Hall, Mark A. JD; Berenson, Robert A. MD
This article examines the ethics of medical practice under managed care from a pragmatic perspective that gives physicians more useful guidance than do existing ethical statements.The article begins with a framework for constructing a realistic set of ethical principles, namely, that medical ethics derives from physicians' role as healers; that ethical statements are primarily aspirational, not regulatory; and that preserving patient trust is the primary objective. The following concrete ethical guidelines are presented: Financial incentives should influence physicians to maximize the health of the group of patients under their care; physicians should not enter into incentive arrangements that they are embarrassed to describe accurately to their patients; physicians should treat each patient impartially without regard to source of payment, consistent with the physician's own treatment style; if physicians depart from this ideal, they should inform their patients honestly; and it is desirable, although not mandatory, to differentiate medical treatment recommendations from insurance coverage decisions by clearly assigning authority over these different roles and by physicians advocating for recommended treatment that is not covered.
Medical ethics and medical economics are increasingly in conflict. In response to the ascendance of managed care, many ethicists and physicians continue to assert the traditional ethic that physicians should not engage in "bedside rationing" or should not be motivated to do so through the application of financial incentives [1-8]. Meanwhile, health maintenance organizations (HMOs) and integrated provider groups are implementing incentives that reward physicians for providing fewer services [9-11]. The approach to financial compensation that ethicists recommend most highly-incentive neutrality [7,12] -is most easily accomplished through salaried compensation; this, however, is the very approach that many managers of care reject, precisely because salary sends no signals about appropriate physician behavior in an era of constrained resources [13].
It is untenable for the medical profession to continue asserting an idealistic ethic that is contradicted so openly in daily practice. However, a satisfactory ethic appropriate to the managed care era has not yet been developed to replace the traditional ethic. Many in the profession have not come to terms with the conflicting expectations they now face and so feel caught in a moral crisis.
In this article, we begin to map a way out of this dilemma. We do so by building on the work of others before us who have proposed new ethical principles that are more attuned to the physician's role in an era of managed care [8,14-29]. We synthesize this previous work and add important refinements and insights. We also more fully articulate the theoretical framework within which to construct managed care ethics. In so doing, we strive for a set of realistic principles that will restrain the potential abuse inherent in the new incentives and are compatible with the roles and structures taking shape in actual managed care organizations. Our goal is to offer recommendations for clinical practice and for public policy discussions that accept the reality of physicians' participation in common forms of managed care, not to frustrate the entire enterprise.
We accept, but do not attempt to justify, the forms of managed care in common use. Some physicians, ethicists, and consumer advocates continue to resist the revolutionary changes in the structure and financing of health care delivery. We are among those who welcome many, but not all, of these changes. In our view, rationing, defined broadly as resource allocation, is necessary and inevitable in some form, and bedside rationing (defined as individual physicians declining to administer beneficial treatments because of costs to someone other than the patient [30]) is usually preferable to centralized, rule-based rationing. Rationing through central (bureaucratic) rules has desirable attributes, including evenhandedness, visibility, and predictability, that recommend its use in some situations, but bedside rationing tailors spending decisions to the circumstances of each patient. It also operates through incentives to professionals rather than through bureaucratic authority.
Bedside rationing is more acceptable when patients choose their insurance knowing that their coverage plan uses financial incentives to encourage physicians to economize in order to decrease premiums or expand benefits [31,32]. When given the choice, subscribers may prefer bedside rationing to other cost-control strategies that lodge authority for making clinical decisions with insurance companies or other organizations external to the practitioner-patient relationship. The obvious problem with this justification is that the critical ethical foundations for meaningful choice are often lacking in the existing marketplace. Many HMOs conceal from subscribers the incentives and other mechanisms that may affect their physicians' judgments. Even worse, a few HMOs impose "gag clauses" that keep physicians from discussing their compensation terms and the HMO's utilization guidelines [33]. In addition, many subscribers have little choice over the kind of insurance they receive [34]. We strongly support efforts to correct these defects through voluntary or regulatory action. Other desirable protections against potential system abuses include limiting the ability of health plans and providers to select only patients with good risks ("cherry pick"), providing useful outcome measures of plan and practitioner quality of care, and offering patients efficient procedures for airing grievances and appealing coverage denials [35-39].
However, while we wait for this improved version of managed care to evolve, physicians need practical guidance in the existing, imperfect world of clinical practice on how to make bedside rationing ethically acceptable. Managed care, despite its imperfections, cannot be made to disappear, nor can physicians be expected to plunge into the brave new world of bedside rationing without ethical guidance.
Any statement of ethical guidelines is necessarily grounded in an ethical framework. Yet, it is impossible in the space available to justify our framework and defend it against all contenders. The most we can do is make our starting premises explicit so that those who disagree can more clearly identify why. On the basis of these premises, we offer several concrete guides for physician attitudes and behavior.
For the most part, medical ethics is contingent on physicians' role in society. In contrast, a universal or absolutist ethic remains the same for all times and all circumstances. Although medical ethics has important universal components because of its focus on human illness, the institutional and financial dimensions of medical ethics are more contingent. The manner in which physicians are employed and paid are issues that medical ethics can help influence but cannot determine. Politics and economics create and define the professional role that medical ethics must respond to. Role-based professional ethics help physicians act in the most socially useful manner; as such, they depend narrowly on the precise instrumental connection between the particular behavior in question and the role that society intends for physicians [40]. These justifications do not often generate sweeping and absolute generalizations that spring axiomatically from fundamental premises.
We also believe that many ethical rules are aspirational, not regulatory. They set ideal end points toward which imperfect humans strive but are not expected to reach fully [41,42]. This view of ethics finds its most powerful modern statement in the resurgence of virtue ethics, which attempts to improve moral character by focusing on desirable psychological traits and attitudes rather than on concrete rules of behavior [43]. This view is also captured in a more pragmatic strain of ethics known as rule instrumentalism, which looks to the behavioral effect of ethical rules rather than reasoning deductively from first principles. A proposed ethical rule is good if it tends to produce desirable behavior and attitudes, even if complete and literal adherence is unrealistic or unwise. Instrumentalism is not equivalent to utilitarianism. Whether or not resulting behavior is desirable can be evaluated in nonutilitarian ethical and political terms; our thrust is to design ethics that are based on actual effects rather than on abstractions or theoretical absolutes.
Rule instrumentalism accepts inherent tensions and outright contradictions between what physicians profess and how they act, so long as cynicism does not become so widespread that it destroys the beneficial ethos. Traditionally, we have tolerated a sharp dissonance between medical ethics' professed adherence to a rule of absolute patient loyalty and the reality of myriad violations of the rule [44]. For example, physicians routinely make pragmatic decisions in public institutions operating under fixed budgets that may compromise individual patients' optimal medical benefit. In clinical practice, physicians regularly compromise individual patient welfare to a small but discernible extent because of competing demands for their time and limits on available specialized facilities and technology. They also comfortably adopt prudent clinical heuristics that avoid extravagant expenditures for very small increments of medical benefit.
Nevertheless, physicians profess a strong ethic of providing optimal patient care. The fact that undivided loyalty to patient welfare is sometimes given only lip service illustrates that, to the extent that ethical maxims are justified primarily by their instrumental function, this function is not necessarily destroyed by observing actual violations.
We further believe that the primary goal of role-based medical ethics should be the preservation of patients' trust in their physicians. Trust is important primarily because of its therapeutic role, not simply because of its intrinsic, theoretical value. Therefore, the critical tests for ethical compromises should be whether they undermine patients' willingness to seek treatment, disclose necessary information, and comply with treatment recommendations-not simply whether in the abstract they tend to increase a general sense of unease or erode the justification for trust. This is an intensely empirical inquiry about which there is much speculation but few data or even anecdotes.
Some opponents of financial incentives overstate their case because they assume a psychological basis for trust that is far too fragile. They believe that patients cannot trust their physicians unless tough legal and ethical constraints are placed on physicians' authority. Instead, trust in physicians may be capable of withstanding many assaults, given the intense need for trust caused by patients' dependence on physicians' skill and judgment when patients have a serious illness [45-48].
Paradoxically, trust may be most indefatigable when patients are most vulnerable, for it is the physician's very power that gives rise to trust [49]. Contrary to the assumption that we trust only when there are ample protections, we often confer trust in proportion to the power others have over us; it is trust that allows beneficial power to exist [50].
Another paradox of the resiliency of trust is that confidence in the system of medical care can survive even when individual professionals violate that trust. Systemic trust is essential to the functioning of modern medicine, which increasingly features complex organizations, not individual practitioners, as the basic unit of the health care system [51]. Patients' faith is based not only on their knowledge of the personal characteristics of their individual physicians but also on their preexisting concepts of the archetypal physician [46]. This helps patients to trust their own physicians even if they do not know them well and even if they have reason to distrust other physicians. This broader foundation for medical trust renders it more resilient than the opponents of financial incentives often suggest.
We recognize that actual trust and deserved trust are two distinct concepts and that medical ethics should be more concerned with the latter. Trust should be based on demonstrated physician competence and willingness to act for the patient's benefit [52,53]. However, the best way to ensure that actual trust is deserved is to monitor performance and punish abuses, not to attempt to avoid all potential for abuse. The practical alternative most readily available is to rely on the bottom-line orientation of publicly traded insurance companies. We must decide whether financial forces are better absorbed by giving business managers authority to direct clinical decisions or by leaving clinical authority with physicians who share in the business incentives. We agree with the physician management company executive who said, "Physicians know how much of that profit is reasonable to drop to the bottom line before you truly start to impair care. I'm not sure that Wall Street does" [54].
Some physicians may not be up to the challenge of reasonably balancing the competing pressures of financial incentives and the well-being of their patients, just as some physicians have abused fee-for-service and salaried arrangements. Safety valves and protections must be built in, both to prevent abuses and to reassure patients who fundamentally mistrust the realignment of financial incentives. These safeguards should be constructed at both an institutional level and at the level of individual professionals, and they can be either legally binding or ethically advisory. We focus here on the ethical safeguards. The following are practical suggestions for physicians struggling to balance their conflicting obligations in the new order.
It is not helpful to declare that financial incentives are too strong if they influence physician behavior [27,55]. Their very purpose is to affect behavior as a counterinfluence to powerful inflationary pressures [56]. Rather than eliminate financial incentives, ethics should moderate them so that they remain in balance with the many other influences on clinical judgment.
The various payment incentive methods vary in strength according to at least six dimensions, each with multiple components: 1) the type of service covered, 2) the practice setting and base reimbursement method, 3) the size of the incentive, 4) the incentive's immediacy, 5) the presence of various counterbalancing monitoring mechanisms [57], and 6) the relative generosity of the base reimbursement. These factors operate in a highly complex and interactive fashion that defies easy categorization. As the U.S. Department of Health and Human Services concluded, "[i]t is this ability to adjust factors to increase or mitigate the strengths of each different financial incentive that makes it impossible to classify, categorically, some factors as being too strong" [55].
Nevertheless, some have argued that incentive strength varies in a single dimension, making it easy to identify when a payment is more likely to create a serious conflict of interest that could lead to patient harm. Some think it is sufficient to limit the size of the "at-risk" incentive to, for example, no more than 25% of total payments [8], but incentive strength is not this simple. Compare two methods of primary care capitation. One pays a flat $8 per member per month. The other pays $14 but withholds 25% in a referral pool that is returned if spending targets are met. Although the latter payment scheme provides a large at-risk pool, the relative generosity of the base payment might engender in physicians a more conscientious approach to patient care than in the former scheme, in which the base payment is low. However, the absolute size of capitation payments cannot be regulated without displacing the core of market transactions.
This is therefore an arena in which rules can set only the outer limits for the allowable structure of incentives. Within those limits, ethics can caution physicians to adopt a self-consciously guarded state of mind. The guiding principle is that medical decisions made to increase the physician's or the corporation's wealth violate the commitment to patient loyalty, whereas decisions made to benefit patients do not. Financial incentives should cause physicians to think about what is necessary for their patients' health care and what is compatible with their own sense of professionalism, not what will increase their own income. These are general statements of the proper mental attitude. For more concrete guides, we suggest the following rules of thumb.
1. Physicians should not enter into incentive arrangements that they are embarrassed to describe accurately to their patients. This "red-faced" test does not require that physicians rather than insurers actually make this disclosure; we address actual disclosure below. Here, we suggest only that physicians' honest self-appraisals of whether they could tell their patients how they are paid helps to determine whether the incentives are excessive.
2. Maintaining an ethical system depends on both consumers and professionals having the ability to exercise choice about whether to participate in particular payment systems. Different physicians are likely to have varying tolerance for when financial incentives impose unacceptable pressures on patient loyalty. Therefore, the fact that some physicians find a payment scheme unacceptable does not mean that it is unacceptable for all physicians.
3. Physicians should be wary of incentive arrangements that are not in common use elsewhere in the market. Common use does not guarantee acceptability; however, if most other ethically minded physicians and informed purchasers are not adopting a particular incentive arrangement, there probably are good ethical, as well as practical, reasons not to. For example, capitating individual physicians for the entire range of medical services through so-called global capitation payments is generally thought to create too great a conflict of interest, whereas globally capitating large groups of providers is gaining acceptance as the preferred way to apply financial incentives to physicians [10,13,28].
4. Physicians should not steer their patients into different insurance plans according to the arrangements that will produce the most physician revenue: sick patients into fee-for-service, healthy ones into capitated plans [58]. This form of risk selection may not harm the patient, but it is an inappropriate manipulation of varying payment structures.
The traditional ideal that each patient should receive all care that might provide any benefit regardless of cost is not compatible with the role that existing insurance contracts and managed care arrangements define for physicians. Indeed, many payers, consumers, and physicians view departures from this ideal as acceptable and desirable. This reality check does not require, however, that the profession relinquish all forms of patient loyalty. Physicians can still show strong devotion to patients' interests through more moderate principles, such as 1) maximization of the health of the group of patients under a physician's care, 2) impartiality of care among members of a group of patients, 3) role separation and patient advocacy, and 4) honesty about conflicts of interest. If these principles are adhered to, physicians can truthfully say that they are doing the best they can for all of their patients within the economic constraints imposed by their patients' insurance.
We propose that devotion to the best medical interests of each individual patient be replaced with an ethic of devotion to the best medical interests of the group for which the physician is personally responsible. Physicians who compromise optimal treatment for one patient in order to do more good for other patients can still profess strong devotion to patient welfare [59]. The shift from individual health to group health is consistent with the focus of many HMOs on the health of the populations they serve and with the basis on which HMOs and providers are increasingly being judged for quality of care [60,61].
An ethic of loyalty to the immediate group is more patient-focused than are some other recommended statements of managed care ethics. Some would explicitly allow physicians to compromise patient care in order to conserve resources for others in society at large [29]. We do not go this far. Maximizing group health does not require physicians to achieve universal social justice or perfect economic efficiency. Rather, physicians should aim to do the best they can with the resources at hand for their own patients and others within the same practice group or insurance plan. This is less controversial than becoming welfare maximizers for society at large because it does not require sacrificing medical for nonmedical benefits and does not require physicians to consider the situations of those who are not their patients. Moreover, it allows physicians to differ among themselves in the principles of fairness they adopt for allocating resources within a group.
This ethic is not intended as a prescription for clinical detail. Instead, it is meant to define the physician's proper attitude and focus while particular principles of fair allocation and techniques for measuring costs and benefits are debated and refined. This principle has its strongest force when all of a physicians' patients are covered by the same insurer or when the physician receives capitation payments. Otherwise, the claim that money saved on one patient goes to help another of the physicians' patients is considerably weakened. Accordingly, from this perspective, exclusive arrangements with a single health plan are ethically preferable.
Each physician should adapt his or her clinical judgment to form a practice style that accommodates the mixture of financial incentives and resource constraints presented by his or her practice setting and patient population. This principle does not require all physicians to act uniformly across every practice setting. Rather, a pledge of impartiality within a setting requires physicians to use the same clinical criteria for all of their patients even if the patients have different insurance. In practical terms, impartiality means using plausible criteria for resource allocation that are clinically relevant and that do not differ according to patients' economic, social, ethnic, or insurance status. A goal of impartial treatment of each patient permits physicians to maintain a commitment of fidelity to each patient's medical welfare even though physicians incorporate cost-containing influences into their practice style and even though different physicians may have different practice styles.
It is unrealistic to expect perfect impartiality. In today's health care system, physicians naturally tend to favor patients with generous insurance. Recognizing this, however, only underscores the need for physicians to keep a vigilant attitude of self-awareness for biases that might affect their judgment, even in subtle ways.
There is tension, however, between this attitude of impartiality and a well-insured patient's expectation of being treated better for having purchased more expensive insurance coverage. This tension can be resolved several ways. First, it does not arise if a physician's patients are insured primarily by a single type of insurance. Second, physicians can organize into large medical groups that establish a consistent set of policies and practice guidelines to guide physicians in the group, regardless of the patient's insurance [10,56]. Third, a physician can inform patients when insurance will not pay for a treatment that the physician normally recommends. In this way, physician can distinguish between their medical treatment recommendations and the payment decisions imposed by cost-constrained insurance. In short, absolute impartiality is not ethically essential; physicians can make differential medical judgments on the basis of insurance status as long as they acknowledge the basis for the recommendation.
The previous paragraph requires more explanation of the ethical significance of role separation. In an ideal situation, ethical conflicts in managed care would be more tolerable if different responsibilities were assigned to different actors. If, for example, insurers decide that recommended care is not covered, physicians remain free to aggressively advocate for medically optimal care. This can take the form of presenting the patient's claim for benefits in the most favorable light and pressing appeals with merit. If the "system" nevertheless denies what is optimal, the physician can still claim full adherence to the traditional ethic of devotion to each patient's best medical welfare, as long as the system allows care that is at least minimally acceptable.
There are several problems with this solution. First, strict role separation removes authority and autonomy from treating physicians and relegates rationing entirely to centralized, rule-based approaches. Second, physicians may worry that aggressive patient advocacy may jeopardize their relationship with the health plan. Advocacy is made even more difficult when the physician is part of a medical group that bears full (global) capitation risk. Then, coverage determinations sometimes shift in-house to the medical group, as is common in California; in this case, physicians may function simultaneously as both advocate and judge [10,62]. Moreover, because insurance coverage is commonly defined in terms of prevailing norms of medical appropriateness ("medically necessary" or "nonexperimental"), it becomes too easy to conflate medical treatment and insurance coverage decisions, to the confusion of patients.
For these reasons, it is essential to preserve some aspects of role separation but not necessarily to insist that separation be absolute and pure. The goal is to find a proper balance between giving physicians total authority and giving them no authority to make rationing decisions.
One way is through the use of advisory practice guidelines. Explicit, evidence-based, clinical protocols designed to balance health enhancement with cost-containment goals for the patient population being served give physicians both valuable information and an external source of authority for common decisions involving routine clinical choices. However, practice protocols are better suited to the complexities of patient care if they are advisory, or at least subject to discretionary override, as is now common [63]. This compromise invokes external authority for many, perhaps most, rationing decisions, but at the same time leaves the ultimate authority with physicians. Strict role separation attempts to relegate this authority to other parties removed from the clinical front lines.
A medical group can also create an internal division of authority by having its own medical director make insurance coverage decisions for certain expensive, controversial procedures. Centralizing these decisions with a group's medical director should provide the expertise required in what are often difficult, complicated decisions and should thereby ensure greater consistency. This division of responsibility makes it easier for treating physicians to maintain their role as patient advocates while still preserving some institutional obligation to balance cost and quality.
Another way in which capitated medical groups can cope with the moral strains of managed care is to insist that they not be forced to make highly contentious coverage decisions. "Life and death" decisions are those for which the attributes of rule-based decisions-evenhandedness, visibility, and predictability-are essential. Therefore, these decisions are best made through explicit criteria or through discretionary judgment by someone with the appropriate expertise who is entirely removed from the treatment setting.
Finally, the conventional practices of peer review and obtaining second opinions can be valuable assurances of objectivity in managed care settings. Although second opinions have had only a small impact on altering utilization in a fee-for-service environment [64], they could have a much stronger role in a system dominated by bedside rationing with capitation incentives. Permitting appeals to neutral experts is an important procedural safeguard, even if actual clinical decisions are infrequently altered.
Fidelity to patients requires a strong measure of candor, especially when physicians function under a financial conflict of interest that is not obvious or commonly known, as is the case today with capitation and physician ownership interests. At present, almost no HMO candidly describes these payment methods and their incentive effects to subscribers. Indeed, one study of HMO advertisements concluded that they "tend to create a perception that services are provided in a generous and unlimited fashion... belying the economic premises of prepaid HMO practice" [65].
Health maintenance organizations should be required, and physicians should be free to disclose the nature of the financial incentive scheme for which they have contracted [66-68]. As noted above, this requires physician incentives to pass the "red-faced" test. The obligation of candor also requires physicians to answer truthfully any question about particular treatment options put to them by patients. The general nature and effect of a rationing mechanism can be sufficiently described without compromising legitimate trade secrets. All that a sensible disclosure standard requires is an unadorned description of how the plan works, how physicians are paid, and how coverage decisions are made [20,69,70]. Physicians need not constantly volunteer self-deprecating confessions about every departure from absolute perfection that might occur in a cost-constrained standard of care. Patients have widely differing desires for information about the details of clinical judgment, and there is no ethical reason why these desires should not be honored. The best way to honor them is to describe these incentives in a general fashion at the outset of the enrollment or treatment relationship and then candidly answer the questions patients ask as subsequent specific treatment decisions are made, noticing explicit and non-explicit clues to patients' concerns. Howard Brody recommends a "transparency" standard under which physicians disclose the actual thought processes that led them to a clinical decision without having to elaborate excessively on how others might have approached the same situation [71].
We hope that this set of pragmatic ethical principles will provide physicians concrete and useful guidance in maintaining loyalty to their patients' medical welfare in a radically changed economic environment and will facilitate constructive public policy discussions. In setting forth these fairly prescriptive principles and rules of conduct, we run the risk of being misinterpreted in two ways. First, although these principles and guidelines may be interpreted as mere expressions of personal opinion, they are in fact grounded in sufficient ethical theory to qualify them as acceptable normative guideposts. We stress acceptable rather than optimal because the particular configuration of an insurance plan and the structure of individual physician-patient relationships are not the kinds of high-level abstractions that permit moral certitude and absolutism.
Second, these principles should not be taken as regulatory rules when, in fact, they are ethical guideposts. For the most part, they set aspirational objectives or urge a certain attitude rather than argue for a strict rule of action. Although we would support laws that make some of these guidelines mandatory, deciding which ones should and which ones should not be enacted into law or made more overtly into a rule of action would require a somewhat different analysis, which we have not undertaken here. Those decisions are issues of applied public policy that must be resolved by the market and government mechanisms used by physicians, patients, employers, insurance plans, legislators, and regulators. At this most applied level, ethical analysis is best able to specify decision mechanisms, decision rules, and the outer bounds of acceptable decisions [72]. Within these bounds, the precise structure of particular managed care arrangements and incentives for bedside rationing are among the countless social problems that we leave to the established social processes of contracting and legislating.
Requests for Reprints: Mark A. Hall, JD, Department of Public Health Sciences, Wake Forest University School of Medicine, Medical Center Boulevard, Winston-Salem, NC 27157-1063.
Current Author Addresses: Mr. Hall: Department of Public Health Sciences, Wake Forest University School of Medicine, Medical Center Boulevard, Winston-Salem, NC 27157-1063.
Dr. Berenson: 3453 Newark Street, NW, Washington, DC 20016.
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