Human Exceptionalism

Using the False Claim Act to Impose Futile Care Theory?

Ah, the days when “choice” seemed to be the end all and be all of bioethics. You say you want your profoundly disabled spouse’s feeding tube pulled so he dies slowly by dehydration? Choice! You say you want assisted suicide? Choice! You say you want your life extended with life-sustaining treatment? No Choice if the bioethicists believe your life is not worth living!

Wait a minute: That doesn’t make sense. Actually, it does. The issue has never really been autonomy. It has been about making sure that certain populations die and stop sucking up resources. If “choice” gets that done, great. Bioethicists love choice. But if not, then they have other ways to ensure that certain people get six feet under.

Toward this end a particularly ham-fisted approach to forcing hospitals to impose medical futility (no choice for hospitals either, apparently) has been proposed over at the Medical Futility Blog. The idea is to use the threat of federal litigation against hospitals who provide too much end of life (EOL) care, and, in the process, turn hospital personnel into informants and litigants against their own employers. From the entry:

Medicare knows, the CBO [Congressional Budget Office] knows, and everyone else knows that Medicare will have to start using some more aggressive CBA [cost benefit analysis] to ration the treatments that it covers. But even before we get to that, it seems that even under current regulations, Medicare should not be paying for much EOL care.

One way that this determination might be made is through the prosecution of a False Claims Act Claim. This could be brought (in New Jersey where there is comparatively more inappropriate EOL care) by the U.S. Attorney, the state AG, or even a private qui tam plaintiff like a nurse who observes too much inappropriate care.

Such coercion will backfire, particularly in an era of strained resources. Whatever trust remains in health care will evaporate. And the ICU or hospital will become scenes of violence as distraught families fight against imposed cessation of life support. Indeed, it has already happened.

This is the consequence of accepting a quality of life ethic. Rather than treating the patient as a person, as Paul Ramsey advocated, it is to treat the sickest and most vulnerable as disposable. And don’t think it would stop with medical futility. Once the principle was established that bioethicists could decide who received care and who didn’t, the door would open wide to other forms of medical discrimination.

Education works to help patients and families make better EOL choices. But using the club of federal litigation against hospitals that provide “too much care” in order to impose social policy would be undemocratic and tyrannical. Can we spell culture of death?

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