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

Volume 65, No. 5 May 2009


With Constitutional checks and balances disconnected, the nation is hurtling toward a centrally planned economy.

Soon the keystone is to be set in the arch: government control of medicine, either through a public Medicaid-for-all plan, or government approved and mandated "private" plans (a.k.a. fascism). In the 1950s, the AMA also recognized the truth in Lenin's insight about the importance of medicine (see AAPS News, April 2009). It is even more true today.

Medicine is now a much larger sector in the economy: approaching one-sixth. It affects almost everyone, and at a time of greatest vulnerability. It engages the most highly educated group of professionals the only one with the moral duty, and potentially the financial ability, to protect patients. It possesses a window into everyone's fears, desires, and weaknesses.

Doctors dependent on government for their livelihood can protect patients against a tyrannical government only at great personal peril.

The Importance of the Oath

German-speaking seniors in Tucson, who lived through the war in Europe, ponder the mystery of why German generals bowed to an Austrian corporal who was clearly mad. It's because they changed the oath, said a 90-year-old former Wehrmacht conscript. Previously, the military swore fealty to the Vaterland. Hitler got them to swear to obey the Fhrer.

Physicians no longer swear to prescribe for the good of their patients, according to their knowledge and judgment, or to do no harm. The new oaths say or imply that the greater duty is to the collective (www.aapsonline.org/ethics/oaths.htm). Applicants for membership in the AMA must pledge to uphold the AMA's Principles of Medical Ethics, and to disclose violations. The AMA is required, it says, to report denial of membership to the National Practitioner Data Bank.

AMA Principle #2 states that "a physician shall uphold the standards of professionalism [undefined], and strive to report physicians deficient in character or competence."

Principle #3: "A physician shall respect the law and also recognize a responsibility to seek changes in those requirements which are contrary to the best interest of the patient."

It might be interesting to ask an AMA official whether there is any circumstance in which a physician has a duty to disobey a law that requires him to harm a patient.


While "autonomy...is the cornerstone of physician professionalism," autonomy must be surrendered to achieve a "balance for patient safety and quality" and to control cost. "Medical students...should be fully socialized in their role as agent rather than autonomous decision maker." Physicians must "trust that standards are wise" (JAMA 2008;300:2913-15).

"There can be no universal coverage without universal submission," writes James Bovard (Am Conservative 3/9/09).

Autonomy, moreover, conflicts with the physician's ethical obligation to work for "social justice." Each physician must ask, write Darrell Kirch and David Vernon of the Association of American Medical Colleges, whether the inefficiencies of old delivery models and 1- or 2-physician practices are acceptable, and whether behavior must shift from "autonomous, market-based individualism" to "greater social accountability and team behavior" (JAMA 2009;301:1482-1484).

Changing the Law

American colonists carried petitions to the Court of St. James, bowed to the King, and walked backward in his presence. Their petitions were unavailing.

Today, a scientist attempted to walk the halls of U.S. Senate buildings, delivering to each office a copy of a book containing the names of 32,000 signatories to a petition. He made it through the first office building, but then Security blocked him from entering the others. The books might be a vehicle for delivering drugs, or anthrax powder, he was told.

When asked "What happened to our right to petition the government for redress of grievances?", a staffer for Rep. Ron Paul said, "It's in the same place as our other rights."

A citizen is not allowed to go door to door in the Arizona legislature either; a staffer has to invite you to enter.

The DeMint Amendment, which passed the Senate on a voice vote, requires a "point of order" calling for 60 votes on any proposed legislation that would prevent Americans from keeping their current health care plan. Anything else, apparently, can be forced through as part of the filibuster-proof "budget reconciliation" process. The Kyl Amendment, which would have codified the promise that comparative effectiveness research would not be used for rationing care, was defeated on party lines. Changing a law may be virtually impossible.

The Ultimate Recourse

Physicians have long accommodated to increasingly onerous government and other third-party demands, in order to serve their patients. But is there a point at which they are morally obligated to assert their professional independence, instead of following orders? What is that point? Performing abortion? Forcing psychiatric medication on a dissident? Withholding a beneficial medical service? Entering confidential information into a national database? Involuntary euthanasia?

American colonists signed a document that put them at high risk of being hanged for treason, and took up arms.

Mahatma Gandhi urged noncompliance: "...Then they will have my dead body, not my obedience."

Will American physicians draw a line or set the keystone?

Physician Declaration of Independence

Our last issue included a copy of a document authored by one of our members, Richard Amerling, M.D., of New York, an update of the version posted on our website since 2004.

Recall that at the Continental Congress in 1776, Thomas Jefferson's draft was extensively marked up by the delegates. Another copy is enclosed that you may mark up, and possibly sign as revised. We received about twice as many anonymous cards stating a doctor had signed than we received declarations; here's another opportunity to return yours. Many members offered interesting suggestions; for example, an internet petition to become binding when a critical mass is reached. No one responded that "physicians have a duty not to declare independence, but to submit to the established authorities, government and third parties, no matter what."

Please consider what actions you would take, and under what circumstances, to preserve the integrity of our profession. And send us your comments.


Cultural Revolution

It appears that the "long march through the institutions" counseled by Italian Marxist Antonio Gramsci is achieving the desired effect of leading Americans to embrace socialism.

The leftist vision requires disposing of such documents as the Declaration of Independence. Rather than being based on "self-evident truths," George Soros concluded that it was merely a statement of our "imperfect understanding of the world around us" (AIM Report April A-2009).


The Three Steps of Socialism

Socialism is the mechanism that "transforms government from its noble role as a protector into a predator," writes John Loffler (NewsWithViews.com 7/23/08). The path that other countries have followed to chaos, economic ruin, and ultimate self-destruction begins with the promise of something for nothing. As dependence swells, so do the bureaucracies to control the givers and the takers. In stage two, people begin to see that their earnings are confiscated by taxation or destroyed by inflation, and begin to take evasive action. The dragon wants to monitor all that citizens do, in the name of morality or security in order to be sure the plunder is paid. Productive enterprise becomes increasingly dangerous. In stage three, faith in government dissolves, along with faith in the currency. Those who relied on promises that can't be kept are outraged. So are citizens who were bled to feed the dragon. Brute force may be required to restore order fertile ground for dictators.

America is entering stage 2, Loffler thinks, and is at an economic and moral crossroads.


Formerly Uninsured Harmed in Massachusetts

More of the formerly uninsured have told Harvard School of Public Health surveyors that they've been hurt by mandates and expenses than say they've been helped by subsidies and coverage. They are poorer thanks to mandatory premiums but do not necessarily have better access to physicians. The safety-net community clinics and public hospitals are being defunded (Physicians Practice, April 2009). Between 2007 and 2008, medical spending in Massachusetts increased 23%. No other state has seen such a steep increase (CPR 4/9/09).


Vaccine for Internet Libel

Emerging as one of the fastest growing internet applications is doctor bashing or, as it is euphemistically described, physician ratings. The majority of sites allow anonymous postings, with no verification that the poster is even a patient. State and federal laws prohibit physicians from responding to these statements. And most sites have only one or two anecdotal postings for a specific physician; such a sample size lacks statistical validity.

Medical Justice has developed the only remedy we know of to prevent cyber-smearing internet posts. A free one-year trial is available to AAPS members: see enclosed flyer.


The Administrative Cost Myth

If all medical insurance had the same purportedly low administrative costs as Medicare, it is alleged, the savings would be enough to cover all the uninsured. Not so, say Greg Dattlio and Dave Racer, using Congressional Budget Office figures.

About 12.7% of outlays by private insurers are for non-care ("administration"), compared with 26% by all internally administered government programs (Medicaid, SCHIP, veterans, military). Medicare, in contrast, is externally administered by private companies, with 6% spent on non-care. If Medicare were administered internally, it would add $1 trillion to costs over the next 10 years. The reasons private companies pay more for non-care with their own claims include: taxes and other govern- ment assessments; smaller average claims; greater scrutiny of claims (thus less fraud); and the costs of marketing and premium collection. CMS costs for enrollment, outreach, and auditing do not count as administration, and the IRS collects the premiums and revenue. (For a 2-page summary, see www.freemarkethealthcare.com).

The tax system also imposes costs on the economy over and above the revenues generated, notes Benjamin Zycher. The lowest plausible estimate of that "excess burden" raises the true cost of delivering Medicare benefits to 25% of outlays, or double the net cost of private insurance. (Medical Progress Report No. 5, October 2007, www.manhattan-institute.org/html/mpr_05.htm).

The deeper question, Zycher writes, is whether health insurance is to be an efficient risk-pooling mechanism, or a vehicle for redistributing wealth.

"Single-payer systems inexorably must ration care," he writes, but a deregulated system not tied to employment could provide, like life insurance, powerful incentives to purchase actuarially fair coverage for chosen benefits when young. The problem of the poor could be addressed in many ways.


AAPS Calendar

Jun 5-6, 2009. Workshop on Building a Healthy Independent Practice, briefing, and board meeting, Dallas, TX.
Sep 30-Oct 3, 2009. 66th annual meeting, Nashville, TN.
Sep 15-18, 2010. 67th annual meeting, Salt Lake City, UT.

"Red Flag Rules" Apply to Physicians Who Bill

The Federal Trade Commission (FTC) has announced that physicians who defer payments owed by their patients are likely to fall within the definition of "creditor" and thus be subject to the Red Flag Rules, which are part of the Fair and Accurate Credit Transactions Act of 2003 (FACTA). Penalties are up to $2,500 per violation. The FTC, unlike the Office of Civil Rights, which administers HIPAA, has lots of money to go after violators (MCA 3/23/09; www.ftc.gov).

The Rules are meant to protect against identity theft. "Red flags" include identification documents that appear to have been altered or forged; an address on an application that is fictitious or a mail drop; a Social Security number that is not appropriate for the date of birth.

If you are covered by the rule, you will need written policies and procedures for implementation. If you are a HIPAA- covered entity, your business associate agreements need to include compliance with these rules (MCA 4/6/09). See: www.worldprivacyforum.org/pdf/WPF_RedFlagReport_09242008fs.pdf

"The FTC rule provides another strong incentive for physicians to become third party free and collect at the time of service," writes Dr. Lawrence Huntoon.

In fact, the FTC noted the concern that physicians may begin to demand payment for services up front.


Conscientious Objection Unprofessional?

The Provider Conscience Clause represents "conscientious objection gone awry," writes Julie D. Cantor, M.D., J.D., who represents Planned Parenthood in an unrelated legal matter. We need to "restore selfless professionalism in medicine" (N Engl J Med 2009;360:1484-1485).

"There comes a point at which toleration breaches the standard of care." We allow current conscience-based exceptions on sterilization and abortion only "because abortion remains controversial in the United States." If we permitted a broad range of beliefs to hinder patient care, surgeons might refuse to order transfusions, and internists to treat overweight diabetics.

"Medicine needs to embrace a brand of professionalism that demands less self-interest, not more.... Conscience is a burden that belongs to the individual professional; patients should not have to shoulder it."

Conscientious objection makes sense with military conscription, Cantor acknowledges, but it is worrisome with professionals who freely chose their field. Anybody with qualms about abortion, sterilization, or contraception should not practice women's health, she asserts.

"Health care providers...should cast off the cloak of conscience when patients' needs demand it."

Most Americans do not share Cantor's views. A March Polling Academy poll of 800 Americans found that 87% believe it is important to "make sure that healthcare professionals in America are not forced to participate in procedures and practices to which they have objections." The percentage was 95% of those who are pro-life, and 78% of those who back legal abortion. When the question was framed specifically to refer to abortion, support for the Conscience Clause outpaced opposition by a margin of more than 2 to 1 (63% v. 28%), including 56% of those who voted for Obama, and 60% of those calling themselves pro-choice (LifeNews.com 4/8/09).

For AAPS comments on the Obama Administration's proposed rescission of the Clause, see www.aapsonline.org.


TMA Opposes Medical Board Reform

The Texas Medical Association opposes the strong reforms proposed by AAPS in HB 3816 to limit the power of the Texas Medical Board, and impose some oversight. In a letter to several AAPS members, TMA president Josie Williams, M.D., said the reforms would "reduce medicine's professional standing in Texas and diminish the agency's ability to protect public safety." For example:

"The bill sets higher standards for TMB to prove a violation than for a personal injury trial lawyer to prove a medical liability case. The plaintiffs' attorneys will use this as one more argument in their campaign to reverse the 2003 liability reforms."

"This objection is absurd," writes AAPS General Counsel Andrew Schlafly. The tort reform is in the constitution, and is not at risk. The standard for revoking a doctor's license should be higher than for making him pay money.

Williams also asserts that the bill would weaken TMB's authority to sanction physicians for "non-therapeutic prescribing" not subjected to rigorous scientific investigation. Schlafly responds that the bill still allows TMB to sanction physicians for treatments likely to harm patients.

"The Board should not be quashing innovation in the absence of potential harm," he said. Its job is to protect the public, not to control the practice of medicine. [For letter and response, see www.aapsonline.org/tmaopposition.php.]

Also noteworthy is that incoming TMA president William Fleming III, M.D., comes from the Federation of State Medical Boards (FSMB), which opposes restricting the power of state boards. In a 1996 presentation to FSMB, Fleming essentially equated "unproven" medical treatment "that has not yet gained general acceptance in the U.S." with fraud or quackery.


Ninth Circuit Dismisses Language Rule Challenge

After 2 years, the Ninth Circuit finally handed down a decision in Colwell v. HHS, a 2003 case that challenged a Clinton Executive Order requiring translation services for patients with limited English proficiency. While acknowledging that plaintiffs had standing and that the case was ripe, the Court nonetheless found that it lacked "prudential ripeness" because plaintiffs had not been threatened with HHS actions against them yet. The Court noted that HHS spends less than $500,000 annually on enforcement and has not moved beyond the voluntary compliance stage yet. No recipient has had HHS funding terminated for noncompliance yet.

"The Court clearly manufactured an excuse not to resolve the legal issues," writes Sharon Browne of Pacific Legal Foundation, the principal attorney for plaintiffs.


Doctor Acquitted; Prosecution Sanctioned

After a month-long trial, a federal jury in Miami Beach acquitted Dr. Ali Shaygan of 141 charges of illegally prescribing painkillers to his patients, including a man who died of a drug overdose. Then U.S. District Judge Alan S. Gold issued a reprimand and ordered the U.S. government to pay the defendant more than $600,000 partial payment of his legal fees. The prosecutors had asked two witnesses to secretly tape record conversations with defense attorney David Markus and his investigator, without obtaining permission from supervisors or informing the defense (Miami Herald 3/11,3/13,4/9/09).


The Waxman Plan. Forget about "comparative effectiveness research. Rep. Waxman appears to be going for the ultimate "cost savings" initiative. Nancy Nielsen wrote: "Waxman talked about high costs of care at the end of life and wondered if a reduced insurance premium might be available to patients who have at least considered an advance directive" (AM News 3/30/09). This at a time when the MOLST (Medical Orders for Life Sustaining Treatment) is looking to expand nationwide. If you think we have problems with errors in electronic records now, wait until we have a fully functional electronic MOLST system in place. If the ambulance's database says you are a "discount" patient, there will be no appeal.
Lawrence R. Huntoon, M.D., Ph.D., Lake View, NY


The EHR Is About Control. The cause of the "perfect storm" in medical records, the subject of an Apr 3 article in Medical Economics, is plain to anyone except vendors, politicians, and the "experts" who advise the politicians and profit greatly from the relationship. How incredibly arrogant are the know-nothings who barge in and presume to instruct us in how to manage our practice and our record-keeping! The medical record, refined over centuries, was developed by and for physicians not attorneys, insurers, politicians, etc. It is arranged to reflect the thought flow of the physician. The interlopers find it unsuitable for their purpose which is control. Some variant of the word "compliance" occurs 49 times in the article. To control the population, it is necessary to know what people are doing, and the results of one's efforts to control them. The purpose of the electronic health record is to make physicians accountable to the state, rather than to patients, and to create a dossier on every citizen. The EHR is a Trojan horse that will open the gates to an invading army of bureaucrats and central planners. Dissidents will be identified and punished. We must reject this poisonous gift, and resist every effort to implement such a system, for our patients' sake.
R. Wayne Porter, M.D., Terrell, TX


EHR + CER. The combination of coerced national EHR and "comparative effectiveness research" will be a nightmare. Much can be done with terabytes of dirty data and a political agenda to control costs (or simply to control). HHS nominee Sebelius endorses using EHR to do CER on the "relative strengths and weaknesses of alternative medical interventions." Good luck to private physicians and medical innovators, to pharma, and to patients. Slowing down EHR adoption is the key to slowing down the potential for abuse.
Scot Silverstein, M.D., Lansdale, PA


Who Is Our Audience? I've spent some time with government care devotees. They seem to have different motivations. One group has deluded itself into thinking that what is good for big business is good for America. They run a big health plan; they want to expand their business; making people buy their plan is good. The second group thinks that people make wrong choices and need the firm hand of the people making the rules to get them to shape up. The third type hates insurance companies and is for anything that wipes them out. It is a subset of people who intensely dislike private anything, and think government is better at everything. This mindset is prevalent in government and people who work for nonprofits, even if the latter depend on private companies for their existence. To deny that public service and nonprofits have a higher moral purpose would shred their character.

Those who deny plain evidence to save their thought utopia fall somewhere between Mussolini and Lenin (types 2 and 3). Forget about changing their minds, even if they put on a show of reasonableness. It is more productive to work on people who haven't made up their minds, or who have been lied to. With enough opposition, the Krupp types may fall into line as they just want to be on the winning side. Mussolini types may tack differently. Lenin types will just soldier on.
Linda Gorman, Ph.D., Independence Institute, Golden, CO


What, and When? It was not enough to have crypto- socialism. We will now move toward openly socialist philosophy. Society behaves like an alcoholic who would rather drink himself to death than give up his addiction. My question is: What should be done when dignified and chivalrous methods of fighting do not work? When one has to stop fighting within the system, and to start fighting the system? Our Founding Fathers did just that. It is sad that after 200 years, we have to start over.
Walter Borg, M.D.


When Will They Quit? If you had a business, and people kept paying you less and less as your costs went up, would you keep doing business with them? How low do reimbursements have to go before doctors will consider splitting from third parties?
Ralph Weber, C.L.U., Paso Robles, CA


The Pool. Today people commonly think of insurance as a big pool of money that everybody contributes to and takes from as needed: a "socialistic" idea that leads to the Tragedy of the Commons. Once you pay your fee, you want to get as much as you can before others grab it all. The emphasis in "risk pool" should be on "risk," not "pool." Real insurance is a contract; there is no unallocated pool of money.
Greg Scandlen, Heartland Institute