It will be of little avail ---- if the laws are so voluminous
that they can not be read or are so incoherent
that they can not be understood --- Or undergo
such incessant changes that no man who
knows the law today can guess what
it will be tomorrow.
The Federalist Papers.
As we ponder the destructive changes unfolding today in health care and medical practice, we find ourselves questioning whether the government push and attempted takeover of the health care industry was truly and successfully repulsed by the American people, following the consummation of the great health care debate of 1992-1994.
Despite all the media hullabaloo about a growing medical marketplace and the supposedly conservative changes brought about by the November 1994 Republican revolution, corporate socialized medicine is still becoming a reality, step-by-step under the rubric of managed care and a mislabeled "free market." The fact is that we still face an ominous threat from those who seek to destroy the noble profeSSion of medicine and enslave the healers. The supremacy of the patient-doctor relationship and the ability of physicians to do all they can for their patients is being increasingly challenged (and likely will continue to be challenged as we face the uncertain future of the 21st Century), unless we prevail in derailing the juggernaut of managed competition and corporatism.
Today, thanks to the AAPS vs Clinton, it is no longer a secret that many of the major health care corporations with their burgeoning networks are acting in collusion with government bureaucrats to impose managed competition/managed care and to Change the time-honored ethics of the medical profession. Where once the supreme medical ethic dictated that physicians place their individual patient's interest above their own (and above that of the state) in the spirit of true altruism and charity, today's ethics of corporate socialized medicine and managed competition propound that the physician place cost considerations and the interest of third-party payers above that of their patients.
For the first time in the history of medicine, American physicians are being coaxed or coerced, whatever the individual case might be, to ration health care by restricting their patient's access to specialists or expensive treatments --- that is, forced, involuntary rationing for the sake of cost containment, and as to make the HMOs more efficient and profitable.
And this has been done under the auspices of the state and under monopolistic government protection --- the unholy partnership of the health care mega-corporations and the power-hungry, collectivist, government bureaucrats. "Besides gatekeepers, cost containment, loss of choice for patients, and loss of autonomy for physicians," you ask, "what else is in store for physicians in managed care?" If history is any guide...
Defensive Medicine --- Egypt and Babylonia c.1750-1S00 B.C.
The influence of the celebrated Akkadian King of Babylonia, Hammurabi (fl. 1792-1750 B.C.) was more widespread than was heretofore believed, not only in Mesopotamia but also in Egypt, especially in the incipient field of medical jurisprudence and ancient medical practices.
This legal code strictly and harshly dealt with an "eye for an eye" justice and general medical jurisprudence in Akkadian Babylonia, c.1750 B.C. Regarding surgical fees, the Code promulgated:
If a physician shall make a severe wound with the bronze operating-knife and kill him, or shall open a growth with a bronze operating-knife and destroy the eye, his hands shall be cut off
If a physician shall make a severe wound with a bronze operating-knife on the slave of a freed man and kill him, he shall replace the slave with another slave. If he shall open an abscess (growth, tumor, cavity) with a bronze operating-knife and destroy the eye, he shall pay the half of the value of the slave.(1)
The Code of Hammurabi profoundly affected medical practice, not just in Babylonia and Mesopotamia but also in faraway lands and empires, such as existed then in ancient pharaonic Egypt. Egyptian physicians were in fact subject to many strict rules and harsh regulations as a result of the pervasive influence of the Code of Hammurabi. This is corroborated in the world's oldest surgical textbook, the Edwin Smith Papyrus.
The papyri were a collection of 48 cases, 45 of which were trauma cases. Case stories were presented "in anatomical sequence, beginning with injuries of the head and onward down the body." In the papyri, the scholar James Salander writes, "each case is assigned a prognosis.... " Then a very important ethical statement follows: "In cases in which an injury was so severe that a favorable outcome seemed unlikely, the practitioner declined to treat the patient. Fifteen of the 45 trauma cases received unfavorable verdicts." The report went on to say, "not all patients denied care suffered devastating injuries." For example, closed fractures of the mandible and open-rib and nasal fractures were all considered "untreatable."
The sagacious student of history will agree with the explanation for the unfavorable prognoses rendered in these cases, and that is, that the strong influence of the Code of Hammurabi which "holds strict accountability to the physician with uncomfortably severe penalties... " made Egyptian physicians wary of treating those injuries which carried a high degree of failure or deformity. Thus, rather than treating these common injuries with the medical expertise they were known to possess, they falsely rendered the prognoses unfavorable and abstained from treating those unfortunate patients whose injuries they considered too risky and likely to result in severe or lethal judicial reprisals.(2)
The implications, of course, are tremendous and very relevant to the present adversarial litigious climate that permeates our society. What we have found here is that knowledgeable Egyptian physicians, the most knowledgeable in the ancient world, were advising that medical treatment be withheld as a self-protective measure --- defensive medicine --- against the potentially harsh government reprisals applicable in cases of treatment failure in victims with life-threatening wounds, or as in the case of nasal fractures, patient dissatisfaction.
Like Moses, who received the Ten Commandments from God, Hammurabi claimed to have received his laws from the Babylonian sungod, Shamash, god of justice. The laws are inscribed in 4000 lines of Akkadian cuneiform writing containing 300 legal provisions covering not only an oppressive (state-imposed) code of medical ethics but also voluminous rules regulating businesses, criminal laws, agricultural provisions, and rules of conduct in all ways of life, public and private.
The jurisdiction of the Code was enforced by the king-priest and his jurists throughout the kingdom and established what is known as "an eye for an eye" justice: The state was supreme. The Code was not only extremely oppressive to medical practitioners but also very stifling to medical innovation. Medical progress would have to flourish elsewhere.
Codified laws were for the first time formulated to regulate public health and enumerate the duties and responsibilities of physician-priests. Along with these duties went stiff legal penalties...thus, as we have seen, under King Hammurabi, the first code of "ethics" was imposed by the state on the medical profession.
Practice Guidelines --- Ancient Egypt
At the time of his travels, the great historian, Herodotus (c.484- 424 B.C.), the Father of History, was meticulously collecting information about different peoples, their cultures, and their faraway lands. It was from his accounts about Egypt that we get a glimpse as to the status of Egyptian physicians in the 5th Century B.C.: "The art of medicine is thus divided among them: Each physician applies himself to one disease only, and no more. All places abound in physicians; some physicians are for the eyes, others for the head, others for the teeth, others for intestines, and others for internal disorders."(3)
According to the ancient Greek historian, Diodorus Siculus (fl.20 B.C.), Egyptian physicians were regulated by the state:
In expeditions and journeys from the country all are treated free of charge, for the physicians receive a salary by the state, and they provide their services according to a written law compiled by many famous physicians of ancient times...and if after following the laws read from this sacred book they are not able to save the patient, they are safe from any accusation, but if they act contrary to the written law, they may expect capital punishment, as the legislator considers that only few men would have knowledge better than the method of treatment observed for many years and prescribed by the best masters.(3)
There is no doubt that the message corresponded in the above paragraph gives a boost to the present-day proponents of practice guidelines, which are seen by medical politicians both as educational tools for physicians as well as potential defense against medical liability. Opponents of practice guidelines call it "cookbook medicine," decry the fact that in today's litigious climate, neither parameters nor guidelines will deter litigation and in the final legal analysis, may be more of a double-edged sword for practitioners. Clearly, what we do know is that practice parameters could actually reduce medical innovation and will lead to mediocrity in a stagnant medical environment, a one-size-fits-all approach to assembly-line medical care. Practice guidelines, if history is any guide, will serve at best as an utter exercise in futility(4); and, at worse, a source of coercion and intimidations(5) against physicians of the future.
We don't have to search too deeply, for in our own age, practice guidelines, particularly in the managed care setting, have led to stifling of medical progress, along with diminution of efforts in research and development --- all in the name of standardization, medical conformity, and cost containment.
How Oppressive Laws Hinder Medical Progress Babylonia
And so ... centuries later in the land of Hammurabi, during his travels among the Babylonians, Herodotus (5th Century B.C.), the Father of History, noted:
They bring out their sick to the market-place, for they have no physicians; then those who pass by the sick person confer with him about the disease, to discover whether they have themselves been afflicted with the same disease as the sick person, or have seen others so afflicted; thus the passers-by confer with him, and advise him to have recourse to the same treatment as that by which they escaped a similar disease, or as they have known to cure others. And they are not allowed to pass by a sick person in silence, without inquiring into the nature of his distemper....(6)
What Herodotus had so clearly described is the regression of Babylonian medicine to a primitive state of affairs, with a primeval and crude method of "data collection." Once again, as a result of oppressive government intervention and deleterious authoritarian decrees, medical practice (and ethics) had deteriorated. We learn from the writings of Herodotus that, so oppressive had become the state of affairs for practitioners, that physicians had become scarce or non-existent, and thus, the whole community was forced to act as a sort of medical collective, utilizing a communal approach to treat the many illnesses and afflictions suffered by the common folks.
And, in Egypt, as is evident by thorough and careful review of the Edwin Smith papyrus, the physicianpriests were known to have definite knowledge about the diagnosis, treatment, and even prognosis of traumatic injuries, that their own physicians were loathe to treat.
In short, knowledgeable Egyptian physicians withheld certain "high-risk" surgeries and even relatively innocuous procedures (that is, practice defensive medicine) to fend off harsh but lawful reprisals from potentially poor outcomes (medical liability).
We can sunnise that Mesopotamian (Babylonian) surgery which was even more restricted was hampered even further, with the result that there were no significant innovations, and progress was essentially nil --- all as a result of both the requirement for following rudimentary "practice guidelines" and the authoritarian legacy of the Code of Hammurabi.
From the foregoing, it becomes eminently clear that the practice of medicine cannot thrive in a milieu of government oppression, coercion, and intimidation. And, as we have seen, this is true, whether we are speaking of an antediluvian era 4,000 year ago and the legacy of the harsh Code of Hammurabi, or the worsening, deteriorating practice environment of today, including the present incarnation of the Health Security Act of 1993, the fraud and abuse provisions of the Kassebaum-Kennedy Bill(7) being debated in Congress, and the current dictates of corporate socialized medicine/managed care.
So, my confreres what has been done to our profession has taken place (and continues to take place) with our tacit consent. Dedicated and devoted physicians in the trenches, the honest healers of time immemorial, have always been an easy mark because they have been laboring in the trenches, putting their trust and livelihood in the hands of the leadership of the large mainstream organizations led by "moderates" and "compromisers" who have betrayed our trust from within the gates of Medicine. And so, today, we have gatekeepers, rationing, loss of autonomy, and yes, defensive medicine, practice guidelines, and potentially the loss of innovation and technology so necessary for medical advances.
The lessons of history sagaciously reveal wherever the government has sought to control medical care, medical practice and physicians (whether directly or indirectly), the results have been as perverse as they have been disastrous. In our own century in the Soviet Union and Nazi Germany, medicine regressed and descended to unprecedented barbarism under the direction of the state.
For vigilant and informed physicians and citizens, there is no longer room on the sidelines. If we are not successful in our efforts, our fate will be the catastrophic stumble and inevitable plunge down the bottomless pit of corporate socialized medicine, and the enslavement of the medical profession under the yoke of managed care. This plunge would signify the commencement of a New Dark Age of medical care regression; your enslavement as caring physicians; health care rationing for your patients; and perhaps, in the nottoo-distant future, a brave new world of government or corporate-imposed, active euthanasia rationing by death - as the ultimate and most efficient form of cost control.(8) You can be sure the brunt of this cataclysm will be borne out, and the responsibility placed, on the shoulders of physicians. The biggest losers will be your patients. Yes, this conflict represents a moral, ethical, and political struggle that we can not afford to lose.(9)
1. Faria MA. Vandals at the gates of medicine --- historic perspectives on the battle over health care reform. Hacienda Publishing, Inc., Macon GA, 1995, p.5.
2. Ibid., p. 26.
3. Ibid., p. 24.
4. Terrell HP. Practice guidelines: micromanagement on a broad scale or a modest proposal for omniscience. Medical Sentinel 1996;1(1):11-15.
5. Orient J. Practice guidelines and outcomes research, part I: insights from the Clinton health care task force. Medical Sentinel 1996;1(1):9-10.
6. Faria, op. cit., p.36.
7. AAPS Action Alert, "Clinton Criminalization of Medicine enacted by Republican House, Fax network, 4/25/96.
8. See "Assisted Suicide/Euthanasia" in the Medical Sentinel 1996;1(2):3.
9. Faria, op. cit., p. 358.
Dr. Faria is a consultant neurosurgeon and author of Vandals at the Gates of Medicine (1995) and the newly released Medical Warrior: Fighting Corporate Socialized Medicine (Macon, Georgia, Hacienda Publishing, Inc., 1997). He is also the Editor-in-Chief of the Medical Sentinel.
Originally published in the Medical Sentinel 1996;1(2):6-9. Copyright ©1996 Association of American Physicians and Surgeons.