Medical ethics retrospective

Dr. James Gaulte, M.D., has taken up the issue of the changing face of medical ethics in a thought provoking article today titled, “It is not your father’s medical ethics any more.” He opens by asking healthcare professionals if medical ethics — which place what’s best for individual patients first — can survive in a financial environment where a doctor’s autonomy is diminished and their pay is controlled by a third party?

Dr. Gaulte offers a historical perspective in describing the birth of what is called “The New Professionalism.” In the decades before managed care, patients’ insurance followed them and they could choose any physician and doctor’s fees weren’t set by an insurer, but by what he and the payer agreed was reasonable, customary and prevailing. Referrals could be based on the doctor’s knowledge of the best specialists and prescriptions were written based on what doctors believed best for the patients, writes Dr. Gaulte. All that changed when managed care became the middleman.

Quality of care came to be redefined to mean “the greatest medical good for the greatest number within the eco-medical collective (the HMO),” he writes.

In 1988, a few years before this new professionalism was actually formulated by professional organizations, an article was published in the Annals of Internal Medicine, in which Mark A. Hall, JD, and Robert A. Berenson, M.D., proposed a new ethics where: “devotion to the best medical interests of each individual patient be replaced with an ethic of devotion to the best medical interests of the group for which the physician is personally responsible.”

In their article, Hall and Berenson argued that a shift from individual health to group health is the basis of HMOs and is ethically preferable because it allows doctors to compromise patient care in order to conserve resources for others in their practice group, with less controversy cropping up over principles of fairness. Exclusive arrangements with a single insurer, or when a doctor receives capitation payments, gives this new ethical principle the strongest force, they said. “It is unrealistic to expect perfect impartiality... absolute impartiality is not ethically essential.” Physicians can make differential medical judgments on the basis of patients’ economic, social, ethnic or insurance status, as long as they acknowledge the basis for the recommendation, they said. “If the ‘system’ nevertheless denies what is optimal, the physician can still claim full adherence to the traditional ethic of devotion to each patient's best medical welfare, as long as the system allows care that is at least minimally acceptable.” In other words, doctors can absolve themselves of responsibility by falling back on the system and the decisions of a third party:

Another way in which capitated medical groups can cope with the moral strains of managed care is to insist that they not be forced to make highly contentious coverage decisions. "Life and death" decisions are those for which the attributes of rule-based decisions-evenhandedness, visibility, and predictability-are essential. Therefore, these decisions are best made through explicit criteria or through discretionary judgment by someone with the appropriate expertise who is entirely removed from the treatment setting.

Dr. Gaulte says their article appeared to most doctors at the time as contrived advocacy attempting to make managed care appear ethical. “All that was required to turn medical ethics on its head,” he writes.

With the New Professionalism, doctors were admonished to do more than maximize the health of patients in their HMO, but told they also had an ethical obligation to strive for “social justice.” According to its creed: “To maintain the fidelity of medicine’s social contract during this turbulent time, we believe that physicians must reaffirm their active dedication to the principles of professionalism, which entails not only their personal commitment to the welfare of their patients but also collective efforts to improve the health care system for the welfare of society.”

As Dr. Gaulte writes:

This joint effort was said to be necessary as the "old ethic" needed to be revised to align itself with the new economic environment in which physicians now lived and "medicine's commitment to the patient was being challenged by external forces of change within our society".... the new ethics or professionalism as it was now called, headlined social justice raising it to the level of the big three ethical precepts-patient welfare, patient autonomy and social justice. More than one observer has asked does precept three conflict with precept one?

But as this idea of a new medical ethic grows, Dr. Gaulte repeated questions raised by Dr. Edmund D. Pelligrino, M.D., more than a decade ago in an article entitled “Guarding the integrity of medical ethics— some lessons from Soviet Russia.” Can doctors just change the ethics of the profession at will, or is there a more fundamental and universal foundation for the ethics of medicine and the special nature of the doctor-patient relationship? Dr. Gaulte concisely describes the lessons suggested by Dr. Pelligrino and the role of a moral profession to safeguard the sick against politics.

A father of medical ethics

Dr. Pellegrino is Professor Emeritus of Medicine and Medical Ethics and Adjunct Professor of Philosophy and has served as Director of the Center for Bioethics at Georgetown University. Throughout his career, he has been a role model of the ethical practice of medicine for generations of doctors and extolled the importance of intellectual honesty and fidelity to patients. In 1997, he spoke at a medical ethics conference on the ethical challenges facing medicine in the era of managed care. As was reported in the American Academy of Family Physicians’ FP Report: “As I look into the future, I think we will undoubtedly be a much more divided profession than we are now. We will not have again an ethic which will bind all of us.” There will be "those who choose to follow the moral imperative — the high ground — and those who become purely businessmen and entrepreneurs,” he said.

His 1997 talk was said to be the “most sobering assessment of medical ethics today.” His words bring an even more sobering and powerful message a decade later:

"Medical ethics at the present moment is in disarray," Dr. Pellegrino said. Medicine is in the midst of a serious moral malaise, one in which doctors aren't certain who and what they are... Some have even asked him why they should have to respond to a higher standard of dedication and self-effacement than others in society.

To answer the question, Dr. Pellegrino reflected back on the "healing relationship" between the physician and patient, which he considers to be medicine's moral foundation. Physicians become physicians when they "raise their hands and take an oath of some kind — whatever it happens to be — which is a promise, a public declaration of commitment to a way of life characterized by certain ethical obligations," he said.

Physicians make that same kind of promise every time they engage a patient, he said. It's not a contract as some ethicists suggest, he said, because "how can there be a contract between individuals who are unequal one to the other, one dependent and vulnerable" because of illness? The physician makes a promise to help and invites the patient's trust — and must have the courage to say no when it's necessary, he said. "I think our profession is coming to that point in its history when we must say about certain things, 'we will not' — and we will have to do it collectively. Not because it violates our prerogatives. No, it goes back to the fact that we are in a relationship that requires of us that there are times we must say no," he said.

"Courage, I think, was what was lacking too many times in the past 30-40-50 years in Europe and this country, when our profession became corrupted by acceding to political and economic forces," he added.... there was much physicians could do today. For example, those gathered for the conference could affirm the doctor-patient relationship as the foundation of medical ethics. "We have enormous moral power, if we but use it," he said.

His message was made more strongly in his famous 1997 editorial for the Annals of Internal Medicine, “The Nazi Doctors and Nuremberg: Some moral lessons revisited.”

...Ethicists have since expounded on the moral lessons to be learned from the Nuremberg Trials. So obvious these moral lessons seem now, and so gross the malfeasance, that it seems redundant to revisit them. Certainly we do not need to study such gross moral pathology that could never happen again.

That is a dangerous conclusion. Moral lessons are quickly forgotten. Medical ethics is more fragile than we think. Moral reasoning based on defective premises tends to recur in new settings. Not all of the Nazi physicians were mentally deranged-they believed they were doing the right thing. If we are to avoid even attenuated errors of the same kind, we are obliged to examine a few of their errors even now.

While the basic principles of the Nuremberg Code to keep human experimentation within moral, ethical and legal boundaries are widely accepted, that doesn’t mean people actually comprehend them. More importantly, he cited a number of examples of unethical research behavior that have occurred since then, such as the Tuskegee Syphilis Study. “Clearly, the major lesson of the Nuremberg Trials has not been learned,” he wrote.

The integrity of medical ethics is important not because it protects the physicians' prerogatives but because it is a bulwark against the use of medical knowledge for purposes other than for the good of the sick. The German physicians indicted at Nuremberg had been taught by some of the world's best historians of medicine and ethics. They could not plead ignorance of ethics and, in fact, made constant allusions to medical ethics and the Hippocratic tradition in their testimony. They even convinced themselves that their heinous acts were consistent with those principles.

What the Nazi doctors illustrate is that ethical teaching has to be sustained by the ethical values of the larger community. In Germany, this support system was weakened well before the Holocaust and the experiments at Auschwitz. German academics, especially psychiatrists, were leaders in theories of racial superiority, social Darwinism, and the genetic transmissibility of mental illness before Hitler came to power...

If medicine becomes, as Nazi medicine did, the handmaiden of economics, politics, or any force other than one that promotes the good of the patient, it loses its soul and becomes an instrument that justifies oppression and the violation of human rights.

Subversion becomes a greater danger whenever medicine comes too close to the power of the state. The German medical profession eagerly supported Hitler's Third Reich and made itself the Reich's willing agent... Physicians should have refused. Even Hitler would probably not have prevailed against a united profession exerting its collective moral power. But the caduceus joined the swastika in a lethal symbiosis that cost millions of lives...

This lesson becomes even more important as medicine becomes increasingly bureaucratized, institutionalized, and dependent on government and politics for its support.

Medical power is too great to be left unregulated, but it is also too great to be enslaved by government, however benign the government's intentions might be.

The Nazi doctors were rational beings... Ultimately, they justified their actions by what they considered to be moral reasons that have received insufficient attention... [they] repeatedly advanced a few moral premises with a familiar ring: They were not killing by their own authority but obeying the laws of the state, which can determine the method of death. To resist would have been treasonous; ethics must be subordinate to the demands of war. Consent from those condemned to death was unnecessary. The death of a few prisoners would save many German lives; medical ethics could be set aside by law.

We see here the initial premises that law takes precedence over ethics, that the good of the many is more important than the good of the few, that national emergencies supersede ethics, and that some persons can lose their claim to humanity.

These moral lessons must be repeatedly relearned, he said. “This we must never forget if we wish to be certain that the moral disasters revealed at Nuremberg never occur again.”

More recently, medical ethicist, Fabrice Jotterand, Ph.D., emphasized the importance of medicine as a moral practice... hence, opposing the movement for a new medical ethics. Published in the Journal of Law, Healthcare and Ethics, he reviewed the principles introduced by Dr. Pelligrino and David C. Thomasma in their volumes The Virtues in Medical Practice and The Christian Virtues in Medical Practice. Medicine is more than an enterprise in search of treatments, but involves humans with a soul and free will and that gives the relationship between patients and healthcare professionals five moral imperatives:

First, the vulnerability and inequality of the medical relationship is obvious in the sense that illness produces a mental state in which the patient becomes anxious, fearful, and dependent on others – primarily the physician. It creates a total dependence and vulnerability of the ill person who must refer to a skilled professional in order to regain control of his health and life. This inescapable situation of vulnerability “imposes de facto moral obligations on the physician. In a relationship of such inequality, the weight of obligations is on the one with the power... The physician...has the obligation to protect the vulnerability of the patient against exploitation.”

The condition on how the relationship is established logically implies the second moral imperative, that is, the fiduciary nature of this relationship. Trust and confidence are “ineradicable” for the benefit of the sick and in order to achieve the ends of the medical endeavor.

Third, the nature of medical decisions makes the medical relationship a moral enterprise in the sense that most of the medical decisions are the combination of technical and moral components. This means that the physician must refer to his technical knowledge in order to make a scientific assessment (diagnosis, prognosis, and choice of therapy) of the patient’s condition without undermining the ends of medicine, that is, the good of the patient. Technology and morality ought not to be dissociated but rather combined to enhance the well being of the patient.

Fourth, the characteristics of medical knowledge impose certain moral obligations on those who possess it. Medical knowledge is not acquired primarily for its own sake but rather for a specific purpose – the care of the sick. Consequently, physicians have the obligation to be stewards of that knowledge and not the exploiters of medical techniques for reasons of self-interest or monetary gain.

Finally, by virtue of the kind of covenant established between the patient and the physician, there is an implicit moral complicity necessary for the healing process to be achieved. “The physician is therefore de facto a moral accomplice in whatever is done for good or ill to the patients.” The obligation to serve the patient’s good cannot be overridden on behalf of any other party such as the hospital, the economic or fiscal policy, or the law.

As Dr. Gaulte explained, shifting the ethical focus of medicine away from having the patient’s interest as the prime directive can only diminish the trust of patients for their healthcare provider and in medicine itself. The tragic consequences of people needing care but too afraid to seek it, are too awful to imagine.