Professional Ethics and Professionalism
Neurologists, like all physicians and all learned professionals, are bound by a set of ethical duties to those whom they serve professionally. Physicians’ ethical duties are owed primarily to their patients and secondarily to others: the families of patients, their fellow physicians, and society. This set of ethical responsibilities has been a defining characteristic of the medical profession since its beginnings and is intrinsic to the purpose and goals of medical practice. Rules arising from these ethical duties have been codified into standards of medical professional conduct since the time of Hippocrates1 (see Appendix 3-1). These rules and duties comprise the subject of professional ethics.
Professional ethical duties of physicians exist because medicine is a learned profession dedicated primarily to the welfare of those whom physicians serve. In recognizing the benefits its citizens accrue from the services of physicians, society has granted the medical profession a high level of prestige, autonomy, income potential, and professional authority. Ethical duties of medical professionals can be conceptualized as the set of responsibilities that physicians owe their patients and society in return for society’s authorization of them to act as privileged fiduciaries for its citizens’ medical well-being. Physicians’ singular ethical responsibility is to act in the best medical interests of their patients and to practice according to the profession’s highest standards.
Under most circumstances, physicians’ professional duties to patients, families of patients, and society are mutually compatible. Ethical dilemmas arise in those instances in which ethical duties to one or more of these parties conflict. For example, what is a neurologist’s duty to protect those known to be at risk when he discovers that his patient with uncontrolled epilepsy continues to drive an automobile despite his careful counsel that doing so is unsafe and illegal? Similarly, what is a physician’s duty when his HIV-positive patient refuses to inform his wife of his diagnosis and continues to practice unprotected sexual intercourse with her? Does the physician’s duty to protect a third party known to be at risk for harm justify compromising his responsibility to maintain patient confidentiality? These dilemmas can be resolved only if clinicians understand their professional duties and analyze the goods and harms accrued by each action.
PROFESSIONALISM
Clinicians can understand professional ethics more readily by first identifying the characteristics of a learned profession. The term “profession” is derived from the Latin professio, meaning a public oath of fealty, or turning over one’s obedience and loyalty to another.2 The essence of professionalism is maintaining primacy of the concern for the welfare of those whom the professional serves above his own proprietary and personal interests. Medicine, law, and the clergy were the original learned professions. In an essay decrying the contemporary deprofessionalization of medicine,
Reed and Evans enumerated the defining characteristics of a learned profession:
Reed and Evans enumerated the defining characteristics of a learned profession:
The profession possesses a circumscribed and socially valuable body of knowledge.
The members of the profession determine the profession’s standards of knowledge and expertise.
The profession attracts high-quality students who undergo an extensive socialization process as they are absorbed into the profession.
The profession is given authority to license practitioners by the state, with licensing and admission boards made up largely of members of the profession.
There is an ostensible sense of community and mutuality of interests among members of a profession.
Social policy and legislation that relate to the profession are heavily influenced by members of the profession through such mechanisms as lobbying and expert testimony.
The profession has a code of ethics that governs practice, the tenets of which are more stringent than legal controls.
A service orientation supersedes the proprietary interests of the professionals.
A profession is a terminal occupation, that is, it is the practitioners’ singular and lifelong occupational choice.
A profession is largely free of lay control, with its practitioners exercising a high degree of occupational autonomy.3
The ethical duties of physicians qua professionals arise from these characteristics. Despite the unfortunate trend in the United States toward medical commercialization, medicine is a learned profession, not a business. All codes of professional conduct clearly require physicians to place the welfare of their patients before their own financial interests whenever the two interests conflict. Thus, the practices of kickback payments, fee-splitting, and unregulated physician ownership of free-standing facilities to which their patients are referred but in which they have no professional responsibility are not only unethical professional arrangements, they are objectionable behaviors because they lead ultimately to the commercialization and deprofessionalization of medicine.
Recognizing the need to rededicate a commitment to instilling professionalism in practicing physicians in the 21st century, the principal American and European internal medicine societies drafted Medical Professionalism in the New Millennium: A Physician Charter, a document that explains the meaning of medical professionalism and emphasizes its critical importance.4 The Charter pointed out that professionalism constituted the basis of medicine’s contract with society. It asserted three fundamental principles that underlie the ethical practice of medicine: (1) the primacy of patient welfare; (2) the principle of patient autonomy; and (3) the principle of social justice. Ten professional responsibilities of physicians flowed directly from these principles: (1) commitment to professional competence; (2) commitment to honesty with patients; (3) commitment to patient confidentiality; (4) commitment to maintaining appropriate relations with patients; (5) commitment to improving quality of care; (6) commitment to improving access to care; (7) commitment to a just distribution of finite resources; (8) commitment to scientific knowledge; (9) commitment to maintaining trust by managing conflicts of interest; and (10) commitment to professional responsibilities.5
The Charter has been endorsed by over 90 medical societies and certifying boards in the United States and Europe.6 A contemporaneous effort by the Royal College of Physicians Working Party on Medical Professionalism produced a similar document with the same intent.7 Some scholars endorsing the Charter pointed out its unintended limitations that resulted from viewing professionalism only from the physician perspective without also considering the views of society, patients, and other health workers.8 The limits placed by United States law on the practice of medicine as a learned profession have been detailed.9 Educational curricula dedicated to teaching
professionalism continue to be created by medical schools and professional societies.10 The Accreditation Council on Graduate Medical Education identified professionalism as one of six key proficiencies that must be learned by all residents in specialty training programs to maintain accreditation.11 The American Academy of Neurology enumerated the humanistic dimensions of professionalism that are desirable for practitioners of neurology.12
professionalism continue to be created by medical schools and professional societies.10 The Accreditation Council on Graduate Medical Education identified professionalism as one of six key proficiencies that must be learned by all residents in specialty training programs to maintain accreditation.11 The American Academy of Neurology enumerated the humanistic dimensions of professionalism that are desirable for practitioners of neurology.12
ETHICAL DUTIES TO PATIENTS
Professional medical ethics focuses principally on the set of duties physicians owe their patients. This set of ethical obligations encompasses all the physician’s responsibilities related to the initiation, maintenance, and discontinuation of the patient-physician relationship.13
The Patient-Physician Relationship
The patient-physician relationship has been modeled three ways: (1) as a covenantal relationship in which physician beneficence to the patient is a cardinal feature; (2) as a fiduciary relationship in which the physician as professional has a duty to grant primacy to the patient’s interests in clinical decision making; and (3) as a contractual relationship in which, physicians have implicitly (and sometimes explicitly) agreed obligations to their patients.14 The physician’s contractual obligation, based on the fact that both the physicians and patients have agreed to be parties to an unwritten, implied contract, requires the physician to practice competently and to respect the patient’s confidentiality, autonomy, and welfare. The patient also has implied reciprocal duties of honesty in disclosing symptoms and relevant medical history and of fidelity in cooperating with the agreed-upon treatment plan.15 Patients and physicians thereby become partners who share the a goal of improving and maintaining the patient’s health.16 The patient has an additional personal responsibility to maintain her own health by adopting a healthy lifestyle.17 A critical component in the relationship is accountability. Ezekiel and Linda Emanuel have thoughtfully analyzed the various elements of accountability in health care and have devised a stratified model that balances physicians’ professional, political, and economic accountability to patients, employers, payers, professional associations, investors, and the government.18
Marc Rodwin defined the concept of the fiduciary. The fiduciary is “a person entrusted with power or property to be used for the benefit of another and legally held to the highest standard of conduct.” Rodwin cited eight criteria of fiduciaries: (1) they advise and represent others and manage their affairs; (2) they have specialized knowledge or expertise; (3) their work requires judgment and discretion; (4) the party the fiduciary serves cannot monitor the fiduciary’s performance; (5) the relationship is based on dependence, reliance, and trust; (6) fiduciaries must be scrupulously honest; (7) they must not divulge confidential client information; and (8) they may not promote their own interests or those of third parties.19 A physician’s fiduciary role imparts ethical duties to maintain the primacy of the patient’s interests.
Within certain bounds, the physician is free to initiate and to discontinue the patient-physician relationship. The appropriately trained physician should not decline to provide medical care for a patient merely on the basis of the patient’s age, race, nationality, religion, gender, or sexual orientation. Once the relationship has been initiated, the physician has an obligation to continue to provide needed medical care until one of the following outcomes has occurred: (1) the patient ends the relationship; (2) the physician directs the patient’s care back to the referring physician or to another physician; or (3) the physician determines that no further medical care is necessary or desirable. If the physician chooses to end the relationship and the patient requires or desires further medical care, the ethical duty of fidelity obliges the physician to help assure the continuity of care by assisting the patient in obtaining care from another physician.20
A physician’s decision not to care for a patient should not be based solely on the
patient’s disease (assuming the competence to treat) or on a falsely exaggerated perception of personal medical risk. Physicians entering the medical profession make a moral commitment to care for sick patients. This commitment entails willingness to assume some degree of risk to one’s health. Throughout the history of medicine, physicians have risked contracting communicable diseases from their patients such as tuberculosis, hepatitis, and plague. Most recently, this issue has resurfaced concerning the care of patients with human immunodeficiency virus (HIV) infections. Because HIV infection is a communicable and often fatal disease that can be contracted from a patient under certain circumstances, the question of whether a physician has the duty to treat HIV patients has arisen.21 This topic is considered further in chapter 18.
patient’s disease (assuming the competence to treat) or on a falsely exaggerated perception of personal medical risk. Physicians entering the medical profession make a moral commitment to care for sick patients. This commitment entails willingness to assume some degree of risk to one’s health. Throughout the history of medicine, physicians have risked contracting communicable diseases from their patients such as tuberculosis, hepatitis, and plague. Most recently, this issue has resurfaced concerning the care of patients with human immunodeficiency virus (HIV) infections. Because HIV infection is a communicable and often fatal disease that can be contracted from a patient under certain circumstances, the question of whether a physician has the duty to treat HIV patients has arisen.21 This topic is considered further in chapter 18.
There is a clear consensus on the physician’s ethical duty to treat HIV patients. Medical societies, including the American Medical Association, the American College of Physicians, the Infectious Diseases Society of America, and the American Academy of Neurology, as well as the Surgeon General of the United States, have stated this responsibility formally.22 Physicians have an ethical duty to treat sick patients, even if doing so exposes them to risk, because of the implicit and explicit moral commitment they made when entering the medical profession. Rather than refusing to care for HIV patients, each physician should take appropriate “universal precautions” to minimize his own health risks in treating patients who may have communicable diseases.23
Physicians need to understand and respect the health-care values and preferences of their patients. Physicians can take a “values history” in which they ask specific questions to better understand patients’ treatment wishes. The values history can be especially useful for surrogate decision makers when they attempt to apply their understanding of the patient’s values to a particular clinical situation that may have been unanticipated by the patient.24 Patients’ values and treatment preferences may be quite different from those of physicians and patients’ surrogate decision makers. One limitation of relying on an established values history is that patients’ values may change with time and circumstance. Nevertheless, in their attempt to help patients reach the correct treatment decisions, physicians should try to understand and respect patients’ personal values.25
One controversial question that arises occasionally surrounds a physician’s duty to provide or refer a patient for medical services that are lawful but violate the physician’s moral or religious beliefs. Most people believe that physicians should not be forced to perform medical procedures with which they have moral opposition. But at the same time most people believe that patients have a right for access to legal treatments.26 Many hospital regulations provide a “conscience-clause” mechanism for physicians or other health professionals to opt out of providing services, such as abortion, about which they have moral qualms. Many, but not all, hospital regulations also provide a mechanism for referring the patient elsewhere for these services. Farr Curlin and colleagues recently polled physicians about their judgments of the balance of ethical rights and obligations in such cases.27 They found that 63% of physicians believed it was ethically acceptable to explain their moral objections to patients, 86% believed they were obligated to present all options, and 71% believed they were obligated to refer the patient elsewhere for desired services. Physicians who were male, religious, and morally opposed to the requested treatment were less likely to feel these obligations.
Confidentiality.
Physicians must respect the confidentiality and privacy of patients. Information conveyed to a physician in the course of treating a patient should not be discussed publicly without the patient’s consent. Similarly, the patient’s medical record is a confidential document that should not be shared with a third party without the patient’s consent unless required by law. If the law requires sharing the confidential document, the patient should at least be notified. The patient deserves access to the information contained in the medical record.
Confidentiality of medical records is becoming increasingly difficult to maintain because
of the large number of allied personnel in hospitals who now have access to the record. Further, the copious photocopying and external distribution of records necessary for third-party health-care reimbursement also make confidentiality harder to maintain because the protection of records no longer can be assured once they leave the institution.28
of the large number of allied personnel in hospitals who now have access to the record. Further, the copious photocopying and external distribution of records necessary for third-party health-care reimbursement also make confidentiality harder to maintain because the protection of records no longer can be assured once they leave the institution.28
The electronic medical record, now commonplace in many offices and most hospitals, improves efficiency but introduces a new set of confidentiality concerns. Currently, a huge range of confidential records can be accessed from any computer simply by gaining access to the system. This ease of access had created the need for enhanced electronic privacy systems to be installed.29 Electronic mail (e-mail) now provides physicians and patients with a rapid means of communication but also raises confidentiality concerns that require vigilance.30 Similarly, the internet has been used to communicate confidential patient information for clinical and research purposes, a field called “e-medicine.”31 In all instances, physicians must exercise constant vigilance to protect patients’ confidentiality and privacy, including following institutional guidelines to protect the privacy of records in electronic media. Institutions can create secure internet links for patient-physician communication. Patients should be warned that there are categorical limits to the degree of protection of their confidentiality that physicians and systems can guarantee.
In response to concerns about the increasing difficulty in maintaining the confidentiality and privacy of medical records, the United States Congress enacted legislation in 2003 under the Health Insurance Portability and Accountability Act (HIPAA) creating the “Privacy Rule.”32 The “HIPAA regulations” (as they are generally known) comprise a compendium of detailed rules governing every conceivable aspect of using paper and electronic medical records. Its most basic rule for maintaining confidentiality is testing the “need to know.” Only those persons or agencies with the need to know are permitted access to patient medical information. Primary or consulting clinicians caring for a patient obviously satisfy the need to know rule. But anyone else who requests or sees information without a demonstrable need to know may be violating the regulation.
The HIPAA rules are so detailed and complex that many institutions have created compliance officers to study and understand them, to train personnel about the rules, and to assure they are followed consistently and faithfully. Their complexity has led to widespread misunderstandings of the actual provision of the HIPAA regulations.33 Because of the fear of possibly violating a regulation and incurring the mandated punishment, some medical and office personnel have interpreted HIPAA regulations in an unnecessarily rigid way. Most practicing physicians have witnessed unfortunate instances in which the incorrect or overzealous application of the HIPAA regulations produced harm to the very patients they were intended to protect by unjustifiably restricting appropriate medical communication among physicians and medical office personnel or the patient’s family members.
Despite their complexity, there are gaps in the rules themselves, so situations arise that require interpretation. These gaps also offer opportunities for misinterpretation that can perversely impede proper physician-to-physician communication and create harms to patients. In some cases, physicians or office personnel may consider disclosing information that could violate the regulations to facilitate proper patient care. Bernard Lo and colleagues offered the following series of ethical guidelines for physicians and others to justify such incidental disclosures of medical information: (1) the communication should be necessary and effective for good patient care; (2) the risks of breaching confidentiality are proportional to the likely benefits; (3) the alternative means of communication are impractical; and (4) the communication practice should be transparent.34 These commonsense guidelines should be followed in questionable cases. In general, an ethically correct action will be legally defensible.
Secrets.
Physicians may be told unsolicited “secrets” about patients from well-wishing families and friends, with the admonition,
“Don’t tell him I told you this.” Examples of such secrets include a patient’s covert drinking of alcohol, taking of illicit drugs, or refusing to follow prescribed medical therapy. Despite the admonition, physicians are not ethically obligated to withhold such “secrets” from their patients. Physicians can respond by encouraging the third party to speak directly to the patient about the matter. They also can urge the third party to encourage the patient to speak about it to the physician. Otherwise, the physician should inform well-wishing friends that he has an ethical obligation to disclose the information he has received to the patient, although he does not necessarily have to say from whom this information came.35
“Don’t tell him I told you this.” Examples of such secrets include a patient’s covert drinking of alcohol, taking of illicit drugs, or refusing to follow prescribed medical therapy. Despite the admonition, physicians are not ethically obligated to withhold such “secrets” from their patients. Physicians can respond by encouraging the third party to speak directly to the patient about the matter. They also can urge the third party to encourage the patient to speak about it to the physician. Otherwise, the physician should inform well-wishing friends that he has an ethical obligation to disclose the information he has received to the patient, although he does not necessarily have to say from whom this information came.35
Communication.
Physicians have the ethical obligation to communicate effectively with patients. Although effective communication is particularly important for obtaining consent, it is a critical component of the patient-physician relationship. Timothy Quill has enumerated several barriers to physician-patient communication that the clinician should identify and mitigate by using effective communication skills. Such barriers include: (1) verbal-nonverbal mismatch, in which the words a patient uses to answer a question are opposed diametrically and negated by his gestures; (2) cognitive dissonance, in which the patient “protests too much” that an obviously emotional factor is irrelevant to his problem; (3) unexpected resistance, in which the physician consciously or subconsciously overreacts to the patient’s complaint; and (4) treatment inefficacy, in which treatments expected to be effective are ineffective for no apparent reason. To address these barriers, physicians need to acquire the basic communication and psychotherapeutic skills of acknowledgment, exploration, empathy, and legitimation.36
There are subconscious factors in the mind of the physician that can impact on the success of the patient-physician relationship. Novack and colleagues showed how increasing personal awareness of physicians about these factors improved the effectiveness of patient care. They suggested that physicians should become more aware of their beliefs and attitudes, their feelings and emotional responses, their approach to challenging clinical situations (such as mistakes), and the importance of self-care (such maintaining an optimal balance between their personal and professional lives).37 Several scholars have explained how the patient-physician relationship could become more therapeutic if the goal of the partnership could be shifted toward a greater patient orientation, a doctrine known as “patient-centered medicine.”38
Physicians have the ethical duty to communicate effectively with consultants to whom the patient has been referred. Referring physicians should provide adequate information to permit consultants to identify the problem in question accurately. In turn, consultants should be clear and punctual in communicating their opinions to the referring physician. Facilitating this dialogue is an ethical duty because it promotes good patient care.39 Consultants should be wary of informal “curbside consultation” in which they may be asked their opinions without an adequate opportunity to fully review the details of the case or examine the patient. In curbside consultations, generally it is safer to dispense factual information than opinion because the opinion may turn on assumptions (such as the accuracy of alleged findings on neurological examination) that may be erroneous.40
Public communication is another area in which physicians have ethical duties. Physicians should be cautious about providing medical opinions and specific advice during teleconferences and lectures, especially when they have not examined the patient and may have no relationship with the patient. The American Academy of Neurology Ethics, Law & Humanities Committee published a practice advisory to neurologists summarizing their ethical responsibilities when they publicly promote pharmaceuticals or medical equipment to patients.41
Empathy.
Physicians should respect patients as persons and treat them with respect, courtesy, honesty, conscientiousness, and empathy. The precise meaning of empathy, however, remains a subject of debate.42 Outside of medical practice, empathy refers to a mode of
understanding of another person’s suffering that involves emotional sharing and an affective resonance with the other person’s feelings.43 Yet, from the time of Sir William Osler’s famous 1912 essay Æquanimitas in which he argued that by remaining emotionally detached from patients suffering, physicians could “see into” and “study” their patient’s “inner life,”44 the medical definition of empathy has restricted it to a cognitive state and not an affective state.
understanding of another person’s suffering that involves emotional sharing and an affective resonance with the other person’s feelings.43 Yet, from the time of Sir William Osler’s famous 1912 essay Æquanimitas in which he argued that by remaining emotionally detached from patients suffering, physicians could “see into” and “study” their patient’s “inner life,”44 the medical definition of empathy has restricted it to a cognitive state and not an affective state.
Organized medicine has followed Osler’s advice. For example, a working group of the Society for General Internal Medicine defined empathy as “the act of acknowledging the emotional state of another without experiencing that state oneself.”45 Thus they distinguished empathy as “detached concern” from sympathy, in which the sympathetic person joined in the affective experience of the other person’s suffering. But experienced physicians know that only by being engaged emotionally (to some extent) in another person’s suffering can they be truly empathetic.46
The resolution of the affective-cognitive tension in empathy is for physicians to reach a balance permitting a limited degree of emotion that generates true empathy but creating enough detachment to allow the physician to treat the patient objectively.47 In a frequently cited article, Howard Spiro asked if empathy was an innate characteristic or if it could be taught.48 Fortunately, both the affective and cognitive components of empathy are amenable to learning. First, physicians can learn techniques to identify, understand, and regulate their own emotional responses to patient suffering to protect themselves and their objectivity.49 Second, physicians can learn communications skills to project their understanding of the patient’s feelings, even if they feel nothing themselves.50 Suchman and colleagues showed that the basic empathic communication skills are recognizing when emotions are present but not directly expressed, inviting exploration of these unexpressed feelings, and effectively acknowledging these feelings so the patient feels understood.51
The physician-patient relationship becomes therapeutic because the physician treats the patient with kindness, respect, compassion, empathy and caring. Francis Weld Peabody epitomized the essence of ethical medical care in 1927 when he famously wrote: “One of the essential qualities of the clinician is interest in humanity, for the secret of the care of the patient is in caring for the patient.”52 In Love in the Ruins, the American physician-novelist Walker Percy explained the linkage between empathy and a physician’s self-knowledge, “If you listen carefully to your patients, they will tell you not only what is wrong with them, but also what is wrong with you.”53
Impediments.
A patient has the right to decline a physician’s suggested treatment plan, but a physician has no correlative obligation to provide a specific form of treatment at a patient’s request, particularly if she believes that the treatment is not indicated or can be harmful. Sick patients may make requests for unorthodox treatments that are unproved, expensive, and potentially dangerous. In this instance, the physician has the duty to investigate the scientific basis of the treatment and the evidence for its efficacy. If this investigation reveals that the treatment is of no value, she should discuss these findings with the patient and dissuade the patient from pursuing such treatment. Although a chronically ill or dying patient may reason, “What have I got to lose?” he has much to lose. The fact that he may be beyond help does not mean that he is beyond being hurt. Harms that can be sustained from undergoing unorthodox treatments include pain, expense, physical side effects, displacement of possibly effective therapies or participation in a scientific treatment protocol, and false hope.54 Physicians are ethically bound not to prescribe treatments that have predictably harmful net effects. Refusal to provide requested treatment on the grounds of medical futility is discussed in chapter 10.
Physicians at times may find themselves caring for a “hateful patient.” Hateful patients include those who are antagonistic, self-destructive, manipulative, excessively dependent, poorly compliant, excessively demanding, or generally difficult to communicate with and care for.55 “Hateful” refers to an affective
response of physicians evoked by caring for such patients. In most circumstances, physicians have the right to discontinue the patient-physician relationship if they feel unable to provide proper care for such patients. The American Medical Association outlined the criteria for a physician to refuse to care for a noncompliant patient: (1) the patient is responsible for the noncompliant behavior because patients should not be punished for behavior that is beyond their control; (2) the treatment in question should not be lifesaving so patients are not required to pay for bad behavior with their lives; and (3) treatment of the patient would involve a clear and significant compromise of the care of other patients.56
response of physicians evoked by caring for such patients. In most circumstances, physicians have the right to discontinue the patient-physician relationship if they feel unable to provide proper care for such patients. The American Medical Association outlined the criteria for a physician to refuse to care for a noncompliant patient: (1) the patient is responsible for the noncompliant behavior because patients should not be punished for behavior that is beyond their control; (2) the treatment in question should not be lifesaving so patients are not required to pay for bad behavior with their lives; and (3) treatment of the patient would involve a clear and significant compromise of the care of other patients.56
Clinicians who continue to care for such patients, however, may find it a challenging and fulfilling experience because many difficult patients previously have been unable to relate successfully to other physicians. Expectations of desired therapeutic results in these patients should be lowered, and the physician satisfied with a reduced therapeutic relationship, but able to take consolation in helping a person whom other physicians have rejected.
Personal Conduct and Misconduct
The physician has a duty to practice competently and to restrict his practice to within the scope of his training, experience, and ability. Most states that require continued medical education for physician relicensure base this requirement largely on the clinician’s ethical duty to maintain a practice according to the prevailing standards. Patients should be referred to a consultant if the referring physician is not competent to provide the specialized care. Physicians should refer patients only to competent consulting physicians.
Patients are vulnerable because of illness, fear, and dependency when they request the services of physicians. Physicians occupy a position of power in the patient-physician relationship and have a duty to exercise that power responsibly and in the patient’s interest. In their powerful position, physicians must never exploit or otherwise abuse patients physically, sexually, psychologically, or financially.
It is unethical for a physician to have a sexual or romantic relationship with a current patient, even with the patient’s consent. The propriety of conducting a sexual or romantic relationship with a former patient is controversial. There would be little problem for an emergency physician dating a patient he had seen once professionally several years ago for a sore throat. But the American Psychiatric Association ruled that it is always unethical for a psychiatrist to have a romantic relationship with a former patient because of the exploitation potential resulting from the previous professional relationship. The American Medical Association Council on Ethical and Judicial Affairs (AMA CEJA) opined that romantic relationships with former patients become unethical whenever “the physician uses or exploits trust, knowledge, emotions, or influence derived from the previous relationship.”57 Additionally, the AMA CEJA advises physicians to “refrain from sexual or romantic interactions with key third parties … [such as] spouses, partners, parents, guardians, and proxies of their patients … when it is based on the use or exploitation of trust, knowledge, influence, or emotions derived from a professional relationship.”58
Physicians are entitled to charge patients or their insurers reasonable professional fees for services rendered to them or on their behalf. Compensation should be restricted to services actually delivered or supervised. It is unethical for physicians to receive a fee for making a referral (fee-splitting) or to obtain a commission from anyone for an item or service ordered for a patient (kickback) because these situations place the financial gain of the physician ahead of the welfare of the patient. Physicians should not order tests or charge patients or their insurers for inappropriate or unnecessary care or for care that has not been performed.
Physicians also are responsible for maintaining their own personal health to permit them to provide optimal care to patients. Chronically unhealthy practices, such as alcohol or other drug abuse, acute conditions such as influenza and sleep deprivation, and the emotionally spent state of “burnout” (discussed later in this chapter) may impair
their ability to provide their patients with proper care.
their ability to provide their patients with proper care.
Conflicts of Interest
Conflicts of interest are inherent in the contemporary practice of medicine because of the complex relationships physicians have evolved with hospitals, universities, employers, insurers, health maintenance organizations (HMOs), managed care organizations, pharmaceutical companies, and medical equipment manufacturers, in addition to their traditional relationships with patients.59 Michael Davis defines a conflict of interest as follows: “A person has a conflict of interest if: (a) he is in a relationship with another requiring him to exercise judgment in the other’s service; and (b) he has an interest tending to interfere with the proper exercise of judgment in that relationship.”60 Conflicts of interest are a problem in medicine both because they demote the primacy of the patient’s interests, thereby straining the patient-physician relationship,61 and because their presence diminishes the overall confidence of patients and the public in the medical profession. I discuss the pervasive professional conflicts of interest in research in chapter 19.
Some scholars distinguish between conflicts of interest and conflicts of obligation by emphasizing the financial dimensions of the former and the duty-based obligations of the latter. I consider them together because they form a spectrum and they are analyzed and resolved similarly. Some scholars distinguish further between a real conflict, a potential conflict, and an apparent conflict. Although real conflicts generally are the most serious problem, apparent conflicts also are a problem because they diminish patients’ confidence in physicians’ judgments.
Dennis Thompson defines a financial conflict of interest as “a set of conditions in which professional judgment concerning a primary interest (such as a patient’s welfare or the validity of research) tends to be unduly influenced by a secondary interest (such as financial gain).”62 In practical terms, a conflict exists when the physician stands to profit personally from a medical decision and the profit motive consciously or subconsciously affects the objectivity of the decision. Surveyed patients are concerned about physicians’ financial incentives, particularly when they involve incentives to decrease the availability of expensive testing and treatment.63
The ethical resolution of a conflict of interest is straightforward: the patient’s interest is paramount, so physicians should attempt to resolve all such conflicts in the interests of patients. Their secondary (usually financial) interest should not be permitted to dominate or appear to dominate the primary interest of quality medical care. A general test of the ethical nature of a conflict is posed by this question: would the physician be willing to permit public knowledge of the financial relationship in question and to advocate it? Michael Camilleri and Denis Cortese recently provided useful guidelines for physicians and clinical investigators to manage individual and institutional conflicts of interest in clinical practice.64
Self-Referral.
A common example of a conflict of interest in the practice of neurology is “self-referral,” the referral of a patient to a freestanding neuro-imaging center, clinical neurophysiology laboratory, or rehabilitation center partially or fully owned by the neurologist but in which the neurologist has no professional responsibilities. Physician-owned ambulatory-surgery centers, diagnostic testing facilities, and specialty hospitals now are common in the United States and growing at annual rates of 6.1%, 10.4%, and 20.3% respectively.65 A neurologist’s decision about the necessity of a magnetic resonance scan for the patient with a headache or electromyoneurography for the patient with hand numbness may be influenced consciously or subconsciously by the fact that he stands to profit more from the performance or reading of these laboratory tests than from the office visit.66
Patients may derive advantages from self-referral, however, that may justify the practice in some cases. Often it is more convenient and less expensive for the patient to receive a test in an office than in a hospital. Because communication between physicians in self-referral situations often is more efficient, results are more quickly known. Some freestanding
diagnostic and treatment facilities can provide state-of-the-art care less expensively than hospitals because of lower overhead resulting from treating only insured patients whose conditions have favorable reimbursement rates and the increased operational efficiency resulting from a single focus of care. Finally, facilities of the same high quality may not be available to patients outside the self-referral sphere.
diagnostic and treatment facilities can provide state-of-the-art care less expensively than hospitals because of lower overhead resulting from treating only insured patients whose conditions have favorable reimbursement rates and the increased operational efficiency resulting from a single focus of care. Finally, facilities of the same high quality may not be available to patients outside the self-referral sphere.
Conflicts of interest from self-referral are seductive and quickly can evolve into commonplace practices. In self-referral fee-for-service settings, neurologists may develop too low a threshold for ordering discretionary but expensive laboratory testing such as electromyography, electroneurography, electroencephalography, magnetic resonance scans, and computed tomography scans. The majority of patients referred to such practices often undergo one or more of these tests. The neurologist may convince himself that conducting such a thorough laboratory evaluation is providing the best and most comprehensive medical care for a patient. Controlled studies comparing the incidence of radiological tests and radiation therapy ordered in self-referral settings compared with those ordered in non-self-referral, fee-for-service settings have shown that the frequency is greater in self-referral settings.67
Resolution of this conflict of interest has three requirements. First, neurologists should not refer patients to free-standing diagnostic or treatment facilities in which they have a financial investment but no direct patient care responsibilities unless there is no other choice in the community.68 There are now Medicare and Medicaid legal sanctions regulating or prohibiting self-referrals.69 Second, neurologists should closely adhere to the indications of clinical practice guidelines published by medical societies when ordering or performing any laboratory tests for which they stand to gain financially. Finally, neurologists should disclose all such financial arrangements to patients.70
The Pharmaceutical Industry.
A second common conflict of interest involves the relationship of the physician to the pharmaceutical industry. The pharmaceutical industry currently provides financial support to the medical profession by: (1) defraying the cost of medical journals through advertisements and block grants; (2) sponsoring educational conferences through speakers’ bureaus, grants to conference organizers, or direct cash payments to resident physicians to defray travel expenses to these conferences; (3) paying physicians with direct gifts and travel junkets to attend educational conferences; and (4) sponsoring clinical pharmacological research.71
Financial support from the pharmaceutical industry has grown to such as extent that currently they pay over 50% of the cost of continuing medical education (CME) in the United States. Influential leaders of American medicine have decried this situation because it blurs the distinction between impartial education and targeted marketing and have called for a separation of CME from pharmaceutical company control.72 Of course, the money for all these pharmaceutical company-sponsored activities ultimately comes from sales to patients or insurers of the companies’ pharmaceutical products.
Eric Campbell and colleagues recently provided survey data on the extent of relationships between physicians and the pharmaceutical and medical device manufacturing industry. They found that 94% of physicians reported some type of relationship with the pharmaceutical industry; most of these involved receiving free meals in the workplace (83%) or drug samples (78%). Over one-third (35%) reported receiving reimbursements for costs associated with professional meetings or continuing medical education. Over one-quarter (28%) reported receiving income for giving lectures, consulting, or enrolling patients in clinical trials. Cardiologists were more than twice as likely as family practitioners to receive payments but family practitioners met more frequently with sales representatives. They wondered if their data were skewed by underreporting because of social desirability bias.73
Physicians are heavily influenced by physician-peer “educational” lectures and presentations, and physician-authored published review articles that have been assisted or ghost written by pharmaceutical or industrial staff.74
Many physicians serve on speakers’ bureaus of pharmaceutical companies and receive sizable compensation for lectures to peers. Pharmaceutical companies retain “influence leaders” from academia to lecture at community hospitals and local medical societies to educate practicing physicians. Many of these lectures are high-quality, objective, and unbiased, but some are tantamount to marketing, particularly when discussing the newest off-label uses of prescription drugs that pharmaceutical sales representative are banned by FDA regulations from discussing themselves.75 The American Academy of Neurology Ethics, Law & Humanities Committee outlined the ethical obligations of neurologists who are retained by pharmaceutical companies as spokesmen or advocates to patients.76
Many physicians serve on speakers’ bureaus of pharmaceutical companies and receive sizable compensation for lectures to peers. Pharmaceutical companies retain “influence leaders” from academia to lecture at community hospitals and local medical societies to educate practicing physicians. Many of these lectures are high-quality, objective, and unbiased, but some are tantamount to marketing, particularly when discussing the newest off-label uses of prescription drugs that pharmaceutical sales representative are banned by FDA regulations from discussing themselves.75 The American Academy of Neurology Ethics, Law & Humanities Committee outlined the ethical obligations of neurologists who are retained by pharmaceutical companies as spokesmen or advocates to patients.76
Under this influence, physicians may make decisions about prescription drugs that are not necessarily in the best interests of their patients, producing an inherent conflict of interest. Accepting gifts, favors, and other rewards may unduly influence physicians because of the personal gain they accrue. Although most physicians would claim immunity to this influence (“They can’t buy me”), the giving of gifts creates good will and induces a sense of reciprocal obligation, thereby producing the effect pharmaceutical manufacturers desire.77 A survey of attending and resident physicians showed that a majority of both groups believe that their integrity could be compromised by receiving such gifts.78
Despite physicians’ nearly ubiquitous claims of immunity to such influence, there are clear data showing powerful effects. A recent study showed a positive correlation between the tangible benefits that university hospital physicians received from a pharmaceutical company and the likelihood that the physicians would recommend the company’s medication on the hospital formulary list. Tangible benefits included accepting money to attend or speak at conferences and performing pharmaceutical company-sponsored research. The study also revealed a correlation between the likelihood of the physician’s adding a given pharmaceutical company’s drug to the hospital formulary and the fact that a company’s pharmaceutical representative and this physician had previous personal contact.79 A study of medical students’ exposure to pharmaceutical marketing showed a powerful effect on their attitudes.80 Another study showed that restricting resident exposure to pharmaceutical sales representatives influenced future attitudes and behaviors of physicians.81 Clinical trial investigators supported by the pharmaceutical industry are more likely to prescribe products of the sponsoring firm.82
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