Mike Stopa

The reality of death panels

ObamaCare’s end-of-life planning comes down to economics

By Mike Stopa
January 22, 2011

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SUPPORTERS OF President Obama’s health care reform law have relentlessly derided Sarah Palin’s notion of “death panels’’ as a vulgar rhetorical technique, with no basis in reality, devised merely to scare a gullible, uneducated citizenry into rallying to repeal the law. The death panel notion persists, however, because it denotes, in a pithy way, the economic realities of scarcity inherent in nationalizing a rapidly developing, high-technology industry on which people’s lives depend in a rather immediate way. G.K. Chesterton once wrote that vulgar notions (and jokes) invariably contain a “subtle and spiritual idea.’’ The subtle and spiritual idea behind “death panels’’ is that life-prolonging medical technology is an expensive, limited commodity and if the market doesn’t determine who gets it, someone else will.

In December, the Center for Medicare and Medicaid Services issued a regulation, since rescinded by the Obama administration, that would have allowed doctors to be reimbursed for “voluntary advanced care’’ planning. When the regulation was publicized, it resulted in a renewed outcry that such end-of-life planning provisions presage the inevitable death panels of ObamaCare.

In response, J. Donald Schumacher, president and CEO of the National Hospice and Palliative Care Organization, wrote in a CNN opinion piece that “an advance care planning consultation is not about limiting or rationing care. It’s not about hastening death. It’s not about having choices made for the patient. It’s not about saving money.’’

But anyone who thinks that end-of-life planning has nothing to do with cost has never had the unenviable experience of participating in that planning. According to Donald Berwick, the head of the Center for Medicare and Medicaid Services, “Using unwanted procedures in terminal illness is a form of assault. In economic terms, it is waste. Several techniques, including advance directives and involvement of patients and families in decision-making, have been shown to reduce inappropriate care at the end of life, leading to both lower cost and more humane care.’’

The resistance to incorporating end-of-life planning into Medicare is based on the rational fear that such planning will be used to coax patients into forgoing life-extending technologies that Medicare administrators may deem risky, of marginal benefit, or unlikely to succeed — an estimation that could be based in part on the cost of the technology.

Moreover, the suspicion that such programmed advance planning conceals ulterior motives is exacerbated by the fact that relatively few patients will ultimately benefit from it. It is mainly of value for those who do not die suddenly, who have no trustworthy relations to maintain their power of decision, and who lose their wits a potentially long time before their death.

Opposition to government-funded end-of-life planning does not imply ignorance of the indignity or discomfort of having one more tube placed into one’s body to buy an extra few days of painful life. (Although one can imagine concluding that dignity is a highly overrated virtue when the alternative is death). But when a massive government bureaucracy, tasked with determining medical “best practices’’ and controlling costs, announces a policy that “wellness visits’’ should have us chatting with our doctors about what technologically invasive, life-extending procedures we would just as happily do without, we are not supposed to be suspicious?

Even aside from end-of-life counseling, any form of medical insurance, including ObamaCare, has to determine where the boundaries of coverage lie. Today, hospitals decide not to provide life-extending procedures all the time. In practice, for those who have no independent means, some form of utilitarian, “greatest good for greatest number’’ ethic is imposed whereby treatment is approved based on things like the likelihood of success and the potential lifespan of the patient. Much of the rigor of those considerations is already envisioned as part of the Patient-Centered Outcomes Research Institute.

Conversely, medical technology is forever inventing new medicines and procedures that have the potential to extend life or cure the previously incurable. Each such technique inevitably passes through a phase where it is experimental, risky, and expensive. Often enough the sky is the limit and so late in life we are all liable to become, in the words of the late Harvard philosopher Robert Nozick, “utility monsters.’’

To the extent that ObamaCare ultimately succeeds in imposing uniformity on basic health care, it will likely lead to the creation of secondary markets for providing insurance against various health eventualities and access to “heroic’’ procedures to extend life. Water runs downhill and it’s a good thing that it does. First, we need to have people buy the expensive medicines and experimental technologies. Europe has discovered this as its regulated system of medicine has driven its pharmaceutical industry farther and farther behind that of the United States. Capping costs kills innovation.

But, in addition, Palin is right. Death panels are an inevitable consequence of socialized medicine. The law of scarcity demands them.

A mature discussion of health care must recognize basic economics so that we can think ahead on how to satisfy the demands of those who are not satisfied with base-level care.

Mike Stopa is a nanophysics researcher at Harvard University. He blogs at