By David T. Gordon
Excerpt from Northeastern University Magazine, January 2000
"Part of the problem is that some commonly accepted principles of business ethics are fundamentally incompatible with traditional medical ethics, says Patricia Illingworth, assistant professor of philosophy and religion. Illingworth, who focuses on in the ethical dilemmas facing the health care industry, points out that the practices of 'bluffing, puffing, and spinning' are forms of deception accepted in business as fair play, just as they are in poker and politics. Bluffing refers to holding back certain information (not showing your hand), puffing means exaggerating (as often happens in résumé-writing), and spinning entails putting the best face on unhappy outcomes.
Successful contract negotiations, salesmanship, and advertisements all rely on these deceptive arts-and bluffing, puffing, and spinning are considered ethical in business because everyone expects them, says Illingworth. An HMO case manager trained in a traditional MBA program might not see a problem with bluffing patients. 'Sure,' a case officer might say, 'the patient wants expensive, high-tech procedures, and if they press the issue, we'll give in. But we don't need to encourage them to spend our money, do we?'
Under contracts law, the HMO wouldn't be responsible to do any more for its member than what the contract, drawn up after a fair bargaining process, calls for. That reasoning might be acceptable in a host of other contexts, Illingworth notes, but it becomes especially problematic in delivering health care services, where honest communication between doctors and patients is essential to good medical practice. Without honesty, people can die.
In many cases, doctors working for managed care organizations are damned if they do, damned if they don't. They might work under gag orders, which forbid them to discuss with patients the full range of options for care. They might have their pay docked for playing it safe with a patient's health and ordering an extra night of hospitalization, an expense an HMO case manager might later deem unnecessary. They might be restricted in the amount of time they can spend with each patient, forcing abrupt and perhaps incomplete doctor-patient communication.
Given the level of public distrust of managed care organizations, doctors might also encounter patients who are guarded and suspicious or who may exaggerate symptoms in an effort to secure a greater level of care. If patients feel they have to lie-or to exaggerate their own symptoms-they may cause a befuddled doctor to order up tests that honest communication would have rendered unnecessary. If either doctors or patients are dishonest, the result will likely be the same: sick people won't get the care they need.
But wait: don't managed care companies have fiduciary responsibilities, too? Yes, says Illingworth. They say so themselves by invoking ERISA as a shield against lawsuits. In addition, she points out, managed care companies 'use promotional materials that promise subscribers wonderful health care with a trusting, caring physician' and through their association with physicians, 'they piggyback' on that trust. As health care providers, they assume some of the same fiduciary responsibilities that doctors do: to put patients first.
And what about employers? The managed care 'revolution' originated with employers; rising-some would say out-of-control-health care costs under the old fee-for-service system prompted big employers to look for ways of cutting costs. The result was managed care systems that emphasized preventive care and slashed redundant or unnecessary procedures. What's often lost in the back-and-forth on the health care debate is the role employers have played. Big corporations wield enormous influence with managed care companies. They set the price they're willing to pay, and in doing so, they decide what benefits will be offered to their employees. They weigh in on whether prescription drugs or mental-health services or eyeglasses are included; they push for higher copayments. They can put the squeeze on HMOs, which are not immune from the rigors of the market; witness Harvard Pilgrim Health Care's recent financial troubles.
Given their role in health care, employers have fiduciary responsibilities under ERISA as well, Illingworth points out. Since they often help design benefit packages, they act as proxy decision makers for their employees; they are trustees, in a sense. That role comes with an obligation: to protect the best interests of their employees. Whether employers should even be in the business of choosing and paying for health care is another debate altogether, and one worth having, says Illingworth. No law requires that employers provide health care benefits, but if they do, says ERISA, then they must abide by certain ethical guidelines, according to Illingworth. They have to keep the promises implied by their role as proxies.
For navigating the muddy waters between contract law and the Hippocratic oath, Illingworth suggests a model of ethics that is being viewed with increasing seriousness: stakeholder ethics. As she writes in a forthcoming article in HEC Forum, a journal about health care ethics: 'According to stakeholder analysis, corporations have moral duties to people other than their shareholders.' That is, it takes into account the ripple effect of certain actions-so an HMO manager, for instance, might consider how doctors and patients fare with certain decisions, not just what increases company profit."