Two Of The Most Dangerous Words You've Never Headr--"Distributive Justice"

From Campaign For Liberty:

Two of the Most Dangerous Words You've Never Heard


By Adam Murdock, MD

View all 15 articles by Adam Murdock, MD

Published 10/27/10



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Few words in our society have undermined our freedoms as substantially as the word "fair." This is because the idea of fairness has been twisted and used to change the definition of rights.



The original definition of rights as espoused by the founders was meant to protect "We the People" from all others by providing basic freedoms that could not be infringed upon. These rights provided a basic framework upon which individuals could determine their own destinies. However, they did not provide for or ensure that the outcomes of one's aspirations, laborers, or laziness would be equal or protected.



As Thomas Jefferson puts it:

[We in America entertain] a due sense of our equal right to the use of our own faculties, to the acquisitions of our own industry, to honor and confidence from our fellow-citizens resulting not from birth but from our actions and their sense of them (1).

Despite this historical precedent, over the last two centuries those who have differing philosophies about rights, including beliefs about equitable outcomes, have sought to provide a justification for such a fatal change in the basic definition of rights. Using images of the downtrodden, victims of medical happenstance, and depictions of greed, they have been successful at galvanizing emotional sympathy for their cause at the expense of intellectual honesty. Thus, as a result of their efforts, they have methodically removed generally applied rational basic rights/protections in favor of emotionally-acquired guaranteed entitlements for the "disadvantaged." In addition, the definition of rights has been transformed from one that protects the people from others, into the right of government to force its will on the people. This, supposedly in the name of the general welfare. Subsequently, the new definition of rights has been adopted by many countries who now incorporate the equitable distribution of outcome model as the basis for palliating the general public and justifying the creation of socialist systems.



Thankfully, it was not long after these countries incorporated socialism that its flaws became apparent and the rapid disintegration of some of these systems ensued. As a result of this logical turn of fate, the word 'fair' has subsequently received bad press.



In response to the decloaking of government-sponsored fairness, the intellectual proponents of outcomes based equality have masked their ideology under other terms. One of the most prevalent of these that is used with increasing frequency is the term 'distributive justice.' The former philosophers of fairness, now renamed the philosophers of distributive justice, are concerned with the same issues, namely, how to equitably distribute "limited" resources coercively among the members of society.



Some of these philosophers also propose that equitable distribution will not only create more fairness, but engineer a more stable society. They believe that "when people have a sense that they are at an unfair disadvantage relative to others, or that they have not received their fair share, they may wish to challenge the system that has given rise to this state of affairs (2)." Therefore, "societies in which resources are distributed unfairly can become quite prone to social unrest" while on the other hand "redistribution of benefits... ... can sometimes help to relieve tensions and allow for a more stable society." For many, it is a belief in engineering and social control that serves as the true basis for distributive justice; and the ideology of fairness is its public battering ram.



What social engineers fail to disclose to the public is the method that is actually needed to accomplish their "stable" society. Most individuals, including myself, will not easily give up their hard earned goods and fought for freedoms to government bureaucrats. Clearly, it is obvious that some sort of coercion is necessary. More specifically, we can see from many examples over the last century that the primary administrator of such an engineered society is the government, with coercion as its sword of implementation. The implementation phase of these "peaceful and stable" dystopias has often required mass slaughter of sometimes millions of dissident citizens. In the end, the creation of these controlled societies was far more destructive than the supposedly unstable free societies they were designed to replace.



In addition, what are we to make of the homogenized "stable" individuals that these engineers sought to create? What will the final result of their society be? Will these mindless, spiritless followers serve to foster innovation and prosperity in their new roles as the bedrock of a utopian society? Will they have the courage to challenge existing theories, harvest new ideas, and produce for their fellow citizens? Unfortunately, as can be seen from these very same utopian societies, if the host is killed, the parasites often perish as well. The lot of citizens in the Soviet Union, China, Cambodia and others has consisted of a race to the bottom, devolving into mass starvation, depravity, and helplessness that is often sufficient to eventually instigate rebellion in even these the most pliable and "cultured" of citizens.



Now that most of us have seen the end from the beginning by personally witnessing to the rise and fall of the utopian dream in the Soviet Union, China, and other failed socialist regimes, it is up to us to serve as watchmen on the tower by pointing out the logical progression of these same policies, regardless of what they are called, within our own countries.



This is where the idea of distributive justice, especially as it pertains to the loss of medical freedom under the Patient Protection and Affordable Care Act (Obamacare), has reared its ugly head. As the implementation of the Act nears, I have heard a startling increase in the discussion of fairness under the code words distributive justice in the medical community. In particular, I have noticed that this discussion is frequently arising from physicians and medical administrators sympathetic to the idea of finite medical resources and the need for physicians to determine who should or should not get access to these limited resources. It is often argued with more frequency and ferocity that the elderly have less utility in society and that those resources used to treat the aged (i.e. surgeries, medicines, life-sustaining treatments) should be reserved for those that have more productive potential for society. I often hear physicians trying to convince their more elderly patients that certain procedures or tests may not be useful for them, with the obvious subtext being that in the doctor's opinion they are too old. If the patient insists on obtaining the procedure despite physician reluctance, then these very same physicians will often deride these patients for being selfish, stealing resources from others, and irrational. In the end, while you seldom hear them talk to patients about distributive justice, the reasons for such discussions with patients often revolve around this issue.



The morale rationale for this type of thinking among physicians, and within medical ethics, incorporates the idea of physician beneficence. Beneficence relies on the belief that the physician should not only do what the patient wants but what they feel as medical professionals is best for the patient. For some physicians, this sometimes means overstepping a "naïve" patient's autonomy in order to serve their own philosophical beliefs.



However, the danger of subverting patient autonomy to the ideology of a physician, or societal/distributive beneficence, is that physicians have not always acted within the bounds of ethical principles. For example, during the Nuremberg trials, physicians performed horrific experiments, in the name of the social good, on Jewish prisoners, the mentally disabled, and others. Thus, the idea that the patient should rely wholly on the beneficence of their doctor was shown to provide inadequate protections, and sometimes even invited horrific results. In other words, this reaffirms the notion that where conflict should arise between beneficence and patient autonomy, that patient autonomy should rule. In the end, the patient may be the only one that has their best interests at heart. Unfortunately, this recent push against patient autonomy is truly frightening and should serve as a warning to all people.



This potential conflict of interest is more apparent in cases involving end of life issues or high-dollar procedures and tests where the greatest amount of "societal" resources are at stake. It is in these cases that the pressure on physicians to "preserve" societal resources is highest, and therefore the potential for abuse is the greatest.



Where does this pressure come from? Currently, the greatest amount of pressure upon physicians to preserve societal resources comes from some medical ethics experts, hospital administrators, and fellow medical professionals seeking to cut hospital and societal costs. Unfortunately, while cutting costs and enhancing profits frequently serves as the real reason behind such pressure, increasingly they are using distributive justice, as codified by many in the medical intellectual establishment and bioethical profession, as their public reasoning.



As this idea has taken hold in the medical community an important question remains. Who will the distributors of equitable justice be in this new society under Obamacare and as foreshadowed in other countries? Will it be the bureaucrats who make the policies? Although the bureaucrats and politicians make these policies, they lack both the public presence and public trust to pacify patients. Therefore, they continually seek to inculcate and convert relatively trusted professions (i.e. doctors and nurses) into virtual pseudo-bureaucracies. These pseudo-bureaucracies, formerly professions, will be forced under threat of financial hardship, and as part of licensure, to carry out the dictates from their new superiors in government.



Even if we agree with the philosophers of distributive medical justice, we have to ask ourselves if physicians, under supervision by government, can really serve as adequate allocators of such resources. Before answering that question in the affirmative we first have to assume that that all physicians are always impartial and caring and, secondly, that physicians are reliably equipped to distribute these resources simply based upon their specialized medical education and the ethical reputation of the profession.



Let's tackle the second assumption first. Does a doctor's education and reputation actually provide them with intimate knowledge of timing of death? Do physicians know if the resources saved to provide for a younger more "useful" person will actually bear productive fruit, and that the elderly truly have less utility? If we answer in the affirmative to these questions then we erroneously exalt the physician to the station of an omniscient God.



Personally, one of the most difficult situations I have encountered as a physician revolves around having end of life discussions with patients themselves or with loved ones. The difficulty in these discussions lies not in the certainty of death, as we will all eventually die, but rather in the expectation for knowing the timing of death. People, understandably, always want to know when death may occur. The problem is that the doctor often relies on only anecdotal evidence or prognostic averages to make an educated guess, which can be erroneous. Every doctor I know can name many instances when patients that were deemed as "goners" survived to live meaningful lives. Clearly, while doctors may have marginally increased accuracy in relation to timing, they are by no means accurate. They will miss the target or even the side of the barn much of the time.



What about the supposed disutility of the elderly as compared to the young? This assumption about the elderly lies in the marginalization of life experiences and equates utility to physical prowess. What they may lack in strength has in most cases been traded in for intellectual energy and experience. It would be a severe mistake to prefer labor energy over a world of knowledge gleaned over the anvil of a lifetime. I have learned more in shorter periods of time about the realities of life from the elderly than any other group. I wouldn't trade that advice for anything.



Can we trust physicians with this much power? The asking of this question reminds me of the examples of Nazi physicians discussed above who used their absolute power over their patients to abuse, maim, torture, and kill. There are also many other examples of horrific behavior on the part of physicians who reportedly acted in the name of the public good. One particular example, the infamous Tuskegee experiments, were performed by the U.S. Public Health Service (PHS) under the guise of public good (i.e. improving the general health of African Americans). These experiments involved testing the long-term effects of untreated syphilis on African Americans without their proper consent. Moreover, "over the course of the project, PHS officials not only denied study participants treatment, but prevented other agencies from supplying treatment (3)."



According to Tuskegee University, "the Tuskegee Syphilis Study remains one of the most outrageous examples of disregard of basic ethical principles of conduct (not to mention violation of standards for ethical research). In 1976, historian James Jones (1981) interviewed John Heller, director of the Venereal Diseases unit of the PHS from 1943 to 1948. Among Heller's remarks were the following: "The men's status did not warrant ethical debate. They were subjects, not patients; clinical material, not sick people (3)."'

Arthur Caplan, PhD, director of the medical ethics program at the University of Pennsylvania and author of When Medicine Went Mad: Bioethics and the Holocaust (Humana Press, 1992), characterized Tuskegee as "America's Nuremberg." He said: "Tuskegee was really the experiment that set American medicine on its ear. I think Americans had this belief that they couldn't or wouldn't do the kind of evil things that the Germans did. Tuskegee was a gigantic wake-up call (4)." He added: "Americans basically thought that the German doctors were crazy, or lunatics, or third-raters. One way to cope with the involvement of medicine in Nazi crimes was basically to demonize and peripheralize them."

Lest you think that this type of experiment is novel in American history let us examine another example from the same time period. It recently came to light that the very same U.S. Public health service purposely infected Guatemalans with sexually transmitted diseases including syphilis, chancroid, and gonorrhea without obtaining their consent. The study called the U.S. Public Health Service Sexually Transmitted Disease Inoculation Study of 1946-1948 was funded by the U.S. National Institutes of Health (NIH) according to the current NIH director, Dr. Francis Collins. Dr. Collins adds that the published literature contains more than 40 other U.S.-based studies "where intentional infection was carried out with what we could now consider to be completely inadequate consent in the United States (5)."



It is clear from these and many other examples that German physicians were not unique in their corruptibility, despite the reluctance on the part of the American public to accept that fact. These tragedies demonstrate unequivocally that physicians, even in the United States, are far from incorruptible and can carry out atrocities in the name of science and the public good.



More recently in this decade, the scandals regarding foreknowledge of the cardiovascular side-effects of Vioxx and revelations of the severely conflicting financial relationships many physicians have, by pushing certain treatments, with both government and pharmaceutical companies has brought the medical profession once again into disrepute.



A recent article published by the esteemed British Medical Journal entitled "Conflict of Interest and pandemic flu" highlights this corruptibility by showing the massive conflicts of interest in the medical profession (6). For example, physicians advised governments to spend billions of dollars on the swine flu which turned out to be as Fiona Godlee, editor in chief, calls it "such a damp squip." She goes on to say that "given the scale of public cost and private profit, it would seem important to know that WHO's key decisions were free from commercial influence." She continues:

An investigation by the BMJ and the Bureau of Investigative Journalism, published this week, finds that this was far from the case. As reported by Deborah Cohen and Philip Carter, some of the experts advising WHO on the pandemic had declarable financial ties with drug companies that were producing antivirals and influenza vaccines. As an example, WHO's guidance on the use of antivirals in a pandemic was authored by an influenza expert who at the same time was receiving payments from Roche, the manufacturer of oseltamivir (Tamiflu), for consultancy work and lecturing. Although most of the experts consulted by WHO made no secret of their industry ties in other settings, WHO itself has so far declined to explain to what extent it knew about these conflicts of interest or how it managed them.

This lack of transparency is compounded by the existence of a secret "emergency committee," which advised the director general Margaret Chan on when to declare the pandemic—a decision that triggered costly pre-established vaccine contracts around the world. Curiously, the names of the 16 committee members are known only to people within WHO.

Cohen and Carter's findings resonate with those of other investigations, most notably an inquiry by the Council of Europe, which reports this week and is extremely critical of WHO. It concludes that decision making around the influenza A/H1N1 crisis has been lacking in transparency.

Despite the supposed patient protections that were put in place after Tuskegee, these 21st century examples reveal that physicians are still corruptible. These modern examples also confirm the now obvious fact that it is never prudent to trust anyone with power over life or death, regardless of how beneficent they are or their profession professes to be. Unfortunately, this is where many physicians and government officials go figuratively off the rails. They assume that all physicians are benevolent, respectful, and impartial. I am sure that the vast majority of Nazi physicians did not abuse patients, that most researchers do not perform unethical experiments, and that most physicians do not let financial or political influence cloud their recommendations. However, once that power has been given then the bad apples are given free rein to practice true terror under the guise of their profession.



If, despite these warnings from history, this power is ceded to physicians and bureaucrats, what modern distributive rationale will be used as justification and what existing bureaucracy could possibly serve as its implementer? A good example of the modern distributive rationale has been codified by Dr. Emmanuel Ezekiel, healthcare advisor to President Obama. In his book, The Complete Lives System, he says younger patients should be prioritized due to limited resources because they have yet to live their lives. He wrote in the journal Lancet in 2009, "unlike allocation by sex or race, allocation by age is not invidious discrimination; every person lives through different life stages rather than being a single age. Even if 25-year-olds receive priority over 65-year-olds, everyone who is 65 years now was previously 25 years (7)."



The bureaucratic basis for distributive justice already exists from within Obamacare and will possibility come from the forthcoming fifteen member independent payment advisory board that will be in charge of Medicare resource distribution (i.e. payments to physicians, medical suppliers, pharmaceutical makers, and hospitals). They will be in charge of determining who and what can distribute care, and what resources they will have at their disposal. They can very simply accomplish distributive medical justice by punishing or rewarding these groups financially for certain types of medical practice. This can and has already been done by simply increasing or decreasing the reimbursement schedules or lumps sum payments for treating certain types of illness over others and by incorporating the patient circumstance into the equation.



In addition, the establishment by the Centers of Medicare and Medicaid Services (CMS) of federally controlled best practice or core measures, electronic health records, and other measures in the name of improving medical care will only serve to oversee physician compliance to federal directives about "quality, justly" distributed medical care. There already exists a threat to cut physician and hospital reimbursement based upon inadequate compliance to federal standards of medical care and failed acquisition of federally-approved electronic health records. While government will use rhetoric about improving patient care, the real reasons behind such "improvements" will have more to do with cost-cutting and control than anything else.



Dr. Emmanuel sums it up best when he says, "vague promises of savings from cutting waste, enhancing prevention and wellness, installing electronic medical records and improving quality of care are merely 'lipstick' cost control, more for show and public relations than for true change (8)."



It is obvious that individual should have complete freedom to chose what they do with their body as long as their choices don't remove the rights of others. In a free market system of medicine, the patient would have no limit to what services he or she could obtain at any age so long as there are willing providers. In a system of confiscation, such as under Medicare or Medicaid, the distribution of benefits is indeed limited to the budget and therefore the issue of fairness will inevitably rear its ugly head along with quotas, rationing, etc. This is where Obamacare becomes the logical stepping stone down the path to the destruction of medical care in America. It will put even more people, money, and power under the auspices of the government which will seek in its "infinite wisdom" to distribute these finite resources "justly."



Increasingly, the distributors of medical justice will lie in the hands of faceless administrators with physicians and nurses serving as their public representatives. It may be that physicians will become more known for being deniers of care rather than givers of care. The logical progression of medical distributive justice will require physicians to tell patients that there are more worthy individuals than themselves. As the end providers of care, they will serve as the propaganda purveyors to convince patients that it is more benevolent to give up their own lives, utility, and value to community, family, and others so that somebody else can profit. In order to alleviate patient concern, they will couch this propaganda with other terms that often signify moral superiority like selflessness and self-sacrifice.



Is there an alternative to this horror story? Supporters of such a system often portray the eventuality described above as inevitable. They often say that the current system is unsustainable and that further socialization serves as the only solution. While the current system is highly flawed and unsustainable, there is another alternative. This alternative relies on a true conception of equality based on the philosophy of liberty as espoused in the constitution and declaration of Independence. These documents do not claim to engineer society in their own image, but rather permit individuals within society to evolve as they see fit with their basic rights as their foundation. Likewise, a free market system of medicine devoid of government is the only system that can provide unlimited, evolving, and innovating care defined not by society but by the individual. In addition, the combination of affordability and accessibility that the free market creates will also provide the highest quality care to the most people. It is within the free market that solutions should and can be found for every medical problem in the most equitable and fair matter while preserving the freedom of the individual to obtain the care they both need and want.



If we fail to take heed, we have already seen the future, the end from the beginning, and it is not pretty. The answer lies not in protecting the current system, which will lead to the inevitable socialization of medicine under pressure of relentless propaganda, but in deprograming the public through education while simultaneously encouraging deregulation and decentralization consistent with true medical freedom as protected in the free market and as guaranteed by our natural, God-given rights.





Copyright © 2010 by Adam Murdock, MD.







1.Thomas Jefferson: 1st Inaugural, 1801. ME 3:320.

2.Maiese, Michele. Distributive Justice. http://www.beyondintractability.org/essay/distributive_justice/. Retrieved 2010-09-30.

3."Research Ethics: The Tuskegee Syphilis Study". Tuskegee University. http://www.tuskegee.edu/Global/Story.asp?s=1207598. Retrieved 2010-09-30.

4.Steps Still Being Taken To Undo Damage of "America's Nuremberg". Tuskegee University. http://www.tuskegee.edu/Global/Story.asp?s=1207565. 2010-09-30.

5.U.S. Apologizes for infecting Guatemalans with STDs in the 1940s. http://www.cnn.com/2010/WORLD/americas/10/01/us.guatemala.apology/index.html?hpt=T2. Retrieved 2010-10-01.

6.Godlee, Fiona, Editor in Chief. Conflicts of Interest and pandemic flu. BMJ 2010; 340:c2947. http://www.bmj.com/content/340/bmj.c2947.full.

7.Lancet, Vol 373, June 31, 2009.

8.Health Affairs, Feb. 27, 2008.