Junkfood Science: Today’s changing medical ethics — where it’s taking us

July 19, 2009

Today’s changing medical ethics — where it’s taking us

There’s no such thing as a kindler, gentler capitation. — Pamela K. Mulligan, Ph.D., Canadian Family Physician, 2002

Last week, the Massachusetts’ state commission proposed a radical restructuring of how doctors, hospitals and healthcare providers will be paid in an effort to keep the state’s model universal coverage program from bankruptcy. Their proposals give us even more disturbing insights on what is being envisioned for all of us with health care reform.

If you are older (or think you might get older sometime), have a disability or any condition that needs medical care (or think you might ever need medical care), or have a lifestyle that the government doesn’t think is healthful, you will want to know what is being planned. You’ve just been thrown under the bus.

As the Special Commission on the Health Care Payment System said, healthcare spending has been rising by more than 8 percent a year in Massachusetts, faster than anywhere else in the country and at a pace that far exceeds the rise in the cost of living; and by their projections, will double by 2020. The costs of the state’s universal coverage program is threatening to bankrupt businesses and patients, they noted. The commission’s next move to try and keep universal coverage afloat are being closely followed in Washington, according to the news.

What are the commission’s latest recommendations? The state commission has proposed paying providers a flat fee for each patient, forcing healthcare providers to coordinate all of the patient’s care within that budget. This payment system, called capitation, likely sent shock waves through the hearts of experienced medical professionals. That’s because capitation isn’t anything new. We’ve been down this road before, with results so devastating to the practice of medicine and welfare of patients, even while failing in its goal of lowering costs, it was largely abandoned.

Members of the state commission vowed that this time capitation, which they’ve renamed a “global payment” system, will be different.

It’s worse. And not just because capitation will be universally mandated and patients will have no other choices of other types of plans. As they described in the 74-page Recommendations of the Special Commission on the Health Care Payment System, they state they will use financial incentives to force doctors into acting as care coordinators consistent with the medical home model and purportedly costs would be contained through Pay-for-Performance (P4P) measures which will offer financial rewards to providers who comply with specified quality measures. [The P4P measures the commission recommends are those created by the same interests preparing our medical homes. New readers can follow the links for decoded background information and disclosures.]

Their global payment system would involve completely restructuring the healthcare system. Providers (primary-care and specialist doctors, hospitals and home health agencies) would have to form large Accountable Care Organizations, with the ACOs to receive the annual fee-per-patient from the state to divide among them all. This effectively eliminates private, independent doctor practices.

The commission’s scheme also establishes another new authority, an Executive Branch agency, that will decide how much money will be allotted for the care of each type of patient.[See "Comparative effective research-what it means for us" to learn how the healthcare reform movement is deciding how resources and care will be allocated (i.e. rationed), and “Vision for our healthcare” for what the federal government is already doing.] This new government agency will also be charged with robust monitoring and oversight of compliance.

Despite these far-reaching proposals, the commission acknowledged that there is scant evidence that P4P, the medical home model or global payments have positive effects, improve quality of patient care or patient outcomes, or that they reduce healthcare costs. But correlations suggest that they might work, they wrote. “Medical homes are generally in an early stage of development,” according to their supplemental documentation, so “evidence of their effectiveness as currently implemented is limited.” There is also limited evidence for making evidence-based spending decisions, they wrote, with the largest and longest example in the country being the Oregon Health Plan which famously took on the task of prioritizing state expenditures based on comparative effectiveness analysis. [Covered here and here].

Reports to the State

As outlined in the July 1st report, Recommendations for the Massachusetts Health Care Quality and Cost Council’s Three Year Reporting Plan,the state mandates not only integrated electronic medical records, but also wants to increase the number of reportable conditions each year. “Patients must be attributed to physicians who will be held accountable for the quality and cost of care provided to them,” they wrote.

And accountable to the State.

Starting next year, doctors and hospitals must report patients with hip and knee replacement, lower back pain, diabetes, cardiovascular disease, respiratory disease; adherence to screening tests including mammograms and colonoscopies; and prenatal care. In 2011, reported conditions will include depression, hypertension, kidney disease, pediatric conditions, GI disorders, urinary tract infections, female genital disorders and contraception use. In 2012, the state recommends adding home health care, hospice and dental to its reporting requirements; along with conditions such as skin disorders, influenza, glaucoma and cancer treatment. For 2013 and beyond, they want the conditions reported to the state to include connective tissue disorders such as systemic lupus, nutritional disorders, thyroid disease, cataracts, headaches and more; along with adherence to obesity prevention and tobacco cessation interventions.

Healthcare reform advocates believe you want the state to know this information about you, and to monitor you and their doctors’ compliance with interventions it determines best — interventions developed by stakeholders, interventions that are not based on sound scientific evidence. Is that really what you want?

History lessons unlearned

“Those who cannot remember the past, are condemned to repeat it.” — George Santayana (1863 – 1952)

For nonmedical or younger readers who may be unfamiliar with capitation and what this new payment proposal means, here is a glimpse of what doctors were talking about in the medical literature when it was first widely promoted when managed care was failing to reduce costs. It may help you better understand the news spin this past week. It may also help to better understand the concerns that medical professionals have with all of this. It's long but more important to know than ever.

As Dr. Patrick C. Alguire, M.D., Director of Education and Career Development with the American College of Physicians explained, capitation payments are part of the efforts of some managed care plans to control costs. Capitation is a fixed amount of money per patient paid in advance for the delivery of health care services for a certain period of time. Capitation includes a list of specific interventions the provider must provide, with most including specific preventive screenings, diagnostic services and treatments; lab tests; health education and counseling and medications. Healthcare providers risk losing money if they provide care that goes over their budget, or if they make referrals to specialists or for expensive diagnostic tests or treatments; or if they fail to comply with the care mandates; while they can keep more money for themselves if they spend less.

You can guess the end results of this idea. If you are unlucky enough to have been born with any condition that requires ongoing care or is expensive to treat — or have a condition like normal aging, or obesity that the government has mandated must receive screening tests, labwork and interventions — fewer doctors will be able to afford to care for you and risk you costing them money. Nor will they want to bring more government oversight and scrutiny onto their practices. And if you develop a symptom that could be serious, doctors will have a financial incentive to downplay it and not treat it aggressively in order to keep more state money for this year.

Plus, how quickly will you be labeled as a noncompliant patient and be unable to find a doctor, if you don’t want to undergo the screenings, labwork and interventions, including diets, counseling and medications, that the government mandates?

During the 1990s, the medical literature was filled with ethical discussions and loud protests by American medical professionals who were experiencing capitation as part of healthcare reform and managed care. Similar discussions were taking place among Canadian doctors when capitation was proposed in 1997 as part of Ontario’s Health Services Restructuring Commission’s reform recommendations for its struggling healthcare system. Resistance was so intense during the 1990s among doctors and consumers, that it may help all of us to remember some of those ethical concerns. It’s also helpful to remember that, after decades, evidence of benefits of capitation and managed care remains lacking.

Experience of cost containment reforms

The United States has been blessed with abundant resources over the last half of the 20th century. While the healthcare system has meant limited access and poorer health outcomes for some, wrote Dr. Charles K. Francis, M.D., “for the majority of the population, however, health care in the U.S. has been characterized by an abundance of technology, physician manpower, pharmaceutical advances and an environment of nearly unlimited support for research and discovery.” The perception sold to the public was that the health care system was “guilty of unbridled spending and profligate resource allocation.” This effectively built support for “healthcare reform” and the advent of managed care.

“Managed care was envisioned as a system that would reduce expenditures on inappropriate or unnecessary health care and thus increase the availability of funds to improve the overall health of society,” he said. “Managed care, in a wide variety of iterations, has become the dominant health care delivery system in the U.S… However, as experience with managed care has grown over the last several years, patients and physicians have expressed a litany of concerns. These have included sub-standard quality of care, denial of necessary diagnostic or therapeutic procedures, adverse effects on the patient-physician relationship, improper financial incentives for physicians and restriction of information to patients regarding service limitations.”

Rather than address the specific issues affecting healthcare for some, reform affected the delivery of healthcare for all. And the evidence has failed to support the claimed benefits, as he explained:

The hypothesis that managed care would ultimately improve the health care system for all has been tested and not proven. Despite great economic prosperity, health care costs are increasing, employers are cutting back on coverage, the numbers of uninsured are growing, and the rights of patients are threatened. The imposition of economic incentives in the clinical decision making of physicians has undermined patients trust in their physicians and in the medical profession…

Arguments that managed care helps in meeting social needs because resulting health care cost savings may be transferred to other socially responsible functions or programs are, at a minimum, disingenuous. Experience has shown that much of the early benefit of the new health care paradigm accrued to share holders and company executives rather than the general public.

Since managed care has become the dominant health care delivery system in the United States, the number of uninsured persons in the population has increased… Real progress toward removing racial and ethnic disparities in access to health care remains a largely unfulfilled promise. Numerous examples of racial disparities in access to care and health outcomes have been described. For example, in a study of Medicare recipients [covered under government managed care] the rate of mammography use was lower in black women compared to white women and lower in less affluent women than in more affluent women regardless of race… Inequalities in health status based on race and ethnicity, as well as socioeconomic status, attest to the inescapable reality of racism in America, and especially its role in access to health care and the delivery of medical services.

Dr. Francis went on to describe numerous studies showing disparities in health outcomes among minorities and socially disadvantaged, as JFS has also examined, regardless of whether or not they had health insurance or government provided coverage and access to healthcare. Managed care and healthcare reform, while seemingly to equalize access to healthcare to disadvantaged, marginalized and discriminated groups, doesn’t address the core prejudices and social-economics behind health disparities. And the ethical issues it brings to the practice of medicine doesn't make it a more ethical way to deliver healthcare.

Naturally, people are nervous about the effects of profit motives on the quality of their medical care. But when medical professionals strongly hold the traditional medical ethics that place their duties first and foremost to the best interests of the patients in their care, patients can trust their doctors to make ethical decisions on their behalf. But beliefs that managed care would reduce profits for those providing medical care served to shift them to insurance companies. Third-party payers and insurance companies have different objectives from those of doctors and patients.

Clearly, the potential for conflicts of interest in patient care exists in all forms of medical care systems, wrote Dr. Norman G. Levinsky, M.D., in a 1995 issue of The American Journal of Managed Care. In traditional fee-for-service practice, the possibility of personal economic gain may influence a doctor, consciously or subconsciously, to deliver excessive medical services. But without an economic incentive, he pointed out, salaried physicians may also provide less-than-optimal personal effort and poorer care. “Obviously, economic factors also influence the schedule of the fee-for-service practitioner,” he wrote, but with fee-for-service, “ultimately, the balance between income and practice standards is set by the physician alone.” If a doctor chooses to spend more time with a patient, as is fundamental for creating a bond with his patient and treat them as a whole person, he could.

Managed care, however, adds a third master. Doctors are expected to serve the financial goals of managed care plans, in addition to caring for the medical needs of their patients, he explained. “Pressures to decrease expenditures in the care of individual patients…now are focused sharply by specific mandates from managers of health maintenance organizations (HMOs) to limit expenditures.” In most plans, a primary care physician is charged with serving as a gatekeeper to limit access of patients to diagnostic studies, therapeutic alternatives, specialists and hospitalization. For patients, it means that their doctor is less free to take time with them, do the tests and provide the care they might feel best for them. “Working on schedules set by management, primary care physicians also may be required to reduce their own services to patients to suboptimal levels, especially that most precious component of primary medical care, their own time.” This is a little understood difference between doctors paid by the services they provide versus capitated managed care.

Managed care has changed the mindset of healthcare from what’s best for the patient to what’s best for the bottom line. “From the perspective of professional ethics, two key features of managed care that are of great concern are incentives or pressures on physicians to limit clinical services and mechanisms by which nonprofessionals can control physician behavior,” wrote Dr. Levinsky. “In fee-for-service practice, physicians struggle only with their own consciences. In managed care entities, managers can impose their standards on physicians.” And, as is slowly becoming more realized today, the role of many clinical practice mandates isn’t as much to save costs as it is to make money for the third-party payer, such as in pharmacy benefit management schemes.

While capitation “theoretically creates an incentive to provide care efficiently,” wrote Dr. Pamela K. Mulligan, Ph.D., in Canadian Family Physician, “experience and analysis suggests this experiment is likely to yield very different results.”

Like last week’s Massachusetts’ proposals, under Canada’s capitation, doctors were also required to join provider networks to offer predefined services and each patient had to sign a contract agreeing to obtain services only from that network. “From physicians’ perspective, signing contracts and restricting patient choice recasts the doctor-patient relationship from a personal, fiduciary relationship to a legalistic, quasibusiness affiliation,” wrote Dr. Mulligan. These contracts penalized doctors when patients went outside their network, discouraged doctors from working in rural areas where income potential and ability to pool risk was reduced, and created an administrative and financial burden. Just developing, monitoring and enforcing the contracts drained resources from medical care. “In Britain, introduction of a ‘contract culture’ (under the failed internal market reforms) led to a marked increase in administrative costs,” she wrote.

“Capitation is a nasty proposition, which, by design, rewards doctors for withholding services, creates an adversarial relationship between doctors and patients, promises no reduction in costs, and moves us closer to privatization,” she wrote. Canadian health policy experts advises that under capitation, “policy makers should not assume there will be cost savings in the short or longer term,” she reported. “They are correct. Ontario’s capitation-funded HSO program failed to achieve its primary goal: lower costs through reduced hospital use.”

Ethical discussions

“Physicians are in a lose-lose situation under capitation,” she wrote. “Guided by personal and professional ethics, they want to give the best possible care but find themselves locked into a system where their own financial well-being conflicts with their patients’ best interests.”

Most troubling to medical professionals was what Dr. Mulligan called the “dark side of capitation.” Capitation gave providers an incentive to underprovide services, she explained. It was called skimping or stinting and even Canadian health policy makers acknowledged it was “an inherent feature of capitation funding,” she pointed out. “This feature of capitation continually places doctors in uncomfortable conflicts of interest that compromise patient care.”

By transferring risk to doctors, incentives are also created for cream-skimming and taking relative healthy, low-cost patients while discouraging enrollment of high-cost, high-maintenance patients, she said. Despite regulations against refusing care or enrollment on the basis of health status, “evidence shows that capitated organizations can cream-skim in subtle ways to circumvent regulations that prohibit them from denying membership on the basis of health status. These strategies include deliberately establishing practices in areas with healthy populations and providing poor service to high-risk patients, thereby encouraging them to withdraw from the roster.” Because of concerns about cream-skimming by Ontario’s capitation-paid health services organizations, the government decided not to expand this program, she said.

There is no such thing as kinder, gentler capitation, said Dr. Mulligan.

“If a patient's employer or health insurer walked into a physician's office while the patient was waiting to be seen and offered the physician money to withhold services from the patient, the physician would probably give a frosty refusal,” wrote Dr. Harry P. Selker, M.D., in a 1996 issue of Annals of Internal Medicine. “To do otherwise would be contrary to the physician's role as trusted advocate for the patient's best interests. And yet, this conflict of interest is central to capitated care,” he said.

Unfortunately, many persons now believe in or promulgate the fallacy of "black or white:" If the existing system, which gives incentives for excessive treatment, is bad, then its opposite, a system that provides incentives for giving less treatment by putting the provider at financial risk for the costs of care, must be good. However, a health payment system in which incentives are based solely on this premise is only "managed cost," not "managed care."

As he pointed out, a RAND Health Insurance Experiment found that HMO insurance equally reduced both inappropriate and appropriate treatments. This demonstrates that the primary concern with managed care is reducing costs, whether or not it’s really clinically appropriate. It is easy to understand why third party payers would want to adopt managed cost systems, Dr. Selker wrote. It is “clearly in their financial self-interest.”

This abuses our patients’ trust and that of the public, he explained.: “One wonders if this trust would survive a local newspaper headline such as ‘Physicians Accept Money To Deny Their Patients Medical Care’ (or something more colorful). And how would we feel about our own roles as physicians when asked about his headline by our own patients?” That front page test helps us to know if we’re doing the right thing and is perhaps the most telling of the ethics of capitation.

“Do physicians accept the moral hazard of capitated care because they are confident that their own moral fiber will enable them to resist financial incentives?” he asked. Some justify withholding care because they wrongly adopt the black-and-white belief that “something has to be done about healthcare costs,” he said. Other claim that financial incentives don’t really work, so there’s no need for concern. “This is clearly specious. If such incentives did not work, they would not be used by those who are trying to manipulate physicians' behavior. The fact that such incentives are used, and more and more widely, is clear evidence that they do work: Physicians are restricting their patients' access to medical services in exchange for financial rewards.”

In “Some Thoughts on Ethics and Capitation,” published by the Maryland Psychiatric Society in 1997, Dr. Marianne Benkert, M.D., examined both the claims of advocates and critics of capitation. Capitation was the centerpiece of healthcare reform at that time, too, with industry increasingly relying on it to reduce rising costs in unwanted areas and in efforts to increase profits were driving down capitation payments to healthcare providers. “The essence of capitation is a shift in financial risk from insurers to providers, the potential to lose or earn less money, or spend more time without additional payment,” she said. “This puts more intense pressure to restrict patient access to expensive specialty and diagnostic services.”

In explaining the business philosophy behind capitation, she wrote:

It rests on the narrow model that assumes financial incentives alone shape human behavior. Business philosophy assumes that capitation will lead physicians to alter their routine office and treatment patterns in a way that will tend to be consistent with their economic incentives... The fact that managed care companies and capitated practitioners earn profits by withholding services, or by substituting less expensive for more costly care, raises suspicions about their motives. This is a debate about trust. One’s position probably depends on one’s belief that companies, managers, and clinicians, operating under capitation limits and profit incentives in managed care, will manage in one’s best interests.

When we consider medicine as “commodity versus service,” we see a change in vocabulary. "Commodity, customer, provider, vendor" all demean the professional aspect of our calling.

She went on to quote an article by John H. McArthur, DBA, and Francis D. Moore M.D. in the Journal of the American Medical Association, discussing the ethical dilemmas for medical professionals imposed by capitation:

“The current trend toward the invasion of commerce into medical care, an arena formerly under the exclusive purview of physicians, is seen by the authors as an epic clash of cultures between commercial and professional traditions in the United States. The fundamental act of professional medicine is the assumption of responsibility for the patient’s welfare. The essential image of the professional is that of a practitioner who values the patient’s welfare above his or her own and provides service even at a fiscal loss and despite physical discomfort or inconvenience. There is no outside invested capital seeking returns from the physician’s work.

The fundamental objective of commerce in providing medical care is achieving an excess of revenue over costs, while caring for the sick, ensuring profit for corporate providers investors, or insurers... When a corporation employing physicians seeks profit by selling their services, the physician employees cease to act as free agents. Professional commitment to patient care is subordinated to the rules of practice that assure the profitability of the corporation. Physicians can then be placed in a severe ethical dilemma. Shall they follow their conscience and the good practice of medicine or shall they save money for their employers and in some cases of capitation for themselves?”

During that earlier era of healthcare reform and capitation, medical professionals vehemently resisted managed care reform and its focus on costs. Commercializing medicine, wrote Dr. Benkert, “even for the sake of choice and efficiency, runs a great risk of subverting [medicine]. Markets have no capacity to set wise social priorities or to adhere to the goals of medicine. The integrity of medicine itself is at stake.”

Ethical concerns over managed care during the 1990s sparked a wave of government regulations to protect patients. In 1996 alone, one thousand pieces of legislation to regulate or weaken HMOs were introduced in state legislatures and 56 laws were passed in 35 states.

What’s changed between then and now? Then:

Around 15 years ago, most of the medical discussions over the problems doctors fought with managed care and capitation repeated a theme that is strikingly more absent today. That theme was the long-standing tenets of medical ethics.

At its deepest soul, the practice of medicine has been founded on the moral commitment of every medical professional to heal and protect patients, especially the most vulnerable. Medical professionals have been guided by codes of ethics for millennia. Chief among the moral obligations under the Hippocratic tradition of medicine calls for doctors and medical professionals to do everything they can to help the patients under their care and that they are duty bound to look out for the best interests of their patients.

The American Medical Association was so troubled by the effects of healthcare reform proposals on doctors’ primary ethical duty to advocate for their patients interests and needs under their Hippocratic Oath, that medical staff at its 1994 Annual Meeting recommended adopting a Resolution called “Assertion of the Professional Hippocratic Fiduciary Ethic in the Face of Health Care Reform Proposals.” This resolution was published in June, 1995, resolving: “That the American Medical Association continue its efforts to ensure that health system reform proposals maintain the primary ethical responsibility of physicians to advocate for their patients’ interests and needs.”

As covered here, four core ethical principles have guided the professional practice of medicine around the world, including experimenting on people. These were born of the 1946 Nuremberg doctor’s trial. These principles of bioethics that have underpinned medical ethics are:

Respect for autonomy — “patient choice” where patients can freely give their informed consent and have autonomy over their own bodies

Non-malfeasance — “do no harm” and balancing benefits and harms

Beneficence — an obligation to benefit the individual patient under one’s care

Justice — the fair and appropriate provision of services

Nearly a decade ago, the Position Statement adopted by the American Academy of Dermatology stated: “Any system of health care delivery must meet the test of the adherence to these principles or society will suffer.”

“The widespread implementation of capitation, as an integral part of the attempt to reduce or stabilize the cost of health care, creates an ethical dilemma for the medical profession that has never been faced before,” their Position Statement said. “It is the view of the Academy that the four basic tenets of ethical medical practice are in serious jeopardy under capitation.”

The inclusion of the managed care organization into the social contract for health care services creates a wedge between the physician and the patient, that being the fiduciary considerations of the physician on behalf of those sharing the risk, be they fellow physicians or the managed care organization. The physician’s dilemma of “serving two masters” can result. Capitation poses a definitive dilemma — the constant choice between cost-efficient service and medically necessary treatment…

The Academy further concludes that by maintaining the four tenets of non-malfeasance, beneficence, autonomy, and distributive justice as the foundation on which physicians function, physicians hold to an honorable medical profession that will not jeopardize the trust and confidence of the public who are served.

The Academy supported the early recommendations of the American Medical Association’s Council on Ethical and Judicial Affairs (CEJA), which issued its own statement in 1994 on the “Ethical Issues in Managed Care.” It was published in the July 1995 issue of the Journal of the American Medical Association. [It has since been deleted from the JAMA archives Table of Contents for that issue.] This document began by stating that the primary concern of medical ethicists for some time has been the effects of healthcare reform, “with its emphasis on managed care and managed competition, health care reform will greatly increase the ethical concerns.”

Managed care, be it under government or other third parties, replaces a doctor’s fundamental ethical obligations to his/her patient with the managed care plan’s goals. Implicit in managed care is denial of services to cut costs, it stated, adding:

Managed care can compromise the quality and integrity of the patient-physician relationship and reduce the quality of care received by patients. In particular, by creating conflicting loyalties for the physician, some of the techniques of managed care can undermine the physician's fundamental obligation to serve as patient advocate. Moreover, in their zeal to control utilization, managed care plans may withhold appropriate diagnostic procedures or treatment modalities for patients.

If physicians no longer hold their patients’ best interests foremost and patients can no longer trust them to care for them, patients are left more vulnerable than ever and without true advocacy. Managed care plans are increasingly for-profit companies, wrote the CEJA, with cost considerations determining the guidelines physicians must follow and what services should be offered. But rather than their primary responsibility to their patients, under managed care doctors are put into a compromising and “morally dubious” position of being gatekeepers to reduce costs. They must now become engage in “bedside rationing” and decide whether a patient will be granted further access to the health care system, including referrals to specialists and diagnostic tests.

In 1997, the CEJA issued a separate document, “The Ethical Implications of Capitation,” which noted that doctors practicing under capitation “typically experience significant pressure to stay within an allotted budget from colleagues who share the resource pool and from insurance companies, employers, and other third-party payers.” Regardless of whether it changes physicians’ practice of medicine to be cost-conscious, the Council stated, “capitation successfully shifts the mentality of practicing physicians” to make decisions based on cost. More so, it alters the role of the doctor, it stated.

Medicine has long held that the primary obligation of physicians is to advocate for the interests of each individual patient. In a capitated environment, however, patients covered by the same pool have overlapping interests…As physicians under capitation assume many of the roles traditionally held by insurers, however, these decisions could be brought to the bedside…It is difficult for payment rates based on either purely economic or legal premises to reflect the appropriate goals and aims of the profession, including the provision of necessary care and the preservation of ethical practice.

“There are two important ways in which financial incentives to limit care compromise the physician's duty of loyalty to patient care,” the CEJA said.:

First, [under capitation] physicians have an incentive to cut corners in their patient care, by temporizing too long, eschewing extra diagnostic tests, or refraining from an expensive referral…Second, even in the absence of actual patient harm, the incentives may erode patient trust as patients wonder whether they are receiving all necessary care or are being denied care because of the physicians' pecuniary concerns.

The pressures of cost containment on primary care physicians, the CEJA wrote, “may encourage some physicians to try to manage cases longer than they should. Physicians may feel compelled to stretch their competence in order to keep patients at the primary care level and conserve resources. Inappropriate treatment and improper or missed diagnoses are potential outcomes of such decisions to delay or deny referral.”

It is true that financial conflicts are inherent in the practice of medicine, regardless of the system of delivery. But it’s also true that physicians have generally been able to maintain their duty to patient welfare despite those conflicts. However, incentives to limit care as in managed care’s capitation, are more ethically problematic than incentives to provide care, the CEJA said.

First, financial incentives to limit care exploit the financial motive of physicians, making the physician's financial self-interest indispensable for the success of the managed care organization. Second, financial incentives to limit care are less likely than financial incentives created by fee- for-service to coincide with patients' interests, because patients generally prefer the risk of too much care to the risk of too little care. Third, the effects of incentives to limit care are less likely to be noticed by patients. When a physician recommends a course of action under fee-for-service reimbursement, the patient can seek a second opinion. However, when a physician does not offer an intervention under managed care, the patient may have no idea that a treatment option was withheld and therefore not recognize the need for a second opinion.

This violates the fundamental principle of medical ethics: patients’ right to informed consent and a patient’s freedom of choice. Doctors, as patient advocates, have duties of disclosure and to ensure that patients are told of all treatment options, regardless of costs, the council explained. Patient autonomy does not guarantee the right to have all treatment choices funded, they said, but in order to fully exercise their autonomy, patients also need to be fully informed of conflicts of interest of their doctor. And doctors have a duty to disclose financial incentives. “Regardless of any allocation guidelines or gatekeeper directives,” they added, “physicians must [also] advocate for any care they believe will materially benefit their patients.”

… [I]t is important to consider what is at stake. The foundation of the patient-physician relationship is the trust that physicians are dedicated first and foremost to serving the needs of their patients. In the Oath of Hippocrates, trust is a central element in almost all of the ethical obligations of physicians: physicians must keep patients' private information confidential, avoid mischief and sexual misconduct, and give no harmful or death-causing agent. Patients can expect that physicians will come to their aid even if it means putting the physician's own health at risk, and they can trust that physicians will do everything in their power to help their patients. It is this trust which enables patients to communicate private information and to place their health, and indeed their lives, in the hands of their physicians. Without trust, the success of the healing process would be seriously diminished.

Now: A new medical ethics

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. — Dr. Edmund Pellegrino, M.D., Annals of Internal Medicine, 1997

Healthcare, managed by the government and other third-party payers, along with political and economic interests, has served to alter the very meaning of medical ethics for some. Over the past fifteen years, medical ethics has steadily become distorted into something disturbingly different. “The physician is no longer the independent decision maker guided solely by a professional code, a paradigm that has dominated theories of medical ethics,” wrote doctors Katherine Swartz, Ph.D., and Troyen A. Brennan, M.D., JD, MPH in 1996.

Gate keeping and serving as guardians of the financial interests of third party payers “has been defended on moral and ethical grounds on the premise that funding would be available for others purposes beneficial to society,” wrote Dr. Francis. “Recently, the claim that consequent harm is ethically irrelevant when physicians serve the state or other third parties… [S]ome might consider the assertion that clinical work for the state is beyond the scrutiny of medical ethics to be an echo of the distorted medical ethics of the Nazi era.”

“Past distortions of the medical ethos, such as Nazism and the Tuskegee Syphilis Study, as well as more recent experience with the ethical challenges of employer-based market driven managed care,” he wrote, “provide important lessons.”

The work of Dr. Edmund Pellegrino, M.D., has been mentioned several times at JFS, along with some of the ethical discussions from the President’s Council on Bioethics. As regular readers know, Dr. Pellegrino, Professor Emeritus of Medicine and Medical Ethics and Adjunct Professor of Philosophy and Director of the Center for Bioethics at Georgetown University, has been widely respected and trusted in the medical community for his lifelong devotion to promoting ethics in the practice of medicine and the importance of intellectual honesty and fidelity to patients. No one in our lifetime has equaled his contribution to the bioethics field and his appointment as chair of the President’s Council on Bioethics was widely supported.

For medical providers, “there is no absolute moral principle except the injunction to act in the patient’s best interest,” he wrote. In 1997, he spoke to doctors at a medical ethics conference on the ethical challenges in the era of managed care, sharing a troubling observation of the changing face of medical ethics today — one that was departing from the Hippocratic oath of a healing relationship between the doctor and patient that puts the best interests of their patients first. In describing what he saw evolving in medicine, Dr. Pellegrino warned that medicine was increasingly being used for purposes other than the good of the sick, and was failing to be stewards of sound medical knowledge.

In his famous 1997 Annals of Internal Medicine editorial, “The Nazi Doctors and Nuremberg: Some moral lessons revisited,” he cautioned doctors about the fragility of medical ethics and how easily they can be led to do the most unthinkable things, while believing themselves to be ethical and reasoned. Even today, he warned, the moral lessons of the Nuremberg Trials have not been learned and it is wrong to believe such atrocities could never happen again.

“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,” he wrote. “Subversion becomes a greater danger whenever medicine comes too close to the power of the state.”

In an article entitled “Guarding the Integrity of Medical Ethics-Some Lessons from Soviet Russia,” he shared two lessons from the subversion of medical ethics he saw: corruption will afflict any health system not designed with care of the patient as the its primary driving force; and medical ethics must be independent of political exigency. "[A] morally responsive profession is an indispensable safeguard for the sick against the statistical morality of utilitarian politics, even in democracies,” he wrote.

The Nazi doctors justified their actions by what they believed to be moral reasons and we see the same premises being repeated today, he cautioned: “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.” Moral lessons must be repeatedly relearned, he said.

In the “new medical ethics” that came with managed care, discussed here, quality of care was redefined to mean the greatest good for the greatest number within the collective the doctor belonged. In just a little over a decade, medical ethics has been turned upside down. Every day brings us closer to precisely what he warned against. It should disturb each one of us to our very souls, that Dr. Pellegrino’s warnings about a “new medical ethic” are playing out so clearly.

Nothing better shows how medical ethics has been altered than to compare the very first Principles of Medical Ethics issued by the American Medical Association on May 16, 1903 with the current version. I urge you to read the original Principles of Medical Ethics. It is a beautiful document, although 7-pages long, and compassionately describes the heart of medical ethics that have generally guided medical professionals for the past century. Its guidance for medically ethical behavior, unencumbered by political or outside interests and devoted to the patient’s well-being, can offer valuable insights today. These are the sentiments which brought many experienced healthcare professionals to make healthcare their life’s work. It begins:

Physicians should not only be ever ready to obey the calls of the sick and the injured, but should be mindful of the high character of their mission and of the responsibilities they must incur in the discharge of momentous duties. In their ministrations, they should never forget that the comfort, the health and the lives of those entrusted to their care depend on skill, attention and fidelity. In deportment, they should unite tenderness, cheerfulness and firmness, and thus inspire all sufferers with gratitude, respect and confidence. These observances are the more sacred because, generally, the only tribunal to adjudge penalties for unkindness, carelessness or neglect is their own conscience.

Every patient committed to the charge of a physician should be treated with attention and humanity, and reasonable indulgence should be granted to the caprices of the sick. Secrecy and delicacy should be strictly observed; and the familiar and confidential intercourse to which physicians are admitted, in their professional visits, should be guarded with the most scrupulous fidelity and honor…

The physician should be a minister of hope and comfort to the sick, since life may be lengthened or shortened not only by the acts but by the words or manner of the physician whose solemn duty is to avoid all utterances and actions having a tendency to discourage and depress the patient. The medical attendant ought not to abandon a patient because deemed incurable; for continued attention may be highly useful to the sufferer, and comforting to the relatives, even in the last period of the fatal malady, by alleviating pain and soothing mental anguish…

There is no profession from the members of which greater purity of character and a higher standard of moral excellence are required than the medical: and to attain such eminence is a duty every physician owes alike to the profession and to patients. It is due to the patients, as without it their respect and confidence cannot be commanded, and to the profession because no scientific attainment can compensate for the want of correct moral principles…

It is incompatible with honorable standing in the profession to resort to public advertisements or private cards inviting the attention of persons affected with particular diseases; to promise radical cures; to publish cases or operations in the daily print [media], or to suffer such publication to be made; to invite laymen (other than relatives who may desire to be at hand) to be present at operations; to boast of cures and remedies; to adduce certificates of skill and success, or to employ any of the other methods of charlatans.

It is equally derogatory to professional character for physicians to hold patents for any surgical instruments or medicines; to accept rebates on prescriptions or surgical appliances; to assist unqualified person to evade the legal restrictions governing the practice of medicine; or to dispense, or promote the use of, secret medicines, for if such nostrums are of real efficacy, any concealment regarding them is inconsistent with beneficence and professions liberality, and if mystery alone give them public notoriety, such craft implies either disgraceful ignorance or fraudulent avarice. It is highly reprehensible for physicians to give certificates attesting the efficacy of secret medicines or other substances used therapeutically…

It is the duty of physicians, who are frequently witnesses to the great wrongs committed by charlatans, and of the injury to health and even destruction of life caused by the use of their treatments, to enlighten the public on these subjects, and to make known the injuries sustained by the unwary from the devices and pretension of artful imposters….

These are not the new medical ethics. Compare those long-standing medical ethics with today’s principles. More importantly, compare them with proposals under healthcare reform at the beginning of this article.

Will people figure out what’s going on?

More than ever, our society needs doctors and medical professionals, who pledge some Hippocratic oath of medical ethics, to be guiding us on ethical issues that affect medical care — not lawyers, politicians or corporations.

The President’s Council on Bioethics, chaired first by Dr. Leon Kass, M.D., Ph.D., and then Dr. Pellegrino, had been tasked with advising the government and our society on the ethical issues related to advances in biomedical science and technology. It has issued some of the most thought-provoking ethical discussions in modern medicine, and that I’ve ever read as a medical professional. Over the years, it’s given me a deeper, richer understanding of the ethics in medicine and public policies and altered what I thought I believed to be true more than once.

Take a look at a few of their recent papers, such as one on the ethics of genetic testing and public policy and one on the history and ethical issues surrounding newborn screening, covered here. Others that are especially relevant to today’s considerations of healthcare reform included an unsettling discussion on medical care and the common good which examined problems in the American healthcare system, of healthcare access and the uninsured, healthcare costs, quality of healthcare, and whether healthcare should be a commodity or a right; and another on the ethical questions in reforming medical care. Reading them will leave you feeling mad to inspired. We won’t agree with each viewpoint, nor should any of us. But most importantly, they force us to think about all sides of an issue, take a hard look and think through the consequences of decisions, and consider things we would never have thought about before.

Stakeholders don’t want us to think. Encouraging society, the public and medical professionals to educate themselves, understand history and think about things that might feel uncomfortable, before we act to do things that will change the future for each one of us and for our children, is a threat to ideologies and agendas.

Last month, with one day’s notice and shortly before they were to issue a number of new papers, the President’s Council on Bioethics was told by the White House that their services were no longer needed. Instead, the White House press officer said the President plans to appoint a new bioethics commission “with a new mandate that offers practical policy options.” Robin Alta Charo, JD, a law professor and member of Obama’s transition team, was quoted saying that a new commission should focus on helping the government form ethically defensible policy.

Just as sound science doesn’t change with the political wind, ethics doesn’t either. Medical ethics doesn’t work backwards or reinvent itself to create an argument in support of a governmental agenda. We are entering a new ethics, as Dr. Pellegrino warned.

© 2009 Sandy Szwarc

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