Rationing or Reform: Rationing or Reform: Overcoming the Perils of Overcoming the Perils of Health Care Today and Health Care Today and

TomorrowTomorrow

Rationing or Reform: Rationing or Reform: Overcoming the Perils of Overcoming the Perils of Health Care Today and Health Care Today and

TomorrowTomorrowNASBA Center for the Public TrustNASBA Center for the Public Trust

Lipscomb UniversityLipscomb UniversityInstitute for Conflict ManagementInstitute for Conflict Management

Tuesday, June 23, 2009 Tuesday, June 23, 2009 NashvilleNashville

Justice: Bedside Clinical Justice: Bedside Clinical Ethics’ Next Great Ethics’ Next Great

ChallengeChallenge

Justice: Bedside Clinical Justice: Bedside Clinical Ethics’ Next Great Ethics’ Next Great

ChallengeChallenge

Bruce D. White, Bruce D. White, DO, JDDO, JDClinical Professor of Pediatrics, University of ArizonaClinical Professor of Pediatrics, University of ArizonaClinical Professor of Pharmacy Practice and Science, Clinical Professor of Pharmacy Practice and Science,

University of ArizonaUniversity of ArizonaChairman, Department of PediatricsChairman, Department of Pediatrics

St. Joseph’s Hospital and Medical St. Joseph’s Hospital and Medical CenterCenter

Phoenix, Arizona 85013Phoenix, Arizona 85013

The Focus of Clinical Ethics The Focus of Clinical Ethics ……

AutonomyAutonomy

BeneficenceBeneficence

NonmaleficenceNonmaleficence

JusticeJustice

—Beauchamp TL, Childress JR. Principles of Biomedical Ethics, 6th

ed. New York: Oxford University Press, 2008.

““The teaching of medical ethics has long The teaching of medical ethics has long focused on a 4-pillar foundation of the focused on a 4-pillar foundation of the profession: beneficence (provide good profession: beneficence (provide good care), nonmaleficence (do no harm), care), nonmaleficence (do no harm),

respect for autonomy, and justice. It would respect for autonomy, and justice. It would appear that in the United States, however, appear that in the United States, however, attention to these 4 principles has become attention to these 4 principles has become unbalanced. Currently, far less emphasis is unbalanced. Currently, far less emphasis is

given to considerations of justice given to considerations of justice (especially for society as a whole), relative (especially for society as a whole), relative

to the other ethical principles.to the other ethical principles.—Kirch DG, Vernon DJ. The ethical foundation of American Medicine: in

search of social justice. [Commentaries.] JAMA. 2009; 301:1482-1484.

U.S. Hospitals Transferring U.S. Hospitals Transferring Ill Immigrants Back to Their Ill Immigrants Back to Their Home Countries: Another Home Countries: Another “Dumping” Dilemma? Is “Dumping” Dilemma? Is There a “Just” Public There a “Just” Public

Policy Resolution?Policy Resolution?

U.S. Hospitals Transferring U.S. Hospitals Transferring Ill Immigrants Back to Their Ill Immigrants Back to Their Home Countries: Another Home Countries: Another “Dumping” Dilemma? Is “Dumping” Dilemma? Is There a “Just” Public There a “Just” Public

Policy Resolution?Policy Resolution?

The New York TimesThe New York Times

Janofsky M. Burden grows for Southwest Janofsky M. Burden grows for Southwest hospitals. 2003;Apr 4.hospitals. 2003;Apr 4.

Sontag D. Immigrants facing deportation Sontag D. Immigrants facing deportation by U.S. hospitals. 2008;Aug 3.by U.S. hospitals. 2008;Aug 3.

Berger J. For immigrants, checking to Berger J. For immigrants, checking to see if the doctor is in. 2008;Oct 12.see if the doctor is in. 2008;Oct 12.

Sontag D. Getting tough: deported in a Sontag D. Getting tough: deported in a coma, saved back in the U.S. 2008;Nov coma, saved back in the U.S. 2008;Nov 9.9.

The New York TimesThe New York Times““The American Hospital Association estimated that in The American Hospital Association estimated that in

2000, the 24 southernmost counties from Texas to 2000, the 24 southernmost counties from Texas to California accrued $862 million in unpaid medical care, California accrued $862 million in unpaid medical care,

a quarter of which was directly attributable to illegal a quarter of which was directly attributable to illegal immigrants.”immigrants.”

““A study for the Maricopa County [Arizona] Board of A study for the Maricopa County [Arizona] Board of Supervisors found that in 2001, the five biggest health Supervisors found that in 2001, the five biggest health care providers in the county amassed $318 million in care providers in the county amassed $318 million in

uncompensated care, 23 percent of it by Maricopa uncompensated care, 23 percent of it by Maricopa Medical.”Medical.”

——Janofsky M. Burden grows for Janofsky M. Burden grows for Southwest hospitals. 2003;Apr 4.Southwest hospitals. 2003;Apr 4.

The New York TimesThe New York Times““The mounting pressures are causing hospital officials The mounting pressures are causing hospital officials

to re-evaluate the services they provide beyond to re-evaluate the services they provide beyond emergency treatment. For example, he [Dr. Paul E. emergency treatment. For example, he [Dr. Paul E.

Stander, medical director at Good Samaritan Regional Stander, medical director at Good Samaritan Regional Medical Center, Phoenix] said, doctors could stabilize a Medical Center, Phoenix] said, doctors could stabilize a

patient with symptoms of gallstones, but not patient with symptoms of gallstones, but not necessarily remove them. ‘It’s an uneasy situation for necessarily remove them. ‘It’s an uneasy situation for most of us to be in,’ Dr. Stander said. ‘As health care most of us to be in,’ Dr. Stander said. ‘As health care professionals, we usually desire to do whatever we professionals, we usually desire to do whatever we

can. But it’s clear we cannot be the provider of choice can. But it’s clear we cannot be the provider of choice for all northern Mexico. It’s an impossible burden for for all northern Mexico. It’s an impossible burden for

us to take on.’”us to take on.’”

——Janofsky M. Burden grows for Janofsky M. Burden grows for Southwest hospitals. 2003;Apr 4. Southwest hospitals. 2003;Apr 4.

Bruce Patsner, MD, JDBruce Patsner, MD, JDResearch Professor of Law, Health Law and Policy Research Professor of Law, Health Law and Policy

Institute, University of HoustonInstitute, University of Houston

““If one were searching the U.S. health law arena for If one were searching the U.S. health law arena for a new, controversial battlefront in the ongoing a new, controversial battlefront in the ongoing

conflict over caring for the uninsured, controlling conflict over caring for the uninsured, controlling runaway health care costs, and limiting access to runaway health care costs, and limiting access to

unlimited care under federal and state entitlement unlimited care under federal and state entitlement programs, it would be more difficult to find a programs, it would be more difficult to find a situation more complicated and fraught with situation more complicated and fraught with

negative social intonation than that of repatriation negative social intonation than that of repatriation of injured, undocumented immigrants back to their of injured, undocumented immigrants back to their

country of origin by U.S. hospitals.”country of origin by U.S. hospitals.”

——www.law.uh.edu/healthlaw/perspectives/ www.law.uh.edu/healthlaw/perspectives/ 2008/(BP)%20deport.pdf 2008/(BP)%20deport.pdf

Key Definitions and Key Definitions and ConceptsConcepts

Illegal v. legal uninsured immigrantIllegal v. legal uninsured immigrant

Transfer v. repatriation v. deportationTransfer v. repatriation v. deportation

Voluntary v. involuntary repatriationVoluntary v. involuntary repatriation

““Dumping” v. transferDumping” v. transfer

EMTALA (Emergency Medical Treatment EMTALA (Emergency Medical Treatment and Active Labor Act, in the Consolidated and Active Labor Act, in the Consolidated Omnibus Reconciliation Act of 1986) and Omnibus Reconciliation Act of 1986) and “screening examination,” “stabilize,” and “screening examination,” “stabilize,” and “transfer”“transfer”

Justice , fairness, Justice , fairness, and and rationingrationing

JusticeJusticen. n. 1.1. The quality of being just, fairness. The quality of being just, fairness. 2.a. 2.a. The principle of moral rightness, equity. The principle of moral rightness, equity. b.b. Conformity to moral rightness in action or Conformity to moral rightness in action or

attitude; righteousness. attitude; righteousness. 3.a.3.a. The upholding of The upholding of what is just, especially fair treatment and due what is just, especially fair treatment and due

reward in accordance with honor, standards, or reward in accordance with honor, standards, or law. law. b.b. Law.Law. The administration and procedure The administration and procedure of law. of law. 4. 4. Conformity to truth, fact, or sound Conformity to truth, fact, or sound

reason: reason: The overcharged customer was angry, The overcharged customer was angry, and with justice. and with justice. … [Middle English, from Old … [Middle English, from Old French, from Latin, French, from Latin, iustitia,iustitia, from from iustus,iustus, just.] just.]

FairFairn. n. … … 6.6. a.a. marked by impartiality and marked by impartiality and

honesty : free from self-interest, honesty : free from self-interest, prejudice, or favoritism <a very prejudice, or favoritism <a very fairfair

person to do business with> person to do business with> b.b. (1) (1) : : conforming with the established rules : conforming with the established rules : ALLOWEDALLOWED (2)(2) : consonant with merit or : consonant with merit or

importance : importance : DUEDUE <a <a fairfair share> share> c.c. : : open to legitimate pursuit, attack, or open to legitimate pursuit, attack, or

ridicule <ridicule <fairfair game> … [Middle English game> … [Middle English fagerfager, fair, from Old English , fair, from Old English fagerfager; akin ; akin to Old High German to Old High German fagerfager beautiful.] beautiful.]

FairFairsynonyms synonyms FAIRFAIR, , JUSTJUST, , EQUITABLEEQUITABLE, , IMPARTIALIMPARTIAL, ,

UNBIASEDUNBIASED, , DISPASSIONATEDISPASSIONATE, , OBJECTIVEOBJECTIVE mean mean free from favor toward either or any side FAIR free from favor toward either or any side FAIR implies an elimination of one’s own feelings, implies an elimination of one’s own feelings,

prejudices, and desires so as to achieve a proper prejudices, and desires so as to achieve a proper balance of conflicting interests <a balance of conflicting interests <a fairfair decision>, decision>, JUST implies an exact following of a standard of JUST implies an exact following of a standard of what is right and proper <a what is right and proper <a justjust settlement of settlement of territorial claims>, EQUITABLE implies a less territorial claims>, EQUITABLE implies a less

rigorous standard than JUST and usually suggests rigorous standard than JUST and usually suggests equal treatment of all concerned <the equal treatment of all concerned <the equitableequitable

distribution of property> …distribution of property> …

RationRationn. n. 1.1. A fixed portion, especially an amount A fixed portion, especially an amount

of food allotted to persons in military of food allotted to persons in military service or to civilians in times of scarcity. … service or to civilians in times of scarcity. … — ration — ration tr.v.tr.v. –tioned, -tioning, -tions. –tioned, -tioning, -tions. 1.1. To supply with rations. To supply with rations. 2.2. To distribute as To distribute as rations: rations: rationed out flour and sugar. rationed out flour and sugar. … … 3. 3. To restrict to limited allotments, as during To restrict to limited allotments, as during wartime. [French, from Latin wartime. [French, from Latin ratiō, ratiōn, ratiō, ratiōn,

calculation, reason.]calculation, reason.]

The Arizona RepublicThe Arizona RepublicHensley JJ. Coma patient’s transfer blocked: St. Joseph’s Hensley JJ. Coma patient’s transfer blocked: St. Joseph’s wants to send ailing woman to Honduras. 2008;May 11.wants to send ailing woman to Honduras. 2008;May 11.

Haldiman P. Native of Honduras awakens from coma, Haldiman P. Native of Honduras awakens from coma, woman’s future in the U.S. at risk as court battle looms. woman’s future in the U.S. at risk as court battle looms. 2008;May 14.2008;May 14.

Comatose Honduran woman won’t be evacuated by Comatose Honduran woman won’t be evacuated by hospital. Arizona Daily Star. 2008;May 21.hospital. Arizona Daily Star. 2008;May 21.

Kiefer M. Legal migrant out of coma, still at St. Joseph’s. Kiefer M. Legal migrant out of coma, still at St. Joseph’s. 2008;May 21.2008;May 21.

Kiefer M. St. Joseph’s had sought to send patient home. Kiefer M. St. Joseph’s had sought to send patient home. 2008;May 24.2008;May 24.

Kiefer M, Larreal A, Murillo S. Immigrants sent home by Kiefer M, Larreal A, Murillo S. Immigrants sent home by hospitals in some cases. 2008;Jun 21:B1, B2.hospitals in some cases. 2008;Jun 21:B1, B2.

Gonzalez D. For some ill migrants, free care has a price. Gonzalez D. For some ill migrants, free care has a price. 2008;Aug 3.2008;Aug 3.

A.B.A.B.

A hypothetical case based on reportsA hypothetical case based on reports

As when reading newspaper articles, As when reading newspaper articles, one should recall that editors hope to one should recall that editors hope to accurately inform others with some accurately inform others with some

facts that are hopefully true and with facts that are hopefully true and with some that clearly are not.some that clearly are not.

The Arizona RepublicThe Arizona RepublicHensley JJ. Coma patient’s transfer blocked: St. Joseph’s Hensley JJ. Coma patient’s transfer blocked: St. Joseph’s wants to send ailing woman to Honduras. 2008;May 11.wants to send ailing woman to Honduras. 2008;May 11.

Haldiman P. Native of Honduras Haldiman P. Native of Honduras awakens from coma,awakens from coma, woman’s future in the U.S. at risk as court battle looms. woman’s future in the U.S. at risk as court battle looms. 2008;May 14.2008;May 14.

Comatose Comatose Honduran woman won’t be evacuated by Honduran woman won’t be evacuated by hospital. Arizona Daily Star. 2008;May 21.hospital. Arizona Daily Star. 2008;May 21.

Kiefer M. Legal Kiefer M. Legal migrantmigrant out of coma out of coma, still at St. Joseph’s. , still at St. Joseph’s. 2008;May 21.2008;May 21.

Kiefer M. St. Joseph’s had sought to send patient home. Kiefer M. St. Joseph’s had sought to send patient home. 2008;May 24.2008;May 24.

Kiefer M, Larreal A, Murillo S. Immigrants sent home by Kiefer M, Larreal A, Murillo S. Immigrants sent home by hospitals in some cases. 2008;Jun 21:B1, B2.hospitals in some cases. 2008;Jun 21:B1, B2.

Gonzalez D. For some ill Gonzalez D. For some ill migrants,migrants, free care has a price.free care has a price. 2008;Aug 3.2008;Aug 3.

A.B.A.B.

34 year old mother of five who is 34 year old mother of five who is employed in Phoenix, Arizona, in a employed in Phoenix, Arizona, in a carpentry shop; she also does house carpentry shop; she also does house cleaning part-timecleaning part-time

A native Honduran with no family thereA native Honduran with no family there

She came to the U.S. more than 17 years She came to the U.S. more than 17 years ago as a refugee following a hurricane ago as a refugee following a hurricane disaster; a legal U.S. resident (holding a disaster; a legal U.S. resident (holding a “temporary work visa”) with next INS “temporary work visa”) with next INS status review scheduled for 2009status review scheduled for 2009

A.B.A.B.Now pregnant with sixth childNow pregnant with sixth childPresented to the St. Joseph’s Hospital and Presented to the St. Joseph’s Hospital and Medical Center emergency department with Medical Center emergency department with vaginal bleeding and contractions on April 16, vaginal bleeding and contractions on April 16, 20082008She had no health insurance but was eligible She had no health insurance but was eligible for amended Medicaid coverage in Arizonafor amended Medicaid coverage in ArizonaShe was found to be about 27-28 weeks She was found to be about 27-28 weeks pregnantpregnantHer bleeding and contractions subsided Her bleeding and contractions subsided quickly; she was discharged home with follow-quickly; she was discharged home with follow-up scheduled the following dayup scheduled the following day

A.B.A.B.

She presented again to the emergency room She presented again to the emergency room the following day with abnormal bleeding and the following day with abnormal bleeding and contractions; she was admitted for observationcontractions; she was admitted for observation

On April 20 her bag of water broke and she On April 20 her bag of water broke and she was immediately taken to labor and delivery was immediately taken to labor and delivery for an emergency Caesarean section; the baby for an emergency Caesarean section; the baby was 28 weeks premature and removed to the was 28 weeks premature and removed to the neonatal intensive care unit for further neonatal intensive care unit for further evaluation and careevaluation and care

Obstetricians had difficulty with her surgeryObstetricians had difficulty with her surgery

A.B.A.B.

Obstetricians learned at delivery that Obstetricians learned at delivery that her pregnancy was abnormal and that her pregnancy was abnormal and that the placenta had grown through the the placenta had grown through the myometrium (placenta percreta) and myometrium (placenta percreta) and onto and into the colon and bladderonto and into the colon and bladder

Obstetricians had difficulty controlling Obstetricians had difficulty controlling the bleeding; within 24 hours more the bleeding; within 24 hours more surgery was required to control the surgery was required to control the bleedingbleeding

A.B.A.B.

Obstetricians and trauma and pelvic surgeons Obstetricians and trauma and pelvic surgeons in the general operating room explored the in the general operating room explored the area to control the bleeding and removed the area to control the bleeding and removed the patient’s uterus and an ovarypatient’s uterus and an ovaryShe lost so much blood so quickly that she She lost so much blood so quickly that she lapsed into unconsciousness (hypovolemic lapsed into unconsciousness (hypovolemic shock); over 72 hours she required 268 units shock); over 72 hours she required 268 units of blood products to replace lost volume and of blood products to replace lost volume and promote clottingpromote clottingWith the shock, she required ventilatory With the shock, she required ventilatory support and when her kidneys failed acutely, support and when her kidneys failed acutely, she required dialysis; she received naso-she required dialysis; she received naso-gastric tube feedingsgastric tube feedings

A.B.A.B.

She was cared for in the intensive care She was cared for in the intensive care unit for several days; she weaned quickly unit for several days; she weaned quickly from the ventilator but still required from the ventilator but still required dialysis; her neurological recovery was dialysis; her neurological recovery was doubtfuldoubtful

By the first week of May, she was By the first week of May, she was medically stable and ready to be medically stable and ready to be transferred from the ICU to a long-term transferred from the ICU to a long-term acute care hospitalacute care hospital

No local facility would accept the patientNo local facility would accept the patient

A.B.A.B.

The hospital made arrangements to The hospital made arrangements to transport (transfer and repatriate) the transport (transfer and repatriate) the patient by plane to Hospital Escuela patient by plane to Hospital Escuela (‘with adequate facilities for her care” (‘with adequate facilities for her care” but only with a four bed ICU and no but only with a four bed ICU and no dialysis unit) in Tegucigalpa, dialysis unit) in Tegucigalpa, Honduras, on May 8, 2008Honduras, on May 8, 2008

The family said they were told on May The family said they were told on May 7; they objected7; they objected

Centers for Medicaid and Medicare Centers for Medicaid and Medicare Services (CMS) Conditions of Services (CMS) Conditions of

Participation (CoPs)Participation (CoPs)

““If a hospital chooses to transfer a patient If a hospital chooses to transfer a patient to another facility, it must comply with to another facility, it must comply with

[CMS CoPs] relating to patient [CMS CoPs] relating to patient discharges. Among these requirements discharges. Among these requirements are that the patient be transferred only are that the patient be transferred only to an “appropriate facility”; interpretive to an “appropriate facility”; interpretive guidelines suggest such a facility is one guidelines suggest such a facility is one

“that can meet the patient’s medical “that can meet the patient’s medical needs on a post-discharge basis.”needs on a post-discharge basis.”

Arizona Health CareArizona Health Care

““St. Joseph’s spent more than $64 million St. Joseph’s spent more than $64 million on charity care and community benefit on charity care and community benefit

services last year (2007) alone. It transfers services last year (2007) alone. It transfers nearly 80 patients a year to out-of-state nearly 80 patients a year to out-of-state facilities at costs that sometimes exceed facilities at costs that sometimes exceed

$1 million.”$1 million.”

——Kiefer M, Larreal A, Murillo S. Immigrants Kiefer M, Larreal A, Murillo S. Immigrants sent home by hospitals in some cases. sent home by hospitals in some cases. The The

Arizona Republic.Arizona Republic. 2008;Jun 21:B1, B2. 2008;Jun 21:B1, B2.

Arizona Health CareArizona Health Care““St. Joseph’s now sends an average of seven St. Joseph’s now sends an average of seven uninsured immigrants a month back to their uninsured immigrants a month back to their native countries for treatment, often against native countries for treatment, often against

the wishes of family members, hospital the wishes of family members, hospital officials say. Before 2000, the hospital rarely officials say. Before 2000, the hospital rarely transferred any patients out of the country, transferred any patients out of the country,

perhaps only two or three times a year.”perhaps only two or three times a year.”

——Kiefer M. St. Joseph’s had sought Kiefer M. St. Joseph’s had sought to send patient home. 2008;May to send patient home. 2008;May

24.24.

Arizona Health CareArizona Health Care““Some critics suggest that St. Joseph’s a non-Some critics suggest that St. Joseph’s a non-profit hospital that is exempt from taxes and profit hospital that is exempt from taxes and

must provide some charity care, is simply must provide some charity care, is simply dumping patients to save money. The hospital dumping patients to save money. The hospital

denies the allegation.”denies the allegation.”““Maricopa Medical Center [Phoenix] has sent Maricopa Medical Center [Phoenix] has sent

five non-citizens out of the country for treatment five non-citizens out of the country for treatment since October [2007] … Banner Good Samaritan since October [2007] … Banner Good Samaritan

Medical Center [Phoenix] sent seven in 2007 Medical Center [Phoenix] sent seven in 2007 and six in the year before.”and six in the year before.”

——Kiefer M. St. Joseph’s had sought Kiefer M. St. Joseph’s had sought to send patient home. 2008;May 24. to send patient home. 2008;May 24.

A.B.A.B.

Her mother C.D. obtained a temporary Her mother C.D. obtained a temporary restraining order from the superior court restraining order from the superior court prohibiting her transfer to a Honduran prohibiting her transfer to a Honduran hospital on May 9, 2008, but was hospital on May 9, 2008, but was required at a hearing to post a $20,000 required at a hearing to post a $20,000 bond by May 14, 2008 (later granted a bond by May 14, 2008 (later granted a three day extension to May 17, 2008)three day extension to May 17, 2008)The hospital waived the bond The hospital waived the bond requirementrequirement

A.B.A.B.

She aroused from a coma on May 13, She aroused from a coma on May 13, 2008, after being unconscious for 25 2008, after being unconscious for 25 daysdays

““It’s pretty amazing. She will still require It’s pretty amazing. She will still require long-term care … .” However, her long-term care … .” However, her amended Arizona Medicaid coverage did amended Arizona Medicaid coverage did not include long-term care, or not include long-term care, or rehabilitation care, or home care.rehabilitation care, or home care.

A.B.A.B.

On May 24, 2008, the hospital On May 24, 2008, the hospital announced that it would “allow her announced that it would “allow her to remain at the hospital until she to remain at the hospital until she can be transitioned to the kind of can be transitioned to the kind of long-term care facility she needs”long-term care facility she needs”

By that time she was sitting up, By that time she was sitting up, speaking, eating, and no longer speaking, eating, and no longer required dialysis; her baby – still in required dialysis; her baby – still in the NICU – was doing wellthe NICU – was doing well

Realization 1

There may not be sufficient funds to pay for any additional coverages

without new allocations.

Unfunded mandates—as with EMTALA—burden the delivery of care by

imposing additional costs on other funding sources already stretched. Is

this the fairest choice?

Is this “just”? Is this “fair”?Is this “just”? Is this “fair”?

The unfunded EMTALA mandate is in reality The unfunded EMTALA mandate is in reality “funded” by revenue sources already committed “funded” by revenue sources already committed for other payments to those who are obliged to for other payments to those who are obliged to render the legally-mandated goods or services.render the legally-mandated goods or services.

Those who bear the obligation include: hospitals Those who bear the obligation include: hospitals (but not a fair distribution of hospitals), (but not a fair distribution of hospitals), physicians (but not a fair distribution of physicians (but not a fair distribution of physicians), other patients (via cost-shifting, but physicians), other patients (via cost-shifting, but not a fair distribution of patients), and taxpayers not a fair distribution of patients), and taxpayers (but not a fair distribution of taxpayers).(but not a fair distribution of taxpayers).

Realization 2

The system is already “rationing” goods and services now, and without new allocations,

reform will mean redistribution.

But is “ration” the most appropriate word for the situation? “Policy allocation”?

“Distribution”? Recall the dilemma of providing educational opportunities for Katrina-displaced New Orleans pupils in Houston at a higher level than native

residents.

Realization 3

It is impossible to ration or distribute health care goods and services according to

Rawls’ A Theory of Justice (1971).

Does the notion of ration—as from the dictionary definition—really apply?

“Fixed”?“Scarcity”? “Allotment”? Would global

budgeting resolve the unfairness?

Rawls’ A Theory of Justice (1971)

“a principled reconciliation of liberty [libertarian] and equality [utilitarian]”“Original Position”—an artificial device, hypothetical, not historical“First Principle”—”[E]ach person is to have an equal right to the most extensive of equal basic liberties compatible with a similar scheme of liberties for others.”“Second Principle”—Social and economic inequalities are arranged so that: (a) they are to be of the greatest benefit to the least-advantaged members of society (“the difference principle”); and (2) offices and positions must be open to everyone under conditions of fair equality of opportunity.

Rawls’ A Theory of Justice (1971)

“Rawls’ theory of justice, often referred to as social justice, has gained prominence since the 1970s as

a dominant theory of justice. This theory has 2 major principles. The first, that ‘people should have maximal liberty compatible with the same degree

of liberty for everyone,’ defines the limits of individual liberty by focusing on the liberty of

others. The second, that ‘deliberate inequalities [a]re unjust unless they work to the advantage of the least well off,’ focuses on social consequence

and responsibility of actions. Considering the body of research and news reports that describe

inequalities in US health care access and quality, and the fact that these inequalities do not work to the advantage of the least fortunate, it is clear that the US health system does not meet these [Rawls’]

criteria for being just.”—Kirch DG, Vernon DJ. The ethical foundation of American

Medicine: in search of social justice. [Commentaries.] JAMA. 2009; 301:1482-1484.

Is this “just”? Is this “fair”?Is this “just”? Is this “fair”?Is Is rationration the right word? the right word?

DefinitionDefinition

““fixed portion”?fixed portion”?

““times of scarcity”?times of scarcity”?

““restrict to limited restrict to limited allotments”?allotments”?

ConceptConcept

Probably not, but why?Probably not, but why?The size of the pie is not fixed.The size of the pie is not fixed.

Stakeholders don’t fix the size of the pie.Stakeholders don’t fix the size of the pie.

The slices of the pie are not The slices of the pie are not determinable (e.g., patients are determinable (e.g., patients are different; the same diagnosis manifests different; the same diagnosis manifests itself differently in patients; providers are itself differently in patients; providers are different; outcomes are not the same in different; outcomes are not the same in different localities; some areas have different localities; some areas have good regionalization).good regionalization).

The criteria for slicing the pie are not The criteria for slicing the pie are not clear (e.g., “medical necessity”).clear (e.g., “medical necessity”).

Probably not, but why?Probably not, but why?There is no portion in the slice for There is no portion in the slice for research and development and research and development and education.education.

It is unclear who might be entitled to a It is unclear who might be entitled to a slice of the pie.slice of the pie.

Those contributing ingredients to the Those contributing ingredients to the pie (all the stakeholders) are not fully pie (all the stakeholders) are not fully known and recognized.known and recognized.

Probably not, but why?Probably not, but why?Like research and development and Like research and development and education, the mechanisms used to education, the mechanisms used to distribute the slices are unclear and distribute the slices are unclear and may burden the system.may burden the system.

Mechanisms used to distribute the Mechanisms used to distribute the slices don’t preclude the efforts of slices don’t preclude the efforts of others to enlarge their slices after a others to enlarge their slices after a “fair” schema has been established “fair” schema has been established (e.g., some “game the system,” (e.g., some “game the system,” providers sue for unpaid claims, providers sue for unpaid claims, legislators tinker with allocations).legislators tinker with allocations).

Realization 4Neither ethics, law, nor public policy demands

absolute equity but rather pragmatic justice. “Allocation” is better handled by

rational (“reasoned”) public policy.

And, recall that tinkering with the delivery model to resolve one injustice (e.g., “patient dumping”) may create or exacerbate others (e.g., unfunded mandate of EMTALA) which

will require additional reforms.

So, perhaps the goal should So, perhaps the goal should not be to fashion an not be to fashion an

exacting just or fair system exacting just or fair system or solution (an ideal or solution (an ideal

system), but rather to craft system), but rather to craft a more just, a more fair a more just, a more fair solution than what we solution than what we

presently have?presently have?

Cynics will say we can Cynics will say we can always do better; and, of always do better; and, of

course, they’re right. course, they’re right. Fairness is a struggle (a Fairness is a struggle (a

continuing dilemma). The continuing dilemma). The important question remains: important question remains:

Are people of good will Are people of good will striving to do what they striving to do what they

can?can?

Realization 5

The Ethical and Religious Directives for Catholic Health Care Services (2001)

“… who is my neighbor?”—Luke 10:25-37 (The Parable of the Good

Samaritan)

“You will always have the destitute with you, but you will not always have me.”

—Matthew 26:11 (ISV)

One is left with the realization that One is left with the realization that individual resolution is complex and individual resolution is complex and

that all each must in the end strive for that all each must in the end strive for an common ideal, correcting injustices an common ideal, correcting injustices as best can be done when identified, as best can be done when identified, understanding that other injustices understanding that other injustices

may surface and that single may surface and that single individuals by be disadvantaged by individuals by be disadvantaged by circumstances and any public policy circumstances and any public policy

distribution schemadistribution schema

A.B.A.B.

A hypothetical case based on reportsA hypothetical case based on reports

It has been estimated that annual It has been estimated that annual health care expenditures average health care expenditures average

about $7900 per person in the about $7900 per person in the United States.United States.