Watch CBSN Live

The Coming Health Care Conundrum

This column was written by Jeff Emanuel, a special operations military veteran and combat journalist. A director emeritus of conservative weblog, his writings can be seen there and at Jeff

Who should have control over your medical care: your family doctor, or a bureaucrat you've never met whose sole job is to look out for the government's financial bottom line?

A ruling earlier this month by a panel of the 11th U.S. Circuit Court of Appeals went a long way toward answering that question, as federal judges ruled in favor of three states that had filed 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.

Trending News

The case centered on Callie Moore, a disabled teenage girl living in Georgia. A stroke Callie suffered in utero left her suffering from multiple conditions, including cerebral palsy and mental retardation. For the last decade, she has received around-the-clock in-home nursing care, 94 hours of which were paid for by Medicaid, the joint federal/state health coverage program for low-income individuals and families, and the rest by her family.
In 2007, citing a disagreement with Callie's attending physician over just how much care she needed, the state cut the portion of Callie's care it was willing to pay for by 15%, to 84 hours a week, over the objections of her doctor.

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care was subject to rationing, as the state bureaucrats' need to ensure Medicaid resources were allocated "fairly" superseded her doctor's care prescription or her personal medical needs.

On June 4, 2008, U.S. District Judge Thomas Thrash ruled that Callie's doctor, not bureaucrats, had the right to prescribe just what medical treatment and care his patient required. He ordered Georgia to raise Callie's skilled home nursing care back to the 94 hours a week prescribed by her doctor.

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

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

From state governments to the federal legislators and bureaucrats who had a hand in writing and passing President Barack 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 when it comes to patient diagnoses and prescriptions, but cubicle-inhabiting bureaucrats who are guided by agency-developed cost-effectiveness spreadsheets 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 the state of Florida. "Treating physicians," they wrote, "cannot be trusted with this sort of decision. When left to their own devices, they advocate for their patients" - something state governments resent due to its interference in the execution of 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 panel of the 11th Circuit 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 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.

As taxpayer-funded and bureaucrat-run health care programs like Medicaid and the State Children's Health Insurance Program (SCHIP) are expanded to include more middle class Americans, and as the federal government's control over the health care market grows astronomically under the guise of "health care reform," the issue of government encroachment on doctor-patient decisions will only increase.

The first steps toward nationalizing this problem have already been taken at the federal level, where authors of the American Recovery and Reinvestment Act included funding and authorization for the benign-sounding "comparative effectiveness research," or CER. This term, quite simply, refers to the drawing up of those cost-effectiveness spreadsheets state and federal bureaucrats use to approve or deny care prescribed for patients by their physicians.

Outside Georgia, where Moore reinforced the state's right to ration health care to Medicaid recipients, the greatest example of CER at work is in Great Britain, where bureaucrats at the National Institute for Clinical Effectiveness (NICE) have become notorious for denying doctor-prescribed treatments based on their impersonal spreadsheets - and where patients who choose to pay out of pocket 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 their fellow Britons are still receiving.

Government is a jealous mistress. What simply appears to be an issue of who pays for a few extra hours of in-home care today could very well turn into a get-half-coverage-or-none-at-all situation here, like it is in Britain, before too long.

The answer is to get government as far away from our health care and medical decisions as possible. We need to be making those decisions on our own, with our physicians - and, 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.

By Jeffrey P. Emanuel

View CBS News In