Mary Varney Rorty

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Fear and Loathing in the ICU:
A new Ethic for the New Medicine

 

Mary Rorty
1999

 

Introduction

Healthcare in the United States changed considerably in the second half of the last century. In 1950 it might still have been possible to have a physician with whom one had a long-term relationship visit your home to check out your child's strep throat, and prescribe one of the "new" drugs for its cure. Your physician, an independent small businessman, for a more serious illness would have you admitted to the local hospital, in the governance of which he (and there was a 98% chance that it would be "he," not "she") might well have a considerable say. Once there, you would continue to be under his supervision. His medical expertise would determine what treatment options were appropriate; his order would decree that they be provided; his professional ethics, his explicit commitment to your well-being as his patient, would incline you to trust him. His judgment that a treatment was required would virtually guarantee that your insurance would pay.

The conditions of medical treatment in 2000 are in some respects quite different. Now you will certainly have to visit your doctor, rather than hoping for him (or her) to visit you. If admitted to a hospital, your treatment might well be by another physician, and for serious illnesses you would be treated by a medical "team," including various specialists in your particular ailment. Your relations with the hospital, in which your physician might well have much less say, would, after the initial admission, be governed by many conditions which your physician did not determine or control. Many of the prerequisites for your treatment - the expensive technology, the specialized facilities, the support staff of allied health professionals - are provided by the hospital, not by your physician alone. And you might realize, as you uneasily recall the 90 page brochure in your desk drawer you received from your employer when you changed jobs last year, that you are not sure how much of the expense of the technologically sophisticated, labor-intensive, scientifically advanced medical treatment you are about to receive, for all of which you will be billed, will be reimbursed by your health plan.

The changes represented in the difference between the two scenarios did not occur overnight. But one part of the difference, the financing of the delivery of healthcare in the United States, has changed rapidly in the last decade. It is because of the changes in the financing of healthcare that some of the other changes have come about; as well as some other changes that, if you have been healthy, you may not have noticed yet.

Problem statement

Have the recent changes in how healthcare is delivered necessitated a re-examination of the ethical foundation of healthcare in the United States? Several authors have argued that a "new medical ethics" is becoming necessary.

The "old" ethics governing healthcare was primarily a hippocratic one. Until after WWII, healthcare in the US was dominated by, and governed almost completely, by physician's medical ethics. [1] Medicine was a tight ship, run by the doctors. They admitted to, and were involved in the governance of, hospitals whose financial stability depended upon the physicians whose patients they cared for. Not only nurses, the largest part of the health care labor force, but allied health professionals and hospital administrators were constrained by professional ethical codes that replicated the major tenant of physician ethics: the primacy of "doing what is best for the patient. [2] The conditions of healthcare delivery changed in many ways post-war, as more treatments moved within hospital walls, team-medicine became the norm,[3] and patient/team or patient/institution relations began to supplement or replace the previously strong patient/ physician relationship.[4] But until very recently, the assumption was that the "old" ethics, professional medical ethics, was adequate to the new situation.[5]

With the failure of Clinton's health plan in 1994, a new set of players entered the stage: managed care organizations, with an explicit social mandate to contain rising healthcare costs. The current growth of MCOs has been encouraged as an alternative to comprehensive healthcare reform. Opponents to Clinton's proposal argued that additional government intervention was not needed in the health insurance market because increased competition could achieve the goals of controlling costs and providing good quality care. The mechanism - well known to Californians, where managed care dominates the health care market - consists of contracts with payers for pre-determined sums. The actual healthcare is then negotiated with providers, with the financial risk of any cost overruns passed on to the hospitals and physicians. Managed care organizations became the intermediaries between "providers" - the suppliers of healthcare services (what we used to call "physicians" and "hospitals") - and payers - the employers and government agencies that contract with them to meet the healthcare needs of the people enrolled in the health plans they offer. [6] Were delivery of healthcare to be 'managed' properly, it could maintain quality and lower costs, or at least limit cost increases. Thus the goal of managed care came to be seen as the efficient use of healthcare resources, by which it was hoped they could control costs while continuing to provide care of the same quality. It is the entry of these new players, from sectors of the economy not previously involved in healthcare, that has prompted the concern about the need for a new ethic.

Various mechanisms of cost control have been introduced in the last decade by managed care organizations (MCOs): purchasing arrangements for bulk buying; reducing pay to providers; shifting the risk of loss to providers; excluding costly patients from coverage; reducing the number of covered benefits; limiting services and denying treatment claims; increasing co-pays and deductibles.[7] There are lots of ethical questions that have been raised about particular mechanisms of cost control instituted by managed care organizations. Particular providers and provider groups - most notably physicians - are particularly concerned about the impact of cost management mechanisms (such as limitations on their pharmaceutical choices or treatment recommendations) on clinical discretion, representing constraints on their traditional power to make treatment decisions.

The main complaint of providers (apart from the fact that they are called providers, instead of being called physicians) is that they are responsible (morally, professionally, legally and financially) for the care of their patients, but no longer have the sole discretionary power over treatment decisions (or, at least, over whether they are going to get reimbursed for the cost of the decisions they make).

The apparent reason for the constraints on physician judgment is something like this: that physicians are, indeed, responsible for individual patients. Managed care, on the other hand, is responsible for delivering healthcare to populations. In order to do so, it is incumbent upon them to control the expense of caring for individuals in order to more equitably distribute the healthcare resources to all members of the groups for which they are responsible. Physicians exert a disproportionate degree of control over the cost of treatments, so they are the primary objects of mechanisms of control. This confrontation between physicians and managed care is conducted in terms of competing imperatives: I'm responsible for my patients, and you are impeding me in carrying out that responsibility, vs. You've been spending other people's money like there was no tomorrow, and I'm responsible for seeing that you restrain yourself. That this acerbic dialogue is carried on in terms of ethics versus money raises two questions. First, does managed care have an ethical foundation that can be contrasted with the professional ethics of physicians? Second, is there an approach to the conflict that can rise above the competing accusations of two groups of stakeholders, each with a financial stake in the outcome?

Proposed solution

The proposed solution - or rather, solutions, since there seem to be several alternatives, involve in one way or another reference to populations rather than individuals. Physicians have to acknowledge that they are responsible for constraining costs of delivering care for groups, not just individuals - i) all the patients for whose care they are responsible , or ii) all the patients for whom the group they contract with are responsible, or iii) "the society" which is concerned with costs of care. Patients must accept constraints on the care available that are proportional to the amount they have contributed to the healthcare system.

It is widely accepted that the healthcare system IS responsible for populations, not just for my patient and yours. There is a sense in which this is true. Considered nationally, there is a healthcare "system" in this country; and it is held responsible for the health of its citizens. Comparisons like "19th in the world in infant mortality rates" and "the only developed nation with no national health service" are statements about the US healthcare system. On the other hand, it is not the case in the US that private insurance cares for some of the population and government undertakes responsibility for all those who are not covered by private insurance (as is the case in most other developed nations). Nor is it the case that there is a nationally agreed-upon minimum standard of care such that EVERY citizen, regardless of h/h ability to pay, is guaranteed that minimum[8]. But to say that the system as a whole is responsible for the population as a whole, and that it fails to meet that responsibility, does not help unless we can allocate that responsibility among the various components of the system, and see who in particular has failed at what.

The closest thing to a self-conscious defense of an ethical foundation for managed care that I have found in the literature is that infuriating article in the packet by David Eddy: "The Individual vs. the Society: Resolving the Conflict.[9] He couches the ethical foundation for managed care in terms of justice. The position he takes seems to be something like the following:

There is a conflict between individuals and the society in allocating healthcare resources. The society wishes to maximize the aggregate health. The individual - especially when in the position of "patient," that is, actually requiring the allocation of healthcare resources - wishes to maximize h/h individual health. But unless those resources are allocated on the basis of the most equitable usage - that is, in such a way as to achieve an equal benefit per resource unit expended - benefits to any given individual will affect the health outcomes of others. So we must allocate healthcare resources maximally effectively, where "effective" is measured in terms of benefit to the recipient per resource unit - maximum "bang for the buck."

The managed care organization undertakes to distribute the available healthcare resources of the society equitably. This can require denying expensive treatments where less expensive treatments are equally effective, refusing expensive and only marginally beneficial treatments, discouraging medically "unnecessary" care, and generally balancing cost and quality in healthcare resource distribution so as to maximize benefit to the society.

This statement of the ethical justification for managed care is the strongest I can make; but I cannot resist the temptation to criticize the way Eddy makes it, in several respects.

(1) Pooling of resources: his language of the pooling of resources suggests the insurance model, where everyone who wants insurance buys coverage up to a certain amount and gets that coverage, whether the car you are replacing is a $2k beater or a $20k sedan; and indeed he mentions that analogy in the third paragraph. Am I in "conflict" with others who are insured to the same amount when I make a claim on my insurance? If healthcare represents the same kind of pooling, and I'm sicker than another claimee, we aren't in conflict when I request healthcare. (His comment that "individuals and their physicians have substantial control over how much individuals withdraw from the pool," suggests that doctors, unlike automobile appraisers, are dishonest or arbitrary, or patients are attempting to defraud their insurance companies. But doesn't that undermine his own analogy, as well as gratuitously slamming docs and patients?) [10]

(2) Defining fairness as what I've paid for: I'm not sure how "fair share" enters his discussion, but after introducing the "resources pool," he says the ideal is that each individual will draw from the pool only his or her "fair share" of resources. If my fair share is not the amount I'm insured for - which is what it should be, on this insurance analogy - it /could/ be any number of things, including the amount I /need/. But it turns out that my "fair share" is contrasted with the "disproportionate share" of the first paragraph: a service that I am not paying for, or more than I have paid for. I think it is important to note that the sense of "justice" involved here turns out to be a libertarian sense of "fair," where it is, for instance, unfair to ride first class when I paid for coach, not an actuarial sense of fair appropriate to his own insurance analogy.

(3) Defining equity in terms of efficiency: What is "fair" in healthcare is fair to the resources, not to the recipients. This is a shift from "fair" as what I've paid for; and it seems to be a move from the point of view of the individual to the point of view of "society" in the following sense: if I have contributed to a common resource, I expect that resource to be used wisely and well, not squandered. (Or maybe the point of view of the hospital bed: I as the bed consider myself treated unfairly if the bed next to me is occupied by a sicker patient?)

(4) Society vs. patients: This shift is made explicit on the next page, where he talks about the first and second "position." There are two decision makers. One, "the public health or societal perspective," wants to allocate a resource as efficiently as possible across patients; the other, "the patient's perspective," wants to choose resources to optimize each patient's care. There is a conflict between the society's desire to limit health costs and patient's desire to receive the highest quality care available, but I'm not clear how this is a conflict between society and individual of the sort Eddy describes. It is rather a question of how to prioritize cost and care; and that is the same question on the societal level and on the individual level.

(5) Preferences vs. needs: His contrast between the first and second position surfaces later in the article when he suggests that when I am signing up for a health benefit I adopt the perspective of the society, but when I need care I shift irresponsibly to the second position and want care. (But this isn't a society v. individual contrast, but a contrast between an individual in one state and the same individual in a different state.) He presents it as the following situation: I decide when enrolling that I do not want treatment b. That is my preference, a free decision on my part, for which I am responsible; if then I change my mind when it turns out that I fall ill and need treatment b for my disease, we need to fall back on our principle: "let people decide what they are willing to pay for, respect those decisions, and adhere to those decisions."

(6) Public health vs cost containment: These various conflations get really annoying in the section on p. 2405 (packet 260) where he argues that decisions made from the first position should take precedence over those made in the second position. Those are really bad arguments. The "person in the first position" wants to not be ill, and if ill, to receive efficient and effective care. The "person in the second position" wants exactly the same thing. "Society" wants (and expects) high quality care for reasonable cost, as does the patient. Of course efficient and effective care can provide a high quality of care, and to argue that the "second position," or patient's perspective, wants anything different is to presume, quite unfairly I think, that patients want undertreatment, overtreatment or mistreatment. The clincher, which best reveals the underpinnings of his argument, is the final sentence: "Policies designed from the first position provide greater good for the greater number." Insofar as I am taking Eddy's argument to be a defense of managed care, I see this claim as a statement of the ethical justification for managed care: a utilitarian argument, defining healthcare in terms of populations. I shall suspend for the moment my final objection, which is his conflation of this position with the public health perspective, but I shall return to that point on p. 7.

The solution seems to amount to something like the following: managed care is serving as the moral/ fiscal conscience of the society, using traditional market mechanisms to impose cost constraints on physicians and patients to discipline them, insisting that patients accept constraints proportional to the amount they can pay for, and physicians accept the judgment of MCOs about what treatments are appropriate for (and thus going to be reimbursed for) their patients. Recommended treatments falling outside those parameters will either be withheld from patients or delivered at the expense of the providers. This obligation to constrain costs is the designated social role of the MCOs, a duty they undertook on behalf of the payers for health care. How well they fulfill this obligation is the only moral judgment to which they are subject; and fulfilling the obligation is defined only in terms of cost control, not in terms of the quality of the care delivered.

Objections to the proposed solution

The main problem with this solution is that health care does not fit the traditional market model for a product or service. It is not only a problem of imposing a new model on a very different tradition, although that is certainly part of the difficulty for patients and physicians. There are also structural problems with the model that is being imposed.

(1) One problem is the disconnect in the "managed cost" model between decision power about treatment decisions and the knowledge base that justifies those decisions. There is certainly a degree of offended pride and broached prerogatives in the negative reaction of physicians to managed care. There is also a strong justification for taking treatment decisions out of the sole control of physicians when financial incentives (as in the last "golden" years of fee-for-service medicine) tended toward overtreatment, one of the agreed modalities of poor-quality care. However, it is not merely tradition, but education, experience and skill, as well as their professional responsibility, that decrees that physicians should decide upon medical care for their patients. [11] And, not surprisingly, there may even be a relation between cost and quality. You can't delegate cost to accountants and quality to docs as if the two did not mutually implicate each other, and expect that to meet the need for healthcare that balances cost and quality. There have been various suggestions about sharing responsibility of care recommendations with other physicians in the practice or in the MCO which seem less problematic than "MBA" control of treatment decisions.

Another way of framing the same problem is the fact that although the hospital, all allied health workers and physicians in the earlier iteration of healthcare were to some extent governed by the physician's putative responsibility for the individual patient, one of the important players in the contemporary healthcare game is outside that "hippocratic matrix."[[12] Insurance companies and the other businesses without a tradition of healthcare delivery who are now decision makers come unencumbered by the professionally defined responsibilities to individuals that have governed earlier players. There is even legal justification in terms of some recent court cases for considering the managed care organization free from liability for care decisions that work to the disadvantage of patients. This exemption is one of the important grounds for the widespread mistrust expressed by the public of their managed care providers, and may well be temporary.

(2) The "market" model is a problem when applied to healthcare because of an anomaly often disguised by the vocabulary of "customer." The hope of the post-Clinton market model for healthcare was that competition between managed care providers would lead to cost containment. The assumption seems to have been that by eliminating waste, redundancy and over supplies and utilizations of various sorts, we could contain costs without imperiling quality of healthcare. [13] The desire was for cost-effective high quality care. This works beautifully if you are buying ball bearings. You, the buyer/consumer, can choose between lots of lower quality ball bearings or a smaller number of higher quality ball bearings, and the producer/manufacturer can maintain his profit margin by lowering the cost to him of producing his product, or raising the quality of his product for the same price. You as the buyer can order your priorities for cost or quality. Your supplier can beat out competitors by either lowering price or improving quality. Competition of this sort is the ideal market model.

This market model does not work in healthcare because the buyer is not the consumer. [14] There is no single "customer" who can balance cost and quality, and can take responsibility for that choice. The literature on healthcare is littered with the term "customer," but you have to read really carefully to figure out who the customer is in a given context. The buyer/payer is the stakeholder who contracts with the MCO to deliver care to enrollees. The *payer* is the "customer" of the MCO, if the person who gives you money for a product or service (eg a ball bearing) is your customer. But it is the *patient*, the enrollee (or that subset of the enrollees who actually gets sick) who is the *consumer*. The market model is structurally inadequate to accommodate this bifurcation of the "customer." [15] And it is possible - it is even likely - that the payer/buyer will prioritize cost in the cost/quality balance, while the enrollee (or at least the patient, the " person in the second position," as Eddy would have it) will prioritize quality, whatever that means. [16] [17] In practice, as practically everyone acknowledges, measuring quality is extremely difficult, so even the best-intended MCO who wants to satisfy both buyer and consumer will have a much easier time figuring out what it is that the buyer wants than what the consumer wants. Under these circumstances the likely result is that quality will be traded off for lower price; and there is a great deal of concern about whether that is in fact happening.

(3) Apart from the structural incompatibilities of markets with healthcare and market logic with a split customer base, there is a problem with the re-definition of the obligations of medical treatment as being owed to populations, rather than to individuals. The problem is that of priorities. If the obligation to the group takes precedence over the obligation to individuals, "there is no reason in principle why the greater gains of some should not compensate for the lesser losses of others."[18] This is the traditional objection to utilitarianism, its prioritization of consequences over justice. This may be quite appropriate in some social institutions and not in others. It seems to me constitutive of the medical enterprise that the designated agent of medical care should be committed, within realistic constraints on resource use, to doing the best possible for the individuals who present for care, on the basis of their need. It is this self-understanding that differentiates public health and medical care. If we are talking about the entire healthcare system, of course both public health and medical care - the individual perspective and the population perspective - need to be included, with different functions and roles played by different institutions. But reformulating the obligations of medicine in terms of the obligations of public health doesn't help either to fulfill their appropriate social roles.

The traditional public health approach, according to our textbook, "begins with the population perspective, and with the effort to measure and improve the health status of populationsÖWhereas in medicine the patient is an individual person, in public health, the "patient" is the whole community or population." [19] The goal of public health is to reduce disease and early death in populations; the research methodology of public health is epidemiology, and the application methodology is attention to (as another article claims) the determinants of incidence, rather than attention to the determinants of cases.[20] Medicine treats cases. The traditional methods of public health include things like attention to sanitation, clean water and sewage provisions, infection control by hygiene, eradication of infectious disease vectors like rats or mosquitoes.[21] It is important for public health to talk about the priority of populations to individuals, because for the sake of public health it is widely considered justifiable to constrain the liberties of individuals, and a lot of the public health literature explicitly discusses what degree and kinds of constraint, with what justification, is acceptable within public health parameters. I'm not saying that there are not analogies with the kind of discussion currently going on in medicine; but I am saying that it is a different discussion, and a different context.

One of the things that seems to justify, or at least explain, how that rhetoric got smuggled in is the re-discovery of disease prevention and health promotion by medicine. It used to be only the public health segment of contemporary healthcare that paid any attention to prevention.[22] When you start thinking about how to constrain the medical costs of various patients, it suddenly becomes reasonable to consider that early detection pays off in terms of later hospitalizations, thus encouraging subsidization of various screening programs; that prenatal care reduces expensive NICU admissions; that diet and exercise mean healthier enrollees and thus less "medical loss" (what we now under the market model call actually providing the medical care your enrollees have signed up for). But allowing the reimbursement of specific interventions to improve the health conditions of your enrollees, your "covered lives," is not the same as public health. Your criteria for selecting the "population" affected, for instance, are different. [23] So far as I understand it, public health does not take as its target population all and only the people enrolled in one health plan. It does not "allow" interventions so much as requiring them. It does not deny recommended treatments to individual patients, for instance, because another individual has better insurance. Managed care is invoking a quite justifiable obligation of the system as a whole to all its citizens without acknowledging that it is not accepting that obligation. Further, the public health perspective is not a resource-based perspective. Despite Eddy's invidious appropriation of the term for that purpose, the public health perspective is not one which "wants to allocate a resource as efficiently as possible across patients."[24]

What is the alternative?

Managed care does have an ethical position that can be contrasted with the professional ethics of physicians. That position defines the goal of healthcare, and the social role or obligation of the healthcare system, as resource management: the equitable distribution of the resources of the society available for healthcare across the population of all those needing care. Managed care promises to balance cost and quality, constraining costs by eliminating underuse, overuse and misuse of medical resources. Like other consequentialist positions in ethics, managed care justifies various means to this admirable end in terms of the extent to which they contribute to that end. The problem for the current situation in healthcare is that the two positions contrast too sharply. It may be good resource management, but it ain't medicine. The goal of healthcare, the obligation of the healthcare system, is to deliver healthcare of good quality for a reasonable cost to people who need care.[25] The ethical justification of the healthcare system has to be in terms of the health outcomes of the recipients of care, not the distribution of resources. Of course an excellent healthcare system will manage the resources of that system, the essential means to its ends, well and wisely. [26] But resource management is a means to the ends of medicine, not a substitute for it. Further, the ethical position required is going to have to have constraints on what means are ethically acceptable. [27]

But we can't go back. Having finally focused on the cost component of the cost/quality tradeoff, we cannot pretend to continue to ignore it. An excellent health system delivers care of good quality for a reasonable cost. To argue for quality no matter what the cost is as unwise as to opt for restraining costs no matter what the effect on the quality. There is this truth in the physician's complaint to the managed care administrator: the physician IS responsible for the care of his patients. There is this truth in the managed care administrator's complaint to the physician: medicine HAS been extraordinarily irresponsible in cost control, and in cost justification, which requires generating data to justify treatment choices on the basis of quality of outcome. If we are going to argue for a new ethic for a new medicine, it is not going to be either the old professional ethic of the physician, or the new utilitarianism of the resource managers.

If we are to draft a new ethics for the new medicine, it should have some of the following characteristics:

The system as a whole should be justified in terms of its beneficiaries: directed toward the maintenance and improvement of the health of the recipients of care. Cottage industry, small-business or medical-industrial complex, health care is for the sake of the cared-for. Thus the emerging system should be "hippocratic" in its dominant value.

But physicians, however virtuous, can't be the only determinants of what that requires. This is not only because they have a history of failing at this task, but because the conditions of healthcare have changed since the physician hegemony was initially established. The physician should, and can, and will, take more responsibility for the cost component of the cost/quality ratio, not only for what they recommend but for what that recommendation will require.

Other voices, especially the hospital's voice, needs to be heard. One of the suggestions for a new way of thinking about the new medicine is that physicians and institutions are moral co-fiduciaries of patients; and that they can, and should, be economically disciplined co-fiduciaries. [28] This suggestion has two advantages. It acknowledges the extent to which responsibility for care has expanded past the individual physician, and it accepts the appropriateness of responsibility for cost containment at the provider level of the healthcare system.

The system should acknowledge that different components of the system have different roles in contributing to that governing value. Different voices/places within the system - patients, providers (physicians, other health professionals, hospitals), payers (employers and government agencies) - represent different moral mandates, different values, different priorities, as do different groups within institutions with different responsibilities. [29] All of them are justifiable and need to be acknowledged and accommodated. As in many areas of healthcare ethics, communication (without reprisals for openness) can facilitate accommodations of different perspectives. Even when choices have to be made between competing values and priorities, all the values at stake deserve explicit public recognition and mechanisms for fairness. This will require more attention than has been paid to procedural justice: mechanisms for voice and exit, and negotiation of priorities in democratic safe spaces at all levels of the healthcare system.

Conclusion

Think of the problem this way. "Society," in response to rising healthcare costs, allowed, or arranged for, the introduction of a new player into healthcare, designating managed care as the agent of cost control in the medical system. The effect of this has been to authorize a splitting of cost from quality, assigning one of those conjoint responsibilities of the healthcare system to the administrators, the MCOs, and the other to the providers. The current turmoil, loss of trust, erosion of morale, and general fear and loathing is the reaction to this split. We can't really treat those two as if they were separate factors, instead of two sides of one treatment coin; the split will not be able to be maintained. On the other hand, the split has been pedagogically useful in calling attention to the relation of the two. The resulting rhetoric has called the attention of managers to quality and of providers to cost. Physicians are being urged to be more "economically disciplined." MCOs are being lectured about the difference between "managed clinical care," which is good and wise and useful and focuses on health outcomes, and "managed-cost care," which is scary and possibly dangerous in that it makes decisions on what kind of care to authorize that are based on cost alone. These divisive contrasts conduce to the acerbic dialogue between physicians and managers that I parodied at the beginning of the paper. Perhaps the contrasts are necessary to make the stakes clear; but it will be necessary to move past the adversarial relationship in order to find a common ground.

What direction should that move past conflict and division of labor take? Half of the literature I've been reading for this paper recommends incorporating cost control into an expanded notion of physician responsibility, and the other half recommends incorporating quality consciousness into administrative responsibility. If a "new ethic" can be found, it will not be either of the two candidates I have been contrasting, but one that posits "high quality care for a reasonable cost" as the common objective for both the current competitors for power in healthcare.

The "new ethics" should adopt a rather different attitude toward the patient than either the physician's or the managers' ethic. There's been a lot of paternalism and reverse paternalism [30] with respect to the recipients of care. Sometimes they are told that because they are sick they are vulnerable, they need to be told what's best for them, they can't be expected to understand what their health plans allow for, they wouldn't recognize quality care if they encountered it, they have to be given whatever they want, they have to be taught what's good for them. Sometimes they are told they are greedy, they are exploited or victimized, they are spoiled rotten Ö Doctor knows best; your health plan knows bestÖ Mainly what they need is to be treated as ends of the healthcare system, not raw material to be processed through the system in order to justify payment. [31]> Of the models available in the current system, the old hippocratic medicine has the best hope of granting that respect. But it is not just the physician's responsibility and office, nor is it his only responsibility. It is an obligation of the whole system. The new players in the game, in particular, the new managed care organizations, need to recognize that they are part of that system too.

 



Endnotes

[1] The seven principles now advanced by the AMA include calls for competency, honesty, respect for law, respect for the rights of patients and others, continuing study, and cooperation with others who have specialized knowledge; freedom to choose one's patients, and recognition of a responsibility to the community. Nowhere in these principles is there a specific statement concerning putting the needs of the individual patient above all other considerations, which had been the traditional stance of organized medicine until the 1980s when the principles were last revised. (AMA 1996, xiv) . The American College of Physicians ethics manual is more specific about the primacy of the interests of the individual patient. "The physician's primary commitment must always be to the patient's welfare and best interests- regardless of financial arrangements, the healthcare setting, or patient characteristics-" (ACP 1998, 27-8) In a (relatively) recent symposium sponsored by the AMA in 1996 participants affirmed as the "core value in medical ethics" - serving the medical needs of individual patients. Participant Arthur Applbaum declared "Doctors who pursue ends that conflict with the end of caring for each patient are making a conceptual mistake, for one cannot be a doctor and coherently pursue ends incompatible with what doctoring must be." (Goldsmith, Marsha F. "Doing What is Best for Patients: A Sesquicentennial Rededication." JAMA 277(16) 1265-68.)


[2] The American Nurses Association Code for Nurses (ANA 1985) adopts a position of "client advocacy," a reformulation of the primary obligation to her patient recommended by earlier codes. The Code of Ethics of the American College of Healthcare Executives claims that the fundamental objective of healthcare management is to "enhance overall quality of life, dignity and well being of every individual needing healthcare services." (ACHE 1995)


[3] In one of my favorite articles, a physician writing about confidentiality of patient information did an informal survey and found that 75 clinicians or employees had legitimate access to his patient's record, which meant that they were in some measure engaged in his patient's care. Mark Siegler (1982): "Confidentiality: A Decrepit Concept," NEJM 307 (24) 1518-21.


[4] One commentator suggests that the institution-patient relationship is more important than the physician- patient relationship in contemporary healthcare, because of the specialization of physicians, the mobility of patient populations, and the churning of healthplans by employers and other payers. John Peppin (1999): "Business Ethics and Healthcare: The Re-emerging Institution-Patient Relationship," J Med Phil 24(5), 535-550, p. 538.


[5] I am avoiding the question of whether bioethics constitutes a "new" ethics here. Although professional ethics tends to be virtue-based and defined by the social role of the physician and some bioethics takes different approaches, professional ethics and bioethics, at least historically, both had as their objective the protection of individual patients. Cf. David Rothman's Strangers at the Bedside, which emphasizes the role of early bioethicists as watchdogs at the bedside of patients, supplementing and enforcing physician ethics, rather than posing an alternative to it. The other question being avoided is whether the professional ethics of the physician itself was being altered in the course of accommodating to the changing conditions of healthcare. Some of those accommodations will emerge later.


[6] The terminology of "managed care" refers to a number of different types of organization, some of which actually deliver care, many of which only administer it. Kaiser Permanente, one of the nation's oldest and most respected health maintenance organizations, is of the former sort, employing their physicians on salaries and owning the hospitals and other healthcare institutions delivering care within the system. Although students of the healthcare industry claim Kaiser has also suffered since facing competition from the for-profit organizations that have entered the market, it has historically served as a model of what a managed care organization should aspire to be. The problematic managed care organization whose ethics is the subject of the rest of the paper is one of the latter sort: often a for-profit business from another sector of the economy, like insurance, with no history of healthcare. Since the care is actually delivered by individuals, groups or organizations under contract arrangements with the MCO, there is some doubt about whether the "medical-cost management organization" is really a healthcare organization at all - an ambiguity reflected in some of the literature about MCOs.


[7] This paragraph has been copied virtually verbatim from Wendy Mariner (1995): "Business vs. Medical Ethics: Conflicting Standards for Managed Care," J. Law, Med & Ethics 23, 236-46, p. 237. It is extremely tempting to go into a tirade at this point about the several and conjoined moral effects of all these mechanisms of cost constraint, but I will restrain myself for the sake of getting to the point of the paper.


[8] Allen Buchanan defends the managed care system against the charge of being unethical by reference to these two criteria for justice. Since we have not established a workable division of responsibility within the system to care for all, managed care is not responsible for failure to improve access; and since we have not articulated a standard of what counts as a 'decent minimum' of healthcare for all, there is no benchmark for determining what the content of a physician's fiduciary responsibility to patients is. His conclusion: "the most fundamental ethical flaw of managed care is that it operates in an institutional setting in which no connection can be made between the activity of rationing and the requirements of justice." Buchanan, 1998: "Managed Care: Rationing without Justice, but Not Unjustly." J Health Politics, Policy and Law 23 (4) 617-634 , p. 618-19. Kassirer is among those who make similar charges about the overall health system: "The fundamental flaw in any universal ethic of medical care in this country is the structure of our healthcare system." Kassirer (1988), "Managing Care: Should We Adopt a New Ethic?" NEJM 339(6), 397-8, p. 398. However, Kassirer is not recommending a "new" ethic. Like Pellegrino and Angell, Kassirer feels that the traditional professional ethic of physicians can be beefed up to meet the new situation. See Pellegrino, E. (1995): "Interests, obligations and justice: Some notes toward an ethics of managed care," J Clin Ethics 312-317; "The commodificaiton of medical and health care: The moral consequences of a paradigm shift from a professional to a market ethic," J Med & Phil /24/(3) (1999) 243-266; Angell, M (1977) "Medicine: The endangered patient-centered ethic," Hastings Center Report /17/, 12-13.


[9] D. Eddy, "The Individual vs. Society: Resolving the Conflict," JAMA 265(18), 2399-2406. Eddy is a tempting target for me because I heard him speak on the occasion of the opening of an institute at Stanford for the economic study of healthcare. Wish I could find my notes; I haven't seen his remarks on that occasion published anywhere. I remember writing down and underlining the following comment: "Managed care promises to control costs, and keeps that promise. What's unethical about that?"


[10] Victor Fuchs points out that there are two "insurance" approaches: the "casualty insurance" model and the "social insurance" model. Casualty insurance is premised on the idea that premiums should to the extent feasible be set according to expected loss. Other things being equal, policy holders with better driving records or smoke detectors pay lower premiums. Social insurance, which is the basis for national health insurance in other countries and for universal social security in this one provides for extensive cross-subsidization among different risk groups and ignores expected loss in allocating costs. (Fuchs, V. Who Shall Live? Pp. 195-6) I suggest that Eddy is equivocating between these kinds of insurance in this article as well, since private health insurance is pretty clearly a "casualty" model while the uses of our taxes are closer to the "social" model. On neither is there a clear understanding of what "a disproportionate share" could be, since the social model depends upon need and the "casualty" model relies on what I'm insured for, not what's "fair." It's tempting to conclude that in Eddy's view to draw on health insurance in case you get sick is "unfair."


[11] MCOs have made different decisions about declining recommended care, and recently one of the largest decided that all treatment decisions would be made by their physicians - a huge rhetorical victory for physician control of care, although there was little discussion in the media about the possible consequence to physicians of deselection if their treatment recommendations exceeded budget. An interesting book by a medical economist/journalist (J.D. Kleinke, 1998: Bleeding Edge: the Business of Healthcare in the New Century) suggests that the "managed cost" MCO is a transitional phase that will quickly be replaced by integrated alliances of providers: "All this spells the inevitable end of the MCO as paternalistic insurer and provider adversary. Resentment over the MCO's interposition between patients and providers has inspired providers to retaliate; their development of integrated networks to effect consumer pull-through is only the first prong in a counterattack; the final prong is the formalization of these networks into full risk-assuming entities, identified throughout this book as "EHOs, or emerging health care organizations." (p. 63)


[12] Again, this remark does not apply to MCOs (or HMOs) like Kaiser or Puget Sound, which are provider organizations. One of the possible resolutions of the present conflict between providers and mcos would be to incorporate them within the "hippocratic matrix" - either by legislation/regulation, or by the eventual promise of greater market share if the various informal methods of comparative evaluation are ever effective enough to be influential on payers. It is important that MCOs are in a rather different business than car manufacturers or cereal producers, but the implications of the different KIND of product they are responsible for is not yet a factor in business practices, at least partially because of the inappropriateness of the market model discussed below. (The terminology of "hippocratic matrix" comes from Rorty 2000: "Ethics and Economics in Healthcare: The Role of Organization Ethics," HEC Forum /12/ (1), 57-68.)


[13] I've got to be fair here to Enthoven and crowd: what they thought would work (and it might well have) would have been something they called "managed competition." As I understand it, what they wanted would have incorporated standards of quality and a standard for a "decent minimum" of healthcare, and probably universal access as well. What we have instead is unmanaged competition, a real dogs-dinner alternative with none of the advantages of the "managed" competition of earlier theorists.


[14] "In a seminal article published some decades ago, the economist Kenneth Arrow showed that the provision of healthcare cannot meet the conditions of a well-functioning, perfect market, and many economists since then have concurred in that judgment." (Callahan, " Medicine and the Market," J Med & Phil 24(3), 224-242), p. 231. I'm not sure what Arrow's conclusion was based on.


[15] I was really pleased with myself for seeing this problem with the market model. But it turns out the same point was made much more elegantly and clearly in 1995 by Haavi Morreim (Balancing Act: The New Medical Ethics of Medicine's New Economics, p. 22.) She uses the term "purchaser" instead of "customer" to make the same point. Just goes to show that buying books is no substitute for reading them.


[16] If you think a little bit about the problem of enrollees, there is a similar bifurcation, and this may be what I was getting at in criticizing Eddy's assignment of "first" and "second" position: When I am signing up for a health plan, if my employer offers me a choice, (and am thus in the position of a buyer, if only secondarily) I may have the option to prioritize cost over amount of coverage. If I get the cheaper plan, as Eddy is glad to tell me, I have no one to blame but myself if the coverage is inadequate. But I make that decision on how much coverage to get on the assumption that the quality of what I'm covered for will be ok, even if the amount I'm covered for, the quantity, is less than I would get under a different health plan. But when the MCO acts in such a way as to constrain my providers, AND the MCO isn't even a health professional, my expectations of quality are confounded.


[17] But what IS quality, and aren't MCOs undertaking to pay some attention to that as well? I'm going to bail on this one. There is another entire paper in the quality question. It is true that there has been more work done on actually measuring outcomes of care for particular diagnoses and treatments in the last 5 years than had been done in the previous 30. It is true that JCAHO, NCQA, and many business folks are urging introduction of TQM/CQI into healthcare at all levels. It is arguable that only providers, not MCOs, are actually doing both the research and the implementation; and I suppose I'd be prepared to claim that they were only doing it as a defensive move to resist cost-containment measures, not out of any intrinsic interest in the subject. ("Medicine is an art, not a science, harumph, harumph - and certainly not a business")


[18] Quoted from Rawls' criticism of utilitarianism, p. 26, p. 198 of the packet. "Utilitarianism does not take seriously the distinction between persons." (p. 27)


[19] Beauchamp & Steinbock, New Ethics for the Public's Health, p. 25. The rest of this paragraph is also paraphrasing of that chapter, "Population Perspective," probably written by the editors.

[20] Geoffrey Rose, "Sick Individuals and Sick Populations," ibid., p. 30.


[21] The origin of public health is sometimes traced to the 19^th century's competing theories of miasma vs. germs , with public health assuming responsibility for what is valid in the miasma theory and medicine going with germs. But I think it probably goes back to Herodotus' treatise called something like "Airs, Waters and Places," where he noted the effects on all the residents of given cities of differences in atmosphere, water source, altitude, prevailing winds and such.


[22] And, of course, nursing, the most invisible segment of the healthcare scene, where "wellness" tracks have been standard in the curriculum for 30 years.


[23] Daniel Callahan specifically addresses the effect of the turn to market models of healthcare on public health initiatives world wide. (Callahan, " Medicine and the Market," J Med & Phil 24(3), 224-242. "Strong national embraces of the market appear to have a uniformly deleterious effect on the provision of public health programs oriented to population health." (p. 231) "It is widely reported in different parts of the world that a turn to the market in a healthcare system has bad results for public health programs. This has been demonstrated in Central Europe and a number of Asian countries. The reason for this seems two-fold: a desire by the government to reduce its healthcare budget combined with privatization moves. The latter normally end by focusing on the acute care sector of medicine, where privatization has more financial attractions, diverting resources from the public to the private sector. In the United States there has been a comparative decline for some years in state public health programs, more or less taking place during the years when healthcare costs were increasing at a double-digit inflation pace. At the same time, the burgeoning managed care industry has given health promotion and disease prevention programs a central place in provision of health care. There is considerable concern, however, whether the main motive is genuinely that of health promotion or of its use as a public relations and market strategy. There is also a concern that as patients shift rapidly from plan to plan, there will be fewer incentives for managed care organizations to provide health promotion services to people who will not stay with them long enough to see an economic payoff." (p.233-4) Laurie Garrett's most recent book, Betrayal of Trust: The Collapse of Global Public Health (Hyperion Press, 2000) is a terrifying illustration of Callahan's generalities.


[24] No, no, NO! Froth! Scream! Gosh, you'd think I knew anything about public health perspectives, the way I go on about it. Sorry about that. I've tried to keep all the editorializing in the footnotes, but obviously I'm getting worse at that as the paper progresses.


[25] I'm sure you have noticed that I am not even raising the question of access. Like quality, that is a subject for another paper. But if we are talking teleologically about the goals of a healthcare system, and what makes it an excellent one, access cannot be ignored; the goal of an excellent healthcare system is to deliver care of good quality for reasonable cost to ALL the people who have need of it.


[26] And frankly, I don't think anyone can argue that fee-for-service medicine, our old model, did manage resources well and wisely.


[27] I'm not sure how to express the contrast I'm making here. I think of it in the terms of Aristotle versus Mill: a teleological versus a consequentialist theory. But I'm a bit fuzzy about what the difference is between the two. Mill's rule utilitarianism requires "justice" as the first consideration, the major constraint, to be incorporated within a consequentialist ethics. But the consequentialist structure requires that in cases of conflict justice be subordinated to the requirement of maximizing the greatest good.


[28] Laurence B. McCullough (1999): "A Basic Concept in the Clinical Ethics of Managed Care: Physicians and Institutions as Economically Disciplined Co-Fiduciaries of Populations of Patients," J Med & Phil 24(1), 77-97.


[29] Sociologist Donald Light, in an article I can't lay my hands on at the moment, distinguishes between "managing clinical care," which is good and wise and useful, and "cost-managing care," which is scary and possibly dangerous in that it makes decisions on what kind of care to authorize that are based on cost alone. (This is similar, I think, to Howard Brody's distinction between "Jekyll" and "Hyde" managed care: C.Clancy and H. Brody (1995): "Managed Care: Jekyll or Hyde?" JAMA 273(4) 338-9. ) These divisive contrasts conduce to the acerbic dialogue between physicians and managers that I parodied at the beginning of the paper. Perhaps the contrasts are necessary to make the stakes clear; but it will be necessary to move past the adversarial relationship in order to find a common ground. A particularly thoughtful contribution by George Agich specifically deplores the absence of a positive ethics of managed care, and recommends "incorporating administrative and resource management into a richer analysis of clinical managment than has heretofore occurred."


[30] I think what I mean by "reverse paternalism" is abandonment.


[31] If you think of medicine as producing healthcare interventions, which is what the market model suggests, the MCO is the producer; providers (institutional and individual) are its suppliers; the payers are its customers. So where is the patient? The raw material, entering the system ill, subjected to the processes of care, and leaving the system better or worse off: the structural role occupied by the steel in the tooling of ball bearings.