Is Health Care in America Really So Bad?

On March 23, 2010, President Obama signed into law the Patient Protection and Affordable Care Act (ACA)[i]. The intent of the law was to provide health insurance to all Americans while, at the same time, lowering the health care costs for the people and the United States government.  Although it seems counterintuitive, President Obama promised that the plan would lower the cost of health insurance premiums while at the same time, reduce government spending. It is hard to see how this promise could have been sincere, especially since the plan would have added over 30 million patients into the mix.

I think most would agree that health care is expensive. In 2009, the United States spent 17.3 percent of our gross domestic product (GDP), about $2.5 trillion on health care. This was the most spent for health care by any country in the world. We also spend more than any other country on defense. I think both of these things are good. We should be spending on health care and defense to maintain our way of life which I believe is the best.

Proponents of Health Care change make claims that despite spending more on health care than other countries, the United States lags behind in critical health care measures such as life-expectancy and infant mortality. However, a critical look at these measures shows that the United States is really not so bad.

While it is true that life-expectancy in the United States is less than about 30 other countries, it is likely related to the high homicide rate in America along with the high death rate from auto accidents, both of which are much higher than those found in other Western countries. If we factor out homicides and auto accident fatalities, then the United States has the longest life-expectancy. Homicides and auto related deaths, while concerning, should not count on our quality of health care analysis.[ii]

Infant mortality is defined differently depending on the country. Since the definitions differ, it is not surprising that the rates differ. In America, a birth is counted as live if there is any sign of life, regardless of the birth weight or gestational age. This follows the World Health Organization (WHO) definition which defines a live birth as one where the infant, removed from the mother, “breathes or shows any other evidence of life such as beating of the heart, pulsation of the umbilical cord, or definite movement of voluntary muscles.”[iii]

In Switzerland, the baby must be at least 30 centimeters long at birth to be counted as a live birth[iv]. Even if it’s breathing and the heart is beating, a subsequent death will not be counted as an infant mortality in that country if the baby is shorter than 30 centimeters.

In France, there must be a medical certificate stating that the baby was born alive and viable. Without that certificate, a subsequent death will not count as an infant mortality.  Also, in France and Belgium, babies born before twenty-six weeks are counted as deaths even if they fit the WHO criteria for live birth.[v] It’s obvious that using infant mortality rates as a measure of quality health care is a disingenuous argument for those claiming our health care system is not so good.

I believe that the cost of our health care is reasonable for what we get. It is the best health care in the world. Many of our treatments lead the way for both cure and palliation. Cancer treatments, Human Immunodeficiency Virus (HIV) care, and cardiac and vascular surgery advances are the best in the world. When Russian President Boris Yeltsin needed heart surgery, they sent for Dr. DeBakey’s team from Baylor in Houston.

It is not unusual for other world leaders to send their families or themselves to our country for their own care. When I was a resident at the University of Chicago, it was not unusual for world leaders to take over a hospital floor while they were cared for at that facility. I was even reprimanded by the United States Secret Service when I mistakenly entered the area during one of my rounds.

Former Vice-President Cheney had a left ventricular assist device keeping him alive for quite a while until he was able to get a match for a heart transplant. He spoke to one of our surgical societies where he described his course. He was doing great and I could not see any detrimental effects of his prolonged illness. This type of care is available to all in the United States!

As a Cardiothoracic surgeon, I am frequently exposed to dangerous blood borne infections such as Hepatitis C and Human Immunodeficiency Virus (HIV). I was most fearful of Hepatitis C for which, until recently, there was no good treatment and the resulting death was from fulminant liver failure—not a pleasant way to go.

Now, there is a new drug, Sovaldi (sofosbuvir), to treat Hepatitis C and it is curative. It costs $80 thousand for a course of therapy but the illness would otherwise lead to death or to a liver transplant and further immunosuppressive drug therapy the costs of which would exceed the pills. It makes sense to use this new class of drugs but there is an on-going debate that the drug manufacturers are gouging the public. It is a breakthrough therapy where the developers are being chastised instead of honored. What a shame.

The high cost of drugs reminds me of when I was a young resident and surgeon. Tissue plasminogen activators (tPA) and other clot busters were being introduced as a way to treat patients with myocardial infarctions. The drug was expensive; over $2 thousand to save a heart attack victim. This was deemed exorbitant in the 1980’s. Now it is the standard of care and no one is complaining of the costs.

Drug companies spend millions of dollars on research and development of new therapies and they take a huge financial loss for the drugs that do not pan out. However, when they do have a success like with Hepatitis C, then I don’t have a problem with them charging high rates. This sends the right message to those involved in research and development that what they are doing will be rewarded if they are successful. We want the researchers to be advancing the science of medicine and this is the way to do it.

New endovascular techniques are allowing high risk patients to undergo complex aortic repairs and even aortic valve replacements. These patients would not have tolerated the difficult open procedures that would have been required in the past. With new aortic valves and aortas, many of these otherwise healthy individuals may live for another 10 or 20 years and the lives will be meaningful. Who wouldn’t want that?

Mary Lasker has been quoted as saying, “if you think research is expensive, try disease.”[vi] Sure it’s expensive, but life and health are among the most precious things we have. Who wouldn’t spend what is necessary to save a loved one or themselves?

My grandparents used to tell us to get the best doctors if we were sick and the best lawyers if we were confronted with legal problems. You’re looking for the best return on your investment and there is nothing more important than your life and health. It is said that there are problems that money can solve and then there are real problems. Perhaps we are spending more on health care because we are getting the best health care. I am OK with that and I think that most Americans would agree with me.

[i] Often referred to as “ObamaCare”.

[ii] Glen Whitman, “Who’s Fooling Who? The World Health Organization’s Problematic Ranking of Health Care Systems,” CATO Institute, February 28, 2008.

[iii] Geneva Foundation for Medical Education and Research, Live Birth Definition.

[iv] David Hogberg, Ph.D., “Don’t Fall Prey to Propaganda: Life Expectancy and Infant Mortality are Unreliable Measures for Comparing the U.S. Health Care System to Others,” National Policy Analysis, July 2006.

[v] Bernadine Healy, “Behind the Baby Count.” US News and World Report, September 24, 2006.

[vi] Mary Lasker was a Health Activist and Philanthropist who raised funds for medical research. She helped found the Lasker Foundation. A Lasker Award is often a harbinger of the Nobel Prize as, at least 86 Lasker Award winners went on to win the Nobel Prize.



ABOUT THE AUTHOR: Darryl Weiman is a featured expert in on February 17, 2016. 

The Independent Payment Advisory Board

The Affordable Care Act (ACA) calls for the formation of an Independent Payment Advisory Board (IPAB). The idea is to have a group of experts with health care knowledge make decisions to reign in the cost of health care. Members of this Board will be appointed by the President with the advice and consent of the Senate. Surprisingly, any appointed member may be “removed by the President for neglect of duty or malfeasance in office, but for no other cause.”[1] This is very different from other executive branch members who serve at the pleasure of the President; he can remove them at any time and for any reason. This gives the IPAB members significant power and pretty much makes them immune from second guessing. Even Secretaries of the Cabinet do not have this kind of immunity.

The intent of the Board is to decide what and how much will be paid for various medical procedures and treatments.  The IPAB is required to make specific recommendations to the President and Congress the intent of which is “to slow the growth” in national health care expenditures. If Congress does not act on these recommendations or does not come up with alternative recommendations, then the Secretary of Health and Human Services must implement them. Only a supermajority of the Congress will be allowed to overrule the decisions of this Board. This is a high bar, especially with a Senate that is pretty evenly divided between the two major parties.  Of note, the Secretary’s actions cannot be modified by any administrative body. The President does not have veto power over the recommendations and the recommendations are not subject to judicial review.

By giving the IPAB such power, it allows the President and members of Congress to be immune from criticisms of the electorate. They can claim that the IPAB made the decision and there is nothing they can do about it; and they’re right.  This seems like a pretty clever way for the elected officials to get around the will of the people and then try to avoid accountability.

The Board members will be independent of the President, independent of Congress, and they will not be subject to Judicial Review. This may be a violation of the Separation of Powers and the doctrine of Checks and Balances, but I am not holding my breath on this claim. The Constitution requires Checks and Balances with each branch of government keeping an eye on the other. I suppose that the Congress being able to override the Board’s decisions with a supermajority, while unusual, would allow the Congress to claim they are maintaining their oversite.

As for Judicial review, I would predict that the Supreme Court would hold that they could overrule any Board decisions and that the law’s preclusion of judicial oversite was meant for the lower courts, not the Supreme Court. This would be consistent with the Marbury v. Madison decision which gave the Supreme Court the power to decide on a law’s constitutionality.[2]

The IPAB has been directed to not ration care. In fact rationing is explicitly forbidden. However, we have already seen how this particular law can be changed by the President with a stroke of the pen; having the Internal Revenue Service allow for premium subsidies for all who use the Health Care exchanges whether set up by the State or the Federal Government. The Supreme Court has allowed this change.[3]

I am concerned that the Independent Payment Advisory Board (IPAB) may decide to limit (ration?)  Health care anyway.  I fear that care may be denied based on financial as opposed to clinical reasons.  It reminds me of societies that would send their elderly out on a canoe or into the wilderness with the intent of letting them die as opposed to being a financial burden on the remaining younger generation. I would hope that we, the people, would not tolerate that behavior.

But if the law specifically forbids rationing of care, how could rationing still occur? For one thing, the law does not define the meaning of “rationing” in the context of the Affordable Care Act. If care is denied to everyone, then the definition of rationing is not met (see footnote below). If the IPAB decides to cut payments to doctors and hospitals such that money would be lost to those who provide the care, then those providers may decide to stop seeing new Medicare patients. This denial of care to a specific population would amount to a de facto rationing.

I also believe that our Constitution, if we will continue to follow it, would not allow this as it would clearly violate the Due Process Clauses of the Fifth and Fourteenth Amendments. In fact, suits have already been initiated in about 20 States challenging the constitutionality of the IPAB. However, it would be unusual for a court to strike down an “advisory board” created by the Congress and signed off on by the President.

Am I being alarmist? I don’t think so. In a Wall Street Journal Article from January 23, 2015, entitled Dr. Death Makes a Comeback , the writer discussed the distinct possibility that a “right to die” should not be mistaken for a “duty to die.”[4] The fact that this issue was even being raised is very concerning. What if the IPAB decides that it would be cost effective to only offer “assisted suicide” or hospice care for those elderly or disabled who otherwise would require very expensive care; even if the care would be curative? Is it rationing if all are denied?[5]  As of this writing, Oregon, Washington, and Vermont do allow for assisted suicide.

The first recommendations of the IPAB were to have been submitted to Congress and the President in 2014. This has not happened. In fact, I am not aware of anyone who has been appointed to be a Board member. This is consistent with the President pretty much doing what he wants in regards to enforcing and implementing laws in general.

It goes against the very premise of our free society when the government is allowed to force changes on life and liberty interests without recourse by the unwilling electorate.  I suppose that we can vote in a whole new group of politicians, but this would take time.  My faith in meaningful change is fading rapidly.

[1] Affordable Care Act, IPAB Membership requirements.

[2] Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).

[3] King v. Burwell, 576 U.S._(2015). This recent Supreme Court decision allows Health Care Insurance premium subsidies even for citizens of those States who opted for the Federal Exchange even though the law explicitly limited the premium subsidies for those States which set up their own exchanges.

[4] “Dr. Death Makes a Comeback,” Wall Street Journal, January 23, 2015.

[5] Ration—to distribute equitably or use sparingly. Merriam-Webster’s Collegiate Dictionary, eleventh edition. If the thing is not distributed at all and/or not used at all, then it is not being rationed. This is an example how lawyers use words to their advantage.


ABOUT THE AUTHOR: Darryl Weiman is a featured expert in on February 17, 2016. 

A Commentary on King v. Burwell

One of the linchpins of the Affordable Care Act (Obamacare) is to have everyone in the United States get Health Care Insurance. The way that the law instructed that this be done was to have the States set up Exchanges; access to the exchanges would allow each person to shop, preferably on-line, for an insurance policy that would best meet their needs. Accessing the exchange website would allow the people to compare the types of coverage, the premiums they would be responsible for, and the deductibles available. It would be one stop shopping for health insurance. This is a great idea on its face.

Since the requirements of health insurance were powers relegated to the states, each state would be in the best position to decide which policies would meet that particular state’s requirements.

Under the law, if the state decided that the cost for setting up the exchange was too high or for whatever other reason, they could choose to have the Federal government come in and set up an exchange for them. The Federal government preferred to have the States set up the exchanges but they could not force the states to do so as that would violate rules of Federalism and the separation of powers. The Administration had to come up with a way to get the states to “buy in” and they decided to do this by making tax credits available to the people of the States that set up their own, non-federal, exchange.

These tax credits were critical for the law to succeed because without them, the costs of meeting the requirements of coverage would exceed eight percent of the income of many people which would allow those people to claim exemption from coverage. Since many of these people were healthy and would not generate much health care costs, insurance carriers really needed them to participate in order for business to be viable.

The reason that the premiums had to be high was the ACA’s requirements for “guaranteed issue” and “community rating.” The “guaranteed issue requirement” meant that insurers could not deny any person coverage due to a pre-existing medical condition. The “community rating” requirement prevented the insurance carriers from charging higher premiums for those with a pre-existing medical condition. It was probably the “guaranteed issue” and “community rating” issues that led to the failure of “Romney care” in Massachusetts and the commercial insurance market in New York, but that’s another story.

Without the tax credits along with the requirements of “guaranteed issue” and “community rating” it was foreseeable that many healthy individuals would face premiums that would exceed eight percent of their income whereby they would be exempt from buying health insurance or if they did not meet the eight percent level, they would opt out of the Affordable Care Act insurance requirements and pay the tax penalty (much less than the offered premiums) instead. These healthy people could buy the insurance after they became sick and they would suffer no penalties for waiting. This is another example of people acting rationally.

Surprising to the Obama Administration, many of the States decided to opt out of setting up their own exchanges. There was a very real concern that many people in those states, not being eligible for the tax credits, would not buy health insurance and they would not be penalized since the premiums they would have to pay amounted to more than eight percent of their income. If these predominately health people would not participate, the insurance carriers would likely go bankrupt and have to withdraw from participating in the ACA. This could have led to a death spiral for the whole Affordable Care Act.

Under direction from the White House, the Internal Revenue Service (IRS) decided to make tax credits available to all who used the exchanges, even the exchanges set up by the Federal government.

The Petitioners in this Supreme Court case were citizens of Virginia, a state with a Federal Exchange. The Petitioners did not want to purchase health insurance and if they were not eligible for tax credits their premiums would have fallen above the eight percent threshold of their income and, thus, would have been exempt from the law’s coverage requirement. However, with the IRS rule, they would have been eligible for the tax credits and would have to buy insurance or be subject to the IRS tax penalty.

The District Court which heard the case held that the Act made tax credits available to those enrolled in a Federal Exchange. The Court of Appeals for the Fourth Circuit affirmed. The Fourth Circuit wrote that the Act was “ambiguous and subject to at least two different interpretations.” They chose to defer to the IRS’s interpretation.

At the same time that the Fourth Circuit was issuing its holding, the Court of Appeals for the District of Columbia Circuit ruled against the IRS Rule, holding that the ACA “unambiguously restricts” the tax credits to State Exchanges. This Circuit did not believe that the Federal Exchange was a State Exchange.

When two different circuits come down with two different holdings of the law, it is not unusual for the Supreme Court to grant certiorari and they did.

The legal issue of the case was whether the Act’s tax credits would be allowed in States that have a Federal Exchange. The Supreme Court held that they would be allowed. The Court, in dicta, wrote “an Exchange established by the State…is properly viewed as ambiguous. The phrase may be limited in its reach to State Exchanges. But it is also possible that the phrase refers to all Exchanges—both State and Federal—at least for the purposes of tax credits.”

The Court went on to say that “[t]hose credits are necessary for the Federal Exchanges to function like their State Exchange counterparts and to avoid the type of calamitous result that Congress plainly meant to avoid.” It seems like the Court was saving the Affordable Care Act from itself.

In a blistering dissent, Justice Scalia, made it clear that a Federal Exchange was not the same as a State Exchange and the tax credits were purposely kept out of the States which opted for a Federal Exchange. The Secretary of Health and Human Services, the person responsible for setting up the Federal Exchanges was not a “State” and thus, citizens of those states should not have been eligible for the tax credits.

Historically, the Court does not like to salvage poorly written laws. They will interpret what is before them and then expect Congress to do its job by making the necessary repairs. The Supreme Court decided to make the credits available to everyone to make the insurance affordable to all. They seemed to be doing what Congress should have been responsible for.

In the United States, under our Constitution, any changes in the law should have come through the Congress. However, in light of the fact that the Congress was now controlled by the Republicans, it is unlikely that the necessary changes needed to save the law would not have been passed; the ACA was in dire straits and the Obama administration recognized this.

King v. Burwell brought to light a significant problem with the Affordable Care Act. In an effort to save an unartfully crafted law, the Obama administration changed the law to allow the Internal Revenue Service to spend billions of dollars on tax credits for those using Federal Exchanges. Changing the law is not a power vested in the Executive branch under the Constitution of the United States. All spending rules must emanate from the United States Congress.

In what looks like an effort to avoid a Constitutional crisis, and the disintegration of the Affordable Care Act, the Supreme Court ruled that any Exchange, including one set up by the Federal government, was really a State exchange. This power to re-write the law is, again, not a power vested in the Supreme Court. However, once the Supreme Court makes a decision, that decision is final.

It is said that the Supreme Court is not last because it is right, it is right because it is last. There must be finality in the law or we will have a society in disarray. The issue on tax-credits and the origination of the Exchanges under the ACA is over! At least for now.

[1] King v. Burwell, 576 U.S._(2015).

ABOUT THE AUTHOR: Darryl Weiman is a featured expert in on February 17, 2016.