Chapter 2: The Medical Enterprise and Medical Ethics

[1] D. Barnlund, "The Mystification of Meaning: Doctor-Patient Encounters," Journal of Medical Education 51 (1976): 716-725.

[2] T. Szasz and J. Hollender, "The Basic Model of the Doctor-Patient Relationship," Archives of Internal Medicine 97 (1956): 85-90.

[3] Robert Burt, Taking Care of Strangers (New York: Free Press, 1979), 103. This excellent monograph analyzes doctor-patient relationships in psychoanalytic terms, and extends Parsons's discussion of transference. As a result, some of Burt's conclusions may be quite different from those that issue from a political-philosophical analysis. These issues are, however, the subject of another essay.

[4] See for example Jay Katz, The Silent World of Doctors and Patients (New York: Free Press, 1984). Szasz and Hollender assert that the participants in the relationship should have "equal power" and should be "mutually independent." These goals are very difficult to accomplish. The physician possesses a great deal of knowledge and information that the patient can barely begin to share without special efforts by the physician. A realistically ethical physician-patient relationship that respects the patient as a person means that the physician proposes something and the patient accepts. The key issue is the extent of the physician's proposal. Given her powerful advantage in knowledge, the proposal might be quite specific. Thus the mere assertion that the doctor and patient should be equal does little to demonstrate how or why the mutual participation model is to be reached.

[5] H. S. Becket, "The Nature of a Profession," in Sociological Work, ed. H. S. Becket (Chicago: Aldine Publishing Co., 1970), 87.

[6] E. Hughes, "Professions," Daedalus 92 (1963): 657-677.

[7] Ibid., 658.

[8] A. Buchanan, "Medical Paternalism," Philosophy and Public Affairs 7 (1976): 370-381.

[9] C. J. Friedrich, "Authority, Reason, and Discretion," in Nomos 1: Authority, ed. C. J. Friedrich (Cambridge: Harvard University Press, 1958).

[10] Hannah Arendt has extended the concept of authority by describing its etymological roots. Hannah Arendt, Between Past and Future; Six Exercises in Political Thought (New York: Viking Press, 1961). The Greek and Latin roots indicate that "authority" originally approximated the meaning of the word "augmented." The person in authority is augmented by a set of ideas extraneous to his own personality or knowledge. These ideas or beliefs allow others to accept his authority.

Arendt's description derives at least partially from Max Weber's insights. Weber conceived of three types of authority: (1) de jure authority, which derives from rules and ordered activity; (2) de facto authority, which derives from one's own specific skills and abilities; and (3) charismatic authority, which results from one's personality and which is outside institutional constraints. Some have pointed out that Weber's authority types represent a spectrum of different sources of authority. Weber's primary point is that a conceptual relationship between a person's activity and a set of ideas or beliefs provides authority. Miriam Siegler and Humphrey Osmond have argued this in the medical context in "Aesculopian Authority," Hastings Center Studies (1973): 41-43, in which a physician has moral, sapiential, and charismatic authority. The latter type of authority has certain priestly or magical qualities.

[11] Talcott Parsons's major works on this subject are The Social System (Glencoe, Ill.: Free Press, 1951) and "Social Change and Medical Organization in the United States: A Sociological Perspective," Annals of the American Academy of Political and Social Science 356 (1963): 21-42.

[12] Talcott Parsons, The Social Structure (Glencoe, Ill.: Free Press, 1964), 43.

[13] My characterization here is quite dependent on analysis by Jeffrey Berlant in Profession and Monopoly: A Study of Medicine in the United States and Great Britain (Berkeley, Los Angeles, London: University of California Press, 1975).

[14] Ibid., 9.

[15] Parsons, The Social Structure, 43.

[16] Ibid., 44-46.

[17] Parsons, "Social Change and Medical Organization," 23.

[18] Ibid., 26.

[19] Eliot Friedson, Doctoring Together (New York: Elsevier, 1975), 45.

[20] Parsons, "Social Change and Medical Organization," 27.

[21] A. Jonsen, "The Rights of Physicians: A Philosophical Essay" (unpublished essay filed with the Kennedy Institute Library, Georgetown University, dated June 1978), 14.

[22] H. Tristram Engelhardt, The Foundations of Bioethics (New York: Oxford University Press, 1986), 23.

[23] Berlant, Profession and Monopoly, chap. 3.

[24] R. Kudlien, "Medical Ethics and Popular Ethics in Greece and Rome," ClinoMedica 5 (1970): 93.

[25] Robert M. Veatch, A Theory of Medical Ethics (New York: Basic Books, 1981), 23.

[26] Ibid., 149.

[27] Ibid., 154.

[28] Tom L. Beauchamp and James F. Childress, Principles of Biomedical Ethics (Oxford: Oxford University Press, 1983).

[29] Berlant, Profession and Monopoly, 69.

[30] Ibid., 70-75. Berlant believes that anticompetition and monopolization are the major reasons for the existence of ethical codes.

[31] See Berlant, Profession and Monopoly, 100.

[32] Ibid., 100.

[33] Ibid., 107.

[34] Ibid., 107.

[35] Ibid., 108.

[36] Veatch, A Theory of Medical Ethics, 5.

[37] Beauchamp and Childress, Principles of Biomedical Ethics, 213.

[38] There are, of course, many different ethical theories or principles that underlie the "patient comes first" value. Beauchamp and Childress, for example, outline a number of completely different principles based on certain ethical theories that justify physician behavior. These principles include, among others, justice, nonmalfeasance, beneficence, and autonomy. For now we will avoid this particular characterization of medical ethics.

[39] Beauchamp and Childress, Principles of Biomedical Ethics, 177.

[40] Paul Ramsey, The Patient As Person (New Haven: Yale University Press, 1970), 2.

[41] Ibid., 5.

[42] Ibid., 6.

[43] Ibid., 6. Others have not shared this view, arguing that doctors' charity-in-relation is more akin to Aristotle's theory of virtue. See Beauchamp and Childress, Principles of Biomedical Ethics, 262.

[44] B. Williams, "The Idea of Equality," in Justice and Equality, ed. Hugo Bedau (Englewood Cliffs, New Jersey: Prentice Hall, 1971), 127.

[45] Immanuel Kant, Groundwork of the Metaphysics of Morals, ed., H. J. Paton (New York: Harper and Row, 1964), 61.

[46] Ibid., 96.

[47] Despite the apparent applicability, of Kantian theory to the doctor-patient relation, medical ethics cannot claim a Kantian basis for one important reason. Kantian moral philosophy is based on universalizability. It applies to all citizens. The categorical imperative requires that each person be treated as an end in himself. Medical ethics is not meant to be universalizable. Rather it refers specifically to the relation between doctors and patients. The altruistic aspects of medical ethics do not reach beyond the doctor-patient encounter.

In this regard, medical ethics can be understood as a matter of role morality. Throughout this discussion I am quite dependent on David Luban's insightful discussion in Lawyers and Justice (Princeton: Princeton University Press, 1988). Role morality concerns those duties that arise out of one's role or "station." A role is a concept of functional anthropology and, as Erving Goffman has put it, "Consists of the activity the incumbent would engage in were he to act solely in terms of the normative demands upon someone in his position." See Erving Goffman, "Role Distance," in Encounters: Two Studies in the Sociology of Interaction (Indianapolis: Bobbs-Merrill, 1961), 85. For example, the lawyer's role morality might require that he act in an especially antagonistic manner when litigating a case on behalf of a client. Similarly, the physician may have to act in an especially benevolent fashion toward her sick and vulnerable patient.

Kantian ethics is more fundamental in that its imperatives apply to all people as people, not as actors within a certain role. Kantian moral agency is fundamental. One can move in and out of roles. The lawyer does not treat everyone as if he or she were his client, nor does he treat everyone as if each were the prosecutor or an adverse witness. Role morality assumes a secondary position when compared with the public morality envisioned by Kant. Thus public morality itself, especially Kantian morality, must be universalizable, whereas role morality is not.

More important for the purposes of my argument is the relationship of role morality to public morality in the liberal state. I would argue that public morality limits role morality in certain ways and yet tolerates role moralities insofar as they express imperatives that are more altruistic than the public morality can require.

The public morality of liberalism is based on equal concern and respect for each individual. This means that each individual must be allowed to pursue her own enterprises and to define her own conception of a good life. However, the liberal state must also ensure that this pursuit is not detrimental to the interests of other members of society. Specifically, the state must guard against inequality. Any role morality must respect these aspects of the public morality, for roles in the state are secondary to membership in the state.

Nonetheless, certain roles can require altruistic or virtuous behavior beyond that expected by the state. For instance, certain religious orders might require that their members earn money in the market and then give all of it away to charity. This is not a requirement for every citizen in the liberal state, but the state accepts these role duties. However, the state will not accept the demands the same religious order might make upon its members to oppose what they regard as murder by attacking abortion clinics. Thus role morality is limited by the public morality, but certain duties arising out of the role are acceptable, and even welcomed by the state. These role duties are not universalizable, however, in the same manner that the public morality is.

In short, medical ethics, which emphasizes the physician's duty to the patient, is not applicable to society at large. In this it differs fundamentally from Kantian moral philosophy. Medical ethics defines a role morality. When physicians care for patients they are held to a set of moral imperatives that are not part of the general set of moral relations between individuals in the liberal state. It is nevertheless important to note that the role morality of medical ethics does apply to all doctor-patient relationships. The patient's role as patient, not as an individual, and the doctor's role as doctor, not as a concerned citizen, define the ethical relationship. In this regard, the class of doctors bears some common responsibilities to the class of patients.

This means that if a physician finds certain aspects of the care of a patient morally repugnant, she must find equally repugnant the fact that these aspects exist for other doctors and patients. For example, a physician working in a small clinic in the inner city may find that many of her patients who carry the human immunodeficiency virus cannot afford to purchase AZT, a drug that can postpone the onset of AIDS. She finds that these financial constraints make it impossible for her to discharge her duties in an appropriate fashion. A physician at a well-heeled clinic might not face the same problem because her patients all have insurance. Nonetheless, the second physician can sympathize with the first and understand the problems with financing. More important, the second physician should find the situation of the inner-city patients as morally repugnant as their own doctor does. The fact that some patients are not being treated with complete respect offends medical ethics, even when the patients are not one's own. The doctor's role responsibilities are thus universalizable to the class of all patients, but they are focused on the particular patient. These are issues we will return to in subsequent chapters.

This raises another point. Kantian moral philosophy is only similar to, rather than being the basis of, medical ethics. Recognition of this fact frees my argument from a potentially serious conflict. I have argued that medical ethics is in many ways illiberal. Kant was in many ways quite liberal. Indeed his moral philosophy and its distinction between noumenon and phenomenon has been used as a critical element in the distinction between classic liberals and modem liberals. See Michael Sandel, Liberalism and the Limits of Justice (Cambridge: Cambridge University Press, 1982), chap. 1. Kant's insistence that all individuals be treated with equal respect and concern is quite compatible with the theory of liberalism developed in the previous chapter. Thus it would be difficult to argue medical ethics is illiberal and yet admit it is based in Kantian moral philosophy.

[48] Hans Jonas, "Philosophical Reflections on Experimenting with Human Subjects," in Contemporary Issues in Bioethics, ed. Tom L. Beauchamp and Leroy Walters (Belmont, Calif.: Wadsworth Publishing Co., 1978), 417.

[49] S. Twiss, "The Problem of Moral Responsibility in Medicine," Journal of Medicine and Philosophy 2 (1977): 338-352.

[50] Ibid., 339.

[51] See Edmund D. Pellegrino and David C. Thomasma, For the Patient's Good (New York: Oxford University Press, 1988).

[52] Ibid., 27.

[53] Ibid., 117.

[54] Berlant, Profession and Monopoly, 204.

[55] Ibid., 88.

[56] Ibid., 225.

[57] N. Davis, History of the American Medical Association from Its Organization Up to 1855 (Philadelphia: Lippincott, Grambo and Co., 1855).

[58] Berlant, Profession and Monopoly, 231.

[59] R. Shyrock, Medical Licensing in America: 1650-1965 (Baltimore: Johns Hopkins Press, 1987).

[60] Paul Starr, The Social Transformation of American Medicine (New York: Basic Books, 1982), 184-185.

[61] J. Duffy, A History of Public Health in New York City, 1946-1966 (New York: Russel Sage Foundation, 1974).

[62] Ibid., 230-245.

[63] Starr, Social Transformation of American Medicine, 201.

[64] G. Rosen, "Contract as Lodge Practice and Its Influence on Medical Attitudes to Health Insurance," American Public Health Annals 67 (1977): 374-378.

[65] I. S. Falk, "Proposals for National Health Insurance in the U.S.A.: Origins and Evolution and Some Perceptions for the Future," Milbank Memorial Fund Quarterly 55 (1977): 161-191.

[66] Shyrock, Medical Licensing in America, 63.

[67] Starr, Social Transformation of American Medicine, 230-232.

[68] One last chance for eliminating such control, or at least for changing its emphases, occurred with the rise of Progressivism. In the years 1910 to 1915, the Progressive Party attempted to resist laissez-faire policies. Some party members drew on developments then occurring in Great Britain and began to campaign for some sort of social insurance, including health insurance. For the first time, physicians began to question the assumption that the government should not be involved in the delivery of health care to the individual.

These developments set the stage for a very critical period in the history of the AMA and the American medical profession. In 1915 and 1916, the AMA was, surprisingly, quite open to the Progressive initiatives on health care.

Articles in the Journal of the American Medical Association and the AMA's directions to its committee on social insurance indicated that the association was certain that compulsory health insurance was in the offing. Thus the AMA seemed prepared to abandon its opposition to government involvement in medical care and accept that health care could best be served by social insurance. This would, of course, demand some changes in the existing fee-for-service system. It might also challenge the institutional arrangements that supported the doctor-patient relationship.

Enthusiasm for these proposals was, however, ephemeral. The profession had begun to divide into two groups. One, of which both Lambert and Rubinow were members, was composed of physicians who had received postgraduate education and had specialized professionally. They were at the leading edge of new developments in medical education and science. The other, larger, group was made up of general practitioners and led by Eden V. Delphy, who had no postgraduate training. Delphy's leadership was based on a fear that some government control of medicine would reduce physician prerogatives and control of therapy, and would change existing economic relationships. Drawing on a wellspring of support, Delphy's group took control of the House of Delegates.

[69] "Minutes of the House of Delegates," Journal of the American Medical Association 74 (January-March 1920): 1319.

[70] Falk, "Proposals for National Health Insurance," 161-191.

[71] Editorial, Journal of the American Medical Association 99 (October-December 1932): 1950.

[72] Starr, Social Transformation of American Medicine, 271.

[73] Ibid., 272.

[74] Ibid., 276.

[75] T. Arnold, "Department of Justice: Statement About Group Health Insurance Cost," Current History, (1938): 49.

[76] Starr, Social Transformation of American Medicine, 305.

[77] Congress definitely was aware of the AMA's success in defeating a California State health plan in 1945-1946. Starr, Social Transformation of American Medicine, 283.

[78] Starr, Social Transformation of American Medicine, 297.

[79] Ibid., 298.

[80] Editorial, Journal of the American Medical Association 102 (April-June 1934): 2200-2201.

[81] Starr, Social Transformation of American Medicine, 300.

[82] The AMA campaign against the Group Health Associates was discussed in D. Hyde, et al., "The American Medical Association: Power, Purpose and Politics in Organized Medicine," Yale Law Journal 63 (1955): 938-978.

[83] Starr, Social Transformation of American Medicine, 309.

[84] Herman M. Somers and Anne R. Somers, Doctors, Patients and Health Insurance: The Organization and Financing of Medical Care (Washington: Brookings Institute, 1961), 300-320.

[85] Starr, Social Transformation of American Medicine, 368.

[86] Handbook of Public Assistance, Supplement D, 680 #D01540 (Washington: Government Printing Office, 1965).

[87] E. Sparer, "The Legal Right to Health Care," Hastings Center Report, 6 (October 1976): 39-47, 43.

[88] Starr, Social Transformation of American Medicine, 375.

[89] Judith Feder, Medicare: The Politics of Federal Hospital Insurance (Lexington, Mass: Lexington Books, 1977).

[90] Friedson, Doctoring Together, 45.

[91] Ibid., 51.

[92] Competition, or lack of it, is the subject of a great many recent essays and articles. See, for example, L. D. Brown, "Competition and Health Cost Containment: Cautions and Conjectures," Milbank Memorial Foundation Quarterly 59 (1981): 145-189; T. Marmor, et al., "Medical Care and Procompetitive Reform," Vanderbilt Law Review 34 (1981): 1010-1040.

[93] R. Gibson, "National Health Expenditures, 1979," Health Care Financing Review 2 (Summer 1980): 29-37.

[94] Clark Havighurst, "Antitrust Enforcement in the Medical Services Industry: What Does It All Mean?" Milbank Memorial Foundation Quarterly 58 (Winter 1980): 89-124, 102.

[95] Kenneth Arrow, "Uncertainty and the Welfare Economics of Medical Care," American Economics Review 53 (1963): 941-949.

[96] R. Auger and D. Goldberg, "Prepaid Health Plans and Moral Hazard," Public Policy 22 (1974): 353-371.