Justice and Full Vindication for Whistleblowing Nurses

In February I wrote about how physician Rolando G. Arafiles, hospital administrator Stan Wiley, and Winkler County (west Texas) Sheriff Roberts tried to intimidate and prosecute two whistleblowing nurses who complained about the care Dr. Arafiles was providing. (See here and here.)

It took the jury one hour to acquit the one nurse who was brought to trial. (Charges against the other were dropped before the court date.)

The nurses then sued the hospital, Dr. Arafiles and Mr. Wiley for vindictive prosecution and denial of First Amendment rights. This week the defendants settled out of court for $750,000. In the meanwhile, the Texas Board of Medicine has charged Dr. Arafiles with numerous violations.

The two nurses have not been able to find other jobs. But Dr. Arafiles is still employed by the unrepentant hospital.

Steven Slater, Air Travel, and Organizational Ethics

One day after Jet Blue flight attendant Steven Slater cursed out a passenger, grabbed a beer, and then bolted from the plane by sliding down the emergency exit chute after the passenger (a) took his out luggage too soon, (b) didn't follow Slater's directive to stay seated and (c) let the overhead compartment door fall onto Slater's head, Slater has become an international celebrity.

Apparently the chute could have injured or even killed anyone who was standing under it if it came down on top of them, so what Slater did was recklessly dangerous. But Jesse James and other folk heroes actually murdered people, which makes Slater more deserving of folk stardom than they were. A Facebook legal defense fund for Slater is raising money hand over fist.

Airline passengers and flight attendants see themselves as fellow victims of airline efforts to cut costs. High unemployment means that flight attendants have fewer job choices, and a poor transportation system reduces choices for passengers. Everyone feels trapped and helpless. That's where Steven Slater comes in. He refused to be helpless and bucked the system in dramatic fashion.
Twenty-seven years ago in "The Managed Heart: Commercialization of Human Feeling," Arlie Hochschild described how flight attendants were trained to "produce" positive emotions on the job. It's much harder for attendants to do that under current working conditions. There's no established code of conduct for passengers, but passenger civility is also down.

The social compact around airline travel is badly frayed. Slater's theatrical exit from the Jet Blue flight won't change the price of fuel or other aspects of airline economics, but it may be a wake-up call for airline personnel management.

Many years ago I was chairing a meeting of 10-15 people in my office. My phone rang, and when I picked it up a colleague immediately started to harangue me about a trivial problem. I forgot that I was leading a meeting, yelled "don't you dare talk to me like that," and slammed the phone down. Later I told a colleague how disturbed I was to have erupted that way. My wise colleague said - "it was really a good thing - people will say 'Sabin is usually a reasonable and fair-acting guy, but every now and then he goes ballistic if he's pushed too hard, so keep yourself in line!'"

Reasoned, evidence-based argument is the preferred way to point out organizational failures and promote change. But change doesn't come easily. Organizational ethics also needs Steven Slaters who go over the top in a way that's hard to ignore.

(For the original New York Times story, see here.)

Mental Health Parity Won't Work Without Ethical Managed Care

It's hard to tell the "good guys" from the "bad guys" in implementing the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act.

The act, signed into law by President Bush in October 2008, requires employers with more than 50 employees who offer health insurance that includes mental health, to cover mental health and addiction conditions on the same terms as medical/surgical conditions. The law rectifies clinically unwise and ethically unjustifiable insurance practices I experienced from early in my practice.

In the 1970s I was responsible for an inpatient psychiatric unit at a public hospital. Nearby private hospitals regularly transferred patients to us after twenty-nine days, one day before they hit the insurance limit of thirty days. We called that "dumping." And when I moved to the Harvard Community Health Plan HMO we worked within the typical limit of twenty outpatient visits per year.

In some ways the limit stimulated efficiency and creativity. Along with others we pioneered time-limited therapies. I had the privilege of developing an outpatient program for patients with chronic psychiatric illnesses built around a flexible "continuing care" group. But for many patients the limit didn't allow patients to achieve outcomes reasonable to hope for in a society as wealthy as ours.

Advocates fought for "parity" with medical/surgical coverage. Their argument was straightforward. Mental health and substance abuse conditions caused suffering and disability comparable to medical/surgical conditions. Effective treatments were available. Selectively disadvantaging mental health care could not be justified on clinical or ethical grounds.

The bugaboo was cost. Employers and insurers feared that mental health and addiction care would be a bottomless pit. But when President Clinton required the Federal Employees Health Benefits Program to provide parity, costs did not soar. (see here) Managed care became the advocates' best friend!

Managed mental health care, which made parity possible by showing that costs could be contained to an acceptable level, is the focus of the implementation fight. The implementation rules can be found in an arcane forty-three page document, but the fight is over these fifty-seven words:

Any processes, strategies, evidentiary standards, or other factors used in applying the nonquantitative treatment limitation to mental health or substance use disorder benefits in a classification must be comparable to, and applied no more stringently than, the processes, strategies, evidentiary standards, or other factors used in applying the limitation with respect to medical surgical/benefits in the classification.

Clinicians hate "nonquantitative" management techniques like closed networks, requirements that less costly therapies be tried first, and recurrent treatment reviews. But management techniques like these, which are not used to the same extent in medicine/surgery, made parity possible. Advocates now argue, however, that parity means similar care management techniques, not just similar benefits in the insurance contract.

This argument risks an employer backlash:

Woodman's Market, a grocery store chain that employs 2,800 people and is based in Janesville, Wis., is among [the employers considering dropping mental health coverage].

"We can't have an open checkbook," company vice president Clint Woodman told the Capital Times in Madison.

"If an employee went to a psychiatrist and ran up a million dollars, it would come out of our pockets," he said.

When asked about an employee who incurred similar expenses after a cancer diagnosis, Woodman said in the Capital Times: "Cancer is different. That's an identifiable physical situation."

Paradoxically, a tough-minded manager would say - "The advocates are right. Mental health and medicine/surgery should be managed by the same means. Since health costs are out of control, let's bring the tougher mental health approach to medicine and surgery!"

This won't happen. We tried widespread third party managed care in the 1990s, and while it slowed the cost trend for a few years, providers and the public rebelled, and we chucked the approach, except in mental health.

The big picture of what we need to do is clear. Providers, as through "Accountable Care Organizations," must take more direct responsibility for cost management along with care management. And patients who want more choices than that system allows should have those choices available, but at their own expense.

"The Kids are All Right" and Doctor-Patient Sex

A few days ago my wife and I saw the new film "The Kids are All Right" at the charming little (100 or so seats) Savoy Theater in Montpelier, Vermont. It's an engaging, funny-but-serious family comedy, centered on Nic (Annette Bening) and Jules (Julianne Moore), a middle-aged lesbian couple, their children - 18-year Joni (Mia Wasikowska) and 15 year-old Laser (Josh Hutcherson) - and Paul (Mark Ruffalo), their sperm-donor father. The kids set the plot in motion by making secret contact with Paul. The rest is a form of chaos, misunderstanding, conflict and reconciliation most folks who've been in a long term relationship will recognize.

I'm not going to review the film, but I promise that you'll enjoy it. (If you want more than my word, here are links to reviews in the New York Times and the New Yorker.)

What struck me as relevant to medical ethics was a moment when the five characters are having dinner. Paul asks Nic and Jules how they met. We already know that Nic, the bread winner, is a hard-working, rigid, wine-loving OB/GYN, while Jules is the slightly flaky and lost homemaker. It turns out that they met in the UCLA emergency room. Nic was a resident doing an ER rotation. Jules was a sexy young student scared because her tongue was numb. (We're left to imagine what she'd been doing with her tongue.) Nic cures her with a Valium and some teasing. The rest is history. Joni and Laser groan - they've heard the story so many times.

(FYI, in the 1960s I did a year of medical internship at UCLA. I remember a UCLA student a bit like Jules who came to the ER in her pink undies with chest pain that I was wise enough to recognize as a panic attack.)

So is anything wrong here? Nic and Jules are an attractive, responsible couple, bringing up attractive, responsible kids. They're screwed up, but only in the way most people are. One would be happy to have them as friends.

The prevailing fashion in medical ethics is to dwell on "unequal power relationships," "transference," "idealization of the doctor," "rescue fantasies," and the likelihood of doing harm to the patient, as the rationale for precluding moving from the exam room to the bedroom.

But there's no reason to doubt that a romantic relationship that started in a doctor-patient context could work out just as well (or badly) as relationships that start in all the other "normal" ways relationships get going. Love entails risks, but that's not unique to romance between doctors and patients. I learned that from seeing "South Pacific" as a kid when I heard Emile (Ezio Pinza) sing "Some Enchanted Evening" after meeting Nellie (Mary Martin). There would have been no more reason to warn Nic and Jules about getting involved after they met in the ER than if they'd met at a GLBT mixer or had been fixed up on a blind date.

Here's what might have transpired if Nic had consulted me after she'd met Jules in the UCLA ER:

Nic: Jim, I want to ask your advice. Last night in the ER I met a girl who seemed exactly right for me. Her name is Jules. She's smart, pretty, sexy, and we really hit it off. I really want to date her. It may sound crazy, but I can picture spending my life with her and having kids with her..."

Jim: Nic - you've told me that you feel ready to settle down when you meet the right person. If we had a crystal ball it might tell us that you and Jules were made for each other and would live happily ever after. Of course it might say something different, but that's always the case. I feel sad saying this, but I don't think you should contact her. There are two big reasons. First, Jules came to the ER because she was scared about her tongue and trusted us to look after her. Patients tell us secrets they haven't told anyone else, and let is touch them in ways we'd never let strangers touch us. You did a great job relieving Jules's symptoms and helping her understand what was going on. To carry out our responsibilities and do things like you did, we physicians need to be trusted. If patients don't trust us to respect boundaries and stay in our professional role they won't open up the way Jules did with you and we won't be able to help them the way you did for Jules. Second, part of our vocation is to put patients first. A relationship with Jules might work out well, but it might not. If you'd met her in a bar or at a party I'd congratulate you and say "good luck - go for it!" But you met her as a doctor, so primum non nocere applies. You wouldn't prescribe a medicine for Jules that might break her heart, so you shouldn't "prescribe" a relationship that could do that!

My guess is that Lisa Cholodenko, the director and co-author of "The Kids are All Right," put in the ER detail to show that Nic is a romantic at heart, not just a rigid, up-tight scold. If I can find Cholodenko's email address I'll send her the post and ask her.

WikiLeaks and Medical Ethics

WikiLeaks, the secure website that publishes documents leaked by whistleblowers, has been front page news since it published 92,000 secret Pentagon documents from Afghanistan. Its founder - Julian Assange - is a fascinating person. He, and the WikiLeaks venture, have a lot to teach about organizational ethics. (My information and quotes come from a terrific New Yorker article about Assange by Raffi Khatchadourian.)

My goal for this blog (and for much of my work) is the same as Assange's - to improve the ethical performance of organizations and public agencies. But our world views and methodologies are so different that I fear Assange would describe me as he described physicists at a conference he attended - "sniveling fearful conformists of woefully, woefully inferior character."

I operate from the quality improvement perspective - the belief that most people in health care want to do the right thing, but may be impeded by faulty systems, which include intellectual/ethical constructs as well as production processes. My methodology is analysis, teaching, and advocacy.

Assange's world view is much darker. Here's how Khachadourian describes it:

He [came] to understand the defining human struggle not as left versus right, or faith versus reason, but as individual versus institution. As a student of Kafka, Koestler, and Solzhenitsyn, he believed that truth, creativity, love, and compassion are corrupted by institutional hierarchies, and by “patronage networks”—one of his favorite expressions—that contort the human spirit. He sketched out a manifesto of sorts, titled “Conspiracy as Governance,” which sought to apply graph theory to politics. Assange wrote that illegitimate governance was by definition conspiratorial—the product of functionaries in “collaborative secrecy, working to the detriment of a population.” He argued that, when a regime’s lines of internal communication are disrupted, the information flow among conspirators must dwindle, and that, as the flow approaches zero, the conspiracy dissolves. Leaks were an instrument of information warfare.

Assange learned this outlook early. His mother "believed that formal education would inculcate an unhealthy respect for authority in her children and dampen their will to learn." She told Khatchadourian "I didn't want their spirits broken." When Assange was eleven his mother separated from his stepfather, who she feared was part of a dangerous cult. "Assange recalled her saying, 'Now we need to disappear,' and he lived on the run with her from the age of eleven to sixteen." By the time Assange was fourteen they had moved thirty-seven times.

Assange's mission is to expose injustice, and injustice is everywhere. Because he sees injustice and exploitation as the basic truth about the world, the default position for organizations and governments, he rejects the Hippocratic injunction to "first, do no harm." His precept is "first, fight tyranny!"

His mission is to expose injustice, not to provide an even-handed record of events. In an invitation to potential collaborators in 2006, he wrote, "Our primary targets are those highly oppressive regimes in China, Russia and Central Eurasia, but we also expect to be of assistance to those in the West who wish to reveal illegal or immoral behavior in their own governments and corporations." He has argued that a "social movement" to expose secrets could "bring down many administrations that rely on concealing reality—including the US administration."

Assange does not recognize the limits that traditional publishers do. Recently, he posted military documents that included the Social Security numbers of soldiers, and in the Bunker I asked him if WikiLeaks’ mission would have been compromised if he had redacted these small bits. He said that some leaks risked harming innocent people—"collateral damage, if you will"—but that he could not weigh the importance of every detail in every document. Perhaps the Social Security numbers would one day be important to researchers investigating wrongdoing, he said; by releasing the information he would allow judgment to occur in the open.

To those for whom harm perpetrated against individuals by government and large organizations is the default expectation, primum non nocere is Pollyanna foolishness.

Assange's ethic is that of public health, not clinical medicine. His passion is for social justice, and in pursuing that aim, individuals will inevitably be injured.

Societies need ferocious warriors for justice like Assange, but his stance of constant vigilance and deep suspiciousness come at a high cost - isolation, fear, and vulnerability to despair. Societies also need gentler leaders who expect imperfection, meet individuals and organizations where they are, and ask them to become better, more in tune with their ideals.

That's the Yin and Yang of organizational ethics!

Disgraceful Republican Attacks on Don Berwick

The Republican attack machine is at it again. Here's what they're saying about Don Berwick, President Obama's inspired choice to lead Medicare and Medicaid:

Utah Senator Orin Hatch: "Dr. Berwick has a great reputation as a pediatrician, but he's made some of the most outlandish statements I've heard in years."

Wyoming Senator John Barrasso, who is an orthopedic surgeon: "health care rationing czar."

Texas Representative John Carter: "Dr. Berwick is a proponent of the British health care system and believes in rationing your health care and redistributing wealth."

I assume that as with the preposterous "death panel" demagoguery, these intelligent men know better. Unfortunately, the Republican campaign of disinformation is likely to be effective.

Anyone with even a modicum of understanding of health care knows that the U.S. rations by income and access to insurance. Those with a bit more knowledge understand that rationing is an ethical requirement, not a moral abomination, if we're ever going to slow the cancerous growth of health care costs.

Berwick's consistent message is that by steady concentration on quality we will improve health and save money at the same time. And, if it is still necessary to contain costs, which it will be, we should ration in a thoughtful manner, concentrating on high cost/low yield areas, rather than on the purely economic grounds we apply at present.

Claiming that rationing (a) does not happen now and (b) is part of a Democratic plot is (c) in line with the Republican claim that reducing taxes on the wealthy will help to lower the deficit. But telling lies in a tone of certainty, and repeating the lies often enough, has proved, alas, to be a effective partisan tactic.

Attacking Berwick for his recognition of the admirable accomplishments of the National Health Service plays well with American exceptionalism and jingoism. But encouraging the body politic to believe that we have nothing to learn from others is like parents telling children they already know enough so why bother with reading or arithmetic.

Health care ethics requires open mindedness and thoughtful deliberation. The Republican tactics are like shouting "fire" in a theater. Insofar as their campaign of fear and disinformation is listened to it will block meaningful health reform and quality improvement.

I hope the administration can orchestrate bold public statements by all of the hospitals and clinics Berwick and his Institute for Healthcare Improvement have helped. The public trusts doctors and nurses more than politicians. The stories these organizations can tell would show the Republican attacks to be disgracefully ill-informed, disgracefully partisan, or both.

Consumer Directed Health Care Can Work!

On Thursday during a break in the cloudy/rainy weather in Vermont, I took the 3/4 mile hike up to Lake Pleiad, a mountain lake that's a favorite swimming spot. The weather was dicey and there was only one other person there, a large man with two large tattoos, who, I learned, had been a bouncer in a bar, but now now worked for a small manufacturing company.

I asked about the health insurance the company provided. Here's my reconstruction of what he said:

It's a health savings account type of thing. I have a $5,000 deductible. It's a good deal because the employer puts some money into the savings account. The deductible is a lot of money, but I'd only have to spend it all if I went into the hospital. I'd rather take that risk and have a lower monthly premium, even though a 'lower premium' is still a lot! Doctor visits and tests don't come to all that much. I don't just take a doctor's word about things - I ask a lot of questions. 'What could this test show? Would the results make us do anything different? How important is it?' Sometimes they give me a good answer, and I'm satisfied, but sometime it seems like they didn't really have a good reason, and I don't do it. You've got to ask questions!"

I asked him if the deductible got him to ask more questions. It did. "When you're laying out the money, you think about things more!"

I told him he'd made my day. He was doing just what the architects of high deductible health plans were hoping for. I said "if more people did what you do it would keep us doctors on our toes! We recommend a lot of things out of habit and they don't really need to be done. Do you encourage friends to ask questions the way you do?"

He did. A woman friend's gynecologist was recommending expensive tests on a regular basis. She didn't know why - "I just do what the doctor tells me I need to do." He said "you've got to ask!" When she did it turned out that the tests were really optional. She thanked him.

In 2009 approximately 23 million Americans had plans like the one my swimming companion had. If five percent asked questions the way he did that would be a million people. If that million persuaded five friends to do the same we'd be up to five million. To paraphrase the late Senator Everett Dirksen - "a million people here, a million people there - pretty soon we're talking real public education."

I spent thirty-five years of my practice life with a not-for-profit HMO. I think a group practice of that kind, in which patients and clinicians collaborate in planning the wisest way to use resources, is ideal. But that model didn't catch on widely, which is one reason consumer directed plans are selling like hotcakes.

I really admired and learned from my swimming companion. He was just a smart guy who thought for himself - not a health policy geek like me. If we had a groundswell of people like him who approached health care like prudent consumers it would be the strongest possible force for health reform!