Losing control of health decisions

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By Jeff Emanuel

Who should have the ability to make medical decisions when it comes to your care -- your family doctor or a bureaucrat responsible for nothing more than looking out for the government's financial bottom line? Three states recently weighed in on that question, filing a federal suit to have final medical decision-making authority transferred from doctors to state bureaucrats.

In March, Georgia, Florida and Alabama joined in an appeal of a 2008 U.S. District Court ruling that a patient's physician was better positioned -- and better qualified -- to make decisions about that patient's medical treatment than state bureaucrats.

The case centered on Callie Moore, a disabled teenage girl living in Georgia. A stroke Callie had suffered in utero had left her suffering from multiple conditions, including cerebral palsy and mental retardation. For the past decade, she has received round-the-clock in-home nursing care. Ninety-four hours of this care each week were paid for by Medicaid, the joint federal-state health coverage program for low-income persons and families, and the rest was funded by Callie's family.

In 2007, citing a disagreement with Callie's attending physician over just how much care she needed, the state of Georgia cut the portion of Callie's care it was willing to pay for by 15 percent, to 84 hours a week, over the objections of her doctor.

Callie's mother filed suit, arguing that the state had no right to contradict the orders of Callie's personal physician and limit her treatment. State officials argued that Callie's care was subject to rationing, as the bureaucrats' need to ensure Medicaid resources were allocated "fairly" superseded her doctor's prescription or her personal medical needs.

On June 4, 2008, U.S. District Judge Thomas W. Thrash Jr. ruled that Callie's doctor, not bureaucrats, had the right to prescribe just what medical treatment and care his patient required, and ordered the state to resume funding for 94 weekly hours of care.

Dr. Rhonda M. Medows, commissioner of Georgia's Department of Community Health, immediately appealed the ruling to the Atlanta-based U.S. 11th Circuit Court of Appeals. Florida and Alabama, which fall under the 11th's jurisdiction, filed an amicus brief with the court.

This case, Moore v. Medows, thrust into the spotlight debate about an issue long confined to dark, smoky rooms in state capitals and the District and to the fine print of legislation members of Congress aren't bothering -- or being allowed -- to read before passage.

From state governments to the federal legislators and bureaucrats who had a hand in writing and passing President Obama's 2009 "stimulus" bill, more officials are beginning to make the public argument that it is not a trained doctor with years of experience and personal knowledge of a patient's medical history and needs who should have final say on patient diagnoses and prescriptions, but cubicle-dwelling bureaucrats guided by agency-developed cost-effectiveness spreadsheets -- products of "comparative effectiveness research" -- that guide them in determining what is and is not medically appropriate or necessary for patients seen within their jurisdiction.

The thrust of the states' argument in Moore was summed up in a brief written by the attorneys representing Florida. "Treating physicians," they wrote, "cannot be trusted with" the decision of what medical treatment their patients need. "When left to their own devices, they advocate for their patients" -- something state governments resent because of the interference in their cost-effectiveness analyses -- "and deem all manner of unproven, dangerous, ineffective, cosmetic, unnecessary, bizarre and controversial treatments as 'medically necessary.' "

While bureaucrats "will consider doctors' determinations," said attorney Robert Highsmith in oral arguments on March 24, the "final arbiter" of medical decisions is and should be "the state." The 11th Circuit panel agreed.

As a result of this ruling, doctors within the 11th Circuit's jurisdiction will no longer be left to their own devices to treat Medicaid patients under their care. However, current events suggest that the relegation of medical professionals' recommendations to the status of mere suggestions pending review by state bureaucrats isn't likely to be limited to Medicaid cases alone for long.

From the "stimulus" package passed (though not read) by Congress in February to Senate Democrats' dueling health care "reform" bills, comparative-effectiveness research is being pushed through Congress by proponents who herald it as a bromide for America's health care problems. However, as evidenced by the case of Callie Moore, government is not only all too willing to rely on the decisions of bureaucrats over the recommendations of qualified experts as often as possible, but is all too willing to use the court system to fight for the ability to do so.

If government is permitted to continue expanding its control over health care, what simply appears to be an issue of who pays for a few extra hours of in-home care today will grow quickly into an environment in which bureaucratic rationing of care is commonplace.

The high human cost of so-called comparative-effectiveness research can be seen in Great Britain, where bureaucrats at the National Institute for Health and Clinical Effectiveness (NICE) have become notorious for denying doctor-prescribed treatments based on their impersonal spreadsheets -- and where patients who opt to pay out-of-pocket to go above and beyond the treatments covered by the National Health Service forfeit, permanently and by law, the state-managed health care benefits their taxes pay for and other Britons continue receiving.

The answer to this looming problem is to get government as far away from our health care and medical decisions as possible before we fulfill the wishes of former Sen. Tom Daschle, adviser to President Obama, and follow the path Great Britain has taken.

Instead of expanding bureaucratic control over health care, we the people need to make decisions on our own, with our physicians. When government is given free rein to overrule medical professionals, we and our doctors no longer have our rightful, meaningful role in determining our own medical fates -- something that simply cannot be permitted.

Jeff Emanuel, a special operations military veteran, is a columnist, combat journalist and contributor to the conservative Web log RedState.com. He also is a health care policy fellow for the Heartland Institute.