Health Care Reform and Death—A Commentary by Paul Gewirtz ’70 and Matthew S. Ellman
Health Care Reform and Death
By Paul Gewirtz ’70 and Matthew S. Ellman
Although President Obama gave new momentum to health care reform in his recent speech to Congress, he unfortunately ignored one key topic: end-of-life issues. Now there are rumors that the Senate Finance Committee will drop all provisions on end-of-life issues from the bill it unveils this week. But it's not too late for the new legislation to address end-of-life issues appropriately. And no topic better tests our country's maturity about health care reform.
The issues are much deeper than any particular legislative provision, such as Section 1233 of the House's proposed legislation, which sensibly supports end-of-life medical counseling.
The basic issue is death itself. Death is essentially a taboo topic in public debates, and serious discussion about terminal illness and death has been almost completely lacking in the recent health care debates.
The most gold-plated health care will not let us live forever. Just as death has to be seen and talked about as a "normal" part of life itself -- the inescapable end of our mortal existence, even if terrifying, sad, painful, and unwanted -- so too end-of-life treatment and care, including end-of-life medical counseling, should be seen as a "normal" and inescapable part of the health care system.
Section 1233 of the proposed House legislation reflects this maturity of thinking about a painful subject. It does one basic thing: It includes funding for end-of-life counseling among the enormous range of health care procedures already "covered" by Medicare.
This is important for three reasons.
First, it enhances human dignity. It does so by promoting mature conversations between doctors and patients about the end of their lives. In doing so, it allows patients to express to doctors their fears, concerns, and hopes about the end-of-life process, rather than repressing them, and to receive more information about choices available to them so as to enhance their autonomy and control over the process of dying. The counseling covered in the House bill wouldn't force anyone to do anything. It wouldn't force anyone to seek that counseling. It wouldn't force anyone to give counseling or to follow any particular option that is discussed about how to handle end-of-life choices. Rather it would add more freedom of choice -- and the possibility of more informed choice-making -- to the health care system.
Second, it would almost certainly reduce health care costs. The health care costs of end-of-life care are a major part of the national health care budget, with more than 25% of Medicare's total budget used for health care in people's last year of life. The existing data shows that counseling people towards the end of their lives about the advantages and disadvantages of particular treatments is a very significant factor in reducing the costs of health care doing that period. A reasonable estimate is that Medicare alone could save $90.8 billion over 10 years if end-of-life care were handled better.
The reason is that this counseling provides individuals with information they otherwise wouldn't have. This leads a significant number of people facing the end of life to choose less elaborate and expensive treatments and choose palliative care that makes the process of dying easier for them and more fully under their control. If we want to expand the number of people with health insurance coverage and incur the large costs of doing so -- as we should -- we have to be serious about controlling costs. Section 1233 creates a prudent pathway towards reducing costs that also preserves individual choices and enhances human dignity.
Third, it will improve some of the basic structures of the practice of medicine. It will create an expectation that end-of-life counseling is a service that patients might expect from their doctors and that their doctors might be comfortable bringing up. More prosaically, Section 1233 would also modify the physician reimbursement structure under Medicare in a sensible direction. Historically, doctors are paid much more for performing procedures on patients than spending the time talking with patients about what the most effective diagnostic and treatment plan might be. There are perverse incentives for doctors simply to do the test, do the procedure, rather then take the time to talk with patients at length and not get paid much for that time. If implemented in a sensible way, Section 1233 could correct for that distortion somewhat.
Section 1233 of the House bill has been demonized by a fraction of political figures and pundits, who have said that it establishes "death squads" who will "pull the plug on grandma" (which is squalid rhetoric) or will compel people to have end-of-life counseling or sign living wills (simply false). These fabrications have had political effects and may lead the Senate Finance Committee to drop Section 1233 "to avoid misinterpretations." More nuanced critics such as Charles Lane and Charles Krautheimer argue that Section 1233 isn't "neutral" but would give doctors a financial incentive to initiate end-of-life conversations by providing Medicare reimbursement, and would encourage doctors to counsel palliative care and earlier death over life-extending treatments.
But Section 1233 would hardly create distinctively attractive incentives for such counseling, only correct disturbing disincentives against it in the current system. Nor would such reimbursement create incentives for doctors to counsel patients to choose treatment paths that result in earlier death. If anything, the current financial incentive system is for doctors to steer patients toward more expensive treatments that hold out even the slimmest hope of prolonging life rather than encouraging palliative care. And for patients, today's starting point is strong attraction to the newest technologies and treatments regardless of their value. The hope of Section 1233 is that doctors will lay out fuller options for patients to consider rationally - and that patients themselves will thereby make better choices for themselves.
We aren't advocating that President Obama and other strong proponents of ambitious new health care legislation insist to the end on keeping Section 1233 even if that would politically doom all health care reform. But as the President is effectively restarting the national debate on health care, he should try to restart mature discussions about end-of-life issues. To drop Section 1233 from the Senate Finance Committee's bill before there's been that mature debate would be very unfortunate and result in bad public policy.
Paul Gewirtz ’70 is Potter Stewart Professor of Constitutional Law and director of The China Law Center at Yale Law School. Matthew S. Ellman, M.D., is Associate Professor and Director of End-of-Life Care Skills Training at the Yale School of Medicine.