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DEGOVERNMENTALIZATION OF AMERICAN MEDICINE:
The Problem


by
Dr. Jane Orient
Executive Director,
Association of American Physicians & Surgeons
presented to the Board of Trustees of
The Conservative Caucus Foundation
at its Annual Meeting in Washington, D.C.
on January 13, 1997

HOWARD PHILLIPS: Let me say one of my favorite people in the whole world, even though I barely know her, is a woman who has been the "Joan of Arc" of America in terms of saving our lives and fighting the governmentalization of American medicine.

This is a crisis issue that affects every single person — from the moment of conception until death — the question of life, the question of whether our medical care will be accountable to us, will be the product of a doctor-patient relationship or whether the government, in a manner unrelated to the checks and balances of the marketplace, will determine who shall be served, by whom they shall be served, when they'll be served, where they'll be served, at what cost they'll be served, and whether they'll be served at all.

And, when the supply of medical care is controlled by politicians and bureaucrats, and the demand for that care exceeds the supply, then individual human beings created in God's image become price factors in the eyes of medical gatekeepers — they're not even medical, they're bureaucratic gatekeepers — who determine medical decisions not on the basis of medical needs, but on the basis of bureaucratic priorities.

Dr. Jane Orient is going to talk to us today about how we can degovernmentalize American medicine. Dr. Orient, thank you so much for being here.

GOVERNMENT CONTROL OF MEDICINE:  LICENSURE, SUBSIDY, REGULATION, CONTROL OF INFORMATION

DR. JANE ORIENT: I would like to begin with the assumption that I think everyone in this room would share: that it would be good to get the government out of medicine. I will have to speak about that a little bit, though, because there are very few audiences in which that would be a safe assumption, particularly when they find out all of the ways in which government is involved.

Let me count the ways (this is probably not an exhaustive list). First, there is medical licensure, not only of practitioners, but of drugs, medical devices, maybe even medical procedures.

 Two, there's funding of a huge portion of the medical economy both directly through Medicare and Medicaid and indirectly through the tax code.

 Three, there's medical research; four, medical education; five, criminal law; six, medical records. And, I'm not, again, sure that that's exhaustive.

 PLUNDER BY FORCE IS IMMORAL — EVEN BY MAJORITY VOTE

 First, the assumption of whether we should get the government out of medical care. I think on this

we need to seize the moral high ground. People often say we should support capitalism because it works, and people have more money, and there's more jobs, and more affluence, and so on and on. They sometimes impale themselves on their own swords because the others subtly respond that capitalism is immoral.

 What we should say first — and first we should seek the kingdom and other things will be given to us beside — we should say that free enterprise should be favored because it is the only moral way to do it, because the alternative is something rightfully called "legal plunder". So we should favor getting the government out of medicine because governmental involvement is wrong, pure and simple, it's wrong, it's immoral — even if it helped us, then we should do away with it.

 But, secondly, just like sin does seem to have consequences (like the wages of sin is death, and so on), we can point to the evil consequences of governmental involvement and how all of the good intentions really have been stood on their head when the interventions are put into practice. Let us never forget that governmental involvement is the use of force, and the use of plunder to redistribute the wealth if we are taking from one person to give to another. And I like to use this argument when people say, "But what would you do about the poor, doctor? There are people who can't afford medical care. Will you let them go without?"

 And I try to answer it this way, by saying "Look, patients do come to me, and they maybe can't afford my services, and, you know what? I am able to help them without robbing a waitress, or a ditchdigger, to help pay my fee." I haven't heard anyone try to refute that argument yet.

 There is also the conceptual basis for this — you know "medical care is a right" is accepted by politicians across the spectrum, and they actually turn white and sweat if you start to suggest that that's wrong. They know that it's wrong, but they don't dare (for political reasons) say so.

 "IMPERFECT RIGHTS", "NATURAL RIGHTS", AND "POSITIVE RIGHTS"

 There is a concept by our Founding Fathers of the "imperfect right", and that is if a person has a moral claim upon you because of their need, you may have the moral obligation to help them, but they do not have the right to resort to force of arms to make you do it if you choose not to. That's an "imperfect right". A perfect, natural right is one that you have the right to defend by force — like, if someone threatens your life, yes, you have the right to use deadly force, if necessary, to contradict him. You have the right to use force to defend your property. You do not have the right to use force to make a doctor take care of you if he doesn't want to, however evil and mercenary he may be by refusing you his care.

 We have the concept of "natural rights" or "God-given rights" — the right not to be denied the deprived of life, liberty, or property without due process of law. As opposed to things like the right to medical care which are "positive rights" or artificial rights conferred not by our Creator, but by our government, and which always involve taking from one in order to give to another.

 Actually, all of these positive rights such as the right to medical care amount, pure and simple, to a license to steal — using the government to do something that would be illegal if you did it yourself.

GOVERNMENT CONTROL HAS AS ITS COROLLARY A LICENSE TO KILL

 And, as I will try to show, not only does this have the bad consequence of raising costs, seemingly without end, but it also leads inevitably to giving people a license to kill. I think it is not coincidental that this issue of physician-assisted suicide (which actually could be called "physician murder" — if somebody assisted a suicide, that's what you would call it, you would call it homicide). There is a great deal of pressure to do this partly because of the license to steal (and people are seeing that this is just driving us into bankruptcy and they no longer want to undergo confiscatory taxation to pay for all the medical care that could be provided).

 Well, one of the ways in which government is involved — and can we really call for the repeal of such ways because all of them, of course, are theoretically well-intentioned.

 LICENSURE PROTECTS "PRIVATE" MONOPOLY

 First is the issue of licensure, and this tends to become very controversial and cause all kinds of concern, because we say we have licensure in order to protect the public. And, of course, this is the reason for every regulation you want to name — it's "to protect the public". But, clearly, we didn't always have licensure — many state licensure laws were actually repealed and then reinstated. And who was putting the pressure on it? Not the public, saying we don't want to go to those quacks. No. You know who it was. Of course, it was the AMA, who wanted a monopoly. Like all forms of occupational licensure, it enables the privileged profession (and I believe Herb Titus really has called this the "title of nobility", which is unconstitutional) to be able to corner the marketplace. What licensure does, in my opinion in effect, is to protect bad doctors and to protect quacks. We have lots of bad doctors practicing who do have a license, and we also have unlimited numbers of charlatans who don't have a license, but somehow manage to practice anyway, and why they never get sued for malpractice whereas doctors do, I don't quite understand, but that seems to be the case.

 It also is a way of keeping out of the country some particularly talented physicians — there are some people even who were on the inside of AMA who will say there's a medical mafia that prevents British-trained specialists from obtaining an American license to practice because the examination is partly an oral examination that is subjectively graded and they see to it that some of the most world-renowned physicians trained in Britain can't practice in the United States and provide a competition of someone from Uga-Uga or some other place you have never heard of, but someone trained in Britain might not.

 LICENSURE ENFORCES GOVERNMENT POLICY AUTHORITY

 Licensure has increasingly become a club to force doctors into behavior that they would otherwise resist. Maybe Massachusetts was the first example that tied the medical license to the willingness to take government money in the form of signing a contract with Medicare to accept assignment of all Medicare patients under pain of losing their right to practice medicine at all in the state. Pennsylvania also attaches the licensure to the willingness to take government money. In several states the physician must buy a certain type of insurance in order to have a license, and doctors have actually been threatened with de-licensure if they don't kowtow.

 One family practitioner in Wisconsin actually sued them pro se and lost on Constitutional grounds. It's just very unaffordable for a doctor like him to buy this excess malpractice insurance, and what it does really is to protect the bad doctors by making everybody in the state pay for the cost of insurance that really would only be needed by those who are not practicing very good medicine. It protects bad doctors and, I might say, good lawyers, by assuring them a source of income.

YOU CAN'T SAVE LIVES UNLESS YOU CAN KILL BABIES

 And, even more threatening is that the license can be used as a club to enforce doctors to follow the "standard of care". The "standard of care" used to be whatever somebody would testify in court was the right way to do it, but, as the government has increasingly invested in practice guidelines which defines what is necessary, what is unnecessary, and what you may do and what you may not do — it could even come down to moral issues. One example of that is in accreditation there was a rule that a program in obstetrics and gynecology that did not provide training in abortion could not certify its graduates as being board-certified or they would not be eligible to take the boards. Now the physician was not obligated to actually do any abortions, but the training program was obligated to make sure that he had the opportunity to learn how to do it.

 FEDERALIZATION OF MEDICAL STANDARDS

 Licensure used to be primarily a state matter, and it still is, except that there are more and more trends to making a national system of licensure. In effect, if a doctor now loses his license in one state, there is a domino effect and he may not be able to practice anywhere in the United States of America. It is quite rare for a doctor to lose his license for outright incompetence or moral turpitude, but it is becoming more and more common for him to lose his license because he did an allergy test in a way that was different. In the state of Arizona there is actually a law that any physician who does chelation therapy is de-licensed. Now, whether this works or not, I don't know, but it's less likely to kill you than a coronary artery bypass. Anyway, you're not allowed to try it because you'll lose your license. And, there are doctors who are losing their license because they take pity on patients with chronic pain and prescribe adequate doses of narcotics so as to reduce the patient's desire to end his life, and they have been de-licensed, too, particularly in Washington, D.C.

 And then there is the issue of licensing the tools with which physicians provide relief to their patients — drugs, of course — pharmaceuticals. When the Food and Drug Administration first came into effect it was, of course, to protect the consumers against unsafe drugs. Well, does it do so? We'll say, no it doesn't. One of the first things we learned in medical school is that every drug is a new disease, and they are all, without exception, dangerous — even aspirin. My father lost half of his blood volume in a couple of hours because he was taking one aspirin a day because it was supposed to be good for preventing blood clots. Aspirin is a wonderful drug, I have nothing against it, but it is dangerous.

 Thalidomide was a dangerous drug — it caused birth defects — and this was discovered because women took it. It wasn't discovered in the initial testing in Europe, but was discovered only when it was in fairly wide use. And it seems to me that if you have a deformed baby because the drug is being tested on humans, or you have a deformed baby because it is being marketed to humans, it is the same deformed baby and it's the same problem. The only reason Americans were protected against this was because the FDA obstructs everything, and, therefore, they obstructed that — not because they had any particular foreknowledge that this would turn out to be a bad drug. They also prevent many drugs from going on the market for a period of decades during which patients will die,. or be ineffectively treated because of the unavailability. They also prevent safer or cheaper drugs from ever making it to the marketplace, or of even having the prospect of being marketed.

FDA SLOWS MEDICAL PROGRESS

 Just yesterday I was meeting with some physicians from Kiev, who were actually here from Ukraine, to get some advice from us on free market medicine (I think maybe they are coming to the wrong place because we certainly don't provide a very good example for them in the United States). But, on the way back from church, the scientist who was accompanying them said, well, he had been working on this anti-cholera drug (which is a special form of activated charcoal), and he had done a certain series of experiments and found that the patients got better faster at about one-tenth the cost. And he presented his data in the United States, and, at first, a company was very interested in pursuing this — were willing to give $5 million, and then it occurred to them that they could never hope to get FDA approval for it, or even if they could it would cost them $500 million, and, for a drug that only costs $6 for a whole course of treatment compared with $60, at least, for the newest quinoline drug — it just wasn't worth it! So, here is a potentially very effective, very useful drug, that will probably never see the light of day in the United States.

 And I understand that there's even a Polish doctor who is going to be tried in criminal court because he had the audacity to cure some cancer patients without the blessing of the FDA — at least some patients who had cancer that was supposed to be untreatable, who came to see him, got better. Their doctors agree that they got better. They are not willing to credit any of Dr. Brazinski's drugs for treatment. However the patients did get better, and he is in criminal court, and the judge will refuse to allow patients to testify in his behalf.

Well it might prejudice the jury if he allowed happy campers to testify because, after all, what's at stake is the authority of the FDA is to proscribe certain forms of treatment. We don't want the jury to be unduly sympathetic to the other side.

The medical device industry is now coming under increasing regulation by the FDA, driving most of research offshore. There are some very simple devices which are known to save lives — this thing that's kind of like a toilet plunger that can be used to resuscitate somebody instead of pumping up and down on their chest. Standard equipment on Dutch ambulances, the FDA even withdrew it from clinical trials. And so, if you find somebody down with a heart attack, be sure not to use the most effective method of resuscitating him because it might actually be a crime.

There is increased corruption in the FDA. For example, some of these new high technology lasers used in ophthalmology, it's thought that the manufacturer of the more expensive kind actually has bought off the FDA so physicians are having quite a losing struggle to bring to their patients the up to date technology that's available overseas. I told them instead of buying $250,000 for a lawyer, why don't you buy a boat (but I don't know whether they will follow that advice).

Well, we get to the second issue. That's just the first issue of licensing and of the Federal government regulating the practice of medicine.

MEDICARE DRAMATICALLY INCREASED THE COST OF CARE

The second one is the funding, and this one is probably the most sticky from the political standpoint, the third row of American politics, and that is Medicare. This started out to be just a modest proposal to help the elderly who could not afford to help themselves, it was never supposed to cost very much, and some people say now: whoever could have predicted that it would careen out of control?

Well, I have some testimony from our Association before Congress at the time Medicare was passed predicting exactly what happened, and it's predictable from the ironclad laws of economics — no one could have expected any differently. In many hospitals, the price of treatment for the poor tripled overnight because Medicare went into effect.

LBJ KILLED PRIVATE COMPETITION

Medicare has been a way of grinding down the faces of the poor by increasing the cost to everybody including the elderly, making all the elderly dependent on the government as the only source of primary medical insurance in all but a very few special cases. President Johnson jawboned the insurance companies into cancelling policies for their citizens over 65 overnight. It was written into the policy you can't cancel an individual, but Johnson said, well, you can cancel all of them at once. So that's what has happened.

MORE RATIONING MEANS FEWER DOCTORS AND LESS CARE

What is happening now under Medicare is they are simply causing more and more rationing, more and more cutbacks in physicians' fees, more and more Byzantine regulations that physicians must follow as a condition of getting paid for their services.

PER-PATIENT COSTS INCREASE BY A FACTOR OF 14

Besides Medicare and Medicaid — what about Medicaid? That's been a disaster, too. The number of patients on Medicaid has quadrupled, and since we got these wonderful programs into effect, the costs spent per patient are fourteen times higher than they were in 1967. Who does that hurt more than anybody else? The poor, and I think we should point to the disastrous effects on the poor and the disadvantaged every chance we get and not allow the socialists to take over that issue.

TAX CODE PUNISHES PRIVATE CARE

Then there are the indirect costs through the tax code. The Federal government actually punishes with 40%-, 50%-rate of taxation, anyone who pays for his own medical care at the time of service, which is the way that almost everybody used to do it. If your employer buys an insurance policy for you, anything that is paid through that insurance policy is paid with pre-tax dollars. If you buy a policy for yourself — if you're self-employed you can only deduct 25% of the cost, if you are employed by an employer who does not buy it for you, you have to pay all of it with after-tax dollars. And, if you have a high-deductible policy, because that's the only sensible kind to buy — it's the only kind anyone can really afford — then, any of your deductible has to be paid with after-tax dollars.

MANAGED CARE IS RATIONED CARE

This is exceedingly unfair. It is a way of directing dollars into the pockets of the rich insurance companies, taking it out of the pockets of the waitresses and the ditchdiggers, and increasing the cost of medical care to everybody. This was the whole impetus of medical savings accounts, which passed in a very crippled form in the Kassebaum-Kennedy bill, because, when you pay with other people's money costs just automatically go up — that's just a law of human nature. Not surprisingly, employers, who have become the main payers for medical care, as opposed to the people who actually receive the medical care, have tried to protect themselves against rising costs through "managed" care, or managed costs through rationed care (we try to get our words right).

And we're getting a lot of press for the outrages of managed care which is an automatic conflict of interest situation between patients and doctors. But most of the reports somehow can't figure out that the answer is not to clamp evermore Federal regulations on managed care — saying you can't do this, you can't do that, you have to do this, you have to do that — but to attack the flaw at the heart of the idea, which is that somebody else should be handling the money that goes to pay for medical care.

"HEALTHCARE" BUREAUCRATS PROFIT AT YOUR EXPENSE

The government has put all kinds of advantages on managed care with the HMO Act of 1973, for example, forced employers of certain types to offer an HMO whether they wanted to or not. There are certain regulatory and tax advantages. There are also things like direct government programs. I think that AHCCCS, which is the Arizona so-called free market answer to Medicaid, it's the Arizona Health Care Cost Containment System, pronounced "Access", which has all the cost containment that $650 million can buy, which is the amount that our expenses went up when this wonderful program went into effect.

It now costs $4,000 for every man, woman, and child enrolled into the program — for a family of four, that's $16,000 — you can buy a lot of medical care or medical insurance for $16,000 — but, it was an automatic cash cow to these managed care organizations so they could gear up their marketing plans and had a tremendous advantage over private doctors. I think it's one of the reasons why Arizona has one of the heaviest penetrations of managed care of any place in the country.

GOVERNMENT FUNDED MEDICAL RESEARCH MUST BE "POLITICALLY CORRECT"

Well, what are all of the rest of the states doing? Saying, let's have mandatory managed care for the poor. Let's sell the poor people to the lowest bidder just like they did in Arizona. We'll ration them out to the different providers by zip code, and we'll save money, and on and on.

Then there's the issue of medical research. Almost all medical research, by some means or other, is under the thumb of the Federal government. Even the research by the private pharmaceutical companies has to look at the specter of recovering costs because of the FDA. But, most Federal funding is now — like the NIH for research — dependent upon a politically motivated review process. And even at institutions that have a generous private endowment, the fact that they do get some Federal money means that there's a damper placed on freedom of expression in the whole department. If somebody in your department is doing research that says that global warming, for example, is a hoax, then his colleagues may put pressure on him to shut up because the Federal government could shut off the funding to the entire department.

It also means that the whole motivation of research is now to work at the problem rather than to solve the problem; it's to get a grant for the next year. To get a grant you have to work at the politically correct problems by the politically correct method. Back in the days when we had individual scientists deciding what they wanted to do — like Jonas Salk, his goal was to wipe out polio — and guess what he did? Well, the March of Dimes has been smarter since then; they now go for birth defects, which they know will never be wiped out, so they can continue to rely on this source of funding.

 And look at AIDS research. Eight billion dollars, or however many billion dollars, in an area for which there is very, very little to show. If it ever turns out that the Federal government is chasing the wrong hypothesis for the cause of HIV, or of AIDS, which actually became the accepted fact as a result of a press conference rather than as a result of any scientific proof, then we may see the whole establishment being brought down. I'm not here to tell you that I know what the cause of AIDS is — I don't — but I can just say that the establishment is completely capable of making a mistake that serious.

 The self-correcting mechanism of scientists completely derailed when a scientist who speaks up against the going ideology can find that his funding is cut, or ended forever.

 MEDICAL EDUCATION BASED ON POLITICAL STANDARDS — NOT ASSURANCE OF COMPETENCY

 Medical education — I can just say that that protects the incompetent medical student. It now is practically a federal case to flunk anybody out of medical school. It used to be if somebody knew enough anatomy to pass you asked the anatomy professor. Now the faculty meets all night long trying to decide if they have got enough documentation to say this person does not deserve to pass.

DUMBING DOWN INEVITABLY AFFECTS PATIENT CARE

 The "dumbing down" of the medical profession is obvious if you do any reviews for medical publishers about the new textbooks that are coming out. They have become just so superficial, so watered down. They aren't even directed at physicians any more, but at health care providers, and you might as well give them to the patients except the sophisticated patients will say, "look, I'd like to know a little more than this."

CONGRESSIONAL REPUBLICANS PLACE PRIVATE M.D.s AT CRIMINAL RISK

Then we come to the issue of criminal law, and this might be a little bit touchy in conservative circles because the criminalization of American medicine is just as much the responsibility of so-called conservatives — or at least of Republicans — as of Democrats. The bill that passed in the last Congress — the Kassebaum-Kennedy bill, which was supposed to be a modest little insurance reform — makes every billing dispute over an insurance claim, public or private, into a Federal crime.

DID CONGRESS READ IT BEFORE THEY PASSED IT?

Of course, they lump waste, fraud, and abuse all into the same thing, and, of course, Congressmen couldn't vote against anything that targets fraud, and, of course, we wouldn't be in favor of fraud, but, look at the details of the plan which were imported word-for-word from the Clinton plan. I know because I read them both — it's one of my few claims to fame — and when I actually read the Clinton plan on the stage, back when that was being debated, nobody in the audience would defend these provisions — no one, no Republican, no Democrat — all they did was call me a liar (fortunately I had the bill with me), I just said read it for yourself.

Actually it appeared on television, these provisions that have really Draconian penalties for making a mistake in coding or for doing something so outrageous as to provide a "medically unnecessary service" — and what's that? I don't know. I don't think anybody knows. It's an undefined term that is undefinable.

I know there is an ophthalmologist in California who was sentenced to 11.25 years in Federal prison, where he is now, for doing too many cataract operations. His patients said they saw better after the surgery, but, of course, you don't need to see better in order to live. The judge would not allow the patients to testify. He is in prison and he's just one example. I think all the other doctors will be very hesitant to provide certain services because of this possibility.

YOUR MEDICAL RECORDS ARE NOW IN THE PUBLIC DOMAIN

Then there's the issue of medical records which have now become a tool for Federal prosecutors, again under the Kassebaum-Kennedy act. It is a Federal crime, punishable by five years in prison, to refuse to turn over records to a law enforcement agency. You know, it's a Federal crime for anybody to make a false statement to an insurance company. You, too, may be guilty, and your records may have the evidence that's needed against you. I don't think they will do that to very many people, but it's a very effective technique to make examples out of people and to really get everyone to control other people's behavior.

In addition, the so-called administrative simplification provisions of this bill set up a Federal infrastructure for collecting data about everybody every time they go to a doctor. There is no possible medical use for this kind of information. The sinister uses are the only ones that make any sense to me of anything other than a bureaucratic boondoggle. Of course, it's being sold to people, they say — well, if you ever go to the emergency room we'll have your records on line. And I can tell you that if you ever go to the emergency room and you can't give a history, your old medical history are the last thing that are going to be on the doctor's mind.

Well, what can we do to change all of this? As I am sure you are all well aware, once a Federal program is in effect, it becomes very, very difficult to get rid of it because of all of the vested interests, all of the people who are getting money from it.

INCREMENTALISM ONLY WORKS AFTER YOUR CORE PRINCIPLE IS ACCEPTED

We know that incremental changes do work on the other side. Ma Perkins knew that we couldn't get socialized medicine through back in the time when Medicare passed, but, we could get medical care for the elderly through. Now the strategy is, well, let's get kid care through. That's the back-up plan from the documents of the health care task force — and who could vote against medical care for the kiddies, and on and on?

And so, the question comes up, well couldn't we do it in reverse — couldn't we have incremental freedom? I think that's a strategy worth considering, except that, as you know, a salami slicer only works one way. It's a little bit hard to put the salami back together after you've taken off all the various pieces.

HOWARD PHILLIPS: Let me use the prerogatives of the chair to reinforce your observation. My sincere belief is that one of the greatest mistakes made by conservatives is to assume that incrementalism works for our side. Water runs downhill by itself, but it doesn't run uphill as easily. The reason incrementalism works for the Left is because they have established the predicate for their action. Their principle has been accepted. And, therefore, once the principle has been conceded by the Republicans or whoever, they can take their time in having the principle implemented by degree, but, as long as we are still operating on their principle that the government is in control of medical care, for example, we can't undo it, bit-by-bit. We have to overturn the principle in order to succeed, and only once the principle is overturned can we then get somewhere.

There is much evidence that can be provided. Recently, I argued in Congress that the Legal Services program should be completely defunded and zeroed out. The Republicans said, no, we think it's a rotten program, but we're going to deal with it incrementally. We'll cut it by so much this year, so much the next year, and we'll put restrictions on it. Well, they first year they cut it by so much, the next year they put the money back, and now, the restrictions they sought to impose have been overturned in the courts.

Basically, whether you're speaking about the National Endowment for the Arts, or the Legal Services Corporation, or Planned Parenthood, the courts have ruled that of course it's Constitutional for Congress to zero out the money, but it's not Constitutional (by some perverse logic) for them to determine the manner in which the money will be expended. In other words, you can't say that money to Planned Parenthood will be restricted. You can't say that Federally funded Legal Services lawyers may not take "x, y, or z" case. You can't say that the National Endowment for the Arts is prohibited from funding this or that piece of cultural garbage.

So I thoroughly endorse your observation, on which I hope you will elaborate, that if we are going to undo the damage that has been done, we must, in one felled swoop, at least overcome the principle to which we have succumbed over time.

DR. JANE ORIENT: Well, I agree with you completely. This does make it rather difficult for us though. Once we have established the concept of legal plunder, where some citizens have a right to the earnings of other citizens, and it's become so entrenched in society that everybody has a vested interest in it, now, if you try to cut it incrementally, someone will say, but that's my Medicare and I paid for it. And it can so easily be portrayed by the other side as saying, you're cutting my Medicare, my benefits if your benefits are something else, in order to give a tax cut to the rich.

PREPARING FOR VICTORY

HOWARD PHILLIPS: Let me jump in again. It goes back to what Machiavelli said: if you're going after the king, don't simply cut off his arm, cut off his head. Because, if you only cut off his arm, he can fight you back with the other arm and the legs. If you are going to eliminate a Federal program, you have to do it all at once, because as long as those bureaucrats are being funded — (bear in mind the War on Poverty is merely a war to subsidize middle class and upper class bureaucrats to advance their social theories) — if you cut it off all at once, they have to go to work. But, if you cut it off incrementally, they'll spend their time fighting to defeat you.

TO ERADICATE ERROR, IT MUST BE ASSAULTED COMPREHENSIVELY

This, of course, is another argument for doing everything at once. If you simply try to restore one part of the Constitution, all of the others will see you coming and they will gang up on you. But if you attack them all at once; if you stay on the offensive and force them to play defense, and cut off their money and threaten their livelihoods, you have a far better chance of winning. So, if we are to win, we have got to be prepared to do it all at once, in my opinion, and do it quickly — whatever the issue may be.

TO ACHIEVE REQUISITE SUPPORT, THE OBJECTIVE MUST BE WORTH THE EFFORT

DR. JANE ORIENT: Well, the other thing is that, if you cut off a little bit and you give everybody a little bit of a tax cut, the benefit is not really enough to justify it. Because you can say, well, you cut my program that I benefit from, but you only my taxes a little bit and I can't possibly afford this. Whereas if you could say to everybody you can get a big tax cut — well, even if you could say almost no taxes, at least if you are pretty poor, we're going to give you a 50% raise and we're going to make sure that costs go down tremendously because we are going to do away with all these regulations. Then it gets interesting. Then people can say well maybe this would benefit me after all.

If everybody would stop stealing from everybody else instead of just stopping the ones who are stopping me from stealing from you, but not stop you from stealing from me — that doesn't work. And this is also the key, eventually, for peace in society, as Hans Sennholz likes to point out.

Just listen to both sides of the political aisle. They're talking about using force; they're talking about war. Pitting one group of citizens against another: the old against the young, the welfare mothers against the working people, because it's always a matter of plundering from Peter to pay Paul and it kind of goes around in a circle.

WHEN REFORM COMES, IN THE TWINKLING OF AN EYE

We have to stop it all or else it really is unfair, for one thing. It's also not going to ever get any political support. I think that's the ultimate objective, but, now, can we do that immediately? I think eventually we are going to have a big change and it's going to happen all at once, and there's going to be a revolution. I'm not saying that I am advocating it, I'm just saying that I don't think we can stop it.

RADICAL CHANGE COULD GO EITHER WAY

We can affect which way it's going to go and how many casualties there are going to be. Well, we're not in favor of having blood running in the streets, which is what happens inevitably when you have legal plunder in the society, or eventually will happen. And also, we need to stop the possibility that we're going to have a Marxist revolution: if people say this is all so awful, managed care is so awful, then the only answer is single payer, or socialized medicine with no escape hatch — we have to have an Adolph Hitler come in and bring peace by imposing regulations on everybody and getting everything so rigidly regulated that there is no escape. If there is a revolution, as I think there will be, the outcome is by no means pre-determined.

OPTION OF PRIVATE MEDICAL CARE REMAINS AT RISK

In the meantime, there are some things I think we can do to keep the flame alive and to keep our foundations shored up, and, in the case of medicine, to keep private medicine from completely going down the drain. And one is that we need to enforce the initial Medicare law which says that the government is not going to interfere with your medical care, or its not going to force you to use this as the only way of financing medical care, and at least allow those people who want out of the system to get out of it — to not place punitive threats against physicians who decide to treat patients privately without taking the government dole.

Will very many people want to pay their doctors when they can get the government to pay? Probably not, not as long as they can get it otherwise, but that little escape hatch must be kept open. The socialists know how important that is. They need to seal off all the exits, they need to have us all in it together. They'll say, if you let some of the rich people out then all the waiting rooms are going to be like bus stations, whereas if the rich people have to come there too they'll all be better for everybody — which is just pure nonsense, it never works that way. But anyway, it makes a good story.

BEFORE CONTRACTING SOCIALISM, ITS EXPANSION MUST BE STOPPED

We must also prevent any fresh entitlements. The kid care, for example, must be fought tooth and nail, by gridlock, by any means at our disposal. I think that some of these things must be done — I really have to hand it to the people who derailed the careers bill; that was just quite a coup.

WE MUST DEFINE THE TERMS

Congressmen vote for bills without understanding them and I think that there is a semantics problem. The most important thing that we can do to seize back the initiative is to start calling things by their right name.

As George Orwell said in his brilliant essay, Politics and the English Language, this is the most important tool for winning a debate — it is to define the terms. You must always speak clearly. That way, if you make a stupid statement, it will be obvious to everybody (including yourself), and it will keep the enemy from always being able to seize the highground. Like, instead of saying "Medicare", why don't we call it "Socialized Medicine for the Elderly", which is what it is. Do you want to throw all of our senior citizens into a government program — and no way out if the government program doesn't serve them well? We've presented that idea to a couple of congressmen, and they say, "yes, you're right, but if I did that it would be the last act of my political career."

THE ISSUE IS NOT "PRICE" — IT'S LIBERTY

Well, if they won't do it, I think we have to do that. I think maybe we have to start talking about legal plunder. I think we also have to change some of our own terminology. We need to talk more about freedom, more about liberty (you know Patrick Henry didn't say "Give me choice or give me death"). This also makes it a little bit easier to analyze laws by saying: what is their effect on freedom? and to take the moral high ground that says: what is the effect on your pocketbook and my pocketbook, but what does this do to our basic fundamental liberties?

Socialism is plunder; Communism is complete plunder.

QUESTIONER: Bastiat said in that book, when plunder becomes a way of life in a society that society will develop a legal code which justifies and a moral code which glorifies it — and that's what we have.

JANE ORIENT: We shouldn't be mortgaging our grandchildren — that's kind of the ultimate form of taxation without representation.

Always, always we should emphasize the effect on the little guy, on the middle class, that we're depriving them of the fruit of their labor, we're making it impossible for them to get ahead — all for the benefit of this new parasitic class that wants to dictate every detail of our lives.

I think shining the light of truth on them is the most important weapon that we have. I think that, if we do that, we have a chance of winning in the long run.

SHALL M.D.s SAVE SOCIETY — OR THEIR PATIENTS?

I had a pretty disturbing experience recently. I was invited to speak to the Junior AOA (that's the Alpha Omega Alpha, THE honorary, the highest academic distinction — if you get in when you're a junior, you're really something special). We were talking about the Oath of Hippocrates at dinner time, and they were discussing which oath they were going to vote for. So I asked them to elaborate a little bit about that. When you graduate from medical school, it's no longer assumed that you will take the Oath of Hippocrates, but you read over several of them and you pick which one you were going to choose. A couple of them didn't like the Oath of Hippocrates, and so I said, well, what is it that bothers you about it? They couldn't really say exactly what it was ("it just bothers me") except for one who had a real problem with the abortion part.

PULL THE PLUG VS. DO NO HARM

But there are some really important differences between the Oath of Hippocrates and the other oaths that are more popular today, including even the oath that used to be taken by Soviet citizens is more popular with the AMA than Hippocrates is. Some of the main differences are: The Oath of Hippocrates is the only one that says "Do no harm". It's the only one that doesn't mention your duty to society. All of the others say "I'm a member of society and I have obligations to all of my fellow men, the healthy as well as the infirm", with the rather clear implication that, if I have to do harm to somebody to serve society, then maybe I should do so. And some of them come right out and say it, if it falls on me to save a life, all thanks, BUT, if it's my responsibility to end a life, I shall take this responsibility with humility." It doesn't say I won't do it, it says I'll do it humbly.

And some of them even say it is an act of supreme love to take a human life — in black and white. These are fairly recent things by very prominent physicians that are ...

CONFIDENTIALITY CAN BE ILLEGAL

HOWARD PHILLIPS: And also there is the question of confidentiality, is there not?

JANE ORIENT: Oh yes. The Oath of Hippocrates says, "If something comes to my knowledge in my intercourse with men that ought not to be known abroad, I will keep it secret and never reveal it."

HOWARD PHILLIPS: That's now illegal.

JANE ORIENT: What could be plainer than that? Yes, it is illegal — well, actually, you could not write it down. "Confidential" means not written down, in my opinion. But the newer oaths say, "I will have respect for my patients' confidences", but there is always that implication that if the government needs the information, they can have it.

WHY DO "CONSERVATIVE" POLITICIANS CRIMINALIZE DOCTOR-PATIENT RELATIONSHIPS?

JON UTLEY: I have a question generally on this whole thing. Since Republicans came in, this criminalization of so many things — there was an article in the American Enterprise Institute — the criminalization of practically everything. A lot of this has really come in under Republicans, now, most recently, what you're saying about Kennedy-Kassebaum. Is there something in the philosophy of our people to make so many things "criminal", so many people in prison now? It's only recently that it's come in.

JANE ORIENT: There are three big growth industries in the United States: one of them is gambling, one of them is temporary help because it's too threatening to hire an employee, and the third one is prison construction, new prison construction. These things that are crimes are mistakes. One of our members even called it the "KGB Plus" rule.

The KGB said "Show me the man and I will name his crime." But now it is "Show me the man, and I will invent his crime." Because, literally, they make up the rules as they go along. They do not know what the rules are.

One of our members was threatened with a $50,000 fine because he was doing, or documenting, or coding for allergy tests according to the new regulations, as he understood it, as they were written down in black and white. They said, "well, that's not what we meant." He's gone to Baltimore where they keep all these regulations. They don't have any regulations.

Dr. Rutgard, the man who is in prison for 11 years, his lawyers asked the United States to please cite the rule that Dr. Rutgard violated, and they refused to do it. We don't have to say that. There is nothing in the books that says how you have to do a cataract test. He claimed he was doing it under high glare testing because people in southern California, when they drive, this mimics the conditions of the light in their eyes, and, if they can't see under high-glare conditions, then they are handicapped. Well, there's nothing in the book that says you have to do it, but, because he consistently did it that way, that was considered fraud.

One doctor in D.C., a psychiatrist, was actually initially fined under a civil action (not a criminal action, a civil action) — the judge finally decided there should be a bright-line rule that if he billed for more than nine hours in a day, that must be fraud because nobody knows a psychiatrist who could work more than nine hours in a day. They didn't have to prove that he didn't work that number of hours; they just said well, of course he didn't work that many hours; we'll just assume he didn't. The favorite line of the prosecutor to the judge was: "That woman [it was his wife who did the coding for him] lives in a beautiful mansion. Make her sell it and give us the money." Well, that "beautiful mansion" that she lives in was a burned out boarding home that she bought for a song, and with her own hands rebuilt, learning all the aspects of the building trade — with her own sweat she built it so it now is a very nice place, and they want to take it from her and give it to the prosecutors so they can prosecute still more doctors. She said, "You know in Czechoslovakia my people lived through this property seizure under the Communists. I never thought it would happen here."

KASSEBAUM-KENNEDY TREATS DOCTORS AS DRUG DEALERS

That's another provision of the Kassebaum-Kennedy thing. They are applying all of the asset forfeiture laws, designed supposedly for drug dealers, to physicians. And there is even a statement in the Bureau of National Affairs: "Aggressive U.S. Attorneys' offices are snatching bank accounts" — that's their verb, not mine — "snatching bank accounts in case a person is about to commit a Federal health care offense" — how they know that I don't know — "or, if he's about to move the money offshore" — we've got to freeze those assets so they don't get away from us.

HOWARD PHILLIPS: And this has been voted for by Jesse Helms, by Trent Lott ... by Jon Kyl, everybody.

JANE ORIENT: By everybody except ... every last one of them except Pete Stark, and he voted against it because it didn't go far enough. There was also one other Democrat — I don't remember why he voted against it.

ULTIMATELY, MEDICARE CAN'T BE "SAVED"

HOWARD PHILLIPS: If you had a situation in which there was the political will to degovernmentalize medicine, to end Medicare and Medicaid, what steps of transition would you believe to be wise, humane, etc.?

JANE ORIENT: Well, I think we've got a big problem because we've got a number of elderly people, through no fault of their own, dependent upon the Medicare system. But, I think we have to stop talking about saving Medicare because it simply can't be done. That is a lie by both sides. It will come crashing down, and my generation is going to kill it. We just are. They are going to have to be sending people off to be turned into — what do they call it, that green stuff? Soylent green? — because they can't afford to pay for our bills because the younger generation is not going to put up with confiscatory taxation.

HOWARD PHILLIPS: Remember, as Charlton Heston said, "Soylent green is people."

JANE ORIENT: Yes. Of course. We want to save medicine. We want to save medical care for the elderly. We cannot do this by saving Medicare, but I think the first thing to do is to get everybody out of it who is willing and able to leave. We need to get the younger generation (which, of course, is my generation — we're young now) to be given the ability to provide for ourselves and not become dependent upon Medicare. If we did that, then if we had on the system only those who truly needed it, it would sure last a whole lot longer and would not bring the whole structure of private medicine in the United States crashing down with it. But, of course, the first thing they want to do is pretend that it's illegal actually for a patient to pay a doctor outside the Medicare system.

QUESTIONER: Do you have any incremental way of helping to solve the problem? ... troublemaker ... I mean, fundamentally, we are dealing with the issue: what is the role of government? When you've excused some of these lawmakers, these Senators, you say because the bill wasn't properly linked. That's not a good excuse.

JANE ORIENT: I knew they knew it was in there because I wrote to every single one of them.

QUESTIONER: The point is they know, they should know, the people on our side, what the role of government is. And this is the Trent Lott, the Jesse Helms, the rest of them. You know, I've been around these people long enough, so, what they should do is just vote against it automatically like H.R. Gross used to do, or Congressman McDonald.

JAY PARKER: It's like government housing. I think you throw everybody out in the street five minute ago. Then you automatically turn the property over to somebody for a dollar. Jon Utley knows how to manage property. And he's not going to run empty buildings, he'll bring proper people in there who will behave themselves, will pay their rent.

JANE ORIENT: You said "they should have known better" — if you do something wrong, and you should have known better — especially if you are a professional, like a doctor — $10,000 per instance, which can add up really fast. If they should have known better, they get reelected. It's really sort of a contrast ...

JAY PARKER: I was around these people before they were elected, and they used to talk about principle. Somehow they've forgotten principle, standards, and values. And we need to call them to account for this, that's all.

HOWARD PHILLIPS: Well, we haven't done our job of leadership. People are influenced by the company they keep, and they keep the wrong company in Congress. It's a rowdy bunch, and not of the highest character. We need to supervise our employees in public office, we need to be very careful about the people we send there. And I would agree: rotation in office is a solid principle. There are ways of achieving it where we might have some disagreements, but I think we can look at particular people now in Congress who are not nearly so good as they were when they first arrived simply because their constituency is now in Washington rather than in their home state.

PEG LUKSIK: In talking about educating people in the war of words, perhaps. Your stories were excellent, but if I were debating this politically, I wouldn't tell stories of doctors who were victimized. I would tell stories of poor patients, because you take away from them the ability then to say: Well, that's a rich person, then give me your rich house.

Instead, find the senior citizen — when we were debating this in Pennsylvania, I found an old person who was not told there was treatment for the cancer that they had and was instead sent to a hospice, even though treatment was available. And that blew a number of minds on Capitol Hill, because the patient, the one that they are supposed to be protecting, was in fact the one being victimized. That's the kind of story, just in the war of words — I would find those people and let them tell their story and I would re-tell it. That's the story you tell the press.

When they were doing the ABC bill, the child care bill, which is a different issue but one that I was intimately involved in stopping — they told the story about a child who had a teen-age babysitter and the babysitter looked the other way and they put the child in the dryer, and the child was horribly burned. And that was the story that they told, and it surfaced again and again, and no matter what office I was in, I heard the story about this child.

So I started digging, and I came back with this story of a day-care center that had left the child in a van on a very hot summer day, and the three-year-old died! Because they had so many children in warehouse care — nobody meant to do it, they just counted wrong, and the little one went to sleep, and they didn't notice that she wasn't there until several hours later, and by then it was too late. And so, my story beat their story, so to speak.

So, don't tell doctor stories, tell patient stories. Tell about the people who were denied the care they needed because it was cheaper, because the government said. Find those kinds of stories so that your victims are people, that the politicians, then, can tell those stories and survive in the press. This is just a suggestion, perhaps.

JANE ORIENT: A lot of the time, I'm trying to wake up the doctors — but it's also to wake up the public. If they can do this to doctors, they can do this to you. And, along with the doctor story you might bring in the patient story. And for these doctors, there were patients behind them. Patients who were actually brow-beaten by Federal investigators saying, you'd better testify against this doctor, because if she isn't guilty of fraud, you are.

BILL BALL: Two things. Number one, you talked about the problem of semantics, and I think this is extremely important. If we're going to make this case with the public, you have to use the "kiss" principle and keep it simple. I think you have to construct the arguments, too, I agree, you have to take the gloves off. A lot of times we get into these debates, and if it's very complex for the voting public out there not really understand the points that you try to make; that this is not a productive process to allow the government to do. You're going to have to have your numbers and your figures together and be able to document as to what Medicaid and Medicare have cost since its initiative in, what '65, '66? And the benefits for eliminating it, but it's going to have to be very simple statements that have to be thought out carefully so it can be understood by the general public. So often the debates come up on Meet the Press or Brinkley and get lost in a haze of rhetoric.

HOWARD PHILLIPS: One of my hopes, Bill, is that through this project, The First 100 Ways, we'll be able to develop summary presentations on each of these issues including this one which Dr. Orient has so ably presented, and use them as briefing texts for people who are writing editorials, or running for office, or administrators, or politicians, or whatever it may be.

We hope to have an impact on this debate through the Constitutional budget on which Charles Orndorff and our staff have been working, and our premise in the Constitutional budget is that nothing should be in the budget unless there is specific language authorizing it in the Constitution. We've already got it cut down below $500 billion, excluding Social Security which would be privatized, and debt interest, which would be otherwise covered. So we could have a much smaller government if we follow the Constitution.


About Jane M. Orient, M.D., F.A.C.P.

Dr. Jane M. Orient received her B.A. in chemistry and her B.S. in mathematics from the University of Arizona in 1967.

She graduated as a Medical Doctor from the Columbia University College of Physicians and Surgeons in 1974, subsequent to which time she had a straight internal medicine residency at Parkland Memorial Hospital in Dallas, Texas and at the University of Arizona Affiliated Hospitals until 1977.

She was certified with the American Board of Internal Medicine in 1977.

Prior to becoming a physician, she was a high school teacher of physics, chemistry, biology, general science, and mathematics in Spencer, South Dakota.

From 1977 to 1980, she served on the faculty of the University of Arizona College of Medicine, rising from instructor to assistant professor.

Since 1981, Dr. Orient has been in private practice as a solo practitioner. She has also been an Assistant Clinical Lecturer in Internal Medicine at the University of Arizona College of Medicine, Director of Continuing Medical Education at Carondelet St. Joseph's Hospital in Tucson since 1990, Chairman of the Department of Medicine at Carondelet St. Joseph's Hospital, 1992-1993.

Since 1989, Dr. Orient has been Executive Director of the Association of American Physicians and Surgeons, continuing as editor of the AAPS News, in which post she began in 1986.

Since 1993, she has also been Professor of Clinical Medicine at the Oregon Institute of Science and Medicine.

She has published more than 100 articles in scientific journals and lay publications on subjects including medical diagnosis and treatment, environmental risk assessment, medical economics, ethics, and civil defense.


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