Ethics Matters
The AMA has recently updated its manual of
opinions on medical-ethical
issues, ranging from end-of-life care to managed care and use of e-mails
to communicate with patients. A sharp knowledge of these guidelines
will help you deal with ethical dilemmas.
issues, ranging from end-of-life care to managed care and use of e-mails
to communicate with patients. A sharp knowledge of these guidelines
will help you deal with ethical dilemmas.
Case Study:
Anne Lapine and her colleagues report the case of a
71-year-old Chinese man admitted to the neurology service of a
teaching hospital with symptoms of left arm weakness and
urinary incontinence. CT scans revealed masses in both kidneys,
liver, and right temporal brain, suggesting renal cell
carcinoma with metastasis. The doctor wished to do a biopsy,
but acknowledged that the patient’s prognosis was poor
and that the biopsy was not likely to affect outcome or
treatment. (“When Cultures Clash: Physician, Patient, and
Family Wishes in Truth Disclosure for Dying Patients,” Journal of Palliative Care, Vol. 4, No. 4, Dec. 2001, pp. 475-80.)
The patient had
minimal English skills. The family did not want the man to be
told of his condition or to have a biopsy performed. The family
also refused to translate information about the biopsy or the
man’s condition, fearing that the information would break
the man’s spirit and that he would die before being able
to return to China. The doctor felt he had an ethical duty to
inform the man of his condition and give him options regarding
his care. The neurology team requested a consultation with the
hospital Ethics Committee.
The Ethics Committee
sought the perspective of a guest consultant, an American-born
Chinese physician who confirmed that the family’s
approach of withholding information about a terminal diagnosis
from a family member was common in Chinese culture. The
family’s desire reflected a value of reducing stress on
elders, even if the elderly patient may be aware of the gravity
of his illness.
With help from the
Ethics Committee, a compromise was reached between the
treatment team and the family. The guest consultant, in the
presence of family members, asked the patient whether he wished
his medical information to be given directly to him or to his
family members and whether family members should make decisions
for him. The patient said his family members should receive the
information and make decisions on his behalf. The man then was
discharged without a biopsy and flew home to China where he
died. The patient had been given the opportunity to express his
wishes, and his wishes were honored.
Ethical concerns
Medical-ethical issues have received
increased attention recently, including by the American Medical
Association, which commemorated the World Medical
Association’s first
annual Medical Ethics Day on September 18, 2004. Among the
messages of the day: When difficult ethical issues arise,
physicians and patients should utilize their hospital ethics
committees. As in the case of the Chinese patient, an ethics
committee can help identify issues, facilitate discussions, and
develop solutions.
To guide resolution of
ethical issues, the AMA’s Council on Ethical and Judicial
Affairs has developed the “Code of Medical Ethics.”
The 2004-05 edition of the code has more than 185 opinions
covering a variety of subjects, including social policy,
inter-professional relations, fees, and practice matters. The
code is available on line at:
www.ama-assn.org/ama/pub/category/4301.html
www.ama-assn.org/ama/pub/category/4301.html
(For a description of
ethical rules regarding physicians’ use of e-mails and
Web sites to communicate with patients, see “Ethical
Rules,” bottom of page.)
Life-sustaining treatment
The AMA, as well as state and federal law,
provide that patients have a right of autonomy in deciding
whether to maintain life-sustaining treatment. Life-sustaining
treatment is described as “any treatment that serves to
prolong life without reversing the underlying medical
condition.” (Ethical Opinion 2.20) Under the ethical
opinion, there is not an ethical distinction between
withdrawing and withholding life-sustaining treatment. Such
treatment includes, but is not limited to, ventilation,
chemotherapy, antibiotics, dialysis, artificial nutrition, and
hydration.
Doctors are generally
obliged to follow the wishes of the patient or the
patient’s surrogate decision maker. The AMA says,
however, that institutional or judicial review could be
required in certain circumstances, including when:
“(1) there is no available family
member willing to be the patient’s surrogate decision
maker,
(2) there is a dispute among family
members and there is no decision maker designated in an advance
directive,
(3) a health-care provider believes that
the family’s decision is clearly not what the patient
would have decided if competent, and
(4) a health-care provider believes that
the decision is not a decision that could reasonably be judged
to be in the patient’s best interests.”
Physicians are obliged
to relieve suffering of patients, including through palliative
treatment, even if the treatment may hasten death. Physicians
are not obliged to provide care they consider to be futile.
In the case of a
gravely ill newborn, “[l]ife-sustaining treatment maybe
withheld or withdrawn… when the pain and suffering
expected to be endured by the child will overwhelm any
potential for joy during his or her life.” (Ethical
Opinion 2.215). If a newborn has experienced such severe
neurological damage that the child will not experience
suffering or joy, treatment also may be withheld. If, however,
an infant’s prognosis is uncertain, treatments should be
initiated until the prognosis is more certain.
Before entering a
Do-Not-Resuscitate Order, the AMA states that the physician
should first inform the patient or the patient’s
surrogate decision maker of the order and the reason for
entering it, if there is adequate time to give such notice. In
addition, both the order and the reason for it should be part
of the patient’s medical record. (Ethical Opinion 2.22).
Managed care
Managed care is the subject of multiple
AMA ethical opinions. The AMA wants to ensure that doctors do
not enter into arrangements that compromise patient care.
Opinion 8.13 provides: “The duty of patient
advocacy is a fundamental element of the physician-patient
relationship that should not be altered by the system of
health-care delivery. Physicians must continue to place the
interests of their patients first.” Thus, physicians
should be able to recommend treatments that would materially
benefit their patients and should not enter into agreements
with “gag clauses” that seek to limit the options a
physician can discuss with the patient.
The AMA notes that
capitation systems can promote cost-effective care, but
cautions that conflicts of interest for the physician also can
arise. Ethical Opinion 8.051 states that “Physicians have
an obligation to evaluate a health plan’s capitation
payments prior to contracting with that plan to ensure the
quality of patient care is not threatened by inadequate rates
of capitation.” Stop-loss plans that limit the amount of
financial exposure to physicians in managed care plans is one
way to handle the problem.
The federal government
has taken a similar view. Under regulations adopted by the
Centers for Medicare and Medicaid Services, incentive plans
that “place physicians at substantial financial
risk” must be tempered by several actions, including
stop-loss protection. “Substantial risk” is defined
as withholding more than 25 percent of pay or giving a bonus of
33 percent of pay based on the degree to which the physician
refers patients to other services.
For example, if a physician
could potentially lose more than 25 percent of salary (which
had been withheld) because the physician ordered too many tests
or had patients hospitalized for what was deemed an excessive
number of days, then the health plan would be obliged to have
stop-loss protection to cover that additional financial loss to
the physician. Under the regulations, the stop-loss protection
would have to cover 90 percent of cost of the referral services
in excess of 25 percent of the physician’s pay. Thus, a
physician could still lose some compensation as a result of
high utilization, but the stop-loss protection would cover most
of the expenses after the 25 percent loss of pay. [These rules
are found in 42 Code of Federal Regulations (CFR) section 417.479.]
In order to reduce the
potential adverse effect of incentive plans on individual
physicians, the AMA prefers incentive plans that apply
“across broad physician groups” rather than
individual physicians. In addition, the AMA notes that
incentive plans that involve a large pool of patients spread
the risk that a subgroup of patients will need costly
treatment.
Nature of a profession
When the American Medical Association held
its first meeting in Philadelphia in 1847, it had two primary
items of business: establishing minimum requirements for
medical education and adopting a code of ethics. It is in the
nature of professions that the members have specialized
training, serve the public, and govern themselves.
A majority of the
provisions in the AMA Code of Medical Ethics are grounded on
promoting trust in the patient-physician relationship. By
reviewing, updating, and abiding by the “Code of Medical
Ethics,” trust is promoted between the physician, the
patient, and persons who act on a patient’s behalf. g
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Ethical rules regarding e-mails and
health-related Web sites
health-related Web sites
Among the modern ethical issues considered
by the AMA are physicians’ use of e-mail and
health-related Web sites to communicate with patients. The AMA
states that e-mails “can be a useful tool in the practice
of medicine and can facilitate communication within a
patient-physician relationship.” Among principles adopted
by the AMA:
• E-mails should
be used to supplement more personal encounters; e-mails should
not be used to establish a patient-physician relationship.
• Normal
professional standards of communicating medical information and
advice apply.
• Before the
communication takes place, patients should be advised of the
limitations of e-mails, including potential breaches of privacy
and confidentiality. Patients should accept these limitations
before sending privileged information. The precautions used by
the physician should be similar to those involved in sending
faxes to patients.
A physician’s
involvement in on-line health-related sites is generally
permissible provided “the information is accurate,
timely, reliable, and scientifically sound, and includes
appropriate scientific references.” Physicians should
avoid conflicts of interest and commercial biases through
appropriate disclosures and honesty in advertising as well as
by not promoting unnecessary services or otherwise violating
fraud and abuse laws. g
Jeff
Atkinson teaches courses in
health-care law and policy at DePaul
University College of Law in
Chicago, where he graduated summa cum laude. He writes on
legal, medical, and ethical issues.
