Medicare Counseling Reg Not a Death Panel: But Health Care Rationing a Clear and Present Danger

Wesley J. Smith

Wesley J. Smith

Much is being made throughout the blogosphere and on talk radio about the new Medicare regulation that compensates physicians for discussing end of life options with their patients. As I said yesterday over at The Corner, these are not “death panels.”

A Forbes blogger makes the same point–in a too caustic fashion, since the original Obamacare legislation had real problems in this regard (which I mentioned in my The Corner post). Be that as it may, Rick Ungar is wrong about the potential for rationing in Obamacare and Medicare. Indeed, in some respects, it is already here. From his post, “Death Panel Scam Set to Reignite:”

The more desirable outcome of such a physician-patient conference would be a written, advanced directive that will legally set forth the patient’s wishes for their treatment at the end of their life. Yet those who continue to object point out that this provides physicians to push a government agenda designed to ration health care at the end of life. Think about this for a moment. Have you ever met a physician who is interested in rationing health care? After all, rationing health care is in no way beneficial to those who practice of medicine.

Poppycock. Has Ungar never heard of capitation? Hospitals could benefit financially from health care rationing because Medicare pays them a flat rate for Medicare admittees via the Diagnosis Related Group (DRG). This means the sooner a patient is discharged, the more profit (or less loss) is left for the hospital. Doctors in HMOs receive flat payments for the services they offer their patients, as well. Indeed, under the economics of much of health care today, medical professionals and institutions often make less money–or sustains a greater loss–the sicker and more care a patient needs.

Moreover, as we have discussed here, some very powerful medical groups support rationing, as does Dr. Donald Berwick, the (temporary) head of Medicare. (Yes, he’s been trying to walk that stand back lately, but it won’t do him any good. One year and out!)

Unger then steps deeper in it:

Physicians tend not to be politicians. Nor do they have any track record of supporting government actions that limit health care. Indeed, their history reveals that their positions are in direct opposition to any such action. The opposition is foolish and detrimental to the wellbeing of our senior citizens. It also sanctions the waste of taxpayer money in situations that benefit absolutely nobody. Let’s be clear. If a patient, after discussing the options with their physician, elects to request that every possible measure be taken to save their life, no matter what their situation, I’m all for it. We must -and we should – honor their wishes. But if a patient executes an advance directive, after thinking it through, they are not only doing the right thing for themselves and their families, they are doing what is best for society by not using up resources they do not wish to use.

I’m glad Ungar supports the right to receive the care a patient wants, but he is clearly not up to speed on what is happening in Health Care Land. He apparently has never heard of Futile Care Theory, for example, in which advance directives that request treatment can be explicitly overruled by physicians and bioethics committees based on quality of life determinations and (at least implicitly) cost/benefit analysis. We have discussed that form of ad hoc rationing often here.

Unger is right that the new regulation is not a death panel. But those who worry about seniors and other Medicare recipients, such as people with disabilities, being abused by explicit and futile care-style rationing in the medical system, are not paranoid alarmists. To the contrary: The danger is clear and present.

(Unger also states in his post that the regulation will allow doctors to discuss assisted suicide where legal and be compensated. I don’t know if that is true. Federal law prohibits federal funds to be used in assisted suicide. I will try and find out about this and report here when I do.)

Read the entire article on the Second Hand Smoke blog.


  1. A man had persistent thoughts of suicide. Being aware of the Christian teachings that such thoughts are sins against the Holy Spirit, he went to see a priest to confess and seek advice on fighting this temptation. He met with the priest and talked to him, had confession and departed strengthened. After a while the thoughts returned with renewed strength. He resisted them for a while but ,fearing he would be overcome by them, went again to see the priest. He returned for the second time strengthened and continued on with his life. After a short time he was tempted yet again, and runs to the priest, telling him that he cannot resist anymore and is going to commit suicide. The priest thought (prayed) for a while and told him: Ok, you can commit suicide. But before you hang yourself say this: “I give you my body and I give my soul to my Lord Christ.”
    He went home and prepared to hang himself. Before the final step he said: ” I give you my body and I give my soul to my Lord Christ.” At the very same moment he felt a strong push and heard a voice saying: “I do not need your stinky body!” and he flew 15 feet through the air. From then on he was never disturbed by the suicidal thoughts. It was the devil who wanted his soul.
    Dying With Dignity … Respect for the right to choose … Be sure that the devil won’t treat the soul of your loved one with dignity. How insane!
    The “murder of God” in the 19th century was followed by the the murder of our neighbor – genocide. What naturally follows is of course the murder of ourselves – suicide.

    What are we to do? In the words of the Psalms:
    ‘Seek God and your soul shall live’.

  2. Geo Michalopulos :

    Wesley, thanks for bringing out some crucial distinctions. On the other hand, I thought it was a bravura piece of politcal tactics for Gov Palin to call them “death panels” back in Aug, 2009. That set Obamacare and its acolytes back on their heels and bought the opposition needed time to drag out the fight against it. Of course, we lost thanks to clever maneuvers by Pelosi et al, but now with the lawsuits growing it appears that we can win in the courts (which I ordinarily despise).

    Regardless, “death panels” has become part of Obamacare’s legacy and has entered the political lexicon. If for no other reason than that, it can obfuscate the work of those who believe in uber-rationing up to and including euthanasia. (Make no mistake, they believe in pro-active killing and not just passive DNR directives.)

  3. Here is my biggest concern. The only proponent of the counseling I’ve heard kept saying she was for “death with dignity”. Am I wrong, or is that not often associated with assisted suicide/euthanasia.

    In any case, it is letting the camel’s nose under the tent wall.

  4. I don’t understand the hype about this really. There are already death panels in the US regarding healthcare system. They are the health insurance companies, stockholders with vested interest in health insurance companies, and Republicans & Democrats that cut funding to medicaid/medicare. So wake up America, death panels are already here and they are governed by your own avarice. The Church just rolls over and lets these vested interests take over healthcare and influence the public discourse without saying anything.

  5. Let’s break this down into more workable concepts. First ‘death panels’ as defined by Sarah Palin were never part of Obama’s health care bill nor have they ever been part of most gov’t involvement in health care. They have existed in the history of American health care, though. For example, before the gov’t paid for dialysis for patients with kidney failure, dialsysis machines were rare and very expensive. Hospitals had so-called ‘God panels’ that decided who got them based on ‘social worth’. This was pure ‘death panel’ stuff since if your kidneys have stopped working the only way to avoid death is dialysis several times a week or a kidney transplant.

    Let’s call this ‘death panel rationing’ where decisions about who gets medical care are based on value judgements of the individual person. Hence one person might be a respected college professor while another might be a drifter with no history of solid employment but the machine is given to the professor not because his health status is different from the drifter but because his perceived ‘value’ to society is considered more worthy.

    I agree that this is very ethically dangerous territory but there are times and places where it may be acceptable. For example, on a sinking ship ‘women and children first’ used to be the motto. In such a case you are making decisions based on ‘social worth’ (i.e. the 5 yr old kid is deemed more important to save than the 40 yr old man). Another place where it may be acceptable is where there’s an absolute finite limit on the available resource. Hence organ transplant committees will apply some ‘social worth’ criteria. The 20 yr old non-drinker may get the liver before the 50 yr old drunk. Although here you may object that this isn’t really a ‘death panel’ type of rationing. The twenty yr old may be reasonably expected to live 50 more years with the new liver while the 50 yr old may not make another ten. You could say in terms of life years you’re simply sending the liver where it will produce the most bang for the buck (or liver in this case).

    The only other example of ‘death panel’ rationing I can think of was proposed by some Republicans in Texas (I think) who proposed abolishing Medicaid. They were quoted as saying they were willing to help people who ‘really needed it’ but if you had someone who ‘smoked and drank’ the state shoudn’t pay for their care. There is pure ‘death panel’ rationing being proposed…..granny doesn’t get care because she liked her smokes and scotch in her younger days. But that was just a minority proposal which didn’t go anywhere.

    This is the 2nd type of rationing; where hurdles are placed in front of care based on cost. My wife just experienced this. She was given a prescription. When she filled it the pharmacist told her the doctor had to go through ‘pre-authorization’ from the insurance company. The insurance company told the doctor she has to use one of the $10 generics first to see if it works before they would pay for the $100 drug. Now I don’t really have much of an issue with this for a few reasons:

    1. The drug is still available to us, if we opt to pay for it ourselves for $100 a month.
    2. While it’s annoying, I’m being forced to act in a way that expands the supply of health care to all. If the $10 generic works, that’s $90 freed up that can go for some medication or treatment where no cheap $10 generic yet exists. It also rewards the drug company $90 less for making a ‘me too drug’ as opposed to making a drug for which no generics exist (in other words a breakthrough drug for something that no drugs currently exist).

    If you’re a purist, though, this is still rationing. The premium drug she was originally prescribed is better in some ways than the existing generics. If its cost was only $10 then the decision could just be a contest based on the pure medical facts of the drugs. But since its cost is $100 one asks is it ten times as good as the generic or just, say, 1.5 times as good? If its the latter I’ll try the generic first to see if I can get away with it.

    I would say that this is an example where you have to allow market rationing but its not even that, there simply is rationing due to the fact that resources are scarce. Not every hospital has the latest trama care, not every doctor can train for ten years under the world’s best surgeon. Even socialists accept that resources must be allocated if they are not infinite. Trying to insist otherwise is worse than immature, it’s creating real ‘death panels’. If every hospital must have the latest technology there will be fewer hospitals. If a simple procedure requires only the world’s greatest surgeon when an average one will do almost as good a job, then the world’s greatest surgeon isn’t available for a complicated procedure.

    Now in terms of your criticism of ‘end of life counseling’, I’m seeing less about actual death panels and more about potential conflicts of interest.

    First if a doctor is paid to consult with a patient he is legally and morally obligated to do his best to give impartial and honest advice. If he steers people towards DNRs simply because some patients become less profitable for him to treat he opens himself up to very nasty malpractice suits as well as professional sanctions.

    Second there’s nothing wrong with compensation based on a flat ‘per head’ treated. The other method of compensation based on just reimbursing for every visit, every procedure, every test provides a bad incentive to overuse all of those. That’s bad not only because it limits care for others but it’s also often bad for the patient. For example, part of the bill lets Medicare refuse to reimburse hospitals for patients who get readmitted within a certain time period of being discharged. What was happening before was that hospitals were getting paid for surgery, discharging patients too soon to free up the beds, then some patients return with infections and other problems which becomes a new billing opportunity for the hospital. Technically the patient is getting ‘more health care’ but he would have been better off spending another two days or so in recovery and avoiding infection all together.

    Third, if the compensation system does create a bad incentive to ‘off’ expensive patients doctors and hospitals will find ways to steer this outcome quietly, undercover. Actual formal counseling with the threat of professional sanction on the doctor (either thru malpractice suit or complaint to the medical board) would give the patient the opportunity to say clearly what it is that they would want. If they say ‘keep me going no matter what’ then yes maybe at some future point that could get overridden in the courts or by doctors but better to have that roadblock there in place, in writing than to have nothing at all and rely upon nurses and doctors deciding to let a patient go because they ‘think’ he would want it that way.

    A shorter way of saying this is that just about any system can be corrupted towards something we don’t want. No bill is going to guarantee that would never happen, only vigilengce can do that. So unless a bill explicitly does something we wouldn’t want, I find the ‘it may allow this’ argument to be very weak as a reason to not do it.

    • Michael Bauman :

      Any good or serviced is rationed by one’s willingness and/or ability to either qualify or pay for the good or service.

      The more payors there are, the more diffuse the decision making power and the more access there is to the good or service. The fewer providers of the good or service, the higher the price and the less available the good or service.

      He who pays gets to decide.

      Econ 101.

      Health insurance (which I sell) is indeed a method of rationing as well as sharing risk. It’s very existence drives up costs and restricts care while broadening the number of people who have access to at least some level of care. The higher the costs go, the more restrictions are placed upon the care. To get everybody something means no one gets everything. The more we have a ‘right’ to care (whatever that means) the less will be available.

      Rationally, people are willing to give up some decision making power and access to make care overall less of a catastrophic financial burden when something major occurs. Irrational folks just want and expect other folks to pay for whatever they need. Some irrational folks don’t want anyone to have any assistance. If people are willing and able to totally self-insure, they have total authority over what kind of care to seek, where to have it delivered and can usually find what they want–even if it is illegal. The less willing and able people are to self-insure, the less actual choice they will have. Few people I have met are rational about their health or the care they receive or the cost of it.

      Those who propose a single-payor plan for healthcare know the facts. The care will be more costly and less available. It would not be so bad if they didn’t routinely lie about what they know demogoguing the issues to get votes and power.

      They also have an entire ideological and social agenda which goes along with the camel’s nose that is oppressive and tryannical.

      Those who propose a ‘free market’ approach also know that such a thing is a phantasmagoria of their own vain imaginings (the idea of social responsibility for others; HMO’s; PPO’s; TPA’s; government mandates; sinful passions**; inequalities of knowledge and power make any ‘free’ market impossible). They also routinely lie about what they know. They too have an ideological and social agenda which they want to foster that has nothing to do with anyone being cared for, but everything to do with who controls the care and who makes the money. While less obviously tryannical, the final outcome is not much different.

      The real question is not about rationing. The question is who will make the decisions; what criteria will be used; how will the criteria be applied; and what level of honesty and transparency will be allowed and what the cost will be socially and economically

      Most of the ‘solutions’ which I have personally studied in Obamacare are looking for a problem, at least in my state. Our state insurance commissioner admits to that in her public meetings regarding the transition to government run care. She also says that the states have no idea what they are supposed to do or how to do it, but they are spending a lot of taxpayor time and money trying to do it anyway in the hopes of keeping the process as local as possible. They are just following orders.

      Despite all of the difficulties, inequties, lies, fraud, abuse and stupidity–the more decisions are made closer to where the care is actually delivered, the better off we will be. The more cost and quality decisions are made by parties far removed from the people and the circumstance, the less well off we will be.

      IMO, all of the angst so liberally on display is simply a smoke screen for refusing to examine our own hearts and minds–an excuse for facing ourselves and living by Godly standards in our own lives. “God will provide” is a Biblical truth that we all too easily forget. We too readily acquiese to the chiliastic vision of all types of political ideolgies and idealogs who deny God. “God is with us! Understand all ye nations and submit yourselves, for God is with us!”

      **Sinful passions include the costs of care for morbidly obese; chronic substance abusers (includes alcohol & tobacco); a promiscuous culture that routinely impoverishes women and children while spreading disease in the name of personal freedom; kills babies; glorifies legal substance abuse as treatment; promotes the false idea of a perfect outcome as attainable; the canniblization our young and our use of the bodies of others to keep ourselves alive in ways that are Frankensteinian.

  6. Let me second Neil’s reminder above and point out that the USA has always rationed healthcare: to those who have money to pay what providers of “care,” equipment, medications and other treatments, consultation, etc., wish to charge for it. Without “government programs,” I would now probably be long since dead.

    –Leo Peter

  7. Actually I kind of doubt that there’s really much financial incentive to euthansia in the last moments of life. Usually by that point heroic (i.e. expensive) measures have already been done. The patient is at that point on life support and maybe pain killers. The latter is cheap. The former is less cheap but not all that dramatically expensive. Breathing machines, feeding tubes are not cutting edge technology. Daily nursing care can be somewhat pricey but the most expensive drugs today can cost over $10K per month. Major operations like bypass can be over $50K. In that perspective the money saved by a DNR order causing person to die a week or even a month or too sooner than otherwise is not going to achieve any stunning savings.

    Terry Schiavo type cases are expensive but what really drives health care spending and costs is not the person who will be a vegetable for a decade or more. Those cases are actually quite rare. What drives health care costs are chronic conditions like heart disease, diabetes and cancer. Conditions where euthansia via rationing are simply not going to achieve much savings. The primary reason I doubt you’ll see death panels is simply because they don’t make much sense financially but they do make a great story for politicians like Sarah Palin or some pro-lifers who fancy themselves fighting against an onslaught of cartoon Nazis. On the contrary, it’s almost kind of amazing how casually real life ‘death panels’ were so accepted decades ago that they weren’t even debated while today they are unthinkable (again refer to the allocation of dialysis by ‘God committes’ in hospitals, the casual use of children in medical experiments like the first polio vaccine, basically the concept of informed consent in just about all medical research until relatively recently)

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