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

Volume 62, No. 11 November 2006


It is hard to be opposed to "quality" in housing, in physicians, in medical care, or in life.

When people demand "universal access" to care, it is understood and usually specified that it must be "quality" care. And numerous agencies of government assure that substandard quality will not be permitted. But what does this really mean?

An Economic Perspective

In a 1924 treatise entitled Economics for Helen: a Brief Outline of Real Economy, Hilaire Belloc writes:

In any civilisation it is thought that human beings must not be allowed to sink below a certain level.... This does not mean that no one is allowed to starve or die of insufficient warmth. It means that any particular civilisation...has its regulation minimum and lets men die rather than fall below it.

In the England of his time, Belloc estimated that the average laborer had to produce at least 2 of economic value per week, or life would not be worthwhile. Labor would cease, and the civilisation would "run to famine and plague."

In 1928, George Bernard Shaw advocated radical equality, including equal pay for all. In The Intelligent Woman's Guide to Socialism, Capitalism, Sovietism, & Fascism, he writes:

Under Socialism you would not be allowed to be poor.... If it were discovered that you had not character and industry to be worth all this trouble, you might possibly be executed in a kindly manner; but whilst you were permitted to live you would have to live well.

It is thus a matter of quality or equality or death.

In America today, those whose labor is not worth the minimum wage are not allowed to work, substandard housing is condemned and torn down, and physicians who "fall below the standard of care" are delicensed, or even imprisoned.

Defining the Quality of Medical Care

Inevitably, the bureaucratic definition of quality will involve a statistical metric. Problems include confounding variables, the lack of power with small samples, and the ability to falsify paper audits. Those who insist on "objective" measures end up measuring what they can, given the available data, and then often confuse these proxy measures with real endpoints, notes Linda Gorman. Persons who focus on long checklists can miss huge problems because they're just one item on the list; or they miss problems that are slowly getting worse because they focus on the list rather than the patients.

At an Oct 5 Heartland Institute Emerging Issues Forum, Richard Dolinar, M.D., queried whether outcomes data measured the doctors or the patients. Under "pay for performance," weather forecasters in Chicago would get nothing, and those in Phoenix would get all the bonuses.

Worse quality of care can lead to better apparent health outcomes. Gorman points out that the UK systematically discriminates against older patients. If British diabetics die younger of kidney failure, there will be fewer (and healthier) older diabetics in the UK than in the U.S.

Flawed Process, Perverse Outcome

The process of measuring, whether it presumes to judge either the process or outcome of medical care, has not itself been validated. Moreover, it influences medical practice, and its own outcome is likely to be the achievement of its real purpose: rationing care. Trumped-up statistical measures, writes Gorman, take the place of the all-powerful Oz on the throne, and hide the little man behind the curtain. Slash-and-burn cost-control policies change the "standard of care" for the worse.

The Right to Access "Poor Quality"

At his father's memorial service, Terry Bennett, M.D., was approached by a man bearing all the stigmata of alcoholism. He pulled up his sleeve to show an arm with a crazy quilt of an old injury. When drunk, he had punched his fist through a window, then pulled it back. He couldn't move his fingers and was bleeding to death. But he knew what to do.

"I went to the Bar and fished your dad out."

In his office, the elder Dr. Bennett "reached in there, into what was left, and he fished out those little spaghettis, and he tied them back together, in knots, it took him a long time, and then he sewed it all back together and bandaged it up."

"Doc, take a look at it, it ain't pretty, but it works perfect.... And,... he wouldn't let me pay him."

This virtuoso had done, while intoxicated, alone in his office, multiple tendon repairs that ordinarily take a team of surgeons and technicians in an operating room, with no guarantee that the patient's hand would ever work again.

Today, Doc would probably be delicensed to "protect" patients, while many hospitals have no hand surgeons available to operate on penniless drunks at any hour.

Insistence on "quality" can be dangerous because the alternative to poor care is all too often no care. Additionally, the self-appointed guardians are themselves subject to corruption, incompetence, or short-sightedness. Innovative care by definition deviates from the standard.

Malpractice lawyers, regulators, prosecutors, and "experts" cannot guarantee quality or safety. They can and do block access to the best available care by outlawing it, by driving costs out of reach, or forcing prices so low that no one offers the service. The real-world alternatives are free competition on the basis of quality and price or a drive to Utopia that ends with mediocrity for all, and death to the hindmost.

Quality of Life, and Oxygen

Bioethicists have now determined that "supplemental oxygen is a form of life-sustaining medical treatment." Thus, "requests to discontinue oxygen should be honored with the same judiciousness as requests to withdraw other forms of life support," if the quality of life is "unacceptable." This to be distinguished from physician-assisted suicide, they say, and "the fact that the primary purpose of [requests to remove treatment] is to escape the burden of life itself, rather than the burden of therapy, does not absolve physicians of their duty to heed patients' request for therapy withdrawal [emphasis added]." Benzodiazepines and opioids may be administered to relieve dyspnea or anxiety (JAMA 2006;296:1397-1400).


Reelection Year

Joseph Sobran proposes a cure for the status quo in Washington. "When the voters have made such a hash of democracy, the only hope lies with the nonvoters." He argues that if 10% of the electorate always voted against the incumbent, it would put an end to the career politician and reduce the accumulation of power. Few politicians would be worth bribing. "American politics could be peacefully revolutionized" (The Reactionary Utopian 9/26/06, www.griffnews.com).


AAPS 63rd Annual Meeting


The following Resolutions were passed by the Assembly and are posted at www.aapsonline.org/resolutions.htm:

Voluntary Health Insurance

The purchase of health or medical insurance should be voluntary, and no individual should be forced to purchase insurance, nor should any business be forced to provide insurance for its employees.

Health Information Technology

AAPS opposes any health information technology system that is not voluntary; any health information system must be patient- centered, market-driven, and have no embedded, direct link to pay-for-performance; and participation in a government program should not be contingent upon the use of electronic health information technology.

Narcotic Drug Recycling

AAPS supports revision of federal rules to allow for the prudent recycling of all viable medications including narcotics, and urges Congress to take action to implement those changes.

Direct Insurance Payment to Policyholder

AAPS urges insurance companies to facilitate the direct submission of medical claims by the policyholder; and AAPS encourages insured patients to file insurance claims directly with their insurance company, and to negotiate terms of payment with their physician(s) at time of service.

Physician Pricing Transparency

AAPS encourages physicians to voluntarily make public their prices for medical services, particularly for direct payment by patients.

State Pricing Transparency

AAPS urges all state governments and agencies to make public the premiums paid for state employees and state-sponsored health plans, including Medicaid and S-CHIP, and to publicly post the reimbursement rates paid to hospitals and individual providers under those plans for specific medical services and procedures.

Federal Pricing Transparency

The federal government should make public the terms of the contracts, and premiums paid, for federal employees and any other federally-sponsored health plans, including Medicare, the Federal Employee Health Benefit Program (FEHBP), and Congressional health plans, and to publicly post the reimbursement rates paid to hospitals and individual providers under those plans for specific medical services and procedures.

Abstinence Education

AAPS endorses educational programs that emphasize the benefits of premarital abstinence and marital fidelity; endorses educational programs that teach ways to reject sexual advances and the harmful effects of bearing children out of wedlock on children, parents, and society; and encourages parents to examine school curricula and resources pertaining to sexual activity for age appropriateness, accuracy, and acceptability.

Patients' Safety

AAPS supports that the Federal Health Care and Safety Code require that all healthcare facilities, private or public, receiving Federal funds, including but not limited to Medicare and Medicaid, must comply with the Federal Constitution.

AAPS urges Congress, all state legislatures, and all state medical boards to extend existing physicians "Whistleblower" and "Patient Advocate" protections to all physicians in the country, not just to those who are employees of hospitals, managed care organizations, States, and federal institutions.

AAPS urges Congress to rescind the following paragraph in the Health Care Quality Improvement Act of 1986:

A professional review body s failure to meet the conditions described in this subsection shall not, in itself, constitute failure to meet the standards of subsection (a)(3) of this section.


Officers Elected

Robert P. Gervais, M.D., an ophthalmologist from Mesa, AZ, assumed the presidency, and the following officers and directors were elected:

President-Elect: Tamzin Rosenwasser, MD, Lafayette, IN

Secretary: Charles McDowell, Jr., M.D., Alpharetta, GA

Treasurer: R. Lowell Campbell, M.D., Corsicana, TX

Directors: Lawrence R. Huntoon, M.D., Ph.D., a neurologist from Lake View, NY; James L. Pendleton, M.D., a psychiatrist from Bryn Athyn, PA; Mark Schiller, M.D., a psychiatrist from San Francisco, CA; George R. Watson, D.O., Park City, KS; and Todd B. West, M.D., a family physician from Tallahassee, FL.


AAPS Calendar

Oct 10-13, 2007. 64th annual meeting, Cherry Hill, NJ.

"No man who has the truth to tell and the power to tell it can long remain hiding it...without ignominy" (Hilaire Belloc).

Dr. Bennett's Freedom of Speech Upheld

In a very unusual action, Judge Edward J. Fitzgerald, III, of the Merrimack County (NH) Superior Court has enjoined the medical licensure board from prosecuting a physician as a result of three complaints based on his communications with patients (Terry M. Bennett, M.D. v. New Hampshire Board of Medicine, No. 05-E-478).

Patient A complained that Dr. Bennett had made offensive remarks to her concerning her obesity. The Board also resurrected an allegation made 4 years earlier that Dr. Bennett had advised Patient S, who had an inoperable brain tumor, to buy a pistol and shoot herself. Dr. Bennett denied ever having made such a remark and noted that the patient apparently "becomes confused" and is not "clear about what was real." The complaint had been dismissed as unfounded. Later, Patient D complained of Dr. Bennett's answer to a question about whether she could contract hepatitis B from her son: "Not unless you're having sex with him."

The Board refused to allow Dr. Bennett to depose his accusers and was planning to allow them to testify anonymously, thus denying the doctor the right to cross- examination.

The Court held that postponing review until after entry of final judgment by the Board "might result in immediate and irreparable harm to the petitioner in that he could lose his license to practice medicine as a result of an unfair abridgment of his rights." As the doctor is 67 years old, he could lose his ability to practice for the rest of his professional life, as appeals wended their way through the system.

The Court noted that there were no allegations of inappropriate or inadequate care, or evidence of adverse health impacts from the doctor's statements. And "to the degree that the Board has defined unprofessional conduct, it has specifically stated that rude behavior is not generally actionable unless accompanied by other acts...." A "remarkably subjective standard," which leaves determinations about treating a person with "dignity and respect" to the "sensitivities of the listener," is not the "narrow type of regulation that could comply with constitutional requirements."

Physicians do not forfeit their freedom of speech by obtaining a professional license. Indeed, it is "within the public interest to foster open and frank discussions between physicians and patients," even though "the Court does not condone in any way the type of comments made by the petitioner."

The Motion for Injunctive Relief and the Court's Order are posted at www.aapsonline.org under "Licensure."

Tip of the Month: Few realize that the IRS has strict internal procedures preventing the disclosure of tax returns to others in government. Many jurors, for example, falsely fear access by the prosecutor to their tax returns. Such access would not be allowed. Just as phone wiretaps are very rare, disclosure of tax returns by the IRS is very rare. But prosecutors can seize tax returns found during a search of an office or home, even though not listed on a search warrant. The first question by a prosecutor after a search can be: "Did you get his tax returns?"


HIPAA Status and Electronic Information

An entity that only receives, but does not transmit electronic health information, such as remittance advice, is not a HIPAA-covered entity (see http://questions.cms.hhs.gov; search on "receive health information electronically").


Court Rejects Absolute Immunity

Bruce Feyz, M.D., was referred by his hospital for psychiatric examination and placed on indefinite probation when he persistently defied standing orders and wrote individualized orders. He requested that nurses obtain the medication history by asking patients what pills they take, instead of copying directions from prescription bottles.

Dr. Feyz subsequently brought suit against this private hospital, "alleging civil rights violations, invasion of privacy, breach of fiduciary duty and public duties, and breach of contract...." [Bruce B. Feyz, M.D. v. Mercy Memorial Hospital et al., Supreme Court of Michigan No. 128059 (June 24, 2006)].

The Court rejected the proposition that judges are not competent to intervene in peer review matters, which effectively turns qualified into absolute immunity for hospitals:

[W]e are not persuaded by the argument that courts are incompetent to review hospital staffing decisions as a basis for adopting the judicial nonintervention doctrine. This claim overlooks the reality that courts routinely review complex claims of all kinds. Forgoing review of valid legal claims, simply because those claims arise from hospital staffing decisions, amounts to a grant of unfettered discretion to private hospitals to disregard the legal rights of those who are the subject of a staffing decision, even when such decisions are precluded by statute.

The Court also adopted the "actual malice" standard, holding that a review entity is "not immune from liability if it acts with knowledge of the falsity, or with reckless disregard of the truth or falsity, of information or data which it communicates or upon which it acts."


Patients Beware: Filling Prescriptions a Crime?

Richard Paey, a wheelchair-bound chronic pain patient now serving 25 years in a Florida prison, sent AAPS a handwritten letter and a news clipping (John Tierney, "Just Doing His Job," New York Times 1/31/06). Paey filled prescriptions from an out-of-state doctor for 25 pills/day, containing less total oxycodone than a single high-strength OxyContin pill. Prosecutor Scott Andringa told the jury that the doctor wasn't practicing proper medicine; therefore, the prescriptions were illegal and Paey shouldn't have filled them.

If his appeal fails, Paey suggests that AAPS advise patients not to have out-of-state prescriptions filled in Florida.

Paey refused to take a deal requiring him to testify against his doctor. But then the doctor gave hostile testimony, claiming not to have authorized the contested prescriptions.

Andringa told 60 Minutes that it was "reasonable" to infer that Paey was a drug dealer, although two months of surveillance yielded no evidence. He told Tierney that while he was not "thrilled" about the case, "I'm only proud that I did my job as a prosecutor." Paey is likely to die in prison.


Dr. Rottschaefer Moves for New Trial

The U.S. Supreme Court denied Dr. Bernard Rottschaefer's petition for writ of certiorari (AAPS News, October 2006), but he has again filed a motion for a new trial on the basis of depositions in malpractice suits. This sworn civil testimony reveals that every single witness against him lied in the criminal case, falsely claiming not to have had a medical complaint.


A Seat at the Table. The AMA has a long history of compromise and "go along to get along" on government-run medicine. Doctors fear that if they appear "confrontational," the public will think they are not "compassionate" and that they oppose "medical care for all." Meanwhile, the AMA tells its membership that it can't risk its ability to have a say in what is going on. Curiously, the AMA always seems to come away from the table with some sort of deal that serves as a revenue source for the AMA. CPT codes are one example. I believe that P4P guidelines will be another. This is a well choreographed dance that we have seen before. Physicians need to learn to recognize it.
Lawrence R. Huntoon, M.D., Ph.D., Lake View, NY


Legislative Remedies. We lose every time we ask legislators to do us a favor. Remember that Mark Twain called them the only distinctly native American criminal class.
Del Meyer, M.D., www.medicaltuesday.net


Non-Insurance. We enrolled in one of the faith-based medical cost-sharing programs in 1997 and began talking about it in our office. We received a "cease and desist" order from the state of New Jersey, though we weren't selling anything and received no commission. We were hauled before the Department of Banking and Insurance, and after a two-hour inquisition were able to persuade them that this was not insurance but people voluntarily banding together to help each other out. We must avoid confusing words like "deductible," "premium," and "co-pays." About 10 years later, we have saved nearly $100,000, while remaining "covered" for big bad unforeseen medical events that thankfully did not occur.
Alieta Eck, M.D., Somerset, NJ


The Free Market Is Out There. I am telling my uninsured patients to travel. I have sent blood specimens to a suburb of Chicago since finding out how expensive local labs are. I told an uninsured man with worsening saddle anesthesia to drive to Boston for an MRI; he saved $400. The oligopoly of hospitals will be worthless if people refuse to patronize them, just as Martin Luther King showed that a racist bus company could be attacked fiscally with a boycott. He who feeds the mouth that bites him must soon wear a prosthetic hand.
Edward J. Harshman, M.D., Thomaston, ME


Safety Valve. More Medicare beneficiaries are showing up at my clinic, telling me they can't get into a doctor who accepts Medicare for 2 to 3 months. I am seeing only those who have Medicare Part A, but not Part B, on their cards. The waits to see a doctor are getting longer, so that some are resorting to my clinic even though (as they tell me) I am not a "real doctor" because I don't accept third-party payment even though I am boarded in both internal and emergency medicine.

It's simple economics: if you don't pay doctors to provide medical care, they won't provide it, regardless of demand.

I might now be called the "overflow doctor" or the "doctor to the uninsured." I refuse to participate in an irrational, wasteful, impersonal system. If the government does not reach the ultimate coercion level, requiring doctors to accept public insurance as a condition of licensure, I will always have work to do. Eventually, I will probably be able to charge whatever I want for my time and skills, as retiring baby boomers choose to transfer their wealth to good doctors, rather than allowing it to be confiscated by government after they die.
Robert S. Berry, M.D., Greeneville, TN


Prices. Where else besides in "sliding scale" clinics and socialized health "insurance" is price based on the income of the buyer? This destroys the informational content of the price, which is not supposed to be a punishment for consumption but rather a measure of the values of buyers and sellers.
Greg Scandlen, Consumers for Health Care Choices


Agreement Irrelevant. It doesn't really matter whether one agrees with market theory, any more than it matters whether one agrees with gravity or the first law of thermodynamics. Gravity is "unfair" to elderly people who fall and suffer injuries. The first law is unfair to those damaged by wind. And market theory is unfair to those who aren't interested in providing value to receive value. Tough. Reality exists.
Sean Parnell, Heartland Institute, Chicago, IL


The Value of Medical Care. Medical services are worth what consumers are willing to pay in a free market; not a penny more. Physicians must either accept that fact or give up on the idea of consumer-directed medical care.
Thomas W. LaGrelius, M.D., Torrance, CA


Judging Doctors. I've had my best referral experiences operating on the theory that left to themselves, competent people usually prefer to associate with other competent people. It follows that if you find one competent person, he will refer you to others. This is all you really have to go on when information asymmetry is permanent and not in your favor.

In medicine, government is doing its best to see that competent people don't clump. Physician referrals are viewed with suspicion. And specialty hospitals, oh the horror! Instead, we get systems of ratings by the substantively uninformed.
Linda Gorman, Independence Institute, Golden, CO