MORTAL PERIL - Our Inalienable Right to Health Care?  by Richard A Epstein, Addison-Wesley Publishing Company, Inc., Reading, Mass, Menlo Park, Calif, New York, 1997, 503 pages, $27.50.

Review by Del Meyer, MD

When I saw this volume on the booksellers’ shelf, the subtitle sparked my interest. When I read on the inside cover that Professor Richard Epstein refutes the assumption that health care is a "right" that should be available to all Americans, I knew I had to read the entire book. When I discovered that Epstein provided the political and economic analysis to suggest that providing unregulated health care will, in the long run, guarantee greater access to quality medical care for more people, I had no choice but to bring it to the attention of my colleagues so that our patients might benefit from it. After reviewing over 50 books as the editor for Sacramento Medicine during the past four years, I appreciate being given the opportunity to submit this review of Mortal Peril, which will serve as my introduction as a contributor to Medical Sentinel.

Richard A Epstein, a distinguished professor of law at Chicago University, sets the theme with a scene from ABC’s "Nightline," in a telecast originating at Chicago University as part of the university’s centennial celebration on February 6, 1992. The topic for this town meeting was universal health care. Ted Koppel presided at the center table with five carefully chosen experts on health care. Behind him were two rows of high powered experts and politicians, ready to jump in to air their views. There was a total of five tiers of experts; some of whom were given a good chance to speak, and some which were strictly for show and barred from any speaking role. Epstein was in the fourth tier which was permitted to speak only if a staffer could persuade the central command unit they had something to contribute.

Nothing in the broadcast was left to chance, Epstein points out. Although there was a short dress rehearsal, once the show went live there was an unannounced video segment which featured the heartbreaking story of a young girl whose narrow escape from drowning left her in a permanent vegetative state. Her parents had already exhausted their million dollar health coverage and did not now know where to turn.

Epstein tried to persuade the staffer to allow him access to the microphone which was five feet away without success. The right reply to the parents, he wanted to assert, was that nothing at all should be done to keep their child alive at further or even public expense. The tragedy occurred with the near-drowning. All hope of recovery had past. A national health plan that supplied unlimited catastrophic coverage could not have averted this tragedy or have treated it any better. And to treat her any longer at taxpayers expense would only deny others minimal health care. Epstein uses this example to set the stage for Mortal Peril and to demonstrate how emotions get in the way of realistic and logical solutions to national health care.

Epstein explains the title chosen for this book, "Mortal Peril," is not a phrase intended to boost reader confidence in the current array of legal reforms to the practice of medicine. Quite the opposite, it invites caution about the hidden consequences of reform which can backfire against its stated objective. The subtitle, "Our inalienable right to health care," barely conceals the irony that the process initiated for public protection could be the source of medical peril.

Health care, and the issues of life and death, have never been the ideal targets for disinterested reflection. His review of the political agenda just during the Clinton years, confirms that the debate over health and policy continues to rank at the top of our overall social agenda. Implicit in the modern debates, both political and academic, is an agreement on ends and a disagreement on means. The protagonists of the debate all start from one grand assumption, sometimes tacit, sometimes explicit, that health care is a "right" that should be made available to all Americans. Lost in the shuffle is any serious consideration of some alternative conception of individual rights and responsibilities that, as a matter of first principle, denies the government any large or distinctive role in the health care arena. Epstein attempts in this book to fill this unoccupied space and to expand the debate over health care to cover ends as well as means. He develops the argument that conventional wisdom, accepted by most academic writers and by both political parties, is wrong insofar as it postulates large government solutions to the persistent problems in health care access and delivery.

Epstein spends two chapters on discussing positive entitlement rights and the obstacles to them. Contrary to prevailing popular belief, healthcare is a scarce or limited resource and universal coverage does not make it unlimited. He spends an entire chapter on the excesses of demanded care when others (e.g. the taxpayers) pay the cost. A person could first demand extensive care for conditions that others might perceive as futile, only to switch fields later on and demand the right to end his life by active means. An expensive exercise in futility we’ve all seen.

On the economic front, the argument for the right to health care is made on grounds of special problems of insurability, inequality, and gross maldistribution of health care resources requiring regulation. The regulation results in cross-subsidy from rich to poor or transfers wealth from healthy 30 year olds burdened with heavy taxes and the expenses of raising families, to their more affluent elders with clogged arteries who could have and should have taken better care of their own health. This shift is not a zero-sum game. Some fraction of taxes disappears in administrative overhead. Still more wealth disappears in excessive consumption and distorted incentives. Noble intentions quickly lead to an endless tangle of hidden subsidies, perverse incentives, and administrative nightmares which in the long run often backfire on their intended beneficiaries, if not in the first generation, then like social security, surely in the second and third. Government schemes are not unlike organized Ponzi operations that eventually go broke by using the capital of later contributors to satisfy the obligations to earlier plan participants.

The root cause of our social difficulty lies in the mistaken assumption that any well functioning health care system requires a major infusion of government inputs and control. This brings us to social organization and the proper "mix" of government control and private initiative. No one any longer defends government activities in the name of socialism, given its clear failure in Eastern Europe. But remnants keep creeping back into the debate by emphases on the "right to" and never the "freedom from." The protection of all these rights invests government at all levels with vast powers to tax, to regulate, and to hire and fire the very individuals whose rights it is duty-bound to protect. (For an excellent discussion on how socialism is being replaced by what is merely another more diluted form of collectivism that may be called "interventionism," see Professor Richard Ebeling’s lecture printed in the August 1997 issue of IMPRIMIS from Hillsdale College [800-437-2268] and in The Dangers of Socialized Medicine by Future of Freedom Foundation.)

Epstein states that his volume is not a quick fix for intractable problems. He suggests it is far easier to steer clear of trouble in the first place than to extricate a complex system from the pressures under which it labors. The pillars of our present policy on health care have been etched in stone for over 30 years. Although Medicare was established during the carefree days of Lyndon Johnson’s Great Society, it initially covered only hospitalization. It was the medical profession that expanded it to include physician services to senior citizens. The profession preferred the long-term injection of funds into its coffers to the hazy risk of long-term regulation, which came to roost some 15 years later. And now Medicare has been called the third rail of American politics: "touch it, and you die." The fact that cost performance has run 639% over cost projections, is typical of government programs once implemented, becoming untouchable politically. He says that martyrdom for some political figures may be the only viable alternative to the massive insolvency that looms on the horizon. There is no easy design for a transitional scheme to allow us to escape from our past sins. It is hard to find either the political or emotional willingness to bite the bullet on social security even though the only uncertainty in the debate is when the current system with its archaic accounting principles, will fall into bankruptcy. He also feels the offshoot Medicare, scheduled to go bust within a matter of five or so years, faces the same unhappy prospect of either gridlock or painful reform, He states the task of finding a solution may be hopeless, but there is some therapeutic value in pointing out where our previous policies have set the wrong headings so that others can use it as a compass to make small-course corrections.

The relevant issue is not the good intentions of government programs, but how to implement them. The state purports to guarantee its recipients minimum needs. But the illusion of security that it creates is subject to constraints that even the state cannot control, for once demands outstrip resources, the painful process of contraction must take place. Our common law system offers no guarantees that help will be forthcoming, but relies on the decentralized efforts of private groups to fill this vital function. It’s too easy to be misled by the rhetoric of rights when the issue is performance. What reason is there to believe that the current system will be able to deliver the health care that it promises? It is not sufficient to set the aspirations high; it is also necessary to reach the target. It is just at this level that the current structure is beginning to crumble.

Epstein concludes the first half of this volume with a detailed analysis of "Clinton Care: The Shipwreck." The second half of the book deals with "Self-determination and Choice." He has some unique ideas about "Drug Harvesting" and "Transplantation," developed from an economic analysis of the issues. He does the same with "Active Euthanasia" and "Physician Assisted Suicide" making a case of patient choice. Then in a third chapter on "Abuse and Overreacting" he outlines the Dutch practice which has been extended far beyond the terminally ill. He then states that it may well be that both of these practices, namely euthanasia and physician assisted suicide should remain illegal, if only because of the potential for abuse in people least able to fend for themselves.

Hornberger and Ebeling state in their book, The Dangers of Socialized Medicine referenced above, that the debate over national health care is a debate over the future of the United States. This is a debate that we as physicians should not and cannot avoid. This volume should be on every physicians desk and we should make time available to read a chapter or two on a regular basis. It is also important that we bring this volume to the attention of our colleagues in organized medicine.