Saturday, October 3, 2009

69th Installment. What (the absence of) medical ethics can teach legal ethics

Medicine — which in California had its Drexel era back in 1991, inflicted by the Legislature — is ahead of law in the arbitrariness and malice of its policing mechanisms. The advanced morbidity of both medical ethics and its supposed enforcement holds lessons for the direction of legal ethics.

After the peer-review "reforms" of the late 80s and early 90s, peer-review process has increasingly dominated physician discipline. The "reforms" provide nearly absolute immunity for those accusing physicians and those adjudicating physicians' alleged infractions. Peer review can deny hospital privileges, often tantamount to professional annihilation because of the tight connections between the public and private discipline bodies.

Physicians who believe the Medical Board only prosecutes the totally disreputable physician or none at all are operating with a perception that is as outdated as the horse and buggy. Cases are arising against legitimate physicians with increasing frequency. To analogize the Medical Board to a medical test, it is sensitive but not specific. While more accusations are being filed, many should never have been charged. At the same time, some truly bad physicians continue to escape discipline.


The immunity of all involved in an accusatory process amounting to a trial unconstrained by any law of evidence has made the peer-review process a breeding ground for anticompetitive conspiracies and, particularly, the persecution of doctors who advocate for patients or retain a vestigial desire to practice competent medicine. The abuses against doctors with integrity have earned the designation "the disruptive doctor doctrine," under which whistleblowers who complain about the quality of care are tried on trumped up charges.

In my experience, it is never those physicians who regularly place patients at risk with questionable medical practices or outright negligence that are the ones who raise concerns about patient care. It is those hotheaded physicians who are passionate about patient care and the quality of medical treatment who raise hell, take their grievances to hospital administrations, and demand change. And unless these same physicians are economically valuable to the hospital and/or have considerable political clout then they might as well kiss their careers goodbye.

(C. Rangel, M.D. at

Corrupt medical-ethics' policing feeds from the initially low level of medical ethics, itself in part product of the number of students pursuing medical study hoping for enrichment, in part product of policing that was always guild oriented and never oriented to ethics based on patient loyalty — as many longstanding practices indicate; practical medical ethics accepts that physicians will shirk basic duties to their patients when in the physicians' interests. Practicing "defensive medicine," for example, has long been acceptable, even mandatory. In countenancing defensive medicine — certainly never disciplining it — physicians ratify methods that don't benefit, indeed, even harm the patient, at least causing inconvenience, often worse. The "defensive" physician is disloyal to his patient and probably lies to the patient about the tests' medical necessity. Spacing office visits for the sake of revenue collection — because, for some anachronistic reason, physician fees are tied to patient contact — is another professionally accepted practice that is disloyal to the patient. The patient is, again as a rule, lied to about the medical necessity of the contact but, increasingly, setting office visits for billing purposes is cynically accepted as realistic. ("Crackpot realism," in C. Wright Mills's phrase.) Looked at from an objective ethical standpoint — without succumbing to the root vice of community standards for a scientific activity — one should say that any doctor doing any of these things should be hauled before a medical board for moral turpitude in medical practice — if only medical ethics were about patients' interests or the doctor's fundamental honesty in patient dealings.

Deterioration in medical ethics accelerates. Most stunning have been the revelations that psychiatric pharmaceuticals are usually validated only by studies the drug companies finance, design, and control. This corruption implicates renowned professors at the nation's foremost teaching hospitals and medical schools. The defective policing of medical ethics has stemmed from hysterical reaction to real gaping defects in physicians' ethics but more directly from the refusal of physicians on peer-review panels to take ethical responsibility for patient welfare, the universal acceptance that peer-review panels will provide competent and sincere review only if the reviewers have immunity from any resulting civil litigation. The objective ethicist may ask why should physicians feel free to disregard their duties to patients and their duties of truthfulness in matters concerning patient welfare because of the possibility they may be sued for defamation? An incredible ethical laxity; if physicians participating on a peer-review panel lie about their conclusions to avoid possible litigation, this self-serving conduct is an ethical violation by any standard true to ethics' roots in loyalty to patient and honesty in matters affecting the patient's welfare.

The decline of medical ethics consists of disregard for loyalty to patient and honesty in matters involving patient welfare. The deterioration involves putting economic self-interest and institutional interest above patient loyalty and truthfulness, an emphasis not deflected by increasingly harsh physician discipline; indeed, furthered by discipline for the wrong offenses. Doctors are increasingly disciplined for failure unconnected with loyalty or truthfulness, the twin pillars of genuine professional ethics: in one typical instance a doctor was disciplined for failure to report what the authorities believed was child abuse of a patient's neighbor. (See, supra.) Harsh and arbitrary discipline meted out by the peer-review panels and medical boards reinforces physicians' disloyalty to patients by punishing doctors for failures of dual loyalty to third parties, including state authorities. The law analogy is disciplining attorneys because their conduct successfully advances their clients' interests: discipline to uphold the authority of judges and respect for bar.

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