Looking For Death In All The Wrong Places

Stethoscope on American Flag

The furor about Death Panels has recently resurfaced. Unfortunately, public attention is focused in the wrong direction. Death Panels ARE part of the Healthcare “Reform’ Act, just not where the newspaper pundits tell us to beware.

HR 3590, perversely titled the Patient Protection and Affordable Health Care Act (PPAHCA), will provide funding for end-of-life planning and hospice care. That is certainly a good thing and is not a Death panel. Doctors have always been able to talk with terminal patients about easing our final days. Paying them seems only fair, is money well spent, and is NOT a license to kill us. End-of-life care does not constitute a Death Panel but the Cost Effectiveness Commission* does.

*I created the name “Cost Effectiveness Commission” because I simply could not use the name the government gave it. Their name – Patient-Centered Outcomes Research Institute (PCORI) – is as gratuitous and disingenuous as its parent PPAHCA. The PCORI is budget-centered and population-focused but what it does not do is make the individual patient’s welfare of primary importance.

Similarly, the self-styled “Patient Protection and Affordable Health Care Act” a) does not protect patients; b) comes with a price tag over $1 trillion, which is certainly not affordable; and c) most critical, it can never, ever provide health care, maybe health insurance for some. Only providers can offer care, and providers are becoming in short supply as a result of PPAHCA.

The U.S. government does not have a monopoly of gratuitous, disingenuous naming. The British are more than our equals with their NICE (National Institute for Clinical Excellence), which reports to their NHS (National Health Service.) NICE is the opposite of nice. The new Director of Medicare – Dr. Don Berwick – has publicly stated that he wishes to replicate both the NHS and its NICE here in the U.S.

What does NICE do and more important, what has been the result? This is vital to us because what has already happened in Great Britain is what Dr. Berwick and the Obama Administration want to see repeated here.

NICE evaluates expensive medical treatments and compares the short-term medical outcomes with the expenses incurred for them. The Panel then recommends what is cost effective on a national basis, given limited funds, and thus what should be covered and what should not. Obviously, what is not covered (call this funded) is not offered to patients and therefore is unavailable to all but a fraction of a fraction of 1% who can pay out of pocket $100,000 for a coronary bypass operation, $250,000 for a transplant, or $120,000 every year for kidney dialysis.

As a result of NICE recommendations, the NHS has cut or is cutting maternity benefits, hospice care, and both heart surgery as well as kidney dialysis over certain ages. This is not what anyone would call being “nice” to patients. The NHS also uses approval-but-delay (queueing) to avoid paying for health care. I know this first-hand.

The NHS applied “queueing” to my English mum when she broke her hip at age 79. They approved her surgery and then scheduled it for over two years later expecting that she would die before the operation and thus they would avoid the cost.

That is what NICE and NHS has done. That is what PPAHCA and the Cost Commission will do here. That is what is called a Death Panel.

A Death Panel is a group of people who decide who shall live and who shall die. In the Court system, the judges are legally trained individuals who follow a set of rules called laws, which rules must pass our – very public – inspection and approval. Those who are sentenced within the legal system are people found guilty of wrongdoing.

A Death Panel in the healthcare system is still a group of people who decide who shall live and who shall die. In contrast to the Court system, those who are sentenced to death in the health system are guilty of nothing and die by natural but often preventable causes.

Suppose our shiny new Cost Commission decides, just as the British did, that heart surgery over the age of 65 is not deemed “cost effective.” I am 67 years old. If I have a heart attack, I might need a bypass operation. Because government regulations do not allow such a procedure in someone my age, I do not get it. I die. It’s that simple. That is how the Cost Commission effectively will be a Death Panel.

If you read the PPAHCA legislation, particularly Section 6301, you will become totally confused with the apparent limitations, constraints and justifications in the law. It seems to say that the government cannot use the research – the results of the Cost Effectiveness Commission or PCORI work – as statutory limitations on care. However they obfuscate, the government’s suggestions – call them recommendations, advisories or maybe guidelines – WILL be implemented as policy. The British NHS is doing that there right now with its service cuts, and the same thing will be coming soon to a hospital near you.

No doubt there are people reading this saying to themselves, Well maybe so, but that doesn’t apply to me because I have private, not government, health insurance. Sorry, I must reply, you too will be sentenced by a Death Panel.

Private insurance companies follow government guidelines regarding benefits, exclusions, and payment schedules. Whatever Medicare does, the private insurers follow suit. So effectively, whatever the government Cost Commission declares ‘not cost effective’ will instantly become unavailable to 99+% of the population.

When the government rations medical care by approving or denying payment, they determine who gets care and who does not. However they rationalize what they do, any group that decides who lives and who dies is a Death Panel.

Is that how we want a government “of the People, by the People and for the People” to act?

Several people wrote the Rio Grande Foundation with questions and concerns about this article as originally written. Two common themes were that the PPAHCA makes no mention of a “Cost Commission” and that any such Commission did not have the statutory power to function as a Death Panel. Because of these comments and suggestions, I revised the original article to the above form to respond and clarify.

J. Deane Waldman MD MBA is the author of “Uproot U.S. Healthcare,” Tenured Professor in both the Medical and Management Schools at University of New Mexico and Adjunct Scholar for the Rio Grande Foundation.