The "never event"

Dr. Pauline Chen writes in today's New York Times that Medicare's and Medicaid's (and, consequently, private insurers') refusal to pay for so-called "never events" -- complications caused by egregious physician errors -- could lead to denial of care to the sickest patients.

On the surface, refusing to pay for a "never event" makes sense. As John Galt puts it after his capture by a totalitarian government, you wouldn't pay a doctor to set your leg if he were the man who broke it. If a surgeon leaves his scissors in a patient's body after an operation and the patient needs additional surgery and hospital care to remove the scissors, the patient obviously should not have to pay. If a patient is given an oxygen mask that has been inadvertently hooked up to a container of another gas, and the patient suffers poisoning as a result, he should not have to pay for the care required to correct the poisoning. Indeed, in cases like these, the patient probably has grounds for a lawsuit, if the damage is permanent.

But, as Dr. Chen shows, Medicare, Medicaid, and private insurers have expanded the definition of "never events" to include many medical "mistakes" that are not the doctor's fault. If a patient picks up an infection after having surgery, is it the fault of the medical staff? Maybe -- but it's also possible that the patient has an underlying condition, like diabetes, that makes him more susceptible to infections than other patients in the hospital. Cases like these do not represent egregious errors on the doctor's part, but rather the expected risks of caring for sicker patients. If a doctor knows ahead of time that he's not going to be paid if a sicker patient has complications that an insurer deems are the doctor's fault, he'll respond by turning those sicker patients away -- "cherry-picking" the healthiest patients and leaving the sickest without any care at all.

In a free market, doctors would be able to work out payment on a case-by-case basis. If a doctor's egregious error on one surgery led to the need for extra care for Joe, but Jerry needed similar "extra" care after the same surgery because he has a comorbid condition, the doctor can waive fees for Joe and charge them to Jerry, explaining to each the reasons for the charges or lack thereof. In fact, the doctor can explain to Jerry beforehand that his surgery carries a higher risk of complications than it does for most patients, and that X, Y, and Z might happen, and does Jerry still want to go through with the procedure?

When the government pays for medical care, it has to do so by statistical averages to determine what should and should not happen in a medical practice; private insurers follow suit. In a free market, where more of us would pay out-of-pocket for most of our medical care, we'd be more likely to have individual conversations that reflect the particular risks of a given procedure for the patient on whom it's being performed -- and doctors wouldn't need to avoid the sick for fear that their work will be deemed a mistake.

"Caloric extremism"

Michael Jacobson, executive director of the Center for Science in the Public Interest, isn't happy that laws forcing restaurants to post calorie counts haven't induced the restaurateurs to cut high-calorie offerings from their menu. As Reuters reports, Jacobson complains that "[chain restaurants] practice caloric extremism, and they're helping make modern-day Americans become the most obese people ever to walk the Earth."

Mr. Jacobson: If you'd like Americans to slim down, you have every right to build a website denouncing high-calorie offerings at restaurants, or to publish pamphlets about the health risks of obesity, or to give a television interview stating your point of view. But if that doesn't work -- if Americans still make crappy food choices despite all the messages they get about how obesity is a bad thing -- you do not get to lobby the government to force restaurateurs to post calorie counts (nor, as is strongly implied, to force them to remove the offending items from the menu). Not in a proper society, anyway.

If you can't persuade people to eat right, you have no right to make them do it at the point of a gun.

A sale would be cleaner

In this week's Ethicist column of the New York Times, a woman whose husband benefited from a stranger's donated kidney asks whether she has a moral obligation to help the stranger, now that the stranger is in financial trouble and has written to ask for help. The writer says, "I wish it were legal to sell organs; it would be much cleaner in many ways."

So true. If selling organs were legal, then the stranger could have asked a substantial price for her kidney, and both parties would have benefited -- the stranger, by earning money she could then use to keep her home, and the donee and his wife, by purchasing an extension of his life.

Instead, the stranger could only choose to give up one of her kidneys out of altruism. For the benefit of a person she had never met -- who could have been a creep for all she knew! -- she gave up an enormous value, part of her own body! This is the kind of transaction altruism demands of people -- sacrificing a great value for the sake of a lesser one.

If the woman had been allowed to sell her kidney, the patient could have purchased it and continued his life with no further obligation to her. Instead, he accepted a gift far beyond what anyone can possibly earn from a stranger, and now has to decide whether he owes her, and how much.

I do think, were I in the donee's situation, that I would want to offer the donor at least some money, in recognition of the great value she provided. On the other hand, we don't know how much the donor has asked for, whether it's an amount the couple can afford to pay, and whether it's more than they would have paid for a kidney if there were a free market. Not only that, but if they give her money, will the donor then feel emboldened to ask for more any time she is in need?

The writer of the letter is correct: Allowing organ sales would make such transactions far cleaner, because there would be no moral blank check, real or implied, held by a donor. And such lifesaving transactions would be more frequent, as well, because people who (correctly!) aren't motivated by brother-love alone to make so enormous a gift as an organ might give one up if they receive commensurate value in return.

Not just a "simple swab"

The New York Times says "a simple swab can make you a lifesaver" -- that is, if a swab of the DNA in your cheeks shows that you're a match to donate bone marrow to a patient with a blood disease.

The article's strong implication is that everybody should do this. After all, this little thing could be such a big thing for a sick person, right?

Well, no. If you're a match, you won't necessarily, as the Times reports, have to go through the severe pain of a long needle being stuck into your bone, as was always the case earlier. (Some patients still need marrow harvested by the more painful and invasive method, which the Times does not mention.) But you'll still have to stick yourself with a needle for five days, taking a drug that can cause pain in your bones, and undergo a two- to four-hour procedure to have your blood cells harvested -- all for a complete stranger whom you know nothing about.

I don't know about you, but I wouldn't do that for just anyone. I'd do it for someone I loved, certainly -- probably even for someone I like and respect. But I wouldn't do it for a stranger. It's not "just a swab," and I dislike the implication that it's a moral obligation to make part of my body available just in case a random stranger needs it.

Dr. Stasi

Remember how the White House wanted Americans to tell it about any "fishy" health care information they heard? Well, the government's push to turn us all into informants in medicine doesn't stop there. The FDA would like your doctor to rat out those evil pharma companies as part of its new "Bad Ad" campaign. If a doctor sees a campaign that violates FDA's (vague, nonobjective) guidelines, he is supposed to play informant by calling the FDA's hotline or emailing badad@fda.gov.

In Communist East Germany, the Ministry for State Security, better known as the Stasi, destroyed the lives of untold numbers of Germans by snooping into every aspect of citizens' lives and hauling them in for punishment for the least infraction. More than one hundred thousand full-time agents (for a population of 17 million -- that's one agent for every 166 Germans, far more than the Gestapo had in Nazi Germany!) were supported by part-time citizen-informers, for a final ratio of one informer per 6.5 Germans! So imagine -- if you lived in East Germany during the Communist regime and had a simple family gathering, chances are you were hosting a Stasi rat.

We aren't there yet in America, but programs like the White House's "report fishy information" blog post and now the FDA's "Bad Ad" campaign are pushing us in that direction, and that is a scary thought indeed.

When the White House put up its "report 'fishy' information" blog post, many of us responded by "turning ourselves in" to the flag@whitehouse.gov email address. I, for one, plan to send some inbox-clogging fodder to badad@fda.gov -- perhaps reporting the FDA's own website for misleading information. Who's with me?

Learning to listen

Most people I know have the opposite problem that I do with exercise: They profess a desire to work out regularly, and can't seem to make themselves do it.

My problem, which is a pretty common one among runners (and I suspect anyone who has gotten good at disciplined practice of a particular athletic activity), is that I have a training plan, and it's really hard to make myself not stick to it. Yes, that is a problem -- occasionally, as it is right now that I'm battling a head cold. Whereas most people would wake up with a sniffle and decide that's a free pass to stay in bed, I often make myself work out anyway. This is sometimes okay if not fun, and sometimes disastrous -- yesterday I completed a six-mile run (fretting all the while that I was supposed to be running eight) and spent most of the rest of the day in bed with chills and an intense fatigue that I can only attribute to overtaxing my body when it needs to repair itself.

In my OAC class, we've been discussing the importance of context -- that dropping the context of a concept or idea can destroy its meaning and lead to faulty thinking. That's exactly the mistake I've made. The training plan I am using was created using a certain context -- for a runner with a certain amount of prior experience (check), with a certain level of baseline fitness (check), and who is in good health -- oh, wait, NOT check! Now that the context has changed, to follow exactly a training program that was created for a healthy runner is not a good idea -- it's a terrible idea. I learned that one the hard way yesterday.

So this morning I skipped my normal Monday workout in favor of an extra hour of sleep. It was hard to do. The disciplined runner in me was screaming, "Don't skip another workout!" (I skipped one last week, when I first started to feel ill) and "It's just three miles, that's nothing!"

Nonetheless, given the current context -- how bad I felt yesterday after running when I shouldn't have, how I need not to sap my energy given that my choir is singing a concert tonight (great timing, no?) -- it was the right choice. I need to listen to my body, not just the drill sergeant in my mind.

Happy birthday to the Pill!

Although I don't agree with choosing a drug's "birthday" by its FDA approval date (the lifesaving idea was developed much earlier, and why give FDA the credit for the innovation?), many news outlets are using that determination to say that hormonal birth control is turning 50 this month.

Says the AP article: "In the 1960s, anthropologist Ashley Montagu thought the birth control pill was as important as the discovery of fire. Turns out it wasn't the answer to overpopulation, war and poverty, as some of its early advocates had hoped. Nor did it universally save marriages."

Well, no. Man has volition. The mere appearance of a new, more effective method of contraception is no guarantee that people will use it, nor of which people will use it (wealthy couples who could support a child if they had one? poor couples who hope that a large family might support them later in life?). It doesn't cause men to choose a life of production over a life of aggression or one of idleness, and it doesn't cause married people to communicate with each other, stay faithful to each other, or any of the other choices that keep a marriage strong.

But although the Pill can't stop man from making poor choices, it is tremendously good. Why? Because sex is good. Sex is pleasure, and sex can lead to babies. Sometimes -- in fact, a lot of the time -- man wants the pleasure without the tremendous responsibility of the babies. There's nothing wrong with that. What the Pill has done is to make it easier for men and women to enjoy the pleasure of sex without the worry of being condemned to nine months of pregnancy and eighteen years of raising an unwanted child. I'm glad that my husband and I have grown up in a world where that's possible; I'm glad that we can enjoy just being husband and wife, without having to think about being Daddy and Mommy just yet.

Happy birthday, birth control!

A taste of what's coming for doctors

Dr. Jane Orient, author of Your Doctor Is Not In, tells us why she won't take government money for her services: because she understands that having the government as a customer is inherently dangerous. If a patient who pays with his own money thinks Dr. Orient is charging too much for her services, he can try to negotiate payment with her or look for another doctor. But if the government decides her profits are "too high," she can be fined, forced to pay treble damages, or even jailed. Think about what this means:

• If a doctor is making X dollars in profit but the government says he's making X times 2, the government has the power to insist that its numbers are right, and that the doctor must refund the difference and pay punitive damages -- even if that means the doctor loses money practicing medicine. (See Dr. Orient's example of the plumber who was forced to pay rebates even though his business had met the pricing on the bid it originally made to the government, and actually lost money for the year as a whole.)
• If a doctor finds ways to make his processes more efficient, so that he's still able to make a profit even as reimbursement rates are being cut, the government can point to him and say, "He's making too much. He needs to be punished." So instead of being rewarded for doing things more efficiently, a doctor can be punished. The hell?

ObamaCare will only make this situation worse, even though it will nominally be private insurers who are paying for the care of Americans who buy health insurance because of the law. Don't be shocked if those insurers, as costs continue to rise, try to get the strong arm of the government to punish doctors who have the audacity to try and make a profit by providing lifesaving and life-enhancing services.

The question nobody asks

In the American health care system, where so many goods and services are paid for indirectly, through a third-party insurer, patients learn to ask for champagne even if they should really be on an iced-tea budget. But I'd never thought about how doctors' thinking, too, is so different from what it would be in a free market, until I read this New York Times article.

A doctor's education is devoid, with rare exceptions, of consideration of the costs of the services they provide. Think the patient might need a colonoscopy? Just order one, without thinking about how much it costs and what kind of money your patient makes. Prescribe a drug that's five percent more efficacious than its competitors, but costs three times as much; your only concern is the efficacy, right?

Prior to the rise of employer-paid health insurance, doctors thought about cost, and patients asked. As blogger Dr. David Thomas put it, doctors tried to "save the widow the farm" -- to consider all of the requirements of his patient's life, not just the medical ones. They would think about the fact that an expensive treatment that bought the patient only a few extra, painful months of life, might not be worth bankrupting the patient and forcing his family to pay the bills long after his death. They might decide, with their patients, that the little bit of extra relief Drug X gives is not worth the steep price relative to Drug Y, and so on and so forth.

The fact that patients and doctors no longer think this way is why the cost of medical care continues to climb without a corresponding increase in breakthroughs, unlike freer sectors of the market, like electronics, where prices drop and innovations flourish.