Leonard M. Fleck

I agree with Professor ter Meulen that there is no need to make a forced choice between “justice” and “solidarity” when it comes to determining what should count as fair access to needed health care. But he also asserts that solidarity is more fundamental than justice. That claim needs critical assessment. Ter Meulen recognizes that the concept of solidarity has been criticized for being excessively vague. He addresses this criticism by introducing the more precise notion of “humanitarian solidarity.” However, I argue that these notions are still not precise enough and are in need of behavioral translation, especially in relation to the problem of fair health care rationing. More specifically, I argue that translation ought to take the form of a well-ordered process of rational democratic deliberation, which I describe and defend in this essay. Such a process is what is required to construct a working model of just solidarity as opposed to a merely abstract idealization of just solidarity

What does it mean to be a “just” and “caring” society in meeting the health care needs of the terminally ill when we have only limited resources to meet virtually unlimited health care needs? This is the question that will be the focus of this essay. Another way of asking our question would be the following: Relative to all the other health care needs in our society, especially the need for lifesaving or life-prolonging health care, how high a priority ought the health care needs of persons who are terminally ill have? Should any of the health care needs of the terminally ill be assigned very low priority? Or should all their health care needs be assigned the highest priority? If we reflect a bit, we will find ourselves greatly internally conflicted. On the one hand, the “caring” side of our moral self might see terminally ill individuals as being among the “medically least well off,” and therefore, deserving virtually any medical resources that will yield any degree of good for them.

Few in our society believe that access to health care should be determined primarily by ability to pay. We believe instead that society has an obligation to assure access to adequate health care for all. This is the view explicitly endorsed in the President's Commission Report Securing Access to Health Care. But there is an important moral ambiguity here, for this obligation may be construed as being either beneficence-based or justice -based. A beneficience-based construal would yield a much weaker obligation with respect to the distribution of health care. In the first section of this paper I argue that the President's Commission is committed only to this weaker construal of this obligation. In the second section I argue that such a beneficence-based obligation is really rooted in a libertarian conception of justice, similar to that recently articulated by Engelhardt, and that this conception is seriously flawed when it comes to effecting a just distribution of health care

Are DRGs just? This is the primary question which this essay will answer. But there is a prior methodological question that also needs to be addressed: How do we go about rationally (non-arbitrarily) assessing whether DRGs are just or not? I would suggest that grand, ideal theories of justice (Rawls, Nozick) have only very limited utility for answering this question. What we really need is a theory of “interstitial justice,” that is, an approach to making justice judgments that is suitable to assessing the social practices and institutions that comprise the interstices of our social life as opposed to its basic structure. Rawls's appeal to “our considered moral judgments” provides us with a useful starting point for this task, which we shall discuss in the first part of this essay. In the second part, we shall actually assess DRGs from the perspective of interstitial justice. What we shall show is that DRGs violate a large number of our considered judgments regarding a just approach to financing health care for the elderly in a cost-effective manner. This is true to such an extent that efforts to reform DRGs and make them fairer, such as the recent effort by Robert Veatch, should be abandoned. In the concluding section of the essay we discuss one especially pernicious feature of DRGs, namely, that they represent an invisible approach to rationing access to health care. In the minds of many this is one of the virtues of DRGs. That claim needs critical examination.

Evidence-based medicine (EBM), by its ability to decrease irrational variations in health care, was expected to improve healthcare quality and outcomes. The utility of EBM principles evolved from individual clinical decision-making to wider foundational clinical practice guideline applications, cost containment measures, and clinical quality performance measures. At this evolutionary juncture one can ask the following questions. Given the time-limited exigencies of daily clinical practice, is it tenable for clinicians to follow guidelines? Whose or what interests are served by applying performance assessments? Does such application improve medical care quality? What happens when the best interests of vested parties conflict? Mindful of the constellation of socially and clinically relevant variables influencing health outcomes, is it fair to apply evidence-based performance assessment tools to judge the merits of clinical decision-making? Finally, is it fair and just to incentivize clinicians in ways that might sway clinical judgment? To address these questions, we consider various clinical applications of performance assessment strategies, examining what performance measures purport to measure, how they are measured and whether such applications demonstrably improve quality. With attention to the merits and frailties associated with such applications, we devise and defend criteria that distinguish between justice-sustaining and justice-threatening performance-based clinical protocols

The debate around age-based healthcare rationing was precipitated by two books in the late 1980s, one by Daniel Callahan and the other by Norman Daniels. These books ignited a firestorm of criticism, best captured in the claim that any form of age-based healthcare rationing was fundamentally ageist, discriminatory in a morally objectionable sense. That is, the elderly had equal moral worth and an equal right to life as the nonelderly. If an elderly and nonelderly person each had essentially the same medical problem requiring the same medical treatment, then they had an equal right to receive that treatment no matter what the cost of that treatment. Alternatively, if cost was an issue because the benefits of the treatment were too marginal, then both the elderly and nonelderly patients requiring that treatment ought to be denied it. If there were something absolutely scarce about the treatment, then some fair process would have to be used to make an allocation decision

This is a book for reflective laypersons and health professionals who wish to better understand what the problem of healthcare rationing is all about. Ubel says clearly in the Introduction that it is unlikely that professional economists or philosophers are going to be very satisfied with this effort. For him it is more important (p. xix). This is a reasonable aim made achievable by Ubel's clear and engaging writing style. Probably the people who most need to be drawn into these debates are physicians and medical students, this because one of Ubel's central claims is that the need for is both inescapable and sometimes morally permissible. What he wants to reject is the view of many physicians that bedside rationing by physicians is never morally permissible and that healthcare costs can be contained without having to resort to rationing of any kind. Before I explore this point any further, it is necessary to summarize the larger argument of this book