Lamar W. Hankins : ‘Death Panel’ Hysteria Gets New Life

Cartoon by Steve Sack / Minneapolis Star-Tribune / GoComics.

Tales from the crypt, dept.
A new attack on end-of-life counseling

By Lamar W. Hankins / The Rag Blog / January 5, 2011

Charles Krauthammer, the right-wing political columnist, ended 2010 with an old, noxious story-line dressed up in new clothing. In a December 31 column, Krauthammer negates the value of end-of-life planning done with the assistance of physicians who might be paid by Medicare for their advice.

He loads his rhetorical shotgun with words and phrases intended to alarm, scare, and misdirect readers into ignoring the truth, including “notorious (provision),” “administrative fiat,” “nicely buried,” “another power grab,” “Obama bureaucrat.”

Krauthammer’s new screed opposes giving physicians permission to bill Medicare for providing end-of-life counseling to their Medicare patients. Recently-issued regulations would allow physicians to be reimbursed for counseling Medicare patients about end-of-life decision-making. Doctors counsel patients about managing their diabetes, managing their weight, managing their medicines, exercising, and dozens of other medical matters for which Medicare pays the bill.

It is only when it comes to deciding how to manage end-of-life care that America’s troglodytes believe that paying doctors for their time spent in counseling a patient is wrong.

Krauthammer suggests that counseling about end-of-life care is such “a possible first slippery step on the road to state-mandated late-life rationing that the Senate never included it in the final health-care law.” Of course, mandatory end-of-life rationing of health care has nothing whatever to do with end-of-life planning, as Krauthammer should know.

He is a graduate of the Harvard Medical School and was a trained psychiatrist before working for the Jimmy Carter administration as a psychiatric researcher. If anyone should understand the importance of end-of-life health care planning, Krauthammer should.

Seventeen years ago, my parents read a Dear Abby column in which she advocated the use of advance directives to make clear one’s wishes about end-of-life care. My mother was then a retired RN and my father a retired machinist. They thought that making one’s own choices about end-of-life care made a great deal of sense. Placing those choices in writing makes clear to one’s family, physicians, and health care agent (for those who have one) exactly what should be done if a person’s health deteriorates at the end of life and that person is unable to make clear his or her wishes because of mental disease or incapacity.

Of course, my parents were practical people, not political ideologues like Krauthammer. They did not know the history of end-of-life decision-making, but they had had enough experience with death and dying to know that making such decisions in advance, to the extent that is possible, is wise.

It helps remove a burden that often falls on family members. It allows people to decide their own views on the end of life. If they do not want to be maintained by medical regimens that do not afford meaningful life, they can say so. If they want every medical procedure that can be applied regardless of its efficacy, that too is their decision. My parents liked the idea that they could choose what sort of care they would receive at the end of life.

As it turned out, my mother did not want feeding tubes and other measures that would prolong the functioning of her organs without any meaningful ability to participate in life. Her wishes were carried out with the assistance of hospice. Her last few weeks were pain-free. She died at home, with care provided in those last weeks by family, friends, hospice, and other care-givers.

My mother’s choices may not be yours, but we all have the right to make those decisions for ourselves. Virtually every legislature in every state in the nation has accepted the importance of such end-of-life decision-making by adopting standard forms that can be used to make one’s end-of-life medical decisions known.

By law, these decisions must be honored. If a physician will not honor them, we all have the right to have a physician who will follow our wishes. And we all have the right to write out our own wishes without regard to the state forms, and to supplement the state forms with additional choices.

Directives about life-sustaining medical treatment were first proposed and promoted in this country in the 1930s, but did not begin to fully develop until the 1960s, and were boosted by the Karen Ann Quinlan case, decided by the New Jersey Supreme Court in 1976, when Quinlan’s parents were given the right to make end-of-life medical decisions for her since she had no written directives.

The Nancy Cruzan case, decided by the U.S. Supreme Court in 1990, made clearer the law on end-of-life care, recognizing important rights. Cruzan, age 25, was injured in a car accident in Missouri and drifted into a persistent vegetative state. She was provided artificial nutrition and fluids through a gastrostomy tube (commonly called a feeding tube).

After four and a half years, her parents sought to have the tube removed through a court order. After a hearing and an appeal, the case was heard by the U.S. Supreme Court, which held that in the absence of an advance directive, a person’s wishes about medical treatment, including receiving artificial nutrition and fluids, must be proved by “clear and convincing evidence.”

The court recognized a constitutional right of an individual to make decisions about life-sustaining medical treatment and held that that right did not end if the person became incompetent.

After another court hearing in Missouri, that court found that there was “clear and convincing evidence” that Nancy Cruzan would not want to be fed permanently through a gastrostomy tube. The tube was removed, and Nancy Cruzan died 12 days later, nine years after her accident.

The Cruzan decisions predated by 15 years the death of Terry Schiavo, the Florida woman who was maintained by a “feeding” tube from 1990 until her death in 2005, after the tube was removed, yet ideologues like Krauthammer tried to make the Schiavo tragedy into something it never was. It was a case about what one person’s end-of-life decisions were. Now, Krauthammer is trying to convince us that there is something sinister in paying doctors to give counseling and advice to their patients as they try to make their own end-of-life decisions.

The Quinlan, Cruzan, and Schiavo rulings, along with others made by courts all over the country, confirm that we all have the constitutional right to decide the kind of health-care treatment we want before we need it, and to appoint a surrogate to make health-care decisions for us if we become incapable of making them ourselves. In the absence of such written directions, courts will direct these medical decisions as best they can.

While all three cases clarified the law on end-of-life care, they also illustrate the tragedy of not having end-of-life medical care plans, no matter one’s age. Quinlan was 21 when she experienced the medical emergency that left her in a persistent vegetative state; Cruzan, as noted above, was 25 when injured; Schiavo was 26 when she experienced cardiac arrest which led to massive brain damage.

Most people would not want to spend years in a persistent vegetative state like these three young women did, or suffer for years from other conditions that make life impossible to enjoy and participate in when all medical treatments are futile to restore them to functioning human beings. But whatever your feelings about these matters, advance directives give all mentally competent adults a way to make their views known about these medical issues before they confront a serious medical problem. Such decisions are in the control of each individual who uses advance directives.

In “Perspectives on Death and Dying,” authors Gere Fulton and Eileen Metress explain the importance of advance directives: “First, they help ensure that your wishes concerning treatment options will be respected. Second, they protect your family members, health care professionals, and others from the stress and potential conflict of making critical decisions without sufficient information concerning your wishes if you are incompetent.”

The federal Patient Self-Determination Act was signed into law in 1990 by President George H. W. Bush. It requires all health care facilities and programs serving Medicare and Medicaid patients to establish written policies and procedures to determine their patients’ wishes about end-of-life care and to make sure these wishes are honored.

Such facilities and programs must also implement ways to educate their staff and community about advance directives. This is why most hospital patients are asked if they have advance directives when they enter the hospital.

It would be unreasonable to expect doctors to provide medical advice and counseling about the use of these forms without being paid for their time. It is a measure of the bankruptcy of our political system that it has taken 20 years since the inception of the Patient Self-Determination Act to implement a rational system for providing medical advice and counseling about such matters. Though the system recently promulgated is limited to Medicare recipients, as noted earlier, all people, no matter their age, should do end-of-life planning.

While Krauthammer’s attack was aimed at President Obama for deciding to pay physicians for rendering a valuable medical service through the Medicare program, it is irresponsible, demonstrates a disregard for the welfare of Medicare recipients, and has the potential for causing great harm. His musings are a complete fabrication and serve to scare the elderly, the disabled, and the sick, as well as their family members.

Regulations that promote counseling about end-of-life care are supported by the American Medical Association, the National Hospice and Palliative Care Organization, Consumers Union (the publisher of Consumer Reports) and the AARP, among other widely respected organizations.

[Lamar W. Hankins, a former San Marcos, Texas, city attorney, is also a columnist for the San Marcos Mercury. This article © Freethought San Marcos, Lamar W. Hankins.]

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3 Responses to Lamar W. Hankins : ‘Death Panel’ Hysteria Gets New Life

  1. Lamar Hankins says:

    UPDATE: According to the AP, on Wednesday, January 5, 2011: “Reversing a potentially controversial decision, the Obama administration will drop references to end-of-life counseling from the ground rules for Medicare’s new annual checkup, a White House official said Wednesday.”

  2. Anonymous says:

    Remember the real, old, established country club death panels? The doctors who charge $20,000 to $50,000 for a life saving operation and the hospitals who tack on another $30,000 to $50,000 and then say “Pay up front or die.”

  3. Anonymous says:

    ANYONE who has gone thru the dying/death process with a family member KNOWS the need for advance directives.. Yet a far too high number of folks “Don’t Want To Talk About It”.. I could NOT get my Mom to discuss basic funeral arrangements after my Dad died at age fifty. When my Mom’s “In Remission” Breast Cancer metastasized into an inoperable/terminal 17mm Brain Tumor, she did convey to me she wanted a “DNR”.. Three simple words, “Do Not Resuscitate” that makes everything black and white clear.. Right? WRONG! “Allowing” one’s self to “Die With Dignity” is 99% “Gray” and one percent “black & white”.. Too Damn Many minuscule decisions that MUST be made on a daily basis.. I agonized over each one for the seventy-eight days (and a quarter million dollars) to took for my Mom to shuck-off her “Mortal Coil”.. I had to deal with well-intentioned, idiot RN’s who didn’t believe in DNR’s and who went behind my back to start “comfort measures” (as one RN called it) that prolonged her life (like giving insulin when her pancreas shut-down, etc.).. These measures, once started, CANNOT be rescinded!
    It is a sad state of affairs that the Repugnacan’ts, who campaign on “Less Government”, want to run everyone’s life down to the smallest detail.. They bitch about non-existent “Death Panels” in President Obama’s Health Care Bill, yet they TOTALLY IGNORE the REAL Death Panel, in the form of Arizona’s Chief Executioner, Jan Brewer, who has “Condemned To Death” low income people NEEDING organ transplants by denying these folks life extending operations by cutting that state’s Federally Funded Medicare Program’s budget. Oh, Ms. Brewer didn’t “council” the two people who she has murdered, so far, this year! Is this fucked-up, or what?

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