
As some of you may know, I have been volunteering my time to represent patients and their families in situations where physicians, hospitals and hospital ethics committees have made unilateral decisions to withdraw life-sustaining treatments based on subjective opinions about “quality of life”. This is called “futile care theory” and it is protected and enabled by a Texas statute allowing providers what is called “safe harbor” (protection from liability) if they follow the procedure set out in the statute before withdrawing treatment.
As part of my volunteer work, I have participated in a group that is reviewing the law with the goal of making recommendations to the legislature. This is the same group that wrote and got the present law passed.
During the first meeting, after my group’s position against futile care theory became apparent, one of the hospital people came running up expressing the hope that we would support the single-payor system since we didn’t want treatment withdrawn from people based on economics. I bit my tongue and quickly walked away making an excuse.
At the last meeting, I pointed out that I thought that providers should be constrained from making such unilateral decisions, in part, because of the inherent structural aspects of the health care system that severely limit the patients ability to choose treatments, facilities and those who would give them the treatments—such as licensing laws, Medicare/Medicaid regulations and insurance contractual provisions.
I said that I think that medical care is a commodity—but that the system prevents it from being treated like other commodities. For instance, if Walmart doesn’t believe that it is ethical to sell adult entertainment and refuses to sell such material to you—you can go to a store that sells such products and buy them.
But, if some doctor decides that you are in a Persistent Vegetative State and that, in his view, it’s unethical to continue to feed and hydrate you or provide you with air through a respirator—where else can you get such products? You will be limited from finding other placement by funding issues—and perhaps licensure issues if other doctor’s don’t want to be seen as giving treatment somebody else has decided is inappropriate. It’s pretty much like the Blue Wall of Silence. Sort of the White Coat Wall of “We’re Doctors and We Know Better than You” Intransigence.
After I argued this, a lady ran up to me and informed me that “they” don’t consider healthcare a commodity. They consider it a “right”—and didn’t I agree?
Because she was a gentle and caring sort—I had to bite my tongue to keep from saying: “What kind of “right” is health care when your doctors and hospital adminstrators have to power tell somebody that they can’t have the health care they want and that they should just die already?”
Besides, I’ve never seen that particular right in the Constitution.
So here I am , in a conundrum. I want to stop hospitals from removing respirators and hydration and nutrition against the will of patients and their families, while saying that patients don’t have a constitutional right to health care.
I resolve it by going back to what I pointed out before. Consumers of health care are prevented from accessing health care to the extent they can other products and services, in part, because of legal and regulatory structures that don’t exist in other markets.
Those of us who decry the present materialistic and utilitarian state of medical ethics can fight like hell, but in the end I believe that the economics behind the present system will ultimately defeat us. Those of us fighting futile care theory need examine to what extent the present system for funding healthcare is degrading its ethics.
Our health care system—even without Hillarycare—is essentially socialistic. Remember what P.J. O’Rourke said about socialisam. He said it provides “the rations of slavery— hay and a barn for human cattle.”
Somehow, doctors and hospitals decided that, for that one very final event, they have the sole right to sort the cows.
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