AAPS NEWS

Volume 66, no. 6, June 2010

NO WE WON�T!

The ability to proclaim, without fear, �Yes we can�say no we won�t!� is one mark of a free country. Increasingly, physicians will be facing circumstances when �No we won�t� is the only honorable, ethical response. Which will you choose?

�We have to...� or �No we won�t��

...sell our patients� confidentiality. With 4,863 respondents now weighing in, our online survey shows that 89% plan to refuse �stimulus money� to computerize their offices. If the carrot fails to entice enough into putting patients� personal data into an �interoperable� data base�essential for achieving draconian control and rationing, the stick of incremental cuts in Medicare or other third-party payments will follow.

...compromise quality of care. With zero-sum collectivized payment schemes, such as �accountable care organizations,� taking good care of patients may make you an �outlier.� In Medicare enrollment or revalidation forms, or managed-care contracts, physicians �voluntarily� agree to constraints on �unnecessary� or �ineffective� or �substandard� care�as defined by them.

...terminate �useless eaters.� To avoid debate over euthanasia, a �third way� of sedating and dehydrating patients who might continue to live for years with standard medical treatment, as for heart failure or pneumonia, is evolving.

There are gray areas and rationalizations. But as state control over medicine increases, lines are shifting and blurring, and individual consciences are being subordinated to the collective. Once considered unethical, then permissible, some things might become virtually mandatory: abortion, sex-change surgery, in-vitro fertilization allowing lesbians to become parents, �harvesting� hearts from non-dead donors. Latest to begin this progression is the cultural practice of female genital mutilation. To satisfy the demands of some Muslim or African families, the American Academy of Pediatrics has issued a statement advocating offering a �ritual nick� as a compromise �to avoid greater harm.�

To avoid inducements and duress, when will physicians say: �No we won�t...take their money, or enroll in the program�?

Will it get any easier? As AAPS past president James Coy, M.D., said, �I�ve never picked cotton, but I believe a slave who had to do so, sun-up to sun-down, without complaint or innovation, would find it hard to earn a living on his own, especially in another line of work.�

Can They...?

States, employers, and individuals are all promised federal subsidies, as Obama pledges to work to cut a mere $100 million of spending out of the federal budget. A college student explains Obamanomics in less than two minutes at www.wimp.com/budgetcuts, showing the scale of entitlements, discretionary spending, and the deficit. About one-third of the budget needs to be borrowed�from whom? And who will repay it? The children and grandchildren of Muslims or of illegal immigrants?

�The federal government is about as close to God as we can get,� writes Don Levit. �Who else can create debt, creating an asset [to the trust fund] and a liability [to the general fund] at the same time, which through budget reconciliation nets out to nothing!� God, however, warned about the right hand not knowing what the left hand is doing, Levit observes.

The �strip mining of the middle class� cannot continue indefinitely. The ability to expand debt depends on the ability to service debt, and the return on each new dollar of debt is plunging to new lows (Jesse�s Caf� Americain 5/11/10).

On Apr 22, Medicare chief actuary Richard S. Foster released a critique of the Patient Protection and Affordable Care Act (PPACA) that �completely undermin[es] the Alice-in-Wonderland fables being spun by the White House, on Capitol Hill, and in the mainstream media� ( www.john-goodman-blog.com 4/22/10).

You cannot, for example, cut payments by billions and still expect the same quality and quantity of care.

Obama is assembling a team to implement �the biggest transformation of government since World War II,� ahead of schedule if possible. This includes the Independent Payment Advisory Board (IPAB), a top Obama priority, to control Medicare spending. There�s the risk that setting it up before 2014 would �prematurely make it a target for attacks of the �death panel� sort, leaving it politically vulnerable before its powers to impose changes take effect� (NY Times 4/17/10). To overturn an IPAB edict would take 60 Senate votes (Canada Free Press 5/13/10).

Unable to meet her 30-day deadline to post a list of the new authorities granted her, HHS Secretary Sebelius cut and pasted PPACA�s table of contents (Health Policy Matters 4/30/10). There are 159 new bureaucracies.

Obama�s nominee for head of CMS, Donald Berwick, has the can-do answer: to fix the system, blow it up. �There�s too much money in the system already,� he said. He�s for a �radical transfer of power� (WND 3/31/10).

Free-Market Checks and Balances

The Congressional Budget Office (CBO) expects 4 million Americans to choose to pay an IRS fine rather than buy the far more expensive approved insurance; it might be 18 million or more. We could have patients and physicians rushing into cash-based medicine. States might even refuse to continue serving as unpaid contractors and tax collectors for the federal government.

Berwick�s Model

Ivy League academic Donald Berwick, M.D. says: �I am romantic about the [National Health Service] NHS. I love it. All I need to do to rediscover the romance is to look at health care in my own country.� In the U.S. there is the �darkness of private enterprise,� while the UK enjoys a �politically accountable system.� He favors rationing �with eyes open,� pointing to Britain�s NICE as an �extremely effective,� knowledge-building,� scientifically grounded system.� A just, equitable, humane system must redistribute wealth, he believes.

A less romantic view attributes 1,200 deaths at one hospital to NHS targets. Patients with serious injuries were left in A&E for hours covered with blood and without pain relief. Others, left without food or drink, reportedly were so thirsty that they drank water from vases (Telegraph 3/18/09).

Alien Rule?

Robert Weissberg, professor of political science emeritus at Univ. Ill., Urbana, writes: �After auditioning countless political terms, I finally realized that the Obama administration and its congressional collaborators almost resemble a foreign occupying force,�whose rule contravenes local values�.

�Perhaps the clearest evidence for this �foreigner in our midst� mentality is the name given our resistance�tea parties�. This history-laden label was hardly predetermined, but it instantly stuck (as did the election of Sen. Scott Brown as �the shot heard around the world��). A Declaration of Independence passage may still resonate: �HE [George III] has erected a Multitude of new Offices [Czars], and sent hither Swarms of Officers [...IRS agents] to harass our People, and eat out their Substance.��

Surgeon Quits Hospital, Cites ObamaCare

Frank C. Polidora, M.D., of Hazleton, PA, an AAPS member since 1997, resigned his hospital staff privileges, stating that: �To be a true physician, one must be moral. To be moral requires freedom, both political and economic�. ObamaCare has totally destroyed this freedom, especially as it applies to a hospital practice.�

Medicare led the way, he said, citing forced enrollment, bundled payments, quality review, and electronic records. PPACA is a Trojan Horse for socialism: �under pressure from the ruthless, the clueless combined with the spineless to achieve the worthless.�

Dr. Polidora, who did orthopedic, trauma, and reconstructive surgery, will continue to see patients in his private practice but will no longer be able to do surgery. He warned that the profession of healing will be replaced with an industry that produces health through a process of removing the unhealthy.

Lynn Caine, R.I.P.

Beloved wife of AAPS director and past president Curtis Caine, M.D., Evelyn (�Lynn�) Caine departed this world on April 25. After having had both eyes enucleated 6 years ago, she now sees, reports Dr. Caine. Mrs. Caine was the founder of the AAPS Auxiliary, and faithfully attended AAPS meetings for decades.

ObamaCare and Business

When about 40 companies reported charges against earnings amounting to $3.4 billion in one month since ObamaCare passed, Rep. Henry Waxman (D-CA) threatened to hold show trials. For about the first time ever, Waxman had to admit to an error: the companies were just doing what Security and Exchange Commission (SEC) rules require. Some companies are beginning to realize that they would be better off just dropping employee coverage altogether (Consumer Power Report #219, 5/28/10).

Their Own Medicine

Physicians are facing increasing demands to recertify even on procedures they never use. One Ivy League institution decided to have its professors �voluntarily� recertify, even those who were �grandfathered.� More than 20% failed, and the university was forced to let them go. �MOC� is mockery indeed, writes Joseph Scherzer, M.D., (www.takebackmedicine.com/truthserum).

Massive New Tax Paperwork

A few lines buried in PPACA (�9600) will require businesses to issue millions of new tax documents every year�a form 1099, not just on contract labor, but on everything for which a business pays a vendor, including a corporation, more than $600 in a year. Soap, box lunches, pencils, everything. The IRS estimates it loses $300 billion per year in revenue from unreported income (CNNMoney.com 5/5/10). This change might raise $1.7 billion per year, at untold cost to small business for keeping track of tax ID numbers and forms (Health Policy Matters 4/30/10).

Changing Physicians

The AMA is apparently working to change the culture of physicians and inculcate a collectivist mindset to achieve its reform objectives: Individual physicians need to �acknowledge the inequitable and dysfunctional nature of the current health care system and the role of physicians in perpetuating that system,� write Robert Wood Johnson Foundation Clinical Scholars Erica Spatz and Cary Gross (JAMA 2010;303:1305-1306). They can learn something from the effort to reduce CO2 emissions: act locally, think globally. They need �strong management teams that support a culture of collective input, data reporting, and quality improvement.� They need to calm patients� fears about death panels and government interference, say RWJF scholars.

AAPS Calendar

June 25-26. Workshop, board of directors meeting, Atlanta, GA.
Sept. 15-18. 67th annual meeting, Salt Lake City, UT.
Sept. 28-Oct. 1, 2011. 68th annual meeting, Atlanta, GA.

ACTION OF THE MONTH

Assess your practice and your insurance options. How can you become more independent yourself�and support patients and colleagues who have rejected third-party shackles?

Citizens Challenge PPACA on Privacy

PPACA is under challenge in the U.S. District Court for the Southern District of Mississippi in a class-action suit brought by State Senator Chris McDaniel, Lt. Gov. Phil Bryant, et al. against Eric Holder, et al. (Walters v. Holder, No. 2:10cv76KS-MTP).

Complainants argue that if the Commerce Clause of the U.S. Constitution can be used to force citizens to enter into a contractual agreement with a private corporation, then there are effectively no limits whatsoever on the power of Congress.

Even if an insurer is not allowed to deny coverage, a person must submit an application divulging personal data of the most sensitive nature, including use of psychotherapeutic drugs, thus violating his right to privacy.

The purpose of the mandate is to �require persons to buy artificially high-priced policies to subsidize coverage for others as well as an industry overly burdened with other government costs and regulations.� Failure to further this public objective by buying the prescribed product incurs a �penalty��something that generally implies punishment for a crime or a civil wrong. But Congress has no power to punish someone for non-activity.

If the penalty is tax, it constitutes, argue plaintiffs, an unconstitutional capitation or direct tax.

Remarkably, notes K. Douglas Lee, the penalty appears to lack an enforcement mechanism. PPACA reads: �WAIVER OF CRIMINAL PENALTIES�In the case of any failure by a taxpayer to timely pay any penalty imposed by this section, such taxpayer shall not be subject to any criminal prosecution or penalty with respect to such failure.� Moreover, the Secretary shall not file liens or levy any property. Does this mean the mandate is unenforceable?

Lee invites citizens in other states to file similar actions. The complaint is attached to his article at www.biggovernment.com.

Is Medicaid Voluntary?

The unfunded mandate on states to set up insurance �exchanges,� with partial federal support only until 2015, is not a problem, say ObamaCare defenders, since States are free to walk away from Medicaid at any time.

Not exactly, argues Richard Epstein, professor of law at the University of Chicago. This option would be real only if the federal government refunded the citizens� Medicaid taxes or deposited them in the State treasury (Wall St J 5/10/10).

In Frothingham v. Mellon (1923), Massachusetts and one of its citizens challenged the 1921 Maternity Act, arguing that payments to individuals were not expenditures for the �general welfare of the United States,� which, properly understood, only covered public goods such as national defense.

�The Supreme Court there mistakenly held that neither the individual citizen nor the state had standing to challenge the program on the peculiar ground that any potential constitutional violation that hurt everyone could be challenged by no one.�

That ruling put states in an impossible bind. If they turn down federal dollars, their citizens� tax dollars simply go to people in other states. Fortunately, the obstacle to a state�s right to sue has been breached, in Massachusetts v. EPA (2007) and New York v. United States (1992). States should demand a tax refund if they pull out of Medicaid, or an end to mandates to expand Medicaid as the price of escaping new ObamaCare duties.

Systemic Bias in Peer Review

When a hospital takes disciplinary action against a physician, it generally sends cases that have raised quality concerns to external reviewers, ostensibly to assure objectivity. Courts assume that such reviewers have no motive to be biased and accord disciplinary actions based on their reports almost complete immunity. In fact, however, the reproducibility of peer review is low and barely better than expected by chance, even under optimal, nonadversarial conditions, writes Nicholas Kadar, M.D., J.D. He reports a repeated-measures designed study created when two board-certified obstetrician-gynecologists reviewed the same 26 records of one physician (J Laparoendoscopic Adv Surg Tech 2010;20(2).)

Manipulating Evidence in Political Advocacy

In the section of PPACA creating a new Patient-Centered Outcome Research Institute to conduct comparative effectiveness research, the bill allows the withholding of funding to any institution where a researcher publishes findings not �within the bounds of and entirely consistent with the evidence.� This creates a tremendous tool to ensure self-censorship and conformity with bureaucratic preferences, writes George Avery (Cato Briefing Paper # 319, 2/8/10). It appears to be an effort to bypass a court order in Stanford v. Sullivan, which involved federal contractual requirements that would have banned federal researchers from any discussion of their work without preapproval from HHS. Such blanket bans were held to constitute �illegal prior restraint on speech.� Now we have, instead, the threat of post-hoc punishment.

For two decades there has been concern about the influence of drug manufacturers on trials, and a call for more public funding. But even before PPACA, three times as many researchers reported problems with government as with private funders with regard to prior review, editing, and dissemination of research.

Punitive Damages Upheld for Sham Peer Review

In a rare success story related to sham peer review, the District Court of Appeal of the State of Florida Fourth District upheld a $5 million punitive damage award (Lawnwood Medical Center v. Samuel H. Sadow, M.D., No. 4D08-1968). Dr. Sadow alleged that the hospital had breached its contract with the medical staff, the Medical Staff Bylaws, by giving another surgeon exclusive privileges for cardiovascular surgery. The jury found Lawnwood�s conduct despicable��the very incarnation of express and actual malice.� The trial judge described the evidence as showing that Lawnwood set out to destroy Dr. Sadow�s career in the community.

The appeals court held: �Florida�s unusually high protection of personal reputation derives from the common consent of humankind and has ancient roots�. �Thou shalt not bear false witness against thy neighbor.� The personal interest in one�s good name and reputation surpasses economics, business practices or money�. [T]he wrongdoing underlying the punitive damages in this case has Florida law�s most severe condemnation�.�

Correspondence

What Should We Advise Doctors to Do? Many say that doctors just can�t leave the system, so we should try to help them get along. But how can we tell physicians to just continue what they are doing, participating in Medicare and hoping for the best, knowing that it is not sustainable and will lead to disaster for them and their patients? We don�t want to join others who are begging at the government�s table for a few crumbs at the expense of quality of care for our patients. We can�t be for freedom and at the same time lobby for more government money.

In the early days of America, many said, �We just can�t go against the king.� Had the �can�t do it� folks prevailed, we�d still be living under the king. At some point, a moral imperative must be the guiding principle. There will be pain either way�either staying in the system, or leaving to better serve patients. Unfortunately, pain and progress often go hand in hand. The survivors will be those who figure out innovative ways to make a living practicing medicine outside government control.

The question is, do we help ethical physicians survive, or do we just look for ways to make them feel better as government ushers them to their doom?
Lawrence R. Huntoon, M.D., Ph.D., Lake View, NY

Learning from the Third World. A mother from India told my son: �They will have a system in the U.S. just like we do in India. Anyone who wants personal care goes to the private doctors. We need to develop a packet on how doctors in different specialties can opt out. It is strangulation to stay in. It is better to opt out while you still have some cash than to wait until they bleed you dry and you have to start over on credit cards as I did.
George Watson, D.O., Wichita, KS, President, AAPS

Deal with the Devil. The insurance industry made a deal to get something it really wanted. There were good ideas for alternatives, but foolishness prevailed. The whole affair reminds me of the final words in the final letter (#31) in The Screwtape Letters. The elder demon signs off to his understudy nephew Wormwood: �Your increasingly and ravenously affectionate uncle, Screwtape.� The industry will be getting letters signed this way by Uncle Sam.
Steven Bassett, Oak Park, IL

Precedent. The short-term pragmatic outcome of Winterhilfe in Germany was that people got warm clothes. But they were stolen from other people, who had been killed because they were considered lesser beings. The end result was a nation in flames.
Tamzin A. Rosenwasser, M.D., Lafayette, IN

No White Coats. In the latest barrage against the physicians they supposedly represent, the AMA suggests eliminating doctors� iconic white coats, citing them as a possible source of infection. With no evidence to back it, why should the AMA take such a stand? Contrary to public perception, the AMA�s primary role is assisting the insurance industry and government payers to coerce and manipulate physician behavior. Stripping away the white coat demotes physician to a credential-less �provider,� any one of which is just as good as the rest. The public is being groomed to accept a low-level provider as the equivalent of a physician, so insurance profits can surge and politicians can crow about cutting costs. This would be a giant step backward in quality of care, and another nail in the coffin of our profession, courtesy of the AMA.
Juliette Madrigal-Dersch, M.D., Marble Falls, TX

How Long? When Bernie Madoff bilked his clients of billions of dollars, it took 25 years for the truth to come out. The early investors got wonderful results, lauding his brilliance and not asking too many questions. Those who suspected malfeasance were rebuffed and scoffed at as naysayers. When former President Harry Truman was issued the first Medicare card, for which he had not paid one dime, people should have asked questions. That is how Ponzi schemes work. Within a few years, the nature of Medicare will be exposed. Perhaps that is why Congress and the President have such a sense of urgency.
Alieta Eck, M.D., Piscataway, NJ

My Prediction. Though some may have thought me paranoid, when this started I predicted the need for two national police forces: one to force citizens and businesses to buy insurance, and the other to reward or fine hospitals and physicians who did or did not measure up to the criteria of the 2008 Dartmouth Atlas for health care. For the first, PPACA provides for 16,000 new IRS agents. The major restructuring of society needed to enforce this bill will itself cost more than any stated savings. The unprecedented power it gives the government over citizens in peacetime is reason enough to call for its repeal. Louis Keeler, M.D., Cherry Hill, NJ

Hillary Redux. Hillary Clinton said that every political issue must be cast as a story, with a victim, a villain, and a hero.
Greg Scandlen, Heartland Institute

What Evidence? There�s enough evidence that the evidence base has been so corrupted, and �peer review� so biased, that even experts may be passing on manufactured �memes.�
Scot Silverstein, M.D., Philadelphia, PA