I practice family medicine in a small midwestern city—one large enough, however, to have good health care facilities. There is a small but well-managed hospital and an independent diagnostic center with well-trained technicians, a good lab, and up-to-date equipment, including equipment for CAT scans and MRIs. The diagnostic center is owned and operated by a consortium of local physicians, not including me—this arrangement already existed when I established my practice here three years ago.
Patients frequently come in with problems requiring sophisticated diagnosis, and I regularly use the diagnostic center. Usually this involves no problem, but sometimes I feel pressured to order X rays, CAT scans, and especially MRIs whose justification for diagnostic purposes is marginal at best. For example, recently I had a patient who was experiencing intermittent hearing loss and had a history and set of symptoms that virtually ruled out the possibility of an auditory nerve tumor. Still, there was a very small chance that examination at the diagnostic center would discover such a tumor. I could have ordered a CAT scan, costing about three hundred dollars, but if there actually were a tumor—which I estimate might be the case once in twenty thousand times or fewer—a CAT scan offers only about a sixty-five percent probability of detecting it, while an MRI, costing fifteen hundred dollars, increases that probability to about ninety-five percent. Although I felt even the CAT scan would be diagnostic overkill, I reluctantly ordered the MRI.
I did that because the alternative was to render myself vulnerable to a malpractice lawsuit. Patients today expect doctors to use every state-of-the-art method of diagnosis and treatment, and whenever a physician’s effort fails to produce the results a patient hopes for—a complete and quick cure with no trouble or hardship—he or she is likely to begin talking to a malpractice lawyer. Confronted with this situation, nearly every physician and hospital administrator orders more tests, keeps more records, and takes various other precautions. Now, malpractice is defined by falling short of the common standard of practice adhered to by competent physicians engaged in similar practice in the same geographical area. Since other physicians in this city order more tests than I otherwise would, I have been forced to follow suit. The situation is made worse here by the understandable tendency of the physicians in the consortium that owns and operates the diagnostic center to make use of its facilities. I am not saying they order examinations and tests solely to make more money, but, in my judgment, they do order them in many cases where they would not if they did not have a stake in the diagnostic center. Consequently, their pattern of ordering examinations has ratcheted up the standard, and I have no choice but to conform.
I would be even more concerned except that virtually all the charges are paid on behalf of patients by either private insurance, Medicare, or Medicaid. Then too, sophisticated exams and tests sometimes do turn up significant and totally unexpected information. For example, the MRI that I ordered provides a complete brain scan, which is studied carefully by the radiologist who interprets it before he or she reads the referring physician’s order indicating precisely what is to be checked out. With that method, the exam could result in early diagnosis of some serious pathology and thereby save a patient’s life.
All the same, it seems unreasonable that anxiety about malpractice suits should drive medical practice to the extent it does.
This question is about the moral acceptability of reluctantly conforming to a false standard of good practice. That most charges are paid on behalf of patients does not justify conforming to the false standard. Nor is conformity justified by occasional, unexpected, diagnostic benefits. Physicians should defend themselves against malpractice litigation by reducing patients’ unrealistic expectations, teaching them to understand the physician’s role in helping patients care for themselves, and leaving many decisions to them, including those about matters where the fear of malpractice has contributed to a false standard of good practice.
Your explanation of the constantly rising standard of so-called good practice in your area indicates that an important factor is self-referral by the physicians involved in the consortium. Assuming you are correct in saying that they order examinations and tests “in many cases where they would not if they did not have a stake in the diagnostic center,” their behavior is seriously flawed due to their conflict of interest. The patient cannot be justly billed for an examination or treatment that would not be ordered except for the physician’s financial self-interest. When the principal benefit of ordering such examinations or treatments is to the physician rather than the patient, the physician profits by fraud—morally, at least, if not legally. Moreover, any unnecessary examination or treatment is itself burdensome to the patient who undergoes it, and so is an abuse of the patient and a grave betrayal of the trust that ought to be the basis of the physician-patient relationship. Then too, this basic evil of self-interested self-referral by certain physicians leads to many further evils, including the distortion of standards of good practice that has attracted your attention and concern.
The physicians involved might argue that setting up and managing the diagnostic center was justified by the lack of such facilities in your city and was reasonable for them, since their investment offered hope of a fair return from an enterprise they were especially well qualified to organize and conduct. I grant that, if there were no other way to obtain needed facilities, they had good reason to finance them and set them up. However, retaining an interest was bound to be an occasion of sin, constantly skewing judgments that ought to be made disinterestedly for patients’ well-being. So, financial arrangements should have been made in such a way as to ensure that the use of the diagnostic facility made by physicians in the consortium would not affect the return on their investment.206 If they wanted an investment opportunity, they could have chosen a different sort of vehicle or even invested in a similar facility in another town, where they would have had no conflict of interest.
The medical profession should act to prevent not only such conflicts of interest but their bad effects, especially exploitation of patients.207 You share this responsibility. You should talk with your colleagues who belong to the consortium and urge them to end their conflict of interest. Whether or not that effort succeeds, you also should bring this problem, which is recurrent, to the attention of your medical society and urge steps to deal with it. Perhaps, too, you should discuss the matter with members of your state’s legislature and encourage them to consider appropriate regulatory legislation.
Even if the abuse of self-referral were eliminated, however, the problem caused by a false standard of good practice arising from anxieties about malpractice suits would remain. When you say, referring to that false standard, “I have no choice but to conform,” I must disagree. To explain the alternative, I shall begin by criticizing the two considerations you mention as lessening your concern about the problem.
Excusing diagnostic overkill on the grounds that private insurance and government programs pay the bills is mere rationalization. Insurance companies do not create money from nothing; they receive it from policy holders and pay it out—after taking a substantial percentage for overhead and, usually, for profit. The more they pay out, the more they are going to charge their policy holders. As for government programs, they are funded by taxpayers. Thus, everyone pays the bill for diagnostic overkill. It also is one of the factors that make adequate health care prohibitively expensive for many people who are not covered by insurance or a government program. Moreover, in most cases patients themselves directly pay some portion of the charge, often an amount large enough to constitute grave matter. Thus, the ordering of each unnecessary examination is likely to be a grave injustice to the patient concerned, and a policy of ordering such examinations also is unjust to payers of private insurance premiums and to the public at large.
In considering the other excuse, I take it for granted that there often are legitimate differences among reasonable professional opinions about the medical indications for using various tests. However, the argument that a sophisticated examination such as an MRI brain scan occasionally leads to early diagnosis of some unsuspected serious pathology is not an adequate excuse for ordering it when, admittedly, no medically relevant indication really calls for it. The test then is being used as if it were so easy and cheap that it could be an appropriate part of a routine checkup. No doubt, the threat of malpractice suits puts conscientious and competent physicians under unjust pressure. But most patients are in no way responsible for that injustice, and it is not fair for physicians to shift the burdens it imposes on them to their patients.208 Therefore, when you reluctantly ordered the MRI, motivated by a concern about your vulnerability to a malpractice suit, the test’s occasional unexpected benefits did not compensate your patient for the cost and inconvenience.
But how can you deal with patients’ unreasonable expectations and their tendency to sue for damages when physicians fail to satisfy them?
First, you must teach them to expect no more of you than you can give. That requires a systematic effort to reduce their exaggerated idea of your ability to a realistic level and lower their expectations that technology can work miracles. When unsure about your diagnosis or plan of treatment, make it clear to the patient that you are unsure. When your prudent judgment is that the best available treatment will have only poor results, warn the patient. The primary responsibility for your patients’ survival and health is theirs, and they must understand that you can do no more than help them in limited, often ineffective ways. Teaching patients this also will motivate them to take better care of themselves and cooperate more fully with diet, regimen, and medical treatment you propose. Having entered into this type of physician-patient relationship, they are more likely to hold themselves responsible than to blame you for an unsatisfactory outcome.
Second, in properly carrying on this type of relationship, you will explain to patients, at a level they can understand, their health problems and possible ways of dealing with them. When there are medically acceptable and practically feasible alternative ways of dealing with problems, you will explain their pros and cons, and encourage patients to judge what is appropriate for them, considering their concrete circumstances and personal responsibilities.209 When not all competent and conscientious physicians would regard a test or examination as essential for a patient, you will describe it sufficiently so that he or she can evaluate its potential usefulness and burdens, and decide whether to accept it. Moreover, you often will remind patients of their right to seek a second opinion and will encourage doing so whenever you think it in the patient’s interest.
Where fear of malpractice is a factor, you will say so frankly: “Many physicians would order this test (examination), but in this case, I think, they would do that mainly for fear of being sued in the unlikely event that its result would have been important for proper treatment. Personally, I do not think it worthwhile, but the choice, as usual, is yours.” If a patient accepts your advice, you need only make and keep a record of your reasoning, and, if you think it necessary, ask the patient to sign a release indicating the purpose of the possible test or examination, and stating that it was offered and declined. When patients insist on questionable tests, the responsibility for the waste will be theirs.
The medical profession also has a responsibility, which you share, to work to rectify abuses motivated by anxiety about malpractice. Within the profession, excesses can be discussed and appropriate limits set and agreed upon, so that evidence of a reasonable standard of good practice will be available. Where excesses occur due to patient irresponsibility, insurers and other payers, including the government, should be told about problems so that they can take action. The professional also can promote appropriate legislation to regulate malpractice lawsuits, not merely to limit the size of awards (sometimes probably too low rather than too high), but to ensure that damages awarded are reasonably proportioned to the harm done and, perhaps even more important, to help the courts identify authentic standards of good practice.
At this point, some physicians are likely to object that following such advice would completely transform their professional work. They would spend a large part of their time telling people about their options and persuading them to consent to tests, examinations, and treatment that the standard of good practice requires and any competent physician would prescribe without hesitation. They also would use much more time than now dealing with colleagues and public officials. They simply would not have time to care for all their patients, with the bad results that some might not be so well cared for and the physicians’ income would shrink significantly.
Part of my response to such objections is that the demands my advice imposes on physicians must not be pushed to absurd extremes. The time spent with a patient on a particular matter need not be great if its potential impact on his or her life is slight. Then too, taking into account—as they may and should do—various patients’ differing abilities to understand the advantages and disadvantages of alternatives, physicians need not burden patients with information they simply cannot use in judging what is more appropriate for themselves. Again, a physician need not waste time explaining differences that are highly technical and affect only the probability of a favorable clinical outcome, rather than other aspects of a patient’s life. Moreover, if an authentic standard of good practice really requires that a physician prescribe something, no technically acceptable alternative will be available, and reasonable patients generally will accept their physician’s authority once the situation is explained.
Even so, I grant that following my advice would largely transform some physicians’ professional work. (I trust and hope that in most respects the transformation would bring them into line with what you already are doing.) They would use their professional authority in a Christian way, serving patients by focusing on their best interests rather than serving the physicians’ self-protection and convenience. These physicians would cooperate with their patients, on the basis of mutual understanding and shared purposes, not work on them as veterinarians work on animals.210 They would spend more of their time being doctors (Latin: teachers) of medicine and health, and somewhat less being technicians. In short, they would be better physicians, practicing medicine as it should be practiced and providing patients with all the benefits to which they are entitled and which competent and conscientious physicians can help them obtain. They also would be doing their part to fulfill their responsibilities both as members of the medical profession, which should regulate itself and deal with its own problems, and as citizens who have the professional knowledge and skills to help legislators fulfill their responsibilities bearing on people’s health and the health care professions.
All this would require some reallocation of many physicians’ time, and no doubt they could not see as many patients. But the demands patients would make on their time should not be overestimated, since once the physician-patient relationship was reformed, long conversations would be necessary only occasionally, and patients, taking more responsibility for themselves and perhaps being in better health, would need to see physicians less often. Some of their present patients probably would prefer to find other doctors who would not care for them so well, but those who remained their patients would receive far better care–the sort of medical service every patient always deserves but quite a few never get. Though longer sessions with patients would warrant a higher fee per visit, physicians’ income probably would shrink somewhat, but that would be a small price to pay for being good people as well as good doctors.
Of course, you are not held to do the impossible. But do not define what is possible by assuming that what would be very hard is impossible or that commonly accepted standards of practice need not change. Unfortunately, commonly accepted standards can be structures of sin, embodying the prevailing level of selfishness among members of a profession. It is the business of Christian moral reflection and conscience to bring such sin to light, so that we can stop being conformed to the world and instead be transformed by the renewing of our minds (see Rom 12.2). Naturally, to such light, darkness sometimes seems preferable. Transformation means giving up an existing, familiar self in exchange for a new self, known and loved by God, but as yet unknown and so unappealing to ourselves: “If any want to become my followers, let them deny themselves and take up their cross and follow me” (Mk 8.34; cf. Mt 10.38, Lk 14.27).
206. That could have been accomplished in various ways, which I shall not describe here. Council on Ethical and Judicial Affairs, American Medical Association, Code of Medical Ethics: Current Opinions with Annotations, 1996–97 ed. (Chicago: American Medical Association, 1996), 8.032 (pp. 108–9), holds that, in general, physicians should not refer patients to a facility in which they have an investment interest, at which they do not provide care and treatment, and which is outside their offices; yet allows physicians to invest in a genuinely needed facility to which they will refer, provided there is no satisfactory alternative and various safeguards are met.
207. See Jean M. Mitchell, “Physician Joint Ventures and Self-Referral: An Empirical Perspective,” in Roy G. Spece, Jr., et al., Conflicts of Interest in Clinical Practice and Research (New York: Oxford University Press, 1996), 300–317.
208. Malpractice in health care occurs far more often than most people realize, and only a small proportion of physicians and others guilty of it are ever held accountable for the injuries and deaths they cause. Though some awards for damages no doubt are excessive, others are inadequate. Though malpractice insurers vigorously defend many cases, they make large profits. See Harvey F. Wachman with Steven Alschuler, Lethal Medicine: The Epidemic of Medical Malpractice in America (New York: Henry Holt, 1993); Paul C. Weiler et al., Measure of Malpractice: Litigation and Patient Compensation (Cambridge, Mass.: Harvard University Press, 1993).
209. Eric J. Cassell, The Nature of Suffering and the Goals of Medicine (New York: Oxford University Press, 1991), points out that many physicians focus almost exclusively on disease processes and fail to take into account the patient’s wider perspective. Though not everything Cassell says is consonant with Catholic teaching, his reflections contain many sound insights that Catholic physicians should take into account.
210. Sheila Cassidy, Sharing the Darkness: The Spirituality of Caring (Maryknoll, N.Y: Orbis Books, 1991), 18, remarks with respect to the physician-patient relationship: “We have to learn to be whole-person doctors because our patients are whole persons. It takes so much more time and energy. It is destroying our protective hierarchies, our sense of omnipotence. Our corridors of power have been invaded and we are having to learn humility!”