Healthcare Woes, Part I- Legal Duty and economic Efficiency

Most people do not even know what they do not know.   Most people who advocate that healthcare is a "right" or that mandated insurance is an obligation (legal or moral) are ignorant as to the philosophical/moral principles of law and government. Moreover, they are ignorant as to the actual day-to-day realty of the healthcare profession.  This is true also of people who do not understand (yet insist on trying to fix) the high costs of healthcare.

“During much of the 20th century, hospitals did not have a duty to treat patients who entered emergency departments. Without any given reason, they could refuse to treat certain patients. The practice of “patient dumping” arose from that lack of duty.

Patient dumping refers to situations when hospitals deny emergency medical screening and stabilization services. It also refers to instances when a hospital transfers an individual to another hospital after discovering that the individual does not have insurance or a means to pay for treatment.” (Natlawreview.com)

The national Law Review article (quoted above) does not explain the legal parameters of a “duty” so I will do so here.   Duty is a legally enforceable obligation where nonperformance (or negligent performance) can result in liability and sanctions.  There are three sources for the creation of a duty: (1) by act of law, (2) by contract, and (3) a fiduciary duty which arises out of a special relationship where a party accepts responsibility for another by virtue of that relationship (i.e. adult child of an aging parent, care of a handicapped person, managing the financial holdings or interests of another, etc.)  There are, arguably situations where there is a “moral” duty to act but so far, no merely “moral” duty is legally enforceable. In the case of a duty of medical care, the usual “hook” for responsibility arises from the operation of recent federal laws.  Nevertheless,  any duty asserted must still arise from one of those three sources.

“By the mid 1980s, so-called patient dumping had became a major concern. The practice involved hospitals transferring patients in need of medical attention to other institutions to avoid footing the bill, or even discharging them before they were properly treated.” (Salon.com)

“In 1986, Congress enacted the Emergency Medical Treatment & Labor Act (EMTALA) to ensure public access to emergency services regardless of ability to pay. Section 1867 of the Social Security Act imposes specific obligations on Medicare-participating hospitals that offer emergency services to provide a medical screening examination (MSE) when a request is made for examination or treatment for an emergency medical condition (EMC), including active labor, regardless of an individual's ability to pay. Hospitals are then required to provide stabilizing treatment for patients with EMCs. If a hospital is unable to stabilize a patient within its capability, or if the patient requests, an appropriate transfer should be implemented. “(CMS.gov)

“Whether people know it or not, whether people appreciate it or not, access to emergency care became a right in this country in 1986,” said Dr. Wesley Fields, an emergency physician in Orange County, Calif. “But the law that did that never addressed the big question of whose responsibility it was to deal with the cost.” (Pantagraph.com)

“Those costs have prompted financially strapped hospitals to rely on a complex system of shifting costs. Most of the burden falls on taxpayers, with the government providing tens of billions of dollars annually to help hospitals care for the uninsured. Privately insured Americans also pay a price as insurers raise premiums to reflect higher charges from hospitals.” (pantagraph.com)

“Moreover, hospital emergency departments (EDs) are the only part of the health care system that is required by federal law to provide care to all patients, regardless of ability to pay.” (Heritage.org)

“According to the American College of Emergency Physicians, which has some qualms with the law as it exists today, “As a result, local and state governments began to abdicate responsibility for charity care, shifting this public responsibility to all hospitals. EMTALA became the de facto national healthcare policy for the uninsured. Congress in 2000 made EMTALA enforcement a priority, with penalties more than $1.17 million, nearly as much as in the first 10 years (about $1.8 million) of the statute combined.” Many observers argue that the law drives up the costs for everyone else, as hospitals have to raise their prices on paying customers in order to cover the costs of their charity care.” (Salon.com)

Constitutionally there is a strong argument to be made that, in strict accordance with our founding principles, our limited government owes no legal obligation to render medical care or to provide insurance (health or otherwise).  Article I, Sec 8, of the U.S. Constitution (still the Supreme law of the land, as far as I know) contains no express provisions for such government involvement.  Neither can one find an implied duty since, according to strict rules of constitutional interpretation, any implied authority or power must emanate directly FROM one of the express powers.  Only by disregarding the historical, traditional fundamental principles, can one manipulate the constitution to authorize the federal to mandate public health insurance or healthcare.

Who is eligible for “free healthcare?

According to current law, Any individual who comes and requests examination or treatment of a medical condition must receive a medical screening examination to determine whether an emergency medical condition exists. One might assume that a licensed physician would be able to make that determination and in theory you would be correct but in practice it does not work that way.  EMTALA applies when an individual "comes to the emergency department."  A dedicated emergency department is defined as "licensed by the State . . . as an . . . emergency department” or “is held out to the public . . . as a place that provides care for emergency medical conditions." So the patient determines whether his condition is an “emergency”. Once presented at the emergency room, the full services of that facility are required by law to test/treat that person, even there is no medically sufficient evidence to warrant those tests/treatments. The law contains serious penalties for failure of the emergency facility to do so.
Keep in mind, that if a right is a fundamental human right, common to all men, the government has a duty to protect said right. But a right that is the creation of government is a different animal, and what Uncle Sam giveth, by that same authority Uncle Sam may taketh away, or subsequently limit.

So where does that leave us at the present time?  I found some information relating to this subject from various web sources, both “liberal” and “conservative”. I also have conducted numerous interviews with people directly involved in the day-to-day distribution of some aspect of the health care industry.  A close friend recently submitted a research paper on the subject of abuse of the emergency departments in our local (East Tennessee) area.  The results are a bit shocking.

  “…the emergency care costs of EMTALA [excludes hospital inpatient and other] have been estimated to be about $4.2 billion. EMTALA’s effect on the nation’s emergency care system itself is huge with direct costs for uncompensated care to physicians about $4.2 billion.” (ACEP.org )

“Recent increases in ED (emergency departments) demand are driven by patients seeking care for non-urgent problems. Not surprisingly, patients with private health plans recorded the lowest usage of emergency room care. Medicaid and State Children's Health Insurance Program (SCHIP) enrollees use EDs at roughly four times the rate of privately insured patients and nearly twice the rate of uninsured patients or Medicare beneficiaries.” (Heritage.org)

“…a substantial part of ED demand comes from patients who could be cared for elsewhere. According to the National Hospital Ambulatory Medical Care Survey (NHAMCS), less than half of emergency department visits (47 percent) in 2004 were classified as either emergent (12.9 percent) or urgent (37.8 percent). This was true for all insurance groups with the exception of Medicare patients (about 57 percent of Medicare visits were emergent or urgent).[16] Moreover, visits classified as semi-urgent, non-urgent, or "unknown triage" accounted for all of the overall emergency department visit increase across all insurance groups between 1996-1997 and 2000-2001. (Heritage.org)

It is estimated by of the people interviewed  who actually work in  ED's (emergency departments) that upwards of 90% of emergency room visits are from people with  "non-emergent" conditions. When a patient presents with nothing but a complaint of pain somewhere (frequently abdominal) the ED is required by law (or by threat of lawsuits) to administer several costly tests, which invariably produce no evidence of any cause to answer the patient's complaint. Further, since insurance companies pay the bills on the basis of "patient satisfaction surveys", the patient nearly always gets what they came for...namely, pain medication. 

Beginning in October 2012, the Affordable Care Act implemented a policy withholding 1 percent of total Medicare reimbursements—approximately $850 million—from hospitals (that percentage will double in 2017). Each year, only hospitals with high patient-satisfaction scores and a measure of certain basic care standards will earn that money back, and the top performers will receive bonus money from the pool.

These patient satisfaction surveys can be useful but “…tying hospital payments to subjective patient experience metrics may actually result in serious harm by diverting attention away from the clinical outcomes and care quality part of it all.” (theatlantic.com)

Tying hospital care reimbursement to something as subjective as the patient’s opinion of whether they received their needed care (as opposed to the hospital treating them as guests in a 5-star hotel) is a foolish method of improving healthcare or controlling costs.  It becomes the subjective view of the patient rather than professional medical opinion of a Doctor that determines what tests and other services will be reimbursed to the hospital.

“Joshua Fenton, a University of California, Davis, professor who conducted the study, said these results could reflect that doctors who are reimbursed according to patient satisfaction scores may be less inclined to talk patients out of treatments they request or to raise concerns about smoking, substance abuse, or mental-health issues. By attempting to satisfy patients, healthcare providers unintentionally might not be looking out for their best interests. New York Times columnist Theresa Brown observed, “Focusing on what patients want—a certain test, a specific drug—may mean they get less of what they actually need. In other words, evaluating hospital care in terms of its ability to offer positive experiences could easily put pressure on the system to do things it can’t, at the expense of what it should.”” (theatlantic.com)

All of this misuse and abuse of medical treatment and public health has come about (apparently in direct proportion to the amount of government intervention.   Partly due to public pressure, lawmakers are only too willing to abandon any pretext of limited government and instead are only too happy to enlarge the scope of government and degree to which they may compel servitude and extract their “pound of flesh” from any whom they deem unworthy.  The more government tries to provide expanded health coverage, the more abuse is likely.  The more people want our own healthcare system to look like those in many European countries, the more we the people will also lose our liberties in direct proportion.

Evidence is legion about nationalized care in other countries in comparison to medical services in the U.S.  I would argue that ours is the BEST healthcare available in the world, BUT...it is not, and cannot be so if it is equally available for everyone.

The very characteristics that make it great are (1) research, (2) education, (3) innovation, (4) the elements that create high motivation of the practitioners; [a] profit, and [b] altruism.  Once you must use force to coerce participation in the medical services arena, the motive (element #4) diminishes and that affects elements 1-3.

I may SOUND cruel and inhumane, but no one DESERVES the product of someone else's labor. When any force is required to compel one person to give to, or do for, someone else, you lose the very things that CAUSE service to be of any value. In addition, if you understand human nature, you will see that people devalue that for which they have NOT had to sacrifice to achieve. The more you GIVE to someone, the less those will struggle to achieve, and the less value they place on that which they were given. (note the increase in the "entitlement mentality in recent years and see how this has affected the younger generations. ) The less we struggle to achieve as a society, the LOWER will be the standard of living for all of society. By the same principle that a "rising tide floats all boats" the opposite is true, that diminished productivity by those who produce the most, will also diminish the net gain of everyone else.

Until very, very recently in human history, the best healthcare, regardless of technology and science, was always performed on ONLY the most needy by those with a "holy" ambition (altruism or love of one's fellow man) The fact that we have made enormous strides in science and technology has made healthcare a political tool of government, to gain more control of citizens and wealth. The requirement (Obamacare) that federal reimbursements of medical procedures is tied to patient satisfaction surveys has created the dramatic increase in prescription addictions, pharmacy hopping, and Dr. shopping. This has created (according to experts) an even greater strain on the system and a real possibility that Emergency facilities and resources will NOT be able to deal with an actual catastrophic event.

Moreover, health insurance has always been considered a "benefit" and as such as been taxed by government as "income". When and how did an employment benefit "morph" into a "right" of the unemployed? Anytime you have producer's being coerced into providing for non-producers, you will have a reduction in producers and a corresponding increase in non-producers. No system can remain healthy, or continue to be self-sustaining under those conditions.

SEE Part II - Faith and Freedom