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Miles J. Zaremski Headshot

The Public Option, Who Makes Decisions to Treat Us, and Tort Reform

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How many times do we question someone who claims more knowledge than us, or we think they do? Many times, I suspect. This does not occur, however, when we have complete trust and faith in them, or we know from our own background that what is being told is truthful.
This type of thinking is no less true when it comes to the current debate surrounding health care reform bills. After all, we are not in a room crafting this legislation, so we have to rely on the words of those we elected to public office to truthfully tell us what they say and how one of them will best benefit our lives.

Unfortunately, and more often than not, history has shown us that "politics" -- misinformation, dishonesty, hyperbole, and self-interest -- get in the way of enacting legislation that will best serve a majority of the nation. This was no more evident than during an August 24 town hall meeting I attended conducted by Rep. Mark Kirk (R-10th, Ill.) -- from the claim that government will completely take over the health care system with a public plan, to eliminating billions of dollars in unnecessary costs by reforming states' tort laws. Rep. Kirk happens to also be a declared candidate for Senate from Illinois.

In recent media pieces, there has been reported considerable criticism of the public option because Americans will not support a publicly sponsored plan where bureaucrats control how we are treated and cared for by our doctors. I would agree; our doctors must be the ones who decide how to treat us; not some third party administrator. Despite the contentiousness and misinformation leading us to believe that a public option will take away such decision-making from our physicians, guess what -- bureaucrats in the private market already do this today, more than we care to know. This is said not from any subjective belief, or anecdotal remarks, but with facts in hand.

Over the past nine years, three cases have reached the United States Supreme Court that had as discussion points the claimed involvement of bureaucrats from private plans making medical decisions. These cases are, Pegram v. Herdrich, Aetna v. Davila, and Cigna v. Calad. Their significance here is not only in what the court had to say, but also in making their way all the way for nine justices to hear them. Very, very few cases ever make it this far, so their importance is more than offering casual remarks.

The court in Pegram discussed what were called pure eligibility decisions under a private health plan. They turn on the plan's coverage of a particular condition or medical procedure. Pure treatment decisions, by contrast, are ones made by our doctors about how to go about treating us. The court identified a third, and more problematic, category: what is called the eligibility-treatment decision where plan benefits and a physician's opinion on how to treat are tied together. As well, our Supreme Court recognized that in practical terms, eligibility decisions cannot be untangled from physicians' judgments about reasonable medical treatment, and that, "The eligibility decision and the treatment decisions (are) inextricably mixed, as they are in countless medical administrative decisions every day." In the Aetna case, the attending physician wanted to see his patient take one medication, but the plan thought a less expensive drug would suffice at the outset. In Cigna, the insurance company pre-admission nurse decided that one day of hospitalization was all that was needed for the patient, even though the patient's doctor felt otherwise. In both cases, injury was claimed as a result of decisions forced upon the attending doctor from determinations made by some (insurance) bureaucrat. None of the cases involved a government-run plan.

How do these cases inform the health care reform debate? By showing the existence of facts where a bureaucrat decided whether, how, and to what extent particular treatment and care was to be rendered to a patient by his or her doctor. (There are several other legal cases in lower courts involving decisions made by bureaucrats as well.) As Pegram already noted, this intervention goes on many times a day throughout our country.

Let's get back to a public option. To be sure, it will offer benefits just as a private plan would, drive down costs for insurance as supporters assert due to its competitive effect on the market, and provide more access (to health care) for those who cannot presently afford health care insurance. But since such a plan is an idea still being solidified and we do not want third party bureaucrats interfering with how our doctors need to treat us as the three Supreme Court cases identified, we still have the ability to tell legislators that a public plan must not repeat the mistakes of the private market -- interfering with our doctors deciding what is best for us.

As for tort reform, Rep. Kirk bristled when told that the impact of medical malpractice costs as measured by malpractice insurance premiums in 2006 -- the most recent year for which all necessary data to make these comparisons is available -- accounted for a mere .58 per cent of all health care costs. This data comes from the Centers for Medicare & Medicaid Services, Office of the Actuary, US Dept. of Commerce, Bureau of Economic Analysis. He obviously supports any such reform and does not wish to listen to anything to the contrary. Equally of interest as reported in two Congressional Budget Office Reports (one in 1992, the other in 2004) is that the claim that so-called "defensive medicine" (where doctors order extra tests to protect themselves from liability claims) is done more to make money to increase revenues than anything else. These CBO reports go on to say that savings from reducing defensive medicine practices would be "very small" on health care costs.

At the end of the day, those who wish to defeat the administration on health care reform want to do it by either sleight of hand with false, incomplete or misleading data, or by leading constituents down the garden path like a Pied Piper; those who want reform do it on facts and reality. Let's hope President Obama emphasizes the latter over and over again after he returns from vacation.