Medical Ethics Smack Down 2: Medical Ethics the Right Way

Posted on January 30, 2010
Filed Under Medical ethics |

In his last post, and not without some little trepidation over the propriety of doing so, DrRich offered to enter into a “constructive dialogue” with Bob Doherty of the ACP Advocate Blog, regarding the important topic of medical ethics. What occasioned this offer was the fortuitous selection of each of us as finalists in the 2009 Medical Weblog Award Competition, in the category of Best Health Policy/Ethics Blog.

Ever since the inception of the Covert Rationing Blog (and even before that, in his book) DrRich has taken strong exception to the new code of “medical ethics for a new millennium,” formally promulgated in 2002 by the American College of Physicians and several of its equally respected sister organizations (a grouping DrRich has termed the Millennialists). And when he saw that the ACP Advocate Blog (an official publication of a principle component of the Millennialists) had become a co-finalist for a Weblog Award in the category of medical ethics, DrRich could not resist offering to engage in a discussion over same.

DrRich is delighted to report that Bob Doherty, who, in addition of being the author of the ACP Advocate Blog, is also the ACP’s Senior Vice President of Governmental Affairs and Public Policy, has graciously agreed to the suggested exchange of ideas. Mr. Doherty reports that he will be posting a reply to DrRich’s “challenge,” once he finishes consulting with the ACP’s Center for Ethics, Professionalism and Human Rights. And so, dear readers, it appears that DrRich (your humble correspondent) has gotten himself into a situation. It appears he will be engaging - at his own instigation, no less - with actual, certified experts on medical ethics, regarding the topic: medical ethics.

DrRich can almost hear some of his loyal readers gasping: “Why, he’ll be skinned alive!”

But fear not. DrRich will not hurt him.  DrRich does not flay anybody, and promises to remain entirely civil and friendly in this exchange. DrRich, upon his honor, will see to it that Mr. Doherty (and whatever friends he may enlist in the cause) will emerge from this encounter entirely intact, integumentarily speaking.

In fact, to show his great good faith (and to level the playing field), DrRich will now break with all the conventions of debate, and before Mr. Doherty posts his reply, will lay the rest of his cards upon the table, so that the opposition will have the advantage of knowing ALL of DrRich’s arguments before they commit themselves to an answer. That is how dedicated DrRich is to keeping this competition friendly and respectful and fair.

DrRich’s Argument So Far

In his previous, challenge-issuing post, DrRich described how the “New Ethics” advanced by the Millennialists obligates the physician to strive for the ethical precept of Social Justice, which is to say, for “the fair distribution of healthcare resources.” So the doctor is now charged with deciding which patients may receive, and which may not receive, certain healthcare resources. To say it another way, under this new conception of medical ethics the doctor is assigned the duty to ration healthcare, covertly, at the bedside.

DrRich further described how this New Ethics fundamentally wrecks the doctor-patient relationship, and thus leaves patients to their own devices within a hostile healthcare system. In addition DrRich asserted that, once they adopted this New Ethics, physicians surrendered their claim to the title “professional,” and accordingly, made themselves fair game to whatever treatment, tactic, or travesty that any more powerful interest group (such as trial lawyers or Congress or regulators or insurers) may choose to foist upon them. Physicians no longer have any ethical standing for turning such attacks aside. Rather, as non-professionals, their ability to withstand attacks can only be proportionate to whatever socioeconomic or political pressure they can muster. So, as DrRich sees it, the New Ethics promulgated by the Millennialists is pretty much a disaster for both doctors and patients.

This is the extent of the argument DrRich has advanced so far.

Here Are The Rest Of DrRich’s Cards

The Millennialists did get one thing right in this effort. They correctly diagnosed the fact that old-fashioned, “classic” medical ethics, as advantageous as it may have been to both patients and doctors, is no longer consistent with reality.

Under classical medical ethics, the doctor’s one and only ethical obligation was to the individual patient. And so, classic ethics did not allow for any limits whatsoever on the medical services a patient may receive. If some bit of available medical care might offer even a small nugget of hope, doctors were obligated to provide it, no matter how expensive it might be to do so.

It is important to recognize that classic medical ethics evolved during a time when medical technology was relatively primitive, limited, and cheap, and more importantly, at a time when patients paid for their own healthcare. So when classic medical ethics was formulated, “healthcare spending limits” (though nobody talked in such terms back then), were self-imposed, by the patient.

But over the past 60 years medical technology has become very advanced and very expensive. And even more to the point, we have evolved a payment system in which people who receive healthcare are spending not their own funds, but rather, are spending publicly-funded, pooled resources. (Those pooled resources are either funded directly through the government, or are subsidized by the public indirectly, through tax-deductable insurance premiums).

It is this collective funding arrangement that has made classic medical ethics obsolete. It is neither feasible nor ethical to leave all decisions on how to spend society’s pooled healthcare dollars to individual doctors and individual patients, who can “take” as much of this pooled resource as they think they’d like to have, with absolutely no constraints. Such an arrangement eventually and inevitably leads to fiscal ruin.

By the 1990s, because spending limits were absolutely necessary, but at the same time classic medical ethics precluded setting such limits, doctors were being coerced by the private insurers and government payers to establish those limits covertly, through bedside rationing. This was the problem faced by the Millennialists when they set out to reformulate medical ethics, and they were right to make the attempt.

But unfortunately, this is where the Millennialists dropped the ball and, as DrRich has shown, settled upon an answer that just made things worse.

The Right Medical Ethics

Medical ethics would be “right” if it could be made to comport with the classic notion that the doctor’s primary obligation is to his/her individual patients (thus preserving the classic doctor-patient relationship), and yet still respected society’s need to control the spending of its pooled resources. That is, the “right” ethics will recognize both society’s needs and the needs of individual patients, will recognize that those two sets of legitimate needs are often in conflict, and will provide an ethical framework for resolving these conflicts.

That ethical framework, DrRich is pleased to announce, is not that hard to conceptualize.

We can solve this problem if we think of the ethics of healthcare as being organized into two concentric spheres. The outer sphere holds the ethical precepts adopted by society to guide the behavior of the healthcare system for the benefit of the entire population; for example, to set overall limits on spending. These outer-sphere precepts help to ensure that the needs of society as a whole are served in an ethical manner by the healthcare system.

Contained within (and therefore subject to) that outer sphere of societal precepts is an inner sphere, which holds the ethical precepts that govern the behavior of individual doctors and patients within the healthcare system. Inner-sphere precepts help to ensure that the rights and needs of individual patients are addressed in an ethical manner.

So, while the physician’s primary ethical obligation must always be for the benefit of the individual patient, and therefore the physician must operate according to ethical precepts that honor this duty to individual patients (the inner-sphere precepts), their behavior must also conform with the ethical constraints imposed by society on the entire population (the outer-sphere precepts).

We can think of the inner-sphere precepts as an immutable core of ethical beliefs that serve the fundamental American commitment to the autonomy of the individual, and of the outer sphere as a coating, fashioned by society and therefore changeable, that places an adjustable (and ethically derived) limit on the individual’s ability to consume pooled resources.

The Inner Sphere - Ethical Precepts For Individuals

The inner sphere of ethical precepts - the core - fully preserves the two precepts of classic medical ethics: the precept of Patient Welfare, which requires the doctor to always act to the benefit of his/her individual patient; and the precept of Patient Autonomy, which requires the doctor to respect the individual patient’s right to medical self-determination. So the inner sphere precepts completely restore the physician’s sacred obligation to the interests of their individual patients. And thus, also restored are both the classic doctor-patient relationship, and medical professionalism.

But while individual welfare and individual autonomy are critical (and comprise the chief ethical obligations of the physician), there are still legitimate limits to what the patient (and doctor) can reasonably expect to receive from pooled resources. When a patient demands that everything possible be done for them, they are exceeding the bounds of autonomy if doing “everything” means that other individuals would thereby be deprived of what otherwise would be rightfully their fair share of those pooled resources. These necessary bounds on individual autonomy are defined by the outer sphere.

The Outer Sphere - Ethical Precepts For Society.

Under any equitable healthcare system we are going to have to carefully define our outer sphere ethical norms, because those are the standards that bound and govern the inner-sphere behaviors of individual doctors and patients. This “outer sphere ethics” is also comprised of two ethical precepts, Societal Beneficence and Distributive Justice.

Societal Beneficence (or social welfare) requires the healthcare system to attempt to maximize the overall public good realized from whatever pooled resources society expends on healthcare. Social welfare is not the same as patient welfare, because what is optimal for an individual patient may often reduce the overall benefit to society, and vice versa.

Distributive Justice requires the benefits of the healthcare system to be distributed fairly, that is, in a way that does not discriminate against individuals or groups based on who they are.

The outer-sphere precepts honor society’s right to accrue optimal benefits from whatever collective resources society provides toward healthcare. That is, the outer-sphere precepts recognize society’s legitimate interest in limiting and equitably distributing those collective resources - and indeed, recognizes its ethical obligation to do so.

Medical Ethics And the Spheres

With this framework it is easy to see why the American healthcare system is presently inequitable and unethical. A hallmark of our present system is the lack (thanks to our culture of no limits) of any attempt to define effective outer-sphere societal norms, which would bound the appropriate behavior of individual physicians and patients. This deficiency makes it entirely feasible, and very common, for some patients to soak up a disproportionate share of publicly funded healthcare resources, while others (though they are also paying into the system) are left with next to nothing.

Achieving equity should have nothing whatever to do with adjusting the inner-sphere precepts. Individuals in the United States (to paraphrase the Declaration of Independence) have a self-evident right to their individual autonomy. The inner-sphere precepts are granted to us by our founding documents, and as Americans we should avoid modifying the inner-sphere precepts at all costs, since, once we do, we are abandoning our foundational principles. (This means that the Millennialists have done more damage, with their New Ethics, than merely harming doctors and patients. They have begun - or continued - undermining the principle of individual autonomy upon which the United States was founded. ) (Sorry to have to mention it.)

It is the outer-sphere precepts - those that can be negotiated legitimately by society, and which can legitimately limit the scope of inner-sphere behaviors - that we need to get into proper order.

A properly functioning system of medical ethics, therefore, would require society to devise workable outer-sphere precepts, and through these ethical precepts, establish transparent rules for setting necessary limits on collective healthcare spending. Then, within that system of rules, doctors and patients would work together, under a fully restored doctor-patient relationship, to assure that every patient has access to all legitimately available medical options. And the doctor would be allowed (and expected) to leave no stone unturned in obtaining those legitimate medical services for his/her patient.

This arrangement is analogous to the attorney-client relationship, where the attorney, acting within the bounds imposed by the law (outer sphere norms), is expected to do everything within his/her power to see that the client gains every conceivable, allowable advantage (inner sphere behavior) as they navigate the complex legal system.

To further illustrate this point, we Americans are now engaged in a debate over whether the Christmas Underwear Bomber ought to be eligible to receive all the legal protections afforded to an American citizen under the law. It is notable that ALL the discussion in this case is in regard to whether American outer-sphere legal norms should apply to the terrorist. Nobody is suggesting that his attorney ought to abrogate his (or her, as the case may be) sacred “inner-sphere” obligations to this client, in order to achieve some sort of “fair distribution” of society’s legitimate interests. Nobody expects the terrorist’s attorney to refrain from advising him remain silent, for instance, even though that silence may expose us all to substantial additional harm. The lawyer’s inner-sphere obligations are secure, even here. Rather, the argument we’re having is strictly limited to how we should apply outer-sphere legal protections to this case.

It is the right argument to have.  And it’s the very argument we should be having in regard to medical ethics.

And as much as DrRich does not like lawyers, he very much admires the tenacity with which they have preserved their fiduciary relationship with their clients - even in cases like this one. If physicians (and their organizations) had behaved with the professional integrity displayed by the despised attorneys, doctors and their patients would be in much less difficulty today.

A Plea

It is instructive to re-consider the New Ethics, which now has been formally implemented by the Millennialists, in light of DrRich’s proposed two-sphere system of ethics (which he audaciously labels “right ethics,” but to show his humility he will not use caps). The  New Ethics can be seen to have resulted by the simple expedient of moving the outer-sphere principles of Societal Beneficence and Distributive Justice (lumped together as Social Justice) down into the inner sphere, where individual doctors are expected to deal with them.

You can’t actually do that, of course, because these are intrinsically outer-sphere norms. But nonetheless, New Ethics formally puts doctors into the position of having to serve the best interest of their patients (individual beneficence and autonomy) while at the same time, covertly rationing their patients’ healthcare (societal beneficence and distributive justice). It is quite impossible for individual physicians to reconcile these competing interests in any equitable sense, and charging them with the job of doing so is illogical, nonsensical - and (DrRich respectfully submits) unethical.

Doctors and patients would be much better served if physicians’ professional organizations, such as the ACP, would revisit their new-age Physician’s Charter on ethics. DrRich understands that our modern society is exceedingly reluctant to establish outer-sphere rules for limiting pooled healthcare resources, and for distributing them equitably. But that reluctance is not a sufficient justification for physicians themselves, through their professional organizations, to initiate and implement new ethical standards that sacrifice their sacred obligation to their patients.

My goodness, can we not muster up at least the ethical sensibilities of lawyers?

*****

Mr. Doherty now has graciously agreed to participate in this discussion, and has by this act formally blessed this activity, thus rescuing DrRich from a condition of intemperance and unseemliness. (Thank you, Bob.)  Accordingly, DrRich, seeing no further need to serve penance, hereby withdraws his suggestion that you vote for his competitors in the Medical Weblog Award Competition. You may now, if you choose, vote for the Covert Rationing Blog without offending DrRich’s highly-developed sense of propriety. You may do so here.

Comments

19 Responses to “Medical Ethics Smack Down 2: Medical Ethics the Right Way”

  1. Robyn on January 30th, 2010 5:05 pm

    The rules regarding a lawyer’s duty to his client aren’t 100% “client-centric” and may in some cases require the lawyer to put societal interests above those of the client. See this for example (and note that it’s the ABA Model Code - not the rules that apply in any particular state - which vary a lot):

    http://www.law.cornell.edu/ethics/aba/current/ABA_CODE.HTM#Rule_1.6.

    In addition - lawyers aren’t required to do things for their clients that are futile or stupid. For example - a criminal defendant may have a public defender who has an obligation to pursue an appeal from a conviction. But if there aren’t any arguments that can be made with a straight face - the public defender will file what is called an Anders brief - which is basically a request to withdraw from representing the client because any appeal would be frivolous. And woe to the lawyer who winds up representing too many private clients in frivolous cases in terms of getting his head handed to him by judges.

    So - I’m not sure this is a terrific debating point in your favor.

    FWIW - I don’t agree with you or Mr. Doherty. It is up to the doctor to diagnose the patient and recommend a reasonable course of treatment. If the treatent recommended by the doctor isn’t reasonable - or the patient insists on something that isn’t reasonable - the person/entity paying for the treatment has the right to say no - and the doctor has a right to say no as well if the patient is unreasonable. Note that although most health care is paid for by third parties - patients do pay for health care as well. And a patient always has the right to pay out of pocket for something that makes absolutely no sense at all - assuming he will find a health care provider to do what he wants (going to Mexico for laetrile is one example that pops into my mind).

  2. DrRich on January 30th, 2010 5:18 pm

    Robyn,

    There are a lot of details I glossed over, for the sake of a post that is already too long. Of course there are exceptions to a lawyer’s duties to a client (just as there are to a physician’s, if a patient poses a danger to himself or others). I’m talking here about principles. And lawyers start out with the principle that the interest of the client is paramount (with exceptions like those you’ve noted), whereas, under the New Ethics, doctors start out with principles that overtly divide their loyalty, in each case.

    You seem to operate under the assumption that only unreasonable medical treatment is being denied. If that were the case, I would close down my blog - and we wouldn’t have an ethical dilemma in the first place. Rationing healthcare is withholding at least some useful healthcare from at least some of the people who would benefit from it. We can’t put enough money into the pool to buy all the useful healthcare for everyone who would benefit from it. There’s not enough money in the world for that. So, suggesting that doctors just need to be “reasonable” doesn’t solve the problem.

    Also, you and I and the Declaration of Independence all agree that, for any medical service that’s not covered by pooled resources (whether reasonable or unreasonable), it would be perfectly fine for patients to purchase it for themselves. Would that our progressive politicians believed the same thing!

    Rich

  3. Robyn on January 30th, 2010 7:28 pm

    I think perhaps you and others have to start examining the issue of “what is reasonable”. Not from the point of view of a “fair allocation” of health care resources (whatever that means it’s not my idea of a health care model) - but what makes sense for a particular patient.

    Your definition of reasonable care seems to be providing all possibly useful health care to all people who might benefit from it (paraphrase of your message). But implicit in that is the absence of any cost/benefit analysis. Of which precious little is done in the health care system (in fact - most of the doctors I’ve met in my life don’t have a clue about the cost of anything they order/prescribe - except perhaps for their fees - and even that’s iffy - I’ve had a $10k deductible for decades - so I like to know what things cost).

    Who can tell whether something is worth what it costs - when no one knows what it costs? And I can assure you that even when patients try to find out what things cost - it’s impossible (I know - I try all the time). Except in areas where the patient is usually paying 100% out of pocket for things like cosmetic surgery - dental work - etc. - no ambiguity there. You need a crown - this is what it costs.

    With some things of course - we know what it costs. Like a course of treatment with drug X costs Y. But finding out the benefit (or the possible risks for that matter) is pretty hard - if not impossible. Try finding large really long term decent studies (I’m talking about thousands of people over decades) of drugs like Premarin - Avonex - Aracept - whatever. You won’t find them. And it’s entirely possible in light of what I’ve read recently that all or large parts of some “cottage industries” in medicine - like those that revolve around stents - produce little or no medical benefit but substantial risk to many patients.

    Anyway - to get back to your main point - before we get into any discussion of rationing - and whether or how it should be done - I think a lot more work has to be done in the area of medical efficacy. If we found out that a substantial amount of health care dollars is being spent on things that don’t work (or worse - things that hurt patients more often than they help them) - or things that simply don’t make sense (like shoulder MRIs for people over 80 who have rotator cuff problems and aren’t surgery candidates - my father has had 3) - and I have little doubt that is the case - perhaps we would be able to afford more health care that is beneficial for more people and have less talk of rationing.

  4. DrRich on January 30th, 2010 7:39 pm

    Robyn,

    Actually, I have thought and written extensively about all this. Maybe you can find a copy of my book in a library or a city dump.

    I didn’t cover all nuances of what’s wrong with the healthcare system in this post, though, because I am trying to engage the ACP, at this particular time, in a debate on broad ethical principles.

    Rich

  5. james gaulte on January 31st, 2010 12:31 pm

    The inner sphere is easier to conceptualize: patient welfare and patient autonomy have been with us a long time and face little opposition.
    Much more is in dispute in the outer sphere’s conceptualization. There is a major world view split in regard to the broader notion of “justice” with Rawls’s view(or other variations) of distributive justice being only one.If belief in or adherence to social justice is a non-negotiable aspect of medical ethics , is it the case that “libertarians need not apply”? Hopefully I will present that thought more fully developed in the near future.

  6. Nicholas Fogelson, MD on January 31st, 2010 6:35 pm

    I have some personal experiences to bring to bear here.

    As part of my academic position, I am the staff gynecologist for our city’s Veteran’s Administration hospital. After being there for a year or so, I have become convinced that a socialized system can indeed work.

    In a regular system (grid III as you would call it) patients expect the doctor to defend their needs and interests against the insurance monster at all times. No matter what they want or need, useful or not, the doctor is expected to try to get it, whether that require something as easy as a prescription or as difficult as a detailed summary letter in a third insurance appeal request.

    Interestingly, the VAMC is different. Patients at the VAMC understand that there are three parts to the system - the patient, the doctor, and the VAMC - and they seem to get that these are three distinct things. The VAMC has a pretty well documented rationing system of what will be allowed and what will not be allowed. Anything on formulary, which is pretty vast, will be immediately approved. Another group of drugs require special considerations that are clearly documented when you try to order them. Similarly, certain types of consults require qualifications to be met. For example, dermatology consults are not allowed for rashes until certain easy fixes are tried.

    When a patient wants something that is outside of the standard protocols, the doctor just puts in a request with some reasoning of why it is necessary. As all the records are available to the folks that will review the request, documentation doesn’t have to be excessive. And then it just gets approved or not, and in general the patient accepts it.

    Its actually quite a good system. I almost never have a problem getting what a patient needs, and when a patient wants something that isn’t necessary, I have no problem getting them to accept that they can’t have it.

    Its the closest thing I have seen to a Grid I system, and I think it works well!

  7. DrRich on January 31st, 2010 6:45 pm

    Dr. Gaulte,

    Deciding on how to achieve social justice (outer-tier ethical precepts in my model) will indeed be the biggest challenge. There is an inherent conflict, as you know, between achieving maximum societal benefit, and achieving “fair distribution.” I believe that wanting to avoid addressing that very difficult question is why the professional ethicists have punted, and dumped the whole problem onto the physician at the bedside (thus wrecking the dr-pt relationship, &c.).

    Rich

  8. Robyn on January 31st, 2010 6:53 pm

    Hi Dr. Rich - Just wanted to let you know that you are too modest about the availability of your book (at least the book I think you’re talking about - you’ve written more than one - and I doubt most people would be interested in a treatise about antiarrhythmic drugs). Your “health care” book is available on Amazon and almost out of stock:

    http://www.amazon.com/Fixing-American-Healthcare-Wonkonians-Unification/dp/0979697905/ref=ntt_at_ep_dpi_3

    It would be nice if it were available in Kindle format (tell your publisher).

    I think one point you might consider in terms of your upcoming debate is how different economists and philosophers have different notions of - for lack of a better phrase - equitable distribution/redistribution of resources. I am sure there are some who are looking only at people within a particular country - like the US. But there are others - like Jeffrey Sachs - who believe in worldwide redistribution (perhaps not even redistribution - but the concept of giving away X% of the money we in the US have to everyone else in the world - especially the people who have nothing or next to nothing).

    If I were debating - I would try to pin Mr. Doherty and those who favor his POV down on this issue. Is he just talking about the US - or everywhere?

    And it isn’t an idle philosophical question for those of us who live in Florida. There is - as you may be aware - a reasonably big fight going on now between Florida and the US government about the US military air-lifting injured Haitians into Florida (don’t see all the hospitals up north in “Blue States” doing much of anything). If you have lived in Florida for a long time (as I have) - you know that hospitals like Jackson Memorial Hospital in Miami treat mostly indigents. But it usually refuses anything except stabilizing care to locals without any means of paying anything. And - if you lived in Florida - you’d also know that hospitals like Jackson Memorial and Shands/UF Jacksonville are basically local county hospitals whose constant losses are for the most part funded by taxes on local county taxpayers - the cost appears as a separate tax on your property tax bill. If you live in a county like mine - one south of where Shands is located - you can’t receive 100% indigent care at Shands (and - being a small county - we don’t have a similar local hospital).

    So when one talks about the “greater” or “common” good - what is the geographical area one is talking about? For a lot of people in Florida - many of whom are out of work - have lost health insurance - and are in or in danger of foreclosure - and who can’t get medical care - well if you read the chat boards - the answer to these airlifts is a resounding “nada mas” unless and until the federal government “shows us the money”. Robyn

  9. DrRich on January 31st, 2010 6:57 pm

    Dr. Fogelson,

    Fitting your description into my proposed ethical model, the VAMC supplies the outer-sphere “rules,” and the doctor and patient work together (inner sphere behavior) within those rules in an attempt to do what’s best for the patient. As you indicate, I think this ethical model would work more generally once people understand that pooled resources are being used to pay for everything, and so some rules on distribution are necessary. It is noteworthy that in the VA system, if a medical service is denied to a patient, the patient has a “right” to go outside the system and acquire that service with his/her own resources. Here’s where we will hit a sticking point with the single-payer advocates. If you can buy medical care with your own funds, that’s two payers.

    Rich

  10. DrRich on January 31st, 2010 7:07 pm

    Robyn,

    You are absolutely correct. The issue of what we mean by “social welfare” and “distributive justice” (the outer-sphere ethical precepts) is an extremely difficult and contentious question. And (as per my response to Dr. Gaulte) I believe that attempting to avoid answering that question is why the professional ethicists have punted the issue to the doctors at the bedside.

    Since I am not Kindle-ized yet, here’s an excerpt from my book that discusses those outer sphere precepts, and describes how I think they should be formulated. (But, again, these are very contentious issues.)

    http://guthealthcare.com/fixing-it/how_to_ration_healthcare_2.html

    Rich

  11. Robyn on January 31st, 2010 10:16 pm

    Dr. Rich - You are right about the VA. Simple example. My 92 year old WWII veteran father needs hearing aids. VA will only pay for cheap stuff unless you’re totally deaf or nearly so. But my father is free to buy the high end digital stuff anywhere he cares to (he can afford to buy the “high priced spread” on his own - but refuses to do so - but that isn’t a problem with the system - just a general refusal to spend money on stuff found among people his age who lived through the Great Depression). What if we had a system where no one could buy high end digital hearing aids unless the government could afford to buy them for everyone? Robyn

  12. Bob Doherty on February 1st, 2010 3:12 pm

    I asked Dr. Virginia Hood, chair of ACP’s Committee on Ethics, Professionalism, and Human Rights, to respond to Dr. Rich’s original post. Her reply, written before Dr. Rich’s “spheres” addition, is below:

    Much ado?

    We are surprised to see the comments about ACP and medical ethics. We urge readers to read the actual text of the ACP Ethics Manual (the College’s Code of Ethics) and the Professionalism Charter, which the College’s Foundation helped develop. Both say that social justice is a consideration in medical ethics, but the physician’s primary responsibility is to his or her patient. Resource allocation decisions are policy decisions and are most appropriately made at the system level, not at the bedside. The Ethics Manual discusses at length the clinician’s primary role as an advocate for individual patients. But it also notes the duty to practice effective health care and use resources responsibly, which are not incompatible with being a patient advocate. As the Manual notes, physicians should not overtest or otherwise overuse services:

    Physicians have a responsibility to practice effective and efficient health care and to use health care resources responsibly. Parsimonious care that utilizes the most efficient means to effectively diagnose a condition and treat a patient respects the need to use resources wisely and to help ensure that resources are equitably available [i].

    This is nothing new. Indeed using “effective and efficient health care and health care resources responsibly” for all patients is one way to minimize rationing as the result of an over costly system. The Manual also says that physicians and their professional societies should work toward ensuring access to health care for all and the elimination of discrimination, and deficiencies in availability and quality, in health care services. Likewise, the Charter on Medical Professionalism endorsed by ACP and 120 other medical organizations in the USA and internationally, states that professionalism involves commitments to improving quality of care, improving access to care, eliminating discrimination in health care, and yes, to a just distribution of finite resources. But the Charter explains the commitment to a fair distribution of finite resources as follows:

    While meeting the needs of individual patients, physicians are required to provide health care that is based on the wise and cost-effective management of limited clinical resources. They should be committed to working with other physicians, hospitals, and payers to develop guidelines for cost-effective care. The physician’s professional responsibility for appropriate allocation of resources requires scrupulous avoidance of superfluous tests and procedures. The provision of unnecessary services not only exposes one’s patients to avoidable harm and expense but also diminishes the resources available for others [ii].

    The patient-physician relationship and our medical ethics are the soul of medicine. The blog commentators are correct– it is important that we get it right.

    Thank you.

    Virginia Hood, MD, FACP

    Chair, American College of Physicians Ethics, Professionalism and Human Rights Committee

    ——————————————————————————–

    [i] American College of Physicians. Ethics Manual Fifth Edition. Ann Intern Med. 2005; 142:560-582. Accessed on 28 Dec 2009 at http://www.acponline.org/running_practice/ethics/manual/ethicman5th.htm

    [ii] ACP-ASIM Foundation, European Federation of Internal Medicine, and American Board of Internal Medicine. Medical Professionalism in the New Millennium: A Physician Charter. Ann of Intern Med, 2002;136(3):243-46. Accessed on 15 Dec 2009 at http://www.annals.org/content/136/3/243.full.pdf

  13. Robyn on February 1st, 2010 6:58 pm

    Hi Dr. Wood - You can correct me if I’m wrong - but I think you’re a nephrologist - yes? Nephrologists spend a lot of their time with dialysis - which for most (all?) American citizens is covered by the ESRD Medicare program/Medicaid (don’t know whether they’re a first or last resort for insured patients - but basically everyone who needs dialysis can get it). Now this program was basically a political decision - not a medical one (some congresscritter a ways back had some family member with ESRD).

    So my first question to you is - do you think everyone who needs dialysis should get it - while many patients with equally serious conditions don’t get any care at all? Especially since - as I’m sure Happy Hospitalist would note - a large percentage of ESRD is caused by obesity and/or hytertension and/or diabetes - all of which are preventable/relatively easy to control conditions. Note that I live in the south - and the African American community here still refers to diabetes as “the sugar”. Precious little is done in terms of dietary education - and many of those efforts are resisted on cultural grounds. I do cook traditional southern food about twice a year - and if I ate it all the time - I’d probably get “the sugar” too (two of my grandparents had Type II diabetes). Note that I am Jewish. My grandmothers cooked with chicken fat. And I do too - once or twice a year (there’s very little you can eat once or twice a year that will kill you). If I cooked like they did - I’d probably be dead by now.

    I am not sure how involved nephrologists get into the issue of kidney transplants (apart from trying to see that their patients who would benefit from them get them) - but the need for (scarce) organ transplants is certainly one medical situation that has inspired a great deal of writing about the allocation of medical resources. I’m sure you’ve read this article written in part by Dr. Zeke Emanuel (and made famous by the “death panel” arguments) - but perhaps others haven’t (and I do recommend the article to people who haven’t read it - has more questions than answers - but the questions are the right questions IMO):

    http://econopundit.com/ezekiel_emmauel.pdf

    My second question is - can you tell me which approach to organ transpants you favor in terms of allocating organs? Or perhaps we shouldn’t have any of these complicated heart/lung transplants and the like - because they cost a ton. You could probably send 20 kids to college for the cost of one of these operations (note that when I think of allocating resources - I don’t restrict myself to medicine - there’s no government money pot for medicine - and one for highways - and one for education - it’s all one big bank account with a lot of IOUs in it - and I’d rather send those 20 kids to college free instead of buying an extra 6 months of life for a geezer who’s CTD). I happen to live 10 minutes away from one of the fastest growing transplant centers in the US - Mayo JAX - and although it is great for the local economy (we even have people moving here so they can get on the transplant list) sometimes I wonder why so much money is being used for such a small group of patients. (FWIW - seems that we have a lot more available organs than - for example - NYC - perhaps that’s because we’re pretty close to the Daytona race track - and have a lot of young local bikers who like to ride without helmets - perhaps they get into accidents - die and leave a lot of very good organs).

    Anyway - could you tell me which model of organ transplants you like - and whether you would limit organ transplants and divert the money to other medical problems - especially since a lot of transplants - like liver transplants - are basically given to people who were (and will probably still be) drunks or drug abusers after their transplants.

    Anyway - overall - I don’t think either of these areas in which nephrologists practice are - to use your word - “parsimonious” (a most unfortunate but telling choice of words in my opinion) - which means: “Exhibiting parsimony; sparing in expenditure of money; frugal to excess; penurious; niggardly; stingy.”

    http://en.wiktionary.org/wiki/parsimonious

    You spend money like drunken sailors on medical care of dubious long term efficacy in terms of your medical population.

    In fact - when applied to a substantial percentage of patients who get all this nephrology health care - it seems like a big waste of money to me (as a taxpayer). So who are you - and the people you work with in terms of developing your ethical framework - to tell me that I can’t get an (expensive) MRI that will tell me exactly what is wrong with me (as opposed to a less expensive procedure like a CT scan or mammogram which will probably be more ambiguous) - especially if I pay for it myself (either out of pocket and through a “high price spread” form of medical insurance)? Or are you saying that I - as a relatively wealthy person - shouldn’t be allowed to get any medical care that isn’t available to some alcoholic or Hep C bum on the street in the Medicaid system? I look forward to your answers, Robyn

  14. Red Baron on February 1st, 2010 8:53 pm

    A little assistance for Robyn

    “It is difficult to get a man to understand something when his salary depends upon his not understanding it.”

    - Upton Sinclair

    Red ;-)

  15. family doc on February 2nd, 2010 8:58 am

    Red-

    That’s a wonderful quote that explains the ignorance of medical economics by many physicians who should know better. I bet that applied to a lot of Madoff’s employees.

  16. DrRich on February 2nd, 2010 9:08 am

    Robyn,

    Do not hold your breath waiting for a response. Dr. Hood apparently has never sullied herself by visiting these precincts (her message was delivered here by somebody else), and the message itself was: “There’s no ethical issue here, and if there was, it’s been settled. So go away.”

    I have posted a formal response to Dr. Hood. Doubt she’ll see that, either.

    Rich

  17. Robyn on February 2nd, 2010 6:47 pm

    Good quote Red :). One medical area where I have seen this is in the neonatology ICU context. People train to do X - so they do X - and fight for their right to do X - no matter how little sense it makes for a 14 ounce neonate. I am not sure where Dr. Rich stands on the issue - but I don’t think patients have the right to insist on an open-ended number of Hail Mary passes when dealing with common pools of money (like insurance and government funds).

    And Dr. Rich - I wasn’t expecting an answer. Was more or less talking to myself - and perhaps giving you some ideas for your upcoming debate. A public debate is one venue where your opponent can’t avoid you - a courtroom is another. I wonder how Dr. Hood would decide one issue I litigated as a matter of public policy - whether generic drugs need (expensive) pre-market approval from the FDA (the one and only case I ever argued in the US Supreme Court).

    A personal issue that keeps me involved in this is whether my husband will keep one or both of his existing health insurance policies when he goes on Medicare as a backup in case Medicare starts rationing in the future in an area that affects us (it already rations to some extent - by doing things like not reimbursing for virtual colonoscopy - but - since I’m not a believer in virtual colonoscopy - that decision doesn’t bother me). For example - my husband has a small chance of needing a heart valve repair in the future. What if Medicare says - repairs are too expensive - we’ll only pay for replacements? Or what if Mayo JAX (our local facility for a lot of secondary and exotic tertiary care) decides to stop accepting Medicare patients (as it already has in primary care)? Or what if Medicare starts to act like an HMO - only allowing you to go to (usually mediocre) local doctors on its approved list. If I need exotic (not futile) tertiary care - like a Whipple procedure if I were a candidate for one - I want the option of going to Mayo JAX - or MD Anderson - or anywhere else (only reason the Whipple procedure comes to mind is I once met a guy on a flight from JAX to Texas - and his wife had gone from JAX to MD Anderson to get a Whipple procedure at a time when the procedure was just something JAX surgeons read about in text books.

    Feel free to ask me questions about your upcoming debate - either here or in email. I don’t know a ton about medicine (just a fair amount after years of medical/legal/insurance coverage work) - but I do know a lot about arguing. IMO - the use of the word “parsimonious” is a killer - I would hammer it like a nail. Would also try to find use of similar words which make patients’ (and we are all patients or potential patients) hair stand on end.

  18. DrRich on February 2nd, 2010 7:45 pm

    Robyn,

    It looks like the debate (such as it is) has pretty much already happened. I got the ACP’s official statement, and I issued a reply (see Medical Ethics Slap Down 3). The ACP, I think, is done with me.

    I am now pondering how much harder to push the issue. Riffing on the parsimony suggested by Dr. Hood is one possibility. Mentioning some of the counter-intuitive implications of the New Ethics is another. (One that might interest you is that, since patients are now left adrift without a dedicated advocate, their only remaining leverage is the threat of lawsuit. So the much-desired tort reform that all physicians very much want - including me - becomes a very bad idea thanks to the New Ethics.) But I don’t want to jump the shark here, by going on and on about a debate opponent who is completely ignoring me.

    I agree with you that when we pay for healthcare out of a common pool, open-ended Hail Mary passes ought by rights to be limited. However, I believe that the limits here (as with all such limits) ought to be set by society.

    By the way, it is an honor to have someone who’s argued before the Supreme Court take my poor meanderings seriously.

    Rich

  19. Robyn on February 3rd, 2010 5:57 pm

    I unfortunately missed the fine print - I thought you were going to have a real live debate in front of real live people. Tend to agree with you that there is little left to say at this point without “jumping the shark”.

    FWIW - “medical malpractice reform” in certain states - including Florida - have made medical malpractice suits a lot less attractive to lawyers. And they cost a ton to put together today (you’re usually looking to put at least $50-100k into them). So the injury has to be fairly catastrophic for a good lawyer to get interested. My housekeeper (late 40’s) once had a good case - infection not caught after hysterectomy (in those cases it’s not getting the infection that’s the problem - it’s failing to diagnose and treat the infection once any idiot should see that something is hideously wrong). But since she didn’t die - she just wound up very sick with multiple operations - hernia - bad scar - etc. - etc. - her case wasn’t attractive to the lawyers I sent her to talk with. Also - jurors tend to like doctors - so plaintiffs’ lawyers prefer to sue big companies that jurors tend to dislike (in - for example - products liability cases). So you can’t count on lawyers to take up the slack these days.

    On my part - I think a patient’s best weapon is careful selection of doctors. Looking at credentials - but also - in terms of those with whom you’ll have a long term relationsip - meeting them and “sizing them up”. See if you have a “good fit” in terms of personalities (with one size not fitting all). Unfortunately - a lot of patients are kind of dumb. And many who aren’t dumb are old. My father - age 92 - is pretty much nodding out most of the afternoon - and can’t remember what a doctor tells him from the time it’s said to the time he walks out of the office. So I try to stay on top on his medical stuff (which fortunately is less complicated than the medical stuff we dealt with with my late mother and late inlaws).

    I am not sure how “society” can establish or set limits on medical care - “Hail Mary” or not. Because society really doesn’t have the resources to judge whether or not medical things make sense (except perhaps in cases like Octo-Mom). Regardless of the ACP position - seems to me that the issue has been delegated in large part to whoever it is who writes those millions of Medicare rules (who does write those rules?) - which tend to trickle down to insurance company reimbursement policies. The kind of rule that says if your heart does X when it gets a certain test - then Medicare will pay for an ICD (at least in one part of the country - what’s with that - different rules in different Medicare regions?) - and if your heart does Y - then it won’t (we ran across this with my late FIL - it was more than 5 years ago - and I can’t remember the specific thing his heart had to do for Medicare to reimburse for an ICD). Then there are the guidelines written by specialty groups. Which seem straightforward enough - but are frequently out of date - and not considered state of the art by providers who are more cutting edge. And - of course - there is the flip side of all of this - which is even if a doctor *can* do something - are the risks worth the benefits. Just because you can have something done - and even if you don’t have to pay a dime for it - doesn’t mean it’s a good idea (I get shoulder injuries all the time from gardening and golf - but I’d rather rest them out than have someone cutting up my shoulder).

    FWIW - I like your blog because you raise and discuss serious policy issues seriously - without a lot of the liberal/conservative mud-slinging that permeates so many blogs that try to discuss important issues (perhaps because these issues tend be be “politics-proof” - no politician in his right mind wants to limit your granny’s medical care). My husband and I are at the stage of our lives where we’re not running around like lunatics all day in our work - and have the time - interest - and mental abilities to read and think about these larger issues. Of which health care is one. It is 16% of GDP - so this particular issue is IMO of great importance to the future of our country. Much more important than the limited issues I dealt with. Although it’s sometimes fun to see the results of my labors (I made the law in Florida about places like hospitals being responsible for the acts of [undisclosed] independent contractors - like ER docs - so every time I see one of those little signs that says - these doctors are ICs - not our employees - and we are not responsible for them - I know I have created at least a few jobs - for the people who make the signs (g)). Robyn

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