Bad News from Oregon - We'll Have to Wait

A few hours after my optimistic posting yesterday about what I hoped would be an educative debate about health care as a right, I learned from Representative Mitch Greenlick that HJR 100, which would have put the question onto the November ballot, died in the Oregon Senate without a vote.

(Follow this link to read Representative Greenlick's floor speech about rights.)

Another Oregonian (not Rep. Greenlick) passed on to me a speculation that apart from a crowded Senate session and an end-of-session clutter of bills waiting for action, some Democrats may have feared that if the question of health care as a right got onto the November ballot and lost, it might undermine other health care reform efforts.

Health Care as a Right in Oregon

Everyone interested in medical ethics and health policy should thank Oregon. In the 1980s-1990s Oregon brought rationing out of the closet as a question calling for open debate. Now it has outed the question of whether we should think of health care as a right.

Representative Mitch Greenlick, chair of the House Health Care Committee, and former director of the Kaiser Permanente Center for Health Research, is champion for House Joint Resolution 100, which proposes adding a section to the Oregon Bill of Rights:

"The people of Oregon find that health care is an essential safeguard to human life and dignity and that access to health care is a fundamental right. In order to implement that right, the Legislative Assembly shall establish by law a plan for a system designed to provide to every legal resident of the state access to effective and affordable health care on a regular basis."

On February 14 the House voted 31-29 – on strict party lines – in favor of the amendment. If the Senate approves, which is expected to happen, the amendment will go onto the state ballot in November. Let’s hope that happens. The debate will be educative, and progress in health system ethics requires societal learning more than anything else.

Oregon Catalyst, a web site for conservative Oregonians, threw down the gauntlet on health care as a right two years ago:

"There is No ‘Right’ to Healthcare – Period!

...the exercise of a right does not require anything from anyone else other than from the person exercising them. This is because a right exists independently, by nature. They are not granted by the Constitution. They are not granted by the government. Your next-door neighbor does not grant them.

Rights are natural, inherent, something you are born with. No one can give them to you, which means that a right cannot require someone else give something to someone.

Healthcare may be a need along with the infinite other needs of humans like food, water, or shelter. But, Health care is not a right because someone else has to provide it...

Even if I am hungry and need food, I can’t just take it from my neighbors. I do not have a right to their food just because I have a need. If I take it, that is called stealing.

If I put a gun to a doctor’s head and force him to treat my ingrown toenail that is also theft. (As well as assault with a deadly weapon.) I may have needed treatment, but I do not have a right to that treatment because it requires someone else's time or treasure.

Government should protect rights. Charity should provide for the needs of those that are unable to provide them for themselves. Requiring charity under threat of force is theft, just like holding that gun to the head of a doctor. We should encourage charity, not force it upon people through laws and taxation."

I expect that this strongly stated libertarian view of rights as inhering solely in the individual against outside powers will resonate strongly with the electorate. But after asserting that there are indeed "Natural rights inherent in people," the Oregon Bill of Rights gives an additional, more communitarian, way of thinking about rights:

"We declare that all men, when they form a social compact are equal in right: that all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, and happiness; and they have at all times a right to alter, reform, or abolish the government in such manner as they may think proper."

As I understand the Oregon debate, Greenlick and his allies are arguing that in a society as affluent as the US is, we should commit ourselves, through our government, to protect "peace, safety, and happiness" by ensuring access to decent health care for all, just as we commit ourselves to providing a basic level of education to all. From this perspective, the commitment creates the right, not vice versa.

Even though the Oregon Health Plan has come onto hard times, its creation advanced public understanding of the connection between setting limits and providing access. If HR 100 gets onto the November ballot, we can hope for a comparably educative debate.

Hat's off to Oregon!

Topping-up: Medical Ethics, Equity, and Rationing, in the National Health Service

The British National Health Service is facing an important moment in the global debate about medical ethics, rationing, and equity.

Yesterday’s New York Times described a UK conflict about “topping-up” – buying services above and beyond what the NHS covers. The story is confusing. As I understand it, NHS policy is, at one and the same time, admirably honest and troublingly muddled.

Debbie Hirst has had breast cancer since 1999. It spread. Her doctors advised her to try Avastin, a drug approved by the FDA for advanced colon and lung cancer, but not for breast cancer. The National Health Service does not cover Avastin, and Ms. Hirst has sought to obtain it on a self-pay basis.

(By coincidence, the FDA may decide today about Genentech’s controversial application for breast cancer approval. For an excellent statement opposing approval, see Maggie Mahar’s Health Beat blog.)

This is the admirably honest part of the story. The NHS has made an explicit rationing decision, something we in the US, always excepting the original Oregon Health Plan, haven’t had the guts to do openly. We prefer to leave 47 million uninsured and to claim sanctimoniously that while the UK rations, we don’t. The NHS has concluded that on the basis of what we currently know about Avastin for breast cancer, there are better uses of NHS funds and it should not be covered.

I am not an expert on Avastin, and have not reviewed the primary source data. But I do know about fair process for setting limits. The NHS is a model. The key components of fair process are honesty, openness, and humility. Honesty requires that the rationale for policy must be clearly stated. Openness requires that the rationale be readily available to the public. Humility requires opportunity for critique, appeal, and new learning. It is more ethical by far to set an evidence-based limit on what is cost-worthy for collective funds as the NHS does than to pretend that rationing is an evil and to ignore 47 million uninsured as we do.

Unfortunately, at least to my reading, the NHS is muddled about the ethics of topping up. Debbie Hirst and her doctors were told that if she bought uncovered services outside of the NHS she could not use the NHS for what it does cover. The health secretary is quoted as saying:

"Patients cannot, in one episode of treatment, be treated on the NHS. and then allowed, as part of the same episode and the same treatment, to pay money for more drugs...That way lies the end of the founding principles of the NHS."

This seems wrong. We may believe that wealth is distributed unjustly, but that is not the fault of the NHS. Collective funding should be governed by considerations of cost-worthiness. Making that determination is technically and ethically challenging. But it is what every 21st century society will ultimately have to do. Individuals should then be free to use their own funds, as for Avastin.

Setting limits on what collective funds will pay for is not intended to preclude the use of private funds. That doesn't make conceptual sense, and will certainly not be acceptable politically. This piece of muddled limit-setting process is sure to be seized upon by those who want to claim that health care rationing is a moral abomination, not, as is really the case, an ethical necessity.

(Readers who want to delve into the details of topping-up should read "Free at the point of delivery - reality or political mirage?" by members of the UK group Doctors for Reform.)

Teaching Medical Ethics (Informed Consent)

This spring I have the privilege of teaching in the required first year “Medical Ethics and Professionalism” course at Harvard Medical School. The course is taught in seminar sections. I will be working with 13 students who come to medical school with varied backgrounds and experience, but who, judging from our first class and their first weekly 500 word paper, have intelligence, enthusiasm, and idealism, in common.

Last week’s seminar focused on informed consent. They read the section on informed consent in “Principles of Biomedical Ethics” (Beauchamp & Childress) and “The Learning Curve,” a New Yorker article in which Atul Gawande discusses the tension between the patient’s wish for the best possible treatment and society’s need for training the next generation of clinicians, who have to learn by doing.

We organized the seminar around brief cases. The most gripping case involved a fourth year Harvard Medical student doing a subinternship at a local hospital. The chief resident asks the student to do a procedure s/he has never done. The procedure requires drawing blood from an artery in the wrist. The procedure, at best, is painful. The student has a good relationship with the 64 year old patient. Our question was – what does informed consent require telling the patient?

We all agreed that the student had to make sure that the patient understood the proposed procedure, the rationale for doing it, and the risks and benefits. That’s basic. But what about the fact that the student is…a student? All agreed that the patient should be told that the student is indeed a student, not a graduate physician. So far, so good.

Now came the tough question. Should the student tell the patient “this will be the first time I will be doing the procedure?” We pushed hard on this one, role playing the alternatives. I played the patient, and tried to be as difficult to handle as possible.

We took a vote on what to do. It split down the middle. All agreed that if the patient asked “have you done this before?” he should be told the truth. But the class was divided on whether this should be done proactively.

My take on this was to interpret the situation as a classical good vs. good conflict. Robust informed consent is a fundamental value. But so is competence, and we won’t have competent physicians in the future if we don’t train them now. Reasonable people, I suggested, could weigh these values differently, and come up with different answers.

But the students, happily, didn’t stop there. Without labeling it as such, they moved from clinical ethics to organizational ethics. I may have nudged them to think in terms of “preventive ethics,” but it seemed natural and sensible to them to ask – “how can we minimize the frequency of raw ethical problems like the one the student was facing?”

They came up with a number of good ideas. The hospital should have clear policies about training students to do procedures. How many should they be required to watch before trying? To the greatest extent possible, simulation should be used first. When the time comes to encourage the student to put hands on, there should be close supervision. And, there should be training, as was beginning to happen in the class, about how to talk with the patient. Students felt that in circumstances like these it would be much easier to conduct a robust process of informed consent:

“I am a medical student, working with Dr. X. I have not done this procedure before, but I have been trained in how to do it. Dr. X will be right here, to make sure everything goes right. Is all this OK with you?”

Organizations can’t be ethical without ethical clinicians. But it is much easier for clinicians to be ethical when organizations get their own ethical act together!

The FDA's Latest Giveaway to Pharma

The FDA has posted a policy draft: “Good Reprint Practices for the Distribution of Medical Journal Articles and Medical or Scientific Reference Publications on Unapproved New Uses of Approved Drugs and Approved or Cleared Medical Devices.” A better name would be: “Let’s Give Away the Shop to Industry and Encourage Bad Medical Practice.”

Here's the essence of the FDA’s reasoning:

FDA…recognize[s] the important public policy reasons for allowing manufacturers to disseminate truthful and non-misleading medical journal articles and medical or scientific reference publications on unapproved uses of approved drugs and approved or cleared medical devices to healthcare professionals and healthcare entities…These off-label uses or treatment regimens may be important and may even constitute a medically recognized standard of care. Accordingly, the public health may be advanced by healthcare professionals' receipt of medical journal articles and medical or scientific reference publications on unapproved or new uses of approved or cleared medical products that are truthful and not misleading.

This proposal to abdicate responsibility for public health didn’t fool Henry Waxman, the ever-vigilant chair of the House Committee on Oversight and Government Reform, Waxman's letter to the FDA is worth reading. Here is his conclusion:

I recognize this area of the law is complex and that FDA needs to respect the First Amendment rights of drug and device companies to communicate truthful and non-misleading information to doctors and patients. But the draft guidance…would open the door to abusive marketing practices that will jeopardize safety, undermine public health, and lead to an increase in unapproved uses of powerful drugs.

The danger to patient health should be readily apparent from the examples of journal article abuses…including anti-depressants, Vioxx, Celebrex, antiarrhythmics, Neurontin, and other False Claims Act settlements. Drug and device companies can manipulate and selectively distribute studies in order to make their products appear safer and more effective than they truly are. Where the unapproved uses are actually ineffective, patients have been denied other, more effective treatments and have been unnecessarily exposed to the ineffective products’ known side effects. Even worse, patients have suffered serious harm due to unanticipated and serious side effects of unapproved uses.

This story demonstrates how the big bucks to be made in pharmaceuticals can foster ethical degradation in major health institutions. The FDA panders to marketing. Journals publish skewed studies. Respected clinicians become industry shills.

The ethical quality of our health care system depends on checks and balances. An entrepreneurial pharmaceutical industry is a public good. But entrepreneurialism, like a rifle, has to be aimed correctly. Breakthrough drugs that meet real health needs and create mega-profits should be celebrated. Me-too drugs and spurious promotion of off-label uses should be fought against, as Representative Waxman's committee is doing.

I don't think the people in the pharmaceutical industry are any worse than those who deliver health care. We are all influenced by our environments and the incentives we encounter. What we are seeing in stories like this one is what will happen if we squander the crucial checks and balances process.

[On this topic, see also the excellent blog postings by Merrill Goozner and John Grohol. And, for a recent example of how the journal process has been corrupted, the Carlat Psychiatry Blog.]

Collaborating to Control Health Care Costs

In the losing battle to contain health care cost increases, employers and insurers are getting some black eyes.

In previous posts I discussed (a) employer experiments with penalties for poor employee health habits and (b) Blue Cross of California's stab at enlisting physicians in detecting enrollee fraud. Both efforts are in retreat.

Blue Cross had asked physicians to review the accuracy of insurance applications from their patients. This practice is allowed by California law. But physicians were outraged at being asked to "rat" on their patients. Blue Cross backed down, and acknowledged that it "was creating a misimpression and causing some members and providers undue concern."

With regard to employer incentives, Clarian Health Partners, an Indiana hospital system with 13,000 employees, had set standards for tobacco use, weight, blood pressure, blood glucose, and cholesterol. They proposed that employees who did not meet the targets and were not working toward them would pay $5 per risk toward their health insurance premium per pay period. Employees revolted. Like Blue Cross, Clarian backed down.

I don't agree with the California Medical Association in faulting Blue Cross or with the Clarian employees in faulting Clarian. Blue Cross and Clarian are trying to make cost-containing moves in a profoundly broken system. As a result, like drowning swimmers they thrash about and raise havoc with those they interact with.

Until a clone of former Oregon Governon John Kitzhaber appears on the national political scene, we can't expect the kind of educative leadership our body politic needs. (See the speech I proposed ten years ago for the Vermont Governor.) In the absence of top down leadership, we have to rely on bottom-up collaboration. Blue Cross should sit down with the California Medical Association and say - "OK guys - we really messed up. Let's learn from our mistakes and work together to get a better grip on costs..." Clarian should do the same with its employees.

Liberal outrage against "unethical insurers and employers" and conservative outrage against "entitled, cost-unconscious employees" make for lively journalism and elevated pulse. But the psychiatrist in me sees these unproductive battles as efforts to avoid acknowledging a painful fact - we need to set limits in health care. Family therapists know that family fights don't end until the family acknowledges the real source of pain. When that happens, families can get down to work on making things better.

We need to learn to use the "family arguments" between insurers and physicians and between employers and employees as pathways towards ground-level collaboration. In families, when parents crump out - the way our political leaders have been doing for years - the kids have to do the work!

A Tough Medical Ethics Problem for Health Insurance

WellPoint, the company that operates California Blue Cross, is in a battle with California physicians over the pre-existing conditions clauses in insurance policies. An informative Los Angeles Times article shows how our dysfunctional health care “system” creates a three-way game of chicken in which insurees' rational self interests, physicians' ethics, and insurance company responsibility for cost containment, inevitably collide. Everybody loses.

Health insurance is so expensive that individuals are tempted to gamble that they won’t need it. Rational self-interest points to forgoing insurance when we are healthy and getting it when we are sick.

But our “system” asks insurers, whether for-profit, like WellPoint, or not-for-profit, like Kaiser Permanente, to control costs, in addition to paying for necessary care. Part of controlling costs is discouraging “free-ridership” – taking out insurance only when the need arises. The noxious exclusions for pre-existing medical conditions exclusions are necessary for playing the insurer role in our health “system.”

Blue Cross of California is sending physicians copies of health insurance applications filled out by new patients, along with a letter advising them that the company has a right to drop members who fail to disclose "material medical history," including "pre-existing pregnancies." The peremptory-sounding letter tells physicians that "any condition not listed on the application that is discovered to be pre-existing should be reported to Blue Cross immediately."

For physicians, caring for individual patients is their primary commitment. The president of the California Medical Association says "we're outraged that they are asking doctors to violate the sacred trust of patients to rat them out for medical information that patients would expect their doctors to handle with the utmost secrecy and confidentiality,"

Anthony Wright, executive director of HealthAccess California, a healthcare advocacy organization, says WellPoint is “playing a game of 'gotcha' where they are trying to use their doctors against their patients' health interests…That's about as ugly as it gets."

So WellPoint is the bad guy. Right?

No - wrong.

Our “system” asks insurers to control costs. They can’t do that if we are allowed to eschew insurance when we are well and buy it when we become ill. We shouldn’t blame insurers when they do what we ask them to do.

Of course, insurers can game the system in unethical ways. It is one thing to block free-ridership by not allowing individuals to (a) choose not to buy insurance, (b) apply for it when ill, and (c) fraudulently choose not to reveal the fact of illness. But California companies have gone beyond disenrolling individuals who knowingly commit fraud (technically called “rescission”) http://attorneypages.com/hot/trigger-health-insurance-rescission.htm and appear to have used technicalities in a “gotcha” manner to avoid paying claims. http://www.latimes.com/business/la-fi-rescind25dec25,1,1624594.story?ctrack=5&cset=true

The moral of the California story is that we can’t control costs in our current system. As insurance gets more expensive, more individuals will choose to go bare. Insurers will continue to monitor for fraud, but will also be tempted to disqualify non-fraudulent applications for technical errors. Physicians will resist blocking their patient’s access to coverage, even when the coverage was obtained by fraud.

Our current approach to the California conundrum is to mandate that individuals obtain coverage. We are in the early stage of experimenting with that approach. If the mandate system doesn't work, some form of Medicare for all is the logical next step.

The Ethical Health of our Organizations - 2007 National Business Ethics Survey

Today I finally read the Ethics Resource Center's 2007 National Business Ethics Survey.

Don't read it at bedtime. It's scary!

Interviews with 2,000 employees suggest that the state of business ethics is back to where it was before Enron and Sarbanes-Oxley. Here are some of the disturbing findings:

* 56% had seen violations of company ethics standards, policies, or the law, in the past year.

* This is up from 52% in 2005 and 46% in 2003, & back to the pre-Enron level of 55%.

* More than 2 in 5 (42%) of those who observed misconduct chose not to report it within the company.

* The main reason for not reporting (54%) was feeling that reporting would accomplish nothing, so why bother?

* The second reason for not reporting (36%) was fear of retaliation.

* Only 9% of companies have what the Ethics Resource Center calls a "strong ethical cutlure."

The report does not differentiate industry sectors. I would guess, and hope, that hospitals and group practices rate better than the overall average. I would guess, and fear, that many key participants in health care - insurance companies, pharma, medical device companies, home health services, etc - are closer to the mean.

The church sexual abuse scandals tell us that the fact that health care, like the ministry, is a calling, isn't enough of a safeguard.

The strength an organization's culture of ethics was the strongest predictor of ethical performance. Strong cultures had 75% fewer incidents of misconduct than weak cultures.

Employees identified four components of strong organizational ethical cultures:

1. Top leadership sets an ethical tone and is trusted to do the right thing.

2. The level just above the employee in the heirarchy sets a good example and encourages ethical behavior.

3. The peer group encourages its members to "do the right thing."

4. Informal communications channels complement and are consistent with the organization's official values.

These four factors aren't rocket science. An attentive board can encourage top leadership to set the right tone. Review systems can focus on the example mid-level managers set and the behaviors they encourage. Higher ups can recognize peer leaders and listen to them. And, actions like Memorial Sloan Kettering eschewing commercial CME sponsorship and St. Mary's Hospital/Duluth Clinic chucking out cups and pens with product labels show us what "informal communication" means.

So if it doesn't require rocket scientists to build strong ethical cultures, why do only 9% of companies have them?

In health care we know that incentives are often screwed up. Like rewarding clinicians for what they do to patients rather than for talking with them, and paying hospitals more for fixing errors than for getting things right the first time around.

But we can't just blame incentives for the sorry national state of organizational ethics. Organizations (and our culture) like glitz and speed. The four factors employees identified as key for a culture of ethics are mundane and slow.

I'm especially interested in comments from readers. In your experience, what are the important on-the-groud factors that promote good ethics in the organizations you have seen?

New Edition of Setting Limits Fairly

This is an advertisement.

"Setting Limits Fairly: Learning to Share Resources for Health" (Second Edition), written with Norman Daniels, has just been published by Oxford University Press. Norman and I have added a new preface and three new chapters to the first edition (2002).

The central idea in the book is that we lack consensus on principles for allocating resources for health. In the absence of consensus we must develop and rely on a fair decision-making process. Norman and I developed our conception of that process - which we call "accountability for reasonableness" - from ten years of studying decision-making in the U.S., Canada, and the U.K.

The accountability for reasonableness framework identifies four conditions for seeking fairness in health priorities:

Relevance – the rationales for priority setting decisions must be based on reasons (evidence and values) that stakeholders can agree are relevant. Procedurally, having a wide range of stakeholders participate in deliberation ensures that the full range of relevant reasons will be considered.

Publicity – priority setting decisions and their rationales must be publicly accessible, not just on demand, but through various forms of active communication outreach.

Revisability – there must be processes for revising decisions and policies in response to new evidence, individual considerations, and public reactions.

Enforcement – local systems and leaders must ensure that the above three conditions are met.

In the six years since the first edition was published, "Setting Limits Fairly" has had more attention outside than inside the U.S. The fragmented U.S. health care system lets us Yanks avoid acknowledging the need for limits. By contrast, universal coverage and fiscal responsibility for health care have forced European and Commonwealth countries to grapple with limits much more directly. A new chapter describes how accountability for reasonableness has been applied in Canada, New Zealand, Sweden, and the U.K. A second new chapter argues that the concepts are relevant for low and middle income countries as well. The final new chapter applies the accountability for reasonableness framework to the effort to eliminate health inequalitites and to advancing the concept of health as a human right.

Books take longer to gestate than even baby elephants do. This blog represents my effort to put ideas about how health organizations and the health system can be more ethical out in real time, and to join forces with others who look at health and health care in a similar spirit.

More Ethics/Less Jail

If ideals don’t motivate organizational leaders to care about touchy-feely matters like “ethical culture” and “ethical climate,” prudence will.

Since 2004, in the aftermath of Enron and other corporate scandals, the Federal Sentencing Guidelines have asked organizations to “promote an organizational culture that encourages ethical conduct and a commitment to compliance with the law.” If a corporation is found guilty of a crime, sentences for its leaders may be mitigated if it has a compliance and ethics program that meets Sentencing Guidelines standards.

Less ethics/more jail. More ethics/less jail. That formula captures attention!

Some years ago, I and some colleagues were excited when a prominent organization asked us to help them develop an ethics program. We proposed an ideals-centered design. They weren’t interested. When we began to see newspaper stories about accounting lapses, we understood that they were really looking for a form of the Monopoly “get out of jail” card.

But even for the most values-oriented leaders, it isn’t obvious how to develop a truly ethical culture. The sentencing guidelines threat has created a mini-industry of off-the-shelf “ethics training” programs. Consultants will help organizations develop “ethics codes” and “values statements.” But in my experience, if health professionals believe these actions are driven by prudential concerns, the culture becomes more cynical and less ethical.

So what should values-oriented leaders do? Two recent stories about how health organizations deal with Pharma provide great examples.

1. SMDC Health System in Minnesota was formed by the integration of St. Mary’s Medical Center and the Duluth Clinic. St. Mary’s was founded in 1888. The Duluth Clinic started in 1934. The organization they formed by joining has as its mission bringing “the soul and science of medicine to the people we serve.”

SMDC decided to take conflict of interest seriously. In a “Clean Sweep” program the staff purged itself of all of the pens, coffee mugs, and other pharmaceutical advertising trinkets that had accumulated over the years. 18,718 items were shipped to Cameroon. (Since the branded products advertised on the purged items are not available in Cameroon, shipping them rather than burning them was deemed acceptable.)

2. From Danny Carlat’s excellent blog on CME I learned that Memorial Sloan Kettering Cancer Center in New York decided to forgo commercial sponsorship for its internal CME and the 15 – 20 external conferences it puts on each year. This wasn’t easy to do. Commercial sponsors provided 25% of Sloan Kettering’s CME budget. Adapting to the new conditions required a lot of changes and involved a lot of people. The CME programs are using more internal speakers. The external programs have been moved out of hotels to on-site space. Program managers have had to find clever ways to reduce costs and increase revenues.

These are good examples of putting values into action and “educating” staff in meaningful ways. Professionals don’t like going to meetings where speakers exhort them to be good and not to succumb to conflicts of interest. Cleaning pens and cups off of our desks and bringing a brown bag to a CME session are likelier to strengthen the ethical climate of our organizations. It is better to walk the ethics walk, even in small steps, then to swim in an ocean of ethics talk.

Hats off to SMDC and Sloan Kettering!

Assisted Suicide

Jane Brody has a moving argument for the ethical acceptability of assisted suicide in today's New York Times.

Most arguments for assisted suicide focus on relief of intractable pain. Arguments against it usually interpret the wish for death as a symptom of treatable depression or social isolation. Brody quotes from a letter she received from a thoughtful, related, ready-to-die 93 year old, to point towards an "existential" rationale for supporting the possibility of assisted suicide:

"Often the reasons are existential — recognition that their lives have lost all meaning, concern that they have become an undue burden to their loved ones, desire to avoid a protracted death or distress about the time and money being “wasted” in prolonging their lives, which are destined to end soon, anyway."

Assisted suicide is a very divisive issue. People of good will differ. But whatever our positions, journalism like Jane Brody's piece will widen our empathy.

A Ridiculous use of Medical Ethics Teaching

Dr. John A. King, a 49 year old osteopathic physician who has practiced in at least nine different states, is in trouble again.

The Charleston Gazette reports that King, who has "dozens" of pending malpractice cases against him in West Virginia, is now accused of overdosing two Alabama patients with pre-surgical sedatives, putting one of them into a 26 hour coma. Since 2004 King has lost or surrendered his license in Florida, Georgia, Michigan, New Jersey, Ohio, Pennsylvania, Texas, Virgina and West Virginia. Now the Alabama Board of Medicine is trying to revoke his Alabama license.

What struck me in this gruesome story was this brief comment: "[in 2006] the Alabama board fined King $2,500 and ordered him to complete a medical ethics course..."

Mandating an ethics class was not an unusual step. Miscreants are often directed to take ethics classes. What can a board imagine this will accomplish? There are three alternative rationales - cynicism, optimism, and magic.

The cynical rationale: Ordering an ethics course is a way of appearing to do something, and a justification for not undertaking meaningful action, like removing a license, which could lead to litigation.

The optimistic rationale: The miscreant means to do the right thing. An ethics course that points the way will correct erroneous beliefs and bring about reform. This was the rationale behind 19th century penitentiaries and mental asylums - convicted criminals and the mentally ill would be reformed by contemplation of scripture.

The magical rationale: Like divine intervention, the ethics class will pierce the miscreant's evil self and bring about transformation.

I have seen situations in which physicians who received many complaints about their interactions with patients changed the trajectory of their careers after communication skill training. But in a situation like that of Dr. King, with (literally) hundreds of serious allegations against him, cynicism is the most plausible explanation for referral to ethics study as an appropriate resolution.

The serious ethical issue here is failure on the part of the medical profession to follow through on its commitment to self-regulation. "Sentencing" physicians who have committed serious breaches of responsibility to ethics courses is an insult to patients and the public.

Is there a Right to Practice Medicine?

On October 11, 2002, Dr. Martin H. Stein, a prominent Virginia psychiatrist, surrendered his medical license to the Virginia Board of Medicine. On January 31, 2008 he petitioned to have his license reinstated.

Stein’s lawyer described him as “a changed man…[who is] looking for the board to give him another chance.” Dr. Samuel Potolicchio, professor of medicine at George Washington University said that Stein “has been doing everything he should be doing to get reinstated.”

I have no first hand knowledge of Stein’s situation. But let’s assume that he is indeed a changed man who has been doing everything right since 2002. What then?

The Board of Medicine’s 2002 Consent Order is painful to read. Stein was “sexually intimate” with “Patient C.” He inculcated false memories of childhood abuse with hypnosis, suggestion and massage. He went shopping with her (for $200 per hour), encouraged her to divorce her husband, and personally appraised her valuables for sale. With "patient H" he prescribed medications in excessive doses, resulting in permanent brain damage. The sordid details go on for 22 pages.

To my reading, the facts detailed in the Consent Order require that Stein not ever be allowed to practice medicine. The violations of trust and competence detailed by the Virginia Board are profound. Reinstating his license would give more weight to Stein’s right to a second chance than to protecting future patients. Responsible self regulation is a core requirement for the medical profession. Practicing medicine is a privilege, not a right. Reinstating a physician who had abused trust so extensively for such a long time would make a mockery of the self regulatory concept.

Yesterday the Virginia Board did the right thing – it refused to reinstate Stein’s license.