Professional ethics, perched on the border between science and humanity,
has undergone public scrutiny in modern times. One of the most notable
examinations of professional ethics occurred during the Nuremberg trial
of Nazi medical atrocities in 1946. In recent years, increasing use of
medical technology and the formation of health maintenance organizations
have created a new environment in which medical ethics are questioned. "Right
to Die" debates and health professionals' sexual misconduct with
patients are often in the news. Dr. Bursztajn has written extensively
on the subject of professional ethics and it continues to be one of his
major areas of interest both in his clinical work and in his work as
a forensic psychiatrist.
Administrative bodies struggle with maintaining a balance between protecting
the public and liberty interests.
Ethics in Organ Transplantation and Tissue Donation: Cases and Movies.
Dr. Bursztajn contributed a case
study in this new book on the the ethics organ transplantation.
Being a global and transnational endeavor, organ transplantation
raises universal ethical concerns and, yet, has to be adapted to
culturally mediated beliefs. In this book, 30 case studies collected
from all over the world illustrate the range of global and local,
ethical, social, and cultural problems associated with this new form
of treatment. Together with a list of relevant movies, the collection
provides a unique resource for ethics education in medicine, health
care, philosophy, and religious studies.
Article: The Shoah:
A Reflection. Thoughts on professional ethics sparked by the
testimony of Dr. Bursztajn's father, a Holocaust survivor.
The Eloquence of Silence. In our attempt to arrive at truth,
certainty, or at least informed consent in medical procedures, we
sometimes forget that our questioning may violate ethical considerations.
Protection of Human Subjects.
Program Standards Committee for the Department of Veterans Affairs
(VA) Human Research Protection Accreditation Program which Dr. Bursztajn
helped to formulate has now been endorsed by the Institute of Medicine
and is relevant to a drug company's responsibility.
Medical Association's web page on ethics.
AMA Releases Universal Guidelines
for Ethics and Medical Privacy
American Academy of Psychiatry
and the Law (AAPL) The AAPL site, base at Emory University in
Atlanta showcases resources developed by and for psychiatrists who
practice, teach and conduct research in the field of forensic psychiatry.
American Academy of Psychiatry and
the Law Ethical Guidelines for the Practice of Forensic Psychiatry.
These guidelines drawn up by a professional body apply specifically
to forensic psychiatry.
Ethics and the Health Professions:
Relating the Memory of the Shoah to the New Managed Care Millennium.
The parallels between ethics considerations in the Shoah and in today's
managed health care organizations.
A day not easily forgotten. Torture and human rights abuses are
still ethical affronts in our world.
in Denial, Doctors Say. Dr. Bursztajn quoted in Newsday on
the need for objectivity in expert testimony and confidentiality
in mental health treatment.
The Importance of Meaningful Informed Consent for Protecting Patients
and Clinical Research Subjects
Employment & Ethics
In the workplace, the forensic psychiatrist may be asked to consider
whether a claimed disability (e.g., a chronic general illness, such as
Chronic Fatigue Syndrome, a chronic pain syndrome, such as Fibromyalgia,
or a mental disorder, such as Depression or Obsessive-Compulsive Disorder)
is valid and work stress related. Some other frequently asked employment
related examination questions are:
Is a claimed impairment subject to the ADA mandate for accommodation?
What is the appropriate organizational response to a sexual harassment
What is the validity and extent of sexual harassment-related damage
claims, such as emotional injury or Post-Traumatic Stress Disorder?
As a nationally recognized forensic neuropsychiatric expert, Dr. Bursztajn
continues to teach via peer review service, publication, and presenting
workshops in recognized professional forums. By way of introduction,
Psychiatric Association workshop abstract on reducing the risk of
dual agency complications by performing objective forensic neuropsychiatric
evaluations of work impairment claims independent of ongoing subjectively
Dr. Bursztajn is interviewed and quoted in several news articles
surrounding the mass shooting at Sandy Hook Elementary School
in Newtown, CT on December 14, 2012.
J. Bursztajn '72, on mental-health care. Dr. Bursztajn
is interview in the Princeton Alumni Weekly on the role of
mental health care in the aftermath of the Newtown shootings.
Regarding the relationship and the needed caution with autism
related impairments and the likelihood of violence:
Regarding the caution necessary in looking for genetic markers
for the tendency towards violence:
Article: Ban Genetic
Discrimination Boston Globe Op-Ed piece by Dr. Harold
J. Bursztajn and Dr. Richard Sobel, August 7th, 2000.
Expert says Embryo-Implant Docs Negligent. Dr. Bursztajn often
consults and advises clinicians and organizations across the medical
and mental health spectrum as well as state and federal agencies
on issues at the interface of patient care and clinical ethics. This
may include advising the judiciary as an independent or testifying
as a plaintiff or defense retained medical and mental health care
and ethics expert. Boston Herald, January 16, 2004.
Sanctions, Doctors Get Drug Company Pay. Many doctors who were
sanctioned by a medical board were later paid for research by drug
makers. New York Times, June 3, 2007.
Care as Main Engine: Is that so Bad? Whatever the specifics,
executives and economists agree that health care will become a more
important part of the economy. New York Times, November
U.S., Partisan Expert Witnesses Frustrate Many. In most of the
rest of the world, expert witnesses are selected by judges, though
American judges are generally free to appoint their own experts,
they seldom do. Many judges, having been trial lawyers, are suspect
that any expert can be truly neutral. The virtue of this adversarial
system is that the finder of fact is allowed to balance this out
through competing testimony. New York Times, August
Good World by Martha Nussbaum, The New Republic,
December 4th, 2000.
Patients Don't Want to Know How Doctor is Paid by Suzanne Rostler,
March 6, 2001.
Conflicts of Interest
Recent Articles in the News:
Managed health care organizations are more numerous and pervasive today.
As they have grown in influence, many patients and professionals have
claimed that medical care, while increasing in sophistication, has declined
in quality. At the same time, the large-business and third-party aspects
of managed care organizations can make medical decision-making an impersonal
process, and increase the need for organizations and clinics to exercise
joint responsibility with the treating physician for informed patient
Blog Commentary: Sharing
Psychiatric Records Helps Care. Contrary to the assumptions of
the authors of the article reported by James Bakalar in the above
blog posting, a lower hospital readmission rate for psychiatric patients
is not necessarily a gold standard for quality of care. In at least
some cases it may be a symptom of a failure to obtain informed consent
regarding privacy and record sharing. The consequent lack of a therapeutic
alliance and trust can result in patients reluctant to seek needed
rehospitalization and an increased risk of otherwise avoidable suffering.
Complications and Clinical Remedies. More and more clinicians
practice both primary medical care and primary psychiatry in the
hothouse atmosphere of managed health care. Dr. Bursztajn has been
interested in decision making under conditions of uncertainty for
many years; one of his earlier books, Medical Choices, Medical Chances,
extensively explores this issue in ways that offer direct assistance
to physicians across the specialty spectrum as to clinical decisions
under conditions of uncertainty. Dr. Bursztajn's article with Archie
Brodsky in Primary Psychiatry examines the boundaries between medical
and psychiatric fundamentals of clinically-based risk management
and provide remedies for the critical pitfalls facing the practitioner
in the modern era.
Patients, Captive Doctors: Clinical Dilemmas and Intervention in
Caring for Patients in Managed Health Care by Harold J. Bursztajn,
M.D. and Archie Brodsky, B.A.
Prudential HMO, Inc. v Moran et al.. In this strong and
very important affirmation of patients' rights, the Court ruled that
ERISA does not override state laws which require HMOs to provide
patients the use of binding independent reviews of the HMOs' "medical
necessity" decisions. It may also lead the way to considering "product
liability" class action suits via managed care companies based
on a lack of informed consent. Dr Bursztajn's book chapter previewing
this implication of the decision is a good introduction to this emerging
May Not Mean Better in Health Care, Studies Find. Dr. Bursztajn's
Letter to the Editor of The New York Times (July 26,
2002) in which he states that "Research like that presented
is all too often misused as a rationalization for policies that deny
access to care and choice of treatments."
Patient Care and Public Safety in the Managed-Care Era. General
Psychiatric Hospital, Cambridge, MA, November 11, 2001 by Harold
J. Bursztajn, M.D.
the Public Trust. Shaping the Future for Health Participant Programs.
The protection of individuals who volunteer to participate in research
is essential to the ethical conduct or research.
Clinical Research Risks. Dr. Bursztajn's timely letter to The
New York Times (August, 2001) alerting sponsors of clinical
trials that they are accountable for protecting human subjects from
unnecessary risks due to research.
Ethics of Social Risk Reduction in the era of the biological Brain.
In keeping with our transdisciplinary orientation, in this article
Dr. Bursztajn and co-authors try to do several things at once. They
address research on preventing mental illness and its relation to
existing conceptions of public health, a topic to which insufficient
attention has been paid in the era of the biological brain, while
using this case study to illustrate the limits of conventional approaches
for Managed Care Pain. Dr. Bursztajn's article on preventing
managed health care malpractice.
Negligence and Informed Consent in the Managed Care Era. Dr.
Bursztajn's article regarding the increasing scrutiny the courts
are giving to the process as well as the content of medical decision
making—not only what the decision was, but who made it and
how it was made.
Alliance for Alienation: Supporting the Human Side in Changing Health
Care. The changes in health care, particularly in the doctor-health
maintenance organization, can be better handled using skills already
in practice in the patient-doctor aspect of the health care relationship.
Without Scapegoating. Dr. Bursztajn's article discussing the
different spheres of authority and responsibility of the physician,
the patient, and the MCO.
Article: A Reflection
of My Father's Experiences with Doctors During the Shoah. A portrait
of the traditional relationship of care between doctor and patient.
Developments in the Role of Post-Traumatic Stress Disorder in Civil
and Criminal Law: A Case of Medical Malpractice Illustrates the
Growing Importance of Informed Consent.
Health Care Goes Lacking. Dr. Bursztajn on consequences of managed
health care denial in The New York Times, 8-4-99.
Technology Improves, More People Breathe With Machines. April
24, 2001 Article in the Science Section of The New York Times with
Dr. Bursztajn's response to the editor.
Subjects, Preserving Trust, Promoting Progress. Policy and Guidelines
for the Oversight of Individual Financial Interests in Human Subjects
Research. AAMC Task Force on Financial Conflicts of Interest in Clinical
Research, December, 2001. In October of 2000, in a speech entitled
Trust Us to Make A Difference, Dr. Jordan Cohen, President of the
Association of American Medical Colleges (AAMC), announced the formation
of a new Task Force on Conflicts of Interest in Clinical Research
chaired by Dr. William Danforth, Chancellor Emeritus of Washington
University of St. Louis. Core Principles to Guide Policy Development.
The first product of these efforts is this report. This document
offers guidance to institutions in their efforts to provide responsible
and effective oversight of financial interests in human subjects
research. Academic institutions share common concerns, yet each retains
its own unique culture and mode of self governance.
to Cover Psychiatric Help for 9/11 Families by Erica Goode, The
New York Times, August 21, 2002. The need to provide mental
health care and choices to help 9/11 families given the lack of each
in a managed health care dominated American medical landscape.
Medical News Letter to the Editor (2.04.02). As managed care
pares hospital stays, more need for physicians to advocate on behalf
Rights: What's at Stake? August 16, 2001; The New York
Times by Milt Freudenheim. The new law would mean uniformity
for the managed care companies but we personally will not see much
Deaths Tied to Lack of Nurses. Managed health care influences
on patient care; The New York Times, August 8, 2002
Violence in Severe Mental Illness & Community care does not do
well. Why hospitalization is the best hope for reducing mental
illness for those prone to violent behavior.
Principles of Ethics on Managed Health Care
Book Review: Managing
Care, Not Dollars: The Continuum of Mental Health Services.
v. Illinois, Cook County Cir. Ct., No. 97 L 874, July
26, 1999. Failure to Provide Psychiatric Treatment.
Suggests More Health Care May Not Be Better. Details Dartmouth
Research Project findings. The New York Times, July
Claborn Drewry v. Phillip Harwell, M.D., et al. The uses
of informed consent as a malpractice defense.
Says Profit-Making Health Plans Damage Care
Article: Who's Reaping
the Benefits. Transcript of 20/20's program on managed health
Article: Is 911 a
Necessary Call? HMO wants members to call another number for
Article & Editorial: Group
Asking U.S. For New Vigilance in Patient Safety
Insurers Revise Cost-Control Efforts
Legal Attack, H.M.O.s Face a Supreme Court Test
Price Too High? A Deal to Save Charter Behavioral May Have Hurt It. Managed
Care Business and Medical Standards & Ethics.
Accused of Underpaying Doctors
of Rulings Eases Constraints on Suing HMO's
v. Share Health Plan of Illinois, Inc. The Illinois Supreme court
held that under the doctrines of apparent and implied authority,
HMOs may be vicariously liable for their independent contractors'
negligence. The plaintiff presented evidence by citing her employee
handbook which stated that the HMO would meet "all...health care
needs." The court of appeals found that the HMO's compensation arrangement
with its physicians might have restricted the physicians' treatment
decisions. Also, the HMO might have exercised a sufficient amount
of control over its physicians who may have been seen as agents of
the HMO, disclaimers aside.
Say They Deceive Insurers to Help Patients
v. Herdrich. The Supreme Court Shields HMOs From Lawsuits.
and Disability Costs of Depressive Illness in a Major U.S. Corporation." The
cost to employers of failure to treat depression.
Report of The President's Advisory Commission on Consumer Protection
and Quality in the Health Care Industry.
Unfortunately, nutrition tends to be neglected for the elderly receiving
home care as well as institutional care. The following provides some
Disabilities, including psychiatric disabilities, are controversial reasons
for denial of health benefits or health insurance altogether.
with Dignity. Dr. Bursztajn letter to The New York Review
of Books decrying premature denial of care in response to
Richard Horton's, the editor of the Lancet, review of "In
the Danger Zone" and Dr. Horton's response.
Managed Care Benefit Denial. Patients, and where clinically indicated
their families, need to be encouraged to become informed of the benefits
they are entitled to by contract or state mandate.
Organizational Responsibility & Ethics
Under some circumstances, managed health care organizations are responsible
for liability. The AMA also considers the plan medical director as a "physician
on Clinical Decision Making
According to the Pocket Guide to Managed Care,
"The Employee Retirement Income Security Act (ERISA) is a federal
law that governs the rights of employees to employer-sponsored pension
and health benefits. It is supposed to protect patients by preempting
state laws that regulate or tax employee benefits provided by employers.
In theory, ERISA can protect managed care organizations that are sued
for (a) Malpractice, (b) Refusal to pre authorize care, and (c) Denying
payment through their utilization management process. In practice, ERISA's
actual protection of MCOs is variable."
(La Puma, J and D Schiedermayer, McGraw Hill,1996. pp 24-25)
Political activity has also recently increased to address the need for
Care for the Dying
Terminally ill patients are often denied certain kinds of medical treatment.
While the process of dying is often depressing, such depression is rarely
treated. Often, this depression leads to giving up on life rather than
the desire to make one's last months feel worthwhile. There are serious
ethical and medical considerations in regard to best practice treatment
for the terminally ill.
on My Father's Experiences with Doctors during the Shoah.
for Hope. Harvard Medical Alumni Bulletin issue from Autumn 2006.
Lessons from the Holocaust in how doctors can heal through hope,
an adaptation of Dr. Bursztajn's original article above.
Article: From PSDA to PTSD: The Patient Self-Determination
Act and Post-Traumatic Stress Disorder, Journal of Clinical
Ethics. 1993, Vol. 4 pp71-74.
and Autonomy in the Managed Care Era: Forensic Psychiatric Perspectives, Journal
of Clinical Ethics. 1994, Vol. 5 pp237-242.
Article: Clear, Convincing, and Authentic Advance
Directives in the Context of Managed Care? Journal of Clinical
Ethics. 1994, Vol. 5 pp364-366
Privacy & Confidentiality
Privacy in the Behavioral Genetics Era. In view of the recent
97-0 vote in the Senate to protect genetic privacy and the timeliness
of the issues around genetic privacy, Dr. Bursztajn's article published
by the American Bar Association, Commission on Mental and Physical
Disability Law, 2003 is of great interest and value.
without Health-Care Data Banks. Letter to the Editor of Health
Affairs regarding patient confidentiality and health-care
Force Tracks Dumped Records Dr. Bursztajn quoted in the The
Tampa Tribune, July 16, 1999.
Limits of State Laws to Protect Genetic Information by George
J. Annas, J.D., M.P.H. Protecting Personal DNA Information. Published
in New England Journal of Medicine, August, 2001.
Logic of Privacy From The Economist print edition
comes a new way to think about computing and personal information
Article:Privacy and Cyber/Spaces: Medical and Other
A pioneering document on privacy.
to Adopt Privacy Rules on Information From Insurers.
Report of The President's Advisory Commission on Consumer Protection
and Quality in the Health Care Industry.
to the Confidentiality of Medical Records: No Place to Hide.
and Abuses of Prescription Drug Information in Pharmacy Benefits
Rule Making for Standards for Privacy of Individually Identifiable
v. Redmond (95-266), 518 U.S. 1 (1996).
Prozac in the Junk Mail Draws a Lawsuit Ft. Lauderdale, FL, July
3, 2002 The New York Times. How privacy law applies
to medical records used in marketing is an open question.
Some questions concerning a national healthcare database:
How do we leave control in the hands of patients and allow
for informed consent when data is entered into databases?
How do we prevent Managed Care Organizations (MCOs) from
using databases for enrolling and disenrolling high quality
health care providers [predatory profiling]?
How do we protect patient confidentiality from employers,
Americans with Disabilities Act (ADA) aside?
Can patients access their own data?
Can patients opt out from being included in databases?
How do we inform patients about the experimental nature of
health care databases in terms of potential negative
impacts on patient health care?
To obtain Telemedicine: An Overview of Applications and Barriers,
contact: Physician Insurers Association of America, 2275 Research Boulevard,
Suite 250, Rockville, MD 20850. (301) 947-9000.
Dr. Bursztajn has an active patient care practice and consults to physicians,
institutions, judges, and plaintiff and defense counsel nationally.