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Is the new professionalism and ACP's new ethics really just about following guidelines?

The Charter ( Medical Professionalism in the New Millennium.A Physician's Charter) did not deal with just the important relationship of ...

Wednesday, January 03, 2018

How traditional medical ethics got highjacked and why?

For as long as the dominant medical ethical precept and prime directive was do what it right for the individual patient,third party payers were challenged to control medical costs to the degree they desired because they could not control the folks whose hands were on the cost levers. That just might be the answer to the why.

Traditional Medical ethics stood in the way of the third party payers efforts to control costs and in regard to the private health insurers  to maximize profits.

With the why out of the way, lets move on to the how.

First, we look at an early trial balloon of the plan to disabuse physicians of what to the third party payers was a very dangerous notion namely that the physicians had a fiduciary duty to their patients.

The following gives a flavor of several publications from major medical publications that launched the trial balloon and does not claim to be an exhaustive literature review of medical article promoting that theme.

In 1988 Dr. Robert A. Berenson and M. Hall, a law professor, writing in the Annals of Internal Medicine said that "the traditional ideal" [the traditional doctor patient relationship in which the doctor's duty was to the patient] was "not compatible with the role that existing insurance contracts and manged care arrangements define for physicians."

They were explicit when they said : (my bolding)

We propose that devotion to the best interests of each individual be replaced with an ethic of devotion to the best interests of the group for which the physician is personally responsible.

The authors were saying that insurance companies and managed care companies were defining the physician's role and that physicians needed to simply change their ethical precepts and get with the program.Some may recall that one of the characteristics of a profession (which medicine once was) was that it defined its ethics not an outside party. So the old ethics just does not work any longer.

Berenson and Hall proposed a complete revision or negation of the medical ethics that existed from hundreds of years.This fiduciary duty to the individual patient should be replaced by a nebulous co- duty to medical collective to which the individual patient belonged. As outrageous as that appeared to someone trained in the traditional medical ethics, an obligation to serve the greater needs of society and to balance that against the individual patient's welfare has subsequently appeared to be widely accepted ( at least by many medical society  leaders and spokesmen) by various medical organizations. See here the New Professionalism as promulgated by the American College of Physicians. But I get ahead of the narrative.

Dr. David Eddy authored a series of articles in JAMA ( Eddy DM. Rationing resources while improving quality.How to get more for less.JAMA.1994:272,817-824) promising to teach physicians how they could increase quality and save money at the same time.

The trick was the utilitarian imperative-do the greatest good for the greatest number. In his moral calculus it was not only appropriate but it was ethically demanded that, for example, one would not waste money by for example offering yearly mammograms to women between 40 and 50 if a greater bang for the buck could be achieved by offering smoking cessation session to pregnant women. Cost effectiveness analysis was to guide what was offered to the group It was the health of the collective that mattered and that was true even if the collective was a thrown together bunch of strangers whose employers happened to sign up to a given HMO. The traditional fiduciary duty of the doctor to the patient as well as the legal manifestations of that relationship and the aspect of human nature that says I want what is best for my health and my family's health not for some alleged aspect of a fictional collective would have to moved past.

Doctors were admonished by Eddy to not be "hoarding resources" for their patients.Note his approach went past cost effectiveness concerns and even past comparing the cost and benefits for alternative approaches to the same disease. He was suggesting making judgment about what disease money should be used for and what sub-group of members of the collective should benefit and which should not.

Another significant shot across the old medical ethics bow was offered by Dr. Donald Berwick and Dr. Troyen Brennan with their book, "New rules" published in 1996. The authors were as explicit as was Dr. Berenson when they wrote:

"Today, this isolated relationship[ he is speaking of the physician patient relationship] is no longer tenable or possible… Traditional medical ethics, based on the doctor-patient dyad must be reformulated to fit the new mold of the delivery of health care...Regulation must evolve. Regulating for improved medical care involves designing appropriate rules with authority...Health care is being rationalized through critical pathways and guidelines. The
primary function of regulation in health care, especially as it affects the quality of medical care, is to constrain decentralized individualized decision making.

Dr. Berwick later received a recess appointment to head CMS while his co-author later become CMO and VP for Aetna (2006-2008) and subsequently CMO and EVP of CVS Caremark.Dr. Berenson has held several positions in federal government icluding vice chair of the Medicare Payment and Advisory Committee (MED PAC).

Next we look at the charter for the New Medical Professionalism which was published in the Annals of Internal Medicine in 2002 as internists on both sides of the Atlantic offered a faux solution to the problems that medical practitioners faced in the new century .Dr. Brennon played a major role in that effort.

The authors listed various problems facing physicians and then gratuitously offered the mother of all non sequiturs namely that presumably these multiple problems (a barrage of new drugs and technology,changes in market forces,etc) could be solved by physicians working for social justice and an equitable distribution of society's medical resources as well as working to promote and respect patient autonomy and the principle of the patient's welfare.Social justice was bundled with the other two non controversial principles. Think about that "solution", to mitigate the myriad of problems the proposal was to maintain principles physician had upheld for a long time and add on an obligation to work for social welfare. As if physicians did not already have have enough to do. This was not an ethics handbook ( that would come later ), rather this was a "charter" , a set of commitments for medical professionalism which they defined as the basis for medicine's imaginary contract with society.

In 2007 the same or very similar theme was played again , this time by Dr. Brennan , who by this time had become VP of Aetna in an article entitled "Managing Medical Resources, A return to the Medical Commons" , coauthored by the then President of ACP Dr. Christine Cassells.(JAMA,June 13,2007,Vol 297,#20,pg 2518.

Here,the authors speak of an abstract, hypothetical " medical commons" and lament that the current emphasis by the physician for the welfare of the individual patient will spoil the commons much as the farmer who selfishly grazes his cattle on public land without regard for depleting the resource will destroy the resource.Physicians are implored to "reconstitute the medical commons" and think in terms of resource conservation and allocation so at the end the greatest medical good can be done for the greatest number of patients.They admit there is not currently such a commons. There never has been so I am unsure how a return is possible.

The medical commons figure of speech seems particularly lame.While a grassy knoll for the villager's sheep can be defined by a specific surveyor description, the "medical commons" is a extremely large amorphous array,the elements of which almost defy enumeration, and every changing, with some elements growing ,others contracting and innovations cropping up constantly.There is no easily defined entity called "medical resources";it is an amorphous abstraction.Further, to speak of allocation means some one or some elite group will be the "allocator in chief ". Decisions will not be made by thousands of individual physician-patient pairs.

Cassell and Brennan assert that a market based or a regulatory approach will allocate resources without the caring and wisdom that clinicians can bring to the endeavor. In their analysis the only choice is a medical commons with physicians and patients moving hand in hand willing to put aside the petty concerns of the individual when necessary for the greatest good of the group.

This is not the only publication wherein an officer of a large insurer found a friendly home either with a ACP officer as co-author or in a ACP journal to espouse a similar theme.

The journal of the American College of Physicians (ACP), the Annals of Internal Medicine, in 2006 featured a five page article in which the former CEO, and then current board member of Aetna, Dr. John W. Rowe, pontificated on the "moral basis for physicians..to participate in...[P4P]." I commented on that article at the time and noted that Aetna's reputation among practicing physicians was such that Dr. Rowe might not have been the most credible witness to present the case for P4P , a movement which the ACP has tended to favor. In a comment to my blog entry Dr. Roy Poses pointed out more details concerning Dr.Rowe's association with Aetna , namely that he owned 6 million shares and that he was actually chairman of the board of Aetna and that , of course, Rowe has a fiduciary duty to act in the interests of the company.

Then in 2012 came the new ethics manual of the American college of Physicians ( Published as a supplement to the Annals of Internal Medicine Jan. 2012,
American college of Physician ethics Manual, sixth edition;) Here is one quote:

Physicians have a responsibility to practice effective and efficient health care and to use health care resources responsibly.

In this document there was no longer dancing around the edges or causing the reader's eyes to glaze over with absurd fairy tales of patients and physicians working together for some nebulous common and conservation of commonly owned resources. Now we are told doctors need to conserve medical resources and get over the archaic obligation to the be patient's advocate.

quoting from Table 1 ( pg 74) Principles that Guide the ACP Ethics Manual recommendations

principle description

Beneficence The duty to promote good and act in the best interest of the patient
and the health of society

Non Maleficence The duty to do no harm to patients

Respect for patient The duty to protect and foster a patient's free uncoerced choice

Justice The equitable distribution of the life-enhancing opportunities
afforded by health care

Quoting from page 74 of a supplement to the Annals of Internal Medicine, entitled "American college of Physicians Ethics Manual,sixth edition.

Comment: Right at the beginning the ancient bedrock of medical ethics is quietly altered. Now Beneficence is expanded beyond its traditional meaning altered to include "the health of society"
How has the term been used in the past.

Wikipedia states:
The term beneficence refers to actions that promote the well being of others. In the medical context, this means taking actions that serve the best interests of patients. However, uncertainty surrounds the precise definition of which practices do in fact help patients.

James Childress and Tom Beauchamp in Principle of Biomedical Ethics (1978) identify beneficence as one of the core values of health care ethics. Some scholars, such as Edmund Pellegrino, argue that beneficence is the only fundamental principle of medical ethics. They argue that healing should be the sole purpose of medicine, and that endeavors like cosmetic surgery, contraception and euthanasia fall beyond its purview.

Considerations of justice must inform the physician's role as citizen and clinical decisions about resource allocation. The principle of distributive justice requires that we seek to equitably distribute the life-enhancing opportunities afforded by health care. How to accomplish this distribution is the focus of intense debate.More than ever,concerns about justice challenge the traditional role of physician as patient advocate.

A box insert is found on page 87 of the manual:

Box 4  "Patients first and stewardship of resources.

The physician's first and primary duty is to the patient.

Physician must base their counsel on the interests of the individual patient, regardless of the insurance or medical delivery setting.

This physician's professional role is to make recommendations on the basis of the best evidence and to pursue options that comport with the patient's unique health needs,values and preferences."

Ed. OK so far no problem but now

"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."

In 2002,  a major offensive against the old ethics appeared in the form of the "Charter for the New Professionalism in the New Millennium "Then things are firmed up in the ACP's new ethics manual

June 2012 AMA joins the bandwagon.

Dr.Richard Fogoros said the following: on his blog the Covert Rationing Blog:

To summarize, by the turn of the millennium doctors were being coerced to withhold healthcare from their patients at the bedside, and thus to violate their time-honored primary professional directive. The intent of the 2002 Charter on medical professionalism was to repair the problem (i.e., to cure the “frustration”), not by confronting the forces of evil doing the coercion, but rather, by simply changing medical ethics to make bedside rationing OK. And that’s just what the document did, though only after careful re-editing to make this radical change to medical ethics sound as benign as possible.

Here we had the great non sequitor which was that  physicians are frustrated by many current forces and situations so to relive their angst we propose they not only worry about the welfare  of their individual patients but they also are responsible for everyone's welfare and the conservation of society's resources.

But how to do that-simple later we are told simply follow the guidelines.

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