Book Review

Mortal Peril: Our inalienable right to health care?

N Engl J Med 1997; 337:352-353July 31, 1997

Article

Mortal Peril: Our inalienable right to health care?
By Richard A. Epstein. 503 pp. Reading, Mass., Addison–Wesley, 1997. $27.50. ISBN: 0-201-13647-3

Richard Epstein has never seen a market he does not like. In Mortal Peril he argues that the market in health care should be expanded, not just for the provision of health care services but also for the sale of organs for transplantation and babies for adoption.

A virtue of this book is its reminder that the chief bioethical issues confronting the United States — what care, if any, should be guaranteed to citizens, who should receive scarce resources, whether euthanasia should be legalized, and other important matters — are embedded in larger moral and political concepts of rights, duties, and social values. The book's chief failing is that Epstein's larger political perspective is a simplistic and prosaic version of wealth-maximizing libertarianism.

Epstein claims that four “first principles” should form the basic political and legal framework for analyzing these issues. These are rules to protect ownership of one's person and labor; to protect ownership of property; to protect contracts exchanging property, capital, and services; and to protect people and their property against theft and deception. Unlike the philosopher Robert Nozick, who once advocated similar principles on the basis of Kantian respect for the inviolability of persons, Epstein justifies these first principles purely on utilitarian grounds. He claims they are necessary because they maximize the production of wealth and that “a society that is prosperous is superior to one in which people are poor.”

It takes little imagination to see how the maximization of wealth and these four rules of property protection lead Epstein to celebrate the market and the buying and selling of kidneys, babies, and everything else. Epstein argues that private transactions in the marketplace are the most efficient system possible, because they “encourage a high level of caution and prudence in making and performing contracts, which in turn reduces the level of mistake.” Government regulation results in distorted incentives, a redistribution of wealth, and problems with enforcement that guarantee inefficiency and deviations from the maximization of wealth.

According to Epstein, to maximize wealth we should foster free markets in all aspects of health care, relegating the government to the role of preventing deception and enforcing contracts. For instance, with government guarantees of health care, we have family members demanding whatever care is available for patients in a persistent vegetative state, because other people, through insurance companies or the government, are paying the bill. Conversely, in a market, people would request and receive only the medical care they could pay for and would therefore be prudent in choosing health care services. Families would not request low-yield life-sustaining care for their unconscious relatives.

As a law professor, Epstein should respect the facts. But he repeatedly states that the conceptual apparatus is more important than whatever “data [are] accumulated and analyzed.” Indeed, Mortal Peril is written as if Epstein had no interest in whether his theories and predictions were borne out by facts in the real world. He ignores cases and studies that flatly undermine his love of markets. In a book of more than 450 pages, he devotes 10 pages in the postscript to an analysis of managed care. This analysis contains striking errors, such as Epstein's claim that “much of the opposition to [managed-care] plans comes not from [their] customers, but from unions, physicians, nurses, and consumer advocate groups.” Polls show that the public is deeply dissatisfied with and suspicious of the managed-care market, making regulation of managed care very popular with state legislators.

Furthermore, in the current managed-care market, it is employers who choose the managed-care plans their employees use and the benefits packages they receive. This is not what most Americans understand as free choice in a free market and not what they had in mind in rejecting the Clinton administration's health plan in the name of choice. Pathetically, the current system lacks Clinton's universal coverage. One would have thought that this noxious form of paternalism would have provoked Epstein's ire, but all we have is silence.

Epstein's idealized world of market transactions also suffers from deep philosophical problems. Many scholars have considered whether his first principles are in fact the first principles people would accept as their political framework, and have provided decisive arguments against them. Reasonable people do not affirm the maximization of wealth as the central goal for themselves or their society. They care more about having the material resources necessary to lead meaningful lives. This requires some wealth but also guarantees of basic health services, as well as the rights of religious freedom, privacy, and political liberty. We esteem health not in itself but because it makes all the other valuable things in life possible. And people are willing to trade modest decrements in wealth, well short of poverty, for guarantees of these rights and access to health services so that they can pursue their life plans. They reject Epsteinism because it sacrifices fundamental civil and political rights on the altar of wealth maximization.

Applying market theory to health care introduces many structural problems originally elucidated by prominent economists, such as Kenneth Arrow, not otherwise known for their hostility to the market. These problems include imperfections of information, especially having sick people evaluate the quality of health care providers, the inability of charity to meet the health care needs of the poor, and most important, the temptation of insurers and managed-care plans to “cherry-pick” the healthy and avoid the sick. Epstein's response is an incantation of the virtues of market theory, without any systematic or serious effort to address these problems. For instance, he rejects the possibility of cherry-picking, arguing that “no company ever makes a dime from the insurance policy it does not write.” Freed from regulations requiring coverage of preexisting conditions and community rating, Epstein contends that companies would provide insurance to all comers. But for patients with cancer, human immunodeficiency virus infection, or diabetes, what is the value of insurance policies with exorbitant premiums that exclude coverage of their primary disease? This sounds like the Orwellian version of cherry-picking. Studies show that in any unregulated health insurance market, there are strong incentives for cherry-picking, and Epstein's repetition of market rhetoric or redefinition of terms will not make these incentives disappear.

In sum, Mortal Peril is perilous reading. In advancing his ideas, Epstein portrays himself as a “beleaguered scholar” advocating an unpopular view that “goes against the grain [and] received wisdom” who is trying to wrest control of thinking about health care from “special-pleading” enthusiasts who avow “remnants of a discredited socialism.” Yet Epstein's market logic is anything but a small voice crying out to be heard. It is the ascendant ideology of the for-profit health care sector. Epstein may be a beleaguered scholar, but not because his philosophy — with all its problems — is unfashionable.

Ezekiel Emanuel, M.D.
Harvard Medical School, Boston, MA 02115