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Regulation cannot replace encouragement.
(Cop-operation ain’t co-operation, is it, Mister Rogers?)

Catch 222.  Every time we mean to do something good we shoot ourselves in the foot.

American nursing homes were deficient.  Patients too often were ill-fed and ill cared-for by underpaid under-qualified overworked staff.  They were visited infrequently by attending physicians not in attendance.  Painful crises led us to scrutinize the nursing home industry much more intently than we had, usually through state health departments.

Medicare laws formed an infrastructure by which the federal government could have an effect by categorizing and specifying which care would be paid for3.  Tasks and settings were separated into skilled nursing facilities, rehabilitation facilities, long-term care facilities, and other special sorts of clinical service operations.  Pressure was applied by dint of denial of payment as well as by state licensing.  Levels of care were improved remarkably, lives saved, no doubt.

More careful and thorough regulation of nursing facilities indeed was necessary for we could not bear to see our old and sick warehoused in inadequate neglect and squalor.  This time we could not easily blame the white male doctors so we tried to blame the profit-driven absentee-landlordly proprietors, many of them small corporations, many family-owned, many having begun out of a willingness to attend to those who needed attention, taking on onerous tasks despite managerial complexity and significant risk of financial losses4.

But regulatory functions are accomplished by having “laws with teeth”.  There must be sanctions for infractions.  As in clinical practice we have been burdened by the need to practice “defensive medicine”, in nursing facilities in the stead of altruism (the willingness to care for an other person) we are habituated to a chasing of our tails on a squirrel-cage of intimidation.

The State agency  whose mandate and intention are to improve patient care and safety intimidates the proprietary corporation; which in turn demands a perfect “straight-A” report card from the administration of the facility; which harries the nursing staff of the facility and distracts their attention from the patient.

In the course of all this furor (gingham dog, calico cat, nursely mouse and manager rat) the otherwise-ignored clinician is inundated by papers to be signed whether they make clinical sense or not.  (The squirrel-cage for bureaucracy is fueled and lubricated by documentation--“Just sign it, Doctor; the State said so.”).  The patient’s care is determined by “laws” which are not laws (for they are mostly interpretations of regulatory guidelines rather than legislated statutes).

A problem engenders a solution; that solution engenders more problems.  Catch 22.  Gotcha! In this case we have to regulate nursing facilities for the sake of patient care, but the processes of regulation often disrupt or detract from patient care.

Only in America5.  (Maybe not “only”, but it is our own institutions we are concerned with here.)  It is clear to me that the problem in this example (and others) is the adversary or competitive attitudes we so readily assume, as if there were no alternative, as if all this were “natural”.  Adversary behaviors we pursue so energetically neither accomplish our goals (to care for those who need and deserve care), nor do they ultimately produce profits or solvency for the underwriters (whether corporate or public).

The secret isn’t very secret.  If we focus on getting the job done in economic fashion we will  thereby save resources both to underwrite the real expenses of providing health care for all and to reward corporations and professionals for their hard work and skills.  If we minimize reduplication of diagnostic and therapeutic maneuvers, and eschew the application of too-risky or proven-ineffective care we will also enhance the incomes of professional specialists and health care provider organizations and corporations because of the efficiency with which we will do an increased volume of clinical work.  

Clinical endeavor rightly is for the sake of the patient, as we have seen throughout these inquiries; and benefits of the health of the patient accrue to all concerned parties (family, community, employer, workplace, the economy, scientific progress, insurer, government and all the rest).  So, neglect of any patient results in injury to family, community, employer, workplace, the economy, scientific progress, insurer, government and all the rest.

Cooperation in providing personal caring for real patients will be the most economic style (as long as it is not dysfunctionally chaotic).  If a patient care system is not coordinated and cooperative, care may as well be provided by mere individual attendants (whether nurses, doctors or grandmothers); at least then there will be coherence rather than confusion. (My proposal for universal improvement of bureaucratic confusion is to assign each task to a single individual who can bulldog-like carry it from beginning to end.)

Too much care eventually kills.  We haven’t yet recognized that health care needs to be separated into two main lumps, “Fix-it Medicine” on the one hand, and on the other a more flexible broader spectrum of care.  We can’t afford not only the cost in resources but the cost in pain if we try to fix what can’t be fixed, no matter how much high-tech wonderfully we may wish.  The patient herself will join in these decisions, along with an experienced professional clinician (thus the concept of “personal medical home”6.  To treat a patient well does not mean to throw every  molecule or procedure at that suffering person just because it is new or currently advertised; so we seek “evidence-based” medicine7 as a way to understand what really works, what is truly desirable rather than merely desired.

If only throughout our culture (or at least privately) we could acknowledge our mortality, we would emphasize simple comfort and function when those are appropriate for this patient’s welfare.  If only throughout our culture we could acknowledge our mortality we would save immense oceans of resources (material and human) to care for those who need to be fixed and to care for those who need to be comforted.

Our current radically two-tiered system produces glaring inequities.  Care which is improved by regulation in nursing facilities (and throughout the health care system) is unavailable to the “Uninsured”.  So, we need to have no “Uninsured”;  which may be accomplished by having no “Insured”.  If we all were covered by a coherent health care system insurance would be optional, no longer an arena of contention.

It is our unfounded prejudices and irrational misbehaviors which make our problems insoluble.  We choose competition over cooperation, the wish for immortality rather than respect for our real limitations, profit motives instead of willingness for health of our individual selves and throughout our community.  We can change those false goals well and quickly if only we will.

As with all considerations of health care reform (now acknowledged by most all of us as drastically needed and long overdue), fear of change will stun us, but lack of change is what paralyses and enervates us.  So it is high time for abrupt and radical change.  Tempered by cooperation we will progress away from this vicious cycle of regulation by intimidation.

Mud splashed on the skirts of all parties?  When we have hosed down this muddled mess we will have stripped away several narrow polarized vectors:  Intimidation versus Obsequious Compliance; False Immortality versus Real Neglect; High-tech Arrogance versus Cynical Nihilism.   These are not our true alternatives, for each of them is to be avoided. 

Now, are we willing to harmonize with each other and to attend to the whole picture rather than our own little fragments merely?  What if the seven blind men consulted with and trusted each other regarding that elephant?


1 I guess I like that phrase I coined cogitating about the dehumanization of health care by the power of not only government bureaucracy but the for-profit corporate bureaucracy so willing to engineer and manage government bureaucracy. I thank “Two-Gun” Annie Dawson for teaching me Latin in the seventh grade. “Ubiquitous” (from “ubique”=”everywhere”) , etymologically and spiritually related to her favorite Latin word “undique” which sounds and means the same..

2 Joseph Heller, Catch 22, (1961) a military novel of which it is said by our Wikipedia “multiple probabilistic events exist, and the desirable outcome results from the confluence of these events, but there is zero probability of this happening, as they are mutually exclusive.”

3 Medicare depends on the Balanced Budget Act and such which detail payment rules, not rules of clinical care.  Licensed health care clinicians are left “out of the loop” with regard to nursing facility and hospital regulation.  There is an underlying but unstated recognition that the law holds institutions responsible for following bureaucratic rules, especially  documentation (much of which requires the clinician’s signature)  The law (through state medical and nursing boards) holds the clinician responsible for processes and results of diagnosis, treatment and prognosis.  Clinical care nowadays is quite thoroughly controlled by institutions and corporations, and now increasingly by regulatory agencies; this is a generally unrecognized problem for which we have great need of clarification and equity.  “Freedom of choice” in health care can only be had by the patient through the equivalent of the “personal medical home” using the clinician as advocate; a strictly “consumerist” approach is neither functional nor realistic (see my criticism of Robert Veatch in “In Defense of the Oath”).

4 Thanks to Bill Ryan for reviewing his own experience in the nursing home industry.  The approach he describes sees three essential interdependent parties to the enterprise:  patient, administration and employees, each of whose interests must be met for the sake of the others.  He reports no adversity with State regulators as their requests or recommendations were received and accommodated without question (for it is their job to make those rules, just a condition of everyday decorum, like traffic lights).  

5 Harry Golden Only in America (1958).  The humorist loves this country, as do I, and notes its idiosyncrasies with affectionate irony even when describing painful problems like racial segregation, as do I when I consider our health care system.

6 “Personal medical home” is defined by the American Academy of Family Physicians as the “focal point through which all individuals…receive acute, chronic and preventive care…”

7 Throughout the histories of medicine (e.g., Chinese, Greek, Arabic, et c.) we have sought convincing evidence of the efficacy of the various treatments.  Recently the work of Archie Cochrane, Scottish epidemiologist, has crystallized a new and formal study and use of “evidence-based medicine” (Effectiveness and Efficiency:  Random Reflections on Health Services [1972]).

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