Preface

This book is motivated by two separate but related inquiries. The first concerns the relationship of medical ethics to the law that governs health care. While it is wrong to talk of a single theory, of medical ethics, it seems to me that many ethicists, and especially those physicians who number themselves among ethicists, accept a theory, of medical ethics described as "beneficent." The theory, of beneficence centers on the altruistic commitment of the doctor to the patient. In a theory of beneficence, "the patient comes first": the physician acts on behalf of the patient and is duty, bound to put the patient's interest ahead of her own. Thus the physician acts as the patient's agent.

In return for this commitment, the patient must expect that the physician will at times act paternalistically. Sometimes, she must act on behalf of the patient and help make decisions for him. The patient accepts this paternalistic power of the physician, at least in partial recognition of the fact that sickness tends to decrease his autonomy.

The theory, of beneficence contrasts sharply with the trend in nearly every, area of health law to increase the prerogatives of the patient and limit the prerogatives of the physician. In areas as diverse as informed consent, medical malpractice law, physician payment issues, and antitrust litigation, we witness decision after decision in which efforts are made by courts to limit physicians' power. The-law is suspicious of physicians and evinces little confidence in a beneficence approach to the relation between doctor and patients.

As a physician, I believe that the beneficence model of medical

ethics has some, in fact, many, admirable features. As a lawyer, however, I realize that the outstanding aspect of the liberal state is its respect for individual rights, including those of patients. Thus I must ask how the best aspects of the beneficence model of medical ethics can be modified to conform to the morality underlying the liberal state's efforts to reduce physicians' power. In other words, I must ask how the principles underlying medical ethics can be brought into alignment with the moral principles that underlie the law in our liberal state.

The second inquiry, that motivates this book concerns the changes in the economic and political structure of medical practice. In the ten years in which I have observed medical practice, there have been very many changes. Those who have observed it for the past thirty or forty years must have seen even greater changes. The world of the individual practitioner, who contracts on a fee-for-service basis with patients, relies on insurers to provide compensation without question, and admits patients to a hospital that defers to the physician decisions on care is now vanishing. The past twenty-five years have seen greater and greater governmental intervention in medical care. And in the last ten or fifteen years market concepts and the influence of competition have been introduced. More and more physicians are employed by health maintenance organizations and other entities that seek to provide managed care—that is, care overseen by administrators of health plans. New incentives to demonstrate appropriateness and cost efficiency in medical care are changing the nature of medical practice. As a consequence, the personal power of individual physicians within the health care system, as well as the overall power of the medical profession, has diminished. The overwhelming majority, of middle-aged and older practitioners relate that the practice of medicine is nothing like it was even twenty years ago.

This new structure of medical practice must require new theories of medical ethics. The beneficence theory, of medical ethics flourished in an era in which physicians, in their relations with patients, were isolated from economic and political influences. Indeed the traditional structures of medical practice were designed to preserve such insulation. Physicians were free of the restrictions of the market and could literally "do anything" for a patient. Now, physicians must face a variety of political, social, and economic constraints as they practice medicine. Medical ethics must evolve to help physicians address these issues.

In this book, I attempt to develop a new theory of medical ethics,

which I call medical ethics as just doctoring. This notion of medical ethics attempts to retain the altruism of the beneficence model of medical ethics. However, this core altruism is placed firmly within the structure and moral principles of the liberal state. It conforms with liberalism and with the laws of the liberal state. Moreover, it addresses the complicated economic and political issues that now arise in the practice of medicine. Medical ethics as just doctoring counts as ethical issues such diverse problems as rationing of care, the role of competition in medical care, limits on care for elderly patients, quality assurance and malpractice litigation, and issues on informed consent. Thus medical ethics as just doctoring represents a somewhat radical departure from traditional notions of medical ethics, which rarely ventured outside the direct doctor-patient relationship.

It is not without some trepidation that I develop this thesis. During the summer I spent writing this book, I had several experiences that helped place the project in perspective. In the early part of the summer, a fellowship program in which I was involved came to a close. The individuals participating in the program came from a variety of different professions and were studying ways to understand and develop professional ethics. All the participants took their work very seriously, and the program provided an atmosphere in which ethical issues arising in the practice of medicine and other professions could be addressed and understood in some theoretical detail. The atmosphere of the program seemed quite distant from the hospital environment in which I practice medicine. I worried that the ideas developed in this intellectual environment might not readily translate to my primary audience-physicians, nurses, and other health care providers.

Just after the close of the ethics program, I served for a month as an attending physician at a university hospital, acting as supervisor and teacher of physicians training in internal medicine, as well as of third-year medical students associated with the team of training physicians. July is an exciting month to be an attending physician. Interns have just graduated from medical school and are taking their first steps as doctors. The internship year is one of total emergence in medicine and the interns work long hours. It is fascinating to watch young people, most of whom have spent the eight years since graduating from high school studying very hard, learn to care for patients. Perhaps most impressive is the set of expectations under which they operate. We all expect, the attending physicians, the directors of the training program, and the second- and third-year residents, that the interns will demon-

strate total commitment to their jobs. They will not leave the hospital until all questions about patient care have been addressed or passed along to a responsible individual. Operating under great stress and fatigue, these new doctors evince a commitment to their job unlike that found in any other area of commerce. What is remarkable is that this commitment is standard; it is expected of every doctor in the training program.

Certainly, part of this commitment must spring from a sense of ethical duty to patients. It cannot, it seems, be the mere expectation of gain at some point in the distant future that drives these young men and women. A sense of altruism must be part of the practice of medicine. Yet it is difficult to uncover in conversation with these physicians in training. Indeed, they rarely can articulate the nature of their motivation. The conceptual framework that might link their actions to notions of ethical behavior is missing. Thus it seems important to me to help develop that ethical framework. If one could integrate the moral principles provided by philosophers and ethicists with medical education, perhaps the ethical theory of medicine could be better understood by practitioners. This hope underlines many of the arguments in this book.

In addition to my duties at the university teaching hospital, I "moonlight" in an emergency room at a small community hospital in Massachusetts, where I come into contact with physicians engaged in more traditional medical practice. While preferred-provider organizations and new insurance arrangements increasingly affect their medical practice, many physicians at this hospital still operate under the fee-for-service framework and face little hospital interference. They are also removed from the intellectual atmosphere of the teaching hospital; they work for a living and their living is taking care of patients. The same is true of the incredibly dedicated emergency room nursing staff.

These doctors and nurses constitute another audience I hope to reach. It is, however, an audience quite removed from the ivory tower. It is hard for me to imagine that they would take the time to consider arguments regarding the interrelationship of medical ethics and the liberal state. Moreover, I doubt that they would have any time for discussions of the law and the way it affects medical care. Their view is that the law has to do with lawyers, and they have little interest in dealing with them. Thus, while I can relate to the community physician who has a patient in the emergency room, and in whom I can

discern the same commitment to the patient that I see in the fledgling interns, it is difficult to believe that philosophical arguments can change the way he views medical practice.

Nonetheless, I do not start on a pessimistic note. I am hopeful. During the research for this book, I had an opportunity to read Larry R. Churchill's excellent book on rationing health care. The introduction to the book referred to an article that Howard Hiatt, former dean of the Harvard School of Public Health, had published in 1975 in the New England Journal of Medicine, concerning whose responsibility it was to protect the medical commons. Churchill believed that Hiatt was appealing to a moral sensibility that largely did not exist and still does not exist in the medical profession. He felt that Hiatt's challenging arguments had been largely ignored, and he feared that his book on justice in the health care system might also fall on deaf ears. Similar notions troubled me during the writing of this book.

Recently, I had an opportunity to speak with Hiatt. I related that Churchill had thought that his article on the commons had fallen on deaf ears. Hiatt reflected for a moment and then said that he had written quite a few articles during his medical career. Some of them had helped define ribose metabolism in human cells. He had also been a coauthor on the paper that first described messenger RNA. He related that none of these biochemical breakthroughs had generated the kind of interest within the profession that this article on the commons had. He seemed hopeful that physicians, even more now than in 1975, would listen and reflect on arguments concerning ethics and justice in health care.

One can only hope for the best. I do not by any means believe that this book has answers to many or even a few of the questions that trouble physicians, nurses, and medical care in general. I mean only to contribute to a debate on the appropriate role of ethics in medicine. Indeed, the important aspect of the work from my point of view is the debate. I believe that physicians must take responsibility. This means responsibility, not only for individual patients but also for the set of institutions that define medical care. To do nothing will mean that we will forfeit all responsibility. Thus, while I do not expect my argument to be regarded as a breakthrough in medical ethics, I do intend to stir debate and interest among health care workers, especially physicians, whether they are new interns or cynical and experienced practitioners. In this vein, I offer a notion of medical ethics as just doctoring.

I offer one final word of caution. As a physician, I have a tendency

to slide into physician-centric views of medicine. To a certain extent, this is appropriate, as much of what I argue is aimed at physicians. I do not hope to develop a theory of ethics for all health care workers and institutions; rather I am concerned about what is ethical for doctors. As will become clear, however, I believe professional ethics must be public, not a matter strictly defined by the profession itself. Therefore, it follows that all citizens, especially other health care workers, must help define physicians' ethics.

The plan of the book is as follows. In the first four chapters I develop an outline of the liberal state, and the place of medical ethics within it. This will require some summarizing of material that is quite familiar to the bioethicist, but quite foreign to a health care worker. In the following chapters I illustrate the notion of just doctoring by investigating a number of issues in health care that raise legal and ethical questions. I cannot examine every controversy that now arises in medical care— but I hope to have investigated enough difficult ones to reveal the advantages of medical ethics as just doctoring.