Testimony by Dr. Michael J. Smith M.D. Before Republican Members Of The Senate Finance Committee

September 23, 2010

Mr. Chairman and honorable members of this committee — thank you for the opportunity to testify before you today.

My name is Dr. Michael Smith.  I am a board certified specialist in both Internal Medicine and Pediatrics.  I have been fortunate to have treated patients for over 22 years.  I have traveled to Washington today on behalf of the seniors advocacy group, the 60 Plus  Association to convey the fear and frustrations thousands of doctors have about the President’s Health Care Reform legislation.  I believe the law in its current form will do irreparable harm to America’s health care system and jeopardize the health and safety of our citizenry.



Mr. Chairman, my fundamental opposition to a government takeover of our health care system stems from the fact that it destroys the doctor patient relationship, encourages non-participatory rationing of medical care and will adversely affect access to care for patients.  I will leave the economic discussion of the impact of this bill to others, however I am skeptical there as well.  When the government attempts to “bend the cost curve,” as President Obama likes to say, it is seniors, the sick and the weakest segment of our population that will suffer.  That is not to say we should not be concerned about waste and fraud.  We should.  But when government is making decisions about how to cut costs, patients will be harmed.   Period.  To this I can already provide examples.  Prior history has demonstrated that rapid changes in the reimbursement to hospitals have resulted in higher post surgical mortality[1], something none of us want to see again.

Government mandates and restrictions are inherently applied with a broad brush often with little connection to or concern for the quality of care that individual patients receive. Patients become reduced to being statistics and cost charts. The practice of good healthcare on the other hand is all about individualized care. We as doctors and health care professionals seek to find the treatment that works best for the individual patient, the person. Where we are tasked with saving that individual’s life, the government will be tasked with broadly cutting costs and as a result, under this present plan will limit doctor’s choices and options to treat patients, interfere with the sacred doctor/patient relationship that is the basis of any doctor visit, and yes, endanger the lives of patients.

So, it is inevitable that enactment of the President’s health care reform bill will lead to rationing of care.


 I don’t have to tell you that the Health Care Reform bill was primarily written in backrooms. The bill was passed with a combination of political pressure and a false sense of urgency. And now it is being implemented without proper congressional oversight.  As you are aware there was the “Louisiana Purchase”[2] and the “Cornhusker Kickback” as well as deals cut for industries as well.   Everyone was taken care of except the patient.[3] And now, the legislation is being implemented and empowered without proper congressional oversight.

The legislation contains hundreds of special interest provisions that will cost taxpayers billions of dollars.  We can debate the cost of the bill ($2.5 trillion over ten years) or whether the tax increases contained in the legislation will really reduce the deficit.  But as a practicing doctor who treats patients my concern is much bigger than the policy impact of taxes and spending or whether an individual mandate is the best way to address the issue.

My concerns center on the elimination of the doctor patient relationship, creation of “effectiveness” panels such as a Medicare Advisory Board and a Health Care Commissioner and economic decisions that will limit access to care.  As the mandate is to reduce the cost of health care, this will be done through denial of care and a continuation of the increasingly lowered reimbursement to health care providers.   Presidential advisor and appointee Dr. Ezekiel Emanuel has written extensively about who should get medical treatment, insisting that a doctor’s oath should include working for the greater good of society, not necessarily the greater good of the patient.[4] I will tell you these are dangerous comments, but comments that speak directly to the true nature of this health care bill.

These fundamental beliefs found their way into the legislation and are now being implemented into law.

— Section 6301 of the legislation permits the Health Secretary to disallow treatments or coverage that is not considered “reasonable or necessary.”  Doctors and their patients used to make those decisions; now government will.

I would like to know who will be this executioner.  Who will explain this to the family of my patient, who chose to pursue full treatment for his extensive stage IV metastatic colon cancer? It had spread to multiple sites in his lungs and his liver.  He chose to fight so he could be there for his family.  He was given only 6 months to live, but his will saw him thru another 8 years of life. It was a tough eight years but he chose them.  This month his most recent PET scan (a test potentially denied him?) revealed no evidence of disease.  Today he chooses to continue as a role model for those who chose to fight their cancer.

— An 18-member “Independent Payment Advisory Board” [Sec. 10320(b)] is given the duty, on January 15, 2015 and every two years thereafter, with regard to private health care, to make “recommendations to slow the growth in national health expenditures . . . that the Secretary [of Health and Human Services] or other Federal agencies can implement administratively” [Section 10320(a)(5)(o)(1)(A)]. The Board is directed to limit private health care spending so that it is below the rate of medical inflation. In turn, the Secretary of Health and Human Services is empowered to impose “quality” AND “efficiency” measures [Section 10304] on health care providers (including hospices, ambulatory surgical centers, rehabilitation facilities, home health agencies, physicians and hospitals) [Section 3014(a) adding Social Security Act Section 1890(b)(7)(B)(I)] which must report on their compliance.  In layman’s terms, this amounts to doctors, hospitals, and other health care providers being told by Washington just what diagnostic tests and medical care is considered to meet “quality” and “efficiency” standards – not only for federally funded health care programs like Medicare, but also for health care paid for by private citizens and their nongovernmental health insurance.

All of these provisions and more hurt seniors, patients and undermine the ability of doctors to care for the sick while offering false hope to those who need care.  The President has said that his plan extends coverage but does so by inviting 16 million Americans into Medicaid.  Currently only half of the doctors in the United States accept new Medicaid patients.  This number will certainly drop of this I am certain.  The practice of medicine as it occurs in most locales in America is a small business.  If the reimbursement continues to decline, clinics from Matewan, WV to Logan, IA will go out of business.  One cannot operate a clinic regardless of your efficiency on a reimbursement that is well below the cost of normal operating revenue.  This simple economic effect was illustrated recently when Medicare simply eliminated a code for reimbursing physicians for performing consultation services.  The effect of this was that physicians were forced to limit their exposure to these inadequately reimbursed encounters.  Twenty percent of physicians surveyed stated they would not increase the amount of business that is Medicare and five percent stated they would see NO new Medicare patients[5].  This survey is only a month old!  We stand looking at the tip of the iceberg. Access to care will worsen NOT improve under this health plan. Knowledgeable, skilled elder physicians will opt out rather than being paid less than their auto mechanic who pulls neither call nor the continuous responsibility that comes with being a physician.

These are just a few of hundreds of provisions contained throughout the legislation that will empower bureaucrats to dictate to doctors how “best” to provide treatment.


Limitations to access to care are created based on availability of clinical care givers, the perceived necessity of the visit and the economics of the portion of the visit for which the patient will be responsible.  I just gave examples of the economics that may limit access to health care under this new bill. Please remember that the majority of clinics in America are small businesses.  They have overhead, they are impacted by tax, and employment policy.   The present health care law will increase the amount of patients under the reimbursement rates of Medicare and Medicaid.  The potential exists to push the clinic to a point where they cannot afford to see more patients at such low reimbursement levels.  This was exemplified by the Mayo clinic decision to not take new Medicare patients in Arizona last year.  If a clinic goes out of business, they can care for no one.  Will the government at that point step in and become the clinic in these small towns across America?  The need to permanently solve the SGR fix is thus easily demonstrated.  With a 22% decrease in payment, access will be very limited.

The American people were led to believe that they would be able to keep their doctor, and their health plan, the president promised them this on national television.  The provisions of this bill do not allow for this to occur.  Already we will see the plans beginning to change due to Medicare Advantage funding.  This will change the access of care to the physician of the patients’ choice.   While access to care can be improved with physician extenders, i.e. nurse practitioners and physician assistants there will be by all estimates still be a significant shortfall.  If as predicted elder physicians retire early, this access issue will only increase.


Besides Social Security, there is no position in government that has a bigger impact on America’s seniors than Medicare and Medicaid.  President Obama has appointed passionate rationing advocate and defender Dr. Donald Berwick to head the head the Centers for Medicare and Medicaid Services.  This is a potentially ominous sign for every senior or near senior in America. Berwick’s nomination was so controversial that it was never approved by the Senate. His views were never even subject to a Senate hearing I don’t need to tell you that, you would have been talking to him.  Ignoring the advice and consent responsibilities of the Senate, the president gave Berwick a recess appointment.  Berwick is running an $803 billion agency – and will be responsible for implementing another $500 billion in funds from the new health care law – without Senate confirmation.

I have never met the man, yet like thousands of physicians I am apprehensive of the approach he will take.  It’s no secret that Berwick is a proponent of the British Health Care system and it’s rationing of care.  While speaking in England in 2008, he praised the British system and said “Any health care funding plan that is just, equitable, civilized and humane, must redistribute wealth from the richer among us to the poorer and the less fortunate. Excellent health care is by definition redistributional.”

In a 2009 interview for Biotechnology Healthcare, for example, Berwick praised the heavy-handed rationing methods of Britain’s National Institute for Health and Clinical Excellence (NICE) and said, “The decision is not whether or not we will ration care; the decision is whether we will ration with our eyes open.”Rationing of health care and limiting access to care works very well, until you fall ill.

Mr. Chairman, we have already reached the same rationing crossroads here in America.  For the first time that I can ever recall, an FDA advisory board recommended withdrawing government approval of a life-extending cancer drug because of what I believe to be cost concerns. Though it has proven effective for many patients, the FDA panel recommended the drug Avastin only be available to those  breast cancer patients who could afford to pay out of pocket for it. The FDA’s recommendation on Avastin for late stage breast cancer patients opens the door to the same rationing for every other treatment. I fear that the recent attempts at the FDA may be an emerging model of rationing where politicians are never required to face the public and patients that are denied care, they will be able to hide behind the FDA decision making process.  But the result will be the same—patients will be denied lifesaving care because the treatment was deemed too expensive by the government.

Sen. David Vitter (R-LA) attempted to get to the bottom of the FDA’s subjective decision-making process regarding Avastin. Since July, Vitter has sent repeated inquiries to FDA officials regarding the agency’s pending decision on the use of Avastin to treat advanced breast cancer. To date, FDA officials have not cooperated with any of Vitter’s requests for information.  They have ignored him.  If they ignore letters of inquiry from a Senator, what hope do I have as a physician that they will allow my plea for the care of my patient?

We have a health care law drafted in secret, passed by people who never read it, being implemented by a man who was never subject to a Senate hearing and the bureaucrats implementing the provisions of the bill without bothering to tell a U.S. Senator about how they reached a critical decision that affects the lives of tens of thousands of cancer patients.  Is this the brave new world of government-run health care – life and death decisions made in the bowels of a building in Washington, DC without proper oversight or accountability even to the Senate?  This is the hallmark of disaster.  Yet I remain optimistic.  It is possible to improve the health and access in America.  We are a capable, willing and resourceful country.  As physicians we are constantly interested in self improvement, in better outcomes.  I am happy to share my views on achieving this on another day.  But today you must act.

This law must be addressed immediately, changes must be made. The longer we wait, the more damage will be done. Every new board that is created and empowered will be harder to close down and the decisions that these boards make will harm patients—real patients, with lives and families. The lives of Americans continue to be negatively affected without accountability or transparency.  The cost of this will skyrocket.  It will be a cost paid for with damage to patient/doctor relationships, to the inestimable financial burden of replacing the physicians who will no longer choose to practice under these rules, and most importantly the cost of lives who are not allowed to fight their cancer or illness. Senators, I attended the town hall meeting of the people of the 3rd Congressional District of Wisconsin, they did not want this bill.  You have the support of the American public; you have the support of physicians across this great country.  I truly mean the support of the physicians of America.[6] Like you we do not advocate no change, we advocate intelligent change that will provide better outcomes with better coverage, at lower cost without removing the individual rights our country is based upon.

I thank you all again for the opportunity to be with you today and share my perspective as a doctor and as an American. I would be happy to address any questions you might have.

[1] Did postoperative mortality increase after the implementation of the Medicare Balanced Budget Act? Seshimani, Zhu, Volpp;

[2] http://thehill.com/blogs/blog-briefing-room/news/87449-obama-defends-louisiana-purchase

[3] http://www.washingtonexaminer.com/politics/Drug-lobby-showers-money-on-its-hero-Harry-Reid-97882064.html#ixzz0t0jhH98O

[4] http://online.wsj.com/article/SB10001424052970203706604574374463280098676.html

[5] Nixed Medicare consultation codes force doctors to make cutbacks.  Amednews Aug 2, 2010.

[6] This statement goes beyond a discussion of the American Medical Association, which truly only represents a small estimated 17% of American physicians, well short of the majority.

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