guthealthcare.com

Destroying the doctor-patient relationship.

Destroying that relationship was a requirement for Gekkonian managed care, and the Gekkonians accomplished it to devastating effect. Their efforts have left the medical profession in complete disarray, and physicians' formerly clear-cut ethical mandates in tatters. As a result, the behavior of individual doctors and of their professional organizations as they try desperately to reassert old values, or establish new ones, or simply explain what the heck they are doing, have been bizarre and often schizophrenic  Such behaviors would be almost comical if their implications were not so profound.

Item 1. In a survey conducted by the American Medical Association's Institute for Ethics and published in the April 12, 2000 issue of the Journal of the American Medical Association, 39% of American doctors admitted that they sometimes or very often manipulated reports to their patients' health plans so their patients might gain coverage for needed medical care.  These manipulations included exaggerating the severity of the patients' condition, changing the billing diagnosis, or reporting symptoms the patient did not have. And 72% admitted using one of these tactics at least once in the past year.  More than a quarter said that gaming the system was necessary in order to provide high quality care to their patients, and 15% asserted that it was ethical.

This survey elicited a firestorm of criticism against the cheating doctors. Ethicists called for doctors to stop applying "insular" ethical norms and to begin using the norms that professional ethicists have long established against cheating health plans. Similarly, the AMA and the American College of Physicians have published strongly worded statements opposing the manipulation of reimbursement rules.  And the federal government has made such "misstatements" to health plans a federal crime, punishable by huge fines, jail terms, and loss of license.

Item 2. Another survey, published in the July/August, 2003 issue of Health Affairs, reported that nearly one third of American doctors admit that they routinely withhold from their patients pertinent information about optimal medical treatments, because they suspect the patients' health plans won't cover those treatments.  The always amazing Susan Pisano, spokesperson of the AAHP (the group representing the very health plans that are pulling out all the stops to make sure that doctors do exactly what this study confirms they are doing), told the AMANews at the time that AAHP officials "actually find it difficult to believe that that's going on."  Meanwhile, the authors of the study, pointing out that "gag clauses" no longer exist, could only conclude (with seeming surprise) that doctors are "rationing  by omission" on their own volition.  

These two surveys reveal just some of the confusion and frustration being felt by doctors as a result of both HMO "rules," and the "guidance" they're getting from their professional organizations as to what to do about those rules.  How, exactly, are they to square those rules and that guidance with their obligation to always do what's best for their patients?  What's a doctor to do, for instance, when a patient needs a treatment, but they're pretty sure the health plan won't pay for it?  There are only three choices:  

1.    Tell the health plan whatever you must in order to get the needed treatment for the patient;

2.    Don't tell the patient about the treatment since they can't get it anyway; or

3.    Tell the patient about the treatment they need, and then tell them they can't have it.

Clearly the most straightforward thing for doctors to do is choose Door Number 3 - just tell the truth. After all, a patient has a right to know what medical treatment he needs, whether or not he's allowed to have it. Informing a patient that the health plan won't pay for the needed treatment gives him useful information - it lets him know that his health plan is not adequate to his needs, and gives him an opportunity to respond appropriately to that information. For instance, a patient might appeal to the health plan directly, seek intervention by his local Congressperson, or ask his employer (who is the HMO's true customer), to intervene on his behalf. He can even raise the funds to pay for the therapy himself.

What patients actually do when doctors choose Door Number 3, however, is to beg, demand, threaten, implore, and plead (often with tearful spouses and children in tow, in scenes right out of Uncle Tom's Cabin), for the doctor to do something to fix things, since after all, it is the doctor who started the problem in the first place by insisting that this forbidden therapy is the only one that will do. So, the moment doctors choose Door 3, they are placed under incredible pressure to go back and choose again - Door Number 1, their patients are communicating to them, is actually the correct choice. This reason, plus wanting to avoid all the anguish and drama that follows telling the truth, leads doctors who are inclined to lie to health plans (and thus risk angering the entities that determine their ability to make a living, not to mention committing a federal crime), to choose Door Number 1 in the first place.  If doctors are not inclined to risk their livelihoods and freedom by deceiving health plans, they will probably simply default to Door Number 2 - rationing by omission.  

So the above two Items merely reflect the proportion of doctors willing to admit which group they routinely lie to - health plans or patients.  Most of the other doctors, one suspects, would just rather not say.

Item 3. In 2000, the AMA filed an amicus brief with the Illinois Supreme Court on behalf of a Dr. Portes, asserting that doctors have no duty to inform their patients when HMOs have given them financial incentives to withhold medical care.  Apparently a patient of Dr. Portes died of a heart attack shortly after the doctor allegedly refused to refer him to a cardiologist. As it turned out, the patient's health plan apparently had agreed to pay the doctor's medical group 60% of any funds not used on referrals to specialists. A lower court in Illinois had found that Portes had a duty to disclose this financial relationship to patients, since it might clearly impact their interpretation of his medical recommendations, and Portes appealed. In this appeal, the AMA sided with the doctor.

The AMA said in its amicus brief that the obligation imposed on doctors by the lower court amounted to an "insurmountable burden," since it was hard for doctors to keep track of all the sundry ways that HMOs might induce them to behave in this way or that way, and besides, the need to disclose would impinge on the doctor's valuable time with the patient and therefore disrupt the doctor-patient relationship.  Interestingly, the AMA's own Council on Ethical and Judicial Affairs (CEJA) had previously written that, "physicians must assure disclosure of any financial inducements that may tend to limit the diagnostic and therapeutic alternatives that are offered to patients. . ."  In explaining why its amicus brief differed from the opinion of its own Ethics Council, the AMA explained that its CEJA standard was just an ethical one, and not a legal one.

So what we have here is: 1) an HMO induces doctors to withhold medical care; 2) a doctor acts on that inducement; 3) as a result, predictable harm comes to a patient; 3) after which, the doctor and the AMA whine that he shouldn't have to inform patients of his financial incentives because; 5) to do so would harm the doctor-patient relationship. This is all just too precious for words.

It seems quite obvious that commonly used covert rationing techniques have relegated even the most straightforward of the medical profession's ethical precepts to the status of a "nice-to-have," instead of a standard to be maintained, embraced, and fought over when threatened.  While various ethical panels may still voice the proper sentiments, in the real world those sentiments are the first to go.

Item 4. The AMA recently conducted yet another study documenting that the medical insurance industry has become overly dominant within the healthcare system, leaving "doctors and patients…at a severe disadvantage."  The AMA's solution, of course, is to renew its lobbying efforts to get Congress to legalize a Doctors' Union, so physicians can engage in collective bargaining with HMOs, the better to advocate for their patients. A union is the only way doctors are likely to gain enough power to help their patients, the AMA maintains.

As a former card carrying member of the United Steelworkers of America, I well understand how important unions can be for wage earners who must deal with an all-powerful employer.  But unions can be effective only to the extent that they demand utter, absolute, and unquestioning loyalty to - the union.  It's the only way the union can guarantee the solidarity it needs when it engages management in collective bargaining. Only union solidarity can render their one and only weapon - the strike - credible as a threat, and that solidarity must be maintained at all costs, sometimes even by violence if necessary.

This, of course, is the problem when we talk about unionizing the professions.  Professionals by definition have a primary obligation to their "customers," be they clients, students, or patients, and that obligation is supposed to supersede any other.  Professionals cannot be primarily obligated to their clients, and at the same time primarily obligated to their union.  For a doctors' union ever to be a "threat" to an HMO, that union must be inviolate in the minds of its physician members, who must be willing to do harm to patients, if necessary, through a work stoppage or slowdown, if that's what it takes to bring the HMO to heel.  For the AMA to lobby for such a thing, however reluctantly, is a further illustration of how damaged the doctor-patient relationship has become.

So what's happened here?  What's happened is that both patients and doctors have been completely marginalized within our healthcare system. The individual doctor and individual patient, together, no longer comprise the basic nuclear unit of healthcare.  Doctors and patients have been separated from one another, and reduced to ciphers, to mere commodities in the vast healthcare marketplace.  

And when a commodities trader is dealing in pork bellies, he's only concerned about buying, selling and thus maximizing his profit on large quantities of pork bellies.  Concern for the careful handling of the individual pig never crosses his mind.