The New York Review of Books

To the Editors:

Professor Dworkin correctly observes [NYR, January 13] that a standard of care derived entirely from the rescue principle is an absurd one and that no sane individual would wish to bankrupt himself or his society in order to provide “heroic treatment of improbable value…” What he does not speak to, however, is the case of heroic (and costly) treatments of probable value. It is precisely in this area that the decisions of the “prudent individual” might very well be in conflict with those of the society as a whole. Long-term renal dialysis for otherwise healthy patients is a classic example of a procedure that might be termed heroic but effective, as is bone marrow transplantation for certain forms of leukemia. Whereas a utilitarian perspective might argue that it is not prudent to provide insurance for such care, as it can consume considerable resources that might otherwise be used to benefit larger groups of individuals, it is likely that most individuals would want such treatments available to them. It seems to me that in instances in which medical intervention can prevent an early death and restore more or less normal functioning, most people probably do make decisions on the basis of a rescue principle, i.e., a willingness to bear any cost to save life and/or health. I would assume that in these instances the “prudent insurance” principle would mandate coverage for such catastrophic expenditures, but I would be interested in Professor Dworkin’s views on the subject.

Professor Dworkin rightly acknowledges that it may not be sufficient to leave all decisions about a basic benefit package to the “prudent” decision-making of the average individual. That is it may be desirable for the government to mandate that certain kinds of coverage be included even if they would not be selected by the average consumer. He fails, however, to articulate criteria for deciding when to override individual decision-making. To take an example from my own area of expertise, most individuals tend to rank coverage for mental health care as a low priority, reasoning that such care is for “crazy” people, a category to which they do not belong. In fact, however, a surprisingly high percentage of the population requires such services at some point in their lifetime. Failure to provide coverage for such services may deter many from seeking treatment, even in times of crisis. Furthermore, there is a potential social cost to such a failure, as suicide, violence, drug addiction, child abuse, or other anti-social behavior may result in at least a small percentage of cases from the failure to receive treatment. It would therefore seem appropriate for the Health Board to mandate mental health coverage as part of the basic package. In general, however, on what basis would a Health Board make such determinations? Would the test be the possibility of harm to society at large (as with violent mental patients or carriers of infectious diseases), or would there be a kind of in loco parentis rule in which the government would protect the individual from the consequences for his or her own foolishness? To some degree debates such as these are similar to those over helmet laws for motorcyclists; most observers agree that wearing helmets represents a prudent safety precaution when riding a motorcycle; there is confusion over a clearcut rationale for mandating such behavior.

In his discussion of what kinds of coverage the prudent individual might select, Professor Dworkin seems to suggest a probability of success test as one of the criteria. While this would seem to be a reasonable suggestion, I fear it is unworkable in the real world. Success rates are based upon large groups of patients with widely differing characteristics. Thus, a procedure that has a “10 percent chance of success” based upon aggregate statistics in fact may have almost no likelihood of success in most patients, but a very good chance of a favorable outcome in a select few. To deny the few a treatment that may save their lives because it would be futile to prescribe it for most patients would seem unfair, but it is difficult to see how a universal package of coverage can be structured without either including or excluding procedures for all patients. In Canada, for example, the criteria for approving certain procedures tend to be global and objective (e.g., age) and not take into consideration the specifics of a given case. The alternative, some form of case management by insurers, has proved to be unworkable both fiscally and medically, as it has created an expensive and unwieldy bureaucracy and tends to pit the insurer against the patient.

My final question concerns the definition of the “prudent individual.” Professor Dworkin notes that the actual decisions of any particular individual would not necessarily be “prudent,” but he offers no guidelines for how to determine prudence. Does one assume that the actual decisions of a large number of individuals shall define prudence? Or does some panel of experts determine what should be prudent, as was done in Oregon? A further problem is that the decisions of any given individual change over the life course. Professor Dworkin’s repeated references to a mythical twenty-five-year-old individual suggest that he views prospective choices as more relevant than those made retrospectively. I question this assumption. A healthy twenty-five-year-old might determine that the quality of his life for the next forty years takes precedence over prolonging it after age sixty-five years. He might therefore opt not to have coverage for more expensive treatments for ailments common to older individuals. The same individual at sixty-five, however, faced with the prospect of a fatal heart attack, might willingly have given up expensive vacations or other luxuries in order to be able to have coronary bypass surgery that might prevent an early death. In some sense, this is analogous to the “prudent” decision of a twenty-five-year-old to smoke cigarettes on the grounds that the improvement in his quality of life outweighs for him the risk of developing lung cancer or other chronic respiratory ailment later in life. At sixty-five, the same individual may deeply regret his earlier choice. Interestingly, it is some variant of the rescue principle that dictates that the decision not to smoke (or to purchase coverage for cardiac surgery) is more prudent on the grounds that health is a greater value than simple pleasure.

One point that Professor Dworkin makes (albeit in a footnote) that deserves underscoring is the importance of not discouraging health care outside of the system as is done in some systems. An approach such as the “prudent insurance” one dictates that decisions about a basic health care package derive their legitimacy from a recognition that they represent average sentiment and that individuals may be expected to vary in their needs and priorities. The system needs to retain the freedom for those individuals with greater need to purchase coverage to meet these needs. Currently, many health maintenance organizations provide powerful disincentives (including in some cases contractual prohibitions) to the provision of so-called “off-plan” services. This practice is inconsistent with the model of health care envisioned here.

Professor Dworkin has provided a valuable service by elevating the level of debate about health care and the Clinton Plan and offering a framework within which specific proposals can be evaluated. The points raised in this letter reflect concerns about specific problem areas or aspects of implementation rather than any disagreement with the underlying philosophical approach.

Bruce L. Smith, Ph.D.

Assistant Clinical Professor of Medical Psychology

University of California

Berkeley, California

To the Editors:

It is very well to consider what medical expenditures a prudent individual would insure him or herself for, but when faced with medical need it is not as easy as Professor Dworkin appears to think to discern where justice lies in making or, what is more to the point, requesting or approving the actual expenditures. He seems to feel that a certain likelihood of benefit should be the standard that determines the willingness to provide insurance coverage for medical modalities. I would suggest, however, that the 25 percent threshold for a prudent investment in the payment of a premium gets quickly revised downward when actual patients calculate whether they could benefit from a procedure. Based on my experience with patients, it is just this gap between what people are willing to pay for when they are well and what they wish done when they are sick that accounts for much of the rapid growth in health care costs. The problem as I see it is not that doctors adhere to the rescue principle but that patients do. I do not see how the assumptions Professor Dworkin asks his readers to make so as to allow them to decide in an unbiased way what they would wish to pay for will make patients sensitive to cost at the moment of medical decision. As a thirty-nine-year-old said to me just a couple of days ago when faced with a choice between therapies whose likelihood of success were none versus slim, “I’ll do anything to live.”

Interestingly enough, many of the elderly say the same thing. Furthermore, it offends their notions of equity to have paid their Social Security and other taxes for forty or more years and, in the case of most of my patients, served their country honorably, often in time of war, only to be told that they must (or, at least, ought to) forgo some therapies in favor of those who have longer to live. In fact, neither they nor I am affected much by knowing that a major (emphasis mine) fraction of medical expense is expended during the last six months of life. What else would one expect in the case of Medicare, a program specifically designed to pay for medical care for the elderly? Just within the last few weeks, I have had two men over the age of sixty-five elect to have kidney dialysis treatments despite life expectancies due to underlying pulmonary and cardiac disease that can only be measured in months. I would rather these men had decided for themselves, when they were young and vigorous, which classes of treatments they would have been willing to forgo when they became debilitated by age and chronic disease. The prudent, as defined by Professor Dworkin, would draw up such advanced directives and, I like to think, would often eschew expensive treatments whose major effect is to prolong the process of dying.

I wonder where Professor Dworkin has gotten the idea that health care is rationed on the basis of money. In fact, in most localities with which I am familiar, the truly poor, i.e., the underclass, have better access to health care through various forms of governmentally subsidized care than those who work at jobs that provide no or inadequate health insurance. Furthermore, it is inefficiencies and misuse (by inappropriate hospital emergency room visits, for instance) of these subsidized systems such as Medicaid that accounts for a significant amount of waste in health care expenditures. This can only be improved by increasing the numbers of primary care physicians willing to serve such populations and elevating the general level of medical sophistication found there. However, both of these goals would require more expenditures if anything, at least up front, to save money, perhaps, in the future.