The Ethical Basis for the Physician-Patient Relationship: Covenants or Contracts?
Anderson, Ron J., Frontiers of Health Services Management
Dr. David C. Thomasma's article is a thoughtful, provocative challenge to the traditional physician-patient relationship values. He describes the multiple and often conflicting roles that physicians find themselves in when trying to achieve the best they can for an individual patient while also stewarding resources to benefit a population of patients or maximizing the profitability of a health plan. The failure of America to implement universal healthcare for all of its citizens, leaving 41 million people uninsured and nearly that many underinsured, has created enormous barriers to the provision of care in a socially just manner. It is hard to imagine that physicians are motivated as much by the social justice issues in the allocation of healthcare resources as they are by reimbursement incentives because they cannot readily perceive how their decisions impact social policy on a macroeconomic level. We should not be naive in calling for new promises and ways to monitor promisekeeping that substitute legalism and contract language for professionalism in our efforts to protect patients from the ill effects of the corporatization and commoditization of medicine and health. A covenant relationship is still a superior foundation for the physician-patient relationship than promises made enforceable by contract or efforts to improve informed consent and better educate patients concerning their condition.
The underlying principles of bioethics, as Dr. Thomasma points out, can be in conflict both in the "fee-for-service" model of healthcare reimbursement where physicians make more by doing more, necessary or not, and the new reimbursement strategy of managed care where doing less may actually lead to higher profits. In each of these reimbursement scenarios tension exists between what is absolute and what is relative, what is primary and what is secondary, and what is centered on the patient and what is centered on the provider or the health plan's bottom line. In any scenario, patients must not be a means to an end (typically profit), but the end itself. How that is best achieved would seem to be the question Dr. Thomasma and I are both asking.
Hippocratic Oath as a Covenant: Timeless or a Time to Change?
Edmund Pellegrino (1996/ highlights the fact that "thirty years ago, at the inception of the era of contemporary bioethics, the Hippocratic Oath and the moral precepts it embodies were the immutable bedrock of medical ethics." This covenant reaches across time and culture as well as national boundaries. There are many who feel that the Hippocratic Oath has become morally irrelevant because it is now inconsistent with contemporary mores. In an era where corporatization of medicine, along with forprofit motives, have become rampant, we may still best be served by the old-fashioned notion undergirding the foundation of the physicianpatient relationship.
I agree with Dr. Thomasma that over the last three decades autonomy has become one of the primary values in bioethics, a change that occurred before the corporatization of medicine made significant inroads into the healthcare industry. Instead of behaving as neighbors, we instead moved away from the concept of community and its inherent strengths. Even the practice of insurance evolved during this time from shared risks to avoidance of risk. During this time, patients wanted more control and say in their care as doctors spent less time at the bedside and modem medical miracles were beginning to be seen, perhaps accurately, as half-technologies. As people recognized the limits of physicians, they demanded more information and more participation in decision making. Most of these changes actually improved physician-patient relationships, but not without occasional trials and significant stress between competing values.
The foundation of the Hippocratic Oath indeed is one of beneficence first, followed by the admonition at least to do no harm-nonmaleficence. Often these two values come into conflict, particularly when dealing with scarce resources. Doing good for one patient may result in lessening the resources available for another. This conflict usually falls into the realm of distributive justice and is a key factor when considering the distribution of scarce resources, such as human organs for transplantation. In the usual case of medical care, however, most of the allocation problems arise because of cost, not scarcity of resources.
The conflict between beneficence and autonomy arises when a physician tries to do good for a patient in a manner that compromises patient autonomy or fails to be valued by the patient. In the United States we rarely justify the paternalism inherent in the Hippocratic tradition. We believe that it is better to allow one to be foolish than it is to compromise one's autonomy when his or her decisions may result in harm to oneself, but not to others. Ironically, autonomy is under attack for both the patient and physician in most managed care models as is their choice of provider and health plan.
So what are we giving up in this new model of corporate medicine? Beneficence may not be the driving force that nonmaleficence would be in a system where the assessment of quality of care from outcomes-based research is in its infancy. It is difficult to show value when only cost is measured. We must develop systems to manage information for quality assessment from an outcomes perspective to demonstrate value and competence. Until then, and by default, nonmaleficence will be the principle value for some managed care health plans. In such systems autonomy may have to be protected through contract provisions instead of trusted relationships. As Dr. Thomasma suggested, to be enforceable, promises-controlsshould be explicit and comprehensive enough to cover a variety of possible scenarios for the given patient and for the physician providers. A contract, however, places no moral obligation on the plan, physician, or patients to go beyond the contract specifications. The corporate model, even based on good contract provisions, simply does not go far enough to address the needs of vulnerable populations such as the poor and the minority or those who are mentally infirm. I would further argue that it does not go far enough to protect the interest of individuals who are critically ill and therefore existentially vulnerable.
I would concur that there are portions of the Hippocratic Oath that should be revisited, particularly now that we are unlocking mysteries within the human genome that will allow us to treat diseases heretofore unapproachable. There are new technologies and half-technologies that really need to be better understood, and we need to address the issue of distributive justice not included in the Oath. A covenant that defines a moral relationship between physician and patient founded on a commitment to do the best that one can do within given resources and never harm the patient by action or inaction would be superior to a promise enforced by contract, no matter how explicit that contract may be.
The Concept of Therapeutic Partnership
Saying that a covenant is superior to a contract does not mean that the physician should not do everything possible to strengthen patients' ability to cooperate in their own care. In many chronic disease models it is absolutely necessary that the patient be fully informed in order to maintain health and achieve the best possible outcome. In this partnership the physician initiates a negotiated treatment plan, but the patient is the key decision maker, deciding whether to follow instructions, take medications as prescribed, or seek a change in the therapeutic plan (Anderson and Matthews 1981). If there is anything in such a relationship that changes the patient-centered focus, then that should be explained explicitly to the patient. This relates to physicians who are working under health plans with such significant "set asides" or "withholds" that their judgment regarding the provision of expensive procedures may be influenced adversely. The presence of so-called "gag rules" in health plans should be made known to patients up front and early. Patients need to know the conditions under which the physician will be treating them.
A New Paradigm
Patients will benefit greatly from the new paradigm of evidence-based medicine (Evidence Based Medicine Working Group 1992), which places a significant emphasis on the physician's critical evaluation of empirical evidence from clinical research and de-emphasizes intuition and personal experience often obtained in isolation from the experiences of his or her peers treating patients with similar problems. Evidence-based medicine should still be within the context of a compassionate and empathetic relationship where the patient is the center of a covenant relationship. An uncritical reliance upon technical knowledge or procedures for diagnosis and treatment leads physicians and patients astray because quality measures for health outcomes are presently inadequate. We often measure quality by peer review and not through instruments that measure patient satisfaction with the outcome and process of their care. Richard M. Glass, M.D., a deputy editor of the Journal of the American Medical Association, described such a technological focus as offering a "veneer of scientific objectivity, but it actually obscures the diagnostic value of a careful history and creates a barrier to the treatment value of a caring relationship" (1996). He points out that physicians should use the best science for their patients, but never in a way that neglects important psychosocial issues or the uniqueness of each patient.
One of the real dilemmas in the current organization and delivery of healthcare is the tension between medicine as a business and medicine as a profession (Lundberg 1995). Similar tensions exist between healthcare systems and healthcare plans as they purport to put the patient first in a patient-centered paradigm, but at the same time they seem to put the bottom line first. With the increased emphasis on being businesslike in the delivery of healthcare, nonprofit hospitals often behave as do the forprofit hospitals, and physicians often forget their covenant. The common disruption of physician-patient relationships as employers change health plans frequently in an attempt to lower their costs (churning) is one of the greatest dissatisfiers for primary care physicians who typically desire a long-term relationship with their patients. Another dissatisfier is the concept of "gatekeeping" instead of being a "facilitator of care." It is hard to build trust and at the same time benefit from rationing decisions as a physician.
What else could be expected, however, when we talk about patients as consumers, customers, or clients? What else could we expect when we treat physicians as though they are "therapeutic equivalents" in various managed care scenarios? When contracts are the only way patients can be assured that promises will be kept, physicians will have lost their privileged status in society, and plaintiffs' attorneys will be more in demand than ever.
How can patients trust their caregivers or their managed care plans when each may benefit from withholding needed services? Dr. Thomasma promotes the laudable idea of explicitly describing the relationship that the physician has with the health plan and conditions that might influence decisions relating to access, to expensive therapeutic modalities, quality of care, and desired outcomes. The suggestion that patients will not be abandoned is again laudable. However, when it comes to issues of social justice or distributive justice, his recommendations currently fall short. Massive changes in the healthcare delivery system would be required to diminish the impact of the for-profit motives inherent in many of the so-called "market reforms" proceeding at such a rapid pace in the United States. Short of having everyone in a universal health plan or in cooperatives with democratic rights and privileges, the changes occurring are more likely to benefit the salary of the health plan's CEO or the corporation's stockholders than ensure the patient's care. The healthcare marketplace is described by Don Light, Ph.D., as an "imperfect market." In such a marketplace, the vulnerable consumer:
is unlikely to be able to negotiate with those who hold more power and knowledge;
can neither understand nor assess the value of the services received, particularly from an outcomes perspective;
often requests very expensive interventions for only marginal benefit particularly when co-insurance and deductible limits have been met;
has little out-of-pocket expense when requesting health services and therefore little impediment to the seeking of health services; and
turns over the responsibility for decision making to third parties (Light 1992).
There are other reasons outlined by Dr. Light that call into question whether we can depend upon contracts, business, and economic models or unbridled competition to achieve an ethically based health reform in this country. Key among his concerns is the fact that risk selection is an easier path to profit than becoming truly more efficient and innovative or providing higher quality.
Managing Care vs. Managing Reimbursement
At Parkland Memorial Hospital we talk about patient-centered and patient-valued care as our principle mission, followed by teaching, research, and community service. Providing patient-centered services is important because it means we have to take into account the patient's values, desires, and concerns as well as other cultural, ethnic, or religious differences that might impact the way healthcare should be delivered.
Parkland Health and Hospital Systems is in the process of creating its own HMO to address the needs of the working poor, Medicaid patients, its own employees, and their dependents, and it is with these values that we intend to administer our managed care operation. We know it can be done because we have seen it in several of the nonprofit group practice model HMOs such as Kaiser Health Plan of Texas-on whose board I sit-The Group Health Plan of Puget Sound, Pilgrim's Health (formerly the Harvard Community Health Plan), Health Partners (Minnesota), and Scott & White Health Plan (Temple, Texas). There is nothing inherently wrong with managed care and much inherently wrong with managed reimbursement. We have been managing care for years without diminishing the role of the physician. We have deployed such concepts as a formulary using both therapeutic and generic equivalents, established clinical practice guidelines, standardized therapy, implemented peer review, and measured patient satisfaction. Moving to capitation is not so scary and will be even less so as information systems become available that will allow physicians to obtain outcome information and properly assess variations within processes and between physicians, thereby improving the quality of care that patients receive. The deployment of preventive measures and early primary care interventions can improve healthcare, often at a lower cost. Proper incentives for physician reimbursement can also be created to reward behaviors that are patient-centered and that achieve public health goals. There is something terribly wrong when we talk about expenditures for patient care as "medical loss ratios." Ethically, we do need to have open discussions as a society regarding rationing of care, but it would hardly be moral for us to pursue that as a solution when the denial of care is now one of the most efficient ways to make money.
Physicians practice through privilege, and that privilege is given to them by patients and by society. Physicians have no special rights in this relationship other than the rights of regular citizens. Typically, these shared rights are called "freedom rights," which we may choose to exercise or not exercise. Patients do have special rights that confer duties and responsibilities upon those of us who care for them. Sometimes we call these special rights "need fulfillment rights," which are morally, not legally, based. These rights are not absolute, but they confer a moral responsibility on society to do the best it can within available resources to address the needs of all our citizens, leaving no one behind for such basic needs as education and healthcare. We are currently leaving behind 41 million or more Americans, many of whom are small children, the elderly, and the poor. We can all argue that it is impossible to exercise our basic human rights if we are hungry, homeless, uneducated, and without access to proper healthcare. It is in this context that we should address our attention and challenge the moral fiber of our nation in allowing such inequity to continue, not by substituting business for professional principles. If we had universal health insurance in this country we would be better able to address many of the moral dilemmas attacking the physician-patient relationship and better able to preserve the basic values on which the practice of medicine must rest.
A great first step would be to declare healthcare a legal right, most likely still a "need fulfillment right," and then hold the system accountable to see that the duties and obligations of the privileged professionals are met. If that does not occur, then the privilege should be withdrawn. Sadly, medicine will then become just another business selling its wares under various corporate banners and trade names where the new rule of the day will not be based upon beneficence, nonmaleficence, autonomy, or upon new models of promisekeeping, but upon the concept of "let the patient beware."
Anderson, R. J., and C. Matthews. 1981. "Noncompliance: Future of the Therapeutic Partnership." Cardiovascular Research Report 2 (5): 464-70, 477
Evidence Based Medicine Working Group. 1992. "Evidence Based Medicine: A New Approach to Teaching the Practice of Medicine." Journal of the American Medical Association 268 (17): 2420-25. Glass, R. M. 1996. "The Patient-Physician Relationship, JAMA Focuses on the Center of Medicine." Journal of the American Medical Association 275 (2): 147-48. Light, D. W. 1992. "The Practice and Ethics of RiskRated Health Insurance." Journal of the American Medical Association 267 (18): 250308. Lundberg, G. D. 1995. "The Failure of Organized Health System Reform-Now What? Caveat Aeger-Let the Patient Beware." Journal of the American Medical Association 273 (19): 1539-41. Pellegrino, E. D. 1996. "Ethics." Journal of the American Medical Association 275 (23): 1807-09.
RON J. ANDERSON, M.D., FACP, is President and CEO of Parkland Memorial Hospital, Dallas, Texas.…
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Publication information: Article title: The Ethical Basis for the Physician-Patient Relationship: Covenants or Contracts?. Contributors: Anderson, Ron J. - Author. Journal title: Frontiers of Health Services Management. Volume: 13. Issue: 2 Publication date: Winter 1996. Page number: 40+. © Health Administration Press Winter 2008. Provided by ProQuest LLC. All Rights Reserved.