Morally right but ethically wrong? It’s possible

Can we start out by stipulating nobody wants kidney disease patients to die?

If so, we can avoid the disingenuous binary choice that seems to be suggested by Rep. Shelley Berkley's latest campaign ads, two of which feature kidney disease patients thanking her for saving the kidney transplant program at University Medical Center.

The question is not - as the ads suggest - whether Berkley should have acted to save lives.

The question is, was it proper for Berkley to intervene in cases that directly involved her husband, kidney specialist Dr. Larry Lehrner, without proper disclosure?

Who couldn't sympathize with Treasure Island chef Stanley Copeland, who says he found out four days before Christmas that he needed a kidney transplant? Who couldn't share his relief when he learned that - in part because of Berkley's efforts - the transplant center at UMC would remain open?

"Shelley Berkley stood up for everybody in Nevada who was on dialysis," Copeland says in the ad. "When people say Shelley Berkley put money in her own pocket to keep the transplant center open, that's ridiculous. It's all about taking care of people in Nevada, keeping people alive, saving lives."

Copeland is right that Berkley didn't profit. Although Lehrner's medical practice oversees UMC's entire kidney program, the contract he had with the hospital would not have changed even if the Centers for Medicare and Medicaid Services had terminated transplants. (Lehrner's practice doesn't perform transplant operations.)

But this is not just about saving lives. Berkley wrote to and telephoned the head of the Centers for Medicare and Medicaid Services to plead for the program, without disclosing her husband's involvement. That's questionable, even without a pecuniary benefit.

Moreover, Berkley did not need to be personally involved. With fellow Reps. Dean Heller and Jon Porter on board, to say nothing of Senate Majority Leader Harry Reid, the program would have been saved even if Berkley had abstained because of her conflict.

In a second ad, kidney patient Patrick Clary says he was scared when he heard the transplant center would shut down. Without UMC, patients would have to travel to Arizona or California for surgery.

But wasn't Clary equally concerned about the reasons the federal government had for shutting down the program in the first place? Four people died after undergoing transplants at UMC, deaths the hospital itself acknowledged as failures. The attention brought to the issue by the threatened closure helped turn the program around, but it wasn't as if Medicare officials acted arbitrarily.

A third ad, however, glosses over a salient point: "When cuts were threatened to reduce Medicare coverage, Shelley Berkley fought to stop them. And because her husband's a doctor, now she's being accused of wrongdoing."

No, Berkley's being accused of wrongdoing because she allegedly used her position in Congress to contact fellow elected officials and ask them not to cut Medicare reimbursements for kidney care, which prevented Lehrner from losing money. That's a direct pecuniary benefit to Lehrner, and by extension, Berkley.

(Left unspoken in the ads is the defense Berkley's lawyers will surely make before the House Ethics Committee, assuming it gets that far: That her vote was allowed by House ethics rules because it affected Lehrner no differently than any other kidney doctor. That's far less dramatic than fighting against cuts in health care spending. And the ad ends with an attack on U.S. Sen. Dean Heller for his votes for a Republican budget that would transform Medicare into a voucher program for younger workers.)

There's no reason not to assume the noblest of motives for Berkley's interventions for kidney patients. But it's still possible to be morally right and yet cross an ethical line.

Steve Sebelius is a Review-Journal political columnist and author of the blog SlashPolitics.com. Follow him on Twitter (@SteveSebelius) or reach him at 387-5276 or SSebelius@reviewjournal.com.