The Wall Street Journal Weighs In about St. Joseph's Hospital

I've been following the controversy between Bishop Olmsted of the Phoenix Diocese and St. Joseph's Hospital in Phoenix and its parent organization, Catholic Healthcare West. (See here, here, and here for previous posts.) I'm not Catholic, but I"m moved by the moral seriousness of Catholic healthcare ethics, and have admired the church's strong traditions of social justice since learning about the Berrigan brothers during the Vietnam era.

In an op ed in today's Wall Street Journal, Professor Anne Henderschott of The King's College in New York weighs in with strong support of the Bishop. I've taken the liberty of reprinting the op ed, with my own comments interlaced in bold italics:

Catholic Hospitals vs. the Bishops
Administrators shop for theologians to support practices that conflict with church teachings.
By ANNE HENDERSHOTT

The severing of ties last week between the Catholic Church and St. Joseph's Hospital in Phoenix, Ariz., is the latest example of the fraying relationship between the bishops and Catholic hospital administrators. In recent years, some Catholic hospitals have taken greater liberties, authorizing abortions and sterilization procedures that the church strictly prohibits. Earlier this year, for instance, Rev. Robert Vasa, bishop of the Diocese of Baker, Ore., ended the church's sponsorship of St. Charles Medical Center in Bend over the hospital's performance of tubal ligations.

But the Phoenix case breaks new ground. In explaining his decision, Rev. Thomas Olmsted, bishop of the Phoenix Diocese, was the first to explicitly point to the role played by Catholic theologians in providing theological cover for "a litany of practices in direct conflict with Catholic teachings."

The terms "shop for theologians" and "theological cover" are catchy journalism, but cheap shots of this kind are demeaning to what has thus far been a thoughtful, respectful deliberation. The terms presuppose the correctness of the Bishop's position, which is exactly what is being questioned.

The break began more than a year ago, when a Catholic nun and longtime administrator of St. Joseph's Hospital gave permission for doctors to perform an abortion. She claimed the pregnancy was terminated to save the life of the mother. Sister Margaret McBride's decision drew sharp criticism from Bishop Olmsted. After excommunicating Sister McBride, the head of the diocese then turned his attention to the role of the hospital itself.

In the phrase "She claimed..." the op ed again substitutes rhetoric for analysis. "Claim" is defined as "demanding one's due." Guilty parties claim innocence. Children claim the toy is really theirs and doesn't belong to the true owner. A proper description is that Sister Margaret "concluded" that the procedure was morally justified. We might end up thinking she was wrong, but we shouldn't treat her as making an unreasoned "claim."

In a Nov. 22 letter to Lloyd H. Dean, president of Catholic Healthcare West, the hospital's parent company, Bishop Olmsted wrote that he would be moving to revoke the Catholic status of the hospital unless certain conditions were met by hospital administrators. Among other things, the bishop demanded that hospital officials acknowledge in writing that the abortion performed was a violation of Catholic directives for health-care institutions.

But hospital officials have defied the bishop and refused to meet his conditions. Rather than acknowledge that an illicit abortion had been performed at his hospital, Mr. Dean attempted to support Sister McBride's decision by pointing out that "many knowledgeable moral theologians have reviewed this case and reached a range of conclusions."

Once again, the op ed assumes that the procedure was "an illicit abortion" without engaging with the substantive questions at stake.

In a July 6 letter to Bishop Olmsted, Mr. Dean asserted that "this is a complex matter on which the best minds disagree." Citing the opinion of Marquette University Professor M. Therese Lysaught on the permissibility of the abortion performed at St. Joseph's, Mr. Dean appeared to suggest that the teaching authority of the Phoenix Bishop was just one more "opinion" on a "complex matter."

I've had the opportunity to read Professor Lysaught's analysis. In its careful attention to (a) the medical facts of the situation and (b) the complex ethical issues the patient, family, and caretakers were dealing with, it's (c) a brilliant, persuasive analysis. I hope it becomes widely available - I would like to use it in my class on medical ethics as an example of careful reasoning about a topic that is too often drowned in strident rhetoric.

This case points to the real problem in the church. For too long, the authority of bishops has been limited to issuing mere opinions. This is especially true at Catholic colleges and universities, where bishops have little affect on the culture and curriculum.

In the recent health-care debate, it was these same Catholic theologians who joined Sister Carol Keehan, head of the Catholic Health Association, to defy the bishops over the legislation in Congress. Cardinal Francis George, president of the United States Conference of Catholic Bishops, criticized Sister Keehan and her organization for supporting a bill that did not contain provisions to protect life. President Obama was so grateful for Sister Keehan's help in shepherding the bill through Congress that he awarded her one of the 20 pens used in the law's signing ceremony at the White House.

Many theologians, like Prof. Nicholas Healy of St. John's University in New York, write that theologians comprise "an alternative magisterium" to the teaching authority of the bishops. And in cases like the one at St. Joseph's, the alternative magisterium often trumps the true Magisterium of the church. Catholic colleges and hospital administrators now "shop" for theologians who will support their decisions.

As an interested observer of the Catholic tradition, my hunch is that the choice for the church is finding ways to live with the "alternative magisterium" or lose Catholics to other denominations (or to "unaffiliated" status). As I've written in a previous post, the Bishop's conclusion about the Phoenix case is not likely to persuade many of the faithful. The fetus and mother were both in the process of dying. There was no medically imaginable scenario that would have led to birth of a living child. The Bishop's position would appear to have required the caretakers to wait until the fetus had died, hoping that the mother would still be alive and that a D & C could then be done to save her life. Even to those who regard abortion as an evil to be forbidden, I believe the Bishop's position will seem like a tortured effort to hold to an orthodoxy that simply makes no sense by criteria of (a) "common sense," but also (b) by Catholic theology and ethics, seen in the light of Professor Lysaught's analysis.

Bishop Olmsted has refused to allow this to continue. In his letter responding to Mr. Dean, the bishop wrote: "You have only provided opinions of ethicists that agree with your own opinion and disagree with mine."

Concluding that "there can be no tie so to speak in this debate," Bishop Olmsted said, "it is my duty as the chief shepherd in the diocese to interpret whether the actions at St. Joseph's meet the criteria of fulfilling the parameters of the moral law as seen in the Ethical and Religious Directives."

For faithful Catholics, there is relief that the tie between the theologians, the administrators and the bishops seems finally to have been broken. But there remains a sadness that yet another Catholic institution has been lost.

I have no expertise about the theological understanding of the role of the Bishop within the church, but I believe Bishop Olmsted is correct in claiming positional authority to declare what is true church teaching. The problem with regard to the St. Joseph's Hospital situation is that his analysis is not likely to be persuasive. Since the fetus, as well as the mother, was in the process of dying, there was no way to protect the unborn life. The choice was between two deaths, or one.

The comments in response to newspaper articles on the case often invoke the pedophile scandals. This is psychologically understandable, but not relevant to the merits of the Bishop's argument. The pedophile scandals have dealt a severe blow to trust in the church heirarchy, just as the scandals about sex with patients and corruption of medical judgment by commercial interests have diminished trust in the medical profession. Trust is easy to lose and very difficult to regain.

In a previous post I encouraged readers to watch the press conference in which Bishop Olmsted explained his decision. Although I was not impressed by his reasoning, I was moved by his moral passion, as expressed in his response to a question he was asked about being vilified in the media:

I really don’t read the blogosphere. I try to pray each day to find my identity in Jesus Christ… My identity comes from Christ. Christ is present in his living body, the church… That’s my identity, it comes from there. If I am unfaithful to that, then whether I’m looked at one way or another, if I’m given praise or given ridicule doesn’t matter. What I’m called to be is faithful to Jesus Christ and his church.

To my reading, paragraph 47 in the Ethical and Religious Directives for Catholic Health Care Services exactly describes the situation the patient, family, and caretakers faced:

Operations, treatments, and medications that have as their direct purpose the cure of a proportionately serious pathological condition of a pregnant woman are permitted when they cannot be safely postponed until the unborn child is viable, even if they will result in the death of the unborn child.

Had the caretakers postponed the intervention they made, both mother and fetus would have died. In concluding that it was ethically and theologically correct to terminate the pregnancy the patient, family, and caretakers were acting in accord with Jesus's teaching "I was sick, and ye visited me." I was sad to see Bishop Olmsted attach his moral passion to a conclusion that appears to be erroneous within his own theological and ethical tradition.

In Praise of St. Joseph's Hospital and the Sisters of Mercy

Although I believe that Bishop Olmsted was wrong from the perspectives of both secular and Catholic medical ethics when he decreed that St. Joseph's Hospital "no longer qualifies as a 'Catholic' entity...[and] may not use the name Catholic or be identified as Catholic in the Diocese of Phoenix," the moral seriousness and dignity of the conflict has much to teach. (See here and here for previous posts on the topic.)

Here's how St. Joseph's Hospital explained its views about the clinical circumstances:

A woman in her 20’s with a history of moderate but well-controlled pulmonary hypertension found out she was pregnant. There was concern for her health, because pregnancy with pulmonary hypertension carries a serious risk of mortality. Because of the severity of her disease, the woman’s risk of mortality was close to 50 percent. In November 2009, the woman was admitted to St. Joseph’s Hospital and Medical Center with worsening symptoms. Tests revealed that she now had life threatening pulmonary hypertension. The chart notes that she had been informed that her risk of mortality was close to 100% if she continued the pregnancy. The medical team contacted the Ethics Consult team for review. The consultation team talked to several physicians and nurses as well as reviewed the patient’s record. The patient and her family, her doctors, and the Ethics Consult team, agreed that the pregnancy could be terminated, and that it was appropriate since the goal was not to end the pregnancy but save the mother’s life.

The Bishop's condemnation and St. Joseph's defense both draw on a component of Catholic tradition that I, a non-Catholic, especially admire - the preferential option for the poor and vulnerable. This commitment to social justice comes from Jesus, as in this passage about the last judgment from Matthew (King James version):

34 Then shall the King say unto them on his right hand, Come, ye blessed of my Father, inherit the kingdom prepared for you from the foundation of the world:

35 for I was ahungered, and ye gave me meat: I was thirsty, and ye gave me drink: I was a stranger, and ye took me in:

36 naked, and ye clothed me: I was sick, and ye visited me: I was in prison, and ye came unto me.

37 Then shall the righteous answer him, saying, Lord, when saw we thee ahungered, and fed thee? or thirsty, and gave thee drink?

38 When saw we thee a stranger, and took thee in? or naked, and clothed thee?

39 Or when saw we thee sick, or in prison, and came unto thee?

40 And the King shall answer and say unto them, Verily I say unto you, Inasmuch as ye have done it unto one of the least of these my brethren, ye have done it unto me.

I encourage readers to watch the press conference in which Bishop Olmsted explained his decision. Although I was not impressed by his reasoning, I was moved by his moral passion. Here's the Bishop's response to a question he was asked about being vilified in the media:

I really don’t read the blogosphere. I try to pray each day to find my identity in Jesus Christ… My identity comes from Christ. Christ is present in his living body, the church… That’s my identity, it comes from there. If I am unfaithful to that, then whether I’m looked at one way or another, if I’m given praise or given ridicule doesn’t matter. What I’m called to be is faithful to Jesus Christ and his church.

The Bishop sees himself as defending the vulnerable fetus, since the life-saving intervention used the same medical technique that is applied in most abortions. What he fails to recognize, however, is that the fetus was not simply vulnerable - it was in the process of dying. The choice the family and the caretakers faced was whether to stand by and let the mother die as well, or terminate the pregnancy, which gave the mother a chance to live. There was no scenario by which the fetus would become a living child.

I'm in no way expert on Catholic medical ethics, but to my reading paragraph 47 in the Ethical and Religious Directives for Catholic Health Care Services exactly describes the situation the patient, family, and caretakers faced:

Operations, treatments, and medications that have as their direct purpose the cure of a proportionately serious pathological condition of a pregnant woman are permitted when they cannot be safely postponed until the unborn child is viable, even if they will result in the death of the unborn child.

Had the caretakers postponed the intervention they made, both mother and fetus would have died. In concluding that it was ethically and theologically correct to terminate the pregnancy the patient, family, and caretakers were acting in accord with Jesus's teaching "I was sick, and ye visited me." I am sad to see Bishop Olmsted attach his moral passion to a conclusion that appears to be erroneous within his own theological and ethical tradition.

A Worthy Conflict about Abortion in Arizona

The level of public debate about health care ethics has been in a sorry state in recent years, as evidenced by the Kaiser Family Foundation finding that thirty percent of seniors still believe the health reform law lets a government panel ("death panel") make decisions about end of life care.

In contrast, the Arizona "theological showdown" over abortion that I posted about last week addresses profound ethical issues with admirable clarity.

In November 2009 St. Joseph's Hospital in Phoenix performed an abortion on a patient who was (a) 11 weeks pregnant and (b) terminally ill with pulmonary hypertension, a condition made much worse by pregnancy. The hospital concluded it could not save both mother and gestating child. After consultation with patient, family, caregivers, and ethics committee, the abortion was performed.

Bishop Olmsted demanded that St. Joseph's acknowledge by December 21 that it had violated ethics and Catholic teachings and promise never to repeat what it had done. The hospital refused. In a terse statement the Bishop concluded that St. Joseph's "no longer qualifies as a 'Catholic' entity...[and] may not use the name Catholic or be identified as Catholic in the Diocese of Phoenix."

St. Joseph's response was respectful, but firm:

The leadership of St. Joseph's Hospital and Medical Center in Phoenix is saddened today following Bishop Thomas Olmsted's announcement that he has revoked his endorsement of the hospital as "Catholic." At his direction, the hospital will remove the Blessed Sacrament from the chapel and will no longer celebrate mass there.

Though we are deeply disappointed...St. Joseph's will remain faithful to our mission of care, as we have for the last 115 years...[we] will continue through our words and deeds to carry out the healing ministry of Jesus.

Consistent with our values of dignity and justice, if we are presented with a situation in which a pregnancy threatens a woman's life, our first priority is to save both patients. If that is not possible we will always save the life we can save, and that is what we did in this case...Morally, ethically, and legally we simply cannot stand by and let someone die whose life we might be able to save.

In teaching medical ethics I always encourage the groups I work with to (a) think through what they believe is the right thing to do, (b) explain the rationale for their conclusion, and then (c) ask what the law says. Most of the time law and ethics will coincide.

If our ethical analysis and the requirements of law diverge, the first thing to do is to revisit our ethical analysis. Did we miss something? After all, law is an expression of the body politic's conclusions about how to govern itself.

If we hold to the conclusion we reached, the next question is whether we see the situation as one in which fair-minded people can disagree about right and wrong. The Bishop spoke to this in his November letter to Catholic Healthcare West, parent organization to St. Joseph's:

...you stated in a letter to me "As you know, many knowledgeable moral theologians have reviewed this case, and reached a range of conclusions. If we may assume that these individuals are motivated by their faith and desire for justice, one must at least acknowledge that this is a very complex matter, on which the best minds disagree." Thus, it would appear that your intention is to resolve our disagreement by asserting that there is no single "correct" answer to the question of whether the procedure that led to an abortion at St. Joseph's Hospital was morally permissable under the Ethical and Religious Directives of the USCCB. In effect, you would have me believe that we will merely have to agree to disagree. But this resolution is unacceptable because it disregards my authority and responsibility to interpret the moral law and to teach the Catholic faith as a Successor to the Apostles.

Catholic Healthcare West and St. Joseph's Hospital believe their interpretation of the moral law taught by the Catholic Church is correct. The Bishop claims that his position in the Church heirarchy gives him authority to decree the correct answer. It appears that Catholic Healthcare West and St. Joseph's believe that he is not infallible and has, in fact, reached a conclusion they regard as wrong and cannot accept.

To the best of my knowledge, the Bishop's claim that he has authority to decree what the correct answer to the St. Joseph's question is correct under Cannon law. But this "authority" is not persuasive to his flock - a 2009 Gallup poll showed that forty percent of Catholics regard abortion as morally acceptable. Insofar as the Phoenix case draws attention within the Church, the Bishop's action is likely to push more Catholics away from the official teaching, given that this was a situation in which holding to the official position meant death for the mother. The hospital accepted the Bishop's authority to take away their right to say Mass in the chapel, but claim the authority of Jesus himself to justify their conclusion about the ethical course.

Theological Showdown over Abortion in Arizona

Bishop Thomas J. Olmsted, the Catholic Bishop of Phoenix, has thrown down a theological gauntlet to St. Joseph's hospital. If the hospital does not acknowledge that he was right in his condemnation of a medical procedure that involved abortion he will revoke it's status as a Catholic hospital.

The story goes back to November 2009. All that is publicly known is that a patient at the hospital (1) had pulmonary hypertension, (2) was pregnant, a combination associated with a high rate of fatality, and that (3) Sister Margaret McBride, vice president of mission, was a member of the hospital ethics committee that was consulted about the case.

On May 14, 2010, Bishop Olmsted made the following statement:

I am gravely concerned by the fact that an abortion was performed several months ago in a Catholic hospital in this Diocese. I am further concerned by the hospital's statement that the termination of a human life was necessary to treat the mother's underlying medical condition.

An unborn child is not a disease. While medical professionals should certainly try to save a pregnant mother's life, the means by which they do it can never be by directly killing her unborn child. The end does not justify the means.

Every Catholic institution is obliged to defend human life at all its stages; from conception to natural death. This obligation is also placed upon every Catholic individual. If a Catholic formally cooperates in the procurement of an abortion, they are automatically excommunicated by that action. The Catholic Church will continue to defend life and proclaim the evil of abortion without compromise, and must act to correct even her own members if they fail in this duty.

We always must remember that when a difficult medical situation involves a pregnant woman, there are two patients in need of treatment and care; not merely one. The unborn child's life is just as sacred as the mother's life, and neither life can be preferred over the other. A woman is rightly called 'mother' upon the moment of conception and throughout her entire pregnancy is considered to be 'with child.'

The direct killing of an unborn child is always immoral, no matter the circumstances, and it cannot be permitted in any institution that claims to be authentically Catholic.

As our late Holy Father, Pope John Paul II, solemnly taught in his encyclical 'The Gospel of Life,' a 'direct abortion, that is, abortion willed as an end or as a means, always constitutes a grave moral disorder, since it is the deliberate killing of an innocent human being' (The Gospel of Life #62).

The Ethical and Religious Directives for Catholic Healthcare Institutions (ERDs) are very clear on this issue: 'Catholic health care ministry witnesses to the sanctity of life from the moment of conception until death. The Church's defense of life encompasses the unborn and the care of women and their children during and after pregnancy.' (ERD, Part Four, Introduction) The ERDs further state that 'Abortion (that is, the directly intended termination of pregnancy before viability or the directly intended destruction of a viable fetus) is never permitted. Every procedure whose sole immediate effect is the termination of pregnancy before viability is an abortion.(ERD 45)"

Here's the statement St. Joseph's hospital had made:

At St. Joseph's Hospital and Medical Center, our highly-skilled clinical professionals face life and death decisions every day. Those decisions are guided by our values of dignity, justice and respect, and the belief that all life is sacred.

We have always adhered to the Ethical and Religious Directives for Catholic Health Care Services as we carry out our healing ministry and we continue to abide by them. As the preamble to the Directives notes, 'While providing standards and guidance, the Directives do not cover in detail all the complex issues that confront Catholic health care today.'

In those instances where the Directives do not explicitly address a clinical situation - such as when a pregnancy threatens a woman's life - an Ethics Committee is convened to help our caregivers and their patients make the most life-affirming decision.

In this tragic case, the treatment necessary to save the mother's life required the termination of an 11-week pregnancy. This decision was made after consultation with the patient, her family, her physicians, and in consultation with the Ethics Committee, of which Sr. Margaret McBride is a member.

In a subsequent interview Suzanne Pfister, vice president of communications for the hospital, added: "We believe that all life is sacred. In this case, we saved the only life we could save, which was the mother's."

On November 22 Bishop Olmsted sent a remarkable four page letter to Lloyd Dean, president of Catholic Healthcare West, the large not-for-profit system with 40 hospitals - including St. Joseph's - in Arizona, California and Nevada. (The letter was made available to, i.e., leaked to, and published by, the Arizona Republic.)

The Bishop quotes from a letter from Catholic Healthcare West as saying "many knowledgeable theologians have reviewed the case, and reached a range of conclusions. If we assume that these individuals are motivated by their faith and desire for justice, one must at least acknowledge that this is a very complex matter, on which the best minds disagree."

The Bishop will have none of it. Here's his response - "There cannot be a tie in this debate. Until this point in time, you have not acknowledged my authority to settle this question. Your actions communicate to me that you do not respect my authority to authentically teach and interpret moral law in this diocese. Failure to fulfill these requirements will lead me to decree the suspension of my endorsement of St. Joseph's Hospital, forcing me to notify the Catholic faithful that St. Joseph's Hospital no longer qualifies as a Catholic hospital..." He gives Catholic Healthcare West until Friday December 17 to capitulate by acknowledging in writing that they have made a grave error and that he is correct.

I do not know the particulars of the clinical situation, but from the Bishop's letter I infer that the patient's physicians concluded that there was no way to save the lives of both mother and baby-to-be. The choice was two deaths, or one.

The Bishop is correct that Canon Law decrees him to be the "decider." But if I am correct in my inference about the clinical facts, he will not be regarded - including by many Catholics - as having moral, as opposed to legal, authority. He will not be seen as a true arbiter of what is right in the situation.

(See here and here for two excellent articles by Michael Clancy in the Arizona Republic. The second article has a brief quotation from me - I'm grateful to Mike for contacting me about the situation.)

Judge Hudson's Monstrous Decision

Judge Hudson's ruling yesterday in the Federal District Court in Richmond that the insurance mandate is an assault on liberty is a moral monstrosity.

His decision reflects the same terror about government encroachment on individual liberty that drives the Tea Party movement. In October the judge had commented that the insurance mandate sets a "boundless" precedent for government control that could lead to forcing individuals "to buy an automobile, to join a gym, to eat asparagus." The absurdity of his comment reflects the intensity of his fear.

Anyone who knows anything about health care understands that the U.S. has two - and only two - ethically acceptable choices. We can go with a Rube Goldberg scheme like the Affordable Care Act, in order to cover (almost) everyone while avoiding a single payer system, or, as a majority of health professionals would support, take the route of single payer. Paradoxically, by yielding to his fear of asparagus, Judge Hudson makes it likelier that the U.S. will end up with the option conservatives fear most!

There is, however, one more choice - the monstrous one that Judge Hudson's ideologically driven folly points towards. Each of us can be given the "liberty" to be uninsured until leukemia or a motor vehicle accident hit us. At that point, our fellow citizens can exercise their liberty to say "it was your free choice - live, or rather, die, with the consequences."

But as much as I believe that Judge Hudson's decision is erroneous law and monstrous ethics, he teaches an important lesson to those who, like me, endorse a more communitarian ethical perspective. Liberty is truly our country's guiding spirit. The Tea Party (and asparagus-fearing judges) are vigilant in defending "liberty from" tyranny. But the rest of us haven't made an effective case about the other founding principle in our Declaration of Independence and Constitution - "liberty to" pursue happiness.

Our liberty to pursue happiness is meaningless without health.

Judge Hudson's sound bite rhetoric about an asparagus conspiracy is 100% consistent with the Founders' commitment (in the Declaration of Independence) to maximum individual liberty. But it's 100% inconsistent with their commitment (in the Constitution) to promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity."

Christmas Tree Ethics

My friend and colleague Steve Moffic, gave me permission to quote this holiday season post from "Behavioral Healthcare."

A Multicultural Holiday Display

At first, I was tempted to just comment on the provocative blog, “Can Christmas Decorations Be Psychologically Harmful?”, posted by Terry Stawar here on November 30. I would have commented that yes, they can be psychologically harmful, both to an individual, but also to a group of people. And, unlike Ben Stein (who was referenced in that blog and who I generally admire), I as a Jew would be one of those offended if that was done in my work setting. Indeed, it is our work settings that I especially want to address.

To address this kind of question and challenge to the multicultural nature of our country, our staff, and our patients, the clinics I have led over the years have long held a multicultural holiday display during a good part of December. This tradition was started when I co-led a large community mental health center with an African-American woman. This has always – and still does – include the Muslim perspective, along with Christian, Jewish, Hindu, and any other religious or cultural perspective we can reflect, such as Kwanzaa and the Hmong New Year. Traditional cultural dress is encouraged.

The display not only includes holiday symbols like a small Christmas tree and Hanukah menorah, but also food for the patients. This is food that the staff brings in, such as the usual Christmas cookies. I usually bring in Hanukah donuts, called Sufganiyot in Israel. These are usually raspberry filled donuts fried in oil to represent the oil that miraculously burned for 8 days in the ancient temple of Jerusalem, after the Maccabean revolt restored our freedom of religion. In the USA, reasonable representatives can be bought at Dunkin Donuts. All this is supplemented by simple educational handouts about the holidays and cultures.

Why might this be important, even beyond the holiday time? Any system or clinic that purports to have cultural competence needs, at the very least – to be culturally sensitive and respectful – of all the cultures served. This should also be displayed in the treatment plans tailored to the patient’s cultural beliefs. Holiday displays are one way to show that to everyone.

What does your organization display, or not display, during this season? And why?

In consulting with health organizations about ethics and strategy, I'm often asked about the concept of "ethics culture." In my view, culture wins hands down over mission/vision statements, formal strategy, and codes of conduct as a driver of patients' experience of care. Steve's comments connect nicely to this issue.

I often quote Albert Schweitzer's wise aphorism: "example is not the main thing in influencing others; it is the only thing." For those associated with a health organization as employees or independent contractors (like doctors in relation to a hospital), the organization sets the "example" through its culture, which is itself created by hundreds, probably thousands, of actions.

As an example of culture running amok, watch the video of "Enron: The Smartest Guys in the Room" if you haven't already seen it.

Culture emerges from patterns. If the kind of holiday recognition Steve describes so nicely is consistent with other behaviors showing respect for diversity and taking pleasure in human variety, the organization will evince cultural competence. But if respect and curiosity aren't a way of life for the organization, the same holiday practices could evoke cynicism.

Malpractice lawyers teach that patients and families are less likely to sue after bad outcomes in the context of a good patient-doctor relationship. Organizational culture is like the clinical relationship writ large. When it's positive we forgive the inevitable frustrations that occur. We're likelier to fix problems and not hunker down with bitterness. These alternative reactions affect patient care.

The bottom line is that we should take the spirit that infuses the holiday practices Steve describes and apply it throughout the year!

Doctor-Patient Sex in ObGyn Care

I decided to reply to a comment that just came in about a post I wrote on doctor-patient sex in 2009 in a new post. The topic has drawn a lot of interest, and I didn't want the comment and my response to get buried in the past. Here's the comment from "Anonymous":

My obgyn has been pretty much my primary care physician for the last 12 years. He delivered my son 3 years ago. He has always had a great bed-side manner and made me me feel like I was the most important patient. I had always thought this was a great skill that he was able to make all his patients feel this way. As I look back over the years, comments about my looks, my sex life, and my job as a sex education teacher just seemed like a normal part of the visits. During my last yearly exam he asked me the normal question of what kind of birth control I was using. This question got me talking about the unsatisfactory sex life with my husband...maybe I shared too much and went into too much detail. He started talking about possible solutions that included medication for my husband, toys, positions, and finally said that I may need to get a boyfriend. We were kind of laughing about that. The conversation actually turned into me hitting on him and telling him about my sexual fantasies involving him and the exam table! Still, I really didn't think things had crossed the line. None of this conversation happened with me undressed, but rather after the physical exam. As I was leaving, he gave me a kind of one-armed hug and then turned my face to his and kissed me on the mouth. It was just a peck really, but it was obviously intentional. As he walked me out he told me that I could always call him after 5:00 at the office to speak to him directly.I could not get him off my mind all weekend. I have actually been attracted to him for years, but we have both been married at one time or another. I decided to call on Monday and just talk. We decided to meet on Wednesday at his office and had incredible sex on his office sofa. We have meet two other times over the past month. When we are together, I can't get enough of him. He says and does all the right things. He knows I would never leave my husband; and also knows that I really want to meet with him more often. He is really busy, which I understand, but I feel like I need him much more than he needs me. I have no desire to ruin this man's practice or hurt him in any way, but I feel a little "led on" in that he knew what I was looking for in a "boyfriend" when he volunteered for the job. Any thoughts?

Here's my response:

Dear Anonymous -

Thank you for your thoughtful, candid comment. In response to your closing question, I have a number of thoughts.

My focus in this blog is healthcare ethics, so that's the only dimension of the situation I'll comment on.

Your obgyn's capacity to make each of his patients feel special and important is something every physician should strive for. I can't tell whether in retrospect you believe his manner over the 12 years he's been your doctor was flirtatious and sexually inviting. Comments about looks, sex life, and your work as a sex educator could be an entirely appropriate part of obgyn care, but even if they were made with entirely professional intent (which is, in retrospect, uncertain), the intimacy of obgyn care has great capacity to elicit strong reactions, like the erotic fantasies you experienced. That's why the American College of Obstetricians and Gynecologists code of ethics is unambiguous about doctor-patient sex: "Sexual misconduct on the part of the obstetrician-gynecologist is an abuse of professional power and a violation of patient trust. Sexual contact or a romantic relationship between a physician and a current patient is always unethical."

Your comment that "I feel like I need him much more than he needs me" speaks to one of the dangers in sexual and romantic relationships between doctor-patient. The physician-patient relationship is asymmetrical. Physicians are in a position of "caring authority." That role can elicit what in psychiatry gets called "transference." The professional responsibility of the physician is to understand "transference" and manage both (a) the risks to patients and (b) our own reactions.

The fact that a patient might "hit" on the physician doesn't change a physician's ethical and clinical responsibility. Patients are entitled to express their feelings and fantasies, just as you describe. In a teaching session during my first year of residency a senior psychiatrist told of how a patient expressed a wish for romantic involvement. He responded "it won't be difficult for you to find a boyfriend if you want one, but it isn't so easy to find a good psychiatrist - that's the role you need me to be in."

The code of ethics for psychiatry differs from obgyn in an important detail. I put the key difference into bold italics: "the necessary intensity of the treatment relationship may tend to activate sexual and other needs and fantasies on the part of both patient and psychiatrist, while weakening the objectivity necessary for control. Additionally, the inherent inequality in the doctor-patient relationship may lead to exploitation of the patient. Sexual activity with a current or former patient is unethical." The psychiatric profession has concluded, in my view correctly, that psychiatrists are responsible for continuing to act in a professionally responsible manner after treatment ends.

Your final comment that you "feel a little 'led on'" sounds realistic to the situation as you describe it. I'm concerned that you appear to be experiencing a sense of conflict and perhaps emerging hurt. I would encourage you to consider counselling to deal with the marital unhappiness you've experienced and the relationship that has emerged with your obgyn.

Again, thank you for your thoughtful and important comment!

Best

Jim

Greedy Geezers vs Granny Bashers

To protect the future of Medicare and contain runaway Medicare costs we need thoughtful deliberation and responsible advocacy.

Instead, what we're getting is a shouting match between "Greedy Geezers" and "Granny Bashers."

Greedy Geezers are the over-65 folks who turned against the Democrats by 21 percent in the November elections, largely fueled by fear that health reform would undermine Medicare. Granny Bashers are the largely under-65 folks who see the Medicare set as selfishly protecting their own federally funded entitlement while refusing to bring others into the insurance tent.

To salvage the economy and protect it over time we have to restrain Medicare costs. But if we go at those costs under the banner of blame, the Greedy Geezers will go to war. (I'm allowed to use the "Greedy Geezer" term since I'm part of the Medicare cohort. I'm talking about "us," not "them.")

James Ridgeway, who writes the progressive "Unsilent Generation" blog "for pissed-off progressive old folks (and future old folks)," tells us what the real problem is. Here's what Ridgeway says in his response to David Brooks's New York Times op ed "The Geezers' Crusade":

Politicians are talking about the urgent need to cut Medicare because Democrats and Republicans alike won’t take on the real enemies of affordable health care: the insurance companies, Big Pharma, and other providers of medicine for profit. They’re saying we have to “reform” Social Security (a program which, compared to Citibank and Goldman Sachs, is a model of financial solvency) because they are unwilling to really take on Wall Street. They’re devising ways to skim off of entitlements, which have lifted millions of old people out of dire poverty, because they won’t consider a more “socialist” tax structure--like, for example, the one we had in the United States during the Nixon Administration.

This fabrication serves a myriad of purposes. It substitutes a phony intergenerational conflict--a phantom battle between young and old--for the real conflict in American society: the conflict between the interests of poor and middle-class people, who pay more than their fair share, and the corporations and wealthy elite, who get an easier ride in America than they do anywhere in the developed world...But hey--why talk about taxing the rich when you can balance the budget on the backs of those Greedy Geezers?

The problem isn't that the Medicare crowd is greedy. Ridgeway is right - it's that cutting Medicare (and social security) doesn't pass the smell test when we read about Wall Street shenanigans. In my 45 years of clinical practice I was impressed with how unselfish my elderly patients were, not with their greed.

Medicare is a superb social program, but it's way too costly for the benefit it provides. Medicare recipients won't join in on a campaign that looks like blaming "Greedy Geezers" for Wall Street's greed. Here's what I see as the three pillars for an advocacy program that progressively minded Medicare recipients could get behind:

1. Overtreatment. Seniors aren't driving the overly interventionist, overly technological treatment approach that characterizes so much of the Medicare world. It's the combination of the for-profit medical-industrial complex, fee for service reimbursement, and an all-too-common profligate style of practice. At best, overtreatment creates costs without benefit. But commonly it causes injury. Advocating for the right treatment at the right time in the right place, as defined from a patient-centered perspective, is a position many Medicare recipients will support.
   
   
2. Direct costs to the elderly. A just-released Employee Benefit Research Institute report shows just how substantial retirement health care costs are despite insurance. Men retiring this year at age 65 will need anywhere from $65,000–$109,000 in savings to cover health insurance premiums and out-of-pocket expenses in retirement if they want a 50–50 chance of being able to have enough money; to improve the odds to 90 percent, they’ll need between $124,000–$211,000. Women retiring this year at 65 will need between $88,000–$146,000 in savings if they are comfortable with a 50 percent chance of having enough money, and $143,000–$242,000 if they want a 90 percent chance.
   
   In other words, even though Medicare recipients are the best insured population in the U.S., commercial profiteering and profligate practice styles are driving very substantial out-of-pocket costs. Continued cost escalation will lead to even more cost sharing. Advocating for practices that reduce out-of-pocket costs that provide little or no benefit (or even cause harm) is a position Medicare recipients will support.
   
   
3. If reducing overtreatment and managing the care process in ways that reduce direct costs to the elderly curb overall Medicare expenditures, that will be a positive "side effect." Those who agree with Ridgeway will continue to advocate for progressive economic policies. Those who don't, won't. But reducing overtreatment and direct costs to the elderly won't be seen as blaming Greedy Geezers for the mess we're in. It's an responsible, progressive advocacy position that Medicare recipients can get behind.

Living with Chronic Illness - Julian Seifter's Wise Guidance

I've never met Dr. Julian Seifter, but over the years I heard about him from patients with kidney disease who he treated. (He's a nephrologist.) My patients were impressed with his skill and touched by his humanity.

Today's New York Times has an interview with Dr. Seifter about living with chronic illness. I learned from the interview that he has had diabetes since his early 30s (he's 61 now) so he knows first hand about chronic illness, which he sees every day in his practice. Here are some of the pearls from the interview, with my comments in bold italics:

• "I counsel my patients to replace what they’ve lost with something new. I had one patient who was a scuba diver and who loved discovery. I had to tell him that with his condition scuba diving isn’t safe for him. So I’ve encouraged him to prospect for Native American relics in the Southwest desert, which he’s also interested in. It’s a way he can still be an explorer, but not risk his kidney." [What a creative idea! Even if it hadn't clicked for the patient, it showed that Dr. Seifter understood the patient's soul! Once in my practice I realized that a patient with depression was describing the symptoms in wonderfully evocative, gallows humor language. I asked - "have you ever thought of doing stand-up comedy? You've helped me understand that some humor consists of depression turned on its head." My patient ended up studying comedy for a while. Anti-depressant medications caused miserable side effects and did very little. Cultivating humor had no noxious side effects and helped a lot.]
  
• "[Chronic illness] can shake you out of old habits and routines. It takes away the 'taken for granted.' You’re invited, almost forced, to find new directions and pursue unexplored potentials. I had a patient, Cassandra, an opera singer, who first came to me because it was thought she had a kidney problem. It turned out she had a severe inflammatory condition in the head and neck — in the larynx, her instrument. She could no longer sing professionally. With no science background, she began reading the papers on her treatment and cultivated an interest in the illness. Eventually, she went back to college, took science courses and got accepted to medical school. She’s about to become a nephrologist." [Here Dr. Seifter doesn't comment on what was probably the most "active ingredient" in Cassandra's treatment - her identification with him and his ways of adapting! As Albert Schweitzer said, with only slight exaggeration - "example is not the main thing in influencing others; it is the only thing."]
  
• "If someone rejects dialysis, I want to make sure they’re not doing that because of depression. If a patient is wavering, I’ll say: 'At least try it. You can always come off.' I had a patient who, at first, rejected dialysis, but who agreed to a trial and then found that the treatments made him feel so much better that he then wanted to stay on. It was a three-times-a-week commitment, but he came to see how he could fit it into his life — which he’d still have." [The challenging part of what Dr. Seifter is describing is conveying to patients that as much as he hopes they will find a way to savour life, he's prepared to support them in refusing dialysis and letting life come to an end.]
  
• "I try to meet my patients wherever they are so that they will [try dialysis.] I had one who wanted to go to Florida a last time before starting dialysis. I worried about him. His condition was such that he might have heart failure. But I also knew he’d never go onto dialysis without doing this. I said, 'O.K., call me when you land in Miami.'
  
  He said, 'Doctor, you don’t understand, I’m driving down.'
  
  Now, this was really dangerous. So I said, 'Call me from each state and I’ll have the address of someone you can check in with in case there’s an emergency.' [Here Dr. Seifter is applying the "dignity of risk" principle in an elegant manner. From a strictly medical perspective, or a CYA approach to liability concerns (if you don't know what the acronym means, see here), the patient's idea was cockeyed. But Dr. Seifter understood how important a last visit to Florida was for his patient and put himself out to help the patient pursue his dream in the safest possible way. (For a short video discussing "dignity of risk" from a medical-legal perspective, see here.]
  
  The phone calls came in regularly until the last day of his trip. I was worried and I called his home in South Florida, and there was such an incredible noise in the background that I could hardly hear his wife. 'What’s going on?' I asked. 'That’s the rescue helicopter on the front lawn,' she said. He’d made it there, but then needed to be airlifted to the hospital!
  
  [I don't regret enabling his journey.] From my own experiences, I understood why patients sometimes resist doing what’s best. The idea of sticking yourself with a needle every day for life: that wasn’t easy for me to accept. I hated the thought that every morning I was going to wake up knowing, 'I have diabetes.' So I’m not a puritan with my patients. You have to do what is possible...Everyone needs the opportunity to forget their disease for a while and think of other things. Otherwise, they can become their disease. So: I’m not a diabetic. I’m a doctor who has diabetes." [Dr. Seifter's distinction between the ailment and the person is especially important in psychiatry, where the condition affects perceptions, thoughts and emotions. Sometimes "bad behavior" was best understood as a product of the illness. But at other times patients (and their families) - appreciated comments like - "just because you have schizophrenia doesn't mean that you won't sometimes act like a complete jerk the way everyone else does." And given the wonderful differences between people, some patients reject Dr. Seifter's distinction for good reasons, as when a patient to whom I'd said "you have alcoholism" replied, with some heat, "Doc, you don't get it - I don't 'have alcoholism,' I'm an ALCOHOLIC. If I forget that I'll get to thinking I no longer 'have alcoholism' and can start drinking again.!"]

(I haven't yet read the book "After the Diagnosis: Transcending Chronic Illness," written by Julian Seifter and his wife Betsy, but I've looked at it on line and it looks terrific!)

Psychiatrists, God, and Lying

A psychiatrist in Texas submitted an important question to Randy Cohen's "The Ethicist" column today. I've taken the liberty of copying the question and Randy's response below, with my own comments in bold italics:

I am a psychiatrist who happens to be an atheist. Occasionally a patient asks me what religion I follow and, displeased by my answer, seeks another psychiatrist. I am a physician, not a priest. Religious beliefs seem as relevant to my profession as they are to an accountant’s. Nevertheless, candor sometimes costs me a patient. May I claim a belief in God to avoid damage to my credibility and business?

VAIDYANATH IYER, THE WOODLANDS, TEX.

To rephrase your question slightly: May you lie to a patient to initiate a relationship of trust? O.K., I’ve rephrased it totally and unflatteringly, but the answer — no — is provided by the American Psychiatric Association’s “Principles of Medical Ethics,” which requires you to be “honest in all professional interactions.” And rightly so.This is vintage Randy Cohen writing. His question brings out the "right answer" without being weighed down by tedious theorizing. And the quote from the APA shows that the profession agrees. But we should ask (a) what's going on when patients ask Dr. Iyer about his religion, (b) why honesty is so important in the patient-doctor relationship, and (c) what the wisest response is.

What you may do is decline to answer such questions. Glen O. Gabbard, a professor of psychiatry at Baylor College of Medicine, told me in an e-mail that “it is not dishonest to use restraint in responding to questions of a personal nature.” He added, “One can also inquire about the reasons for the question.” The patient’s reply might offer insights useful in treatment. Glen Gabbard is perhaps the most eminent clinical teacher in contemporary psychiatry. His advice, as usual, is spot on. Especially in psychiatry it's crucial for Dr. Iyer to know what patients are communicating about themselves when they ask him about his religion.

Many years ago I had a first meeting with a gay man in recovery from severe substance abuse problems. At the end of the appointment I said - "I've asked you a lot of questions. Do you have any questions for me?" He replied - "Just one. Are you gay and in recovery?" I responded - "If it's OK with you I won't answer directly. I'm not sure what form of treatment I'm going to recommend, and in some treatments it's best to explore questions like this, not to answer them directly." He said - "That's OK. I know the answer - it's 'yes.'" He felt comfortable with me and felt understood, which to him meant I must be gay and recovering with a history of substance abuse. (Neither was true, but the treatment went well.)

The patient’s question need not reflect mere prejudice but could express a desire for a psychiatrist whose personal experience will yield a deeper understanding of the patient. On such benign grounds, some women seek a female psychiatrist, some homosexuals a homosexual. But it is also true that you need not be a Presbyterian to effectively treat a Presbyterian. Even a gay female Presbyterian.

It's crucial to consider the context here. "Iyer" is typically a South Indian Hindu name, which leads me to guess that Dr. Iyer is of South Indian background.The Woodlands is an almost all white, upper middle class community near Houston. It's just a year since the Fort Hood killings, for which Dr. Nidal Hasan, a Muslim of Palestinian background, is the presumed killer. Some of Dr. Iyer's patients may be wondering if he is Muslim, which, sadly, is the focus of widespread prejudice. At an unconscious level they may fear that psychiatrists are not trustworthy and treatment will do them harm. Patients who feel good rapport with Dr. Iyer may tell themselves "he looks foreign, but I know he's really a good Christian, like me," much as my patient assumed I was gay and recovering from substance abuse.

And so you should respond courteously to such queries, answering those about your training and technique but not those you deem irrelevant to the work. Are you Jewish? A Republican? An opera buff? This demurral could cost you a patient or two, but so be it. A patient’s determination to make an unwise decision does not justify a doctor’s deceit.

I wish Randy had picked up on Dr. Iyer's comment "I am a physician, not a priest. Religious beliefs seem as relevant to my profession as they are to an accountant’s."

When I visited the Indian National Institute of Mental Health and Neuroscience in 1989, I was told that many rural Indians, but also educated urban dwellers, only consult a psychiatrist if religious practice - puja - hasn't relieved their symptoms. And in my clinical office I often felt that an anthropologist would see underlying structural similarities between medical practice and religious practice. The line between "priest" and physician" isn't as absolute as Dr. Iyer's question implies!

I think Dr. Iyer's comment about accountants is correct, but not in the way he intended it. Unless we're looking for an accountant to help us cheat, as Enron and its ilk did, the accountant's character matters a lot, just as it does for a physician. Accounting isn't just a matter of adding up numbers - it rests on decisions about how to deal with expectations about how we conduct our economic lives and meet expectations of the state (ultimately, our fellow citizens). If we only trust an accountant (or physician) who belongs to our own denomination (including the atheistic denomination) we'll miss out on some good ones and trust some bad ones. Dr. Iyer's patients are wrong to focus on his theological beliefs, but correct to be concerned about what kind of a human being he is!

(For an excellent film in which the name "Iyer" is central, see "Mr. and Mrs. Iyer."For previous posts about Randy Cohen, see here and here

The FBI and Martin Luther King

I recently came upon a letter I had written to the Washington Post, published on June 14, 1969. (I was living in Washington at the time, during a two year post-residency fellowship at the National Institute of Mental Health.) It had recently been revealed that the FBI had tapped Dr. King's telephone for many years. Here's what I wrote:

Sensible citizens should no longer be shocked by disgraceful misconduct on the part of our national leaders, but your description of the FBI's most recent foray into electronic surveillance deserves comment. The FBI cannot be allowed to excuse itself with a bland acknowledgement that it "did not follow regular policy on this particular (Martin Luther King) surveillance." Mr. Hoover is deserving of public rebuke at the very least, though removal from office is a more reasonable response to this illegal and immoral intrusion on the right to private communication.

The actions of a Federal agency cannot be regulated if its leaders are not held strictly accountable for the agency's conduct. Mr. Nixon attacked student radicals for their "moral arrogance" in his recent speech on the basis of their lack of "respect for the rights of others." The FBI deserves to be judged by the same standards we apply to the SDS.

Subsequent investigation revealed that J. Edgar Hoover's actions were actually much worse than I'd imagined in 1969. Here's a paragraph from a 1976 report to the Senate Committee on Governmental Operations:

The FBI campaign to discredit and destroy Dr. King was marked by extreme personal vindictiveness. As early as 1962, Director Hoover penned on an FBI memorandum, "King is no good." At the August 1963 March on Washington, Dr. King told the country of his dream that "all of God's children, black men and white men, Jews and Gentiles, Protestants and Catholics, will be able to join hands and sing in the words of the old Negro spiritual, 'Free at last, free at last. Thank God almighty, I'm free at last."' The FBI's Domestic Intelligence Division described this "demagogic speech" as yet more evidence that Dr. King was "the most dangerous and effective Negro leader in the country." Shortly afterward, Time magazine chose Dr. King as the "Man of the Year," an honor which elicited Director Hoover's comment that "they had to dig deep in the garbage to come up with this one." Hoover wrote "astounding" across the memorandum informing him that Dr. King had been granted an audience with the Pope despite the FBI's efforts to prevent such a meeting. The depth of Director Hoover's bitterness toward Dr. King, a bitterness which he had effectively communicated to his subordinates in the FBI, was apparent from the FBI's attempts to sully Dr. King's reputation long after his death. Plans were made to "brief" congressional leaders in 1969 to prevent the passage of a "Martin Luther King Day." In 1970, Director Hoover told reporters that Dr. King was the "last one in the world who should ever have received" the Nobel Peace Prize.

A week after my letter was published in the Washington Post I got a letter of Hoover, berating me. I remember the combination of chill and anger that I felt on reading it.

I confess to feeling proud and happy about the 41 year old letter. I believe that advocacy, which comes in many flavors, is important for personal health as well as the health of society. When my sons were at the age when children whine, my wife and I countered "don't whine - argue!" (Not surprisingly, they became excellent arguers.) Sometimes health conditions can be definitively remedied, but often, like mortality itself, they are fixed parts of our experience. I once asked a French patient who had suffered greatly from the impact of bipolar illness what a psychiatrist in France would say at the end of an appointment. "Courage" was the answer. "Courage" comes from the French word for heart - "coeur." The stance of advocacy both reflects strength of heart and helps to create it.

(See here, here, and here for posts that touch on the issue of advocacy and health.)

After Visit Summary - Little Things Mean a Lot

When I was in high school, the singer Kitty Kallen had a #1 hit - "Little Things Mean a Lot." The ballad is decidedly uncool by current standards, but as a teen-ager I liked its romantic dreaminess.

The song popped into my mind as I was musing about the after visit summary I was given at the end of an appointment with my primary care physician yesterday. The visit involved discussing a treatment decision, tweaking a medication dose, and scheduling a test. Nothing complicated. Even with my porous memory, I would have remembered the key points of the visit.

Even so, I was happy when at the end of the appointment my PCP gave me a simple printed summary and went over it with me. Doing that reinforced what we'd discussed and what the next steps would be. But the tangible "gift" was important as well. An anthropologist would see elements of a ritual behind the medical act - a form of "godspeed" token.

One of my patients as a first year psychiatry resident came into my care when he was hospitalized for a first episode of depression. After discharge he moved to another state. I gave him a handwritten letter summarizing what we'd concluded about his condition and what I'd recommended, and encouraged him to show it to his clinician at the clinic we'd referred him to.

As often happens when depression lifts he just went about his business and did not go to the clinic. But some years later a psychiatrist in the other state called to tell me that my former patient had experienced a recurrence of depression and had come to the clinic clutching the letter as if it was a religious relic. The psychiatrist, a seasoned hand, wanted to let a youngster in Massachusetts (me) know how important the simple act of writing and giving the summary had been.

I don't know how much time it took my PCP to prepare the after visit summary. If the electronic medical record software is well configured it could print out from his own note. This would represent a valuable way for "high tech" to support "high touch." (See here for a description of John Naisbitt's book on "high tech/high touch.")

Kitty Kallen was right. Little things mean a lot!

Making Accountable Care Organizations Acceptable to the Public

The most recent issue of the New England Journal of Medicine has a valuable article about the "Patient's Role in Accountable Care Organizations," by Anna Sinaiko and Meredith Rosenthal, researchers at Harvard Medical School.

The authors report that among Medicare beneficiaries, 73% of visits took place within a primary hospital and the extended multispecialty staff associated with it, and 64% of the hospital admissions were to the primary hospital. These findings suggest a tendency for us, when we are patients, to receive our care from a "clinical community." But this pattern isn't consistent enough for ACOs to work. An ACO can't take responsibility for quality and cost if a quarter of the visits and a third of hospital admissions are outside of the group.

In my own work on the issues that emerge in health plan appeals and in independent external review of health plan decisions, I've seen how often patients bridle at being asked or required to stay within the group for care. Patrick Henry was on to something basic about American culture in his "Give me liberty or give me death" speech. Or, less elegantly, the song group "The Animals" in the chorus "it's my life and I'll do what I want."

Years ago, when my employer offered a "point of service" plan as one of the health insurance options, I chose it. The plan allowed enrollees to go outside of the ACO (called "HMO" at the time), but required a substantial degree of coinsurance to do so. I was (and am) very happy with the care I receive from the ACO medical group (I used to practice in it and have used it for my care for decades), but I liked the option of going elsewhere if I needed "mechanical" care, like joint replacement or specialized neurosurgery. These services were available within the group, but I took comfort in the idea that for interventions of this kind I could look for what the business gurus call "focused factories" that specialize in providing the services.

Here's the key sentence from the Sinaiko/Rosenthal article: "There has been little discussion about binding patients to ACOs, largely because the freedom to choose one's providers is highly valued in U.S. health policy." If the "binding" force is the need to get PCP approval for going outside of the ACO, the system will ultimately generate too much conflict to succeed. If it's obvious that a service isn't available within the ACO, the PCP will not hesitate to make the referral. But what happens when a good level of care is available, but the patient believes it is not good enough and prefers to go elsewhere? If "elsewhere" is clearly of lower quality the PCP will not feel uncomfortable saying "no" and explaining the rationale. But when "elsewhere" is high quality the rationale for saying "no" is, to a substantial degree, cost containment for the ACO.

As I've argued ad infinitum, cost containment done for the right reasons in the right way is an ethical requirement, not the abomination our political discourse portrays it as being when we excoriate the crime of "rationing." But this perspective won't fly for an ACO. We're simply not mature enough as a body politic for wide acceptance of the need to share responsibility for the health care commons.

Sinaiko and Rosenthal suggest - wisely - the principle of "allow[ing] patients to share in their ACOs cost savings." This can be done by allowing access outside of the ACO but requiring patients to make a substantial contribution for that access - through a combination of higher premium for the plan with access and higher cost sharing for the outside services. This would prod me to investigate whether my wish to go outside of the ACO was "worth it" to me. Years ago, my employer steadily raised the cost of the "point of service" plan. At a certain "price point" I concluded that although I could afford the plan, it was no longer worth the cost.

Critics will argue that this approach will create wealth-based inequality. They would be right. But if ACOs provide good care, members without the additional choices will still be well cared for. Critics of the approach Sinaiko and Rosenthal describe would do better by focusing their moral ire on the degree of income inequality in U.S. society.

Advocating for the Future of Medicare

I've admired Randy Cohen's "The Ethicist" column in the New York Times Magazine ever since he started it more than ten years ago. I don't always agree with him, but I love the verve of his writing. He has an unusual gift for turning thoughtful ethical analysis into engaging prose! (See here for a previous post about Randy.)

But what caught my attention in a recent column was the question posed by a reader:

At 65 years old, I am facing a final diagnosis for lung cancer and the prospect of a 15 percent survival rate. If this is confirmed, would it be ethical to put myself through painful long-term treatment and to have the people who love me endure this? At my age, is it ethical to consume the health care dollars involved? What is the tipping point to elect aggressive care? Thirty percent? Sixty percent? G.M., JACKSON HEIGHTS

In my 45 years of practice I was struck by how often my patients - especially those in GM's phase of life - made similar comments. "Doc - you should be spending your time with young patients - I'm not the future - they are!" These comments were not symptoms of depression or low self esteem - they reflected an ethical perspective that I, now in that age group myself, share.

In my view, giving priority to the younger segments of the population is correct moral reasoning, but it's neither politically correct nor tactically wise. When the health reform process proposed support for conversations between older patients and their physicians about the values they wanted to guide their treatment by, right wing zealots fulminated against "death panels," and much of the public believed their misinformation. And in the election campaign we've just been through, Republicans made hay with scare tactics about the "assault on Medicare." (See here for a post on the campaign.)

I see great potential value for an advocacy process that brings together progressively-minded folks who are Medicare recipients or who are, like me, Medicare eligible but still receiving health insurance through employers, to advocate for clinically informed, ethically justifiable, and potentially socially acceptable Medicare reforms. The Affordable Care Act contains the potential for a better future for Medicare in programs like the Independent Payment Advisory Board, the Center for Medicare and Medicaid Innovation, and other initiatives.

The Republican strategy for the new Congress is to "starve" these promising programs by withholding funds. The Republicans will present their effort as "protecting the elderly." But it's not. The status quo for Medicare ensures unsupportable cost increases for Medicare itself and undermining of other social efforts that seniors largely support. In our personal financial lives the elderly population hopes to preserve a legacy for the next generation(s). The progressive aim is to do the same at the societal level. We can't do this without substantial Medicare reforms, many of which are promoted by the Affordable Care Act.

I'm planning to explore the world of Medicare advocacy and will write more about it as I learn and get involved.

(Randy Cohen's column has a happy ending: "Exploratory surgery determined that G.M. does not have lung cancer. He recently returned to work. His doctors continue to monitor him.")

On Not Hiring Smokers

Five days ago I wrote a post defending the new Massachusetts Hospital Association policy decision not to hire tobacco users.

I usually agree with the editorial page of the reliably liberal Boston Globe. But today's editorial about the MHA policy gets things backwards. Here's the editorial, with my own editorial comments interlaced in bold italics:

Don't puff, don't tell?

IF THE country’s most brilliant expert on computerizing medical records came for a job interview at the Massachusetts Hospital Association with Marlboros in her pocket, she wouldn’t get the job. Neither would President Obama. Or House Speaker-to-be John Boehner. As of January 1, the organization that represents the state’s hospitals will no longer hire smokers for its 45-person workforce.

As easy as it is to sympathize with the motivation behind this policy, it is deeply — and unconscionably — intrusive into workers’ private lives. An employer like the hospital association should not set requirements that have nothing to do with an applicant’s ability to meet the demands of the position.

The word "unconscionable" is way too strong here. The Globe could see the policy as wrong without seeing it as "unconscionable," which is variably defined as "not guided or controlled by conscience," "unusually harsh and shocking to the conscience," or "unscrupulous or unprincipled." I don't understand what drove this editorial hissy fit.

On that score, the state was right in the 1990s to start prohibiting smokers from joining police and fire departments on the grounds that their habits would eventually make them physically unable to do their job. If the Globe really means what it says here, it should apply the same policy to its own employees - at least to those who do physically demanding work. No one wants to have to rely on a wheezer in an emergency. But there is no such reason for the hospital group, a lobbying and training operation, to reject a candidate who, at home, likes to light up.

As much as I want to see smoking eradicated, if the state's policy decision was based on a prediction that smoking "would eventually make [police officers and firefighters] physically unable to do their job, it was unnecessary. Employees who can't do their jobs don't get to keep the jobs. Perhaps the state anticipated having to pay disability pensions to smokers and wanted to avoid that future expense. This would be a reasonable business concern, but if it was the rationale for the policy it should have been acknowledged so that it could have been debated openly.

“We want a role model,’’ said association president Lynn Nicholas. This is a justifiable rationale. If I was the best qualified applicant for director of the Big Sister Association or the National Association for the Advancement of Colored People, we wouldn't, and shouldn't, fault those organizations for not hiring a Caucasian male! She notes that smoking costs the Massachusetts economy $6 billion a year in health costs and lost productivity. The diseases that tobacco causes or worsens are far and away the most preventable and take the greatest toll in lives. Nicholas believes that if more employers adopted her policy it could be the factor that keeps young people from taking their first cigarette.

Nicholas is not moved by the fact that two of the country’s most powerful elected officials — Obama and Boehner — are smokers. “[Obama] wouldn’t be a good fit for my organization,’’ she says, “when someone else who is equally qualified would.’’ With all the challenges facing the state’s hospitals as they deal with public demands for reduced health costs, the association should not be turning away highly skilled staffers who happen to be nicotine-addicted.

Nicholas is correct that "if more employers adopted her policy it could be the factor that keeps young people from taking their first cigarette." But the MHA policy shouldn't be generalized. Using access to employment as a primary approach to preventing tobacco use would be a bad policy, though not as "unconscionable" as allowing the large numbers of deaths, substantial disability, and huge drain on public resources, that tobacco causes. Continued increase in tobacco taxes, continued regulations to prevent second hand smoke exposure, and selective "role model" driven policies like the one the MHA is instituting, is the way to do.

Nanny Employer or Public Health Leader?

The Massachusetts Hospital Association announced yesterday that as of January 1, tobacco users will not be eligible for employment. The blogosphere responded quickly. "Big Brother," "totalitarianism," and "fascism" were among the terms applied to the MHA policy.

Apart from fiery rhetoric, the most persuasive critique of what the MHA is doing is the "slippery slope" argument. Even those who favor high tobacco taxes and other preventive messages worry about the potential for employers to develop hiring policies that reflect prejudice, not public health. (In the 1980s, Electronic Data Systems banned facial hair and fired an employee who claimed that he wore a beard for religious reasons!)

In my view, it is entirely justifiable for a health organization to do what the MHA is doing. I formed this opinion as a fourth year medicine student on a medicine rotation at the Boston City Hospital. A man in his 50s died of lung cancer. I joined the resident in meeting with the family. As would be unthinkable now but was not so shocking in the 1960s, the resident was holding a cigarette. The widow was outraged - "How can you talk to me about my husband's death and smoke cigarettes yourself?" Of course she was right. It would be hypocritical at best for the MHA to preach public health without taking a strong stand against tobacco use.

But what about organizations not in the health sector? Banning smoking on the premises is justified by the risks second hand smoke poses to fellow employees. But not hiring smokers is problematic. The policy would contribute to anti-tobacco pressure, but it would have greater impact on low income workers, since tobacco use is more prevalent in low income groups. And it would fly in the face of the strong value Americans place on individual liberty.

In principle, further increases in tobacco taxes would be a preferable approach. Price increases lead established smokers to cessation efforts, reduce the rate of smoking, and discourage adolescents from initiating tobacco use. Critics, including tobacco company lobbyists, are correct in arguing that "sin taxes" are regressive - the poor pay proportionally more than the wealthy. But since there are more low income smokers, the relatively larger number who quit will, over time, make the tax less regressive. And, as a practical matter, determined low income smokers generally have access to lower cost black market products.

But we are likely to see non-health organizations following organizations like the MHA (or the Cleveland Clinic, which instituted a non-hiring policy in 2007), driven by concern about health care costs. Employers will justify the policy by (1) public health values but also (2) the potential that reducing (and ultimately eliminating) smoking among employees has to lower insurance costs for the company. Insofar as health care costs come out of wages, my liberty to smoke comes out of my fellow employee's paycheck. As I argued in a previous post, my liberty right to smoke if it's legal doesn't give me the right to lower your pay.

Nanny State and Nanny Employer

This election season has been saturated with backlash against "government takeover" of health care. Critique of the Patient Protection and Affordable Care Act ranges from thoughtful, fact-based responses to know-nothing paranoia.

The law is imperfect, but it's the best our body politic was capable of in 2010. It represents a substantial step forward. But it has touched a very raw nerve in our political psyche - the depth of our reluctance to acknowledge that health isn't just a matter of individual rights - our community has responsibilities to us as individuals, and we as individuals have responsibilities to our community.

The "Government, keep off my back!" issue is being fought out in federal court over the awkward, but necessary, legal, and ethically entirely justifiable individual mandate (see here, here, and here, for previous posts on the mandate). But the same dynamic is starting to emerge towards the growing tendency for employer-based insurance to include wellness incentives, as set forth especially clearly in this recent letter in the New York Times:

“It’s About Time to Check the Fine Print on Your Health Plan” (Patient Money, Oct. 16) says that “your company may be offering cash rewards ... if you complete a health risk assessment or get screened for blood sugar, high cholesterol or high blood pressure,” as if this were an unproblematic perk. But it undermines your privacy when your employer monitors your health and offers incentives for good behavior.

We are familiar with criticism of the nanny state, but isn’t it about time to extend such criticism to the nanny employer, whose power over employees threatens their freedom to make their own health choices about their own lives?

Some workers hate their employers with the same passion the Tea Party expresses towards the government. But even for them, it's potentially easier to understand the social compact that underlies employer-based health insurance than in our highly fragmented national system.

The employer takes money the company earns and puts it towards health insurance, money that otherwise could go into wages or improving the company's competitive position. If I'm hit by a car, my fellow employees and employer are, in effect, subsidizing my care. If that happens, I hope I'll be appropriately grateful. But my fellow employees and employer are entitled to expect me to approach my own health in a responsible manner, because (a) they care about me and (b) they will be paying for the health care I need.

I have a right to smoke, become a couch potato, and toss my medications into the toilet. But I don't have a right to tell my fellow employees and employer - "I have no responsibility for the consequences - it's your role to pay for me...and don't you dare ask any questions or ask me to take any responsibility!"

Incentives (carrots and sticks) can be done well or poorly, fairly or unfairly. Behavioral economics research on how incentives work and ethical reflection on what kinds of incentives are justifiable, is well underway. As an example, here's the mission of the Center for Health Incentives at the University of Pennsylvania, a leading site for behavioral economics research:

Our mission is to facilitate research that makes significant contributions to reducing the disease burden from major public health problems such as tobacco use, obesity, and medication non-adherence for cardiovascular and other diseases through better understanding of how to design and apply incentives and other behavioral economic approaches to improving health. The center has 3 primary missions:

1. To advance knowledge about incentive design
2. To develop and test scalable and cost-effective applications
3. To work with private and public sector entities such as large employers, insurers and health systems to improve health care delivery and the health of the population

I hope we see lots of debate about "Nanny Employers" in the months ahead. It will be hard for us to take glib libertarian positions when those who will be affected by our actions are our comrades at work. It's easy to rail against "government takeover," "socialism" and "Obamacare." It's harder to look into the eyes of our fellow workers and spout the same nonsense!

Health Care and the Campaign

A New York Times editorial on "Health Care and the Campaign" summarizes nicely the lies, distortions and disinformation about health reform the Republicans are purveying:

1. Lies. Here's John Raese, Republican candidate for Senator in West Virginia, on health reform: "From here on out under Obamacare, you're going to have a patient-bureaucrat relationship, because the first person that patient has to go to is a bureaucrat. That is called a panel."
   
   There's simply no truth whatsoever to Raese's claim. Zero. Nada. But since the lie coincides with the widespread distrust of government that is at the heart of American political culture, it confirms a preconception. Wariness and skepticism about authority are good, but they can be turned into paranoia by Raese's lies and Palin's "death panel" nonsense. (See here for discussion of the paranoid style in American politics.)
   
2. Socialism. The Republican play-book calls for high frequency repetition of the "Obamacare is socialism" and "government takeover" mantras. As the Times points out: "What is true is that the law relies heavily on private insurers and employers to provide coverage. It also strengthens regulation of those insurers and provides government subsidies to help low- and middle-income people buy private insurance on the exchanges. Those exchanges will promote greater competition among insurers and a better deal for consumers, which last time we checked was a fundamental of capitalism. "
   
   Billy Wharton, co-chair of the Socialist Party USA, agrees with the Times: "This is not a healthcare reform bill. It is instead a corporate restructuring of the American healthcare system designed to enhance the profits of private health insurance companies disguised with the language of reform."
   
3. Cost increases. The out-of-control cost trend is a key reason we need health reform, and premiums continue to go up well beyond the general rate of inflation. This gives Republicans a rhetorical meatball - "look, Obamacare is already driving costs through the roof the way we warned about!" (See here for a videoclip.) But as we teach medical students in their introductory courses, correlation doesn't establish causation. The primary harm of the Republican distortion is that it contributes to lack of public understanding of the primary drivers of the cost trend: excessive administrative costs, high prices for medical services, and inefficient provision of care.
   
4. Medicare scare tactics. Efforts to scare seniors is an election year ritual. When the Democrats were out of power they did just what the Republicans are doing now. Both parties understand that Medicare (a) is a crucial social program, (b) is very popular, but (c) is economically unsustainable as the baby boom ages. Clinicians who care for the elderly, adult children involved with their parents' medical care, and many seniors, recognize that Medicare needs to move away from uncoordinated fee-for-service treatment, through a combination of better integrated care (through medical homes and accountable care organizations) and wiser CMS oversight. This particular piece of Republican rhetoric is part of political silly season. Democrats are just as profligate in their use of Medicare scare tactics.

From Socialists to the Tea Party, no one loves Patient Protection and Affordable Care Act. Given the intensity of political passion, the enormous economic interests at stake, the complexity of health care, and the dismal state of public and political understanding, passing a comprehensive bill was a remarkable achievement. It's a last ditch effort to make a health system governed by market forces viable. The only alternative is some form of single payer system. If the Republicans succeed in tearing down the health reform process they'll be advancing their own nightmare vision!

Octomom and the Physician-Patient Relationship

At a hearing in California to see if his license should be revoked, Dr. Michael Kamrava, the fertility specialist who implanted 12 embryos in Nadya Suleman ("Octomom"), testified that he recommended implanting "only four," but Ms. Suleman was "adamant about using all 12" so he "obeyed her wishes."

Almost 20 years ago, Zeke and Linda Emanuel wrote a now classic article - "Four Models of the Physician-Patient Relationship." Dr. Kamrava's defense exemplifies what the Emanuels called the informative approach to to the physician-patient relationship:

[Under] the informative model, sometimes called the scientific, engineering, or consumer model... the objective of the physician-patient interaction is for the physician to provide the patient with all relevant information, for the patient to select the medical interventions he or she wants, and for the physician to execute the selected interventions. It is the physician's obligation to provide all the available facts, and the patient's values then determine what treatments are to be given. There is no role for the physician's values, the physician's understanding of the patient's values, or his or her judgment of the worth of the patient's values. In the informative model, the physician is a purveyor of technical expertise, providing the patient with the means to exercise control.

I can remember when the values embodied in the "informative model" came into play. It was the late 1960s - 1970s, in the context of the cultural critique of elitism and expertise that manifested itself in medicine as a well-deserved backlash against "paternalism." The profession swung from seeing the patient as a passive obeyer of the "doctor's orders" to seeing the physician as a passive obeyer of the "patient's orders."

The basis for arguing that Dr. Kamrava should lose his medical license is that he so clearly went against the American Society of Reproductive Medicine guidelines on embryo transfer:

For patients under the age of 35 who have a more favorable prognosis, consideration should be given to transferring only a single embryo. All others in this age group should have no more than 2 embryos (cleavage-stage or blastocyst) transferred in the absence of extraordinary circumstances.

But as reckless and ill-advised as his actions were, he was entitled to argue in response that he was following a recognized model of physician-patient interaction, which, in his view, trumped the ASRM guidelines.

If the "Octomom" situation was a single lapse on Dr. Kamrava's part, I would not favor having him lose his license. He would deserve to be publicly chastised and required to practice under the close supervision, paid for at his own expense, of an experienced IVF specialist. (If it was part of a pattern of reckless practice I would support loss of license.)

The paternalistic model and the informative model should both be tossed out the physician-patient window as default orientations. There's often a need for firm guidance - but when it's calibrated to the details of the patient's needs it's not paternalism. Likewise, there's often a need for saying (in effect) to the patient - "now that I understand your values I'll get right to work" - but when that response is calibrated to thoughtful, evidence-based care it's good medical practice, not slavish consumerism.

(See here for a previous post on the "Octomom" case.)