Responsibility Without Scapegoating

Harold J. Bursztajn, MD
Archie Brodsky, B.A.

Health Decisions, A Publication of the Vermont Ethics Network, May 1997

Harold J. Bursztajn is Co-director of the Program in Psychiatry and the Law and Associate Clinical Professor, Department of Psychiatry, Harvard Medical School at the Massachusetts Mental Health Center, Boston, Massachusetts. Archie Brodsky, BA, is Senior Research Associate Program in Psychiatry and the Law, Harvard Medical School at the Massachusetts Mental Health Center, Boston, Massachusetts

The advent of managed care has brought into focus some age-old questions of personal versus institutional responsibility. On the legal front, these issues are being fought out in increasingly successful efforts to hold managed care organizations (MCOs) liable for damages caused by their denial of coverage for health services. Physicians understandably do not want to be held to the standards of care set by their profession when insurers will not support the level of care needed to meet those standards. Yet if the balance shifts too far in the direction of liability for MCOs, professional standards of care that are essential to maintain could be obscured.

To complicate matters further, managed care came along in the midst of a historic restructuring of responsibility in the physician-patient relationship. During the past few decades, the legal doctrine of informed consent has evolved to protect a person's right to choose what, if any, medical treatment he or she is to receive. No longer can a physician touch, operate on, or prescribe for a patient unless the patient consents after being informed of the risks and benefits of the recommended procedure and any available alternatives. Thus empowered, thc patient shares responsibility for the outcome.

There is no question that managed care, by taking away some decision-making authority from both parties, threatens to upset the delicate dialogue that patients and physicians have been working out between them. But it is an overreaction to assume that managed care has doomed the ethical practice of medicine. We can respond to the current ethical crisis most constructively by including MCOs in this balance of power--and in the accountability that comes with authority and responsibility. decisions of the patient or MCO is to impose responsibility without authority. The patient, drawing upon his or her personal experience and values, is responsible for choosing a course of action in collaboration with the physician. If that course of action is not successful, we should resist the temptation to blame the victim. who is. after all. a Ethical, effective decision making is shared decision making, and now there are three decision makers instead of two.

What would a tripartite model of shared responsibility look like? We would propose the following general principles, while granting the complexity of working out the detailed applications to different situations. The physician, patient, and MCO all have different spheres of authority and different forms of responsibility flowing from that authority. The physician, drawing upon professional training and skill, is responsible for making recommendations that meet professional standards of care, as well as for advocating for coverage for treatments that the patient and physician together have decided upon. On the other hand, to scapegoat the physician for the decisions of the patient or MCO is to impose responsibility without authority. The patient, drawing upon his or her personal experience and values, is responsible for choosing a course of action in collaboration with the physician. If that course of action is not successful, we should resist the temptation to blame the victim, who is, after all, a person coping with pain, fear, and perhaps disability. The MCO is responsible for providing financial benefits on contractual terms reasonably interpreted. But it is no more ethical to scapegoat the MCO for clinical errors than to scapegoat the physician for the MCO's denial of benefits. Moreover, such opportunistic blame-shifting would contribute to the erosion of professional standards.

The Nuremberg Code for medical experimentation begins with the statement that "the voluntary consent of the human subject is absolutely essential." Applying this principle to the provision of clinical care, we would find it violated if patients were treated as a captive population or kept uninformed about the available options. In a competitive marketplace, MCOs are entitled to provide as broad or as narrow coveragc as they choose, provided that prospective members are informed in advance of the limits on benefits and are free to go elsewhere. With these critical safeguards, MCOs should be able, ftor example, to require that their members engage in specified health-promoting behaviors. MCOs should not be asked to assume the governmental responsibility of providing universal coverage. But they should be held accountable for discharging their own responsibilities in a spirit of full disclosure and equitable application, dialogue, and rapid and independent, expert-informed dispute resolution. The emerging area of mediation via expert-informed, alternative dispute resolution holds promise as a pathway to accomplish this goal of mutual responsibility.