Thursday, September 11, 2008

Session 1: Ethical Questions in the Reform of Medical Care

Council Discussion of Draft White Paper

CHAIRMAN PELLEGRINO:   Good morning, good morning.

DR. ROWLEY: Good morning.

CHAIRMAN PELLEGRINO: And good morning again. Thank you, Janet, but that's one way of getting attention, just say something. Thank you.

Welcome to the Thirty-Fourth Meeting of the President's Council on Bioethics, and welcome back from your summer holidays. I hope you all had a good one.

I want to take the first step, the official step, of recognizing the designated federal representative, Dr. Daniel Davis to my left. This gives us federal stature and legitimation, I gather, as well, and we're glad to have you with us, Dan, as if we could do anything without you.

I want to also welcome two new members of the Council — I will only provide their names at this point. Background material is available elsewhere — Dr. Jean Bethke Elshtain on my left and Dr. Donald Landry on my right — no reference, I suspect, to your positions. That just happens to be accidental. So we expect you to cover the waterfront.

This morning we pick up a subject we've been discussing on a number of occasions, and it has now been put into the form of an initial white paper. The subject and purpose has been to examine the ethical issues involved in health care policy formulation. The word reform was a little bit too ambitious, but rather where should be going at this point in our history with reference to health care which I need not point out is a subject of enormous interest to the American public at this particular time.

Our aim is not to enter into a comparative study of any of the plans being put forward, but rather to step back and look at the ethical problems that should be faced by any plan and which might be used to examine and look at and judge any one of the plans as they're being discussed in the public arena today.

The procedure we follow will have two of our Council members have been asked and graciously accepted the invitation to open the discussion: Dr. Rebecca Dresser and Dr. Diana Schaub. I would like to ask Dr. Dresser if she would be willing to begin the discussion. Rebecca?

PROF DRESSER: Sure. I think that the paper does a good job of showing why viewing medical care as either a commodity or a right doesn't tell the whole or the best ethical story. At the same time, I wondered whether we had to present it in an all or nothing framework. I think that I like the idea of showing that medical care is an essential element of the common good and that's the most defensible way to conceptualize it. But I don't think it would hurt to kind of acknowledge that the other two views do have an influence and play a role in how people think about this, and we can do this without undermining the basic position.

So perhaps we could say that they underlie certain popular ideas and judgments; for example, that no one should be without, at minimum, emergency care. If someone is hit by a car, that person has a, quote, right not to be left in the street to suffer, just kind of an ordinary understanding of that, and that on the other hand it may be okay to see some kinds of, quote, medical care as a commodity, frills like cosmetic surgery or even LASIK or something like that. So that's just a small comment on the framing of the analysis.

And then a little bit of substantive comment. When I think about this problem, I see that there really is a pretty good general public ethical consensus that everyone ought to have at least a decent minimum of health care — that was the way the President's Commission put it in 1983 — and that this view can be defended using all kinds of different ethical arguments.

So the question then is, why haven't we been able to put this general sense into practice, into policy? So I was thinking about maybe we could call it the hidden ethics of health care reform like we talk about the hidden curriculum in medical school where we teach all these things, but then the students observe how people really behave and learn a lot of often negative lessons.

So if we look at health care reform, one problem would be for many people in the current system health care is a commodity, not necessarily the patients but for the other people who are the players like industry and hospitals and some physicians. So people who, in the current system, who benefit from that and have kind of a stake in the status quo, a financial stake, and their self-interest at stake prevent change from happening or work against it.

We also see physician groups who are concerned about loss of income and freedom. For example, there is a fair amount of opposition to sort of making medicine more restrictive based on evidence-based judgments. And I agree there is some merit to that, but they're kind of fighting against any kind of restriction that might come with a broader health care plan.

And often the interest groups kind of portray their views, present their interests, as if they are protecting the patient's best interests. So when you think about that Harry and Louise advertising campaign where the insurance companies were trying to protect their turf, but they pretended it as something that put patients at risk, and that was very persuasive.

And then another barrier to change involves two patient interests, so people like us who have good health care coverage may have to accept something less so that more people can be covered. For example, the current employer-based health system has some unfairness in it, especially this failure to tax the benefit as income, and we all get a subsidy from that and it's probably unfair because people who don't have that coverage don't get it. But then on the other hand, as a former cancer patient, when people talk about putting all this stuff into the individual insurance market, it makes me nervous because I wonder whether I'll be able to buy something, a plan, that's affordable and has decent coverage. So I think those dynamics are preventing change from occurring, too.

I think the paper discusses this implicitly and how you would just encourage bringing it out. When we think about medical care as a common good and a public good, we should talk about perhaps sacrifices or commitments that are needed to remedy the lack of access and to generate the political will to get something done.

On Page 34, you talk about public health as a social good, and this is a quote. It says, "Sometimes, public goods, such as protection of public health, require individuals to make sacrifices that will not benefit them directly as individuals," and then it goes on to talk about quarantine and an earlier part talks about vaccinations. So I wonder if there would be a way to just talk about some individual contributions or commitments that the haves can make so the have-nots can benefit, and not necessarily in a preachy way but in a way that might make people want to make a sacrifice as we see sometimes in social life, and then also the contributions that we should expect of business and the medical profession in order to create a care system that really better meets our ethical responsibilities. Thank you.

CHAIRMAN PELLEGRINO: Thank you very much, Rebecca. I think we will move to Dr. Schaub 's comments and then open it up to general discussion of the Council. Diana?

PROF. SCHAUB: On the assumption that criticism will trigger more discussion than praise will, I have scoured the draft for things to which I might object, and I have come up with a couple.

Before reaching the conclusion that "it is imperative that the United States ensure that all of its citizens have access to medical care when they need it," the draft report sets itself against two contemporary views: health care as a commodity, and health care as a right.

In the section that rejected treating health care as a commodity, I very much appreciated the exploration of the moral meaning of the physician-patient relationship. While I understand that there are unique features to this relationship, my sympathy for the approach actually comes more from my sense that there are similarities between the doctor's profession and my own profession of teaching. The pedagogical enterprise is also being damaged by consumerist notions. It seems to me that the wonderful description of an ethic of beneficence-in -trust is applicable to the profession of teaching as well. Indeed, that it is applicable to each and every profession. Socrates said as much in the Republic. What we call a profession, he called an art, and he often used medicine as the paradigm of an art. Thus, Socrates asked: "Isn't it the case that the doctor, insofar as he is a doctor, considers or commands not the doctor's advantage, but that of the sick man? For the doctor in the precise sense was agreed to be a ruler of bodies and not a money-maker."

So like our draft, Socrates insists that medical care is not a commodity. However, Socrates goes on to argue that, because the doctor pursues the advantage of the patient rather than his own advantage, another art must be superadded to the medical art: namely, the wage-earner's art. The medical art produces health; and the wage-earner's art, wages. The individual doctor must attend to both arts. So, I would agree that it is right to resist viewing medical care as a mere commodity. However, to the extent that the problems we currently face are largely financial problems (how to pay for medical care), then we need to talk forthrightly about the wage-earner's art and the marketplace.

I'm not quite sure how stressing this moral dimension of medicine helps solve our current problems unless we want to recommend a return to a much earlier, sort of village model of care where doctors as doctors simply provided care to all within walking or riding distance. Those patients who could pay did; and those who couldn't, didn't. With the advent of the middlemen — the private insurers, the employers, the government — the wage-earner's art has ineluctably become more prominent, and it just seems to me that we have to face that more forthrightly.

I am a little worried that this high-minded distaste for the grubby business of gain results in some problems in the final section of the draft. The text speaks often of ensuring access to medical care. This seems to me something of a misuse of the term. When African-Americans were denied entrance to public accommodations like restaurants and hotels, legal reforms were necessary to ensure equal access. The word is used in a very different sense here. The text mentions that with respect to education, we "provide access to all citizens." Well, access in that case means taxpayer-funded universal schooling. What does access mean with reference to medical care? The text asserts that federal programs like Medicare and Medicaid provide access to medical care for the elderly and poor. Wouldn't it be more accurate to say they pay (or partially pay) for medical care? Is the problem of the uninsured most accurately described as a denial of access? In fact, as the report acknowledges, emergency rooms are required by law to treat all comers. I understand that the emergency room as first and last resort is not ideal care. Nonetheless, lack of medical insurance is not the same thing as lack of access to medical care. And, remember, we were told that one-third of those without insurance earn over $50,000 a year. I take it that they are paying out-of-pocket for routine medical care and, perhaps foolishly, hoping and praying that nothing worse happens.

So the draft tries to make the case that medical care is an element of the common good. I'm not sure that I've been persuaded of that, at least not by the terms used here. In some respects, I think it's actually easier to make the case for health as a public good or a mixed good, than it is to make the case for medical care.

Think about the Spartans. They took great care for the health of women. They imposed exercise and diet regimens, since it was women who bore the next generation of Spartan warriors. Medical care didn't much interest them. The medical care for the diseased and vulnerable, they didn't pay much attention to and they tossed the weak infants off the cliff.

Now I'm not suggesting that we adopt the freedom-denying and brutal practices of the Spartans. However, as our colleague, Ben Carson, has pointed out many times, the right kind of preventive care may contribute greatly to the common good. It may be better and cheaper for both the individual and society to prevent diabetes than to have to treat it.

So it's less clear to me that this narrower category that we're calling medical care is an element of the common good. The only real argument offered runs as follows: "Ensuring that medical care is provided to those who need it fosters a sense of community and of security." Now I suppose that those who receive an assurance of care, of cost-free care, will feel more secure, but I'm not at all certain that an expansion in our medical welfare policy would foster community. And, even if it did foster a sense of community, I don't know how that effect creates the prior obligation. Joint action to ensure the social provision of a variety of other goods, including private goods, might foster community too.

So as might be apparent, I am heading toward a dissent from the draft's conclusion. The bolded passage on the last page asserts "Our society has a moral obligation... to ensure that its members... have the requisite ability to meet their needs for [medical] care." Why the euphemistic language? What is the requisite ability if not a financial ability? How could society guarantee that people will have the ability to pay? How can the inability to afford insurance be transformed into the requisite ability? Beyond that, how can those who have the requisite ability be made to exercise it? I suspect it's not ability that is really meant but assistance. Society has an obligation to extend enough financial assistance to meet the medical needs of all citizens, in other words to foot the bill for either universal or greatly expanded health insurance coverage.

So despite the attempt to set some prudent limits to this claimed moral obligation, the final formulation sounds a lot like the famous motto: "From each according to his ability, to each according to his needs." The last few sentences of the draft assert that the Council takes no position on the policy question. However, the way the obligation is stated seems to me to prejudice the policy debate.

And if you'll allow me one final remark: I was pleased to see the summoning of the ghost of Jefferson who made the case for education as an object of public care. I did, however, want to argue for the reinstatement of the words that were excised from the Jefferson quotation. In the place where the ellipses now stands, Jefferson says: "not that it would be proposed to take its ordinary branches" — in other words, the ordinary branches of education — "out of the hands of private enterprise, which manages so much better all the concerns to which it is equal." So though Jefferson spoke of education as an object of public care, Jefferson was not a centralizer. Moreover, he clearly states his view that a Constitutional amendment would be necessary for education to become a public care, since education is not among the original objects enumerated for public moneys. Similarly, it seems to me, it's not a sufficient constitutional argument to appeal to the general welfare clause of the Preamble as the draft does in making the case for public provision of medical care.

Of course, we as a nation seem to have almost completely abandoned Jefferson 's strict constructionism. Still, I think if we're going to cite him, it might be good to give a sense of the whole package: Yes, the public cares, but private enterprise usually delivers that care best, and whatever portion of care government does assume had better have explicit constitutional warrant.

CHAIRMAN PELLEGRINO: Thank you very much, Dr. Schaub. Before opening to a discussion, I have to make an announcement. We've been asked by the audio specialist people that those of you who have Blackberries inhibit the use of the BlackBerry during the meeting because they interfere with the transmission. Am I correct about that? It has nothing to do with my feelings about BlackBerries. It has only to do with the technical question of transmission. So I hope you can help us on that. I may have to make that comment a little bit later.

Before opening it up to discussion with the Council, let me point out that we have two of the members of the staff who have made the initial effort here and presented it. I will reserve any comments they may have after the Council has had a chance to discuss the paper.

We're now open to those of whom would like to comment. For those of you who are new members, a signaling of the hands and we'll keep you in order. Everybody will be given a chance. Dr. Elshtain and Dr. Carson?

PROF. ELSHTAIN: Well, I want to, first of all, thank our members who made such interesting presentations and very helpful ones indeed. Reading this draft over, it seemed to me that what it was attempting was to answer the question, what is the best sort of ethical narrative that we can offer about medical care and health care? They're not identical, the question of health and the question of medicine, as the paper makes clear.

When you evoke the language of the common good, that's tied to a whole cluster of assumptions about the nature of society, the role of the state, the role of civil society, and indeed the nature of the person, himself or herself.

Now those were not very much argued out in the paper. I mean, it's a limited paper. But, still, it is tied to these kind of presuppositions, so if I may just say a little more about that.

The two narratives that were found problematic also, of course, begin with certain assumptions about the individual, whether you're talking about medicine as a commodity or as a right. In the one case, the assumption about persons in the commodity narrative is that we are primarily maximizers of our own utilities, that we're rational-choice agents, and that we will see to our own best interests at every turn.

The rights model, although it gets complicated given the very interesting discussion of negative rights or immunities and entitlements, rights as entitlements, but, that said, assumes a or has come to assume in our time a kind of Comitian autonomous self who is busy exercising her rights at every turn and often sees these rights as in conflict either with what society is doing or with somebody else's rights.

Now when you get to the common-good notion, the assumption is that we are all intrinsically social persons, that we all aspire to live together in relative harmony and decency with one another, and that we all, therefore, are prepared to bear one other's burdens up to a certain point at least.

So I think one of the questions I had is, looking at American society today, how indeed do we think of ourselves? Do we think of ourselves in the way that the common-good argument presupposes? How strongly can you press that?

And I have a suspicion that most Americans are an interesting amalgam of all three of these, all three of these perspectives when it comes to how we think about persons. That makes the task, I think, undeniably difficult. If all people thought of themselves in the way the common-good model presupposes, it would be much easier to agree to certain statements and then to see certain policies follow therefrom. But we know that it isn't or we would have resolved this issue in some way that satisfies at least most of the people most of the time by now, but we haven't resolved it. So I think in a sense the paper alerts us to why, at least some of the reasons, for why we haven't done that.

CHAIRMAN PELLEGRINO: Thank you very much. Dr. Carson?

DR. CARSON: Well, congratulations to the staff for trying to at least put this into some type of a logical format because it's a very difficult thing to do, you know, given the fact that we live in an American society where there is — basically, it's a capitalistic society in which great emphasis is placed on personal responsibility. Now that is in direct conflict with a society that says everybody should be taken care of with regard to their health care needs regardless of circumstance.

So we have an inherent conflict set up there, and I think that's one of the reasons that we're having such difficulty resolving this issue. And I've thought about it a lot, and it's very difficult to come to the right conclusions.

I was giving a deposition this week in a medical malpractice case against some obstetricians who obviously had done nothing. But thinking about the poor kid who was involved who has substantial medical needs, we live in a society that doesn't have any other mechanism for taking care of that child which then spawns an abusive legal system that wreaks its own set of havoc, not only on the medical profession, but on society at large.

So clearly we need to design a mechanism that allows for basic care to be given as is in the case in virtually every civilized country in the world except ours, but one that is insulated against the abuses of sluggards and people who expect to be taken care of unless we are willing to relinquish some of the basic tenets of our society.

CHAIRMAN PELLEGRINO: Thank you very much, Ben. Further comments? Dr. Elshtain?

PROF. ELSHTAIN: Well, can I just piggyback off what Dr. Carson just said? It was another of my notes, a point I wanted to get in, and that is the whole question of responsibility. The paper marks up to that issue and discusses some analogs, what we expect from people, what they're obliged to do in order to have access to this kind of good. But it doesn't specify, the paper doesn't specify, very much by way of what we expect from people for their own health, their own well-being.

So if in a sense — I mean, I don't think you can avoid this. If we say society is going to be responsible as a whole for people's medical needs and then we have the health issue looming there, too, then what is the individual's responsibility where self-destructive behavior is concerned because we know very good and well this is likelihood to lead to this? Society bears the whole burden. Well, where does the individual's responsibility fit in?

And I think Dr. Carson is right. That brings us at some point right up against our notions of liberty and I can do what I want with myself and John Stewart Mill 's argument about self-regarding and other regarding actions and all the rest of it. And I don't see how we can avoid saying more about that.

CHAIRMAN PELLEGRINO: Dr. Meilaender?

PROF. MEILAENDER: I have some questions about the structure of the argument which I don't think I really understand. For starters, I'm not clear about the distinction between health care and medical care that's made here, and particularly there are moments when the distinction is between health and medical care and then other moments when it's between health care and medical care.

I mean, I do have some understanding that health care is supposed to be a more expansive notion. But nobody thinks that people have a right to health or that we have an obligation to provide it. We have no obligation to provide what is simply not within our power to provide. So the distinction has to be health care and medical care. And evidently we have an — I mean, to me the thing is set up in such a way to say, well, no, we're not making an unreasonable argument as if people have a right to health care. It's just medical care that we're obligated to provide, but that includes emergency, catastrophic, and chronic care and that includes a lot. And the thing is just set up in a way, I think, that the more you press on it, it sort of cannot be persuasive.

So the distinction seems to be no right to health care but an obligation to provide medical care. If we have an obligation to provide medical care, do people have a right to that medical care? I mean, that issue of the correlation between rights and that obligation is never really sorted out and pressed. So the basic structure of the argument, the longer you think about it, lacks the kind of sharpness and clarity that's needed to be persuasive. So that's my one problem with just the structure of the argument. The longer I think about it, the less it works.

And then the other thing I'd just say, with respect to the sort of conclusion in bold print that Diana had one point that she made about it earlier, I'd have a different point.

One always had to control one's rhetoric. The society can, should, and indeed must respond. Well, once again, the paper has not gone to show that we can. That's an empirical question, and the paper hasn't argued it. And if we can't, then I'd like to hear the argument that we must. So the conclusion may not follow from what's come earlier.

And avoidable human suffering? Well, how do we know what's avoidable along the way? I mean, the longer you press on certain parts of this argument, the less sure you become what it really is. I mean, the structure looks clear at the start, but I can't figure it out when I really go to work on it.

CHAIRMAN PELLEGRINO: Thank you, Gil. Further discussion? Comments? Rebecca, Diana, did you want to add any — oh, I'm sorry. Paul, I'm sorry. You're off to the right.

DR. McHUGH: Not at all, not at all. I find the conversation very helpful because I did find this text very difficult to know where I could stand and fit. It mentions things and talks about things that I agree about and then it draws me into areas where I'm just not so certain.

I like the idea that it is a responsibility of our society to offer assistance to the care of the sick. That is our task. It has been a traditional task in medicine right from the beginning that we would assist people in gaining this care. And so at various stages, hospitals, staff in the hospitals, doctors within that staff would work long hours and not complain too much about the fact that they had to work long hours to accomplish the serious needs of the community to which we were embedded.

Certainly I remember very vividly feeling when I became an intern in medicine for the first time I was no longer taking but was giving to the community in a variety of ways. Of course, it was impressed upon me that I was giving at that time because my pay was $25 a month even though I was working 110 hours. On the other hand, it was, I have to tell you, one of the happiest years of my life in which I was doing this.

Since then, with the advent of insurance and with the advent of medical care and things of this sort, the capacity for our society to give more assistance in this process has spread from the eleemosynary institutions out to everyone, and I have appreciated in a step-like way the accomplishment of this assistance to people identifying, first, of course, with the Medicare laws and with Medicaid the elderly as a group that was going to need more assistance both from the fact that they would have more illnesses and were more restricted and needed help.

I'm looking for a system that begins to approach this ideal that we have that the care of illness — that's what I'm talking about, the treatment of disease — should be a natural, easily-accessible thing as an ideal. I like the idea of approaching it more asymptotically and seeing on each step along the way what problems have arisen from that, what problems we need to solve at this stage to make that assistance equitable and efficient and the like and before moving on to others.

So I like small bites in this matter rather than large bites, and then I'd like to know what we've learned at each one of the steps along the way to be sure that the process is efficient, the process is equal, the process is truly fair. And I miss that little bit.

I want just to come back to emphasize the idea that with Diana I want to make the point that we're talking about assistance and most of that assistance is financial and some of that assistance turns into service that is not being immediately paid for but given out of the professional commitment and vocation of doctors to care for — and nurses and other people — to care for the sick poor of their community.

CHAIRMAN PELLEGRINO: Thank you very much, Paul. I just want to tell you that you were overpaid because in my internship I got zero. It was bed and board — a little more indenture, I'm afraid. Thank you very much for your comment.

The next on my list is Dr. Janet Rowley, and then Diana will — is it on this point? Go ahead, Diana. Janet, do you mind?

PROF. SCHAUB: A question to Paul. I was uncertain. Initially, I thought you were moving in the direction of saying that the society-at-large should continue to provide more of this assistance and expand the assistance in incremental steps. But then at the end, you seemed to suggest it would be the doctors who would take the financial hit on that older model of the obligation. If there's a moral obligation, it's an obligation the medical profession has. Can you just —

DR. McHUGH: No. I'm sorry. In separating those two, I didn't bring them back together again.

The doctors out of their vocational thing should be giving certain things as they are, as well, expecting that society, too, would join them in giving the assistance that the society does provide.

I think the point of service area is a place where certain kinds of givings go on. And outside in the system, the system has to be construed as a gradually and improving efficient service to the needs of the community.

CHAIRMAN PELLEGRINO: Thanks, Paul. Janet Rowley?

DR. ROWLEY: Well, I first want to say that, by and large, I really appreciated and supported the report as written. And I would like to say that I agree with Paul that there were certainly a number of parts that I felt a bit shaky on going from A to B to C and that they all necessarily followed. So I think that criticism of Gil in some of these areas it certainly needs to be looked at.

I should say that I disagree with Paul that the changes that would be appropriate — and here we agreed we didn't have the expertise to comment on them. But our system is so different from the others that have been shown to be functional in the world, and ours is dysfunctional, so I'm not certain that small incremental changes are going to get us where we would like to be; namely, that less fortunate members of the society, poor or less educated, will actually have available to them the health care that they need.

And I think I'm going to just duck the responsibility. I mean, one can say, "Well, you smoke a whole lot of cigarettes and you get lung cancer, it's your problem, not mine." But then others say, "Well, if you spread those kind of risks over all of society, it's not that much of a burden on any individual." And how one manages that, I'm not certain.

I think I disagree with Gil's concern in the bolded paragraph on the last page about can because there are at least a number of economists who say that the amount of emergency care that society pays for for people who have no insurance is pretty horrendous and that if you could use that money to preventive care or at least a certain component of it, you would, in fact, go a long way to covering the cost of universal health care.

And I think that when you look at other countries who have universal health care, they're paying a far smaller proportion of their GNP than we are. So one has to then look back and say, "Well, maybe what we're doing is not very effective and is costing us more than it ought to if we had a different system."

So I think that I support the notion that our society should give better or provide — I mean, I understand your concern with access, but should see that everyone has better health care and can go to the physician at signs of early disease rather than late or even as prevention and that in the long run society is going to benefit from this.

CHAIRMAN PELLEGRINO: Thank you, Janet. Gil?

DR. FOSTER: Could I respond to one of Janet 's comments real quickly?

CHAIRMAN PELLEGRINO: I'm sorry, Gil.

DR. FOSTER: Could I respond to one issue here very quickly to Janet? The issue of emergency care is, right now, it's the court of last resort and so forth. But in most big cities and certainly in Dallas what's happened is that shops open for payment in shopping centers and so forth. They advertise on TV constantly. And what they do is that they drag away anybody who is paying for emergency care out of places like Parkland Hospital and so forth so that what's happening is that they're being robbed of any possible payment.

And there are over 300 emergency rooms in this country that have already been — have already closed on this issue. So it's not just the cost. It's the fact that that has been seen as a profitable thing by industry, and so it's going to get even worse about how we're going to take care of these patients.

If you walk into where I work in Parkland Hospital and you go into those halls, all that's there is the wounded of the city who can't pay a dollar. They're not on Medicaid. They're not on any — many of them are illegal immigrants and so forth, and so we've got the problem, not only of the calculated costs of emergency room, but also that that's going to appear to be difficult to sustain.

CHAIRMAN PELLEGRINO: Dr. Meilaender?

PROF. MEILAENDER: Yes. I wanted to come back to my question about the structure of the argument. I'm wondering if I can get an answer from our staff members who are sitting there to a question.

What I want to know is, if I said fundamentally the structure of the paper is to argue that people don't have a right to health care but they do have a right to medical care as those terms are used in the paper, would that be an accurate description of the argument of the paper?

CHAIRMAN PELLEGRINO: I'd like to respond, but Tom first.

DR. MERRILL: Well, I'll be interested to hear what Dr. Pellegrino says. I think the answer to that question has to be yes. We could talk more about how that might play out in practice, but I think the short answer has to be yes.

PROF. MEILAENDER: Can I just follow up with one thing? Is the structure then not a little deceptive in taking up commodity, right, obligation, it seems to me, because it turns out there is a right to something that's rather considerable?

I'm not arguing about whether it's good or not right now. I just am asking what the question — the question about what the structure of the argument is and whether, in fact, it's laid out in a manner that is less than straightforward.

CHAIRMAN PELLEGRINO: Would you like to respond? Before responding, I'd like to call on Dr. Carson who is on the list. Ben?

DR. CARSON: Well, I think Janet and Dan have talked about something that is absolutely crucial, and that is the enormous amount of waste that exists in our system. As we learned during our last meeting, as a nation, we spend more than twice as much per capita on health care than our closest competitor. And, yet, we rank number 37 in the world in terms of health care distribution. This is a huge, huge problem and really, I think, undergirds a lot of what we're talking about here, the incredible inefficiency that exists in the system, and it's actually getting worse.

When I started practicing medicine back in the old days, if there was an indigent patient who needed to be taken care of, it was never a problem. I could bring them in. You could do a complex operation. You could get multiple consultants. Nobody raised an issue. It was a total non-issue. Never was it a problem.

It was only after the insurance companies began to exert so much influence and power and the ability to say, "Well, I'm only paying this much for this person and this much for this person," that things continued to get to the point where physicians in private practice even now don't have financially the capability of providing the free care that they used to.

Every physician used to provide free care — 10, 20 percent of their patients, no problem. Nobody even thought about it. And we paid less then than we're paying now. So I wonder if maybe we ought to ask, what happened? Where are the real culprits in this situation, and how can we address them? Do we have enough courage to actually address the issue where it exists?

CHAIRMAN PELLEGRINO: Any other comments? Well, just a few since Gil has asked me to. I think you did ask me. Did you? Gil?

PROF. MEILAENDER: Well, I directed my question, first of all, to the staff who wrote it. But I'll be happy to hear what you have to say about it.

CHAIRMAN PELLEGRINO: Okay. Well, they've turned it over to me. I think the question here, Gil, was the ethical issue. The question of obligations for health care and medical care might both be defended. I'm not taking that position. But I think what we were trying to deal with here was a priority of availability of resources.

And whenever I talk to any group of people and I ask them, what are the things about your health that you worry most about — and I don't care what station in life they're at — and the first one they say is that some emergency will happen to me, and I would like to have be able to have available emergency care — not that I would like, but I would need emergency care. It's what I call medicine of rescue, and that's what the clinician immediately faces. No matter how it comes, Ben, you've got to take care of it. And so the concern I see when I talk to people and I hear is that's the number one that I hear about.

The second one they fear — and this, of course, is not a sociological statistically strong statement but years of talking to human beings about their concerns, certainly the second one is chronic, catastrophic illness. There isn't anyone around this table who's not susceptible to an immediate possibility of a catastrophic health problem. And the question, being if they're able for it and they have the resources available, is of concern to people. So we're trying to reflect that.

I think in terms of ethical priorities then, health care, which is the maintenance of good health if you have it, and the cultivation of better health if you don't have it, is important. But whether it would rank as a right in the same strength as emergency care or rescue medical care, I think, is the question that leads us to separate these two.

Before you respond, let me finish. I certainly, as you know from the past, will give you plenty of chance.

So I think that was the basis.

The second thing is, I certainly believe in preventive care, and there's a kind of fiction around that physicians don't believe in medical care, in preventive care. We do. But, again, it's a matter of priorities. We're faced with people who are in immediate need, who are dependent, who are vulnerable, like your students. Students are vulnerable. They're dependent on us. We can deceive them. If our characters are not sufficient to meet that challenge, we can create serious difficulties. But those things that go into prevention are matters of behavioral change, and they take a long time.

Coming down this morning, some person riding a bicycle that was not aware of the health problem of riding between two rows of cars, swerving back and forth, and he could not be seen by the car that I was driving in and almost went. That would have been a serious medical emergency. He would have needed rescue care.

The point is, it takes a while for preventive medicine. We're, I'm sure, not talking about immunizations and things that can be done quickly. You are talking about those things that have to do with chronic illness, and that's diet, exercise, stress, changing your attitude on life, taking care of yourself. Those take enormous changes in behavior. Time — and I might add, the most expensive kind of care — time put in by one person to assist another person to change her care.

So I'm not making a plea for one or the other, Gil. I'm making a distinction and only a distinction of priority, not of exclusion. So it's not either/or, both/and, but which comes first if I were doing it. Now I did not write this paper, so.

PROF. MEILAENDER: I don't disagree with that way of structuring it, though, I mean, it may be useful to note that a lot of people do. I mean, a lot of the emphasis today is, in fact, on the preventive side rather than that. I do not disagree with you. Indeed, if I never hear anybody use the word "wellness" in my presence, I'll be happy.

But what I'm interested in — and I just repeat — I'm not even yet interested in figuring out what I think about the position we're taking up. I don't think the draft really accurately states the position that's being defended there because we're not setting up three different kinds of things thinking in terms of commodity, thinking in terms of right, thinking in terms of some kind of civic obligation.

What we're distinguishing between is a claim to a right to health care and a right to medical care, and we're arguing that there is a right to medical care. That's essentially what this draft does. And if that's what we want to do, let's write it that way and then I'll figure out whether I do or do not sign on.

But I think the draft is systematically ambiguous and ought not be. That's my claim. It's a claim about the structure of the thing as it stands right now.

CHAIRMAN PELLEGRINO: Yes. I would not disagree with that. I think that that has not been unraveled clearly enough. I did not write this, but I did participate in the discussion. And I think that my colleagues know that I made the distinction that I just made some moments before as an important one.

And the purpose of our presenting this to you, the white paper, is to get the kind of comments you're making now and then they will be incorporated and taken into whatever next version comes out. I'm sure that both Tom and David are listening very carefully to the comments you're making.

I responded rather strongly because I think that my concern as a physician who is still seeing patients is that we have people who are not getting care at the time that they need it because of the system as it exists here today.

And right here in the Capitol City a significant percentage of the population do not have this kind of care, and they need it.

Dr. Landry and Dr. Foster.

PROF. LANDRY: So as a physician, I found that the common-good analysis resonates with our ideals for the profession. But I agree that there are ambiguities with respect to the rights analysis, and you want to salvage part of that when you argue that there's a right for medical care.

I also think in terms of commodities, you have to be careful that you don't construct a straw man and that you give the commodity analysis its best case because I think you're going to need that as well.

If you look at the need for resources, for emergency care, perhaps we know the upper limits as we see CAT scans and MRIs increasingly used at a point of emergency service. In terms of catastrophic care, I suppose we can look at liver transplantation and maybe future combinations of bone marrow and liver transplantation to become free of the need for immunosuppression as sort of an upper limit on what might be done in a catastrophic situation.

In terms of chronic care, I don't think there's any limit to the cost. And whether it's biologics which are coming on line or whether it's advances in personalized medicine and individual analysis at the genome level, the need for resources are enormous.

And this comes to the can question. You know what can we do? And so there's going to be, I think, a notion of commodity, but not necessarily one that has to affect the physician. The physician can still operate in the common-good level. The patient may be working at a commodity level. And so here the issue of responsibility is key.

I thought the emphasis on economics was not entirely fair. The issue isn't whether people smoke, but the fact that they use their resources for cigarettes rather than for health insurance. This is a continuous thing. The draft recognizes those with relatively high incomes who are not getting insured. But at every level in this continuum, someone is making a decision and balancing what they want in one area versus what they want in another. So the notion of salvaging some aspect of the commodity argument as you practically implement a program based on the common good is something that I would emphasize. Thanks.

CHAIRMAN PELLEGRINO: Thank you. Dr. Foster? And after that, we'll ask both Tom and David to make some response.

DR. FOSTER: I just want to make two points very quickly in terms of preventive care. There's a great deal of talk about this, but it's a difficult problem in the sense that it's not always personal will.

I heard a lecture by Joe Goldstein on one occasion early on who won a Nobel Prize about the cholesterol and so forth and so on. And he started off the lecture with a picture of Winston Churchill and a picture, side by side, of Jim Fix. Jim Fix was the lean great runner, who did everything perfectly in terms of his health, and he dies when he was about 50 or something like that. On the other hand, Churchill did nothing for his health. He smoked constantly, he drank heavily, and he was massively overweight. And so he lives for a very long time, and Jim Fix doesn't. So there are underlying genetic things that are separate from the behavior itself; now, the most common thing, if you eat less, you'll lose weight. And so I just want to make the point. It's that preventive medicine is not necessarily as simple as it is.

After all, only one out of seven people who smoke constantly get a lung cancer. I mean, so your perspective — in diabetes, overwhelmingly there are people who don't get insulin resistance and Type II diabetes, even though they weigh 700 pounds, and so forth. So it's not a simple thing. This is not an argument. Since I work in diabetes, I spend hours and hours and hours about how-to.

But the second point I want to make is that most of these problems, as Ed points out, are behavioral. And as a consequence, they're very hard to break. I personally doubt that we can ever — you know, the obesity metabolic syndrome, now is not only the leading cause of Type II diabetes but also the leading cause of liver disease in the world, more than alcohol, more than anything else, because of fatty liver, the non-alcoholic fatty liver disease. And I don't think you can change that.

I think the only way to cure it is to do a gastric bypass operation. It's the most amazing thing that if you do a bypass rather than a band — you'll lose weight with a band. But if you do a bypass and take the duodenum out of it, you're cured of your diabetes in two or three days often, and it's permanent. And that's because there are substances being made in the duodenum that block the action of substances made elsewhere in the gut that protect you against diabetes.

So I think it sounds really wonderful to say, well, we ought to work in prevention. But it's very hard to do, and I just wanted to emphasize that point.

I think that the only answer to the Type II diabetes, is you're going to get a drug that does what the duodenum does, you're not going to do it by will, I don't think — at least I'm pretty persuasive, and I have been largely unsuccessful in getting people without bariatric surgery to get a curative for diabetes. So I only wanted to make that point. I'm in favor of preventive care, but it is really hard.

Let me say one other thing. The system — we do liver transplants all over the country for people who are alcoholics and have alcoholic cirrhosis, and you can says, "Well, they're to blame for this." But right now the physicians and so forth go ahead and treat these people as though they had a liver failure that was not vested in alcohol, and so I don't know whether the medical community is going to say, "Well, okay. This person deserves to have gotten cirrhosis of the liver" or "deserves to have gotten it."

My own view is, I'm going to take care of him anyway. I mean, as a physician, when they come in, I'm going to take care of them. And I don't know whether the implication is that medical care ought to be stopped if somebody precipitated it themselves.

CHAIRMAN PELLEGRINO: I have Dr. Gómez-Lobo and Dr. Hurlbut. If the staff will permit, I'll have them comment first. Dr. Gómez-Lobo and then Dr. Elshtain?

PROF. GÓMEZ-LOBO: Okay. I must admit that the draft presented by the staff for me at least was very illuminating in different aspects, although there may be difficulties with certain parts of the argument.

Now what I'd like to say is this. One of the things that impressed me most in the paper was this reference to 18,000 deaths a year that are attributable in part to lack of insurance coverage. And to me it seems or at least I can say this is the way I view things particularly after the Chicago meetings and reading the paper is that universal health insurance should be a goal. I just don't doubt that. I think that the fact that we don't have it and that we have these deaths and that we have all of these other consequences is just bad, and that should be what we should push towards, although maybe we should not go into the way to achieve it, but I think that should be the goal.

Now the objection to that is the objection of responsibility. Should people who are irresponsible in their behavior also be in the system? After what Dan had to say, I would say a resounding yes. Everybody should be in it even though there may be some free-riders in it. But the reason is that, from what I understand, illness is to a great extent not determined by our behavior. There are these things mentioned about Winston Churchill, for instance, who famously was asked, why did he live so long, and he said, "No sports."

So now that said, in other words, I see that goal as important. How I would argue for it, I really would hesitate between rights and the good of society. I would primarily call it a very important good that we should aim at.

Now whether it's convenient or not convenient to treat it as a right, whether it's rational or not rational to treat it as a right, I tend to view as a secondary issue.

And I would like to see the Council — again, it's my personal view — pointing towards that goal because it really — you know, if I compare it to Europe, Canada, and other places, to be in a position of saying that there are 18,000 preventable deaths just because there's lack of insurance, that really is for me immoral, a very serious moral problem. Thank you.

CHAIRMAN PELLEGRINO: Thank you very much. Dr. Hurlbut?

DR. HURLBUT: I didn't actually have my hand up. But since you called on me, I'll make a comment. Just one little side comment, not that most of what's been said is more central, but there's just one little dimension of this that I think we ought to keep in mind, and it was evoked from me when Dan was talking about this — and Ben, too — talking about traditions of medicine and the feeling that the physician has an obligation to the patient.

It's just absolutely central to medicine that we emphasize that we do not judge the patient before us in a critical way, that we understand that everybody's life is difficult, involves a circuitous path towards where they are at the present, that none among us is living this morally virtuous life that allows us to be free of cause of our own corruption of body and mind, that the truth is, that human beings are imperfect and when we have a patient before us in need, the patient comes before us and we deal with the patient as a profession with an implicit forgiveness and compassion.

But the thing that I want to bring out in that, and I really want to underscore what Ben said. I grew up in a household. My father was a physician, and I grew up in a household very conscious of these needs. My own father gave two afternoons a week of his life to care for which he got no compensation.

And I think it made his whole professional life mean a lot more to him, especially because he wasn't getting compensated by the government for it. It was something about it that it evoked in him a sense of the purposefulness and nobility of the profession he was part of, and that spilled over to me. And it was one of the main motivations. I think those two afternoons affected my decision to go into medicine more than the rest of his week did.

But this is what I want to say, and it's just a small piece of the puzzle and it doesn't override what anybody, Alfonso or anybody, said. Whatever we do, we've got to keep in the equation the sense that where medicine is not a commodity or a consumer item or a contractual matter or where it's not a right, where it becomes an ethical dimension, there is something in that ethical equation that needs to issue forth freely from those who give. This used to be expressed by the individual physicians, by the community hospitals having bake sales, and a general sense of social obligation playing out.

Now it's gotten strangely removed all the way up to the top levels of the federal government. And I'm not saying it shouldn't be there. I just don't really know completely. But whatever we do, we've got to remember that ethical obligations require the assent of the ethical heart or spirit of those who give them. And whatever we do, let's keep that in the equation if we can.

It's a small comment, but I think it's a part of something we need to remember.

CHAIRMAN PELLEGRINO: Thank you very much, Bill. Dr. Elshtain?

PROF. ELSHTAIN: I always hesitate to put this question after listening to these very eloquent characterizations of the medical profession as a profession that really professed something and was able to enact that profession at least at a certain point in time.

But clarification from the staff is what I'm interested in. I know, again, that this paper is not a policy paper as such. But apropos the discussion we've had, I'm wondering if you would consider that the sort of common-good obligation, which I understand is not a perfect obligation, but an imperfect one — be that as it may — the common-good obligation would be met if everyone in the society, in this society, there was a baseline of coverage; that is, that no one was to fall beneath a certain level as far as medical care is concerned, but that that would be — exist, in tandem with, other forms of care and medical and health provision that would be accessible to those who have greater means or those who have greater coverage, coverage plus.

And I ask that because the societies that are often held up as salutary alternatives to our own actually do have something like that. I mean, if you look at England, for example, those who have the means, many of them, opt out altogether, as you know, of the national health and go through BUPA through the private association of British physicians; Canada, the same.

So what kind of system are you imagining and what levels of care that would satisfy the common-good criterion?

CHAIRMAN PELLEGRINO: Thank you. I'll give the staff a chance to respond calling to attention that there is a time limit. We finish at 10:30, since we have a pretty packed agenda for the rest of the day. So, Tom or David, whomever which?

DR. MILLER: I do have a few comments. In terms of the common good and negative rights or positive rights, I don't know that saying that a society has an obligation, a moral obligation, to ensure that health care is provided is necessarily the same thing as saying that people have a legal right or a legal claim to medical care. And so I know that Tom did say that we're saying there is a right to medical care.

Instead, what I would say is that it's an element of the common good — there are a variety of elements of the common good — and that right now we require medical emergency care to be provided by emergency rooms. And the financing of that is done in this complex way in which for some uncompensated care money is providing by the government. It's provided by raising everyone else's costs, et cetera. It's a very complex cost-shifting mechanism.

To make that more transparent or more apparent would help us to see how are we already providing resources for this and, if we can look at that, what portion of our resources are we willing to commit to this good? That's not to say that there's an unlimited right and that everyone that comes in has a claim to unlimited medical care. It is to say as a society, "What are we willing to provide for this?" Right now, it's this sort of shell game of costs, and I think that that needs to be made clearer.

And I think that, therefore, to say that it is an element of the common good and to say that it's something that we need to assure people have access to is not necessarily to say it's a right. And it's also not necessarily to say that any particular system is going to do it.

So there may be a two-tier system or a private-public system or we may just find that different programs, even the tax-rebate programs and shifting insurances, all of these are attempting to expand the coverage in some ways. Whether they will or will not is something to be determined. But what we want to say is that that needs to be done and that there's a moral imperative to move in that direction.

I guess I wanted to say two other things quickly. One is the relationship of medical catastrophe to financial catastrophe. I think that part of the concern that people have with having a medical emergency is that it will wipe them out or bankrupt them. And that's the way in which medical care is connected to security and to people feeling that they have a sort of sense that the community will take care of them. I think that the common-good conception should try to capture some of that.

Finally, in terms of responsibility with Prof. Gómez-Lobo 's comment, I do think that it's — I don't know whether this paper should address it or whether we need to address it at some point. But there is this tension with responsibility. And in some ways the tension is captured in that rights versus commodities piece.

The commodity section really says people are responsible and they should spend their money as they want, and that's how they exercise their responsibility. In the rights talk, it's really people in some ways don't have responsibility. It's a right to have a claim regardless of what they do.

And so this is where the common good is trying to pull those two pieces, pull from each piece, and say there is an element of each, recognizing this conception of the common good and recognizing the goods that would be advanced by that.

So I think that's what we were trying to do, and maybe we need to do it more carefully. I also think if we do discuss responsibility there is an important element, not only of the genetics, but also of the social determinants of responsibility and the ways in which people are, not to say their communities determine their behavior, but to some extent, the way in which people are raised, the way, not only what they're fed as infants and as their growing up, all of those things determine the choices that they will make and in some ways influence that so that holding them to these high moral things saying that they're smoking, yes, they are choosing it. In some ways their choices are shaped by the ways in which the communities in which they've lived, the ways in which they've been raised, et cetera. So there's that balance that needs to be addressed as well.

And actually I think I will write to Diana Schaub and tell her why I put that ellipsis there. But, briefly, it was, I think, that Jefferson in that quote was saying, when he said that education ought to be provided by the state, to some extent he was saying there were some pieces that wouldn't be provided by private education itself. And so I thought that that would sort of distract.

I was going to put it in and put a footnote and say, "Well, there may be elements of education that the market wouldn't encourage, and there may be elements likewise in medicine that are not covered by the markets so that the market may not necessarily lead to the best distribution and actually help those people who are unable to make their way into the market at all." But I can talk to you about that. Again, that's all. Thank you.

CHAIRMAN PELLEGRINO: Thank you very much, David. Tom? By the way, I'm being very familiar with these gentlemen. They both have Ph.D.s and I should be addressing them as Dr. Merrill and Dr. Miller. But we work together, so sometimes one slips into familiarity. But I don't want you to believe that they're not as qualified as — maybe more than I am on this kind of thing. Dr. Merrill?

DR. MERRILL: I think the question of whether or not there is a right is a big one. I don't have anything else to say about that.

I will respond to Prof. Elshtain who asked whether a two-tier system would be appropriate given the ethical model that we see here. And I certainly won't claim to speak for the entire staff. My sense is that it would be appropriate that any conceivable reform that we're going to see in the near future is going to look something like that. And so that's a question for way down the road, if ever, in the American political conversation, not to say that it's not an important question. But that just looks to me where we are.

Are we willing to say to people, "Well, you have to carry at least catastrophic coverage?" Is that an illegitimate infringement on individual liberties? I think that's a kind of ethical question. And part of me is tempted to say, "Well, of course, we would be willing to do that. We do that with car insurance." But it's actually a pretty complicated thing. Health care is a lot more complicated than cars, and there's a lot of different ways that you could play out that analogy.

It looks to me like that's going to be the big question on the health care front in the next five years, say. And I don't have an answer to it. I just think that's it.

PROF. ELSHTAIN: Can I just do one quick policy?

CHAIRMAN PELLEGRINO: Thank you, Dr. Elshtain.

PROF. ELSHTAIN: Just a quick policy for one minute, one minute and no more.

CHAIRMAN PELLEGRINO: Okay, yes. Go ahead.

PROF. ELSHTAIN: And that is, I know that inside both campaigns at this point, whatever the candidates are saying, that the Massachusetts plan is being taken as a kind of template on which any possibly viable system could be based, so.

CHAIRMAN PELLEGRINO: This might be a time just to make a quick comment on how we function. I said when Gil asked me a question that I had not written this. I was trying to point out that the words were not mine, that I was not going to try to use those in defense.

But Dr. Davis and I participate with the staff on every one of these drafts, so that we're not distancing ourselves from them but indicating that each of us is an individual and have a somewhat different take on these very, very crucial and difficult problems. So I just wanted to the Council to know that.

We have a high degree of independence, but nonetheless when we present it to you it's something we have all looked at, and I don't distance myself from the analysis, but I look at it perhaps a little bit differently in terms of emphases, being human, and having different kinds of experiences.

Are there any other comments or questions? We have about five minutes more. Who is that? Dr. Foster?

DR. FOSTER: It's me, yes. When Janet and I were at breakfast this morning, both of us said – and she said it publicly, and I want to add my comment to it, too — that we thought this was a very good white paper, and I think the discussion this morning, exempting myself, has been very good, the questions that have been raised, and be helpful to you in the summaries there.

But I think this is maybe one of the best. I've read all these white papers for seven years and so forth. And I think this is probably the best and most succinct effort that we've ever put out, and I personally like — I don't know anything about ethics or philosophy and so on, but I like the good, the common good.

So really what I'm saying is I think this has been a really good job, and I want to compliment everybody's comments. I haven't heard a single comment around the room — I usually disagree with a lot of them, and I thought they were really good. So I'm complimenting my colleagues on the Council, but also this, what I think is –- and it will probably be stronger after this conversation today.

CHAIRMAN PELLEGRINO: Dr. Rowley?

DR. ROWLEY: Well, can I just chime in and say that I think that, moving this ahead, I realize that there is sort of a queue, if you will, of papers and you've described what the timeline is.

But it seems to me that in respects this has an urgency partly due to the political situation where it maybe should go to the head of the queue and be released because I think that the whole emphasis on health care is, "Well, look at how much it's costing and how much it's projected to rise. We can't possibly afford to do this," and I think that the emphasis on the ethical issues here and the moral issues are those that have been ignored and it should — that should be dissociated from how it's done and part of the failures in the past is how people intended to go about it, and that's where I took exception, if you will, to Paul's incremental change.

I think our system is so flawed that incremental change is not the way to do it. But then you get everybody opposed, which is the deadlock that we've been in for quite a long time. But I think this has urgency.

CHAIRMAN PELLEGRINO: Thank you, Janet. I think it's important for you to say that because we have all along wanted to emphasize the ethical issues that people might look at as an educational venture, obligation, that the Council has, certainly, not to get into the specific programs, but rather, "Here is a template of questions which we think have ethical importance," and they have not been raised very significantly or certainly widely. That's why we took this in the first place, and that surely has been the way we tried to look at it.

One finds it difficult, having made these kinds of statements, not to get sucked into how do we pay for it and how do we organize it? And the only thing I would submit is that, if we could get our view of what the ethical requirements are fairly straight, we can answer those questions better.

Dr. Carson, I thought the time was up, and I didn't give you a chance.

DR. CARSON: No problem. Janet has stated very eloquently what I was feeling about the urgency of this situation and the need to put it out there, you know, during this current presidential debate. But I just wanted to add one other issue.

And that is, if we are ever going to be talking about a system where anybody who needs medical care will receive it and we as a society have an obligation to provide it, then we need to understand that we will have a system in which no one will pay, because why would you pay if you're going to be taken care of anyway? That would be foolishness. So all paying would cease, and it would become a society of subsidized programs. We need to state that, I think.

CHAIRMAN PELLEGRINO: Ben, that's the next debate. I think we have come to the end of this session. We will reassemble at 10:45 to pick up another difficult question. Thank you.