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Death Panels: Fact and Fiction

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"Death panels" are back in the news, and Congress is turning its attention to them once again. The problem is, lawmakers are looking in all the wrong places.

The House Energy and Commerce Committee, now headed by Republicans, sent a letter to Health and Human Services Secretary Kathleen Sebelius last week demanding to know how a controversial provision that was excised from last year's health reform bill wound up -- briefly -- in a government "rule" on physician reimbursement.

The proposed provision would have allowed Medicare to pay doctors to counsel patients about their end-of-life medical wishes. That idea originally had bipartisan support, but when the provision was brought to Sarah Palin's attention, she accused Democrats of wanting to create "death panels" that would decide when to pull the plug on granny and grandpa.

The claim was utterly false, but it was such an irresistible soundbite that Palin posted it on her Facebook page. She and many other Republicans quickly made it a central part of their efforts to scare people away from health care reform. They were so successful -- it spread like wildfire through the online and cable news worlds -- that PolitiFact.com, the fact-checking website of the St. Petersburg Times, chose it as the "Lie of the Year" for 2009.

Worthy as the idea of paying for end-of-life counseling might be, cowed Democrats pulled it from the reform bill before it reached President Obama. Last November, however, the provision was included in a rule that was issued by Medicare on physician payment rates. When the rule became public, Republicans pounced once again. The Obama administration pulled the provision immediately, dropping it like the political hot potato it had become.

In their letter to Sebelius last week, Republicans on the Energy and Commerce Committee charged that the administration had attempted "a political maneuver designed to avoid public scrutiny."

Raising this issue again is part of a larger strategy by Congressional Republicans to further erode public support for reform, to keep it alive as a divisive political issue. Meanwhile, the business of real death panels is proceeding as usual, outside of any public scrutiny or apparent interest on Capitol Hill.

Yes, death panels do exist. They exist inside the big health insurance corporations that every day make decisions on whether or not people enrolled in their health benefit plans will get the care their doctors believe might save their lives. I know this firsthand from nearly two decades inside the insurance industry.

You don't have to take my word for it. Just ask Hilda and Grigor Sarkisyan, who very possibly would be helping their daughter, Nataline, plan her 21st birthday about now had a corporate medical director not refused to pay for a liver transplant Nataline's doctors believed would save her life.

Nataline was diagnosed with leukemia at 14. Initial treatments were successful and the disease went into remission. It came back a couple of years later, though, and the sort of treatments she'd had previously were not working. She had to have a bone marrow transplant, which weakened her liver. In mid-December 2007, her doctors at UCLA Medical Center said she needed a liver transplant. They asked for prior approval from her insurer, CIGNA, to pay for it. Nataline's doctors said they believed she had at least a 65 percent chance of living five years or longer if she had the procedure.

A CIGNA medical director 2,500 miles away in Pittsburgh disagreed. To the astonishment of Nataline's doctors, he ruled the transplant "experimental." Insurers almost never pay for procedures they consider experimental, so this corporate medical director's decision meant that the Sarkisyans would have to pay for the transplant and all related care out of their own pockets. Not being wealthy enough to do that, Nataline's parents launched a campaign to rally public support and media interest in the case. It worked. CIGNA eventually agreed to cover the transplant. Unfortunately, so much time had passed since the original request had been made that Nataline's other organs began to shut down. She died a few hours after the family got the news that CIGNA had changed its mind.

As chief spokesman for CIGNA at the time, I was on the receiving end of hundreds of calls and emails from reporters and also from regular folks who were outraged that CIGNA had initially refused to pay for Nataline's transplant. The Sarkisyan family sued CIGNA, but the case was thrown out because of a Supreme Court precedent that shielded employer-paid plans from damages resulting from their decisions.

I wish I could say that Nataline's story was unique. In the course of my 20 years in the industry, however, I handled media inquiries involving many cases in which coverage had been denied by a corporate medical director for one reason or another. I probably will never know how many of those people died as a result of not getting the care they needed, and I will never know if Nataline would have lived if she had gotten the liver transplant when her doctors wanted to do it. I will also never know if she might have gotten the transplant if she had lived in Canada or England or France, countries that do not permit doctors at for-profit corporations to make such decisions.

What I do know is that medical directors at insurance companies are corporate executives, just as I was. When you work for an investor-owned insurer, you're aware that you must do your part to assure that the firm meets Wall Street's relentless profit expectations. Medical directors don't get memos from the CEO saying they have to deny a certain number of transplants every month, but they do get the message that if they don't help the company keep medical spending down, they can forget about getting a raise or bonus or stock options at year's end.

Last year, when Democrats were in charge of Congress, the House Energy and Commerce Committee conducted an investigation into denials of coverage in the private insurance market, although the investigation was limited to denials for pre-existing conditions. The committee found that over a three-year period, the four big insurance companies it investigated had denied coverage to more than 600,000 people who had been treated in the past for a broad range of medical conditions and that the number of coverage denials had increased significantly each year. The lawmakers found that one of the companies maintains a list of 425 medical diagnoses that it uses to refuse health insurance coverage permanently to many applicants.

The results of that investigation led lawmakers to include in the health care law a provision barring insurers from using pre-existing conditions to deny coverage.

If the lawmakers who are now leading that committee were truly interested in looking out for the best interests of their constituents, they would drop their politically motivated probe into the end-of-life counseling provision and launch a new investigation of the death panels inside private insurance companies.

One of the people they might want to call to testify is the former chief medical officer at Aetna, Arthur "Abbie" Liebowitz. In an interview for a report written last year for the Center for American Progress, Liebowitz explained the pressure that is exerted on corporate medical directors -- medical directors who now report to regional business managers, rather than chief medical officers, as was previously the norm.

"The concept was that business leaders had P and L (profit and loss) responsibility for the region," Liebowitz was quoted as saying. "The business guys said if I have responsibility for profits and losses I have to control for the things that account for my costs. The biggest things affecting cost was medical cost delivery."

Liebowitz said he fought the change in reporting relationships "until the very end." He left Aetna in 2001.

"I didn't think that people should be making medical decisions based on business needs."

Neither do I. I saw the life and death consequences of that on a regular basis. If the House Energy and Commerce Committee doesn't think this is important enough to look into, maybe the Senate will.

(This also was published by the Center for Public Integrity at publicintegrity.org.)

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