• *Catastrophic Care*: Chapter 5 (death panels)

    I was disappointed to read the following in Chapter 5 of David Goldhill’s Catastrophic Care (emphasis added).

    The furor over supposed “death panels” during the ACA debate demonstrated how emotionally charged this issue already is. On the one hand, as health care enables us to keep more—maybe even most—patients alive long beyond when real recovery is possible, doesn’t Medicare have to impose some restrictions on end-of-life care? But on the other, do we really want Medicare to determine when to pull the plug?

    Having raised the death panel debate, shouldn’t Goldhill accurately describe what it was? His use of “supposed” above indicates that he knows it wasn’t what he makes it seem to have been. It was not a debate of, on the one hand, the attempt by “Medicare to impose some restrictions on end-of-life care” and, on the other, the rejection of the idea that Medicare should “determine when to pull the plug.” Nobody on either side of the debate thought that Medicare should do such a thing. The debate, if anything, was between people spouting absolute nonsense and others correcting the record.

    Having mislead the reader as to the nature of the debate from the start, I had hoped Goldhill would patch things up later. So let’s read a bit further.

    I don’t believe we’ll find a politically acceptable solution to the end-of-life conundrum when it’s expressed this way. None of us want the government deciding when to end the life of a loved one, and none of us want to pay unlimited amounts for some other person’s “hopeless” treatment.

    Right. But “the government” never expressed a desire for such a thing. A reader unfamiliar with the entirety of the death panel debate, particularly, say, a student reading the book a few years from now, might not know that. Here are the basic facts, with links to more: The death panel charge was purported to relate to Section 1233 of the House Bill HR 3200, entitled “Advance Care Planning Consultation.” In fact, neither that section nor anything in any health reform bill at the time included anything that was or would lead to euthanasia of Medicare beneficiaries. A timeline of the death panel falsehood documents its spread from a July 2009 claim by Betsy McCaughey on Fred Thompson’s radio show to a Sarah Palin Facebook post and beyond. The idea that death panels or anything like them were ever in a health reform bill is undeniably false, and that fact has been explained manymanymany times. But not by Goldhill.

    Further on:

    Medicare is incapable of functioning according to patient preference. The idea of health care being a want—even a serious want—rather than a need is completely foreign. But with end-of-life care, there can be no disguise—fundamentally, it’s all about wants. Since Medicare structurally can’t accept that there is no one correct medical answer to the question of how much end-of-life care any single person gets, it has accidentally committed assault on our seniors by pretending there is one. The result is that our seniors are getting a lot of end-of-life care today, much of which is in excess of their wishes and ignores their best interest or comfort. Several studies have shown that many physicians rarely discuss preferences with their seriously ill patients and that many patients who express a strong desire to die at home wind up dying in a hospital. […]

    Do we really prefer for our government through Medicare to make these decisions for us? Do we as a society really believe that a central decision maker can honor the range of individual beliefs and preferences inherent in how we die?

    I agree there are problems with Medicare. Some of the basic issues Goldhill raises are legitimate, though I’d say Medicare’s problems are inherent in American health care. They’re shared by Medicare and private insurers alike. Singling out Medicare as the sole source of evil is a stretch. Moreover, we don’t have to pretend there was a debate about whether Medicare should euthanize seniors or that the program forces over-treatment on them.

    Nevertheless, I understand that Goldhill wants options to be clearer to seniors. Hey, here’s an idea: Maybe we ought to help seniors pay for assistance in establishing end-of-life plans so that they end their days as they wish. Though the offending “death panel” provision — to pay doctors whose Medicare patients voluntarily wished to be advised on end-of-life planning more consistent with their values and wishes — was dropped from the House health reform bill, it was effectively reinstated through a regulatory process. This too was not mentioned in the chapter.

    UPDATE: As addressed in the comments, I have removed any claim that Goldhill intended to mislead the reader about the death panel debate. I maintain that, nevertheless, there is a high risk that he has done so.


    • Very much agree with your concluding comment:

      “… Hey, here’s an idea: Maybe we ought to help seniors pay for assistance in establishing end-of-life plans so that they end their days as they wish. Though the offending “death panel” provision — to pay doctors whose Medicare patients voluntarily wished to be advised on end-of-life planning more consistent with their values and wishes — was dropped from the House health reform bill, it was effectively reinstated through a regulatory process. This too was not mentioned in the chapter. …”

      However, waiting until age 65/Medicare eligibility makes little sense to me – if you want to change individual behavior. The time to catch most people is when they first encounter the decision challenge about end-of-life care… typically, when they address the immident death of a parent. So, my suggestion is to consider modestly broadening out the existing tax preference that an employer may deliver to employees on “retirement planning advice or information” to include living wills, durable power of attorney, end of life planning, beneficiary designations, etc., while, at the same time, encouraging the use of 3rd party services (employers don’t want to do this directly) and putting a cap on the cap the maximum annual dollar value of such advice.

      Obviously, the exclusion would continue to not apply to tax advice or advice available only to highly paid individuals – the target should be every worker and her family. It could also be linked to the ubiquitous Employee Assistance Plans that are generally available at all but the smallest employers.

      The Department of Labor’s Advisory Council dealt with one aspect of this issue, in terms of beneficiary designations, in a recent year.

      A more holistic approach that would also incorporate public policy considerations seems appropriate.

    • The end of life decision-making process is even more contentious when the family’s cost of prolonging the patient’s life is zero. The Supreme Court of Canada heard the Hassan Rassouli case in December and has yet to issue its opinion.

      “Rasouli’s family opposes taking him off his life-sustaining ventilator while physicians pushed to have him removed from life support, saying he has no hope of recovery, the National Post reports.” ”

      “[Toronto Trust & Estate lawyer Ian] Hull says the difficulty that arises in many end-of-life care situations is “respecting the autonomy of patients and their families on the one hand, and making efficient use of limited health care resources on the other.” ”


      The physician and the hospital – not the Ontario government – are parties to the case, although I assume both are fully aware of the government’s budgetary interests. Can U.S. Medicare override a physician’s professional judgment and order that life-support machines be turned off?

    • You completely mis-read what I wrote! And as you know, this chapter is not about ACA but about Medicare; the segment you’re referring to is about the political difficulties in asking Medicare to determine appropriate treatment and thereby control costs. Obviously, I know there were no death panels in the bill — that’s why I call them “supposed.” And the point i’m making here is that the issue is so emotional that it evokes extreme fears that make political solution impossible (sorry Im not much of a partisan — I think both sides exploit extreme fears in the political debate on Medicare). In fact, practically speaking, we’re in almost complete agreement on this point, including the right solution, which is about recognizing that end-of-life treatment is about enabling options.

      The “assault” point is probably an area of difference, and its crucial to the real argument of this chapter. Because we can’t/don’t let Medicare make these decisions, the economic incentive leads to excessive care on the dying (often well beyond their expressed wishes) and this can be cruel. The point, as you know isn’t original to me, and has been well expressed by Brawley, Hadller, Brownlee and others. It is the subject of an excellent recent article by Michael Wolff on the loss of his mother. And it has been well documented by Dartmouth’s work on end-of-life care.

      • I assure you, I am not the only one to have misread it. I don’t know what your editorial review process was, but the passages I quoted stuck out like a sour note, so I’m surprised nobody flagged them before publication. It is a shame the book is not a blog because I would recommend an immediate correction and clarification. A few sentences is all it would take.

        • Thank you and i will pass that on to my editors…but no one who read the book pre-publication suggested that I thought details panels were anything other than political rhetoric.

          Speaking of which, your work is a blog, and you now know that it has significantly mis-represented (accidentally) an author’s meaning…

          • The post has been updated. I did this as quickly as I could. I do not believe the current version misrepresents anything. If you wish to stand by that charge you need to provide some evidence.

            I encourage you to understand that it is not my intention to press unwarranted charges. I am merely reading your book and reacting, as any reader might. The passages I quoted are problematic for the reasons I provide. The feedback may be challenging, but it is honest and in good faith.

    • Austin: I’ve really appreciated your careful reading of my work, and while I know we disagree on many key points, i take your views very seriously and read the blog carefully. You’ve simply mis-represented me here. It’s the equivalent of my reporting on the emotions around school textbooks, and your writing that I take the creationist position because i don’t specifically reject it. If you’ve read this chapter, you know it’s not about the ACA debate at all, but that I reference the “death panels” only to show how difficult it will be for our system of government to argument solve issues that other governments can (a recurring point throughout the book), not because i agree with the extreme and often irrational positions that dominate our political debates. You’ve truly put words in my mouth.

      No need to publish this comment; I intended it more as a personal message. David

      • You may email personal messages.

        I think if you want to claim I’ve put words in your mouth you need to point to some words in the chapter that contradict an explicit point I’ve made. I have quoted your words verbatim and read them as a misrepresentation of the death panel debate. That may, in fact, not be what you intended, but I maintain it is a reasonable interpretation of the words. Others will be mislead. That is a shame. I believe my post corrects the record.

        As a show of good faith, I will revise the beginning of the post to remove any suggestion that you intended to mislead. Still, I am disappointed by the wording as it appears in the book. That is my subjective judgement and I am entitled to it.

        • Thank you. I have no doubt this was an honest mis-reading of my meaning. As I said, i take this blog very seriously because i know how careful you are.

          My main argument in chapter 5 is that Medicare’s political inability to make choices that guide care means the program incentivizes behavior that harms seniors’ health. I know it’s a controversial position but its central to the book, as is my contention that this is unlikely to be fixed politically in our system. For readers interested in a short version of the argument, it was published by the Washington Post at http://articles.washingtonpost.com/2013-03-10/opinions/37605696_1_medicare-beneficiaries-private-insurers-health-care.

          • We disagree on misreading. I only agree that my hypothesis that you intended to mislead is not confirmed. I read your words correctly that you did not accurately characterize the death panel debate. I believe you that it was not your intention to try to do that. But I am telling you that what remains gives a misleading impression. That is not a misread. That is an honest read.

          • “Annual spending just on those in excellent or very good health was an astonishing$5,437 per person in 2008.”

            Thanks for the reference to your article in the W.P. Can you tell us a bit more about the $5, 437 number? Average, median, how it was obtained etc.? I wonder if they did an age stratification.

    • I had written a response before any responses were posted, but threw it out when I saw David Goldhill had already responded and virtually covered the points I was going to make. I would like to agree that death panels were not in the bill. They were a concept that describe what some people feel was occurring based upon more than just the ACA. I think that was a legitimate fear that needed to be addressed instead of argued.

    • Goldhill: The result is that our seniors are getting a lot of end-of-life care today, much of which is in excess of their wishes and ignores their best interest or comfort.

      How is patients getting end-of-life care in excess of their wishes a fault of Medicare (or any other payer)? Payers can certainly make it easier for patients to express their wishes – which is why Medicare and others should pay physicians for the time they spend discussing this issue. But if a patient makes his wishes clear and the physician (or other provider) doesn’t honor them, why is this a problem with Medicare? Isn’t it a problem with providers and their culture?

    • Goldhill’s point is much clearer in the WP article he cites. The point is that the low prices (reimbursement rates) for Medicare has a built-in incentive for providers to increase volume, “especially of more-costly procedures” such as CT and MRI scans (“diagnosis creep”), hip replacements, and over-medication with expensive drugs. That’s the “assault” Goldhill is referring to: the Medicare bias for volume due to low prices (reimbursement rates) leads to “medicalization of senior years”. It’s true that providers (and their advisers) seek ways to augment income that has been reduced as the result of lower reimbursement rates, but it’s a leap to conclude that the (relatively) low prices has caused the medicalization of seniors. By Goldhill’s account, Medicare could substantially increase reimbursement rates and yet total Medicare spending would actually remain constant or even decline. More is less, less is more. Is Goldhill trying to make the case for higher Medicare reimbursement rates? He never actually says so. If not, what’s the point?

      • I’m having trouble understanding Goldhill’s contention that lower Medicare reimbursements lead to increased utilization. I assume (though I don’t know for sure) that Medicare prices above marginal cost for most procedures. So assuming that the hospital’s marginal cost curve is upward sloping, a decrease in marginal revenue for a given procedure should result in fewer procedures. What am I missing here?

    • The entire FFS method of payment promotes over use of services. This is not just a problem with end of life care. I find the statement that Medicare cannot determine how much care a person should get at the end of life not helpful. No one can determine that. We arent especially good at knowing when that time has come. Beyond that, it doesnt matter whp pays if the issue has not been resolved ahead of time. If they have private insurance, go see what happens with our younger breast cancer patients, the same thing happens.


    • As an adviser to physicians, I can confirm that physicians are seeking higher reimbursement rates. With respect to private third party payers, one way is to become affiliated with a large provider, such as a large group practice, a hospital, or academic medical center. Yes, it’s true that they can bargain for higher reimbursement rates, for the professional component as well as the technical component. Indeed, the response to ACA has been an increase in the concentration/ integration in the industry, which will actually increase over-all spending, at least in the short term. Another way to offset lower reimbursement rates is to tap other sources of revenues, for physicians that typically means the technical component of reimbursement. Which is not necessarily a bad thing. Indeed, health care policy over the past 20 years has been to shift procedures from an inpatient setting to an outpatient setting. For example, I have worked with dozens of gastroenterologists to create physician-owned free standing endoscopy centers. Does that mean the physicians have a bias for over-utilization of the procedure? I suppose some bias, but that has to be considered in the context of the different reimbursement rates for a colonoscopy performed in a hospital vs. a free standing endoscopy center: the co-pay for the procedure in a hospital exceeds the entire fee for the procedure in a free standing endoscopy center. That’s right, the co-pay. If a hospital employs a gastroenterologist, (that’s called integration in the industry) where does the hospital want him to perform colonoscopies? And how would that affect overall health care spending? So, do physician-owned endoscopy centers increase or decrease overall health care spending? The competing economic forces at work in health care render simplistic points like Goldhill’s all but useless.

    • robert is on the right track.

      All procedures of one type should be paid the same.

      This will cause American hospitals to lose income, for sure.

      But the ability of hospitals to manipulate fee schedules has allowed overall hospital budgets to climb by 300% between 2000 and 2010.

      America has been helping hospitals cover their costs for 5 years.
      This made some sense in the 1960’s, when many hospitals were “tin cup” institutions that needed support.

      But not today!

    • sorry I meant it is 50 years that we have let hospitals ramp up their costs.

      We have had cost-based pricing.

      While most of America operates on price based costing.