Hippocrates or Hypocrisy
?
By David T. Gordon
Imagine you wake up one day with severe pain in your abdomen. You go
to your primary-care doctor at a local clinic run by your health maintenance
organization (HMO). The doctor discovers a small, inflamed mass in the
area of the appendix and orders an ultrasound. But the test can't be done
immediately or at the nearby hospital. You'll have to wait eight days and
drive fifty miles to another of the HMO's clinics, the doctor explains.
While waiting for the appointment, your appendix bursts, leading to a painful
infection of the abdominal wall-and a brush with mortality. After costly
emergency surgery, you decide to sue the HMO, but you learn that under
federal law governing employee benefits such as pensions and health care,
you can only sue for the cost of treatment, which the HMO paid anyway.
In other words, the HMO owes nothing for the suffering its cost-cutting
policies might have caused.
At first glance, this real-life case of Cynthia Herdrich of Bloomington,
Illinois, reads like any other HMO horror story, the kind we've grown accustomed
to as the managed care revolution swept the country during the 1990s. Herdrich
could not sue her HMO, but she did sue her doctor, Lori Pegram, on behalf
of the HMO, to recover the added costs of the emergency procedures. Both
the doctor and the HMO challenged the 1992 claims, and it was eventually
dismissed in federal court. But in 1998, the Seventh U.S. Circuit Court
of Appeals in Chicago reinstated the suit, saying that all those in the
managed care organization's chain have a responsibility to put the patient's
interests first.
This month, the United States Supreme Court is scheduled to begin hearing
arguments in Herdrich versus Pegram. Among the documents the high court
will consider: an amicus curiae brief cowritten by law professor Wendy
Parmet and filed on behalf of Herdrich. In the spring, the court will determine
whether it is legal for doctors to withhold or reduce treatment of patients
in order to save money for managed care organizations. In doing so, it
will send a strong signal for what ethical guidelines health care providers
must follow in the new world of managed care.
The collision of business ethics and medical ethics has become a bread
and butter topic for pundits, policymakers, presidential candidates, and
the press. As we head into the new decade, issues like patient privacy,
genetic repair, assisted suicide, fetal tissue harvesting, human embryo
research, and glossy advertising for medical products and services are
all areas where the specter of profit-making threatens to cloud sound judgment.
Even as breakthrough discoveries have enhanced medicine's ability to
perform wondrous deeds, the troubled economics of the health care industry
have raised consumer suspicion of the field-so much so that in 1997 the
American Medical Association felt it necessary to establish an "Institute
for Ethics" to set its official policy and issue opinions on such
dilemmas. And increasingly, hospitals are assembling their own ethics teams
to help health care professionals sort through conflicting interests when
difficult decisions loom.
Is medicine still the ancient profession based on the Hippocratic promise
"to do no harm" to patients? Or is it a modern corporate endeavor
with a primary purpose of earning money for shareholders of managed care
organizations, big pharmaceutical companies, and biotech firms? In cases
like Herdrich and in public debates like the one last fall on Capitol Hill
about health care regulations, several questions have arisen: What are
the ethical obligations of managed care organizations? What are those of
a doctor working for a managed care organization? Or those of an employer
who buys health benefits on behalf of employees?
Under terms of the 1974 federal Employee Retirement Income Security
Act (ERISA), managed care organizations have been shielded from malpractice
claims by injured patients. Those protections assume that both the plan
and the employers who contract with them have a fiduciary duty to the patients-that
is, that they will act in their best interests. Herdrich claimed that because
the plan paid doctors bonuses for holding down costs, it worked against
her best interests and essentially committed fraud.
Parmet agrees. "The HMO said that, under ERISA, you cannot hold
us accountable, that we're immune from Illinois consumer fraud laws,"
she explains. "Of course, any business is going to work for the good
of its shareholders and to try to maximize profit, but that doesn't mean
you can commit fraud. However, if you say you're immune from fraud laws
under ERISA, then the statute is clear: you must act as a trustee and for
the good of the beneficiary, which in this case is the patient."
Parmet draws the analogy between the role of a managed care organization
and that of a bank administering a trust. Say an estate is managed by the
bank. In that instance, the bank-appointed trustee has a primary obligation
to protect the assets of the estate, not to increase funds for the bank's
shareholders. The trustee might try to hold down costs by buying cheaper
pencils or recycled legal pads, but he can't rob the trust to line the
pockets of shareholders. In the same way, says Parmet, when an HMO makes
decisions to cut costs that directly affect the well-being of patients,
it is breaching its duty as a trustee, or fiduciary.
"That doesn't mean every patient gets whatever they want,"
she adds. "It's still a group, and you've got to manage costs in a
way that benefits the whole. But it is fraud to say you'll take care of
people and then not do so."
Part of the problem is that some commonly accepted principles of business
ethics are fundamentally incompatible with traditional medical ethics,
says Patricia Illingworth, assistant professor of philosophy and religion.
Illingworth, who focuses on in the ethical dilemmas facing the health care
industry, points out that the practices of "bluffing, puffing, and
spinning" are forms of deception accepted in business as fair play,
just as they are in poker and politics. Bluffing refers to holding back
certain information (not showing your hand), puffing means exaggerating
(as often happens in résumé-writing), and spinning entails
putting the best face on unhappy outcomes.
Successful contract negotiations, salesmanship, and advertisements all
rely on these deceptive arts-and bluffing, puffing, and spinning are considered
ethical in business because everyone expects them, says Illingworth. An
HMO case manager trained in a traditional MBA program might not see a problem
with bluffing patients. "Sure," a case officer might say, "the
patient wants expensive, high-tech procedures, and if they press the issue,
we'll give in. But we don't need to encourage them to spend our money,
do we?"
Under contracts law, the HMO wouldn't be responsible to do any more
for its member than what the contract, drawn up after a fair bargaining
process, calls for. That reasoning might be acceptable in a host of other
contexts, Illingworth notes, but it becomes especially problematic in delivering
health care services, where honest communication between doctors and patients
is essential to good medical practice. Without honesty, people can die.
In many cases, doctors working for managed care organizations are damned
if they do, damned if they don't. They might work under gag orders, which
forbid them to discuss with patients the full range of options for care.
They might have their pay docked for playing it safe with a patient's health
and ordering an extra night of hospitalization, an expense an HMO case
manager might later deem unnecessary. They might be restricted in the amount
of time they can spend with each patient, forcing abrupt and perhaps incomplete
doctor-patient communication.
Given the level of public distrust of managed care organizations, doctors
might also encounter patients who are guarded and suspicious or who may
exaggerate symptoms in an effort to secure a greater level of care. If
patients feel they have to lie-or to exaggerate their own symptoms-they
may cause a befuddled doctor to order up tests that honest communication
would have rendered unnecessary. If either doctors or patients are dishonest,
the result will likely be the same: sick people won't get the care they
need.
But wait: don't managed care companies have fiduciary responsibilities,
too? Yes, says Illingworth. They say so themselves by invoking ERISA as
a shield against lawsuits. In addition, she points out, managed care companies
"use promotional materials that promise subscribers wonderful health
care with a trusting, caring physician" and through their association
with physicians, "they piggyback" on that trust. As health care
providers, they assume some of the same fiduciary responsibilities that
doctors do: to put patients first.
And what about employers? The managed care "revolution" originated
with employers; rising-some would say out-of-control-health care costs
under the old fee-for-service system prompted big employers to look for
ways of cutting costs. The result was managed care systems that emphasized
preventive care and slashed redundant or unnecessary procedures. What's
often lost in the back-and-forth on the health care debate is the role
employers have played. Big corporations wield enormous influence with managed
care companies. They set the price they're willing to pay, and in doing
so, they decide what benefits will be offered to their employees. They
weigh in on whether prescription drugs or mental-health services or eyeglasses
are included; they push for higher copayments. They can put the squeeze
on HMOs, which are not immune from the rigors of the market; witness Harvard
Pilgrim Health Care's recent financial troubles.
Given their role in health care, employers have fiduciary responsibilities
under ERISA as well, Illingworth points out. Since they often help design
benefit packages, they act as proxy decision makers for their employees;
they are trustees, in a sense. That role comes with an obligation: to protect
the best interests of their employees. Whether employers should even be
in the business of choosing and paying for health care is another debate
altogether, and one worth having, says Illingworth. No law requires that
employers provide health care benefits, but if they do, says ERISA, then
they must abide by certain ethical guidelines, according to Illingworth.
They have to keep the promises implied by their role as proxies.
For navigating the muddy waters between contract law and the Hippocratic
oath, Illingworth suggests a model of ethics that is being viewed with
increasing seriousness: stakeholder ethics. As she writes in a forthcoming
article in HEC Forum, a journal about health care ethics: "According
to stakeholder analysis, corporations have moral duties to people other
than their shareholders." That is, it takes into account the ripple
effect of certain actions-so an HMO manager, for instance, might consider
how doctors and patients fare with certain decisions, not just what increases
company profit.
Stakeholder ethics takes a longer view, recognizing the interconnectedness
of business, says associate professor Carl Nelson, a member of the College
of Business Administration's general management group. Primary stakeholders
in a managed care organization might include managers, doctors, patients,
pharmacists, nurses, and others. Secondary stakeholders might include the
public at large. Nelson, author of the book Value Conflicts in Health Care
Delivery, agrees with Illingworth that stakeholder ethics, a leading paradigm
taught in most business schools now, is a good way of viewing health care
ethics.
An older couple slow dances to Lite-FM love tunes. What at first looks
like a commercial for a perfume or modestly priced champagne or a getaway
Caribbean vacation instead is promoting another kind of romantic aid: Viagra.
Cut. A man watches his grandchildren eating ice cream. He'd like to get
his camera and take a picture, but he's just too tired. If he took Epogen,
a red-blood-cell stimulant used to treat anemia, he would have more energy,
the ad tells us. Grandfather could enjoy all the good moments of life,
too.
Promises-and whether they're kept-is the focus of another ethical debate,
that of advertising drugs and supplements. In 1997, the Food and Drug Administration
(FDA) opened the way for companies to advertise prescription drugs by dropping
a requirement that all side effects, even the most minor ones, be listed
in the ads. Since then, direct-to-consumer advertising of pharmaceuticals
has skyrocketed, to $1.3 billion in 1998, according to the consulting firm
Scott-Levin. Recent research sponsored by Time Warner suggests that such
advertising could reach $7 billion by 2005.
Judith Barr, interim dean of the School of Pharmacy in the Bouvé
College of Health Sciences, sees direct-to-consumer ads as especially problematic
because of the added pressure they put on the doctor-patient relationship
in a managed care setting. Doctors might not have time in a short appointment
to explain to patients why they don't need the brand-name drug. If they
do, patients who are already suspicious of cost-cutting measures may fear
they are getting cheated of something they should have.
"The direct-to-consumer drug ads play directly on those fears of
the consumer," says Barr. "They tell people, 'You deserve the
brand-name drug, and managed care is going to deny it to you unless you
insist that your physician give it to you.' Even if there are cheaper products
available that do the same thing, patients will often demand the one they
saw advertised."
While outright lying about a product is illegal, what about leaving
consumers with a false impression? Advertising depends in part on the kind
of bluffing, puffing, or spinning Illingworth describes. Last June, former
FDA commissioner David Kessler warned participants in a health care conference
that "there is a difference between what is accurate and what is true.
If you see an ad and come away with the impression that this is the only
drug effective for MS, but in fact it's only effective in fifteen percent
of patients, is that ad true? . . . Pitching one drug when in fact there
are others that could be more effective-that, I believe, could be dangerous."
Barr views the pharmaceutical industry as responsible in its advertising-so
far. But, she says, the potential for abuse is considerable. Last August,
the FDA launched a two-year study on the impact of direct-to-consumer ads
on public health.
An even bigger area of concern, says Barr, is the promotion of alternative
medicines. Here, she says, advertising treads closer to the line of lying.
Since most alternative therapies don't require FDA approval, there is very
little oversight. Patients who may not have success with prescription medications
are being told the answer lies with nonprescription, herbal or homeopathic
remedies that may be little more than placebos.
Touted as all-natural, they might seem better than something cooked
up in a laboratory. Indeed, the amount being spent on nonprescription medicines
has risen as sharply as prescription drug expenditures. But are they effective?
With so much profit to be made by playing to people's hopes, the clash
of the marketplace with medical values is clear.
"Ethics are not a consideration in the marketplace," says
Barr. "The market assumes that the consumer has good information and
is making an informed decision. It's buyer beware." Indeed, proponents
of ads for prescription medicines as well as alternative products contend
that ads do patients a service by making them more informed about their
treatment options.
Yet in medicine, consumers often don't have enough information-that
is, the scientific expertise-to make a truly informed judgment, says Barr.
That's why oversight is so important. "The business ethic is to drive
the profit, while the medical ethic is to prove that what's being sold
is actually effective. They go in entirely opposite directions." And
indeed, the Federal Trade Commission issued a warning in 1998 to makers
of alternative remedies and diet supplements against making claims they
can't support with scientific evidence.
Imagine that you apply for a job. A background check of your medical
history shows that you have a chronic or even potentially deadly condition.
You have had cancer or asthma, ulcers or back pain, clinical depression.
Or say genetic testing has shown you have BRAC 1, a breast cancer gene,
or a predisposition to Huntington's disease. Someone in the organization-someone
you might never see, who will never see you-decides that you are too great
a risk. Your very presence on the payroll might require the company to
pay higher health care premiums for all of its employees. Your application
for employment is denied. You're just not worth it.
Of course, who gets health care is perhaps the biggest ethical question
of all. Many employers are responding to soaring premiums either by not
offering health care benefits-for example, by hiring more part-time or
temporary employees to avoid opening full-time spots-or by shifting the
cost of health care, at least in part, to employees. As life expectancies
grow and medical technologies and procedures make living longer possible,
new pressures are put on the health care industry. If we accept that resources
are limited, the question of who should benefit from them becomes more
contentious.
As increasingly sophisticated diagnostic methods become available, the
question of how to protect privacy and how to balance businesses' desire
for information will be of major concern in the next decade. The $3 billion
Human Genome Project, scheduled for completion in 2002, is one of the most
promising scientific projects in recent history. The goal: to determine
and sequence all of the DNA in the human body, with the hope of identifying
and perhaps curing genetic diseases such as cancer. Eventually, each individual's
genetic code might be easily mapped, showing not only our biological ancestry
but our destiny as well.
While such knowledge would provide the opportunity to head off disease,
critics worry it might also supply cost-
conscious companies the evidence they need to exclude certain people
from their rolls. Insurers might try to cherry pick only the healthiest
customers, perhaps using data supplied by the Medical Information Bureau,
a Boston-based warehouse of detailed information shared by some 700 insurance
companies about their customers. Insurers might also pressure employers,
through offers of lower health care premiums, to fire-or at least refuse
to hire-those who fall into expensive, high-risk groups.
"The potential for discrimination based on genetic information
and for other health-related reasons is enormous," says the law school's
Parmet. "We have some limited legal protections, but they're very
limited and not very effective. They need to be strengthened." Parmet
says much of her own work aims to do this by "trying to put some teeth
into the Americans with Disabilities Act."
More insidious than discrimination fueled by gross stereotypes or misunderstandings
are systemic impediments that encourage "rational discrimination,"
Parmet says. If a small-business owner is going to be charged much higher
health care premiums because she hires disabled workers-or even those with
a genetic predisposition to disease-she probably isn't going to do so if
it puts her business in jeopardy. "As long as we have a health care
system and an economic system that make it absurdly expensive to hire somebody
with a genetic predisposition to Huntington's disease, for example, then
we can pass all the laws we want that say, 'Thou shalt not discriminate.'
But if it doesn't make sense economically, then we're asking employers
to be saints. And I don't think we can expect sainthood from folks."
Nelson of the business school is less worried about genetic information
being misused, citing a relatively strong privacy lobby in Washington.
"You've got people who are very vigilant watching all of these developments,"
he says.
Should managed care organizations get to choose their patients? Is the
role of health care to maintain life, provide a quality life, or extend
life as long as possible? Should managed care provide access to experimental
drugs? Rule out smokers? What kinds of treatments and medications should
be covered-only those that save lives, or those that improve quality of
life, too? Would a single-payer system make more sense?
Despite the trouncing the Clinton administration's universal health
care plan took in 1994, the prospects for some kind of government-guaranteed
plan remain real. Each time ethical concerns are raised, each time an HMO
horror story hits the front page, Washington's role as a likely player
in resolving such problems is enhanced.
But philosophy professor Stephen Nathanson, who specializes in ethics,
says that taking health care out of the for-profit realm won't necessarily
solve all the problems ascribed to managed care. "Those questions
are going to come up in any process where cost-containment and limited
resources are an issue," he says. "Any system with limited resources
faces some kind of rationing. Even if you had 'National Health Service,
USA,' those same things would happen." Nathanson argues, however,
that "the government should guarantee a decent level of well-being.
And obviously health care is an important piece of that."
While some might view the medical-business ethics controversy as a sign
of bad times, Carl Nelson is pleased that the discussion is as vigorous
and as public as it is: "This whole debate is very healthy. It's a
time to reflect on our traditions, our values, our reasoning. You can judge
how socially conscious a society is by how it delivers education and health.
They're the two most important services. And we should all have something
to say in this discussion."
David Gordon is an editor and freelance writer in Cambridge,
Massachusetts.
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