Plastic Surgeon-Patient Sex

I recently received these questions about doctor-patient sex with a plastic surgeon:

My married sister's plastic surgeon called to give his condolences after the passing of our father. The doctor continued to call and fostered a personal friendship with her. He started to confide in her about his marital problems. They arranged to meet for dinner and entered into a 18 month affair. When my brother in-law discovered the affair, the doctor quickly abandoned her and started to make her look like the person who wanted the affair. My brother in-law filed an ethics complaint which is under investigation for over a year. I am the only person my sister will discuss the affair with, but not the only person that can see how the affair has affected her mentally. She is extremely depressed, filled with guilt and shame and has talked to me about ending her life. She refuses therapy, so I do the best I can to help her. Lately because of our conversations, I truly feel he took advantage of a vulnerable patient who was depressed over the loss of her father. She told me she had become dependent on him. Can you explain this dependence? She says she now knows how people follow a cult leader. Her pain is real and the result of a consensual affair with her doctor. He is not a mental health doctor; will he be held to the same standard? (emphasis added)

 In my response I emphasized that how important it was to help the patient accept counseling. Here I want to discuss the question of whether the plastic surgeon would be held to the same ethical standard as a psychiatrist.

To my eye, although the code of ethics for the plastic surgery specialty prohibits "sexual misconduct," it defines the term in a way that leaves patients and the profession vulnerable:

Sexual or romantic relationships with current or former patients are unethical if the physician uses or exploits trust, knowledge, emotions, or influence derived from the current or previous professional relationship.

The relationship between plastic surgeon and patient is intensely personal as well as technically demanding. Especially for surgery with aesthetic aims, patients entrust the surgeon with potential for making them look more the way they dream of appearing. For female patients, interventions may involve face, breasts, genitals, and their overall sense of "desirability." In terms of the question the patient's sister posed to me - the doctor-patient relationship in plastic surgery would seem to have all of the key characteristics that occur in mental health practice: exposure of deeply personal concerns, potential idealization of the clinician as a "saviour," and "transference" of feelings from the past. And, unlike psychiatry, ordinary practice involves disrobing and touching.

It's hard to see how a "sexual or romantic relationship" between plastic surgeon and patient would not draw in "trust, knowledge, emotions, or influence" derived from the professional relationship, whether or not the physician is consciously "using" or "exploiting" those factors. Even if passions are not involved, it would be very difficult to ascertain whether the factors the code of ethics prohibits were present. Sexual attraction and feelings of love are not known for inducing heightened intellectual and analytic lucidity!

I was unable to find any data on the frequency of complaints about sexual/romantic relationships between patients and their plastic surgeons. Unfortunately, a review of five years of complaints made to the ethics committee of the professional association did not report on the specific content of the complaints. But in light of the nature of the patient-doctor relationship in plastic surgery, I believe that the position of the American Psychiatric Association - that sexual relationships with current or former patients are unethical - would apply with equal relevance to plastic surgery.

In answer to the question posed by the patient's sister, I could not respond that the physician would be held to the same standard as a psychiatrist, but did say that I thought that should be the case.

Sex isn't the only lust that physicians succumb to

Money and power can also lead to ethical collapse.

A sad story today's New York Times tells how Dr. Sidney Gilman, a respected teacher and researcher on drugs for Alzheimer's disease, has been nailed for warning a hedge fund manager he'd been dealing with to dump a pharmaceutical stock before news of a failed drug trial became public. Gilman had access to the information from his role on an FDA panel.

From responses to a number of the posts I've written about doctor-patient sex, it's clear that physicians who violate basic ethical standards can be superb caretakers for their other patients. Dr. Gilman, now 80, apparently had an exemplary career in teaching and research. A neurology lecture series at University of Michigan Medical School is named for him. And a colleague reported that he frequently turned to Dr. Gilman for advice about ethical issues:

He always gave me rock-solid advice and counseled me to maintain transparency so as to avoid even the appearance of a conflict of interest.

Re Dr. Gilman's teaching about transparency, the Times reports that to avoid arousing suspicion about his consultation to the hedge fund about the Alzheimer's drug, Gilman asked his co-conspirator to label the consultations as about other, unrelated topics.

Dr. Gilman could do a service to medicine and medical ethics by sharing the inside story about how a physician who apparently conducted himself in an admirable manner for most of his career descended into obvious unethicality (and criminality) as he did. What steps led from honorable conduct to dishonor? Did he delude himself as to what he was doing, or did he make a Faustian bargain to proceed? Better understanding of the "mechanisms" that facilitate serious ethical lapses can help educators work more effectively towards prevention.

(For an interesting post from a hedge fund insider, see here.)

Accountable Care Sprints Ahead

A recent report from the Oliver Wyman consulting firm - "The ACO Surprise" - argues that ACOs are on the verge of triggering a major transformation of the US health system. I hope their prediction comes true!

For all the complexity of federal ACO regulations, I see ACOs as making four core basic commitments:

1. Take responsibility for helping a population be as healthy as possible
2. Connect specialties, disciplines, and sites (hospitals, rehabilitation, nursing homes) in a coordinated manner
3. Engage patients as active partners - ideally leaders - in promoting their own health and guiding their treatment
4. Accept payment for producing valuable results for the population, not for the individual units of service rendered

Here's the Oliver Wyman view of the near term ACO landscape:

• 2.4 million current Medicare ACO patients
• 15 million non-Medicare patients of the Medicare ACOs. The report predicts that the Medicare ACOs will move towards caring for all of their patients in the "ACO manner"
• 8 - 14 million patients to be cared for in non-Medicare ACOs

If Oliver Wyman is correct, it won't be many years before 10 percent of the US population receives its care in accord with the ACO philosophy. Insofar as ACOs are successful in creating more value for patients per dollar of investment, they'll come to dominate the marketplace.

In my physician hat I see the ACO vision as embodying the fundamental values that motivate most clinicians. The reason I joined the not-for-profit Harvard Community Health Plan practice in 1975 was because it was organized around those values.

In my patient hat, I've chosen to have my own medical care from one of the "Pioneer ACOs". I want my doctors, nurses and hospitalists (if I come under their wing in the future) to collaborate in what they do with, for and to me.

Some years ago a patient of mine was in a severe state of psychiatric crisis. The long term problem was a major psychiatric ailment, but the immediate challenge was getting control of acute alcohol abuse. I made what felt like a zillion telephone calls (this was before all parties used a shared electronic medical record) to alert all those likely to be involved with my patient to the clinical situation and what I was recommending. A week or so later my patient reported - with appreciation - "I spoke with nine different people last week and they all said the same thing..." The crisis subsided.

From the perspective of clinicians and patients, care delivered in accord with the first three ACO commitments listed above feels right. The three commitments meet patient wishes and reflect the underlying ideals of the health professions. The fourth commitment is what matters to us from the economic perspective. I share CMS's belief that doing the right thing in health care will end up saving money. But that will be a happy result of ACOs, not the reason for going down that path.

Politics vs Rational Medicare Reform

I'm a staunch New England liberal/yellow dog Democrat. And I support Howard Dean's organization - Democracy for America. But I shuddered when I received this message in a fund-raising email:

Republicans lost big in the election, but John Boehner is trying to force his right-wing agenda on the American people anyway. Republicans in Congress are taking advantage of the fiscal showdown and trying to jam through massive cuts to Medicare that would be devastating to America's seniors. (emphasis in the original)

Republicans, occasionally joined by renegade Democrats, have plenty of bad ideas about Medicare, like raising the age of eligibility (see here) and turning Medicare into a voucher program (see here).

But experts agree that at least 30% of what we spend on health care is waste. I've talked with lots of practicing physicians about this. No one has ever estimated waste at less than 25%, and many have estimated it at 50%.

The threat to Medicare is dumb ideas like vouchers and raising the age of eligibility, not the idea of reducing the trend line of cost increases. Doing that is an economic necessity for a thriving economy and a moral necessity on behalf of future generations and other social needs.

Dumb cuts "would be devastating to America's seniors." Clinically guided waste reduction would be a positive service, not a devastation. I hope that behind closed doors and away from sloganeering, our leaders - Democrats & Republicans - will move beyond demagoguery to consider how the federal government can promote prudent waste reduction in the Medicare program.

More about the Massachusetts Board of Registration in Medicine and Doctor-Patient Sex

There were two letters to the editor in today's Boston Globe about the Massachusetts Board of Registration in Medicine's decision to take away Dr. Gary Brockington's license. (See here for my original post.)

Nurse Mary Hourihan gives a perspective on Dr. Brockington's overall practice like what we've heard from patients of other physicians who have been disciplined for sexual relationships with patients:

As a nurse who has worked at the Faulkner Hospital for more than 30 years, I was shocked and saddened to read your article concerning the state Board of Registration in Medicine’s revocation of Dr. Gary Brockington’s medical license (“Board revokes Faulkner cardiologist’s license after affair,” Metro, Nov. 24). The doctor has cared for his many patients with the utmost professionalism and expertise. Although I do not work directly with him, nearly every day I hear from our mutual patients the reverence in which he is held.

The board is denying thousands of patients the skilled, sensitive care this extraordinary physician provides. I feel that Brockington and his patients deserve reconsideration of this decision.

Mary Hourihan

West Roxbury  

There's nothing surprising about the fact that a physician who displayed a serious ethical lapse with a patient may have been an excellent physician for most or almost all of his patients. (For example, see here.) In my own experience, a former colleague who I knew to be a superb physician, such that I referred one of my sons to him for allergy care, has been convicted for murdering his wife! In prison, he continues to evince the caretaking characteristics that were so prominent in his care of patients. (See here.)

Donald Ross, a physician colleague of Dr. Brockington, comes to the same conclusion I did - that if Brockington's relationship with the patient was a brief, one-time event that occurred during a period of major stress, the Board's actions were too harsh. But I don't agree with Ross that the Board's decision necessarily reflects "lack of compassion." A Board can impose a severe penalty and still regard to person being penalized with compassion, in accord with the precept that we should hate the sin but love the sinner.

In reading the story about Dr. Gary Brockington’s affair with a woman who was a patient and a co-worker, it strikes me that the reaction of the state Board of Registration in Medicine was over the top and lacked compassion in its response (“State revokes Faulkner cardiologist’s license after affair,” Metro, Nov. 24).

Perhaps there was poor judgment involved, but this does not sound like a case in which a doctor used his position in the doctor-patient relationship in an exploitative way. Brockington was also going through a difficult time in his own personal life at the time, and sometimes we don’t make our best decisions under such circumstances.

Perhaps it would have been more appropriate to require Brockington to enter a counseling program rather than imposing what is essentially a death penalty to his career.

Dr. Donald G. Ross

North Andover

As I said in my original post, if Brockington's relationship with his patient was (1) brief, (2) a single occurrence in his practice and not a pattern, (3) occurred at a time of major stress, and (4) preceded by years of responsible caretaking, than (5) permanent loss of license seems too severe a penalty. This is not a matter of compassion but of realism. Some perpetrators of unethical behavior can be rehabilitated and will be able to serve others in a reliably ethical manner.

Was the Massachusetts Board of Registration Too Harsh on this case of Doctor-Patient Sex?

The Boston Globe recently reported that the Massachusetts Board of Registration in Medicine revoked the license of Dr. Gary Brockington, a 54 year old primary care physician and cardiologist, for having had a sexual relationship with a patient.

I've not been able to get a copy of the report from the Division of Administrative Law Appeals, so I'm entirely dependent on the Boston Globe story, which has extensive quotes from Brockington's lawyer. The story, if accurate and complete, leads me to speculate that revocation of licensure may be too severe a penalty in this specific situation.

According to the Globe, Brockington experienced a Job-like series of events in 2006. He was newly divorced, bankrupt, and depressed. During the same stretch of time his sister (his only sibling) broke her neck and was left by her husband. Brockington became legal guardian for her two young children.

One of his patients, a married woman who was a technician at the hospital where Brockington practiced, and who had worked with him on procedures, invited him to stay in her basement. According to Brockington's lawyer he told her she would have to get another primary care physician. He did, however, renew some prescriptions for her. He stayed in her home for two months. Apparently the brief sexual relationship occurred during the last two weeks of his stay. He moved out in July, 2006. The woman did not herself register a complaint.

If, as Brockington's lawyer claims, the facts show that this was a single episode in an otherwise exemplary career, it's not clear that public safety requires permanent loss of license. In other posts I've strongly supported permanent loss of license when the pattern of facts was different, as in this case. In another case, I concluded that Rhode Island was correct when it reinstated the license of a physician who participated in an extensive rehabilitation program, and agreed to continue in ongoing psychotherapy and long term supervision of practice. (see here)

The spokesman for the Massachusetts Board of Registration is quoted as saying that "the board has zero tolerance for sexual misconduct between physicians and patients." I believe that "zero tolerance" is the correct stance, but don't believe that sexual misconduct always requires permanent loss of license. If the Boston Globe article is the full story, a case can be made that this was a single, out-of-character episode that occurred in extraordinarily stressful circumstances. If that is how the Board saw the situation, I believe it acted too harshly.

Pay for Performance vs Intrinsic Motivation

Among the many stories about health care heroes during Hurricane Sandy, this was my favorite:

Allison Chisholm, 46, who works for the Visiting Nurse Service, lives with a frail mother in Park Slope, Brooklyn. When the lights started flickering during the storm on Monday, she had images of her mother falling in the dark. But she also had patients who needed her, including one receiving hospice care in a 12th floor apartment in Chinatown, and one needing an intravenous round of antibiotics in the West Village.

“It was treacherous driving during the hurricane,” said Ms. Chisholm, fitting an intravenous line into the arm of Jill Gerson, 71, who teaches social work at Lehman College in the Bronx. “But it’s just something you have to do as a nurse. That continuity of care helps the healing. I don’t see this as being heroic. I have a conscience. I need to get to sleep at night.”

Ms. Chisholm was responding to intrinsic motivation - her values as a nurse, embodying the tradition associated with Florence Nightingale and Mother Theresa. She wasn't being "incentivized" (one of my least favorite words) by pay-for-performance, unless we regard the threat from her conscience that - like Lady Macbeth - she would "sleep no more" if she failed to put her values into action as a performance management system, as an "incentivizing" force!

Pay-for-performance has considerable face validity. Extrinsic motivation clearly works in vast swathes of the economy. But as my friend Dr. Steffie Woolhandler's recent post on the Health Affairs blog shows, it's  not at all clear that pay-for-performance is effective in domains that have historically rested on intrinsic motivators such as idealism, altruism, and care. Pay-for-performance can increase the behaviors that are being measured, but evidence that these systems enhance patient outcomes is weak or absent. And there is substantial evidence from the behavioral economics literature that monetary rewards can actually decrease motivation for tasks that are intrinsically rewarding.

My own reaction when I hear of programs to "incentivize physicians to do [XYZ desirable clinical behavior]" is decidedly negative. When I began my own fee-for-service practice in the 1970s I took pleasure in including Medicaid beneficiaries, but after a time the burdensome paperwork and inefficient reimbursement process, combined with microscopic fees, acted as a disincentive for doing what I wanted to do, and I limited the number of Medicaid beneficiaries I took on. I didn't need to be "incentivized" but I would have responded well to a reduction of disincentives.

Rats in a Skinner box are "incentivized" by food pellets. But as the interview with Ms. Chisholm reflects, the kinds of caretaking we want to encourage in medicine flows from values, not P4P pellets. Program managers will do better by recognizing, respecting, and supporting intrinsic motivation. This is best done by removing impediments, not by the condescending view of doctors and nurses as reluctant laborers.

No Treatment as the Treatment of Choice

In the October 3 issue of JAMA, Allen Detsky and Amol Verma offered "A New Model for Medical Education: Celebrating Restraint." Restraint in medical practice is decidedly un-American. Not surprisingly, the authors are Canadian!

Detsky and Verma are concerned with both quality and cost. Here's the essence of their argument:

...we suggest complementing health care cost control initiatives by transforming the current approach used in medical education that primarily rewards meticulousness of clinical investigation to one that also celebrates appropriate restraint...Clinical teachers who are role models could embrace a new approach. They could emphasize teaching restraint, both to improve health care quality and to acknowledge the professional duty of resource stewardship.

The worship of obscure diagnoses is a longstanding part of US medical culture. It's exemplified by the "zebra joke," which I first heard as a medical student in the early 1960s:

Two senior physicians are walking alongside a wall. On the other side they hear galloping foot beats. One says to the other - "what's that?" His colleague replies "it must be a zebra."

Sometimes the search for zebras turns up a real striped quadruped. When that happens it makes a heroic story. More typically the search involves "zebra tests" which turn up "incidentalomas," abnormal findings that have no clinical significance, but which elicit further tests. Apart from the wasteful expenditures the search for zebras can produce, the process can create harmful complications - the side effects of unneeded biopsies or even surgeries, excessive radiation exposure, and more.

I'm a skeptic about medical maximalism and the search for zebras. In the early 1970s, supervising psychiatry residents who had been inculcated in concept of the 50 minute hour, I sometimes had dialogues like the following with my supervisees:

Me: What kind of treatment do you want to prescribe for the patient we've been discussing?
Resident: Twice a week intensive psychotherapy.
Me: How long would each session be, and how long would you want the treatment to last?
Resident: This seems kind of silly, but let's say 50 minutes per session for three years.
Me: That would be approximately 270 50 minute sessions. Do you think we could attain the same outcome if each session was 48 minutes and we had 85 sessions per year instead of 90.
Resident: This really does seem silly. But if you insist on the question, I suppose we could attain the same outcome or close to it.
Me: So even before we look at the techniques psychoanalysts like Peter Sifneos have developed for briefer treatment, we've reduced the cost by 10% without meaningful loss of quality. Not bad!

In 1981 I felt I'd encountered kindred spirits, when Allen Frances, who I've posted about before, and John Clarkin wrote "No Treatment as the Prescription of Choice." They weren't nihilists about treatment, but they correctly noted that psychiatric consultants almost always recommended treatment for the folks they evaluated. Frances and Clarkin suggested a typology of patients who would do better without treatment - patients who were not likely to benefit and for whom treatment might inadvertently be harmful.

As a student, some of the old timers I learned from taught me about the curative impact of "tincture of time." Some conditions will get better on their own if the patient is approached in an optimistic spirit and is willing to allow some time to pass. In non-acute situations where it's not clear what is going on, applying "tincture of time" can be a good diagnostic and therapeutic approach.

Sometimes patients push for this kind of low-interventionist approach. Many years ago I saw a young man who had briefly been hospitalized for what looked like an episode of schizophrenia. I suggested that we start an antipsychotic medication. He objected. He was convinced that the episode came from a recreational drug he'd used. We agreed to follow him - initially weekly, but ultimately every month or two. As best we could tell over the course of two years, he was right. We were both happy. With another patient whose history convinced me that she had bipolar illness, she made a similar argument and refused medication. I told her that I wasn't a worrier, but I was worried about her. I hoped I was wrong and she was right. We followed her status and got to know each other. Unfortunately, as I'd feared, she was wrong - a recurrent episode convinced her of that. But it worked better that she was convinced by her own experience, not simply by yielding to medical authority.

Detsky and Verma come across as wise clinicians. I'm on board with their counsel. I hope others join in. The model they propose would promote a salutary change in US medical culture.

More about the Massachusetts "Death with Dignity" Act

Last week I wrote about the Massachusetts "Death with Dignity" ballot initiative. For those who are interested in the initiative and how it is playing out, this morning's Boston Globe has a very informatinve article on the topic.

Is it OK for GP's to have sex with their patients?

For anyone interested in the ethics of doctor-patient sex and the relationship between ethics and law, the recent 5-1 decision of the Supreme Court of Pennsylvania in Thierfelder v Wolfert makes fascinating reading. (If the details interest you, make sure to read Justice Todd's dissent - in my view she got the issue right!)

In 1996 David and Joanne Thierfelder became patients of Dr. Irwin Wolfert, a family physician. He treated them both for conditions that included low libido. In 2002 Ms. Thierfelder told Dr. Wolfert that he had "cured" her problems and was her "hero." They began a sexual relationship that lasted for a year. She became more anxious and depressed and finally ended the relationship in January 2003. She told her husband about the affair two months later, and together they brought malpractice action against Dr. Wolfert.

Dr. Wolfert argued that as a general practitioner he should not be held to the same standard as psychiatrists, for whom a clear duty not to have sexual involvement with patients had been recognized. The court accepted this view on the basis that psychiatrists are trained to recognize and deal with "transference" (reacting to current relationships, like Ms. Thierfelder's with Dr. Wolfert, in terms of past relationships). GPs, the court concluded, should not be held to the same duty of care, since they are not trained to do treatment based on dealing with transference. If they were held to this standard it would discourage them from providing mental health counseling to their patients, which would be a bad societal outcome.

The majority made clear that the fact that Dr. Wolfert's actions were seen as unethical within the medical profession did not mean that he had violated legally enforceable duty. The Pennsylvania Board of Medicine had in fact sanctioned Dr. Wolfert before the Supreme Court heard the case. (It ordered a three year suspension of his license, but stayed the suspension under terms that included professional development activities, 550 hours of community service, and a fine.)

The majority cited Korper v Weinstein, a case in my home state of Massachusetts. Dr. Weinstein had done a breast biopsy on Ms. Korper at the Harvard University Health Service. (It was benign.) After completing her followup care, the two had lunch together, and a consensual sexual relationship ensued. Dr. Weinstein was not involved in a further treatment relationship. When he ended the relationship two years later she brought action against him. The court opined:

Any trust and confidence she placed in the defendant as a person...even augmented by circumstances that made her emotionally dependent on him, did not create a fiduciary duty in the defendant to prevent the personal relationship that developed consensually between them, especially where he terminated the physician-patient relationship as soon as the personal relationship began.

In her dissent, Dr. Todd concluded that (a) general practitioners frequently provide mental health services and are allowed to do so by their licenses and (b) sexual relations with patients is explicitly prohibited by the medical community, with (c) the result that she had "no hesitation in concluding that general practice physicians who provide mental health disorders to patients have a duty to abstain from sexual relations with their patients...and that these physicians may be potentially liable in professional negligence actions for any harm to their patients - patients they pledged to take no action to harm - as a result of engaging in such conduct" (page 18 in the dissent).

I believe Dr. Todd, though outnumbered 5 to 1, was correct. It's widely known that sexual relationships with patients being treated for mental health conditions have high potential for causing harm. Treating mental health conditions is within the purview of general practitioners. The ethical standards of the profession are well-known to prohibit sexual relationships with current patients. It's hard to see why the allegation of malpractice should not have been judged on the basis of its facts, rather than being prevented from coming to trial. The facts would have shown that Dr. Wolfert breached a duty. But it would have to be further shown that this had directly led to damage to Ms. Thierfelder.

The majority did not argue that it's ethically acceptable for general practitioners to have a sexual relationship with patients they are treating for mental health conditions. But in my view their conclusion that seeing a duty not to do so sets too high a standard is insulting to GPs. Being sued for malpractice is every physician's nightmare, but implying that GPs don't have enough understanding of human psychology and the treatment process to know that sexual relations and mental health treatment don't go together is demeaning to their competence and maturity.

Massachusetts Death with Dignity Ballot Initiative

My home state of Massachusetts has an initiative on the November ballot that would establish a "death with dignity" law closely modeled on the existing laws in Oregon and Washington. Surveys suggest that a majority of the public support the law, but influential groups including the Catholic Church and the Massachusetts Medical Society oppose it.

Today I had the privilege of meeting with a group of elderly men at a community center to tell them about the initiative, summarize the essence of the pro and con positions, and then lead them in discussion. In other words, something like a focus group.

The heart of the discussion was a spirited exchange between two of the participants. One who I'll call "Skeptic," opposed the initiative. Human nature being imperfect, he anticipated that some doctors would "specialize" in certifying that patients met the criteria for receiving a lethal prescription without the kind of careful clinical attention the law encourages. Whether the motivation was financial profit or perverse sadism, Skeptic was certain that this kind of medical misbehavior was inevitable.

The other, who I'll call "Advocate," argued that the right to receive a prescription for ending one's life in the context of a terminal illness is a natural and necessary extension of the right to refuse treatment or to discontinue ongoing treatment. Advocate believed that science has created all manner of life prolonging interventions and that patients need tools to control what they receive or are subjected to.

Skeptic focused on the risks arising from misuse of the proposed law. Advocate focused on the risks arising from lack of autonomy for patients with terminal conditions.

The group agreed that both risks were real. Oversight by the Department of Publich Health, to whom use of the law would have to be reported, and the Board of Medicine, which could sanction outliers of the kind Skeptic envisioned, was trusted by some but not by others.

In my summary of the pros and cons I cited religious beliefs about the wrongness of hastening one's own death and told the group about the Roman Catholic Archdiocese website "Suicide is Always a Tragedy." No one in the group, however, brought in theological reasoning. I don't know if this was because theology was not a driving force for them or if they regarded religious belief as private.

Where we ended was with a sense that the exchange between Skeptic and Advocate was best understood as a "good versus good" conflict. Skeptic took a consequentialist view - the law would allow unethical physicians to consign people to death without application of the safeguards the law sought to put into place. Advocate took a rights-based view - patients need and deserve more tools to allow them to advance their own autonomous choices.

I wasn't trying to persuade the group to any position on the law. My aim was to (a) inform them and then (b) get a sense of how a population for whom the law, if passed, could become relevant, thought about the law. We concluded that intelligent, thoughtful, well-motivated persons of good will could, would, and did disagree.

I'll write more about the topic after November 6!

Death by bedsores

The September 15 issue of The Lancet has a fascinating article by Arthur Caplan, who is now at the Division of Medical Ethics at New York University Medical Center.

Caplan tells the story of "Harold Brennan" (a pseudonym), an 88 year old man who had lived an independent life until a series of ministrokes left him helpless and bedridden. He was in a community hospital where, despite apparently good care, he developed bedsores. He experienced great pain whenever he was moved and decided he no longer wanted to be turned. When told that this would lead to worsening infections and death his resolve was all the stronger. A psychiatric consultant assessed him as angry but not depressed and competent to make decisions.

The nurses were horrified. How could they stand by and not provide the most basic form of nursing care? The hospital tried to get Mr. Brennan's daughter to come to a conference, but she couldn't bear to see him deteriorating and did not attend.

Mr. Brennan was not turned. As the infections worsened, his roommate was moved to another room. The nurses had to wear masks when they entered the room because of the smell that came from his decaying body. He died after 5 weeks.

Here's Caplan's conclusion:

Must do not turn requests by competent patients be honoured? Patient autonomy is a strong value in the ethical values that guide health care. It is not, however, the only value. It should not be honoured when such requests pose unacceptable risks and dangers to other patients or the ability of staff to function. Where and how these values are to be balanced against patient autonomy is not clear. That they ought to be balanced is. The “simple” case of a request not to turn reveals a key moral truth—that autonomy has its limits.

I discussed the case with a colleague I respect, who felt that Caplan violated the principle of autonomy "egregiously." I would guess that this would currently be the majority view among US physicians.

Caplan makes two basic arguments - one with reference to other patients and one to "the ability of staff to function." The first point is clear. As John Stuart Mill argued so forcefully in On Liberty, If Mr. Brennan's request endangers other patients - even relatively slightly - via the potential for transmitted infection or some other mechanism, his request should be overruled. His liberty does not give allow him to choose a course of action that threatens the well being of other patients.

But what about the nurses? Caplan's reference to "ability of the staff to function" is too vague. If Mr. Brennan's request prevented them from caring for other patients, the harm to others factor would apply. But if his decision causes moral distress ("how can we let him die that way - it's too terrible?") or disgust ("the smell makes me vomit"), we're on shakier grounds. Moral distress and disgust are subjective reactions. If your decision to refuse dialysis or chemotherapy causes moral distress or disgust for me that's my problem, not yours.

Voluntary refusal of food and liquid is a "cleaner" way to end one's life than allowing rampant skin ulcers to fester untreated. But if we are prepared to allow competent persons to refuse intake, which I believe we should, we should be prepared to allow refusal of turning, unless the refusal endangers others.

Malignant: Medical Ethicists Confront Cancer

I've just read Malignant: Medical Ethicists Confront Cancer, edited by Rebecca Dresser. Seven ethicists who have either had cancer themselves (5) or cared for a spouse with cancer (2), or both (1), write about their experience and discuss what that experience might mean for ethics and clinical care. It's a very approachable book. I think most readers of this blog would find it powerful.

Here are some of the main lessons I gleaned from the book:

1. Not surprisingly, direct experience deepens our understanding of the issues we teach about in the classroom and write about on blogs and in print. The deepening isn't conceptual knowledge. It's more that the experience acts as a filter, indicating what's truly important in what we've thought and where we've been naive or callous. In my ethics seminar section at Harvard Medical School we regularly work with cases. I've taken to "becoming" the patient in the case, and interacting with the class in that role. I've found that taking on the persona of the patient - even when that persona is very different, as when I play a teen age female - the role comes alive for me in feelings and perceptions. I become a better teacher for it. If the students learn half as much as I do from those exchanges, the class is a success.
2. Norman Fost describes a remarkable experience. Being worked up for what seemed clearly to be a recurrent kidney stone the resident evaluating him ordered a CT scan. Fost explained to the resident why he thought the scan was (a) medically not called for and therefore (b) an wasteful expenditure. But he didn't refuse it. The scan confirmed what he knew - he had yet another kidney stone. But it also showed a mass, which on further exploration turned out to be an early, and apparently curable, kidney cancer. Kidney cancers are often found too late for cure. Fost believes the CT scan may have saved his life. But he holds to the view that it was wrong to order it and that it reflects an overly interventionist, inadequately cost attentive, US medical culture.
3. Rebecca Dresser and Dan Brock write about decisions they made that in retrospect (a) went against their values and (b) about which they wish their physicians had discussed/argued with them. Dresser's example is especially telling. She refused a feeding tube and was close to death when a nurse talked her into changing her mind. Dresser and Brock speculate that physicians may have learned the lesson of respecting patients' decisions too well! Rather than challenging bad decisions - decisions that go against the patient's values, they too readily acquiesced. In terms of "Four Models of the Physician-Patient Relationship," a valuable paper  by Linda and Zeke Emanuel from twenty years ago, their physicians applied the "informative" model - provided information and then, in effect, followed the patient's "orders," when the reflective give-and-take of the "deliberative" model would have been more useful.
4. Arthur Frank sees cancer support groups as potentially hugely valuable for patients, but he warns that these groups and what he calls the "survivorship industry" can thrust identities that don't fit onto patients. His comments helped me understand something I observed several times in my clinical practice. Patients who had experienced a loss, and who by all appearances were going through painful, but "healthy" grief, were frightened by the fact that they weren't crying more. They had imbibed the view that "proper" grief involved lots of tears and feared that they were full of unshed tears that would act like a poison. Explaining that there wasn't a single "correct" way to experience grief reassured them.
5. Finally, and with most personal impact for me, John Robertson and Leon Kass write in painfully raw terms about accompanying their wives on their journeys with ovarian cancer. Robertson's wife Carlota Smith died. Kass's wife has experienced recurrences, but is still in treatment. I hope that if my wife encounters a similar experience I will respond with the commitment, care, and courage that Robertson and Kass displayed.

There's lots more than I've written about to glean from this moving book!

Allowing import of needed drugs from Canada

Last year I wrote about a well-intended FDA policy about colchicine, a drug used since ancient times for gout, and now for other serious conditions, such as Familial Mediterranean Fever. As an ancient treatment widely used prior to formation of the FDA, colchicine did not require FDA approval as a new drug. Then in 2009, the FDA granted approval to URL Pharma for Colcrys, its version of colchicine, based on randomized controlled trials the company conducted. Because colchicine had never been subjected to the FDA approval process, Colcrys was, in a technical sense, a "new" drug approved for a "new" indication - treatment of gout and FMF - despite the centuries of prior use, and by regulation was entitled to market exclusivity. In 2010 the FDA ordered all other manufacturers to cease production and marketing of their versions of colchicine.

Unfortunately, Colcrys is not effective for some patients with Familial Mediterranean Fever. To maintain their health these patients need the generic form, which must be imported from abroad. A friend recently told me about the new roadblock a family member is encountering. Here's the letter that went to the patient's senators:

I am writing with regards to the recently passed Food and Drug Administration Safety and Innovation Act (S. 3187). The bill includes a provision (Section 708) that may prevent me from being able to import my prescription from Canada, which I depend on for my health and quality of life.

This legislation authorizes the seizure and destruction of safe prescription drug imports valued under $2500. I have a prescription for generic colchicine for a rare genetic disease which I have, Familial Mediterranean Fever. When I tried the US brand of colchicine, Colcrys, I experienced extreme side effects and a relapse of symptoms, resulting in a month of illness, including an overnight stay in the hospital with high fevers and dehydration. Through this experience, my doctor and I discovered that it is essential that I be able to access an alternative brand of colchicine. Due to an FDA ruling, all brands of colchicine except Colcrys were taken off the US market several years ago. I now depend on my prescription from Canada for my health and well being.

When I am able to take colchicine imported from Canada, I have no symptoms and live a normal, healthy life. Without access to this medication, I will experience fever episodes lasting from several days to a month, pain, and inability to eat. It will compromise my ability to finish graduate school, where I am currently working on a challenging program. It will put me at risk of future complications from my genetic disorder.

I am extremely concerned that when Section 708 of Act 3187 is implemented, I will lose access to my direly needed medication. Please let me know what you plan to do to change Act 3187 to allow me to continue my life. Thank you for your time and consideration.

I don't fault the FDA's intentions. But in a country of 300 million people, it will be the rare policy that applies to all in a fair manner. Justice requires a robust exception process in situations like the dilemma of FMF patients who require the generic drug.

The patient did her part in putting the issue onto the public table. Now it's up to the FDA to respond.

Check out this new blog

I've been working for a few months with Dan Callahan, Shep Nuland, and Mary Crowley of the Hastings Center to develop a new blog. It's called Over65. Our aim is to foster a voice for progressive-minded folks over 65 who will comment thoughtfully on health care, social security, and other aging-related issues. We felt that there's a lot talk about  the Medicare generation, but not enough talk from that group. We think of the blog as the first step in what we hope will become a series of linked projects, aiming to build a foundation for more thoughtful policy discussion of issues involving aging and intergenerational equity than has happened to date.

I'll be travelling for two weeks, and will look forward to returning to both blogs when I'm back

Old against young in Japan

If you read about a country with economic problems where "already indecisive leaders [are] loath to upset retirees from the baby boom who make up more than a quarter of the population and tend to vote in high numbers," you might guess that the article was about the U.S. and Medicare. It's not.

It's about Japan and the value of the yen.

In 2007 the Japanese yen was trading at 123 to the dollar. In the post-2008 economic crisis the yen was seen as a safe haven currency. Its value went up. It now trades for about 78 to the dollar.

So what does the exchange value of the yen have to do with intergenerational conflict? An article in today's New York Times explains why the old and the young are fighting about currency.

The strong yen makes imports cheaper. Cheaper imports drive down domestic prices as well. Older people on fixed incomes can buy more. What cost them 123 yen in 2007 costs them only 78 yen now. But a strong yen makes exports more expensive, and Japanese industry - very export dependent - is suffering. This hurts the young.

Japanese political scientists say the government has tolerated the strong yen out of fear of the elderly. Shigeru Ono, a 62 year old retired oil company manager who lives on a monthly pension of 130,000 yen (approximtely $1,660), understands the intergenerational conflict:

The strong yen and deflation have been a boon for us baby boomers. But I also know that they cannot be good for my son’s generation.

The U.S. is struggling to contain the cost of Medicare. Japan is struggling with the impact of a strong yen. In families, grandparents cherish children and grandchildren. But in wider society the relationship between generations is playing out differently.

The future well being of both countries depends in large measure on the balance of competition and cooperation between old and young.

Massachusetts nibbles at the cost bullet

On the last day of the legislative session, the Massachusetts Senate unanimously approved a 350 page health reform bill. The House approved it by 132-20. Governor Patrick has said that he will sign it. (The bill itself is not yet available on line - I've read about it but not yet seen it.)

Like the Affordable Care Act, the Massachsetts bill includes a wide range of policy steps - creating an oversight agency, promoting transparency about costs, supporting wellness programs, encouraging global budgets and an end to fee-for-service, and more. But the key component is the line in the sand about overall health care costs: between 2013 - 2017 cost increases should not exceed the growth of the state economy. For 2018 - 2022 cost increases should be at least 0.5% below the state economy growth.

So what happens if costs exceed the target?

Since total health care cost is the sum of thousands of independent charges (by hospitals, medical offices, equipment vendors, and more) and payments (by insurers, patients, government, and more), there's no one to hold accountable and no real enforcement mechanism.

Representative Steven Levy's twitter comment on the cost containment commitment was (1) "lol" and (2) "only concrete thing in it is more bureaucracy and fees." He's not right, but he's not completely wrong.

Even without a true accountability structure or enforcement mechanism, the cost commitment matters. The situation reminds me of all the times my wife and I said to our sons some form of - "we expect you to do XYZ." By the time they were teen agers they were smart enough to ask - "what happens if I don't do XYZ?" We tried to avoid too much sabre rattling and generally said something like "we expect XYZ to happen - if it doesn't we'll deal with it then..."

Of course XYZ didn't always happen. Sometimes there were consequences. Sometimes there were apologies and resolutions to do better. Occasionally our sons would persuade us that XYZ was the wrong expecation - it should have been ABC. But we always took it seriously if XYZ didn't happen.

Managing a state with 6.5 million residents and $80 billion in health expenditures is rather more complex than managing a four person family, but I expect the same process I experienced as a parent to happen in Massachusetts.

Until now we've not had explicit expectations for health costs. Now we do. Measuring how we're doing in relation to a commitment is different than wringing hands over "unsupportable cost increases." Our legislators and Governor have made a promise. It's not clear how they, and we the citizens, will accomplish it. But we can't avoid paying attention to it, working on it, learning from what happens, and taking next steps.

The law sets a process in motion. It's not a silver bullet. It's more like tying a string around  a finger to ensure vigilant attention. But that's more than our state, or any state in the U.S. has done before.

Jekyll and Hyde in Medical Practice

 I've written many times about how doctors who exploit patients sexually can provide excellent care to and be idolized by their other patients. I just learned from my friend Dr. Brian Hurwitz that the same can be true for doctors who murder their patients!

I first met Brian when I spent three months at the King's College London Centre for Medical Law and Ethics in 1992. He was doing an MA at the Centre, and allowed me to spend a fascinating day with him in his general practice surgery. For the past ten years he's been D'Oyly Carte Professor of Medicine and the Arts and Director of the Centre for the Humanities and Health at King's College.

Brian sent me a not-yet-published chapter he's written about Dr. Harold Shipman, the GP who was ultimately found to have been a serial killer who murdered more than 250 of his patients. The chapter included this remarkable quote from the son of one of the patients Dr. Shipman was found to have murdered:

I remember the time Shipman gave to my Dad. He would come around at the drop of a hat. He was a marvellous GP apart from the fact that he killed my father.

Shipman never admitted his guilt and refused to talk with psychiatrists, as did his surviving family. He committed suicide in prison in 2004. Although many colleagues and members of the community where he practiced noted strange occurrences in Dr. Shipman's practice, no one was prepared to draw the retrospectively obvious conclusion - a trusted, beloved physician was killing his  patients!

I think the best comment about people like Shipman comes from "The Shadow," an old time radio detective whose adventures I followed as a child. (The Shadow had the gift of invisibility.)

Who knows what evil lurks in the hearts of men? The Shadow knows!

Who's taking care of Mom?

The July Journal of the American Geriatric Society has a disturbing article - "Hiring and Screening Practices of Agencies Supplying Paid Caregivers to Older Adults."

Researchers at Northwestern School of Medicine posing as prospective clients seeking a caregiver for an elderly adult relative, contacted 180 agencies and asked about hiring, screening, and supervisory practices. Their findings aren't pretty!

67% of the agencies required experience, but this was often assessed by self-report. 62% checked references. 92% checked criminal background within the state, but no agencies checked other states, meaning that someone who had been convicted elsewhere would appear to have a clean record. English language proficiency was assessed via the interview, and no agencies assessed health literacy (ability to understand physician recommendations, dosage schedules, and so forth). 31% conducted drug screening. 7% verified citizenship or visa status. Training and supervision were very limited. The researchers conclude:

The screening and training practices in use by caregiver agencies are highly variable and often of poor quality. Using an agency to hire paid caregivers may give older adults and their families a false sense of security regarding the background and skill set of the caregivers.

Home care for the elderly has the makings of a perfect storm. It brings together vulnerable elderly with a marginalized population of poor, often immigrant, workers. This is a setup for exploitation - sometimes of the elderly by the "caretaker," and sometimes of the caretaker by the agencies that hire them.

When my father, who lived 1,000 miles from where I was, lost his vision and entered the early stage of cognitive decline, my cousin needed a place to live and moved in with him. He provided eyesight, companionship, and driving. My father provided lodging and paid for food. It was a true win/win situation.

But this kind of good luck is the exception, not the rule.  Agencies, like the 180 surveyed in the study, are filling a vacuum in our fragmented society. Unfortunately, as the study reveals, being hired by an agency is not a reliable stamp of approval.

Teaching Ethics in High School and Middle School

I'm in Vermont at the Bread Loaf School of English, a Middlebury College program in which the students, primarily high school and middle school English teachers, can get a Master's degree in the course of five summers. My wife has been teaching here every summer since 1992 and I've been enjoying the potential for (a) telecommuting and (b) swimming and hiking in Vermont.

This year the Bread Loaf program has a new format for elective workshops, and I'm doing one next Friday on teaching ethics in high school and middle school. I've never taught at that level, but I've taught medical ethics at Harvard Medical School for many years, and I wanted to see whether and how that experience could be extended to pre-college English classes. I hope the participants learn as much as I have in preparing for the workshop.

Since the content of the medical school course isn't relevant for pre-college English classes, I dissected out the underlying goals I have for the medical students. I identified five:

1. Strengthen ability to identify ethical issues, ideally combined with a zest for tackling these issues – a capacity that can be called “moral imagination” or “moral sensitivity.”
2. Impart systematic approaches to resolving ethical questions – approaches, not answers.
3. Enhance skills and attitudes that promote considering the views of others in a respectful manner – listening to those we’re talking with and, imaginatively, to the views of other stakeholders to the issue. 
4. Cultivate the habit of using our own "gut" reactions as “data” for ethical reflection, not necessarily as “truth.” This doesn’t come naturally to most adults, and is even more challenging for adolescents. 
5. Enhance capacity to reason to a justifiable conclusion and articulate the rationale for our conclusions.

In preparing for the workshop I came upon the work of Tom Wartenberg, Professor of philosophy at Mount Holyoke college, who teaches a course in which undergraduates (a) examine children's books through the lens of articulating the implicit philosophical content of the stories and (b) train to lead discussions for fifth graders at a nearby charter school. (The website is very worth a visit.) In an interview he described his objectives for elementary school children as essentially the same as my objectives for Harvard Medical students. His aim is to teach children how to "philosophize," not about the content of philosophy per se. The children dove into the discussions with the same gusto that makes teaching the course to medical students such  a privilege and pleasure.

Apart from the specific content focus of ethics education, the attitudes and skills required for reasoning about ethical issues are the fundamental requirements for democratic participation. I'll depend on the teachers who participate in the workshop for ideas on whether and how including ethics in high school and middle school English classes is (or is not) a promising practice in an era dominated by standardized testing.

Sexual Intimacy in the Nursing Home

The most recent issue of the Journal of Medical Ethics has an excellent article from the Centre for Evidence-Based Aged Care in Australia - "Dementia, sexuality and consent in residential aged care facilities."

The authors' argue that "while we must abide by laws regarding consent and coercion, in general we [in the West] expect to be able to engage in sexual behaviour whenever, and with whomever, we choose." In their view, nursing homes should allow for sexual intimacy and interfere only for clearly defined reasons, rather than treating sexuality as a special privilege that must be earned by requiring both parties to "prove" decisional competence, and, often, to require permission from families.

The authors are drawing on the concept of "dignity of risk." Meaningful life entails taking risks. If we agree with John Stuart Mill that as long as individuals are (a) not causing harm to others and (b) understand the nature and consequences of their proposed actions ("decisional competence"), then(c) their liberty should not be constrained. The authors recognize, but do not discuss in depth, the challenge of assessing "competence" in the presence of dementia. To my reading they underestimate the potential risks, as when one party erroneously believes that the other is their spouse or partner. But they're right that we tend towards excessive prudishness with regard to sexuality in our parents and grandparents.

This was the explicit focus of teaching when I was a medical student. We were in our 20s, so patients in their 70s and 80s were the age of our grandparents. When teaching us how to take a medical history our instructors warned us that we might feel uncomfortable asking about sex with patients in that age range. They reminded us that we were doctors-in-training learning a medical role, not prurient children or grandchildren peeking through keyholes into a bedroom.

My father was something of a ladies man. He outlived three wives and, over the years, I was aware of a number of his girlfriends. In the final months of his life he suffered from dementia and heart failure, along with blindness, and was in a nursing home. On a visit that turned out to be just two days before his death, we returned to his room to find an elderly woman lying on his bed. I said in what must have been a saccharine-toned voice "this is my father's bed." She responded, with a mischievous smile and a twinkle in her eye, "I know."

Knowing that flirtation was alive and well so near the end of my father's life is a happy memory for me!

(The full article is only available by purchase, but a free abstract is available here.)

Teacher/student sex

I spent four happy years (9th to 12th grades) at the Horace Mann School in New York, and was startled by a New York Times article in June titled - "Prep School Predators: The Horace Mann School's Secret History of Sexual Abuse." The author, Amos Kamil, had researched the piece for more than a year and had interviewed more the 100 former students and teachers.

The article describes how several teachers in the 1980s and 1990s were well known for "hitting" on students. The article discusses in detail three who preyed on boys. One, possibly two, committed suicide after finally being dismissed. But the sexual exploitation had gone on for many years. It's hard to believe that the administration was unaware of what was happening. The author himself was invited to the home of Inslee Clark, the head of school, and, although underage, was given alcohol, at a small dinner that included one of the teachers known for hitting on boys.

In the world of organizational ethics there's a saying: if the CEO isn't "chief ethics officer" as well as "chief executive officer," don't waste your time on organizational ethics. Leaders set the moral tone of organizations by what they practice, not what they preach. Clark's alcohol-laced dinner suggests that he was setting an atmosphere that tolerated what in the medical world is called "boundary violations."

There's a structural similarity between the doctor/patient relationship and the teacher/student relationship. We give doctors and teachers authority and respect for helping us cultivate our capacities for health and wisdom. We expect them to focus on the needs of their patients and students, and to put their own private desires into the background. Sexual interest isn't a violation of that trust. Overt behavior is.

Neither I nor my best friends from high school had any knowledge of teacher/student sexual relationships, but we were at Horace Mann 25 years before the period the article discusses. But Tek Young Lin, a new teacher in our days, now 88, acknowledged that he had sexual relationships with students in the 1960s and 1970s. Tek was a Buddhist and a beloved English teacher. I remember him as a charismatic, profoundly educative person. The candor I remember him for was reflected in the interview he did with the New York Times:

 "in those days, it was very spontaneous and casual, and it did not seem really wrong...if I had in any way harmed them, hurt them, I am truly, truly sorry. I hope if they have been hurt, they will overcome that hurt, and I should be very happy to help in any way I can." 

 The fact that a beloved teacher could also be an exploiter is consistent with comments made on this blog by former patients of physicians who'd lost their licenses for boundary violations. It's clear that teachers, like doctors, who violate boundaries with some, may provide superb education to others.

An article in yesterday's New York Times reports that alumni are unhappy with what to them seems like a "cold" reaction on the part of current leadership. I'd felt the same way. The disappointing public comments probably reflect the misguided legal advice the school administration was given - to say nothing that could be used against the school in court. This is what lawyers used to advise physicians in situations of bad outcomes. That defensive approach is now seen to be (a) inhumane and (b) bad strategy for preventing malpractice litigation.

I take three lessons from these unhappy stories about my high school. First, we humans are open to a wide range of feelings and fantasies. In relationships like teacher/student and doctor/patient we should expect that the full range of emotions can enter in (on both sides). Professional education should help us become better self-observers and self-managers, so that we can govern ourselves in accord with our professional responsibilities. Second, leadership matters. Inslee Clark set a permissive example. Likewise, in years past, leaders in medicine did the same. Medical leaders hushed up allegations against colleagues, just as bishops did with offending priests. Finally, when a problem hits the fan, respond as Tek Young Lin did, not as past medical leaders and bishops did - take responsibility for the situation, apologize, and make amends when possible.

(For the initial article about "Prep School Predators" see here. For the article about my teacher Tek Young Lin, see here. For yesterday's article about alumni reaction to how the school is handling the situation, see here.)

Paranoid Style in the ACA Dissent

My wife and I are in Vermont with two of our grandchildren visiting, so I've only just now finished reading the 193 page Supreme Court decision about the ACA.

Throughout the health reform process I've tried to understand the virulent opposition to the ACA in terms other than "stupidity" and "demagoguery." Stupidity is real, as when Senator Breaux's constituent pleaded "don't you let the government get hold of my Medicare." And demaguguery is all too real, as in Sarah Palin's death panel lies and Mitt Romney's sucking up to the Tea Party and running away from his constructive role in Massachusetts health reform. But the dissent written by Justices Scalia, Kennedy, Thomas, and Alito (that's the sequence of their names on the dissent) offers a uniquely clear insight into hatred of the ACA.

I'm not a scholar of constitutional law, but I found Justice Ginsburg's argument that the individual mandate was constitutionally justified under the Commerce Clause persuasive. But I also found Justices Scalia, Kennedy, Thomas, and Alito's argument that the Commerce Clause does not justify the mandate strong in logic.

It may be the psychiatrist in me, but I believe the conclusion the four dissenters reached (and the virulent hatred of the ACA that some of its opponents express) reflect the dissenter's fear of a slippery slope more than the nuances of interpretation of precedents. The dissent has a framework of logic, but the driving force is emotion. I've highlighted the emotional content of three representative excerpts from the dissent:

...to say the failure to grow wheat (which is not an economic activity, or any activity at all) nonetheless affects commerce and therefore can be federally regulated, is to make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity. (p 129)

...If congress can reach out and command even those furthest removed from an interstate market to participate in the market, then the Commerce Clause becomes a font of unlimited power, or in Hamilton's words, "the hideous monster whose devouring jaws spare neither sex nor age, nor high nor low, nor sacred nor profane." (p 134)

But if every person comes within the Commerce Clause power of Congress to regulate by the simple reason that he will one day engage in commerce, the idea of a limited Government power is at an end. (p 138)

The dissenters see the ACA as unleashing a hideous devouring monster. Their outlook reflects what historian Richard Hofstadter called the paranoid style in American politics. Here's the essence of Hofstadter's analysis:

I believe there is a style of mind that is far from new and that is not necessarily right wing. I call it the paranoid style simply because no other word adequately evokes the sense of heated exaggeration, suspiciousness, and conspiratorial fantasy I have in mind. I am not speaking in a clinical sense...It is the use of paranoid modes of expression by more or less normal people that makes the phenomenon significant.

...As a member of the avant-garde who is capable of perceiving the conspiracy before it is fully obvious to an as yet unaroused public, the paranoid is a militant leader. He does not see social conflict as something to be mediated and compromised, in the manner of the working politician. Since what is at stake is always a conflict between absolute good and absolute evil, what is necessary is not compromise but the will to fight things out to a finish. Since the enemy is thought of as being totally evil and totally unappeasable, he must be totally eliminated—if not from the world, at least from the theatre of operations to which the paranoid directs his attention.

The dissenters see the ACA through the lens of the paranoid style. This is what leads them to the crucial slippery slope argument - that if we allow the individual mandate we allow the government unlimited power to coerce us. The end result is the image of the body politic as an infant, being forced to eat broccoli by a controlling mother:

All of us consume food...But the mere fact that we all consume food and are thus, sooner or later, participants in the "market" for food, does not empower the Government to say when and what we will buy. That is essentially what this Act seeks to do with respect to the purchase of health care. (p 139)

The slippery slope argument - from the health insurance mandate to total government control and forced feeding with broccoli - depends on the emotion, not logic. Justice Ginsburg makes a powerful argument that health care, representing more than one sixth of our national economy, is a distinctive case, not just one stop on a slope leading to broccoli. But from the perspective of the paranoid style, giving an inch is giving a mile.

Hofstadter is clear that the paranoid style doesn't mean that the views being asserted are wrong. In my view the dissenters make cogent arguments about Commerce Clause precedents but, again in my view, the arguments don't trump those advanced by Justice Ginsburg. But for those who see the world through the paranoid style lens, the associated emotions add the necessary weight to arguments that in themselves are not decisive. 

The paranoid style isn't a logical conclusion - it's an emotional predisposition. As a result, logic won't alter it. Between now and November we'll see how the Republicans will seek to fan paranoid style flames and how the Democrats will seek to counter it. Stay tuned!

(The full Supreme Court decision is available here. And for a strong argument as to why the health sector is distinctive and the slippery slope argument fails, see health law professors the amicus brief from 104 health lawyers here.)

Praying for health

When I learned last week that a friend, who is also a colleague I admire, is having major surgery today, I included this sentence in the note I sent him: "Although I don't literally "pray," the phrase "you will be in my prayers feels true - and you will be next Tuesday."

He wrote back: "Technically, I do not "pray" either. However, I find that I have a strong faith in universal purpose, the importance of helping others, and that one's contributions profoundly matter in some way."

By chance on the same day I sent my email, another colleague wrote to me this way about our shared interest and pleasure in Vermont, where I am now: "We are so blessed living in New England!"

What's going on with non-praying prayers, universal purpose, and blessedness?

My love of religious language is not rooted in a theology. When I'm forced to explicate my religious position I define myself as "a religiously minded Jewish atheist." As an atheist, I don't participate in a congregation or community that calls itself religious. But here I was, on the same day, telling my friend that he would be in my prayers, hearing back from him about universal purpose, and hearing from another friend and colleague that we were blessed.

I do feel blessed to be part of a set of overlapping communities committed to health and health care - clinicians, researchers, and folks involved with health care ethics. An anthropologist studying us would say that these communities are like religious communities in (1) sharing values and (2) regularly talking about ("professing") those values while (3) maintaining recurrent, long term contact with each other. For me, and for folks like the two colleagues I exchanged messages with, these moral communities have the same valence that an organized religion can have for someone for whom the religion as a living experience, not a dutiful routine.

Referring to "prayer," "blessedness" and "universal purpose" uses terms that have been developed in the context of religious commitment and theological belief to affirm and reinforce the commitment that my friends/colleagues share. The religious terms carry a distinctive weight. They help to convey that health care can be a "vocation" and "calling," not a job.

I haven't been down on my knees today, but my friend is definitely in my prayers!

Bereavement, Depression and DSM-V

In January I criticized the American Psychiatric Association (APA) for planning to drop the "bereavement exclusion" from the definition of major depressive disorder in the forthcoming new edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-V). Under the exclusion, the diagnosis of depression is not made if:

The symptoms are not better accounted for by Bereavement, i.e., after the loss of a loved one, the symptoms persist for longer than 2 months or are characterized by marked functional impairment, morbid preoccupation with worthlessness, suicidal ideation, psychotic symptoms, or psychomotor retardation.

In a recent issue of the New England Journal of Medicine, Richard Friedman, a distinguished psychiatrist at Cornell who writes excellent New York Times columns for general readers, adds to the voices criticizing the APA for medicalizing normal grief (see here). Here's the essence of Friedman's argument:

In removing the so-called bereavement exclusion, the DSM-5 would encourage clinicians to diagnose major depression in persons with normal bereavement after only 2 weeks of mild depressive symptoms. Unfortunately, the effect of this proposed change would be to medicalize normal grief and erroneously label healthy people with a psychiatric diagnosis. And it will no doubt be a boon to the pharmaceutical industry, because it will encourage unnecessary treatment with antidepressants and antipsychotics, both of which are increasingly used to treat depression and anxiety...The medical profession should normalize, not medicalize, grief.

Despite criticism the DSM-V working group has not changed its plan to eliminate the bereavement exclusion, but it has added a footnote that at least acknowledges the challenge of distinguishing normal grief from the illness of depression:

The normal and expected response to an event involving significant loss (e.g, bereavement, financial ruin, natural disaster), including feelings of intense sadness, rumination about the loss, insomnia, poor appetite and weight loss, may resemble a depressive episode. The presence of symptoms such as feelings of worthlessness, suicidal ideas (as distinct from wanting to join a deceased loved one), psychomotor retardation, and severe impairment of overall function suggest the presence of a Major Depressive Episode in addition to the normal response to a significant loss.

I don't know if Dr. Friedman would be mollified by this footnote, but I'm not. For those who want to delve more deeply into the research, the working group presents its rationale here.

To my eye, clinical and epidemiological research relevant to distinguishing the illness of depression from the painful but not unhealthy state of grieving doesn't settle the controversy. The DSM-V working group has chosen to drop the bereavement exclusion out of fear that it might lead to misdiagnosis of some depressive episodes as normal grief. I, along with Dr. Friedman and other critics, see the potential for medicalizing normal grief as a significantly greater danger.

Years ago, when I was teaching a group of primary care physicians about use of antidepressant medication, one of the PCPs commented in the form of a two-line poem:

I know what to do when they're dying,
But not what to do when they're crying.

Between the degree to which harried physicians have become less skilled at dealing with existential concerns like grief and the seductive pharmaceutical marketing that will emerge with the death of the bereavement exclusion, before too long we'll be seeing patients experiencing normal grief being flogged with unwarranted diagnoses and unneeded medication.

Grief typically lifts on its own without medical intervention. Some of these patients and their physicians will conclude that they have been "cured" by the unneeded medication and will remain on it, exposing them to pharmacological side effects. In addition, some will experience an altered self image - "I'm a 'weak' person who got sick when X died and needed medicine to get over it" - rather than "I miss X terribly and experienced severe grief after the death."

The DSM-V working group is factually correct in its belief that loss can trigger the illness of depression and that it's important for clinicians not to miss the diagnosis when this happens. But dropping the bereavement exclusion won't eliminate this risk, and eliminating the exclusion will add to a destructive cultural trend of over-medicalization and excessive use of pharmaceuticals.

Industry, Medicine and Medical Ethics

This morning I co-chaired a meeting of the Massachusetts Association of Health Plans (MAHP) Ethics Forum that used the Massachusetts Gift Ban law as an entry point for discussing the relationship between the medical products industry and the medical profession.

Marcia Hams, program director of the Community Catalyst Prescription Access and Quality Program and Tom Stossel, director of translational medicine at the Brigham & Women's Hospital, kicked off the discussion. Many pharmaceutical companies are affiliate members of MAHP, so participants included pharmaceutical folks as well as health plan medical staff.

What struck me most about the excellent discussion is how the absence of an overall budget for health care has tilted public discourse in a polarized black and white direction. Marcia Hams made a strong, thoughtful advocacy argument that pharmaceutical marketing activities contribute to increased costs and negative impacts on quality. Tom Stossel made a strong, thoughtful advocacy argument that pharmaceutical marketing activities contribute to decreased overall costs and quality improvements.

If we had an overall budget for our health system, or real budgets for components of the system, we'd be having a different set of discussions. Instead of arguing about whether industry influence on medical practice and health care costs is good or bad (it's both), we'd be discussing questions like whether a particular intervention created enough value to justify its use, and how its cost-effectiveness measured up against alternatives.

Many in the policy community argue that the U.S. population is unwilling to recognize and accept limits in health care. In my view, the scattered structure of our health system - most notably, the absence of overall budgets - has made it difficult for us to consider relative value, trade offs, and opportunity costs. By now we're habituated to not thinking about these questions, which makes us progressively immature as a body politic and vulnerable to nonsense like "death panels" and fear that the Affordable Care Act will lead to a government mandate that we all eat broccoli!

(This has been the longest time without a post since I started the blog almost five years ago. I've been unusually busy with teaching activities and a number of projects. It's good to be back!)

Gay Liberation and Psychiatric Arrogance

Last month at the Lyric Stage in Boston I saw The Temperamentals, a docudrama about the founding of the Mattachine Society, the first sustained LGBT advocacy organization in the US. The program pointed me to a biography of Harry Hay (1912 - 2002), founder of the Society.

I was especially interested in Harry Hay's single encounter with psychiatry. Harry had been sexually (very) active since his teen years. He experienced no doubt about his sexual identity and wasn't conflicted about it, despite strong social stigma at the time. After his lone experience of heterosexual intercourse he blurted out - "I certainly hope I never go through that again!"

Harry was a passionate, romantic soul, given to infatuation and heartbreak. He was also a devoted member of the Communist Party. In his mid 20s he told his doctor about a recent breakup. The doctor referred him to a therapist. Harry told the therapist about his despair "in not being able to find a flower-faced boy who was a Marxist like me, and who would stand with me in the class struggle against oppression." The therapist suggested that Harry think about women: "Maybe instead of a girlish boy, you're looking for a boyish girl. Do you know one?" Harry did - Anita Platky, also a member of the Party.

But Harry worried as to whether he could sustain a physical relationship with a woman. The therapist assured him that he could. Harry reported to his biographer - "He told me that all I needed to do to change my orientation was to deliberately close one book and open another."

The official line of the Communist Party was that homosexuals (the word "gay" wasn't in use then) were excluded. It's unclear how much this policy represented homophobia and how much it reflected fear that gays and lesbians were vulnerable to blackmail at the time. (Most likely it was a combination.) Harry's devotion to the Party made heterosexual marriage desirable to him. He couldn't be an activist and leader in the Party if he remained unmarried.

Harry and Anita stayed married for 13 years, but Harry increasingly returned to covert gay relationships and finally to the founding of the Mattachine Society. When he ultimately left the marriage in 1951, Anita felt deeply betrayed.

The therapist's recommendation to Harry in 1938 was consistent with what I was taught as a psychiatry resident in the mid 1960s - that gay orientation was a "symptom" or a "disorder" that could be changed by therapy or willpower. There was no evidence for this view - it was purely ideological. It was an especially implausible recommendation to have made to Harry, given his unambiguous gay orientation. In retrospect, the mental health professions and the therapist Harry saw just one time were arrogant in regarding ideology as truth.

Harry's experience of marriage to a woman he cared about as a friend but couldn't embrace as a sexual partner convinced him that the LGBT community had to organize and advocate for human rights. It's an irony of history that the arrogance of his one-session therapist contributed to the gay liberation movement in a way that couldn't be appreciated at the time!

"By Blood" by Ellen Ullman

I've just finished reading a remarkable novel: By Blood by Ellen Ullman.

I'd read in a review that the story is told by a disgraced professor who eavesdrops on a psychotherapy occurring in the adjacent office. How could I, after years of psychiatric practice, resist a story like that!

The professor/narrator, whose name we never learn, and whose sordid doings at the university he's been forced to leave we only get hints about, is immediately obsessed with the young lesbian, adopted patient and her German born therapist. To the narrator, being adopted means being free from blood ties to one's past. Since his ancestry is replete with suicides, the image of escape is appealing. But once the person he refers to as his "dear patient" begins to search for her birth mother, he becomes a detective, and ferrets out clues that he passes on to her, in the guise of the agency that handled her adoption. The complex story leads from San Francisco to Bergen-Belsen and Israel. I won't spoil the reading experience by giving too many details.

For me Ullman's novel created an experience that was common in clinical practice and, more broadly, life: a feeling that behind a surface that initially seems bland there's a fascinating, illuminating story to be found.

When Elvin Semrad, the training director in my residency was asked whether he didn't sometimes get bored with his patients, he said something like this:

No human being is boring. If we feel bored, one of two things is happening - either the patient is avoiding what's really bothering him, and the words are a cover, or the patient is talking about an issue that we haven't resolved for our self, and boredom is our defense.

Whenever I felt bored in clinical practice I applied Dr. Semrad's teaching - it always gave good guidance.

By Blood is about curiosity, and I'll bet that if you start it you'll find that it evokes such strong curiosity you won't be able to put it down. "Curiosity" is title of a 1999 essay in the Annals of Internal Medicine by Dr. Faith Fitzgerald that I admire and have often used in teaching. Dr. Fitzgerald was offended when patients were described as "uninteresting," and challenged the resident leading the team she was making rounds with to choose the least interesting patient on the ward:

He chose an old woman admitted out of compassion because she had been evicted from her apartment and had nowhere else to go. She had no real medical history but was simply suffering from the depredations of antiquity and abandonment. I led the protesting group of house staff to her bedside. She was monosyllabic in her responses and gave a history of no substantive content. Nothing, it seemed, had ever really happened to her. She had lived a singularly unexciting life as a hotel maid. She could not even (or would not) tell stories of famous people caught in her hotel in awkward situations. I was getting desperate; it did seem that this woman was truly uninteresting. Finally, I asked her how long she had lived in San Francisco.

“Years and years,” she said.

Was she here for the earthquake?

No, she came after.

Where did she come from?

Ireland.

When did she come?

1912.

Had she ever been to a hospital before?

Once.

How did that happen?

Well, she had broken her arm.

How had she broken her arm?

A trunk fell on it.

A trunk?

Yes.

What kind of trunk?

A steamer trunk.

How did that happen?

The boat lurched.

The boat?

The boat that was carrying her to America.

Why did the boat lurch?

It hit the iceberg.

Oh! What was the name of the boat?

The Titanic.

She had been a steerage passenger on the Titanic when it hit the iceberg. She was injured, made it to the lifeboats, and was taken to a clinic on landing, where her broken arm was set. She now was no longer boring and immediately became an object of immense interest to the local newspapers and television stations—and the house staff.

I'm writing about By Blood in an ethics blog because I believe the right kind of curiosity about our fellow human beings is the royal road to good ethics. Fancy words used in ethics teaching - "autonomy," "informed consent," "beneficence" and more - provide useful frameworks, but they don't provide the vivid human truth that empathic curiosity points us to.

(An excellent interview with the author can be found here. And an excellent review from the New Republic is here.)