For well over 20 years I have been arguing that someday we will have to ration health care for the elderly. I got started in the mid-1980s when I served on an Office of Technology Assessment panel to assess the likely impact on elderly health care costs of emergent, increasingly expensive medical technologies. They would, the panel concluded, raise some serious problems for the future of Medicare. The panel did not take up what might be done about those costs, but I decided to think about that question and wrote a book called, Setting Limits: Medical Goals in an Aging Society.

Mr. M. was a 77-year-old decisionally incapacitated long-term nursing home resident with chronic schizophrenia who was admitted to the hospital with a bacterial pneumonia. His past medical history was notable for deteriorating functional status over the past 2-3 years, urinary retention requiring chronic indwelling bladder catheterization, and two recent hospitalizations for urinary tract infections leading to sepsis. He developed respiratory failure soon after admission and was intubated and placed on mechanical ventilation. Follow-up studies suggested worsening pneumonia and acute respiratory distress syndrome (ARDS), as well as worsening kidney function.

This paper addresses two interconnected concepts — health disparities and social justice — as they pertain to screening, diagnosis of disease, and health care access among minority elders in the American society. Health disparities are defined as differences in treatment provided to members of different racial or ethnic groups that are not justified by the underlying health conditions or treatment preferences of patients. Disparities currently exist in many aspects of American health care. For example, when compared to whites, the infant mortality rate is higher for African Americans; health insurance coverage is lower for Latinos and African Americans; and ethnic minorities experience poorer care and survival rates for HIV, even after controlling for other confounding factors including income, insurance, health status, and severity of disease. Among older Americans, health status varies by race, income, and gender. Older minority Americans have consistently been shown to have worse health than whites of the same age group across measures of disease, disability, and self-assessed health. When compared to whites, elderly Latinos have higher rates of diabetes and disabilities, and older African Americans have more chronic conditions.

I was initially assigned the working title, “Pursuing Equality in Health Care for the Elderly Is Futile.” I prefer to think of that particular dead end of health policy as one of listening to the wrong music for too long. Hence, this article reprises and revises the title song of the early 1980s movie, Urban Cowboy, but with Johnny Lee’s original lyrics adapted as “Looking for better health [rather than either ‘love’ or ‘love of equality’] in all the wrong places.” The better goal is to achieve more progress in improving health for more people, including (but not limited to) the elderly. It need not be as futile as the pursuit of the elusive abstraction of “equality” for all — but only if we first move away from a path-dependent approach of recent times that remains too narrowly focused on statistical disparities in health care services received by particular groups.

A word, first, about the religious sensibility that I have found helpful to describe the care professionals owe to dying patients, particularly patients with advanced dementia.

That word is covenant. It is a biblical term; but, today, it covers such dubious devices as real estate covenants. A real estate covenant often operates below the moral level of a contract to wall some people out of a neighborhood. Classically understood, however, the word covenant helps probe the obligations of doctors to their patients more deeply than the notion of a contract. Covenants of the sort I have in mind and contracts appear to be first cousins; they both include an agreement and an exchange between parties. But, in spirit, contracts and covenants differ markedly. Contracts are external; covenants are internal to the parties involved. We sign contracts in order to discharge them expediently. Contracts are limited and time-bound — whether a contract to fix plumbing or to charge such and such for a medical procedure.

America is aging. But even more striking than the rise in the proportion of the population over age 65 is the unprecedented number of individuals who are living into their eighties and nineties. While many people remain robust well into advanced age, the dramatic increase in the number of the oldest old has brought with it an epidemic of Alzheimer’s disease and other dementias. Dementia is a highly prevalent condition — currently 5.4 million Americans have Alzheimer’s disease, a number which may rise to 16 million by 2050 if there is no breakthrough in the prevention or treatment of the disease — but it disproportionately affects those over age 85, striking between one-third and one-half of this cohort. Developing a reasonable approach to the medical care of older people with dementia will be essential in the coming decades.

In my career as a primary care physician and as a palliative care consultant, I have assisted many patients to die with their full consent. None of them wanted to die, and all would have chosen other paths had their disease not been so severe and irreversible. To a person, none of these patients thought of themselves as “suicidal,” and they would have found that label preposterous and demeaning. In fact, the kind of personal disintegration that the label implies is just what is trying to be prevented by those choosing this possibility. So on behalf of patients who have chosen this option, I reject the title of this debate as it unnecessarily tars the discussion with the suggestion of mental illness. In my primary care practice, I have also met many patients who were “suicidal” in the mental health sense of the word, and rest assured I have assisted none of them to die. In fact, I have at times had them involuntarily hospitalized to prevent them from carrying out their wishes.

I sometimes wonder whether some proponents of physician-assisted suicide (PAS) or physician-assisted death (PAD) think they own the copyright to such catchy phrases as “death with dignity” and “a good death” so that if you are against PAS or PAD, then you must be against a dignified death or a good death. If one removes the quotation marks around phrases like “aid-in-dying” or “compassionate care for the dying,” I am not opposed to such end-of-life care either. Indeed, how could anybody be against this type of care?

I do not want to abandon dying patients anymore than Dr. Timothy Quill does. Although, unfortunately, it will not always be easy to achieve the desired result, I agree with him that it ought to be a goal of medicine “to help people die well, to help them receive a good death” — or at least “the best possible” death under the circumstances. I part company with Professor Quill, however, when he urges us to change the law in the majority of our states so that in some circumstances patients may achieve a “good death” or a “dignified” one by means of lethal drugs.

For over 100 years, the field of contemporary public health has existed to improve the health of communities and populations. As public health practitioners conduct their work – be it focused on preventing transmission of infectious diseases, or prevention of injury, or prevention of and cures for chronic conditions – ethical dimensions arise. Borrowing heavily from the ethical tools developed for research ethics and bioethics, the nascent field of public health ethics soon began to feel the limits of the clinical model and began creating different frameworks to guide its ethical challenges. Several public health ethics frameworks have been introduced since the late 1990s, ranging from extensions of principle-based models to human rights and social justice perspectives to those based on political philosophy. None has coalesced as the framework of choice in the discipline of public health. This paper examines several of the most-known frameworks of public health ethics for their common theoretical underpinnings and values, and suggests next steps toward the formulation of a single framework.

There has been a growing concern over establishing norms that ensure the ethically acceptable and scientifically sound conduct of clinical trials. Among the leading norms internationally are the World Medical Association's Declaration of Helsinki, guidelines by the Council for International Organizations of Medical Sciences (CIOMS), the International Conference on Harmonization's standards for industry (ICH), and the CONSORT group's reporting norms (Consolidated Standards of Reporting Trials), in addition to the influential U.S. Federal Common Rule, Food and Drug Administration's (FDA) body of regulations, and information sheets by the Department of Health and Human Services. There are also many norms published at more local levels by official agencies and professional groups.

Any account of international standards should cover both scientific and ethical norms at once – the two are conceptually intertwined. Recent sources recognize that “[s]cientifically unsound research on human subjects is unethical in that it exposes research subjects to risks without possible benefit.”

Stem cell science, using both embryonic and a variety of tissue-specific stem cells, is advancing rapidly and offers promise to improve medical care in the future. Yet, with the notable exception of hematopoietic stem cell transplantation, a long-established approach to treating certain cancers of the blood system, this promise is long term and most stem cell research focuses on basic scientific questions or the collection of pre-clinical data. Although some clinical trials are underway, most are focused on safety, and novel effective therapy is likely a long way off. Despite the preliminary nature of most stem cell research, however, numerous clinics around the world offer stem cell “therapies” to patients today outside the context of a clinical trial. Although the number of patients who have received these stem cell-based interventions (SCBIs) is unknown, anecdotal reports suggest a substantial population of patients is willing to try them, despite unresolved questions about their safety and efficacy.

Whenever health care reform is debated, the state of the medical professional liability (MPL) system (i.e., medical malpractice system) in the United States re-emerges as an issue of importance. What exactly is broken with the MPL system and what the implications are is a point of contention among different stakeholder groups. Recent data demonstrate that medical liability premiums have been improving in recent years and the majority of premiums remained flat in 2010. General agreement still exists, however, that medical professional liability insurance premiums have become unaffordable for many physicians, and coverage has become less available, especially for certain medical specialties and in specific areas of the country.

Multiple factors go into the determination of medical professional liability insurance premiums including return on investments, reinsurance costs, claims frequency, average amount paid out on malpractice claims, defense expenses, and administrative costs such as underwriting expense.

Health professionals around the world have played an integral role in state-sponsored torture during numerous historical episodes, at times providing “expertise and a veneer of legitimacy to a process that involved violations of basic human rights.” These incidents demonstrate why legal and ethical standards among health professionals should be upheld, no matter the context. For example, health professionals during the Third Reich in Germany notoriously worked with the Nazi government to perform painful medical experiments on individuals without their consent and to supervise systematic killings. During the dictatorships in Brazil, Chile, and Uruguay and during apartheid in South Africa, medical professionals also participated in torture. In recent years, government documents, news reports, articles, books, and testimonies by detainees and health professionals have exposed the involvement of health professionals in the abuse and torture of detained individuals at U.S. detention facilities around the world.

When the Supreme Court in PLIVA v. Mensing determined that certain state tort law failure-to-warn claims against generic drug companies were pre-empted by federal drug regulations, the pronouncement was met with substantial criticism. In light of the Court's decision two years earlier in Wyeth v. Levine, where the Court allowed a similar claim against a brand-name drug manufacturer to proceed, many complained the resulting Levine-Mensing dichotomy created an arbitrary distinction between brand-name and generic drugs, allowing an injured patient's ability to recover to hinge solely on the happenstance of whether the individual had taken the brand-name or generic version. But, although Mensing cut back significantly on the ability of plaintiffs to make state law failure-to-warn claims against generic drug manufacturers, the case did not completely prohibit such claims. Instead, the Court banned only failure-to-warn claims premised on an argument that the generic drug company needed to change its label in order to meet state tort law duties. If plaintiffs can advance other theories independent of a formal label change, such as a failure to adequately warn a physician about a recent change to the drug's label, then they may still be able to proceed against generic drug manufacturers.

In the past several years, the Office of Inspector General (OIG), the branch of the Department of Health and Human Services that combats fraud and abuse, has begun enforcing a little-used provision that allows the government to exclude owners and managers of sanctioned entities based on their position in the company. The OIG's exclusion authority under 42 USC § 1320a-7(b)(15) is not unique in applying strict liability to individual executives as a tool to halt corporate misconduct, but it represents a startling change for health care executives who could now face exclusion for their company's misdeeds. While the OIG has expanded its use of this statute, it has indicated some hesitancy in exercising the full scope of its statutory power.

Pursuant to §1128 and §1156 of the Social Security Act, the OIG can exclude individuals and entities from participating in federal healthcare programs. The OIG has both mandatory and permissive exclusion power, based on the circumstances of the offense.