How to Deal with Controversy over Physician Assisted Death

We in the U.S. are not skilled at resolving controversy. We're vulnerable to demonizing those who hold different views on issues that matter a lot to us. Polarizations like "pro life" vs "pro choice" harden into rigid convictions. Physician assisted death (PAD - sometimes referred to as "physician assisted suicide") could fall into the same intractable trap. The American Association of Hospice and Palliative Medicine (AAHPM) teaches us how to approach the issue in a morally mature manner.

With regard to whether it is ethically acceptable for a physician in a state that allows physician assisted death (currently Oregon, Washington, Montana, Vermont and California) to prescribe a potentially lethal medication for a terminally ill patient that the patient can use if he chooses, the AAHPM believes, as I do, that "sincere, compassionate, morally conscientious individuals stand on either side of [the] debate." That's the opposite of demonization. This crucial recognition leads the Association to take what it calls "a position of 'studied neutrality' on the subject of whether PAD should be legally regulated or prohibited."

Physicians who support PAD will be disappointed that the Association does not endorse it. Physicians who oppose PAD will be disappointed that the Association does not oppose it. What the Association chose to do was to tell its members and society itself how patients can best be cared for if and when PAD is legal. Here's the essence of their view, quoted - with slight modification - from the AAHPM policy statement:

• The permissibility of PAD is dependent upon access to excellent palliative care. No patient should be indirectly coerced to hasten his death because he lacks the best possible medical and palliative care.
• Requests for PAD emanate from a patient with full decision-making capacity.
• All reasonable alternatives to PAD have been considered and implemented if acceptable to the patient.
• The request is voluntary. Safeguards should focus in particular on protection of vulnerable groups including the elderly, frail, poor, or physically and/or mentally handicapped. Coercive influences from family or financial pressure from payors cannot be allowed to play any role.
• The practitioner is willing to participate in  PAD, never being pressured to act against his own conscience if asked to assist a patient in dying.
• The most essential response to the request for PAD...is to attempt to clearly understand the request, to intensify palliative care treatments with the intent to relieve suffering, and to search with the patient for mutually acceptable approaches without violating any party's fundamental values.

The AAHPM has provided admirable ethical and clinical guidance. "Studied neutrality" reflects moral wisdom, not wishy-washy waffling. AAHPM is doing what a professional association does at its best - offering clear guidance to members, the medical profession as a whole, and to wider society.

Informed Consent for Simultaneous Surgeries

Two months ago (here) and again today the Boston Globe Spotlight team wrote about the practice of having one surgeon doing two operations at the same time, moving between two operating rooms and leaving fellows or residents "in charge." Dr. Dennis Burke, a prominent orthopedic surgeon at the Massachusetts General Hospital, brought his concerns about simultaneous surgery to the Spotlight team. Dr. Burke has been dismissed from the hospital for showing redacted records from his own patients to the Globe team. 

Physician leaders at the Massachusetts General Hospital and elsewhere insist that there is no evidence that simultaneous surgery has led to worse outcomes for patients. And advocates defend the practice - which is common at leading hospitals, as (a) efficient use of skilled surgical time and (b) a way to reduce waiting time for patients. 

If simultaneous surgery were recognized as having even a small effect on patient safety, for reasons of prudence (malpractice liability and terrible publicity) as well as ethics, hospitals would not allow it. But let's assume that definitive studies showed there was no increased risk. What then?

Think about it personally. If you were going under the knife, would you want to know that your surgeon would be going in and out of the operating room to do surgery on another patient at the same time? I would. 

If there's no difference in outcomes, physicians might say - "why do I need to tell patients - there's no difference in outcomes?" The answer is that we have an ethical duty to give patients information that's important to them. I've done an informal survey among friends as to whether they regard the question of whether their surgeon would be doing two operations at once as something they would want to know about as part of their decision-making process. 100% said it is.

Revealing the possibility of another surgeon taking charge in the small print of an informed consent "contract" does not do the job. Good ethics requires open discussion. This may well be uncomfortable for surgeons, just as candor about how often they have done a procedure when they are early in the learning curve is. But it's what we owe our patients, and to the reputation of our profession as trustworthy, not devious and evasive.

The Four "As" of Ethics

Here's a mnemonic I've found useful for thinking about the actions health organizations need to take to walk the talk of their values:

1. Analysis ("what is the right thing to do?") This is the activity most familiar to ethics committees and classes in ethics. When is it right to pull the plug? At what age should children make their own health care decisions? When the term "ethicist" is used it's generally associated with the analytic activity.
2. Advocacy ("let's do the right thing!") This is the charismatic leadership function. When  leaders are seen as admirable exemplars of the organization's values, bureaucratic position and natural authority coincide. This is a uniquely powerful configuration. But every group has members who others respect and want to emulate. Wise leaders look to these widely admired member of the group as strong influences on the organization's ethical culture.
3. Administration ("we need to create structures that make it easier to do the right thing.") Ethical behavior is strongly influenced by internal ego ideals, but it's also shaped by external factors like prompts in an electronic record that help us conduct and record advance care planning and nudge us when it hasn't been done.
4. Accountability ("how well are we living our ideals? how can we improve?") Many years ago, a primary care colleague had his assistant ask every patient after their appointment - "did Dr. X do what you needed him to do today?" If the answer was "no," the assistant was trained to intervene, either directly or by calling in to the office. Now we have well developed systems like Press Ganey to assist with accountability at the population level, but the basic function is the one Dr. X implemented on his own.

Ethically admirable health organizations need to cultivate all four of the "As". 

Taking Action on Sexual Abuse by Physicians

"Why Didn't Anyone Stop Dr. Hardy?" is the featured headline on the front page of today's Boston Globe. It's accompanied by the photo of the back of the head of a woman who complained about Dr. Hardy to the Massachusetts medical board in 2004. She has her hand against her cheek with a watch showing prominently, suggesting the passage of time over which numerous complaints were made about Hardy, with no action being taken. What follows is a summary of the article and my analysis of the key issues:

The story went back to his undergraduate days at Princeton. Both male and female classmates believed he had committed sexual assaults. But this was the 1970s, before the kind of focus on sexual misconduct that universities now apply. Hardy was president of the premedical society and even, for a time, a counselor in a sexual education program. A male classmate was concerned enough to send anonymous letters to medical schools warning that Hardy was "a person of poor character." Hardy trained at Cincinnati, Stanford and Harvard, becoming a gynecologist and fertility specialist.

In 1999 a woman reported to the gynecologist who had referred her to Hardy that Hardy has massaged her clitoris, saying he needed to get her "uterus to contract." She asked the gynecologist - was this a normal medical procedure? Her gynecologist said it was not, but apparently did not report Hardy to the medical board. In 2004 the patient featured in the article reported Hardy to the medical board, complaining that her clitoral area was raw and swollen after a surgical procedure. Hardy wrote a three page defense. The board took no action against him, but it did make a record of the complaint.

In 2011 Hardy told  a South Asian patient that women from her country were "clueless about sex," and that being brought to orgasm by his massaging her clitoris would help her get pregnant. When this woman ultimately went to the Massachusetts medical board the board conducted an extensive examination - including interviewing classmates from Princeton -  leading to Dr. Hardy's surrendering his medical license, and promising never to seek to be licensed in any other state. Dr. Hardy now lives in Thailand with his second wife and their young children.

In medical ethics classes we typically work with examples of "good v good" conflicts, as when respecting the patient's choices ("respecting autonomy") conflicts with the patient's health ("practicing beneficence"). I interpret the history of Dr. Hardy's case as the opposite - a "bad v bad" conflict.

If the patients' complaints are true, Dr. Hardy has malpracticed, disgraced his profession, and possibly committed felonious assault. Sadly, we know that some physicians betray their patients' trust and professional responsibilities in the way Hardy apparently did. In the past, however, it was not uncommon for an offending physician's denial to be believed, especially when the physician was a "respectable" Caucasian with top drawer credentials like Hardy. When colleagues and medical boards acted this way they were adding "system level injury" to the "direct injury" done by the abusive physician.

But in addition to bad things being done to patients by individual physicians, unresponsive colleagues and inactive medical boards, there are symmetrical risks of harm being done to "innocent" physicians. 40 years ago a young patient of mine with mild developmental disability was angry when I cancelled an appointment. She complained to the medical board that I had molested her. I had hurt her feelings, but that's not what she said to the board. By the time the board contacted me my patient and I had rescheduled the appointment and we were once again on good terms. I was too naive at the time to recognize how serious a complaint to the board could be. My patient had had a brief adolescent snit, but just as a malicious physician may lie about his offenses, a malicious patient may fabricate an accusation. When a board or the court of public opinion finds an "innocent" physician "guilty," a severe harm is done to the physician.

I don't see any way of ensuring the right answer to these "bad vs bad" conflicts. I know that patients have been harmed by having their reports of abuse disbelieved. But I'm sure that exemplary physicians have, on occasion, been harmed by complaints based on misunderstanding or malicious intent. Years ago, when I was in charge of a medical facility, a female patient complained that her male physician had been masturbating during an appointment. I met with the physician to take up the complaint. He said that perhaps his underwear had twisted around his testicles and that he readjusted his clothing and his anatomy via his pocket. (Male  readers have probably experienced the underwear problem.) I believed him, and explained what I thought had happened to the patient. She seemed to accept my interpretation, and that was the sole complaint ever received about the physician. But stranger things have happened than what the patient initially alleged. While I believe I got the situation right, a crystal ball might tell us that the physician lied and I unwittingly exonerated him and did an injury to the patient.

The excellent reporting done by the Boston Globe gives some guidance about how the health system and medical profession can handle these "bad v bad" conflicts better. Colleagues need to follow up on stories they hear from patients or rumors. At the very least this means talking directly with the physician in question. This isn't easy, but it's clearly the right thing to do. It didn't happen early enough with Dr. Hardy. If the physician is "guilty" it puts him or her on notice that the medical community is vigilant. At best the physician will say "I made a terrible mistake and I need to get help..." But even if the physician lies in a plausible manner, knowing that others are concerned will diminish the likelihood of repeat offenses.And if the accused physician is "innocent" he or she will be embarrassed or appalled, but it's better not to have unchallenged rumors circulating.

It's a privilege to be allowed to become part of patients' lives in the intimate way that medical care involves. But that very intimacy creates risks - primarily for patients but also for physicians. We need our health system to protect patients from exploitation and injury without making physicians so wary about accusations that they overly constrain their human warmth and caring.

Not an easy task!