"The Religion & Society Report"    Online Edition    [SwanSearch]
     

Volume 23  Number 06

 

September 2006

 

  

The Commodification of Medicine

How Commercialism Is Robbing Medicine of Its Soul

By G. Steven Suits, MD*

*G. Steven Suits, MD is medical director of the emergency department at Kershaw County Medical Center, Camden, South Carolina. He also serves as a clinical ethics consultant and adjunct professor of ethics at Erskine Theological Seminary.

Make certain that your first and main intention is the saving of men’s lives and health.  Put this before any consideration of profit or personal honor, both of which are also important, but only as secondary concerns in comparison to human lives.  If money is your primary purpose, you reflect poorly on your profession, which, as you practice it, cannot bring any higher honor or consolation than your intentions will support.  It is the end more than the means that ennobles or corrupts men.  If profit is your main goal, it will not matter to you if you achieve it by treating men or cattle, or by less exalted means.  You may indeed bring very great benefit to those whose lives are saved through your efforts...If you seek to honor and please God, to do public good, and to save lives, and this is really your primary purpose, then you serve God in your profession.  Otherwise, your efforts are merely self-serving.  Be careful that you don’t fool yourself at this point into thinking that the good of others is your goal and more important to you than profit merely because you know it is better and that it ought to be your goal.[1]

The fiduciary nature of the physician-patient relationship has been relegated to the dust bins of history, rendered worthless by the charges of paternalism and by the veneration of patient autonomy.  Applicants to medical schools in the United States frequently give financial reasons for why they want to be doctors.  One particular applicant stated her reasons: it is an interesting job and pays good money.  She was accepted, because she was a “realist.”  Not only has self-interest become the raison d’etre for many in medicine, its purveyors are now rewarded for such a way of thinking.  Whether the ever-advancing commodification of medicine is a cause or result of this self-interest approach to patient care is open to debate, but its strong effect on medicine is clearly seen in developments over the past quarter century.

Commodification and Physician/ Patient Relationships  

At one time in Western culture, a parental structure of society was dominant.  This applied to the individual’s relationship to the State as well as to a profession such as medicine.  This framework, which recognized the fiduciary role of those who concerned themselves with the best interests of others, has given way to a contractualist understanding that does not organize social structures in terms of a familial relationship.  The death of “paternalism” brings a focus on shared ends and shared goals, orienting away from the past and toward a future of mutual choosing.  The contractualist sees life as more and more contingent, working to adapt to it by the making of choices, directing himself toward the novel (which he elevates to a place of admiration).  This contractualist outlook now pervades our understanding of the State (deriving from a “social contract”), the workplace that we choose (over and over again), and our choice of a physician.[2]  The genuine family physician has given way to “interchangeable” doctors.  Physicians and patients meet as strangers.  Doctors agree to exchange services for money.  And by doing so, they protect themselves from facing the crisis that a fiduciary experiences because he bonds to his patient as a “surrogate” family member.

A fiduciary understanding of the physician-patient relationship makes a medical doctor into a physician, a professional.  Though the best of what it means to be paternal is incorporated into this way of thinking, it is not paternalistic.  The best interests of the other, not the self, are imperative to the fiduciary.  The loss of this conception of the professional comes at the cost of public esteem.  Respect for medicine is at a low point.  When a doctor is a contract partner, he naturally looks out for his own best interests, not those of his patients.  One result of this is a lack of trust by the patient for the physician.  Trust is the “quintessential element” in an appropriate relationship between a professional and his protégé.[3]  It is not that there can be no trust in a contractualist relationship; any such trust is based on recognizing that the seller (doctor) might see it in his best interest to satisfy the customer (patient).  This is a contingent trust at best, but all that is available when doctors and patients contract with one another.  “The unique relationship of trust and understanding between doctor and patient...will suffer immeasurably if it is seen only in commercial terms.”[4]  The decrease in trust by patients toward physicians, along with other factors, has demoralized physicians.  Decreased trust makes the physician and the patient moral strangers.  “As moral strangers, the physician and patient must be extremely careful in their relationship with each other.  There is no longer any room for assumptions as patient meets physician and as physician meets patient.”[5]  Suspicion, distrust and hostility characterize the physician’s encounter with patients on an increasingly frequent basis.  Calls for new patient — physician, patient — provider, or patient-caregiver relationships (instead of physician-patient relationships) suggest that “traditional” approaches manipulated the patient in a heavy-handed or paternalistic manner.  In reality, a contractualist relationship puts patients at risk of manipulation.

When physicians approach their encounter with patients from a mindset of self-interest, hubris characterizes the meeting.  In a fiduciary role, the physician approaches the patient in humility.  Too often the humility that formerly accompanied the privilege of treating patients has been sacrificed upon the altar of self-aggrandizement.  Nowhere is the exchange of hubris for humility seen more clearly than in the establishment of “Free Clinics” by local physicians, wherein they volunteer their time to “serve” the indigent.  What is ignored is the fact that if they would see these indigent patients in their own offices there would be no need for the free clinics.  Free clinics serve the hubris of doctors, not indigent patients. They are set up to keep certain “unworthy” patients away from doctors’ offices, not to provide an otherwise unavailable means for providing them treatment.  In a country with a market-driven health care system, such condescension by physicians ought not to surprise anyone.  Why would a market-oriented physician incur profit-reducing expenses providing services to the indigent?

When a market provides the context for the practice of medicine, the incentive to do so becomes self-aggrandizement.  No longer is caring for the suffering of others in a fiduciary manner providing the framework for patient “care.”  In a contractual model, it takes little to lead someone, even a doctor, to avoid or neglect those who are suffering; these are the “natural” (or at least most common) responses to the suffering of others with whom there is no kinship.  The self-serving nature of the contractual relationship does not provide adequate reason to tend to the suffering of others with care, only with provision of services as laid out in the contractual relationship.  The intermingling of clinical judgment and financial concerns erodes the ideal of medicine as a profession. 

The loss of a fiduciary understanding of the physician-patient relationship also has reduced the patient’s role to the amoral purchasing of goods and services.  Acquiescing to the charges of paternalism, doctors are reticent to hold patients responsible for their own health.  A market-driven approach to medicine emphasizes the patients’ rights, but not the patients’ responsibilities.  Not taking a person’s virtues and vices seriously de personalizes him.  When we ignore the graciousness or viciousness of his responses to affliction, we act and reflect as though the patient does not have a moral life.  The fallout of this demoralizing of patients’ responsibility for their own health is seen in the multiple “report cards” on the health of Americans.  Obesity and all its repercussions (hypertension, diabetes, heart disease, etc.) will not be addressed until and unless doctors re-introduce the concept of patient responsibility.  In the customer-satisfaction mindset of commercialized medicine, however, this is unlikely.

When patients become customers, they seek a doctor to provide for their wants as well as their needs.  In a sensate culture such as ours, patients thrive on those things that stimulate the senses.  Such a culture is hedonistic, encouraging self-indulgence.[6]  Because of this, the predominant approach to seeking health care is utilitarian and the end desired is maximizing pleasure and minimizing displeasure.  This has pushed the concept of the physician as the reliever of suffering and the dispenser of pleasure, rather than as the healer.  “Customer” satisfaction demands that physicians give the patient what he wants in order to keep him coming back to purchase more services.  Existentially, patient demands for narcotics and other hedonistic prescriptions[7] declare their sensate origins.

Doctors bemoan their loss of control in health care, but fail to realize that it is largely because of their adoption of a medicine-as-commodity framework for practicing medicine.  Throughout the history of the profession of medicine, physicians have derived their greatest societal “power” through their professional ethics.  “The major source of power for physicians is moral power — the sense of a communal responsibility as a profession for the welfare of those who seek their help.  To compromise this power or trade it for political power is to make a Faustian compact with its inevitable loss of soul.”[8]  Medicine today stands in need of a restored soul, being lost through its commodification.

Medicine as a Commodity  

Medicine as a commodity makes the dialogue between doctor and patient to be descriptive, disallowing performative utterances.  Physicians may describe an illness (the wound is infected, the mass is malignant).  They are not obligated to do anything more than the “market” or “contract” requires descriptively.  Once fulfilling the describing of the illness, the treatment, the likely course of events, the physician’s “duties” are met.  There is no warrant to fidelity to promise that is evoked by performative utterance:  “I cannot relieve you of your suffering, but I will go through it with you, never abandoning you.”[9]

Health care today is a big business.  The problem is not just the enormous amounts of money changing hands in the health care arena, but societal changes as well.

A consumer-autonomy model relegates the physician to the role of a simple fact provider. In such a system the physician is merely a physiologic engineer.  He is to inform the patient what is wrong and what can be done about it.  What he is not to do is provide a value-laden recommendation about what ought to be done.  This is the role of the autonomous consumer.  It is his choice, and his values alone must found the decision and then determine what, in fact, will be done.  “The patient’s role in this division of labor is to provide the values, his or her own conception of the good, with which to evaluate these alternatives and to select the one that is best for himself or herself.”[10]  Problems immediately arise when the patient is indecisive, irrational or belongs to a culture that reserves the authority of decision-making for some outside authority, be it familial or communal.[11] Self-determinism by the patient as consumer is the summum bonum.

The physician has become merely the “provider” — actually one of many providers.  The physician as provider implies a level of commodification.  Commodities are always and only means to some ends.  Persons, as Immanuel Kant taught, are always and only ends in themselves.  The physician as a provider of commodities does not care for patients as persons, but as means to the end of his own self-interest.  Self-interest corrupts.  The bottom line corrupts absolutely![12]

Medicine as the provision of a commodity or product is under the control of the forces of profit, self-interest, and a non-existent freedom of consumer choice.  Patients who pay — and non-paying patients who see health care as their right — want choice in product.  And this choice is their choice.  If they want narcotics, customer satisfaction obligates the physician to give them.  If they want a CT scan, it must be ordered.  If they want performance-boosting drugs, it is their right as consumer to choose them.  Ethicist William May predicted such an antinomian outcome to a marketplace control of medicine wherein the physician as “seller has few obligations above and beyond those that the knowledge or skepticism of the buyer [patient] enforces.”[13]

Beginning in the 1970s, physicians have increasingly embraced market strategies under the delusion that medicine would become better and cheaper if subjected to the natural forces of economics and competition.  The major influence on the practice of medicine in the United States is the framework of the marketplace.  Practicing medicine today in America is less patient care and more practice management.  To be “successful,” doctors must look for a competitive advantage, increased market share, and a larger profit margin.  Cost accounting, negotiation, and joint ventures are as much a part of the physician’s needed skills as are comprehension of disease, procedural competency, and medication discernment.  Free-market economics reduces health care to the buying and selling of commodities with pressure to cut costs and enhance profits.  With this dominance of the ideology of the marketplace comes the trumping of ethics by economics, for “even persons of good will can be corrupted by a system of care which is designed as a commercial, competitive, cost- or profit-driven system.”[14]

Traditionally, medicine sought the patient’s good.  The traditional goal of business is profit.  At least five characteristics describe a market relationship between two parties.  First, trading parties are each attempting to maximize their own self-interests.  Second, they have adequate information (or means to obtain it) to guide them in the transaction.  Third, the parties are free to choose whether they will trade and with whom they will trade.  Fourth, the relationship is a competitive one in a double sense: producers compete with consumers for maximal profits, and producers compete with other producers for the consumer’s business.  Finally, there must be a legal framework to ensure fair competition.[15]  It is questionable whether caring for and relating to patients compassionately as persons is even possible in a market-driven health delivery system that has increasingly reduced the ability of physicians to care for the needs of the patient.

Commodification of medicine has brought ever-increasing dissatisfaction to physicians, but it is not just the doctors’ problem.  The patient is also victimized.  Patients are not consumers in search of a commodity.  Neither are they themselves so many industrial commodities; they are afflicted human persons.  One assumption of marketplace medicine is that all patients can converse on equal terms with the physician, can compete with one another for physician services, and can recognize and accept the full implications of market medicine.  The commercial model of provider-consumer can never adequately replace a fiduciary model because patients are vulnerable.  It is inconceivable that competitiveness between physician-providers can do other than increase patient vulnerability.  They are not able to properly make “product” choices, protect their “investments,” or otherwise act as smart consumers in a state of affliction and vulnerability.  Because patients are not equal partners in a market relationship, medicine’s availability and accessibility can never be left to the callous operation of the marketplace.  That American medicine has been subsumed into the marketplace is why a recent poll of physician executives found that their number one concern was physicians refusing to take care of patients who don’t have insurance.[16]

But not all see the commodification of medicine in such negative terms.  After all, there has always been a business dimension to medicine.[17]  Kenman Wong, who writes and teaches on business ethics, suggests that stakeholder theory provides justification for seeing medicine as business.  In such an understanding of business, the interests of other parties such as the community, employees, customers, and suppliers are “balanced” with those of shareholders.  The reasoning for this, however, unmasks how business and medicine differ.  When giving an example of the stakeholder theory, Wong uses Merck, a pharmaceutical company, to illustrate how this can be successful.  He quotes a corporate officer, “We try never to forget that medicine is for the people.  It is not for the profits.  The profits follow, and the better we have remembered that, they have never failed to appear.  The better we have remembered it, the larger they have been.”[18]  Clearly, stakeholder theory is just one more means of maximizing profits (or at best, exchanging increased profits for ensured profits), the fundamental goal of business.  To insinuate that business and medicine have much in common or are even compatible ignores the divergent goals of medicine (the other) and business (self).  That there is a “business dimension” of medicine (the laborer, after all, is worthy of his wages) does not equate to the organization of medicine qua business.

Examples of the Commodification of Medicine[19]  

Managed Care

Managed care has provided much fodder for the discussion of what is wrong with medicine as business.  Managed care organizations (MCO) look first at finances, and only afterwards to quality.  Being concerned as they are with the bottom line, the MCO uses financial inducements to alter physician practice patterns.  The fact that they do raises the concern that quality of care can be affected by a physician’s participation with a MCO.  Why else would incentives be offered if it is not assumed that behaviors could not be influenced?

Under a purely contractual relationship, whenever reimbursement for a treatment or test is excluded under a MCO contract (whether or not it was appropriate), the participating doctor is not under any obligation to provide it under a purely contractual relationship.  Such a restriction of accountability to the terms of the contract denies that professionals have any obligation to profess something on behalf of someone else without regard to its financial consequences for themselves.  The MCO contract requires nothing more from the physician than the compliance with the conditions of the contract, leaving little room for the doctor to address the condition of the patient.  The efficient use of medical services replaces the welfare of the patient as the primary interest for the contracted physician.  Physicians are often left with the immoral dilemma: being forced to choose between two bad alternatives when there is no right act.

Indeed, for the conscientious physician, the most urgently felt conflict in a system of managed care is the erosion of the priority of a commitment to the welfare of the individual patient and person.  Managed care exchanges care of the individual patient for consideration of the mass of MCO members.  In a MCO, the physician is urged to abandon ethics of the person for ethics of the population, individual ethics for social ethics.  Social medicine as practiced with a MCO exchanges the needs of unidentified patients whose risks are not known, might never exist (and if they ever do, it will be in the future), for the care of the patient presenting to the physician existentially in actual need.  But the art of medicine is that it is practiced one patient at a time.  It is only after caring for the individual in need effectively — professionally, fiduciarily — that it is ethical to contribute to the good of the “herd.” 

Another aspect of the utilitarian character of our culture is at play here: distributive justice.  The MCO seeks maximal services for the most patients at the least cost.  Managed care is medicine-as-business put into practice.  Managing in managed care focuses not on patient benefit, but investor benefit.  This is true not only in the private MCO, but also when government acts as a MCO (in which, ultimately, it is the taxpayers’ benefits [or the politicians’] that is the focus).[20]  Practice guidelines are an example of the egregious nature of a herd-over-individual framework, as they are often promoted merely as cost-cutting tools.  One set of hospital discharge guidelines developed by Milliman USA(tm) and used by MCO administrators to discipline physician members and even remove them from preferred provider status have been blasted as advocating stays too short for the patients’ good.  Outcomes being measured were financial, not based on quality of care.[21]  In another example, the Centers for Medicare and Medicaid Services of the U. S. Department of Health and Human Services will enact a program of reducing reimbursement to hospitals if a patient has certain “preventable” complications, using clinical guidelines to identify such complications.  It is uncertain whether or not they will differentiate between patients with complications who were treated according to guidelines from those who were not.  There would obviously be a greater savings of health care dollars if this was applied to all complications.  This fails to recognize, or at least to allow, that even the best evidence-based (i.e., “cookbook”) medicine cannot prevent all complications.

Like the MCO, any third-party payer system can erode the physician-patient relationship.  Under such arrangements doctors are simultaneously tempted to do too little and too much for the patient.  They are tempted to do too little when the payer establishes preferred interventions, be they medications or specialist referral lists.  They are tempted to do too much when increased remuneration is tied to higher levels of coding for services or multiple codes for an encounter.  Third-party payer systems also contribute to the patient as consumerist.  Blinded from the direct cost of their care (whether by employer-supplemented insurance, Medicare, or Medicaid), patients demand health care as a right, demand more of it, and demand it their way.

Paid for Performance

Related to managed care and third-party payer systems is the concept of “paid for performance” (P4P) that is gaining ground in American health care.  The idea here is that physician remuneration is tied to how well they take care of patients.  Bill Steiger, editor of The Physician Executive journal, suggests, “Putting a significant amount of reimbursement at risk seems to be really the only way to get most physicians’ attention regarding improving outcomes...and complying with accepted guidelines.”[22]  There is, at the surface, a sweet-smelling aroma to the notion of doctors being reimbursed according to how well they care for patients.  But the rub comes from how “care” is measured.  When it is measured in financial terms, all the concerns already discussed come into play.  When measured by compliance with “best practices,” the problem is the dearth of Class 1 evidence.[23]  For the purposes of this essay, however, all that is needed is to demonstrate that physician practice is affected by this financial arrangement.  Philosophically, P4P will cause doctors to do things solely to get paid, not because they are in the patients’ best interests.  Also, in a paid-for-performance system, doctors are benefited by avoiding or dumping the sickest, most complicated, non-compliant and socially difficult patients because they result in worse outcomes whether measured financially or in terms of clinical guidelines.

One of the easiest ways to demonstrate that P4P can be quite problematic is by looking at the model of tying physician pay to the relative value unit (RVU) system.  Physician procedures and interactions with patients have been assigned relative values by the Centers for Medicare and Medicaid Services.  When a physician is reimbursed according to this schedule, he receives a pre-set monetary rate per relative value unit.  For example, the most common physician office visit is coded 99203 and is assigned a RVU of 1.34.  If a physician earns thirty-eight dollars ($38.00) per RVU, he would earn $62.32 for seeing the patient.  However, if he could instead code the patient at level 99204, which is assigned 2.00 RVUs, he would earn seventy-six dollars ($76.00) for the visit.  It takes very little additional documentation to justify the higher code.  This RVU scenario is based solely on productivity and has nothing to do with quality of care.  Doctors have “upcoded” patient visits, billing for a higher level of service than actually rendered to a patient.

Physicians as Employees

The RVU scheme is common when physicians are employees.  Here, “upcoding” is a win-win situation: the higher the code, the higher the employer can bill third-party payers and the higher the physician’s earnings.[24]  Hospitals have turned to employing physicians increasingly to cover their needs for primary care physicians to feed their patient flow and specialists to provide hard-to-obtain call coverage.  It is estimated that 38 percent of physicians are employed.[25]  As employees, physicians have an inherent conflict of interest between serving the best interests of their employer (and, subsequently, their own) and those of their patients.  Inducements commonly offered to employed physicians, including withholds and bonuses, are incentives that connote self-interest.  Withholds can be linked to cost “overruns” in physician offices, enticing physicians to cut corners in patient care.  Bonuses (e.g., profit sharing) reward physicians for keeping costs down and increasing revenue, again coaxing them to look out for their own interests.  Financial penalties (withholdings) and bonuses are designed to deliberately manipulate the physician’s self-interest at the expense of the patient’s.  Such contexts transform physicians from patient advocates into corporate stewards, change a single-minded focus on patients’ needs to what is absolutely (minimally) required, from caring for patients with afflictions to providing care at the lowest possible cost.

Patient Abandonment

Market-driven medicine encourages doctors to abandon patients.  Above, this was linked to paid-for-performance because less desirable (financially or clinically) or more complicated patients are not good for the bottom line.  Patient abandonment by physicians has been aided and abetted by the establishment of walk-in clinics (e.g., urgent care centers) and the advent of the hospitalist.[26]  These developments allow primary care physicians and specialists to provide more profitable office-based care in a manner more conducive to a better lifestyle (no call, no weekend work).

Conflicts of Interest

Perhaps the greatest source of breakdown in the trust of physicians by patients comes from conflicts of interest.  A conflict of interest can only exist where physicians put self-interest above or even on par with their fiduciary role.  Conflicts come from multiple sources.  One clear example involves manipulation of physicians by the pharmaceutical industry.  A physician may receive more than five visits daily from pharmaceutical representatives.[27]  Pharmaceutical companies spend approximately $10,000 annually per physician in the United States on such marketing because they know that gifts “invoke the social rule of reciprocity.  The recipient incurs an obligation to repay.”[28]  Gifts may include meals, logo-monogrammed items such as pens, honoraria as speakers, national meetings, and drug samples.  Physicians are like mules with blinders when it comes to such tactics.  The social rule of reciprocity operates under the radar of the physician so that he is unaware of the influence and is unintentionally biased.  Though they overwhelming deny that gifts would affect their practice of medicine, surveyed doctors feel it more likely that other physicians could be affected by them.[29]  Interestingly, the more gifts a doctor receives, the less likely he is to believe that his practice patterns are affected by them.[30]  Financial conflicts of interest “threaten patient care, taint medical information, and raise costs.  They create deception, impair physicians’ judgment, and reduce their willingness to be their patients’ advocates.  They reduce professional dignity and integrity, denigrate the profession, and erode trust in the profession’s practitioners.”[31]

Physician Advertising

One of the clearest examples of the commodification of medicine is the rampant nature of physician advertising.  From 1847, when the Code of Ethics of the American Medical Association[32] prohibited advertising by physicians until 1975 when the Federal Trade Commission (FTC) successfully sued the AMA, accusing the medical profession of restraint of trade, doctors considered advertising their services as forbidden.  In this action the FTC has characterized medicine as a commercial endeavor in which goods and services are bought and sold as any other commodity.  Other recent court decisions have contributed to the shift of medical services in the direction of commodity transactions.  The prohibition of advertising by the AMA differentiated the physician from the plethora of traveling medicine show purveyors and other quacks of the nineteenth century.  Medical quackery has now returned with a vengeance and unprecedented sophistication, pandering unproven treatments, herbal remedies and supplements.  Advertising doctors look just like these modern-day swindlers when advertising their wares, whether it is the latest vision-enhancing surgery, cosmetic procedure, or free-standing surgery center.[33]

Traditionally, patients sought physicians; physicians did not seek patients.  Commodification changes this.  Advertising publicly acknowledges that the doctor is seeking to make money, rather than serve and promote the best interests of patients.  It pits individual against individual and erodes the boundary that a professional mindset establishes between the physician as a fiduciary and the physician as a seller of commodities, between professional ethics and the “buyer beware” ethics of the business arena.  Advertising begins a particular doctor-patient relationship on a competitive basis.  Patients need for physicians to be the one segment in society that is not trying to sell something.  Physicians ought to be individuals who can be counted on to sacrifice profit making (or the semblance thereof) in order to make the best interests of their patients paramount.  Only when holding this traditional opinion of advertising does the physician remain free of the skepticism that naturally characterizes (and rightly so) commercial relationships. 

Communication between physician and patient ought to be open, two-way, and comprehensive.  Advertising, however, makes one-way pronouncements, not communication.  It is like a lecture wherein patients cannot (and are not welcomed to) participate.  The only desired response is capitulation.  By its nature, advertising can only give limited information, and even that information is biased and intended to entice rather than inform.  In its most flagrant form, medical advertising creates unrealistic expectations for the vulnerable.  There is a unique vulnerability that patients have based on their needs, their want of relief from disease or disability, or even their self-aggrandizement.  This vulnerability makes them less likely to show the same degree of incredulity toward medical advertising that consumers usually bring to other forms of advertising.

It is commonplace to see the faces of local physicians on highway billboards, newspaper pages, and on local television, hocking the latest surgical procedure or hospital service.  They persuade and titillate rather than inform.  Frequently, they mislead — intentionally — as when doctors claim specialist status in yellow page listings although they have no formal training or certification in the specialty.[34]  When large “listings” in yellow pages are seen for what they are, most physicians participate in some form of advertising. 

The Expert Witness

One final ramification of the commodification of medicine is the growth industry of expert medical witnessing.  Being an expert witness for financial gain in contrast to providing peer review for improvement in patient care is putting up for sale one’s professional status, education, credentials, and experience.  Even a cursory glance through a legal journal will quickly reveal expert witnesses for hire to the bidder, almost always by the plaintiff attorney.  To be ethical, however, a medical expert ought to be independent of the retaining counsel.[35]  Contingency of testimony is outright unethical.  This can occur either directly (i.e., when the witness agrees contractually to tie his fee to a successful outcome) or by threat of no further business as an expert if unable to deliver the outcome desired by the retaining counsel.  When acting as an expert becomes a significant source of income for an individual doctor, he ceases to be a physician. 

Conclusion: The Re-Ensoulment of Medicine  

The Practice of Medicine is an Art, not a Trade; a Calling, not a Business; a Calling in which your Heart will be exorcised equally with your Head.[36]

Medicine was traditionally understood to be a vocation, not an occupation.  Physicians were called to the care of patients.  They did not occupy the tradesman’s shop.  One with an occupation has a job.  One with a vocation has a calling.  To have a calling implies that there is a Caller.  From the time of Hippocrates, physicians have understood that they answer to a higher authority.  The physician-patient relationship used to be one of covenant between the physician and this higher authority on behalf of patients, not actually between the physician and the patient.  Such a context resolves the problems inherent with the contractual model of physician-patient relationships that cry out for a context that upholds the dignity of the patient and the integrity of the physician.  A fiduciary covenant between physician and patient satisfies this.  The fiduciary aspect of this model is based on the dignity of the patient, the physician’s role to safeguard the patient’s interest in his health, the imbalance of medical knowledge between the patient and the physician, and the vulnerability of the patient.[37]  But there is more to this model than a fiduciary aspect.  The same dignity and vulnerability demand a covenantal bond, as well.  Such a bond is a fundamental commitment that shapes and constrains the physician in his fiduciary role, as well as the patient in his demands on the physician.

A primary assumption in this model is that the “professional professes something (the art of healing) on behalf of someone (the patient).  This double fidelity to the art of healing and to the patient generates trust.  This is why we call the professional relationship fiduciary.”[38]  Physicians have a role-duty.  That is, they have a duty to provide for the welfare of their patients because of their profession and their status as physicians.  Performance “is not predicated on a guarantee of compensation [as in the contractual model], but on a concern for [the patient’s] welfare.”[39]  The physician professes the provisions of the professional covenant to which he binds himself.  The fundamental purpose of the relationship is to benefit the patient, and a basic principle, then, is that physicians must not put their own interests above those of the patient as would be inherent to a contractual relationship.  A physician as fiduciary covenants to act for the welfare of the patient, subordinating (but not denying) his own personal interests to that of the patient.

A fiduciary covenantal approach to patient care does allow physicians to hold patients responsible.  At the danger of eliciting the charge of paternalism, this recognizes that physicians do act in loco parentis to some degree.  Part of what parents do is train up their charges in order to bring them to greater responsibility.  Patient education and nurturing have long been recognized activities on the part of physicians.  A fiduciary relationship may impose a responsibility on patients to care responsibly for their own health.  Tough love will sometimes demand withholding what a patient desires in order to bring forth appropriate (and healthy) behavior on his part.  An emergency medicine physician acts in his patient’s best interest when he refuses to refill maintenance medications so that the patient will have to return to his primary physician for health maintenance.  Patient responsibility does not bring unfettered choice.  But a physician expressing tough love in a fiduciary relationship also recognizes human weakness (fallenness) and provides the offer of help and healing even in the context of patient irresponsibility.

The obvious charge against such a fiduciary covenantal relationship is that it is paternalistic.  But it is not so.  It is a commitment by a physician regarding his skills, character, actions, and values.  Strictly speaking, paternalism is the right to impose one’s decisions on another.  Both the fiduciary and the covenantal features of such relationships preclude any such imposition.  The physician never claims sovereignty in the relationship in a paternalistic manner.  He subsumes himself to a higher authority, and he limits himself to certain values and actions corresponding to those values as established in the covenant.  The physician’s freedom of action, not the patient’s, is limited by the covenantal pledge to practice within his skills and according to a moral commitment.  The physician is not free to impose his decisions on the patient.  The patient remains free to seek the security of the covenantal relationship and, having entered it, to accept or reject the physician’s recommendations.  The covenant provides boundaries for the patient, decreasing subjectivism in choices that must be made.  This covenant relationship is like the old playground game of three-legged race wherein two people are linked together by tying one leg of each to the other.  They must work together in order to progress down the track to the finish line.  The physician knows the course from having seen it mapped out and having traveled it before and, therefore should point the way they should go.  But the patient must give assent to the direction of the physician in order for his directions to be put into action toward the goal.

The patient is free to choose to enter into this covenant relationship, not as a fellow oath-taker with the physician, but as one who chooses to expose his vulnerability to the physician-in-covenant because he sees the selfless nature of the physician.  This choice is ultimately the patient’s regardless of his system of reimbursement for health care.  Even in a managed care system, the patient is always free to seek any physician he chooses — only he may be responsible for paying the financial obligations incurred without the assistance of the managed care plan.  Where conditions limit the patient to one physician (a “one-doc town” or national health system built on regional primary care assignments), the patient is still free to go to the physician or not receive care.  There really is no such thing as compulsion (at least not in an absolute sense); each person does exactly what he wants most to do at that particular time.  The choices may be limited and undesirable (“your money or your life”), but choice is available nonetheless. 

The patient cannot understand that the physician practices covenantally and cannot comprehend the ramifications of this in today’s culture unless the physician makes this clear.  He must profess it to the patient.  Not to profess it is to be unprofessional.  In choosing the physician as his health professional, the patient thus chooses to come under the covenant as professed.  In this choice by the patient, the covenant extends in a new dimension.  To the vertical covenant with the higher authority is added a horizontal dimension between physician and patient.  This added dimension is not an additional covenant, nor even added to the original covenant, but is present in the purpose of the already-established covenant when the patient comes under the care of the covenanted physician.

The relationship thus established is one of mutuality.  It is not one of equality, as this is understood today, synonymous with sameness.  As pointed out already, the relationship is  asymmetric toward the physician in terms of knowledge and skill, but toward the patient in terms of ultimate choice.  The patient does hold the trump card.  This gives balance and mutuality, but not equality.  Both patient and physician freely act under the terms of the covenant — the physician with skill and morality, the patient with confidence.  Ultimate responsibility is to the covenant.  This relationship provides a safeguard when other parties invade it, including third-party payers and physician employers.

In the face of the pressures introduced by the commodification of medicine, the only way doctors can once again become physicians and professionals is to continually advocate for the patient in a selfless manner.  Managed care contracts must never supplant the priority of the patient.  Physicians can welcome a focus on patient outcomes if this is a focus on clinical care.  Clinical guidelines that are evidence-based can be endorsed by the physician as fiduciary, but they must never become rigid rules that allow for the disregard of the individual patient.  Physicians as employees must be willing to give up their employment rather than compromise the best interest of patients.  The contract must not replace the covenant. 

Patients must never be customers.  Customers exist for the seller’s profit.  Conflicts of interest will always lurk in the background of all inter-personal relationships, but the physician must actively guard against overt exploitation and covert influence.  Physicians must not seek patients in a commercial manner, but allow their caring approach to the best interests of their patients to “promote” their practices.  Advertising has no place in the fiduciary covenantal approach to medicine.  The honored tradition of physicians holding themselves accountable to other physicians should lead to the restoration of peer review as in the traditional “Morbidity and Mortality” conferences of bygone days of training.  Medical witnesses ought never to accept anything more than reimbursement of expenses incurred in order to testify.

Is there any hope for overcoming the deterioration of medicine at the hands of commodification?  It will take more than a movement within the ranks of physicians.  After all, the kind of health care the culture desires or even tolerates reflects the kind of society we are or want to be.  The current reign of hedonistic self-interest as the “above which no other” value does not bode well for efforts to resist the allures brought on by commodification.  The hope indeed lies outside of medicine and under the sovereignty of THE Healer of souls Himself.  There is hope indeed that medicine can experience soul resurrection.

Table One:   

Examples of the Commodification of Medicine

•   Advertising

•   Ancillary procedures performed in the physician’s office

•   Conflicts of interest

•   Customer satisfaction surveys

•   Employed physicians

•   Physician-owned endoscopy and specialty surgery centers

•   Expert witnessing for income

•   For-profit joint ventures by physicians

•   Hospitalists

•   Managed care

•   Paid for performance

•   Paying research subjects

•   Physicians as retailers (pharmacies, vitamins/ herbs/supplements, medical devices [for the purpose of profit])

•   Practicing/partnering with alternative or complementary health practices for financial reasons

•   Procedures by non-specialists

•   Relative value units as the basis for physician remuneration

•   Satellite offices out of town

•   Self-referral

•   Selling body parts (organs/eggs/sperm)

•   Strikes by physicians

•   Walk-in (e.g., urgent care) centers

 

Endnotes

1  Michael S. Lundy, ed., The Duty of Physicians by Richard Baxter, Truth for Life series, J. Ligon Duncan, series editor. Greenville, SC: Reformed Academic Press, 2000, 1-2. (Emphasis in the original.)

2  William F. May, The Physician’s Covenant, 2nd ed. (Louisville: Westminster John Knox, 2000), 36.

3  N. D. Tomycz, “A Profession Selling Out: Lamenting the Paradigm Shift in Physician Advertising,” Journal of Medical Ethics 32 (2006): 27.

4  Doreen Bulger, “The Patient as Consumer?” Br J Gen Pract 40 (1990): 262.

5  Scott B. Rae, Paul M. Cox, Bioethics: A Christian Approach in a Pluralistic Age, (Grand Rapids, MI: William B. Eerdmans, 1999), 80.

6  See Harold O. J. Brown, The Sensate Culture: Western Civilization Between Chaos and Transformation, (Dallas: Word Publishing, 1996), for a full discussion of our sensate culture.

7  E.g., Viagra(r)and related drugs.

8  Edmund D. Pellegrino, “The Good Samaritan in the Marketplace: Managed Care’s Challenge to Christian Charity,” in The Changing Face of Health Care: A Christian Appraisal of Managed Care, Resource Allocation, and Patient-Caregiver Relationships, ed. John F. Kilner, Robert D. Orr, and Judith Allen Shelley (Grand Rapids: William B. Eerdmans, 1998), 113-114.

9  Adapted from J.L. Austin, How to Do Things with Words (Cambridge, MA: Harvard University Press, 1962).

10 Daniel W. Brock,  “Facts and values in the physician-patient relationship,” in Edmund D. Pellegrino, Robert M. Veatch, J.P. Langan, Ethics, Trust, and the Professions: Philosophical and Cultural Aspects (Washington, DC: Georgetown University Press, 1991), 113.

11 This is not uncommon in some Eastern cultures.

12 David O. Weber, “Unethical Business Practices in U. S. Health Care Alarm Physician Leaders,” Physician Executive, March-April (2005), 13.

13 May, Physician’s Covenant, 131.

14 Pellegrino, 109.

15 Alastair V. Campbell, “The Patient as Consumer,” Br J Gen Pract 40 (1990), 131.

16 Weber, “Unethical Business,” 9.

17 See Kenman L. Wong, “For Patients and Profits: Business Ethics for Managed Care Organizations,” in The Changing Face of Health Care: A Christian Appraisal of Managed Care, Resource Allocation, and Patient-Caregiver Relationships, ed. John F. Kilner, Robert D. Orr, and Judith Allen Shelley (Grand Rapids: William B. Eerdmans, 1998), 145-161.

18 Ibid, 151.

19 A discussion of the full effects of the commodification of medicine is beyond the scope of this essay.  Table 1 lists some of the more common examples.  A review of some of these will suffice to provide evidence of the thesis.

20 This is reflected in the attitude of the Centers for Medicare and Medicaid Services of the U. S. Department of Health and Human Services that they are not a payer for medical services, but a purchaser of health care.

21 Robert Lowes, “Managed Care,” Medical Economics, 19 (2002), 3.  Downloaded on July 19, 2006 from http://www.memag.com/content/printContentPopup.jsp?id=116459.

22 Bill Steiger, “Poll Finds Physicians Very Wary of Pay-for-Performance Programs,” Physician Executive, November-December (2005), 6.

23 This is data from randomized, double-blinded, prospective studies.  This kind of data is hard to come by and in some cases the studies themselves are unethical to perform.  For example, sham operations would need to be performed to classify the results of a surgical procedure according to Class 1 evidence.

24 In a case that I witnessed firsthand, a young employed doctor in an urgent care coded almost all of his visits as 99204, sometimes not even examining the patients!

25 Lowes, 1.

26 A hospitalist typically is an internal medicine specialist whose practice is limited to care of inpatients in a hospital setting.  He does not see patients for follow-up or ongoing health maintenance.  Primary care physicians, choosing not to provide continuity of care for their patients in the hospital, rely on hospitalists to care for their patients while hospitalized.

27 Hal Minnigan, Carey D. Chisholm, “Conflict of Interest in the Physician Interface with the Biomedical Industry,” Emerg Med Clin N Am 24 (2006), 672.

28 Ibid, 674.

29 Ibid, 680.

30 Ibid, 676.

31 Jerome P. Kassirer, “Excerpts from: On the Take,” Physician Executive, March-April (2005), 31.

32 Available at http://www.ama-assn.org/ama/upload/mm/369/1847code.pdf.

33 I pass these three examples each day on my way to work.

34 See J. M. Read, R. M. Ratzen, “Yellow Professionalism: Advertising by Physicians in the Yellow Pages,  NEJM 316 (1987), 1315-1319.

35 This implies, of course, on the part of the counselor, that in order to be ethical he “hires” an expert on the basis of his expertise, not his ability to help the client’s cause.

36 William Osler, Aequanimitas and Other Addresses, 3rd ed.  (Philadelphia: Blakeston, 1932).

37 Scott B. Rae and  Paul M. Cox, Bioethics: A Christian Approach in a Pluralistic Age, (Grand Rapids: William B. Eerdmans, 1999), 140.

38 William F. May, Testing the Medical Covenant: Active Euthanasia and Health Care Reform, The Institute of Religion Series on Religion and Health Care, #2 (Grand Rapids: William B. Eerdmans, 1996), 9. (Emphasis in the original.)

39   Kenneth V. Iserson, “Ethical Principles — Emergency Medicine,” Emerg Med Clin N Am 24 (2006), 516.

 

 

 

 

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