The article discusses the inefficiencies in U.S. health care provision that is not addressed by the health care bill signed into law in 2010. The presence of the insurance provider, in a doctor-patient relationship, contributes to health care inefficiency. It advises the regulation of insurance companies, catastrophic health care to be the government\u27s responsibility, and the inclusion of tort reform to bring down insurance costs

Carson, Benjamin S., Sr.

English

Notre Dame Law School: NDLScholarship

Notre Dame Journal of Law, Ethics & Public PolicyVolume 25Issue 2 Symposium On Health Care: Health, Ethics, &the LawArticle 71-1-2012Rational Health Care Reform: Reflections of aPractitionerBenjamin S. Carson Sr.Follow this and additional works at: http://scholarship.law.nd.edu/ndjleppThis Essay is brought to you for free and open access by the Notre Dame Journal of Law, Ethics & Public Policy at NDLScholarship. It has beenaccepted for inclusion in Notre Dame Journal of Law, Ethics & Public Policy by an authorized administrator of NDLScholarship. For more information,please contact lawdr@nd.edu.Recommended CitationBenjamin S. Carson Sr., Rational Health Care Reform: Reflections of a Practitioner, 25 Notre Dame J.L. Ethics & Pub. Pol'y 387(2012).Available at: http://scholarship.law.nd.edu/ndjlepp/vol25/iss2/7RATIONAL HEALTH CARE REFORM: REFLECTIONSOF A PRACTITIONERDR. BENJAMIN S. CARSON, SR.*When I first came to Johns Hopkins as an intern, more thanthree decades ago, I remember being impressed by the caliber ofpatients on the wards. There were CEOs of major companies,presidents of large organizations, princes and queens from dif-ferent countries, and they were, in many cases, dying of horriblediseases. What they all had in common was that they would havegladly given every penny and every title they had for a clean billof health. At that point, I truly understood how incrediblyimportant health care is. For this reason, I am certainly happythat the topic has risen to prominence recently, and I amdelighted that the new health care bill addresses such things asexclusion from insurance because of pre-existing illnesses andlifetime caps on insurance benefits. This is all well and good, butunfortunately, we really have not addressed one of the majorissues, which is cost. The United States already spends approxi-mately twice as much per capita for health care as the next clos-est industrialized nation in the world.' This indicates that thereis no lack of intention or effort to provide health care, but thereis a great deal of inefficiency. Before doing things that furtherincrease the cost, we should look at ways of increasing efficiencyand decreasing costs.I would start by asking the question: what do you need forgood health care? I submit that you need to have a good doctorand a patient with a medical problem. At some point, a middle-man came along to facilitate the relationship between the doctorand the patient, and now the middleman has become the pri-mary entity, with the doctor and the patient at its beck and call.When there is a primary relationship between a doctor and apatient, costs are automatically examined more closely than in asituation where there is some nebulous third party to whom all* The Benjamin S. Carson, Sr., M.D. and Dr. Evelyn Spiro, R.N. Professorof Pediatric Neurosurgery, Johns Hopkins University. Director of Pediatric Neu-rosurgery, Johns Hopkins Hospital. Professor of Surgery, Oncology, Plastic Sur-gery, and Pediatrics.1. Chris L. Peterson & Rachel Burton, Cong. Res. Service, U.S. HealthCare Spending: Comparison with Other OECD Countries 2 (2007), http://assets.opencrs.com/rpts/RL34175_20 0 7 09 17.pdf.387388 NOTRE DAME JOURNAL OF LAW ETHICS & PUBLIC POLICY [Vol. 25bills are submitted and who gets to determine what servicesshould be available for certain patients. Because of this, weshould design policies that are aimed at getting the middlemanout of the equation.One of the first things that could be done is to recognizethat the cost of getting an operation-an appendectomy, forinstance-is different in New York City than it is in Miami than itis in Oklahoma City than it is in Dallas. By having so many varia-tions and ways of billing and collecting, we justify the mountainsof paperwork involved with medical claims and the armies ofpeople to push that paper around. All of those people have to bepaid out of each health care dollar. We can remove most ofthem by recognizing that virtually every diagnosis has somethingknown as an ICD-9 code, and every procedure, from drawingblood to a craniotomy for a tumor, has something known as aCPT code. These provide standardization in medicine so that allbilling and collection can be done uniformly and in a computer-ized manner.Many insurance companies would argue that if the systemwere simplified in such a manner, a physician could indicate thathe had done two appendectomies when in fact he had only doneone, so that he could be paid twice. However, there are weak-nesses to the insurance companies' protests. First of all, very fewphysicians that I know would ever consider such an unscrupulousact, and secondly, I think there are better ways to deal with thevery few people who are that dishonest. This is why we have acriminal justice system. I would advocate that the penalties forcommitting medical fraud be very severe, such as lifetime loss ofmedical license and no less than ten years in prison. Under suchcircumstances, not only would all physicians be extraordinarilymeticulous about correct billing submissions, but they would alsocheck every bill "seven ways to Sunday" to make sure it is correct.One might not think that harsh penalties work, but all one has todo is look at the rate of drunk driving in Sweden versus theUnited States. In Sweden, the penalty for drunk driving isextreme, and it virtually does not occur, whereas in the UnitedStates the penalties are quite variable and sometimes negligible.'The savings we would encounter by having physicians simply sub-mit the ICD-9 code(s) and the CPT code(s) and be reimbursed2. For a comprehensive explanation of the punishments and frequency ofvarious drunk-driving laws on other nations, see National Highway TrafficSafety Administration, On DWI Laws in Other Countries, available at http://www.nhtsa.gov/people/injury/research/pub/dwiothercountries/dwiothercountries.html. Because of strict laws, the people of Sweden "do not drive after drink-ing." Id.RATIONAL HEALTH CARE REFORMelectronically the following day would probably pay for all of theuninsured people plus more.Another thing we should considered is how to take care ofthe 47 million uninsured patients. On a historical note, it shouldbe remembered that prior to the time that insurance companieswere able to dictate the cost of health care and pay whatever theywanted to pay, most hospitals and physicians took care of a signif-icant number of indigent patients and felt it was their duty to doso. Therefore the 47 million people in this country withoutinsurance actually do not exist. Why do I say that? Because, ifthey have a medical emergency, they can go to the emergencyroom where they have to be treated. The problem with that sys-tem is that it costs five times more to be treated in the emergencyroom than it does in a neighborhood clinic. What that means isthat at some point we have to recognize that we are taking care ofthem anyway. All of us are paying for it, and therefore we needto come up with some type of incentive that would encourageeach individual to go to the neighborhood clinic rather than tothe emergency room. I submit that we do not have to reinventthe wheel; we can look at other social welfare provisions in ourgovernment, such as the Food Stamp Program. People on foodstamps learn very quickly not to go out and buy porterhousesteaks within the first five days of the month and starve the rest ofthe month before they get their next monthly allotment. Theylearn to be rational in the way they space their food purchases,and they are able to survive adequately. If we had an electronichealth account that was replenished on a monthly basis, it mighthave a similar effect. Under this scenario, if Mr. Smith has a dia-betic foot ulcer, he would be much less likely to go to the emer-gency room and blow half of his monthly budget than he wouldbe to go to the clinic. He would get the same treatment in bothplaces, but in the emergency room they would patch him up andsend him on his way, whereas in the clinic they would patch himand up and say, "Now Mr. Smith, let's get your diabetes undercontrol." We begin to talk about preventive health care and awhole other level of savings. As our population ages, we wouldbe extremely well served to look at wellness as opposed tosickness.One of the reasons that health insurance is so expensive isthat we in the medical profession have become so good at savingpeople's lives or improving their quality of life through sophisti-cated treatments. We are now able to take an extremely prema-ture baby, give him certain drugs, put him in an incubator, anddo various procedures to save him whereas previously he wouldhave been lost. At the end of that salvation, we hand the insur-2011]1 389390 NOTRE DAME JOURNAL OF LAW ETHICS & PUBLIC POLICY [Vol. 25ance company a bill for $1,000,000. Likewise, we are now able totake an eighty-five-year-old woman with hypertension, diabetes,and thyroid disease who develops a tumor of the brain or thelung, and we can remove the tumor and restore her to her base-line. We then hand the insurance company a bill for $600,000.After seeing this enough times, the insurance companies feelthat they can justify enormous rate hikes and hide behind theissue of catastrophic health care, which is very difficult to dispute.I should hasten to point out that not all health care insur-ance companies are greedy and looking only for money, and, infact, there are some that are truly concerned about patients.Those companies probably would agree with my next suggestion:to remove from the insurance companies the responsibility forcatastrophic health care. They would only be responsible forroutine health care, defined by a certain dollar amount, and thegovernment would be responsible for catastrophic health care.That would mean that we would be able to predict how muchmoney the insurance companies need to take in, and we wouldhave a pretty good idea of how much they have to put out, basedon actuarial tables. They would be regulated, along with the costof insurance, yet they would still be allowed to make a profit, justas utilities are able to make a profit. Indeed, if we did not regu-late utilities, we would all probably be having trouble paying forelectricity and water.Now one might ask, how in the world is the governmentgoing to deal with catastrophic health care? Well, we do not haveto create a new government entity; we already have one in exis-tence called Medicare. It would simply be open to everyone,rather than just people who are sixty-five and over, and it wouldkick in at a certain dollar amount per illness. Obviously, it wouldbe necessary to tighten up the processes that allow Medicare pay-ments to be accessed, since there is currently an enormousamount of fraud in the system. However, if we make catastrophichealth care a government responsibility, we will finally have toconsider such problems as end-of-life care. Currently, we stickour heads in the sand and ignore the problem, but we still endup spending 40-50% of all Medicare dollars during the finalmonths of a person's life.' We poke them and prod them andput them in intensive care units, basically torturing them untilthey die. There are few other industrialized countries thatengage in such futile efforts, and that is one of the reasons that3. See Carol Raphael, Joann Ahrens & Nicole Fowler, Financing End-of-LifeCare in the USA, 94J. RoYAL Soc'Y MED. 458, 458 (2001), available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1282187/pdf/0940458.pdf.RATIONAL HEALTH CARE REFORMother countries' medical costs do not approach ours. I have nodoubt that we could reach a rational way to deal with end-of-lifeissues in a very compassionate and reasonable way.In order to accomplish this, we would also have to deal withtort reform. In many cases, physicians perform procedures thatthey know are probably not going to be beneficial in the longrun-they are simply afraid not to perform them when someonecan come along and say that they could have saved a patient'slife. There are few other industrialized nations that experiencethe malpractice problems that we do, and I do not believe thatthis is because our doctors are worse than doctors elsewhere; infact, I believe that our doctors are better than those in most partsof the world. The problem is not that we commit more malprac-tice, but rather that there is a special interest group that does notwant to see tort reform. Anyone who follows the votes in Con-gress knows that every time tort reform has been introduced, ithas passed in the House, but it has been filibustered to death inthe Senate by senators who have a strong alliance with the TrialLawyers Association. To my amazement, about a year ago mywife and I were at a public forum in Virginia attending a debatebetween Republicans and Democrats about such things as healthcare. One of the Democrats present was Dr. Howard Dean, whois refreshingly honest about many different issues. He was askedwhy there was no tort reform legislation in the new health carebill, and he said, "The people who wrote [the health care reformbill] did not want to take on the trial lawyers in addition to every-one else they were taking on. And that is the plain and simpletruth."' This comment was akin to saying that the Democrats didnot want to take on their own supporters, because the reformspent much time taking on other interest groups. I was shockedat his honesty in a public setting, although I already knew thatthis, in fact, was the reason there was no tort reform in thelegislation.Those who say that tort reform is not that big of an issue andthat it really is small potatoes in terms of the costs of health carereally do not have a good grasp on the subject. They perhaps donot realize that the cost of defensive medicine is virtually incalcu-lable. They perhaps do not realize that many physicians becomefrustrated, depressed, and quit due to malpractice suits. I know a4. InstForLegalReform, Howard Dean on Tort Reform, Trail Lawyers andHealth Care, YouTUBE (Aug. 27, 2009), http://www.youtube.com/watch?v=IdpW-cONnM. See also Health Care Run by Tial Lauryers:Jim Moran and Howard DeanAdmit Who's in Control, INS. NEWS NET (Aug. 28, 2009), http://www.insurancenewsnet.org/html/HealthInsurance/2009/0828/Health-Care-Run-By-Trial-Lawyers-Jim-Moran-And-Howard-Dean-Admit-Who-s-In-Control.html.2011] 391392 NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIJC POLICY [Vol. 25number of neurosurgeons who have left practice after lawsuitsbecause they were working themselves half to death, rewardedonly by being told that they are terrible human beings who areinflicting injury upon others. In many cases, patients do notwant to sue their doctor or the hospital, but they have no otherway of recouping money to deal with unfortunate outcomes oraccidents. Most other nations have found ways to take care ofinjured patients, but the aforementioned special interest groupwants no part of that here because it would impact their income.These are just a few ideas that could have an enormousimpact and help bring the cost of insurance coverage down to apoint where people and families could afford to own their owninsurance and not have to get it through their employer. Thiswould help remove many of the middlemen and also would cre-ate a situation where we could tell people that if you get anannual physical exam, you receive a 2-3% discount on yourinsurance premium. This would be extremely worthwhile, andwe would catch many diseases at a much earlier stage and wouldbe able to intervene when the costs would not be nearly as greatas in late stage diseases.The bottom line is this: do we want to restore in this countrya system in which people take personal responsibility for theirown health, have their own insurance in their own hands, andhave a personal relationship with their health care providers, ordo we want to have more government control of health care andother parts of our lives? These are two different models, andthere are people who would advocate for each of them. I thinkwe have to make a decision as to which way we want to go.

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