10,000 per year, a minimum gross personal income of $42,000 with
12 weeks vacation, and a base office charge of $10 per patient.
Impossible, you say?
I am just in the process of following the Lord into an old-
fashioned way, back to basics. But I think it is the way of the
future. When I first began the changes in my practice, patients
asked what on earth I was doing. Now I tell them, ``I'm going
FORWARD to the horse-and-buggy doctor days.''
People in the US need a ``missionary'' approach to medical
care-not free care, but affordable care....
[The first step is to trim overhead.] My old style of
practice required an overhead of about $14,000 per month. I had
a business consultant, a new computer system to handle all the
PPO and HMO paperwork, a secretary, and one nurse. At this time
my overhead is about $1,200 per month.
Two years ago, I dropped my malpractice insurance. I had
toyed with the thought for 15 years, but had always succumbed to
the norm, disgusted with my gutlessness. Finally, it became a
necessity since I could not afford the premium. I said I wasn't
going to pay protection money to the Mafia any longer and went
Dropping my malpractice insurance meant that I had to drop
out of all the HMO and PPO programs. I hated them anyway, and it
was a relief, at least at first. Then I discovered that 70% of
my gross business income was from these programs. (About 80% of
insured patients in the Phoenix area are in these programs.)
After saying good-bye to my nurse and secretary, I began
giving the patients their charts. They are told to bring them in
when they come to see me. Oh, what a ruckus this has raised in
the medical community! But I love it, and the patients love it.
Patients almost never forget their chart. They enjoy reading it,
they remember much better what I said was wrong, what I intended
to do, what lab tests were for and the results, what I found on
the exam, etc. If they need to see a specialist, I probably will
write a summary note for his benefit. If he needs a copy of any
of the chart, his secretary can make one.
Do you have any idea how much your office spends for a copy
machine and supplies, or how much time your office personnel
spend copying charts? I would estimate that about half of all
visits charged to some insurance company elicit a letter asking
for a copy of the chart. At least half of those copies will be
``lost'' and a second copy demanded. Now the patients can make
the copies if they are needed. It is their insurance anyway,
isn't it? Eventually, this could save money for everyone, since
the insurance company wouldn't need to pay $35 for the
``attending physician's statement,'' which is almost always just
a copy of the chart.
If I get a telephone call, I can have the patient read to me
the information on the chart. I don't have to pull the chart and
put it away. If I am not in the office, the information is still
available to me. If I need to see the patient, the patient can
bring the chart to wherever I am....
I had no idea that the changes in my practice would cause
problems with the Board of Medical Examiners (BOMEX). But within
two months, I received a letter from them stating they thought I
was in violation of the Medical Practice Act of Arizona. Reading
the letter was fascinating. They knew as much about what I was
doing as I did! Evidently some woman had called anonymously and complained....
One problem was with the records. The Medical Practice Act
states that the Board or its designee can enter your practice
without notice and demand to see any and all records pertaining
to your practice. It is unprofessional conduct if you do not
make those records available ``in a timely fashion.'' I think I
can comply relatively easily. I have a sheet where all patients
sign in by date and time. The Board could request records from
that list....It seems that I should have at least as much time to
provide records as they allow for mailing requested records when
a patient switches doctors. In my experience, that takes at
least one or two months, and frequently two requests....
Another problem was the clause stating that records must be
``maintained by the physician.'' It does not say ``kept on his
premises.'' My feeling is that I do maintain my patients'
records by writing in them and supplying the notepaper-just as
your car is maintained by your mechanic, although it is not kept
on his premises.
Another concern of the Board was that I allow patients to
write their blood pressures or blood sugars in the chart, and the
Board was afraid they might not write legibly. (Did you know
that in Arizona a doctor can have his license suspended or
revoked for writing illegibly?)
I had to attend an interview by the Board. They spent about
45 minutes asking me questions. The Chairman made a statement
that he felt I was in violation of the Act and that the Board
should find me guilty and make me stop doing what I was doing. A
motion to that effect was made, but died for lack of a second.
Another doctor made a motion to drop all charges. It was
immediately seconded. The doctor who had made the first motion
interrupted and said that would set a dangerous legal precedent,
and the Board hadn't set legal precedent in eight or nine years.
A ruckus ensued. Then the vote was taken: seven to drop charges,
three against, one abstain, and two absent....
What could be the end of all this? If enough doctors would
leave the system and become radical, how much could we trim from
costs? Would ordinary working people then be able to afford
insurance (I call it unsurance) again?
I feel like a country doctor, in the middle of the city. I
think I will be making an amount of money that God wants to
provide for me and my family. For two years, a song has been
reverberating in my mind, ``Wherefore do you spend your money for
that which is not food, and labor for that which satisfieth
not?'' (Isaiah 55:2)....
Where have you been brainwashed by the world into a false
system of medical care? How would God change your ``business''
into a ministry again? Get ready to have your synapses rerouted.
Break up those concrete runways that have surrounded your thought
patterns, and get ready for some real excitement!
Paul Glanville, MD
Dr. E. Peter Garber of Galveston, TX, died April 18, 1990.
Dr. Marvin A. Childers of San Antonio, TX, died Feb. 15.
Dr. Cecil Pitard, whose fight for freedom was described in
AAPS News, March 1987, died in April of 1990.
The Physician-Patient Privilege
One of the most commonly asked questions at AAPS seminars
concerns the physician-patient privilege.
Existing law in most states recognizes a physician-patient
testimonial privilege (R.M. Gellman, ``Prescribing privacy: the
uncertain role of the physician in the protection of patient
privacy,'' 62 N.C.L Rev. 255 (1984), citing J. Wigmore, Evidence
2380-91) (McNaughton, rev. ed., 1961). When it applies, this
privilege generally provides that the physician cannot testify
about confidential communications with his patient, made in the
course of treatment, unless the patient waives the privilege.
The physician-patient privilege was not recognized at common law
and is thus purely a creature of statute. The elements of a
privileged communication are as follows:
The physician-patient privilege is extremely limited and
may have more exceptions than actual applications. Because
the privilege belongs to the patient and cannot be invoked
by the physician, the physician is not forced to decide when he
may testify or what he may testify about. The reasons why the
privilege is of such limited utility derive from the nature and
scope of the privilege.
- The communications must be to a licensed or certified
professional, as described by the statute, or to an assistant of
the professional. Thus, communications to someone not licensed
or qualified as a professional (within the meaning of the
privilege) is not privileged.
- A professional relationship must exist between the patient or
client and the professional. An informal conversation not within
the professional relationship is not protected.
- The communication must be confidential. This usually means
that the communication may not be released to third parties.
(Nurses, assistants, and other hospital personnel who see medical
records as part of their duties are not considered third
parties.) In addition, the communication must be made with the
expectation of confidentiality.
First, the privilege applies only when the physician is
testifying in court or in related proceedings. Thus far, in most
disclosure decisions, the privilege is irrelevant. Second, the
privilege is much narrower than it seems. Statutory exemptions
and judicial restrictions have so limited the privilege in many
states that the protections are only rarely available. In many
states, the privilege does not apply in criminal proceedings,
will contests, malpractice cases, physician disciplinary
proceedings, cases in which the patient puts his condition in
issue, and several other types of cases. Third, the privilege
does not exists in all states. According to the 1977 report of
the Privacy Protection Study Commission, 43 states have some form
of the testimonial privilege. In some of these states, however,
the privilege is applicable only to psychiatrists and not to
other physicians. Since the privilege is defined by state law,
the privilege is not recognized in federal criminal trials or in
nondiversity (federal question) cases in federal court, (Id.,
citing United States v. Moeger, 531 F.2d 752 (5th Cir.), cert.
denied, 429 US 853 (1976) and United States v. Kansas City
Lutheran Home and Hosp. Assoc., 297 F.Supp. 239 (W.D.No. 1981).
Finally, many legal commentators are hostile to the
physician-patient privilege. Professor Wigmore, the noted
evidence authority, questions whether physician-patient
communications are really confidential; whether patients are less
open in communications in the absence of the privilege; and
whether the injury to the physician-patient relationship as a
result of the disclosure of confidential communications is
greater than the expected benefit to justice by the disclosure of
the communications when relevant in court (Id., citing Wigmore,
The bottom line is that the physician-patient privilege is
of very limited utility to those confronted with disclosure
question. The privilege applies only in a courtroom and only
when the patient has successfully asserted the privilege. It is
thus of no help to those who have to decide the propriety of a
disclosure outside the courtroom.
Most disclosure issues must be decided by resort to
statutory law, case law, and medical ethics. Note, however, that
the existing law is far from comprehensive, often varies from
state to state, and only occasionally will provide meaningful
Thumbsuckers Safe from Oregon Rationing
The term ``universal access'' generally occurs in the same
context as ``rationing,'' as it did at the National Health Forum,
where the Oregon experiment was presented as a model.
The Oregon Health Priorities for the 1990s project developed
a Citizen's Health Care Parliament to develop a consensus about
value judgments to guide planners. Colored markers were placed
on a magnetic board to display the extent of agreement among
various small groups concerning the priority of each box in a 4
by 4 matrix of ``health care building blocks.'' The phases of
the human life cycle (from infancy to old age) were on one axis
and type of health care (from preventive to critical) on another.
The ``elderly'' (age 65 or older) were assigned a low priority
for all types of health care except long-term care (West J Med
Panels of health care providers were asked to prioritize
medical procedures, using the same ``life-cycle conceptual
approach.'' A computerized system was used to produce a list of
3000 procedures in order of social benefit, with tradeoffs
between quantity and quality of life quantitatively balanced. The
Oregon legislature will draw a line across the list; procedures
below the line will not be covered by Medicaid.
Thumbsucking was near the top of the list because it is
easily treated at relatively low cost and affects a large number
of people. Cystic fibrosis and certain types of arthritis were
in the middle of the list. Near the bottom were chronic ulcers,
herpes, varicose veins, and impacted teeth.
Legal Consultants Honored
Kent Masterson Brown has been named to the Lay Advisory
Board of the St. Louis Metropolitan Medical Society.
Vickie Yates Brown has been reappointed as a Council Member
of the National Institute of Diabetes and Digestive and Kidney
Diseases Advisory Board by Secretary Louis W. Sullivan.
From Capitol Hill
Department of Defense Awards Contract to HealthCare Compare
(HCC). The firm that claims to have saved Medicare $17.6
million in Georgia last year by denying or downcoding claims (see
AAPS News, Jan. 1990) has been awarded its second
government contract. HCC will review claims and help to develop
a preferred provider organization for patients covered under
Federal Credentialing Proposed by Stark. Rep. Pete
Stark (D-CA) has introduced legislation (HR 4464) to require
physicians to take federal competency tests at least every seven
years in order to treat Medicare beneficiaries. Testing
standards would be determined by HHS. Stark dismissed as
``specious'' the argument that such a requirement might impede
Medicare beneficiaries' access to care. If physicians don't want
to be recertified, Medicare won't miss them, he said. Stark may
couple the bill (which he thinks will curb medical malpractice)
with one introduced by Nancy Johnson (R-CT) to require binding
arbitration for malpractice claims brought by Medicare patients
Right to Die. Rep. Sander Levin's ``Patient Self-
Determination Act'' (HR 4449) would suspend the Medicare and
Medicaid certificates of nursing homes and hospitals that don't
inform patients of their right to execute living wills. Levin
believes the burden of information should be on the provider
rather than on the state. Periodic inquiries about advance
directives, documented in the medical record, would be required.
The companion bill (S 1766) was introduced last fall by Senator
Danforth (R-MO) and referred to the Finance Committee.
Federal Employees May Get Medicare-Like Benefit Plan.
In the name of cost containment, the federal employee health
benefits program (FEHBP), which insures 10 million federal
workers, retirees, and dependents, may be ``reformed'' into a
self-insured package designed to ``work like Medicare'' under
heavy government control. The number of carriers would be
winnowed. Five indemnity packages would be offered, operating
through contractors to process claims and administer pre-
admission screening and case-management programs; 300 HMOs would
be kept in operation.
Medicare Bankruptcy Looms. Because of a shrinking work
force, OMB projects $250 billion in unfunded Medicare
liabilities. To avert bankruptcy in Part A by 2005, Sen. Dave
Durenberger (R-MN) introduced S 2249 to redistribute tax revenues
from Social Security to Medicare.
Technology Assessment Funding Quintupled. Determined
to find out ``what works,'' Congress increased appropriations for
effectiveness research from $5.9 million in FY89 to $32 million
in FY90. So far, the Institute of Medicine has set criteria for
setting priorities, and has produced a list of 14 clinical condi-
tions and six technologies to be reviewed first. Next step:
achieving national consensus on priorities and process.
A new medical specialty is probably required, since
physicians trained to do surgery ``can no more be expected to
research scores of articles...than a statistician can be expected
to take out an appendix.'' We have spent too much on training
and equipping the troops and not enough in supporting the
commanders (JAMA 263:442-443, 1990).
Civil Penalties for Incorrect Claims. Inspector
General Richard Kusserow wants civil penalties against anyone who
submits Medicare claims forms (the physician in all cases after
Sept. 1) that fail to include information identifying the primary
payer. He states that Medicare has been overpaying up to $1
billion per year in the secondary payer program. The HCFA will
be able to identify the 300,000 beneficiaries who should have had
Medicare as a secondary payer but didn't report that fact, thanks
to a provision of the Omnibus Budget Reconciliation Act of 1989
that requires the Internal Revenue Service, the Social Security
Administration, and the HCFA to share information.
AAPS welcomes Drs. John P. Anders of Toledo, OH; Sidney
MacDonald Baker of Hamden, CT; Ralph M. Bard of Tullahoma, TN;
Greg Cammell of Toledo; Merrill Cohen of Dover, PA; Michael A.
Deluca of Kingwood, TX; Daniel Steven Elliott of Loma Linda, CA;
William J. Estrada of Houston, TX; W. Irby Fox of Abilene, TX;
Howard M. Guthmann II of Charlotte, NC; Gary Henderson of Tucson,
AZ; Olgierd C. Garlo of Bloomville, OH; Paul L. Gorsuch of San
Antonio, TX; John M. Gray of Bethlehem, PA, Gerson N. Kaplan of
Columbia, MD; Warren M. Levin of New York, NY; M.H. Marx of
Lansdale, PA; Wilfred M. Potter of Scottsdale, AZ; Mark Sedler of
Amityville, NY; Dennis L. Thrasher of Tucson, AZ; and Antonio C.
Yap of Maumee, OH.
Sept 12, 1990. Board of Directors meeting, Scottsdale, AZ.
Sept 13-15, 1990. 47th Annual meeting, Clarion Hotel, Scotts
dale, AZ. (Send in your reservation now!)
Oct 17-19, 1991. Annual meeting, Lexington, KY.