I wanted to address a small issue and a much larger issue. A Republican congressman from Florida this week told a number of assembled constituents at a town hall meeting that the Affordable Care Act (Obamacare) contained a provision that created federal death panels.
According to the death panel myth, these panels consist of government bureaucrats who decide whether or not a sick person will receive a given medical treatment or procedure. The panels make life or death decisions because if the sick person does not receive the necessary medical care, he will die. Hence the panel is a death panel.
The reality is, we have had death panels for many decades now. They are called Health Maintenance Organizations or HMOs. HMOs are private health insurance companies that decide whether or not an insured will receive a given, necessary medical treatment or procedure. The author John Grisham wrote about these death panels two decades ago in his book entitled The Rainmaker in which an HMO denies a young man with terminal cancer a lifesaving medical procedure. In the book the young man dies, because the HMO denied him a bone marrow transplant that would have saved his life.
Obamacare does not contain a death panel provision. The phrase “death panels” was actually coined by no less of a scholar and philosopher than Sarah Palin, the amusing former governor of Alaska and former vice presidential candidate.
Sarah Palin’s foundation for the phrase came from a proposed provision of Obamacare that would have paid physicians to counsel terminally ill patients on end-of-life decisions. The provision was actually removed from the bill that became the Affordable Care Act because of Sarah Palin’s claim. A year after its removal and the passage of the law, doctors bemoaned its removal because the doctors believed that the lack of counseling to patients facing end-of-life decisions was actually harmful to these patients. Clearly an example of an ill-informed individual’s comment (Sarah Palin) having a real-life, negative impact on all of us.
In 2009, Sarah Palin’s phrase was termed the myth of the year. Yet, eight years later, a congressman from Florida stands up in front of a room of people and tells them that Obamacare contains such a provision.
As an elder law attorney who has served as the guardian for hundreds of people, I have personally made medical decisions, including end-of-life decisions, for hundreds of people. As such, I am familiar with making such decisions, and I believe that I have a somewhat realistic view of when such decisions need to be made.
But having met with thousands of individuals who are in the midst of making medical decisions for family members, I can tell you that the vast majority of people are ill-equipped to make such decisions. I cannot tell you how many people have come to see me who tell me that their husband or father is of advanced age and in extremely poor mental or physical health, yet they opine to me that their family member may live another five or ten years. I have had clients tell me that their ninety-five year old mother who suffers from a terminal illness may live another five years.
In a way, it’s nice to be that optimistic. My mother is ninety-two years old and if she passed away today, I would not be surprised. But in some ways, I feel that it would nice if I thought my mother was going to live another five or ten years.
Reality though, is that people do pass away, and sometimes, medical personnel know that death is imminent, but they do not share this information with family members. No one adequately prepares the family for the inevitable, which causes the death to seem unexpected and the family to be ill-prepared. The counseling provisions of Obamacare were designed to help families in these situations. But when we let ignorant people drive decision-making at the highest levels of government, we all suffer.
End-of-life decisions are rarely as clear as people expect, and they are often shaped by factors outside a family’s control. Understanding how these decisions are actually made can help families prepare and avoid being caught off guard.