10
Concluding Thoughts: Trust and Antitrust

In an effort to specify in some detail the nature of medical ethics as just doctoring, as well as the ethical duties of individual physicians, I have reached a number of conclusions. Some of these have been quite general. I have insisted that physicians continue to maintain a sense of altruism in medical practice, a notion that the patient comes first. Medical ethics as just doctoring expects that physicians will accept duties that are different, often more rigorous, than those undertaken by other individuals in the liberal state. Physicians must be committed to patients and must be willing to act on their behalf, even when this requires sacrifices we do not generally expect of citizens. Given that sick patients are often vulnerable, such altruism must be a norm in the medical profession.

In addition, I have reiterated that physicians must respect the negative freedom, the individual rights, of patients. For too long, physicians assumed that they had a broad prerogative to define the nature of the patient's medical care. Thus patients were denied informed consent. Physicians must realize that medical practice occurs in the liberal state and that this requires respect for the negative freedom of all individuals, including patients. Therefore, physicians should be committed to informed consent for individual patients. In addition, physicians should not assume that they have the power to decide when and if care should be limited.

Just doctoring also requires that physicians work together. Collaborative effort defines a profession. In addition, ethical imperatives

must be universalizable from the individual doctor-patient interaction to the broader class of both physicians and patients. Therefore, physicians' duties extend beyond duties to their own patients to the whole class of those who care and those they care for.

To say that just doctoring involves ethical commitments outside the individual doctor-patient relationship is not to limit the physician's altruistic commitment to her patient. Rather, medical ethics as just doctoring requires that physicians take extra steps, recognize extra duties. In short, physicians must study the institutions of medical care and develop information and alternatives that will benefit all patients.

In particular, I have argued that physicians should work together to develop information about the appropriateness and efficacy of procedures. To ignore the importance of this issue is to ignore the welfare of all patients. Furthermore, physicians should develop information about the quality of care. This requires that physicians, in addition to their altruistic commitment to their patients, should be willing to step forward and help assess whether or not the best quality care possible is provided at their particular institutions. Medical ethics as just doctoring requires physicians to pay attention to the institutional context of medical care and to take steps to improve the quality of care for all patients, not just their own patients.

The HIV epidemic demonstrates other principles that arise out of medical ethics as just doctoring. Physicians must band together to assure that access to medical care is available to all, and that individuals suffering from certain diseases, such as HIV infection, do not face irrational constraints on medical care. While the philosophical and moral basis for this proposition is the vulnerability of sick patients and the commitment of individual physicians to their patients, it results in a mandate for the medical profession to eliminate restraints on access that are based on patients' HIV seropositivity. Although physicians need not be saints, medical ethics as just doctoring demands that they address the fears that may lead to denial of care for people who suffer from HIV diseases. Thus imperatives that arise out of just doctoring include the need to maintain access and, if necessary, the need to address particular insurance relationships and benefit programs so that physicians who do care for patients infected with HIV are protected from the disasters of AIDS as an occupational illness.

Physicians must also be willing to address issues of access generally. When it appears that care must be limited, physicians should help society develop guidelines for comprehensive rationing. They should

not, of course, make individual rationing decisions themselves but should apply guidelines developed out of the social consensus. Moreover, physicians have a duty to uncover the rationing that is often not apparent in our present system of health care and to expose episodes in which individuals have been denied medical care because of indigency.

Physicians should also help society decide exactly what equitable access to health care involves, and what constitutes adequate health care. Indeed, physicians should be committed as a group to the provision of adequate levels of health care for all individuals. Given the notion that medical ethics converts medical care into a sphere of cooperative activity in the liberal state, one ethical proposition must be that health care at an adequate level is available to all. This is an imperative, an ethical imperative under just doctoring, for all physicians.

In addition to helping decide what the adequate level of health care is, physicians should participate in a debate on the appropriate institutions for health care. While just doctoring does not necessarily support one set of institutions as opposed to another, it does require that physicians address these issues with the altruism and commitment they apply to individual patients. In particular, physicians should assess the ways in which the market in medical care must be regulated, and consider whether government control of the financing of health care may better service the goal of universal adequate access.

The Role of the Medical Profession

The above list of ethical requirements represents no small task for the medical profession. Indeed, I take a very broad view of the ethics of the profession. Although I recognize that many will disagree, it seems to me that each of these imperatives arises out of the nature of medical ethics in the liberal state. Perhaps the most salient feature of what I have described as just doctoring is its demand for comprehensive and collaborative action by the medical profession. An organized profession will, in fact, be far more capable of undertaking the set of tasks outlined above than would a disjointed or loosen

organized profession. Is there a model for such an organized profession?

Some would say that the American Medical Association provides just this model. However, the AMA has rarely supported the sorts of ethical imperatives that arise out of just doctoring.1 The AMA has addressed, for instance, the ethics of broadening access to health care. However, it is opposed to thoroughgoing governmental intervention in medicine, whereas just doctoring is attracted to government control of health care financing and would, perhaps, embrace it if it would bring equitable access to health care up to an adequate level. The AMA has also tirelessly opposed quality control programs that impose outside peer review of individual physicians, another issue that just doctoring supports. Thus, it is hard to imagine the organized medical profession in the United States undertaking the goals of just doctoring.

This insight raises an important point. A variety of commentators have argued that physicians are most interested in maintaining their own prerogatives, their own broad base of positive freedom. For instance, Robert Clark (see chapter 8) has argued that the market should be emphasized in health care so as to limit professional efforts to exact profits from the hospital (a physicians' cooperative). Some economists have supported this notion. Many in government believe that health care reforms must be premised on limits on the power of physicians. These positions evince a general skepticism about physician commitment to the welfare of patients as a group. Indeed, some may argue that the American Medical Association, and likely physicians in general, will attempt to block any progressive reforms in health care, suggesting that the profession is not trusted by some members of society.

There are reasons for the lack of trust. One of the best ways to understand it—the pun is unavoidable—is through a review of antitrust proceedings in medical care. This book is not the place to make a comprehensive analysis of antitrust law. Rather, our interest in antitrust law is to illustrate some of the bases for the distrust of the medical profession.

P. Areeda and D. F. Turner provide us with an excellent summary. of the central aspects of antitrust laws.2 They quote the Supreme Court on the object of the antitrust laws: "Congress was dealing with competition, which it ought to protect, and monopoly, which it sought to prevent."3 The economic objectives of the antitrust laws are,

however, somewhat more complex than this simple statement communicates. In particular, Areeda and Turner note that the objective of a procompetitive policy is

to maximize consumer economic welfare through efficiency in the use and allocation of scarce resources and via progressiveness in the development of new productive techniques and new products that put those resources to better use. At the same time, competitive policy also promotes "populist" goals that are commonly thought important. It disburses wealth; limits business size; broadens entrepreneurial opportunities; and substitutes the impersonal forces of the marketplace for the economic power of private individuals or groups to exploit or coerce those with whom they deal.4

They also argue, however, that courts usually give priority to competition over justifications for restrictive agreements that rest on concerns about economic distress, In addition, courts usually favor efficiency over those goals that might be considered more populist. Finally, when the choice is between competition and efficiency, the courts usually choose efficiency. Thus antitrust law is meant to promote competition but primarily when competition supports an efficient marketplace.5

The role that these laws play in the health care industry are instructive, for they demonstrate again the way in which courts have viewed the medical profession. In particular, antitrust litigation in health care shows the suspicion courts harbor toward the anticompetitive power of the medical profession. Therefore, populist tendencies of antitrust litigation tend to be emphasized in rulings on health care.

Antitrust litigation in the health care area is not new. As we have discussed, the Federal Trade Commission instituted antitrust suits against the American Medical Association several times in the 1930s and 1940s, largely as a result of interference from the organized profession in the development of prepaid group practices. However, through much of the century, the practice of learned professions was not thought to be commerce and thus was exempt from antitrust laws. In 1975, the Supreme Court decided that the practice of law could be subject to antitrust scrutiny in the case of Goldfarb v. Virginia State Bar.6 Since then, the federal government has consistently subjected medical practice to antitrust scrutiny. Moreover, as procompetitive initiatives grow in medical care, antitrust plays a larger and larger role. An analysis of two key areas of antitrust litigation will demonstrate that the law as integrity and the American liberal state continue to

distrust the medical profession and seek to curb the positive freedom of the profession.

Consider first the role of antitrust litigation in peer review. As discussed in chapter 6, peer review should be an important part of the medical profession's commitment to good quality care. Individual physicians should scrutinize the practice of other physicians, and those who have provided poor care should be educated or sanctioned. However, peer review can be a two-way street. If not done in a careful and ethical fashion, peer review can be used to discriminate against potential competitors. For instance, a powerful group of surgeons may decide they are facing too much competition from another surgeon. One way to remove this competition would be to subject the competing surgeon to unnecessary peer review.

We can see these sorts of tactics in the case of Dr. Timothy Patrick, a surgeon who worked in the Astoria Clinic in Astoria, Oregon. Dr. Patrick had joined a group practice.7 He had eleven colleagues, including one other surgeon. He was paid a certain amount but billed a much larger amount. To increase his income, he requested that he receive as compensation a larger percentage of the total amount he was billing. The other practitioners refused. As a result, Dr. Patrick moved out of the Astoria Clinic and into practice by himself.

Thereafter occurred a series of events that eventually gave rise to a great deal of litigation. Practitioners at the Astoria Clinic and at Columbia Memorial Hospital alleged that Dr. Patrick was incompetent and frequently endangered patients in his medical practice. Dr. Patrick in turn alleged that the care he gave was consistently good, and that the concerns of the other physicians were with his status as a comPetitor, rather than with the quality of his practice. After a long series of charges and countercharges, Dr. Patrick sued for relief under the federal antitrust laws. He was awarded two million dollars following a jury trial, but the defendants appealed to the United States Circuit Court of Appeals, which overturned the jury verdict.8

Patrick's lawyers appealed to the Supreme Court, and in 1988 the Supreme Court ruled that Patrick had been a victim of antitrust violations by the other physicians in the clinic and his jury. verdict and award were reinstated.9 The Supreme Court was very clear that peer review had to be carried out in good faith and that the court would not tolerate hidden efforts to decrease competition.

Congress has now passed legislation that it hopes will promote peer review in spite of the Patrick decision.10 Nonetheless, participants in

peer review programs must be careful that their focus is strictly on the quality of care and not on more personal concerns.11 The Patrick decision indicates that while society believes that peer review is important and that it leads to better quality care, they are also suspicious of physicians' efforts to control the practice of medicine through elimination of competitors.

This fear of the medical profession's monopolistic tendencies is also seen in cases regarding staff privileges. A good example is the case of Weiss v. Y ork Hospital.12 In this case, Weiss, the plaintiff, was an osteopath who was denied staff privileges at a hospital in Pennsylvania. Dr. Weiss alleged that his training was equivalent to the training received by medical doctors and that the refusal of the hospital to grant him privileges was motivated by competitive interests rather than by a real concern about his credentials or capacity to practice medicine. While the litigation focused to a large extent on the history of discrimination against osteopathic doctors and the overall market dominance of the defendant hospital, of critical importance to the plaintiffs case was the high-handed treatment that Dr. Weiss and his colleagues received from the medical staff executive committee at the defendant hospital.

While we have not discussed the issue of credentialing in great detail in this book, that process is one of the means by which a medical staff controls the quality of the care rendered at its hospital. Credentialing committees of hospitals review the applications of individuals who wish to practice at those hospitals and exclude those who might render poor care. In addition, these committees recredential physicians over time, again examining the quality of the practitioner. While this is a legitimate function, it can be used to monopolize access to hospitals and decrease competition. In more theoretical terms, it can be used as a way to increase the positive freedom of the physicians who are already practicing at a hospital and decrease the negative freedom of individual patients as consumers who might want to have their care provided by doctors who have not yet been credentialed.

It should be clear that courts will prohibit antitrust activities that occur under the guise of credentialing. In Weiss v. Y ork Hospital, the court found that there was no legitimate basis for excluding osteopathic physicians from the staff and that the only rationale for such exclusion would be that staff physicians did not want any further competition. Again we see the law as integrity, the law of the liberal state, questioning the motives of physicians and ultimately finding it neces-

sary to restrict the positive freedom of the profession. Some commentators, especially those who have long been suspicious of the medical profession's power, have continued to urge greater and broader applications of antitrust scrutiny in medical care.13 They argue that it is necessary to limit the power of the medical profession if we are to bring about a better quality health care system in this country. It is clear, then, that antitrust litigation in health care demonstrates a certain distrust of the monopolistic power of the medical profession.

These commentators have a valid point of view, and there is little doubt it conflicts with the ethical imperatives created by just doctoring. Medical ethics as just doctoring creates a broad mandate for individual physicians and the profession as a whole to become more involved in political, legal, and economic issues in medicine. In contrast, those who argue that the medical profession's power must be controlled would no doubt require limits on the ability of physicians to address such issues. This conflict is not easily resolved. While from the point of view of just doctoring, I might urge that it is an ethical violation for physicians to engage in any activities that might increase monopoly power or decrease competition, clearly I am in favor of concerted action by the medical profession to bring about a better set of health care institutions. Others may reasonably fear that physicians will, in the name of ethics and commitment to better care, use this campaign to forward their own interests. Thus, while I urge a broader ethical agenda for physicians and base it on altruistic notions of the relationships between doctors and patients, others will argue that physicians will choose to modify purportedly ethical activity to their own advantage.

In essence, antitrust litigation against physicians, like many of the legal issues in medicine we have reviewed, reveals a need to decrease physicians' power and a need to increase the negative freedom of individual patients. Nevertheless, I have advocated generally greater efforts by physicians to involve themselves in political and legal issues in medicine. I maintain that rather than assuming the posture of mere technicians, physicians have an ethical duty to address issues of the organization of medical care and to take an active part in determining its structure. Even though I argue that this ethical duty is very much different from the ethical duties physicians may have assumed in the past, and I have tried to make medical ethics consistent with the liberal state, many might say that just doctoring simply creates greater opportunities for physicians' abuse of monopolistic power.

I recognize that these are serious objections to the theory of medical ethics as just doctoring. How do I answer them? On the one hand, I might argue that patients should trust the altruistic commitment of physicians and physicians' renewed understanding of what it means to be ethical in the practice of medicine. On the other hand, this may not be enough. Therefore, this question remains: How can patients be assured that physicians will assume a truly ethical stance consistent with just doctoring and not merely, as it appears they have in the past, turn these ethical propositions to their own advantage?

One answer obviously is education. Applications to medical schools have decreased greatly over the past decade. Perhaps students have begun to realize that physicians do not have the power they once had within the health care system, or perhaps they feel that medicine is less gratifying than it once was. I am optimistic, and I believe that those individuals who were interested in medicine only because they were interested in the economic gain have now decided upon other careers. This suggests that those who are now going to medical school are much more open to understanding the ethical nature of medical practice and thus could be trained to become just doctors. I hope this is the case.

In addition to educating students, medical societies and professional organizations must begin to debate the variety of issues discussed herein. Central, I have argued, must be the tenet that physicians move away from positions defined by their economic self-interest, and toward those more in alignment with the good of patients. Physicians must give up control, especially in economic decision making, and become patient advocates. This may be asking too much—I am unsure that it can occur.

What I am sure about is that medical practice and health institutions in this country are changing. Ethical physicians must address these changes and realize that traditional medical ethics is as outdated as the notion of an individual practitioner working in a fee-for-service arrangement in which there is no concern about health care cost. Medical care is changing and I believe that medical ethics must also change. I offer the notion of just doctoring as one point of view for a new medical ethics.