AAPS News, Volume 66, No. 3 March 2010



In the pervasive moralizations on American medicine in the medical literature, “disparities” and “gaps” are Evil. Equality and uniformity are Good. And reform involves “coordination.”

There is an excellent word for the process, which reformers are unlikely to use because of its history: Gleichschaltung. Literally, gleich means “equal,” and Schaltung comes from the verb schalten (“to switch”). Gleichschaltung can be translated as “switching to the same track,” “consolidation,” “alignment,” “coordination,” or “synchronization.” Seldom appearing in German dictionaries before the 1930s, the term was generally used in the political sense to refer to the Nazi process of establishing control over all aspects of society—the arts, education, religion, and commerce.

When the newly elected Reichstag convened on Mar 23, 1933, it passed the Enabling Act, transferring legislative powers to the executive: Hitler’s government. A later act, the law concerning the reconstruction of the Reich, practically abolished the political institutions of the states, consolidating power in the central government (www.knowledgerush.com).

When politically or racially inconvenient colleagues had been brutally thrown out, saying that one’s organization had been gleichgeschaltet (“aligned”) could help salve the consciences of those who had condoned such action [Feuchtwanger E, New Perspective 7(2)].

Zeal for fundamental change, impatience with the legislative process, takeover of important industries, appointment of Party loyalists to powerful positions—are we seeing ominous parallels?

In the State of the Union message, Obama said: “Now, yesterday, the Senate blocked a bill that would have created this [bipartisan fiscal] commission. So I’ll issue an executive order.”

Efforts to control the message have gone so far as directing National Endowment for the Arts grants to recipients who endorsed health care reform; fact-checking of a comedy routine; and proposals to regulate broadband internet access (Janet Levy, Family Security Matters 1/15/10).

Germans were taught the Nazi slogan: “Du bist nichts, dein Volk ist alles!” (You are nothing, your people is everything.) American doctors are told that “we must balance individuals’ needs for high-quality care with the obligation to be socially...and fiscally responsible” (N Engl J Med 2009;361:2012-2015).

Disparities and Gaps

Anti-capitalists, throughout history, have been obsessed with the “gaps” that are everywhere discernible between groups, writes George Gilder in The Israel Test. Yet inequality is ubiquitous in nature, and without disparities there is no change. In physics, the state of even distribution of all energy is called the heat death of the universe—when all motion and life would cease.

Radical egalitarians see creators of wealth primarily as creators of gaps—and imagine that wealth can be redistributed to establish “social justice,” without causing poverty. In fact, Gilder writes, “[n]othing is more destructive to opportunities for the poor than diverting resources from entrepreneurs who know how to use them profitably and giving them to governments to spend politically.” Gapology is a symptom of deep Marxism.

“There is something, evidently, in the human mind...that hesitates to believe in capitalism: in the enriching asymmetries and inequalities of all creative achievement.”

Gilder warns that the association between Nazism and Marxism and anti-Semitism is not accidental. Jews are hated, he said, because they are superior—in intelligence and commercial skill.

Quoting Charles Murray’s Human Accomplishments, Gilder states that the Jewish 0.3% of the world population has produced 25% of human intellectual accomplishments in modern times, social discrimination and the Holocaust notwithstanding. Jews have a 10-point higher mean IQ, but the most important factor is a six-fold higher incidence of exceptional intelligence.

“The world does not subsist on zero-sum legal niceties,” Gilder writes. “Survival of the race depends on recognizing excellence wherever it appears and nurturing it….” Allowing envious majorities to harass and dispossess the successful only causes misery and poverty for the whole society—except for the ruling elite.

“Leveling the Field”

This term does not mean equality under the law to Bruce Siegel, M.D., and Lea Nolan, M.A., of George Washington University. Rather, it means “ensuring equity through national health reform” (N Engl J Med 2009;361;2401-2403).

Universal insurance wouldn’t be enough, they say. “Any meaningful reform must, at a minimum, confront disparities in care,” which exist for minorities even under Medicare. Physicians must therefore be required to collect data on ethnic group, race, and language in a uniform fashion—and “implement rigorous interventions such as adherence to clinical guidelines and coordination of care for the chronically ill.”

Reformers assume that Gleichschaltung in the U.S. will make it a nice social welfare state, rather like Sweden. But Mark Steyn warns that America’s steep descent to Declinistan, accelerated by ObamaCare, will not be like the genteel decline of Vienna or Paris, which was cushioned by American power (National Review 1/25/10). Moreover, as the U.S. becomes more like Europe, the European Union, according to an article in Pravda, is becoming a reincarnation of the Soviet Union (Brussels J 11/6/09): a unified monster state, with the Nazi slogan revived.


Keeping the Workers Down

While it is true that the “rich” are targeted for higher taxes, their rates are to be no higher than 47.9%. In contrast, the “healthcare reform” legislation passed by the House and the Senate would, through mandates and subsidies, impose effective marginal tax rates between 53% and 74% over broad ranges of income for low-wage workers. Some would even face marginal tax rates greater than 100%. For example, under the House bill, families of four earning $43,670, who earn an additional $1,100, would see their total income fall by $870 because of higher taxes and reduced subsidies. Thus, the legislation would tend to trap workers in low-wage jobs and encourage continued dependence on the taxpayer (Cannon M, Cato Policy Analysis No. 656, 1/13/10).


Property and Rights

So often both critics and defenders of property rights get it wrong, writes Tibor Machan. “They contend that property rights are mostly about who gets to have something. And while that’s part of it, the more important matter is who gets to choose what happens to something.” If tax-takers extort 40% of the product of my labor, Machan observes, then they decide how to allocate those resources. Marxists, whatever they say, do not believe that labor belongs to the laborer; they believe that everyone’s time and labor and skills belong to “society” (Daily Bell 1/28/10).


Perverse Incentives

Most economists reject socialism, writes John Goodman, because everyone at the bottom has a self-interest in undermining a plan imposed by a few people at the top.

ObamaCare is even worse: It gives everyone an incentive to undermine the plan, and then imposes collective punishment on all of them when they respond to the perverse incentives.

The federal government sets physicians’ fees, but leaves doctors free to decide how many services to perform. If total spending does not moderate, the government imposes an across-the-board cut in fees (as with the “sustained growth rate” or SGR).

There is nothing meaningful a doctor can do to affect total spending, since his own work is such a small part of it. The only way to better himself is to bill for more, leading to a vicious cycle.

Every physician could think up a better compensation system, Goodman writes. They could substitute longer visits for several shorter ones, bringing in more revenue for themselves while economizing on resources and the patients’ time. (Framework for Medicare Reform, www.ncpa.org/pub/st315.)


The People Are Wrong, Say ObamaCare Backers

People oppose reform, acknowledges Henry Aaron of Brookings. “If public perceptions of the intended and expected effects of the current bills were accurate, democratically elected representatives might be bound to heed the concerns.” But since the perceptions are inaccurate, he says, reformers just need to do a better job of explaining what reform will do. “All sides” can present their ideas at a bipartisan summit. Worthy modifications “should be adopted through reconciliation.” And then “the House should pass the Senate bill” (N Engl J Med 2/10/10, online only).


100 Votes Short?

An unnamed “top Democratic House official” reportedly said that the answer to getting what the president wants is supposedly to “twist enough arms to pass the Senate bill.” The problem is that there are too many arms to be twisted.

Grace-Marie Turner suggests points that defenders of patient-centered medical care should make at the “summit” (Galen Institute Health Policy Matters 2/12/10). These include:

  • People will lose their current coverage.
  • Middle-class taxes will increase.
  • The CBO double-counts alleged Medicare savings.
  • One out of five hospitals and nursing homes would become insolvent, threatening access to care.
  • New taxes will retard job creation.


Massachusetts: Much Pain, Little Gain

The Massachusetts Executive Office of Health and Human Services claims the Commonwealth has achieved “nearly universal coverage,” with no evidence of private-insurance crowd-out ((N Engl J Med 2009;361:2012-2015). But the first analysis to use the Census Bureau’s Current Population Survey (CPS) for 2008 concludes that costs may be far greater and benefits smaller than believed.

Uninsured residents who accurately report their insurance status would be admitting to breaking the law, write Aaron Yelowitz and Michael Cannon; the nonresponse rate to coverage questions has increased since the mandate was enacted. According to their analysis, the Commonwealth’s official estimate appears to overstate the actual impact of the law on coverage rates by 45%. They also find evidence of substantial crowd-out of private coverage among the poor, and note that it is impossible to observe the extent to which public subsidies simply replace private dollars that would have been spent for coverage. Leading estimates understate the law’s costs by at least one-third, they write. Another generally unrecognized consequence is that 60% fewer young persons are relocating to Massachusetts than to other New England states (Cato Policy Analysis No. 657, 1/20/10, www.cato.org).

Reform advocates call fee-for-service payment an “engine for inflation.” In 2009, a Massachusetts state reform commission proposed instead to pay doctors and hospitals a fixed annual amount to treat a patient’s particular condition. Global payments without a stepdown schedule would not be enough to shrink runaway medical costs, said state Attorney General Martha Coakley. She proposed global budgets with shrinking caps (Boston Globe 2/8/10).


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.


New Mexico Court Denies Hospital Immunity

On Jan 11, a New Mexico appeals court upheld a lower court’s refusal to grant summary judgment to a hospital based on immunity under the Health Care Quality Improvement Act (HCQIA). The lower court correctly found that a question existed on whether the peer review action at issue was taken “after a reasonable effort to obtain the facts of the matter” (Summers v. Ardent Health Services No. 28,605 N.M. Ct. App. Jan 11, 2010).

Plaintiff William K. Summers, M.D., a long-time AAPS member, held privileges to practice psychiatry and internal medicine within the Lovelace Sandia Health System. In 2005, his privileges were permanently suspended (see Summers WK, Sham peer review: a psychiatrist’s experience and analysis, J Am Phys Surg 2005:10:118-119, www.jpands.org/vol10no4/summers.pdf.)

Summers sued for defamation, breach of contract, prima facie tort, and tortious interfere with prospective contracts.

The court held that: “where an outcome is based on only two allegations and doubt has been reasonably cast on the key fact giving rise to the...action, the total process and its result can reasonably be called into question” (Health Lawyers Weekly 1/29/10).

The allegation was based on notes taken by a case manager during a phone conversation, and neither the case manager nor the patient was ever questioned. Dr. Lawrence Huntoon, chairman of the AAPS Committee to Combat Sham Peer Review, notes that ad hoc “investigative” committees typically obtain only one side of the story, and fail to interview those who know the most about what actually happened.

Five years after the action, the process grinds on.


Nurse Tried for Alleged Bad-faith Complaint

The felony trial of Anne Mitchell, R.N., in West Texas attracted nationwide press, objections from the Texas Medical Board (TMB), and complaints by the nurses’ association, which packed the courtroom with supporters. The prosecution alleged that Mitchell, who had filed an anonymous complaint with the TMB, had “misused official information” in a vendetta against Rolando Arafiles, M.D.

Witnesses for the prosecution testified that she had called Dr. Arafiles a “witch doctor,” and said that “we need to get this SOB out of here” ( http://www.cbs7kosa.com/news/details.asp?ID=17861).

But there has been a severe shortage of physicians in remote Winkler County, and hospitals and patients have been on the physicians’ side. He lives in town to be available for emergencies, while the nurse lives in New Mexico.

One patient who testified for Dr. Arafiles said she was happy with her care, but her records were used against him without her consent. Now, personally identifying information about this patient is circulating on the internet, to her consternation.

While Dr. Arafiles took the witness stand, Mitchell did not. Under the 5th Amendment, defendants do not need to testify, although innocent defendants often do. This protection will not be available to her in the civil case she filed for damages.

Mitchell was acquitted by the jury, after a nurse who works for the TMB testified that the TMB, in the words of a television account, “weeds out possible false or harassing complaints from legitimate complaints: meaning, Dr. Arafiles probably had nothing to worry about” (kosa.com, ibid.).

This is the first case of its type, as far as we know. Generally, anyone has been able to complain about a physician, causing him to incur enormous legal costs and possible loss of livelihood, with the expectation of immunity, even for repeatedly filing false or malicious complaints.


The Right of Conscience

While James Madison said that “the conscience is the most sacred of all property,” this can no longer be taken for granted, write Daniel Allott and Matt Bowman (American Spectator, November 2009). In an online survey conducted by the Christian Medical Association, 32% of faith-based medical professionals reported having been “pressured to refer a patient for a procedure to which [they] had moral, ethical or religious objections.” And 20% of faith-based medical students said they are “not pursuing a career in obstetrics or gynecology because of perceived discrimination and coercion in that field.”

The learning objective in the September 2009 issue of the AMA’s Virtual Mentor is to understand the argument that “a physician’s exercise of conscientious objection should be made when he or she chooses a specialty—not when he or she faces a patient….” Stanford medical student Ariel Williams writes that she approves of the view that “professionalism demands that one concede moral authority...to the legal system, a professional organization, or the informal consensus of one’s peers.”


Auditors Compete—for Your Claims

In recessionary times, competing auditors are trying to impress government and private payers with their ability to bring in funds from “recovery” of “improper payments.” Expect a typical probe audit by a Medicare Program Safeguard Contractor (PSC) to “find” overpayments in 90% to 100% of reviewed claims, said Washington DC attorney Robert Liles, for both substantive reasons (“medical necessity”) asnd technical ones. Such an error rate can lead to referral for criminal prosecution. Recovery Audit Contractors (RACs) are aggressively targeting all providers in 2010.

They may skip the formality of an audit and just send an automated response claiming that money is due (MPCA 1/25/10).


Pain Doctor Gets Life Sentence

The Sixth Circuit Court of Appeals upheld the conviction and life sentence of anesthesiologist Jorge Martinez. The court found it was proper to use the intended loss of $60 million instead of the actual loss of $12 million in the restitution calculation.

Martinez prescribed OxyContin and other controlled substances to chronic pain patients, some of whom were allegedly drug abusers, and also administered trigger-point injections and nerve blocks, far more of them than the state average.

The court found that Martinez was not convicted of being the immediate cause of two patients’ deaths, but of “fraudulently performing unnecessary medical services that led to [their] deaths.” Even if he did not intend for his patients to die, he was held responsible because of sufficient evidence that the deaths should have been foreseen. It was not found unreasonable to reject pleas for leniency based on years of service to patients and the fact that he had helped many (BNA’s HCFR 12/16/09).



CMS Training. There has been confusion about the requirement for physicians to receive annual training in the prevention of waste, fraud, and abuse (AAPS News, January 2010). It is said that the “fine print” requires Medicare Advantage to provide the training, and that the AMA is working to have the requirement rescinded. Many physicians in my area have taken either the CMS course or a Medicare Advantage course. CMS often writes confusing and contradictory rules, and has to hire consultants to interpret them. One could make a request, as through the Freedom of Information Act, for clarification, but in my experience the information provided is no longer applicable by the time they get back to you (after 2 years in one case).

There may be good reason to train physicians to jump through meaningless, worthless bureaucratic hoops. My wife uses this very tactic when our umbrella cockatoo does not follow a command. She requires him to “step up” repeatedly from one hand to the next so that the unruly bird learns who is in charge.
Lawrence R. Huntoon, M.D., Ph.D., Lake View, NY


Diversity Needed. Why isn’t the purchase of health insurance viewed like the purchase of a car, a house, a higher education, or some other frightfully expensive consumer good? There is no one best product. Good policy would be to have a large number of different arrangements vetted by consumers who vote by voluntarily handing over money. Some may want an HMO, but if I get sick, I want to be an opportunity for those whom I pay to take care of me, not a cost. Also, Kaiser gives me no cash if I decide to go against its judgment for my treatment. .
Linda Gorman, Ph.D., Independence Institute, Golden, CO


Customer Non-service. Someone who had worked in customer service at a well-known HMO told me that the policy was not to answer the phone until it had rung 15 times, and then to get off the call as soon as possible. This is a form of cherry picking. Those who have few claims have no need to call. Only the higher users find out about the lousy service and want to switch plans.
Greg Scandlen


Keeping Premiums High. Say that the law requires a minimum loss ratio (MLR) of 85%. In some states, there is a 6.1% premium tax. If you “allow” 2% for profit, that leaves 7% for expenses. For a policy that costs $500/mon, that is $35. Suppose you can bring the premium down to $250/mon, as by increasing the deductible and repealing mandates. Will it still cost $35/mon for administration, or will the landlord cut the rent in half and the employees take a 50% pay cut? If they don’t, administration now costs 14%, and with premium taxes and profit, overhead is now 22%. With the 85% MLR requirement, it would be illegal to sell the policy. The solution of course is to keep premiums high.
Ralph Weber, C.L.U., Paso Robles, CA


Patient Education. I encourage my patients to learn about the issues by going to the AAPS website (www.aapsonline.org). They are thanking me, and are sharing the information with friends. A little encouragement could go a long way toward galvanizing opposition to “reform” as currently constructed—and to replacing the AMA as the perceived voice of American physicians.
Scott Forrer, M.D., Tucson, AZ


Pressure Tactics. Our hospital is about to drop CIGNA because of its dismal pay scale. Primary care doctors are up in arms—even though most have stopped making rounds in the hospital. CIGNA requires that physicians have hospital privileges somewhere even if they never admit patients. CIGNA has threatened to drop the doctors if the hospital drops its participation. Imagine, the doctors are groveling for the 73% of Medicare rates they get from CIGNA. Atlas needs to shrug—I have no insurance company contracts, and I encourage my colleagues to do likewise.
Alieta Eck, M.D., Somerset, NJ


Free the Captives. In old movies, farmers would run to the stable and corral to free the animals if a storm or fire threatened the survival of a farm. I was impressed by this gesture of humanity, to give the animals a chance to survive free, or die fighting. Too bad those who have gained so much control over our economy lack this compassion. “Lawmakers” should stop new legislation, and concentrate on freeing us from burdens that stifle innovation.
Janice Michaud, Manhattan Beach, CA


Regression. Somehow, unnoticed, the U.S. has slipped back into the medieval era, with guilds, fiefdoms, and principalities assuming tyrannical powers over professions, properties, and persons’ liberty. The U.S. has become a caricature of the civil model envisioned by the Founders. The Republic with a strong axial structure of power has degenerated into a Brezhnev-era soviet-style anti-meritocracy. The issue is not a tyrannical emperor. The tyranny is perpetuated by dozens of ambitious provincial governors and councils under the pretense of “protecting the public.” They do as they please, and are not accountable to anyone. Corruption and favoritism flourish. The situation with medical boards is grave; a “severe punishment frenzy” is becoming a national trend.
Walter Borg, M.D.