Dear Dr. Montgomery:
I did not refer the patient [to you]. I don’t need your help. Here is your evaluation and recommendations back.
The patient sought a second opinion, as is any patients’ right. The patient asked that the evaluation and recommendations be sent to Dr. X, which any physician so asked would be obligated to do. The paradox is that Dr. Montgomery agreed with the diagnosis set forth by Dr. X and only offered one additional consideration in the treatment. Clearly, the description of the event may be out of context and there could be mitigating circumstances, but it is hard to envision circumstances that would justify the aforementioned response. Apart from not being collegial, it is not in the patient’s best interest. Most physicians and healthcare professionals would likely agree. So the question for our profession is how are such incidences handled, not just for this specific case, but also how to prevent future occurrences? Essentially, the question is one of accountability.
This author has yet to meet any physician and/or healthcare professional whose first intention was not to help patients. Physicians and healthcare professionals are intelligent, hardworking, and likely would find better financial remuneration in fields other than medicine; furthermore, the practice environment is difficult. A very large percentage of physicians would not recommend others to enter the practice of medicine. However, we know that there are other motivations that can affect intentions.
Nevertheless, we cannot default to assuming that every medical professional holds themselves accountable and this is sufficient. Experience with human experimentation demonstrates this will not work. Many physicians and clinical scientists opposed mandating Institutional Review Boards to govern human research consequent to the Belmont report in 1978 (Belmont Report: Ethical Principles and Guidelines for the Protection of Human Subjects of Research, Report of the National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research, Department of Health, Education and Welfare [DHEW] [30 September 1978]). Washington, DC: United States Government Printing Office). Many of these physicians and clinical scientists held that good ethical practice is just what good clinicians do. The numerous scandals of unethical research, continuing to this day, demonstrates the incredulity of such claims.
This is NOT to say that these physicians and clinical scientists, and by extension medical professionals, intended unethical behavior. Rather, it is reasonable that many physicians and healthcare professionals may not appreciate the ethical complexities that are exacerbated by the many conflicts of interest that are imposed on medical professionals. Accountability is part of the ethical practice of medicine. The purpose of this newsletter is to explore some of the issues surrounding accountability. Further, if we consider patients’ rights on par with civil rights, we cannot take solace even if 99% of patients have their rights respected for by physicians who hold themselves accountable.
The remarkable extent of authority in contrast to the extent of accountability
It is hard to point to any profession that allows their practitioners such authority with so little accountability. Airline pilots are frequently observed for their flying skills, both in real situations and in simulations of circumstances that are hoped never to occur in reality. They face mandatory retirement at age 65 in many countries. Air traffic controllers are required to retire at 56 years. Among the reasons is the risk of sudden medical problems at these ages, which may place the passengers at an unacceptable risk. Yet, there is nothing comparable for physicians and healthcare professionals. While US Supreme Court justices have lifetime appointments, their decisions are held in the public eye and at least in some fashion, the justices are held accountable.
With respect to accountability, courts of law are evolving in the standards by which physicians and healthcare professionals are held accountable. Courts of law are departing from definitions of malpractice as departures from standards of care that are determined by the conduct of similarly situated medical professionals to what a reasonable medical professional would do. This evolution is a direct consequence of the realization that the prior standards established by peer practice could be self-severing thus shielding medical professionals from accountability. This author has seen peer review conferences where less than the best professional conduct was deemed standard in order to avoid other medical professionals from being held to the best standard of professional conduct in the future.
Malpractice and accountability
In 2000, the Institute of Medicine reported that medical errors cause between 44,000 and 98,000 deaths every year in American hospitals (Kohn LT, Corrigan JM, Donaldson MS, eds. To err is human: building a safer health system. Washington, D.C.: National Academy Press, 2000). While the percentages that were preventable is open for debate, it is a serious problem (Brennan TA. The Institute of Medicine report on medical errors–could it do harm? N Engl J Med. 2000 Apr 13;342(15):1123-5. PubMed PMID: 10760315). In 2016, medical errors were estimated to be the third leading cause of death in the United States (Martin A Makary, Michael Daniel, Medical error—the third leading cause of death in the US, BMJ 2016; 353 doi: http://dx.doi.org/10.1136/bmj.i2139 (Published 03 May 2016) Cite this as: BMJ 2016;353:i2139). Yet, only 1 in 7 adverse effects result in a malpractice claim (Oyebode F. Clinical errors and medical negligence. Med Princ Pract. 2013;22(4):323-33. doi: 10.1159/000346296. Epub 2013 Jan 18. Review. PubMed PMID: 23343656) and thus, the deterrence of the threat of malpractice accusations as a means of accountability would appear inadequate. Further, deterrence, in the risk of a medical malpractice claim, is only effective if those whose actions are the subject find the deterrence credible. This author once asked a chair of a department whether the chair was concerned about the physician members of the department being sued because of poor practice. The reply was “our patients don’t sue”. Further, rightly or wrongly, most medical professionals view the application of malpractice claims as capricious and consequently, despite the discomfort at the possibility of being sued for malpractice, it is ineffective in establishing any meaningful accountability.
The threats of disciplinary actions by state medical boards are most likely in the same situation as medical malpractice claims. In the state of Texas, 28.7% of revocations of medical licenses were due to incompetency or negligence in the years of 1989-1998 (Cardarelli R, Licciardone JC. Factors associated with high-severity disciplinary action by a state medical board: a Texas study of medical license revocation. J Am Osteopath Assoc. 2006 Mar;106(3):153-6. PubMed PMID: 16585383). This rate would seem incongruent with the frequency of medical errors as described above. Also, medical malpractice claims, as well as a large number of state medical board actions, require an aggrieved party to make a claim and thus, will likely underestimate the extent of the problems, further undermining any use in the interest of accountability.
Self-policing within the medical disciplines has been advocated as a means of accountability. An archetype is the Morbidity and Mortality Conference whose intended purpose is to review cases that went wrong. This certainly should provide an opportunity for accountability, but studies have shown that the issue of errors in reasoning is rarely addressed (Gore D.C., National survey of surgical morbidity and mortality conferences. The American Journal of Surgery Volume 191, Issue 5, Pages 708–714, May 2006 DOI: http://dx.doi.org/10.1016/j.amjsurg.2006.01.029; Orlander JD, Fincke BG. Morbidity and mortality conference: a survey of academic internal medicine departments. J Gen Intern Med. 2003;18:656-658; Pierluissi E, Fischer MA, Campbell AR, et al. Discussion of medical errors in morbidity and mortality conferences. JAMA. 2003;290:2838-2842) despite that most governments provide legal protection against self-incrimination.
This author knows of situations where a physician, concerned about the conduct of a surgeon, explicitly followed the instructions of the departmental chair only to find themselves removed from any position to observe the surgeon’s subsequent behaviors and further was subjected to retaliation by constructive dismissal. In another situation of unprofessional conduct of a physician in a private practice, another physician attempted to enlist the help of the local medical society to find an informal and less threatening means to address the conduct after direct attempts to personally discuss the situation failed. The medical society said they had no means and referred the concerned physician to the state medical board who stated they would only intervene if a formal complaint was lodged after speaking to the board’s attorney. Such actions would only escalate the tension and cause the physician of concern to become defensive. Making an opportunity to seek accountability into a “nuclear option” effectively takes such interventions off the table.
Too few to fail
One could argue that in a free capitalist market, the consumer, in this case the patient, could “vote with their feet” and find a physician or healthcare professional they find accountable. One could argue to let the “free hand of the market” force accountability. However, for any free market to be effective, there must be transparency and choice. In this case, consumers (patients) cannot force transparency because of their lack of knowledge compared to the provider. Further, there is really little choice. Whatever choice patients may have had, has been lost by HMOs and PPO’s that severely limit the patient’s choice.
Whatever choice, by which to enforce accountability, is further eroded by the shortage of physicians generally. It is estimated that the shortage of neurologists from what is needed will grow from 11% (from 2012) to 19% by 2025 (Dall TM, Storm MV, Chakrabarti R, Drogan O, Keran CM, Donofrio PD, Henderson VW, Kaminski HJ, Stevens JC, Vidic TR. Supply and demand analysis of the current and future US neurology workforce. Neurology. 2013 Jul 30;81(5):470-8. doi: 10.1212/WNL.0b013e318294b1cf. Epub 2013 Apr 17. PubMed PMID: 23596071; PubMed Central PMCID: PMC3776531). The concern is that a healthcare provider system will not risk alienating a neurologist (or any other physician and healthcare professional) by insisting on higher standards of accountability.
Ethical principles and moral theory
From a number of ethical and moral perspectives, physicians and healthcare professionals have a responsibility to hold themselves, and each other, accountable. Such accountability is inherent in the ethical principle of autonomy, meaning respect for the patient. Similarly, accountability is inherent in the ethical principle of justice, whether that principle of justice is informed by libertarian or Kantian (deontological) morality. The Kantian notion of morality holds that each person (patient) is an end unto themselves and not a means by which others achieve their ends. Libertarian moral theory holds the maximum freedom is the greatest good. Libertarianism avoids anarchy by mutually agreed contracts, either implicit or explicit, where benefits and obligations are freely traded with a set of constraints that enforce good faith and fair dealing. Clearly, this is a call for accountability.
In many ways, patients (or their legal representatives) have a contract with their physician and healthcare professional. It may be explicit between them or a surrogate can intervene on behalf of the patient, such as the insurer, government or society. For example, the government, such as state medical boards, require physicians to treat every patient to the standards of practice and it is not necessary for any patient to negotiate such treatment with the medical professional. Further, there is a contract between the government and medical professionals representing an exchange of goods and obligations. The government grants medical professionals a form of monopoly. Only those licensed by the government can enjoy the goods that come from providing professional medical care. In exchange, medical professionals are expected to act in the patient’s best interest. The state holds the physician accountable.
Physicians and many healthcare professionals have an additional obligation of beneficence to the patient. It is highly unlikely that any physician or healthcare professional paid for their education and training on their own. It is society that provides the opportunity for individuals to become physicians and healthcare professionals. This implies an obligation to reciprocate by caring for patients as patients deserve.
A matter of personal choice
All the ethical principles and moral theories, in themselves, cannot compel the best efforts of medical professionals. As discussed, there is very little in the way of effective outside enforcement of accountability. Consequently, the only real recourse is internal accountability. In other words, it is up to each physician and healthcare professional to hold themselves accountable. Thus, we come back around to the issue of personal motivation. Hopefully the motivations will have a perspective that is outwardly directed to the benefit of patients. There would be much to gain by such a perspective. One can learn a great deal about themselves in the process. It is striking that Mohandas (Mahatma) Gandhi entitled his autobiography describing his efforts on behalf of his fellow citizens, The Story of My Experiments with Truth (1948).