Mortal Peril — Our Inalienable Right to Health Care? by Richard A Epstein

Reviewed by Delbert H. Meyer, MD
Article Type: 
Book Review
May/June 1998
Volume Number: 
Issue Number: 

Richard Epstein, a Professor of Law at Chicago University, opens Mortal Peril with a scene from ABC’s “Nightline,” in a telecast originating at Chicago University on February 6, 1992. The topic for this town meeting was universal health care. Ted Koppel presided at the center table with five carefully chosen experts on health care. Behind him in successive tiers were five more rows of health care officials and politicians. Epstein was in the fourth tier, which was permitted to speak only if a staffer could persuade the central command unit they had something to contribute.

Nothing in the broadcast was left to chance. Although there was a short dress rehearsal, once the show went live there was an unannounced video segment that featured the heartbreaking story of a young girl whose narrow escape from drowning left her in a permanent vegetative state. Her parents had already exhausted their million-dollar health coverage and did not now know where to turn.

Epstein tried to persuade the staffer to allow him access to the microphone five feet away without success. The right reply to the parents, he wanted to assert, was that nothing at all should be done to keep their child alive. The tragedy occurred with the near drowning —all hope of recovery had passed. A national health plan that supplied unlimited catastrophic coverage could not have averted this tragedy or cared for her any better, and to treat her further in any system would only deny others minimal health care.

Epstein uses this example to set the stage for Mortal Peril and to demonstrate how emotions get in the way of realistic and logical solutions to national health care. Health care and the issues of life and death have never been ideal subjects for disinterested reflection.  His title “Mortal Peril” is not a phrase intended to boost reader confidence in the current array of legal reforms to the practice of medicine. Quite the opposite, it invites caution about the hidden consequences of reform that can backfire against its stated objective.

Implicit in the modern debates is an agreement on ends and a disagreement on means. The protagonists of the debate all start from one grand assumption, sometimes tacit, sometimes explicit, that health care is a “right” that should be made available to all Americans. Lost in the shuffle is serious consideration of individual rights and responsibilities that, as a matter of first principle, should deny the government any large or distinctive role in the health care arena. Epstein attempts to expand the debate over health care to cover ends as well as means.

He develops the argument that conventional wisdom is wrong insofar as it postulates large government solutions to the persistent problems in health care access and delivery. Noble intentions quickly lead to a tangle of hidden subsidies, perverse incentives, and administrative nightmares that in the long run often backfire on their intended beneficiaries, if not in the first generation, then — as with Social Security — surely in the second and third. Government schemes are not unlike organized Ponzi operations that eventually go broke by using the capital of later contributors to satisfy the obligations to earlier plan participants.

It is a mistake to assume that any well-functioning health care system requires a major infusion of government input and control. Few defend government activities in the name of socialism any more, given its clear failure in Eastern Europe. But remnants keep creeping back into the debate by emphasis on the “right to” and never the “freedom from.” The protection of all these rights invests government at all levels with vast powers to tax, to regulate, and to hire and fire the very individuals whose rights it is duty-bound to protect. Epstein suggests it is far easier to avoid trouble in the first place than eliminate or even reform a complex system already in place.

As our own bad example, we have Medicare. When it was established over 30 years ago, it initially covered only hospitalization — it was the medical profession that expanded it to include physician services to senior citizens. Now Medicare has been called the third rail of American politics: “touch it, and you die.” Despite the fact that its cost performance has run 639 percent over cost projections, Medicare is typical of government programs — once implemented, they become untouchable politically.

Epstein theorizes that martyrdom for some political figures may be the only viable alternative to the massive insolvency looming on the horizon. There is no easy design for a transitional scheme to allow us escape from our past sins. Political willingness to bite the bullet on Social Security is scarce, even though the only uncertainty in the debate is when the current system will lapse into bankruptcy.

The debate over national health care is a debate over the future of the United States that we as physicians avoid at our own peril.  Professor Epstein’s approach to the health care crisis may be too theoretical. In the final chapter he sees managed care as the only alternative on the horizon. He actually agrees that a five-minute office visit should be enough to look at a pair of ears or check a sore throat.  Although Epstein’s father was a radiologist, the son’s grounding in law dominates. The book could benefit from a clinician’s insight into the doctor-patient relationship. Still, Mortal Peril is a valuable resource for unregulated medicine even if we come to a different conclusion on managed care.

Reviewed by Delbert H. Meyer, MD
Carmichael, CA

Dr. Meyer is a pulmonologist practicing in Sacramento, an AAPS member, and serves on the editorial boards of Sacramento Medicine and California Physician. His address is 6620 Coyle Ave., Suite 122, Carmichael, CA 95608. (916) 965-5864. E-Mail: 

Originally published in the Medical Sentinel 1998;3(3):106-107. Copyright © 1998 Association of American Physicians and Surgeons (AAPS).

(Mortal Peril — Our Inalienable Right to Health Care? by Richard A Epstein, 503 pp, $27.50, ISBN: 0-201-13647-3, Reading, Mass, Addison-Wesley Publishing Company, Inc., 1997.)





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