As some of you may know, I have been volunteering my time to represent patients and their families in situations where physicians, hospitals and hospital ethics committees have made unilateral decisions to withdraw life-sustaining treatments based on subjective opinions about "quality of life". This is called "futile care theory" and it is protected and enabled by a Texas statute allowing providers what is called "safe harbor" (protection from liability) if they follow the procedure set out in the statute before withdrawing treatment.
As part of my volunteer work, I have participated in a group that is reviewing the law with the goal of making recommendations to the legislature. This is the same group that wrote and got the present law passed.
During the first meeting, after my group's position against futile care theory became apparent, one of the hospital people came running up expressing the hope that we would support the single-payor system since we didn't want treatment withdrawn from people based on economics. I bit my tongue and quickly walked away making an excuse.
At the last meeting, I pointed out that I thought that providers should be constrained from making such unilateral decisions, in part, because of the inherent structural aspects of the health care system that severely limit the patients ability to choose treatments, facilities and those who would give them the treatments--such as licensing laws, Medicare/Medicaid regulations and insurance contractual provisions.
I said that I think that medical care is a commodity--but that the system prevents it from being treated like other commodities. For instance, if Walmart doesn't believe that it is ethical to sell adult entertainment and refuses to sell such material to you--you can go to a store that sells such products and buy them.
But, if some doctor decides that you are in a Persistent Vegetative State and that, in his view, it's unethical to continue to feed and hydrate you or provide you with air through a respirator--where else can you get such products? You will be limited from finding other placement by funding issues--and perhaps licensure issues if other doctor's don't want to be seen as giving treatment somebody else has decided is inappropriate. It's pretty much like the Blue Wall of Silence. Sort of the White Coat Wall of "We're Doctors and We Know Better than You" Intransigence
After I argued this, a lady ran up to me and informed me that "they" don't consider healthcare a commodity. They consider it a "right" --and didn't I agree?
Because she was a gentle and caring sort--I had to bite my tongue to keep from saying: "What kind of "right" is health care when your doctors and hospital adminstrators have to power tell somebody that they can't have the health care they want and that they should just die already?"
Besides, I've never seen that particular right in the Constitution.
So here I am , in a conundrum. I want to stop hospitals from removing respirators and hydration and nutrition against the will of patients and their families, while saying that patients don't have a constitutional right to health care.
I resolve it by going back to what I pointed out before. Consumers of health care are prevented from accessing health care to the extent they can other products and services, in part, because of legal and regulatory structures that don't exist in other markets.
Those of us who decry the present materialistic and utilitarian state of medical ethics can fight like hell, but in the end I believe that the economics behind the present system will ultimately defeat us. Those of us fighting futile care theory need examine to what extent the present system for funding healthcare is degrading its ethics.
Our health care system--even without Hillarycare--is essentially socialistic. Remember what P.J. O'Rourke said about socialisam. He said it provides "the rations of slavery— hay and a barn for human cattle."
Somehow, doctors and hospitals decided that, for that one very final event, they have the sole right to sort the cows
Personally, I don't want to be treated like a human cow. When I go to the store to buy computers, I don't let the store or the company herd me around. I don't let them tell me that I can't buy a particular software program--I just go somewhere else. Yet, I can be told by a physician, hospital or insurance company that I can't have a certain treatment or diagnostic test--even if I need it to stay alive. This is a system that can grind some people up and spit them out.
You might respond by saying that I can have all the treatments and diagnostic tests I want if I pay for it out of my own pocket. That is not always true--though having the resources to pay for such things probably does increase my changes of getting them. The problem is of course, that the cost of treatments and diagnostic tests are prohibitive for most people. The cost is also becoming prohibitive to the Federal and State governments--which is why an article came out in the New York Times last year entitled, How to Save Medicare? Die Sooner
It was also once true that very few businesses and people could afford computers--but no longer--and they are getting cheaper all the time. Apparently, this is not happening in health care.
This brings me to what inspired the name of this post. Andy Kessler had written a great new book called The End of Medicine, How Silicon Valley (And Naked Mice) Will Reboot your Doctor
. In the book, he explores whether or not the healthcare industry is subject to Moore's Law
and other economic factors. If, as Andy was taught early in his career, an economy exists as a mechanism to increase its participants quality of life, how does that apply to health care?
As Andy points out in his book, costs continue to rise in health care unlike in computer technology. Pressures are brought to bear on the Medicare/Medicaid system, insurance companies and the employers who pay for the insurance. This has resulted in attempts to ration the "pie".
So, can we increase the "pie" as we have in other markets--or are we stuck with Malthusian approaches in health care . Or can technology Geeks storming the Gates of medicine, once again, consign Malthus to the dustbin of economic history?
Andy's book takes a look at what a merging of Silicon Valley and medicine might create. In his words, his book " is about early detection, saving lives and huge costs by finding heart, stroke and cancer early enough to do something, rather than let nature do the screening for the medical industry".
He looks at the promising advances in technology for screening for diseases and risks--as well as the impediments to implementation. To get his information, he hung out in hospitals, research facilities and with Silicon Valley entrepreneurs.
One might think that such a book would be dry and sleep-promoting. One would think wrong. The book is fast-paced, funny and enlightening to even a lawyer, like me, who doesn't know a byte from a mosquito-induced lesion.
What's more, I get to interview Andy Kesslar
about his book on Straight Talk on Right Talk Radio
this coming Tuesday, July 25 , at 1pm ET. I'm sitting in for Mychal Massie
I'm going to ask him about his book and how if might transform medicine to allow consumers better access and more power. I think that the more power that consumers have, the less likely somebody else is going to treat them like human cows at a sorting event. Access to Medicine, in my opinion, should be "democratized" (Andy's word) like access to computers. Only, it should be the free-market kind of democratizing instead of the rationing kind. Perhaps Andy can tell us if that is what is going to happen.
So tune in on Tuesday for what promises to be a fast-paced, funny and informative interview.
P.S. It's really odd that while I've been writing this, the movie Soylent Green
has been showing on the Turner Classic Movies channel.
(cross-posted at Sue Bob's Diary