While constitutional, does the Affordable Care Act have merit?

President Obama enjoyed a towering victory that I feel leaves the GOP reeling, although they are spinning the Supreme Court’s validation of Obamacare as a great gust of wind at their backs. While I would not have expected a different response from them, I fear that there is a developing wind that may blow them away in November. I offer this analysis as a tepid Romney supporter who will be voting more against Obama than I will be voting to support Romney.

The phrase Obamacare is peppered throughout my blog. I was recently chastised by an unabashed whale-saving tree hugger that I should abandon this derisive term which detracts from my otherwise unvarnished objectivity. On the evening that the Supreme Court’s decision was announced, I was watching CNN and its pontificating pundits. Various panelists were spewing forth verbal pabulum telling us benighted listeners what we were supposed to think. John King, the moderator, and many members of the spin squad all used the term Obamacare freely and repeatedly. If CNN, the apotheosis of journalistic excellence, permits this term to be aired, then surely the Whistleblower is entitled to a free pass on this. For those who seek validation of why CNN is the “most trusted name in news,” simply zap this link for amusement. Because I am unfailingly fair and balanced, I disclose that Fox News was also eating crow.

We now know that Obamacare is constitutional which offers no support for the merits of the Affordable Care Act. While there are elements of the plan that I do support, I am deeply skeptical that the plan will control costs and increase medical quality. My fear is that medical costs will continue to escalate and that medical quality will suffer as physicians and hospitals compete in the Pay for Performance Follies where medical documentation and check mark medicine, not medical quality, is rewarded. Is the price for increased access to medical care for the uninsured medical mediocrity for all?

Here are just a few aspects of medical practice that won’t be counted but really counts.

  • Can the physician take an accurate medical history?
  • Can the physician skillfully examine patients? I’m a gastroenterologist. I’m supposed to know how to palpate the liver and perform other diagnostic tasks with my hands, eyes and ears. These skills will never be assessed by the government or insurance companies. Does that  that they don’t matter?
  • Does the physician know when a diagnostic test is not needed? (Tell me how you would test for this?)
  • Does a physician know when an incidental ‘abnormality’ on a CAT scan can be ignored?
  • Does a physician know how to deliver bad news to patients?
  • Does a physician know when watchful waiting is the right prescription?
  • Does the physician know how to manage medical issues on the phone at night when he does not know the patient? Which of them should be sent to the emergency room?  Why not send them all just to be safe?
  • Does the physician know when to consult a specialist? Is sending every patient with chest pain to a cardiologist good medicine even if patients and specialists encourage this practice.
  • Is this physician compassionate?

A majority of Americans oppose Obamacare in whole or in part. This opposition has developed even before the plan’s bitter medicine has been swallowed. Can the administration continue to spin this by suggesting that the public doesn’t yet grasp the plan?  Are we really that dumb?

Chief Justice John Roberts has pulverized the liberal argument that the Court is an arm of the Republican Party, as was bitterly alleged in Bush v Gore in 2000. While public support of the Court has been gradually ebbing, I have not personally believed that the justices pass their decisions through a political prism. Of course, they have different judicial philosophies, which is quite different from acting as a political partisan.

Not only did the Chief Justice validate Obamacare, but he did so by joining the Court’s 4 liberal members to do so. I would have never predicted this and I doubt that many readers what have either. Chief Justice Roberts has the long view, and sees the Affordable Care Act as a speed bump. His overriding priority is to protect and defend the integrity of his institution. I feel that he deserves praise and respect for his decision, even though I was hoping for a different outcome. Had he joined with the Court’s conservative members and overturned Obamacare, he would have been lambasted by the political left. Why aren’t they praising him now? Wouldn’t such a response from them be “fair and balanced”?

Fairness means applying the same standard in all circumstances.  Reminds me of the the iconic four word phrase carved into the facade of the Supreme Court.  Equal Justice Under Law.

Michael Kirsch is a gastroenterologist who blogs at MD Whistleblower.

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  • civisisus

    why is “Dr” Kirsch’s fact & information-free garbage even posted? Clearly neither MedPage nor Kevin Pho have any regard for their reputations.

    • FCinNH

      Ah, the classic progressive response. Never, ever even acknowledge the issues the other side brings up. Just denigrate demonize, and ignore.

      • Molly_Rn

        Actually what you said Never, ever even acknowledge the issues the other side brings up. Just denigrate demonize, and ignore. is out of the Republican play book. You don’t like facts and everything is political. Anything to get that black President out of there. I really is all about race and nothing else. You just can’t get away with the N word any more.

        • jahla wala

          Molly_Rn is a nigger

          • Molly_Rn

            Thanks for the compliment. It is laughable.

      • Molly_Rn

        It really is all about race and nothing else. (typo)

  • AuthenticBioethics

    Hang in there Dr. Kirsch. I’m sure “partisan” is not the worst thing you’ve been called by people whose only way to engage you is by ridiculing and bullying you into submission. There’s so much posted here that is partisan the other way, that it’s refreshing to see another voice.

    I happen to agree with Roberts’ reasoning. The implementation of a gigantic, costly, and intrusive socialistic program is completely within the scope of the other two branches of government, and the if the people do not like the government doing that, they should speak. I also agree with him that Congress cannot exploit the Commerce Clause to make the people do whatever it likes.
    What galls me about Obamacare, though, is that it is a program invented by people who do not understand the thing they are trying to fix, let alone what is broken about it. Politicians seeking to pass laws that will give their constituents a vested interest in voting for them again and again — because to vote against them the next time is to vote against their own “entitlements” — are not the people to be trying to fix anything like health care.
    There’s a lot to be said (to third-party payers and tax collectors) about letting people keep their money and take care of themselves, which they can do way better than politicians can.

  • http://twitter.com/OurH_careSucks John Lynch

    Well, at least you disclose your strong political bias from the git. And your admiration for Chief Justice Roberts’ decision is laudable given your own preference for the opposite outcome (although if my Twitter feed is representative, he HAS received much by way of kudos from the political left – and the opposite from your brethren on the right, who are mostly less magnanimous than you).

    As to form rather than substance, your argument would be more persuasive if it were less littered with ideological buzzwords…”whale saving tree hugger”, “pontificating pundits” (I don’t watch CNN, but I’d say Fox has its share of these, too), and my favorite, “spewing forth verbal pabulum”. Really? Are you going for some sort of award for triteness?

    Now to the meat of what you have to say. Your position would be far more defensible if your bullet point list – which I’m sure applies to your practice of medicine – actually represented the state of medical practice in America today. It does not – at least according to the Agency for Healthcare Research & Quality (I know, another government-sponsored fraud, I’m sure. Obviously up to no good).

    In short, we already have plenty of mediocrity in our medical care -and often much worse (think of the unneeded stent procedures, for example, that Mayo Clinic researchers found CAUSE heart attacks in 5-30% of patients).

    Virtually every item on your list is the opposite of mainstream medical practice today. The most egregious of these is probably the knee-jerk referral of even slightly complicated cases to specialists – and for all the wrong reasons. This “passing the buck”, in turn, triggers a chain of events that starts with unneeded tests and procedures (from which they generally profit financially) and all the subsequent “unintended consequences” that are driving us into bankruptcy.

    You’re right about one thing, though. Our medical spending will continue to spiral out of control – mostly because your bullet list will continue to be broadly ignored in actual medical practice. And even more aggressive cost-shifting will leave patients responsible for more of their skyrocketing medical bills – and more of them filing for bankruptcy, with or without the ACA.

    But what’s the alternative – Medicare vouchers that will force older patients to buy expensive supplemental insurance or be responsible for unlimited medical bills personally? Don’t you think your bad debt write-offs are likely to soar under that scenario?

    Obamacare – and I, too, have no problem with the term (nor does he, apparently) – is intended, for all its flaws, to correct these failings (i.e., your bullet list as it applies in reality and not in isolated exceptions). Your post could just as well have been written 45 years ago in response to that other socialist boondoggle – Medicare. Indeed, it probably was.

    Both reflect what I think is really going on here, which is a juvenile cultural bias in American medicine that simply doesn’t like to be told what to do – even when it may be the RIGHT thing to do for patients. It’s not only immature, it’s unprofessional.

    We patients deserve better.

    • AuthenticBioethics

      When you ask, “But what’s the alternative?” why does the alternative have to be a program that puts the government into the healthcare system? Any “solution” that puts makes the government a major player in any industry is really not a solution, with rare exception. The space industry is one. But if you want to apply the model of NASA and its influence on aviation, computer, defense, and a host of other technologies to healthcare, I’d be interested. Medicare vouchers and Obamacare do not seem to fit the bill, though.

    • southerndoc1

      “Virtually every item on your list is the opposite of mainstream medical practice today.”
      You’ve completely missed Dr. Kirsch’s point.
      If we continue to move towards paying docs based on meaningless “quality standards,” the important, but unmeasurable, bullet points will be even further ignored and devalued. It’s No Patient Left Behind for physicians: we’ll be forced to doctor for the “test,” not for creative, analytic health care.
      But we can’t blame this on Obamacare: CMS is just starting to copy what private insurers have been doing for decades.

  • Andrew Garland

    The government is attractive to people who believe they can do everything better than the people in every profession. Obama has stated that he is better at everthing than the people around him. All he lacks is enough time to do it all. Those people, especially academicians, believe that being a doctor is only a matter of memorizing the right checklist. So why not prescribe from on high and automate?

    The Solution Is Simple: Dunning-Kruger Effect

    Incompetent individuals tend to overestimate their own level of skill and do not recognize their true inadequacy. They also fail to recognize genuine skill in others.

    The unskilled overrate their own ability as above average. The highly-skilled underrate their abilities, often below the self-rating of the unskilled.

    Actual competence may weaken self-confidence, because competent individuals wrongly assume that others are also competent. The incompetent misjudge themselves, whereas the highly competent misjudge others.

    Many intellectuals believe that there is no job (oil company CEO, football coach, running the local post office) that they cannot do as well or better than the person currently in the role, should they ever exert the effort to do so.

    Academics outside the hard sciences succeed by manipulating an entirely artificial world of symbols and constructs. They think that all complexity in the world is created, like their own studies. They don’t create anything other than words, so they never have to confront their lack of real knowledge.

    So, we would be much better off if we elected people who doubted their abilities and insights, so that they would hesitate to interfere in people’s lives and take their money. It is a disaster to empower people who regard themselves as the smartest person they have ever met.

    Bertrand Russell: “The stupid are cocksure, and the intelligent are full of doubt.” “Most people would rather die than think. In fact, they do so.”

  • http://primarycarenext.blogspot.com/ Keegan Duchicela, MD

    Regardless of whether you agree with the political slant of the post – the bulletpoint list is pretty dead on.

    When you ask a doctor what makes a good doctor or what kind of doctor you’d want your loved one to see, they’ll likely describe someone who can deftly address all these aspects of medical care. These are the aspects of care we should be striving to improve – but they’re all poorly quantifiable (how the heck can you measure and scale ‘compassion’?!). At best, they are reflections of a physician’s professionalism.

    I know the writers of the ACA wanted to improve patient care, but I feel like they came up with the measures for P4P just because they had to have something – anything – they can quantify. Never mind they aren’t great measures of “quality”. I fear that we will focus on the P4P measures at the expense of other less quantifiable but equally important aspects of care that don’t happen to make us money.

  • mbenioff

    You say: “A majority of Americans oppose Obamacare in whole or in part. This opposition has developed even before the plan’s bitter medicine has been swallowed. Can the administration continue to spin this by suggesting that the public doesn’t yet grasp the plan? Are we really that dumb?”

    Well, maybe we–or at least those of us who get our news from Fox–are that dumb. According to the Kaiser Family Foundation’s polls, most Americans support most of the provisions of the ACA: “One of the consistent contradictions in public opinion on the ACA is this: while the law as a whole has never gained majority support, its component parts—from the relatively narrow to the core and comprehensive—have been consistently popular over the past two years, with the glaring exception of the individual mandate. And many provisions of the law are popular even among Republicans. At the top of the list are tax credits to small businesses that offer coverage, as well as the consumer‐friendly requirement that plans include easy‐to‐understand summaries of their benefits and costs, both of which are popular with at least three in four Democrats, Republicans and independents. Other provisions with widespread majority support include subsidies for individuals to purchase insurance, the ability of consumers to appeal their health plan’s decisions, the expansion of Medicaid, the guaranteed issue provision, and the elimination of cost‐sharing for preventive services, each supported by roughly seven in ten overall. ” The entire poll (PDF) is here: http://www.kff.org/kaiserpolls/upload/8285-F.pdf and I recommend you read it before promulgating more inaccuracies about what Americans think of the ACA.

    As far as your personal complaints about the ACA go, what John Lynch said.

    So, it’s not “spin” to say that Americans oppose the ACA because they don’t understand what’s in it; it’s exactly the truth. And (this is not in the Kaiser poll, of course, but it’s pretty obvious) they oppose it because the Republican party and its propaganda outlet Fox News have been lying about what it contains and what it will do since the moment it passed.

    • AuthenticBioethics

      Some of us oppose it because, in principle, it’s not the federal government’s job to worry about individual people’s healthcare. Kaiser is not unbiased, by the way. They stand to make big money on account of the ACA, so it’s in their interest to promote it. And granting that in it’s 900+ plus pages there are a dozen or so worthwhile ideas, that doesn’t mean people who oppose it overall are brainwashed tools of the Republican party, any more than its advocates are brainwashed tools of the Democrats. I personally believe the legislation is horrific and will only compound the problems it pretends to solve, and frankly I’m not reading that at Fox News. Apparently, your reliable Kaiser has also noted that Obamacare has already caused 50% of the premium increase last year. http://cnsnews.com/news/article/obamacare-has-increased-cost-health-insurance-says-kaiser-foundation. See the report here: ehbs.kff.org/pdf/8226.pdf. That’s reason enough to oppose it, and it doesn’t matter if it has good provisions or bad ones. And where, oh where!, did those premium increases go? To the insurance companies!! What a wonderful piece of legislation this is, a tax that funds insurance companies! What brilliant, Ivy-leaguer came up with that one? Oh. Right. Never mind.

      Look, I admit I have gone a little over the top, but only to make a point: If supporters of the ACA want other people to get behind it, then they should curb the ridicule and bullying and name calling and self-righteous, elitist rhetoric, because people are gonna throw it back in their faces and oppose the ACA on account of the kind of people who support it.

  • Janelle Wiley

    speaking of problems with the PPAHCA, I’ve heard that it contains a provision to proscribe the use of more than one medication within the same drug class. I can think of many examples where this would have a dangerous effect.

    However I cannot find any articles or anything published. I got my information second-hand from someone who had it from a disease organization. I find them credible, but I’d also like to see some published information–especially since this seems like important information doctors would need to know so they can lobby to have it fixed.

    This would be illustrative of the fallacy of bureaucrats trying to practice medicine. (I doubt that this provision would last, but it serves to illustrate many detrimental aspects of the law besides the dozen well-publicised good things that it does, like remove the ‘permanently uninsurable’ problem which many states have had).

    • rswmd

      “I’ve heard that it contains a provision to proscribe the use of more than one medication within the same drug class”

      That’s a lie. Stop spreading it.

  • Kristina Leitz

    Why can’t we put the blame to where it really belongs…the health
    insurance companies. Both doctors and patients are losers when it comes
    to health insurance. Patients because unless you are in perfect
    health, they will either pay a high premium and God forbid they have any
    catastrophic illness like cancer they may find themselves kicked off in
    spite of paying high premiums all along. Doctors because insurance
    companies will try to fight you tooth and nail to do a medical necessary
    test because the insurance companies want to keep all the money for
    themselves.

    Obama is more than willing to work with the Congress to make amendments
    of this law. Taking so much time trying to appeal the law as a whole is
    nothing but a waste of time. When I originally registered to vote, I
    registered as a Republican, but nothing makes me feel more sick than
    watching the GOP today. I’m not a democrat, but an independent
    definitely leaning to voting for Obama again. At least I know what I
    get with him…Romney and the GOP of today scare the heck out of me.

    • AuthenticBioethics

      I am not sure that healthcare is where the federal government of this country belongs. In that sense, I will continue to oppose Obama and his care. That whole mentality that the government should be intrusively “solving” our problems so that we become dependent afraid to vote them out of office so we can keep those “solutions”– that to me is way scarier to me than the prospects of wholesale repeal of the ACA before it causes that dependency.

      I totally agree with you, however, that the insurance companies are the problem. So, if they’re the problem, why is more of the same — padding their profits — the solution? What happens to the ACA when universal insurance profit padding, I mean coverage, is addressed? Not much left of it, if you ask me.

      I would MUCH rather have the law state that what my employer would normally pay for my health insurance went into an account that I could do what I please with, in terms of healthcare. Get insurance — IF I wanted to. Or not, and just pay my way. And if I am self-employed or whatever, then I have to set aside a certain percentage of my income for healthcare. And if I am poor/unemployed/etc., then perhaps the government can step in, and we as a society could afford it. My interactions with my physicians and insurance companies would be directly through me, and not through some go-between, and I can make my own decisions without interference. But this whole idea of everyone required by law to pay health insurance companies is just a) a boon for the insurance companies; and b) a way of making people dependent on politicians who offer and preserve such programs; and c) very costly to the rest of us.

      I will never support our current president and congress members who pushed this “solution” (admittedly with some worthwhile provisions) on us.

    • Molly_Rn

      Health insurance companies take about 30% off the top for their cut and then spend your money on figuring out how to deny you the coverage you paid for.

  • Molly_Rn

    Yes, we are really that dumb.

  • Molly_Rn

    Unfortunately your principles would lead to many people dying. You obviously either have workplace healthcare insurance or lots of money and I bet you love Romney.

    • AuthenticBioethics

      Hi, Molly_Rn Mindreader! Been a while. Nice to see you too! Unfortunately your principles would make everyone dependent on the government and the politicians who support those programs. As far as I am concerned, being dependent on the government would be a fate worse than death, and that’s a founding principle of our nation. Would that more of us felt the same way today.

  • civisisus

    michael kirsch demonstrates yet again what an insufferable, clueless bore he is. How much more irrelevant to the conversation will kevinmd become giving “airtime” to his ilk? This is about the only question left to ponder here. “Are we really that dumb?”, indeed.

    Listen up, dumbasses. Contrary to the doctor’s strained account, ACA, like most such legislation, is and was foremost about access, with lures to members of clinical communities (that’s you, Dr. Kirsch) to do care better someday, ideally sooner than later. That Kirsch is shocked, shocked that ACA doesn’t revolutionize health care is the vilest sort of disingenuous twaddle, as is his binary reading of Roberts’ deeply cynical decision, one almost perfectly representative of contemporary “legal reasoning”.