Most physicians feel they are being over regulated. There are far too many government programs telling them how to provide patient care, and when the government isn’t interfering with their practice, the administrator of some HMO is on the physician’s back. All of this, of course, under the guise of keeping health care costs under control. I know this because, as Chief Public Health Officer, I wrote and enforced those regulations for over 22 years. In addition, I administered a Medicaid program and was the ever-diligent administrator of an HMO. What I discovered is that such programs don’t work.

I also discovered that physicians, until recently, thanks to their very strong lobby, have had it relatively easy when it comes to being regulated. Most other businesses carry a regulatory burden that makes the physician’s regulatory problems seem like a walk in the park. Many businesses have closed down due to over regulation and other businesses have fled the country to avoid the regulatory onslaught. Over two-thirds of the corporate attorneys surveyed by the National Law Journal stated that it was impossible for their company to achieve full compliance with all of the regulations.

I entered government service in 1957, when government regulation was still a relatively tame animal, based on a modicum of common sense. I never imagined the uncanny burgeoning of regulations that would grow out of this humble beginning. I never suspected the agencies empowered with their enforcement would gain such omnipotence. I certainly gave no credence to the possibility the medical profession might be crushed under the burden of government regulation. Yet the physician’s regulatory reprieve is near its end. Not even the once powerful AMA can keep the Environmental Protection Agency (EPA), the Occupational Safety and Health Administration (OSHA), the Food and Drug Administration (FDA), the Department of Labor, the Department of Health and Human Services (HHS), and other power hungry agencies at bay any longer. The physician’s time of reckoning has come.

The New Masters

The regulatory process in this country is not going to go away, it is only going to get bigger and nastier and, unfortunately, physicians are the next in line to fall under its oppression. Consider the following:

• Our regulatory system creates a power structure in government with no accountability to the voters. These agencies can write and enforce regulations without answering to anyone.

• Agencies are motivated to write more regulations, because our civil service system encourages growth. The size of the agency determines the bureaucrat’s power and income. Therefore, regulations are destine to increase until government micromanages every aspect of our business and our lives.

• As more regulations are written, more people will become injured. Antagonism between the people and the bureaucracy will grow, and enforcement will become more impersonal and more brutal.

• Many regulatory laws allow citizens to bring suit against an enforcement agency forcing the agency to take action against others. This tool allows radical individuals and groups to use regulations as a means of revenge against perceived enemies. For instance, several environmental groups used this provision to force the Fish & Wildlife Service to declare the Spotted Owl an “endangered species,” thus shutting down logging in the Pacific Northwest.

• Our government has already begun identifying problems with the medical community that it thinks need regulating. The medical community has been perceived as greedy and self-serving, the same labels attached to other enterprises just before they fell under the big regulatory umbrella.

• Enforcement attitudes within the administration have changed quite radically in the last 8 years. When George Bush entered the White House, he had something to prove. While Ronald Reagan issued orders to various federal agencies advising them to consider the impact they would have on individuals and businesses when enforcing regulations, George Bush had promised us all he would be tough on crime, while he promised the environmentalists he would be the environmental president. The results were immediate and dramatic. Ninety-four percent of all fines and all penalties ever imposed for regulatory crimes took place during the Bush administration. In addition, 69% of all prison time served for regulatory crimes resulted from Bush’s new doctrine, despite the fact some regulations had been on the books for over 50 years. Clinton, of course, would like to beat this record.

Unfortunately, this attitude not only permeated all federal agencies but most state and local enforcement organizations as well. Most tragic of all, it infected the courts and judges. Instead of looking upon minor regulatory infractions as misdemeanors, they were encouraged to “kill the bastards,” and kill they have. For instance, John Pozgai was fined $202,000 and spent 3 years in jail for failing to get the proper permit when cleaning up a dump on his property and replacing it with nice, clean topsoil. Charles Donahoo spent 4 years in jail because one pound of asbestos was accidentally released into the air when he demolished a building for a client.

Obviously, physicians are never going to clean up a dump or demolish a building, but once they are within the regulatory umbrella, they will fall under the same scrutiny as John Pozgai and Charles Donahoo and will be just as likely to make honest mistakes.

Eternal Vigilance

However, unlike Pozgai, Donahoo, and thousands of other property and businesses owners who have already been devastated by regulatory abuse, physicians have two advantages. First, they know what’s coming and are (or should be) in a position to protect themselves. Second, they can learn from the organizations that have blossomed in the wake of previous regulatory onslaught and can take advantage of the wisdom and skill that has been developed to fight this regulatory Armageddon. The question is, will they?

The answer, perhaps, lies in the sentiments expressed by three great historic figures who understood history and the cycles of governments. We can credit Plato with being first when he warned: “The penalty good men pay for indifference to public affairs is to be ruled by evil men.” Will Durant identified the process when he explained: “The political machine works because it is a united minority acting against a divided majority.” And, Thomas Jefferson offered the only solution when he said: “The price of liberty is eternal vigilance.”

Most people are far too busy with their daily lives to practice the “eternal vigilance” Jefferson demands, and physicians are no different. They like those who preceded them, like to assume someone else will take on that responsibility. There are, of course, those who will. Unfortunately, they are the very one’s Plato warned us about: the “evil men” who thirst after the $1.6 trillion dollars our government collects and distributes every year and lust for the power that comes with controlling this money. It has been my experience most people will not fight back until they are in danger of losing their homes, businesses, or lives. By this time, it is often too late. And despite the warnings, some physicians will gasp in disbelief when the regulator has them by the throat and they watch as their lives or their businesses slip away.

Fortunately, there is an answer to this crisis, but it requires every physician get involved. Physicians can no longer pretend the few who have taken up the banner on their behalf are going to save their livelihoods or their independence. It has gone beyond that.

Oklahoma criminal attorney Jerry McCombs estimates that a competent regulatory defense will cost between $250,000 and $500,000 and the outcome is never guaranteed. Physicians are always talking prevention. There is no better time than the present to take a good dose of prevention against regulatory abuse, especially considering the alternative.

Physicians, however, hold the key to this revolution, for without support from the medical community their mission will fail. The AMA, its members and affiliates constitute the largest and most financially powerful organization in this country. With physician support, this grassroots movement can be organized and focused into the political force necessary to once again make this a country guided by constitutional principles and not by special interests.

Eternal vigilance may not be free, but it is certainly much, much less expensive than the alternative.

References

1. Ray DL. Trashing The Planet, Washington, DC, Regnery Gateway, 1990.

2. Coffman M. Saviors Of The Earth, Northfield Publishing, 1994.

3. Arnold & Gottleib. Trashing The Economy, Free Enterprise Press, 1994.

4. Pollot ML. Grand Theft and Petit Larceny, Pacific Research Institute for Public Policy, 1993.

Mr. Mackie is a former Chief Public Health Officer and Medical Management Consultant. He is the author of Beat the Devil: How to get Government Regulators Off Your Back — Permanently! His address is 1790 Ellis Street, #8, Concord, CA 94520.

Originally published in the Medical Sentinel 1997;2(4):140-141. Copyright © 1997 Association of American Physicians and Surgeons (AAPS).