Yes, it's constitutional

But to make health care reform effective, put doctors, not bureaucrats, in charge

December 31, 2010|By James F. Burdick

The first salvo from the forces aligned to bring down the Obama health care plan has been fired. Your health may land in the lap of the Supreme Court as it adjudicates the constitutionality of the Patient Protection and Affordable Care Act. Leaving aside the legal language and overheated rhetoric, where will that leave us?

As a doctor, I am thinking of the central focus: the frightened patient, perhaps in pain from a new illness, conferring with the doctor. Would the Founding Fathers have meant for the Constitution to allow access to care for any American who needs it? If not, America would have a problem — because, rest assured, the doctor is going to provide that care to the extent that he or she can possibly manage. That is the reality.

I am no fan of the "individual mandate" requiring everyone to have health insurance or face a penalty. But the U.S. has just made a major, realizable gain in funding and access for health care for the first time in 40 years, and we must not let it slip away. We must have the mandate to encourage everyone to buy in, because the principle of insurance is to spread the risk widely. It is fair (and, you would think, constitutional), because almost everyone will need medical care sooner or later. They do not really have a choice. In the health insurance-based system that we still have in the U.S., the payment of premiums is the only fair and effective way to have insurance when we become ill.

If the mandate is ruled unconstitutional, probably most people will still choose to get insurance. But the risk of the reform law without the mandate is that too many healthy people might forgo insurance with no fear of refusal for preexisting conditions, violating the principle of insurance. Premiums will then become too expensive, and this will quickly land Congress in big trouble.

If the mandate is upheld, there will still be problems. Again, if you get sick, you could obtain insurance with no fear of refusal. So there is an incentive to pay the lower mandate penalty and not get insurance. After all, with coinsurance for hospitalization rising rapidly, patients face potential bankruptcy in spite of their insurance. And the mandate forces the public to support insurance industry profits to the tune of 15 to 25 cents on the dollar, which is the range that is deemed to be acceptable for the "medical loss ratios."

No, constitutionality is not the problem. The argument over mandates is most important because it reveals the failure of American health insurance, although the insurance industry was given a pass by this law.

Nevertheless, the new law has given Americans the dream that some day everyone will be able to afford to go to the doctor, and this reform can bring us closer to that. So we need this law now. But we can do better in the future. How?

Let's return to that patient with his or her doctor. The most relevant question is: Does the patient have effective, affordable health care coverage? One out of three Americans has no insurance or dangerously inadequate coverage. America needs a national program that covers everyone, no questions asked. It needs to be free of excessive administrative costs and to be able to prevent costly, dangerous overutilization — that is, tests and treatments that are not going to help the patient and may be harmful. Instead of being sidelined, doctors must be given national responsibility to define and improve quality by establishing care guidelines based on clinical criteria. We should dispense with rules generated by insurance companies and federal agencies, which are not the way to decide medical details.

The beauty of this is that quality saves money. Insurance can be reined in or replaced by a federal fund, ending the excessive cost of insurance administration. Overutilization can be stopped if doctors are given the authority. The net cost to the taxpayer goes down, and mandates become irrelevant if everyone is covered through federal revenues. Then we can afford care for everyone. After all, we are paying for a lot of people without insurance now; Families USA says that care for the uninsured is costing us more than $100 billion a year. This is partly because such patients typically do not receive timely, efficient medical attention.

The conservative agenda is, paradoxically, bringing the country closer to the realization of the need for more fundamental reform. Doctors take responsibility for each of their patients. It is time for doctors to take on a national responsibility for ensuring that all Americans get the right care.

Dr. James F. Burdick is professor of surgery at the Johns Hopkins University School of Medicine. He had a career as a transplant surgeon and served in the Department of Health and Human Services as director of the Division of Transplantation, and is writing a book detailing his doctors' plan for health reform. His e-mail is jburdic1@jhmi.edu.

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