Preventive Ethics for the Managed Practice of Medicine
Preventive Ethics for the Managed Practice of Medicine
Author: Laurence B. McCullough, PhD, Baylor College of Medicine, Center for Medical Ethics and Health Policy, Houston, TX.
Peer Reviewer: Jeremy Sugarman, MD, MPH, MA, Associate Professor of Medicine and Philosophy, Duke University, Durham, N.C.
Editor’s Note—American medicine has undergone a remarkable transformation in the past two decades, from a cottage-industry, fee-for-service practice in which physicians and institutions enjoyed considerable autonomy to a large-scale, institutionally based, mostly prepaid practice in which institutions now regulate the physician’s clinical judgment, decision making, and behavior.1 Medical ethics must respond to this change.2,3
Primary-care physicians can adopt one of two basic strategies in response to this change. First, primary care physicians can wait for the ethical conflicts inherent in the new practice of medicine to occur and then respond to them, just as they wait for acute and chronic diseases to occur in their patients and respond to them. Second, primary care physicians can anticipate the built-in potential for ethical conflict and adopt strategies designed to prevent those conflicts from occurring and managing them well when they sometimes do still occur. (See Table 1.) Primary care physicians, in short, can adopt the strategies of preventive ethics.4 The reactive practice of ethics, like the reactive practice of medicine, takes a considerable toll on physicians, patients and their families, health care institutions, and society—far better for all involved that physicians adopt a proactive stance toward ethical issues in the new practice of medicine. The purpose of this paper is to identify preventive ethics strategies for the new, managed practice of medicine.5 Preventive ethics has been proposed as a clinical tool in family medicine for the anticipation of conflicts about futile clinical management6 and, in obstetrics and gynecology, for the anticipation of conflicts in the intrapartum period (e.g., cesarean delivery).7
The Emergence of Managed Practice
For centuries, physicians have practiced under what can usefully be called the cottage-industry model of medicine. (See Table 2.) In this way of practicing, physicians care for patients one at a time. The task of clinical judgment and practice is to identify each patient’s problem and then to propose and implement clinical management of those problems. The physician turned his or her entire focus on the individual patient, did what was needed for that patient, and then moved on to the next patient to meet that patient’s individual needs. Physicians made reference to populations of patients only insofar as doing so aided in diagnosis and treatment (e.g., awareness of viruses prevalent in one’s community when the primary care physician worked a patient up for common upper respiratory problems during "cold season"). The community, however, is not the physician’s patient; this is the work of public health authorities. The physician-patient relationship formed the core of this enterprise, and the ethics of medicine responded to this relationship and the moral challenges that it posed to physicians (e.g., maintaining confidentiality, being honest with patients about the nature of their problems, and obtaining informed consent for the clinical management of those problems).
Physicians also practiced medicine on a fee-for-service basis. Conflicts of interest (i.e., conflicts between the physician’s obligation to take appropriate care of patients and his or her self-interest) structured the physician-patient relationship.8 With the rise of third-party, indemnity insurance after World War II and then Medicare in the 1960s, these conflicts of interest favored physicians’ remuneration and job security. Especially in procedure-oriented specialties and sub-specialties, the more physicians did, the more they were paid. Primary-care physicians benefitted indirectly from this unusual economic phenomenon.
In the cottage industry model, by definition, physicians (especially primary care physicians) have little or no accountability to other physicians. The concept of accountability to non-physicians was essentially non-existent. Physicians enjoyed virtually unlimited autonomy in their clinical judgment, decision making, and behavior, especially in the out-patient settings of solo and small group primary care practice.
| Table 1. Preventive Ethics |
| • Identify built-in potential for ethical conflict in clinical practice and in institutional practice and policy. |
| • Identify strategies for preventing those conflicts from occurring. |
| • Manage well conflicts that do, nonetheless, occur. |
All of this occurred during more than two decades after World War II in the context of unparalleled economic abundance in the United States. We experienced levels of economic growth unlike those previously experienced in our national economy. Medicine and spending money on medicine became national priorities, and the nation expended enormous sums, with medical inflation regularly running at a multiplier of the consumer price index—sometimes at a multiplier of three.
In the mid-1970s, as global competition in heavy industry and then in consumer goods and services became a reality, our national economy returned to its historically normal growth rates. The ability to increase corporate profits by raising prices and by increasing market share became progressively more constrained. Cost-control became the only remaining business strategy to retain and grow profits. Therefore, private payers necessarily adopted the economically rational view that all costs of doing business, including employee benefits, had to be brought under control. The medical inflation of the 1970s and early 1980s had become unsustainable for private payers by the late 1980s.
In the public sector, the even more rapid increase in the costs of Medicare and Medicaid, as well as Veterans health affairs and military medicine, also became unsustainable, but for a different reason. The widespread resistance to increased taxation, which swept Ronald Reagan to the White House, finally made itself felt in Congress. Medicare was transformed from a fee-for-service, hospital-based, physician-controlled reimbursement system to a pre-paid, hospital-controlled system. (See Table 2.) Hospitals were put at risk, and those that were successful in changing the behavior of physicians and nurses did well—those that were not no longer exist.
The Medicare prospective payment system, based on diagnostic related groups, signaled a major change. Instead of conflicts of interest being built into the payment system and under the control of physicians, the federal government, in its role as a major payer, imposed conflicts of interest directly on institutions. The average length of stay for Medicare beneficiaries decreased by the end of the 1980s, and the rate of inflation in Medicare decreased as well. Prospective payment was given the credit and the effectiveness of a crucial management tool, imposing conflicts of interest that put incomes at risk, was taken to be demonstrated.
The private sector watched this change and adopted this management tool. Institutions, especially managed care organizations (MCOs), imposed economic conflicts of interest—withholding payments, discounted fee-for-service, and capitation—on physicians.9,10 These institutions assumed that physicians, like hospitals, would change their behavior in the direction of less intensive use of resources when given the economic incentive (shared risk) for doing so.
Physicians have also been made more accountable for the quality and cost of patient care. As large-scale institutions have become responsible for patients, they directly employ or contract with physicians—introducing a level of accountability impossible when many physicians were self-employed. In addition, institutions now gather data on physician performance—in both the processes and outcomes of care—and they use these data to evaluate and manage physician performance (e.g., in profiling systems). Among those to whom physicians have now become accountable are both physician managers and non-physician managers. Both know a great deal more about aspects of a primary care physician’s practice (e.g., cost and quality) than the physician does.
| Table 2. Fee-for-Service, Cottage Industry Model vs. Prepaid, Large Institutional Model | |
| Cottage Industry, Fee-for-Service | Prepaid, Large-Scale Institutional Model |
| Physician-patient relationship | Institution-population of patient’s relationship |
| Built-in conflicts of interest that favor physicians | Conflicts of interest imposed that penalize and favor physicians |
| Little accountability to physician and lay managers | Increasing accountability to physician and lay managers |
| Economics of abundance | Economics of scarcity |
In making physicians accountable, institutions also began to regulate the clinical judgment, decision making, and behavior of physicians.11 Both payer and provider institutions took note of the wide variation in the use of resources and that this variation does not result in improved outcomes.12,13 Moreover, institutions took note of one of the important lessons of the Medicare prospective payment system: decreased use improved outcomes for many patients. Thus, the standard of care that prevailed in the fee-for-service, cottage-industry era of medicine lacks scientific justification to a considerable degree. That we can decrease use without necessarily harming patients became a management assumption and goal of institutional managers and private payers.
In summary, U.S. medicine has been transformed from an essentially unmanaged practice to the managed practice of medicine. Managed practice involves two elegant and powerful business tools:
Imposing conflicts of interest on physicians, putting income, job advancement, and job security at risk; and
Regulating the clinical judgment, decision making, and behavior of physicians.14
These two business tools aim for maximum economic efficiency. How they are used results in a heterogeneity of managed practice to which primary care physicians must respond.
At one end of the continuum, physicians confront institutions that aim only for cost control and cost reduction, with little attention to quality. These short-term market players intend to capture a sufficient market share to make themselves attractive take-over targets. They have no economic incentive to pursue quality, because their short-term time horizon means that they would not realize the economic returns of cost-benefit management.
At the other end of the continuum, physicians confront more responsible institutions with a long-term commitment to the market. They can realize the economic returns of cost-benefit management. Therefore, they pursue quality improvement as the means to gain cost-benefit advantages. They aim to increase quality and control costs.
At the present time, the private sector of managed practice has no public-policy mandate to maintain and even increase access. Such a mandate does exist in the public sector, especially for Medicaid and Veterans health affairs. The Veterans Administration (VA) now understands itself to be the nation’s largest MCO operating out of federally funded medical centers. These MCOs aim to increase quality, control costs, and, therefore, maintain or even increase access. Current public policy (e.g., frequent open enrollment for Medicare MCOs makes a hash of this goal). A major public policy issue for the future will entail bringing enrollment practices, quality, and cost into more rational alignment.
Responding to the Business Tools of Managed Practice with Two Basic Ethical Concepts
The First Concept: The Physician and Institution as Moral Co-Fiduciaries of Populations of Patients. In the cottage-industry, fee-for-service model of medical practice, the physician could assert as a basic moral precept, "My patient comes first." This precept governed both out-patient and in-patient medical practice, at least in the private sector. It formed the core of the physician’s moral fiduciary obligations to each patient. The physician as moral fiduciary: 1) makes the protection and promotion of each individual patient’s health interests the physician’s primary commitment; 2) blunts self-interest by this primary obligation, making self-interest a systematically secondary commitment; and 3) expects that income and prestige will follow from the first two commitments.15 (See Table 3.)
| Table 3. The Physician as Moral Fiduciary of the Patient |
| • The physician’s primary commitment is to protect and promote the interests of the patient. |
| • This commitment blunts the physician’s own self-interests, making them a systematically secondary commitment. |
| • The physician should be confident that remuneration and prestige will follow from the first commitment and the self-regulation of self-interest. |
In response to managed care, some have argued for the retention of the precept that "my patient comes first" and that physicians should resist population-based fiduciary obligations.16-19 However, given the nature of the changes that have occurred, this line of reasoning will no longer do as the basis for the moral responsibilities of physicians because it will result in self-contradiction.
Institutions operate on fixed budgets, such that unnecessary expenditure for some patients may well mean that there will be insufficient resources available for other patients, who will then be harmed. No ethical theory supports the exercise of autonomy, including both the physician’s and the patient’s autonomy, in ways that put others at risk of serious harm without their consent. In an era of fixed institutional budgets, "My patient comes first" creates just such a risk and, therefore, jeopardizes the ability of each individual physician to put his or her patients first and the ability of an institution to meet its obligations to all of the patients in the population for which it is responsible. Making the protection and promotion of each individual patient’s health related interests by some physicians means that other physicians in the institution will be denied the resources necessary to fulfill their moral obligation to their patients. Thus, moral fiduciary obligations come into conflict with each other. The solution to this problem is for physicians to adopt the concept appropriate to the new, large-scale institutional practice of medicine: physicians and institutions are moral co-fiduciaries of populations of patients. (See Table 4.)
Some institutions, especially MCOs, take the view that their decisions are simply business decisions. Thus, the decision to deny access to referral specialists or to provide physicians with economic incentives to use such services sparingly are thought to be simply business decisions. This involves a serious conceptual mistake. Business decisions, like all decisions, have consequences. Institutions, like individuals, must be held responsible for the consequences of their decisions.
Moreover, the decisions of institutions, when they are based on the business tools of managed practice, are intended to have consequences in patient care. These institutions, therefore, bear moral responsibility for these consequences. Institutions must realize that they share responsibility for patient care for the population for which they are responsible: institutions and physicians are moral co-fiduciaries of populations of patients. (See Table 4.)
| Table 4. Physicians and Institutions as Moral Co-Fiduciaries of Populations of Patients |
| • Physicians and institutions cannot practice or allocate resources based on the old precept of cottage-industry medicine: "My patient comes first." |
| • Focusing on the interests of one patient at a time, in an era of fixed budgets, will result in some patients being harmed. |
| • Therefore, it will be impossible for physicians in an institutional setting to fulfill their moral fiduciary obligations to their patients, to protect and promote their health interests. |
| • Therefore, it will also be impossible for the institution to fulfill its moral fiduciary obligations to its population of patients, to protect and promote their health-related interests. |
| • Physicians and institutions share moral responsibility for protecting and promoting the health interests of populations of patients: they are moral co-fiduciaries of populations of patients. |
The Second Concept: Informed Consent as a Preventive Ethics Strategy. Informed consent has become a stable matter of medical ethics and law.20 (See Table 5.) Informed consent obligates the physician to provide patients with information sufficient to make decisions based on awareness and understanding of their diagnosis, the medically reasonable alternatives for managing it, and the benefits and risks of each alternative. The goal of the consent process is for the patient to replicate for himself or herself the physician’s clinical judgment and decision making and then decide whether to accept the clinical management that has been offered or recommended. Physicians, especially primary care physicians, should, in other words, make their clinical judgment and decision making "transparent" to the patient.21 To do so, physicians should provide and explain information to the patient about the salient features of clinical judgment.22
The business tools of managed practice are designed and intended to be salient in the clinical judgment and decision making of physicians. Putting a physician’s income at risk or requiring a physician to follow a practice guideline for the rapid discharge of a woman and her baby after an uncomplicated, singleton vaginal delivery, and the myriad other tactics of managed practice, surely become salient in the physician’s clinical judgment and decision making. It follows logically, from the concept of transparency, that the existence, effects, benefits, and harms of the business tools of managed practice must be disclosed to patients. (See Table 5.)
| Table 5. Informed Consent |
| • Physicians should make their clinical judgment and decision making transparent to patients, by disclosing and explaining salient features of clinical judgment and decision making. |
| • The business tools of managed practice are salient features of clinical judgment. |
| • Therefore, the existence and effects of the business tools of managed practice should be disclosed and explained to patients. |
| • Doing so gives moral authority to increasing the physician’s and institution’s power over patients. |
There is also a shared fiduciary obligation of both institutions and patients. Disclosure and explanation of the business tools of managed practice should occur when patients first enroll ("upstream" consent) and when they later come under the care of the institution’s physicians, especially its primary care physicians ("downstream consent").
Currently, it appears, few institutions provide sufficient information to patients about the existence and effects of the business tools of managed practice because of gag orders or an institutional culture that discourages disclosure.23,24 As a consequence, physicians, especially primary care physicians, find themselves downstream from defective disclosure. They must not only explain the general nature of the business tools of managed practice but also their particular application to the patient’s current condition and its clinical management. This approach will prevent the problem of patients first learning about both of these matters at the same time, compounding the risk of distrust within the physician-patient relationship.
This defective consent process appears to be having the following deleterious consequences. First, patients are angry and venting their anger at their physicians and nurses—the professionals who are the institution as far as the patient is concerned. Second, patients are beginning to withdraw trust from MCOs and physicians.25-27 The fact that bills in Congress can be called the "Patients’ Bill of Rights" further signals this withdrawal of trust. Third, physicians find themselves trapped downstream of defective disclosure by institutions. As a result, when physicians say nothing, they inadvertently further fuel distrust, and perhaps, even anger. Fourth, physicians and institutions exercise growing power over patients, especially in MCOs and hospitals, without the moral authority that informed consent is intended to impart. Although large employers offer more options, many patients are employed by small businesses that offer limited or even no choice about which MCO will provide their health care. The more that patients’ autonomy is constrained, the more morally important their autonomy becomes. When the exercise of autonomy through the consent process is absent, institutions and physicians wield absolute power. Lord Acton’s famous dictum that power corrupts and absolute power corrupts absolutely applies to the current lack of informed consent from patients to be in managed practice settings.
This cycle must be broken, and primary care physicians should take the lead in doing so. A preventive ethics approach to informed consent can break this cycle by identifying the institution’s and physician’s "upstream" obligations and the physician’s "downstream" obligations. (See Table 6.)
At enrollment, the institution, as the moral co-fiduciary of its population of patients, has an inescapable obligation to disclose and explain to patients the following information and to make a reasonable effort to determine that patients do indeed understand this information. First, patients should be told that their physicians, particularly their primary care physician who will control access to medical services, will have their incomes influenced by how many resources the physicians use (e.g., how often they make referrals, how often they prescribe expensive medications, and how often they hospitalize patients). Second, patients should be told that their physicians will not be free agents in how they think and act. Instead, the institution regulates or manages how its physicians think and act. Third, patients should be told that, to some extent, the changes in U.S. medicine constitute a social experiment and that institutions, while they intend to benefit patients, may inadvertently harm them. In addition, patients should be told that, as in any experiment, the law of unintended consequences applies—events may occur that no one could predict. Finally, patients should be provided with comparative information about available institutions, so that they can make an informed choice about enrollment or perhaps pressure their employers to offer them other choices.
Physicians have the important "upstream" obligation to see to it that the institution fulfills its moral fiduciary obligations in the consent process. (See Table 6.) Physicians should insist on adequate disclosure during enrollment and truth in advertising by the institution. Because primary care physicians bear most of the brunt of defective institutional disclosure, they should be especially vigorous in discharging these upstream obligations.
Once the patient comes into the primary care physician’s office or examining room, that physician has "downstream" obligations. (See Table 6.) First, the primary care physician should remind the patient about the two key concepts that should have been disclosed "upstream:" that the physician’s income is at risk and that the physician is not a free agent in the patient’s care. Second, the particular applications of these concepts in the patient’s current clinical circumstances should be explained. Thus, the obstetrician or family physician providing antenatal care to a pregnant woman with a singleton pregnancy that is expected to go to term and result in vaginal delivery should inform her that the timing of discharge from the hospital of her and her baby will be regulated by what is called a practice guideline. During the several antenatal visits, this guideline should be explained, including its scientific rationale and the experience of the MCO and hospital with it. The goal should be to provide the patient with sufficient information, so that the patient becomes willing to have intellectual trust in this regulation of her physician’s clinical judgment, decision making, and behavior. If the institution uses financial incentives to encourage the primary care physician to follow such a guideline, then this should also be disclosed, so that the woman has enough information to decide whether to morally trust her primary care physician, as someone who is committed to her and the baby she intends to deliver, as their moral fiduciary, including the willingness to make economic sacrifice to see to that they receive appropriate care.
| Table 6. Informed Consent as a Preventive Ethics Strategy in Managed Practice |
| A. The institution’s "upstream" obligation to disclose adequate information about: |
| • how its physicians are paid, including the concept of economic incentives to conserve expensive medical resources such as referral services and hospitalization; |
| • how the clinical judgment, decision making, and behavior of its physicians are regulated by the institution; |
| • the consequences of these two management tools, including the law of unintended consequences; and |
| • comparative results. |
| B. The primary care physician’s "upstream" obligations. |
| • Insist on meeting the costs of informed consent as an essential business cost. |
| • Monitor consent process. |
| • Monitor marketing and advertising strategies, as well as tactics. |
| C. The primary care physician’s "downstream" obligations. |
| • Remind patient that he or she is paid on an economic incentive to conserve expensive medical resources. |
| • Remind the patient that he or she is not a free agent in the use of such resources. |
| • Explain the particulars of how these two management tools apply in the patient’s current clinical circumstances. |
The same approach should be taken in other primary care settings. If the primary care physician considering referral to a specialist is paid, for example, on a withhold basis, this fact should be explained to the patient. The physician can point out that his or her compensation is influenced by the amount of referral services used, so that the patient can take this fact into account in the informed consent process for the management of the patient’s problem. Such explanations should take little time, especially if they become commonplace.
A Preventive-Ethics Approach to Managing Conflicts of Interest
It is not enough to disclose and explain to patients the existence and effect of conflicts of interest. As a matter of integrity, physicians also have a moral fiduciary obligation to patients to manage conflicts of interest well, so that patients are not harmed by them.28-33 Conflict of interest can now be more precisely defined: creating a conflict between the physician’s moral fiduciary obligation to the patient to provide care consistent with integrity on the one hand, and self-interest on the other hand. Integrity requires the physician to practice medicine according to intellectual and moral standards of excellence. These should not be equated with doing the most for patients; this standard, in fact, has often harmed patients (e.g., prolonging suffering and loss of quality of life in the intensive care unit for patients in the end-stages of chronic disease).
Conflicts of interest structure all current mechanisms for paying physicians in managed-practice settings. Therefore, as the first step of a preventive-ethics approach to managing conflicts of interest, primary care physicians should identify these conflicts of interest precisely: How and how much of a physician’s compensation is put at risk? What is rewarded and why? Second, conflicts of interest should be assessed for their moral manageability according to the following criteria. (See Table 7.)10,28
| Table 7. Criteria for Moral Assessment of Conflicts of Interest |
| • Intensity |
| • Immediacy |
| • Individual vs. group |
| • Systematic in nature |
1. How intense is the conflict of interest? or How much of the physician’s total compensation is put at risk? The greater the intensity of a conflict of interest, given ordinary human weakness, the more likely it is to distort clinical judgment, decision making, and behavior in ways that could, in violation of moral fiduciary obligations to them, unnecessarily harm patients.
2. How immediate is the conflict of interest? or Is the conflict of interest the first thing that enters clinical judgment? To the extent that this is the case, clinical judgment does not start with the patient where it should for moral fiduciary physicians.
3. How systematic is the conflict of interest? or Is there no escape from its influence? The more aspects of clinical judgment, decision making, and behavior influencing the conflict of interest, the more systematic it is and the more likely it is to distort clinical judgment, decision making, and behavior in ways that could violate moral fiduciary obligations to patients.
4. Is the conflict of interest applied to physicians in isolation? It has been a staple of the world philosophical literature on the virtues that we do a better job of maintaining our integrity when we are accountable to others than we do when we are accountable only to ourselves.14 The capacity for self-deception never should fail to surprise us. The best antidote to self-deception is the willingness to submit to fair-minded and rigorous moral peer review.
The higher any conflict of interest is on these four scales, the more primary care physicians should judge it to be morally unmanageable (i.e., likely to result in violation of moral fiduciary obligations to patients). Uncertainty about whether a conflict of interest is morally unmanageable should be resolved in the judgment that it will be morally unmanageable as a matter of prudence. In other words, imposing conflicts of interests on fiduciaries faces a burden of proof. Because they are inherently morally destabilizing for moral fiduciaries, conflicts of interest have to be shown by institutional managers to be morally acceptable. Institutional managers, physician and lay alike, should not assume that conflicts of interest have to be shown to be morally unacceptable.
If all conflicts of interest, after rigorous moral evaluation (a process in which primary care physicians must insist on playing a part—they should not work for institutions that disallow such a crucial role in preserving one’s integrity), are reliably judged to be manageable, patients should be informed about them. Thus, in both the upstream and downstream informed consent process described, it should only be manageable conflicts of interest that are described and explained to patients. Unmanageable conflicts of interest are unethical. They should not be used by institutions, and primary care physicians should not sign contracts for employment or services that include them. Indeed, unethical conflicts of interest should be exposed by primary care physicians, even at the cost of considerable self-sacrifice.
Once a primary care physician has accepted employment or a contract for services that is reliably judged to include manageable conflicts of interest, that physician bears responsibility for protecting the patient from the consequences of that conflict of interest. When fiduciary obligations come into conflict with the physician’s economic self-interest, integrity requires that the primary care physician accept that economic self-sacrifice. If doing so becomes unacceptable, the primary care physician should renegotiate these conflicts during the next contract period. This strategy involves some level of risk of deselection; however, this risk is unavoidable if integrity is to be maintained.
The preventive ethics of managing conflicts of interest also adds to the process of total quality management. Patterns of clinical management under all conflicts of interest must be monitored, both in their processes and their outcomes, for violations of integrity. This is a demanding scientific and moral standard and involves more than discomfort with change or a clinical impression that patients are being harmed. This clinical ethics judgment should, like all clinical judgment, be as evidence-based as possible. When such violations occur, they should be immediately corrected. Patients who have been adversely affected should be informed (even if this increases malpractice liability) and provided appropriate clinical management.
Preventive Ethics Approach to Rationing
It is not enough to inform patients about the regulation of clinical judgment, decision making, and behavior. This regulation, too, should be consistent with the integrity of the fiduciary practice of medicine by physicians and institutions.34
As noted, the wide and scientifically unexplainable variation in the use of medical resources, in which "geography is destiny," is not consistent with integrity. Many factors come together to explain this scientifically strange and unacceptable phenomenon. Fee-for-service payment of physicians surely had a distorting effect on how physicians have come to define the standards of care, just as the Scottish physician and philosopher, John Gregory (1724-1773), predicted that it would.35-37 The economics of abundance after World War II and through the mid-1970s gave neither physicians, hospitals, nor private and public payers economic incentives to strive for greater scientific rigor and, therefore, economic efficiency in the use of medical resources. It is no surprise that "best" came to mean "doing everything possible" for patients. The language used by the scientific and medical communities, as well as patients, to win political and monetary support for medicine (e.g., "wars" and "cures") gave rise to scientifically unrealistic expectations for the capacity of medicine to manage our biology. This language is now being used to sell genetic treatment of disease in molecular medicine. Finally, the popular culture adopted and exaggerated these expectations—giving rise to the view that doing everything for patients was iatrogenically benign. However, experience teaches us that the intensity of utilization of medical resources can be lowered in many cases, without harming patients and often resulting in benefit for them, as we learned from Medicare’s experiment with prospective payment.
Rationing of resources in medicine, therefore, almost always involves moving from a scientifically and morally unfounded "best = most" care to a scientifically and morally well founded concept of adequate medical care (i.e., clinical management that meets the medical needs of a population of patients adequately). Rationing below levels of adequacy makes little sense from an institutional point of view because it is economically irrational; inadequate care usually results in preventable worsening of the patient’s condition and preventable, increased use of resources. Providing substandard care will, therefore, often be more expensive than providing adequate care. One exception might be Medicare MCOs from which early disenrollment is possible, which undermines this economic incentive to provide adequate care. Thus, even poorly managed MCOs have non-trivial economic incentives not to practice below acceptable standards of care. The malpractice law should be revised, as Texas has done, to provide statutory sanction for such irresponsible violation of fiduciary obligations—not only to patients, but to shareholders of for-profit MCOs.
A preventive ethics approach to rationing down to acceptable fiduciary standards of care for populations of patients involves the following. First, the outcomes expected to be achieved should be clearly identified and ethical justification for them should be given. If it is judged that it would be too expensive to try for marginal reduction in mortality or morbidity rates in a population of patients (e.g., by using a more expensive antibiotic), this economic judgment must be defensible. Second, the process of care in the rationing plan should be scientifically related to these outcomes (i.e., be reliably expected to produce them). Third, physicians must consent to practice under the rationing plan. After all, rationing alters clinical judgment and may increase the risk of harm to some patients. A rigorous consent process will allow physicians to test the rationing plan for its intellectual and moral integrity. Primary care physicians should insist on such a consent process and should carefully consider whether they should remain employed or contracted by institutions that refuse to adopt such a policy. Fourth, patients must be informed—especially of rationing of demand for services by primary care physicians, which is where the money is. Patients, especially those who have experienced only managed care (now millions of people) do not know when a level of intervention that might have occurred in the past is now being withheld by the primary care physician (e.g., referral to a specialist for the management of minor cardiac arrhythmia). Fifth, the institution should be prepared to resist gaming of rationing plans and should have clear policies that discourage, indeed prohibit, such gaming strategies (e.g., threatening to give one’s primary care physician a bad quarterly "report card" if the primary care physician denies referral to a specialist, which the patient thinks is necessary).
This preventive ethics approach to rationing also adds to total quality management. Rationing plans should be intensely monitored for patterns of inadequate clinical management. These could easily occur, especially when rationing is coupled with imposition of conflicts of interest, without physicians noticing. When patterns of inadequate clinical management occur, they should be immediately corrected. Patients who have been adversely affected by such management should be informed and offered appropriate management for their problems.
The Role of Ethics Committees
A central theme of the preventive ethics approach to the managed practice of medicine described is the maintenance of integrity, both by physicians and by health care institutions, and, especially, MCOs, physician-hospital alliances, and institutions that will be invented in the coming years. Maintenance of integrity means that an institution creates a culture in which difficult and sometimes disturbing questions can routinely be asked about whether an institution and its physicians remain true to the intellectual and moral demands of being moral co-fiduciaries of patients. The institutional ethics committee can play a crucial role in creating such an institutional culture.38-40
Ethics committees have mainly been hospital-based and have mainly been concerned with clinical cases and policies. Lately, a trend of ethics committees has emerged, taking on development and evaluation of practices and policies that bear on the business tools of managed practice.40 In addition, there appears to be a trend toward the creation of ethics committees within MCOs.
Primary care physicians should play an active role in encouraging the further development of these welcome trends. An active ethics committee that has familiarized itself with the topics discussed can help to develop and monitor practices and policies that implement a preventive ethics approach to the business tools of managed practice. Such committees could evaluate marketing and advertising strategies and materials for their conformance to the upstream obligations of institutions, such as MCOs in the informed consent. Ethics committees could review all contracts—both those written and those presented—for their conformance to preventive ethics criteria for morally manageable conflicts of interest. Practice guidelines, clinical pathways, appeals processes, and other utilization strategies could be evaluated for their conformance to preventive ethics standards of integrity. Physicians and others on such committees should be compensated to the extent that these tasks call for time-extensive time commitments. Maintaining integrity is an essential business cost of fiduciary institutions.
Tasking ethics committees with this important work also makes preventive ethics public within an institution and among its core values. It is difficult to maintain one’s integrity in isolation and even more so in health care institutions without a public, core commitment to the integrity of physicians and institutions together acting as moral co-fiduciaries of populations of patients.
Summary
Primary care physicians have two alternatives for responding to the transformation of U.S. medicine from a fee-for-service cottage industry focused on one patient at a time to a pre-paid, large-scale institutional commitment to populations of patients. They can wait for ethical conflict built into the two business tools of managed practice to occur and respond in a reactive mode—until they are exhausted by the struggle to maintain their integrity as moral fiduciaries in isolation from like-minded physicians and without the support of a morally intact institutional culture. Or they adopt a proactive, preventive ethics approach that holds (I hope I have persuaded the reader) far greater prospect of maintaining integrity.
The stakes have become non-trivial. Under the influence of reforming, risk-taking physicians (such as John Gregory35-37), medicine began in the English-speaking world to become a profession in the late 18th century. It continued to become a profession, although the response of many physicians to the inherent conflicts of interest in the fee-for-service payment system impeded medicine’s progress to fully becoming a moral fiduciary profession. The decisions that physicians make—especially primary care physicians who have the most contact with patients and increasing responsibility for their care—will decide whether medicine continues to become a profession or reverts to entrepreneurialism.41 Self-sacrifice appears to be an unavoidable price that physicians will have to pay in order to maintain their integrity.14 Gregory practiced medicine in such a world dominated by the self-interests of physicians and in which patients, therefore, could not and did not intellectually or morally trust their physicians. Gregory concluded that this self-interested medical practice constituted a moral disaster for patients and physicians alike. Patients now struggle to trust their physicians intellectually to know what they are doing or morally to be more concerned about their patients rather than their incomes. Adopting and institutionalizing a preventive ethics approach to the managed practice of medicine may help to prevent this moral disaster from occurring and keep medicine on the path of becoming a profession.
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