About a century-and-a-half ago, the right not to work was established in the 13th Amendment to the U.S. Constitution. An employer could not force a person to work for him, even if he desperately needed to have his cotton picked and had paid a lot for that person at a slave auction.
Today, most would agree that people have a right to turn down a job or to work for some employers but not for others.
I do not want to work for the Department of Health and Human Services -- not for HHS Secretary Kathleen Sebelius or for her successor. I don't want to work for Medicare, Medicaid, United Healthcare, other third-party payers, accountable care organizations or other Obamacare creations.
I want to choose my employer. I think it is generally a bad idea to choose an employer who is bankrupt, as the U.S. government surely is. I don't intend to sign a managed care contract in which I promise to keep working even if the billion-dollar company goes bankrupt and stops paying me. Those contracts have an Enrollee Hold Harmless Clause that forbids billing patients when the plan doesn't pay.
I don't want to help enrich the American Medical Association. Although I have not visited either place, I hear that the association headquarters is even more opulent than Goldman Sachs. The association lives high on the profits from the procedural codes (CPT codes) required by Medicare and most third parties. Doctors have to buy the codes or pay for endless counterproductive busywork to justify the procedures they perform.
Many years ago, a man who managed his wife's practice in an underserved inner city spent one year in a county jail because Medicaid disagreed with his interpretation of the code for "office visit." Recently, a very talented surgeon, Dr. John Natale, reported to federal prison. He saved the lives of some desperately sick people, but picked the wrong code to describe the procedures he did, for which an exact code does not exist.
The surgeon had apparently complained at times about the low level of payment, and the judge thought he cared "too much" about getting paid and had a motive to up-code in order to make a little more money.
The low payments are a problem, but restoring the proposed pay cut of 27 percent, increasing pay by 1 percent or paying incentives of a half-percent to cover the cost of hours of extra busywork would not help. Multiplying fees by 10 would not help. I don't think there is enough money to persuade me to risk a military-style raid by officers who might point guns at people in their zeal to capture medical records. Bounty-seeking auditors, prosecutors and even my own defense attorney could rapidly take all the money I had earned over many years.
Obamacare, by the way, multiplies the penalties for each instance of "fraud, waste and abuse" by five. It wouldn't take very many $50,000 fines to destroy an independent doctor.
Doctors have an absolute right not to work for an employer like this. The real question is this: Do doctors have the right to work for the employer of their choice -- their patients -- if they turn down the government plan? Do they have the right to accept a better job if offered? What about higher pay or better working conditions?
Can they be tied to the plantation, as Massachusetts is trying to do by tying licensure to participation in their health reform plan (sometimes called Romneycare)? After all, there are patients who need to be treated, and the government subsidizes medical education. Doctors didn't build their skills or their practice -- somebody else did that.
Who owns doctors, and their time and skills? The government is making a bid to.
Dr. Jane M. Orient practices internal medicine in Tucson, Ariz., and is executive director of the Association of American Physicians and Surgeons.
By Andrew P. Napolitano
The president's men trash the Constitution to pursue antagonists