This article was downloaded by: [North Dakota State University] On: 28 February 2015, At: 22:21 Publisher: Routledge Informa Ltd Registered in England and Wales Registered Number: 1072954 Registered office: Mortimer House, 37-41 Mortimer Street, London W1T 3JH, UK
The American Journal of Bioethics Publication details, including instructions for authors and subscription information: http://www.tandfonline.com/loi/uajb20
When Professional Obligations Collide: Context Matters a
Kathryn M. Ross & Elizabeth Bernabeo
a
a
American Board of Internal Medicine Published online: 15 Aug 2014.
Click for updates To cite this article: Kathryn M. Ross & Elizabeth Bernabeo (2014) When Professional Obligations Collide: Context Matters, The American Journal of Bioethics, 14:9, 38-40, DOI: 10.1080/15265161.2014.935888 To link to this article: http://dx.doi.org/10.1080/15265161.2014.935888
PLEASE SCROLL DOWN FOR ARTICLE Taylor & Francis makes every effort to ensure the accuracy of all the information (the “Content”) contained in the publications on our platform. However, Taylor & Francis, our agents, and our licensors make no representations or warranties whatsoever as to the accuracy, completeness, or suitability for any purpose of the Content. Any opinions and views expressed in this publication are the opinions and views of the authors, and are not the views of or endorsed by Taylor & Francis. The accuracy of the Content should not be relied upon and should be independently verified with primary sources of information. Taylor and Francis shall not be liable for any losses, actions, claims, proceedings, demands, costs, expenses, damages, and other liabilities whatsoever or howsoever caused arising directly or indirectly in connection with, in relation to or arising out of the use of the Content. This article may be used for research, teaching, and private study purposes. Any substantial or systematic reproduction, redistribution, reselling, loan, sub-licensing, systematic supply, or distribution in any form to anyone is expressly forbidden. Terms & Conditions of access and use can be found at http:// www.tandfonline.com/page/terms-and-conditions
American Journal of Bioethics
That’s why the ethical practice of any profession is ultimately a balancing act. The job of bioethicists, then, is not to define away all dilemmas but, instead, to help practitioners recognize irresolvable conflicts and give them the tools to make wise judgments. &
REFERENCE Tilburt, J. C. 2014. Addressing dual agency: Getting specific about the expectations of professionalism. American Journal of Bioethics 14 (9): 29–36.
When Professional Obligations Collide: Context Matters Downloaded by [North Dakota State University] at 22:21 28 February 2015
Kathryn M. Ross, American Board of Internal Medicine Elizabeth Bernabeo, American Board of Internal Medicine In “Addressing Dual Agency: Getting Specific About the Expectations of Professionalism,” Tilburt (2014) highlights how the ABIM Physician Charter may fail to guide physicians to arrive at informed decisions in the event of conflicting professional obligations. Upon reflecting on Tilburt’s suggestions for addressing dual agency through prioritization, specification, and role morality, we caution that our work supports the notion that professionalism is nearly always gray due to context. When we explored practicing internists’ reasoning in their perceived handling of typical challenges to professionalism, we discovered that physicians act upon a set of rules or guiding principles when encountering challenges to professionalism, but that these rules or principles are context dependent. We therefore argue that context has such a critical influence on individuals’ responses to professionalism challenges—potentially leading physicians to any one of several “right” decisions— that addressing dual agency by offering specific ways to handle conflicting obligations is not always feasible. First, we posit that professional codes are not designed to be all-encompassing, nor are they intended to suggest “the ideal way” for physicians collectively to handle the conundrum of dual agency. Frustration toward professional codes may exist because critics do not view them as guidelines to be applied on a case-by-case basis. There are varying stances on the subject: Veatch (2012) is against the acceptability of any professional code, while Levine (1993) and to some extent Tilburt (2014) argue the need for a “workable” code of professional ethics. Levine (1993) calls for a normative code that requires acceptance of two prerequisites: (1) emphasis on reality and (2) intelligence in order to comprehend the reality. These two prerequisites for a workable professional code may be helpful as we think critically about Tilburt’s conundrum of dual agency. To begin, we believe that codes such as the ABIM Physician Charter are intended as guidelines for living in reality
as professionals in the field of medicine. In reality, it would be difficult for any individual to fulfill the expectations of codes of professionalism, because we are human and susceptible to relativity and human error. There may also be gaps between the values or attributes physicians believe to be important for professional behavior, and how these values or attributes play out in professional behavior. Moreover, physicians and patients experience and share different personal narratives. Thus, to suggest that a professional code can offer guidance that is both universal and specific enough to address every challenge is a lofty, if not impossible, goal. The issue of context is also important here. Context has a critical influence on individuals’ behavior and is essential to understanding lapses in professionalism (Ginsburg et al., 2000). Campbell and colleagues (2007) have illustrated that gaps do exist between what physicians endorse as important to professionalism, and how they actually act in practice. In one study by DeRoches and colleagues (2010), the reasons physicians cited for not acting in accordance with their own self-endorsed values (e.g., reporting an impaired colleague) included a belief that someone else would take care of the issue, a belief that nothing would change, and fear of retribution. There may be other ways to think about why physicians may not act in accordance with their professional values and beliefs. Do they modify responsibilities outlined by the ABIM Physician Charter and other professional codes, and if so, how frequently or typically? What kinds of situations might prompt this behavior? How do physicians balance conflicting obligations across a spectrum of professional challenges? In one of our studies, we explored how and why practicing physicians respond to a set of professional challenges (Ginsburg et al. 2012). Our goal was to develop a better understanding of how physicians view these challenges, how they come to decisions about how to act, and what factors influence these decisions.
Ó American Board of Internal Medicine Address correspondence to Kathryn M. Ross, American Board of Internal Medicine, 510 Walnut Street, Suite 1700, Philadelphia, PA 19106, USA. E-mail: [email protected]
38 ajob
September, Volume 14, Number 9, 2014
Downloaded by [North Dakota State University] at 22:21 28 February 2015
Dual Agency and Expectations of Professionalism
Our analysis identified a set of guiding principles that physicians used in the face of typical professional challenges. These principles were not identified as “ideal” principles to draw upon in such challenges; they simply suggested mechanisms for understanding how physicians thought about their responses. We also identified a list of factors that appeared to modify how participants interpreted and acted on these principles. In other words, participants articulated how they might think about and respond to situations quite differently depending on certain factors, the most important of which were the type of patient and the nature of the illness or request (Ginsburg et al. 2012; Ginsburg, Bernabeo, and Holmboe 2014). Thus, while physicians frequently make reference to principles that guide their behavior in professional challenges, their responses may change across scenarios. Therefore, the assumption that there is one single, universal “right” or “correct” response across situations, even perhaps within an individual across these situations, is not entirely justified. Our work suggests that physicians vary in their responses to professional dilemmas, and that this variability is reflective of the current reality in the field of medicine. Regarding Levine’s second prerequisite for a workable professional code, intelligence in order to comprehend the reality, we assert that physicians must first understand and reflect on their own professional beliefs and values. Through reflection, physicians should be able to connect with their feelings, emotions, and prior experiences used to attend to a challenging situation, with one goal of discovering how one’s knowing in action may have contributed to a specific outcome (Schon 1983). While ongoing work of ours explores reflection in an individual setting (Bernabeo et al. 2014), we did identify a level of reflection generated by the open and supportive discussion within a group setting in earlier work. While we acknowledge the limitations of physicians to self-assess (Davis 2006), we do believe that there is potential to further explore the use of critical reflection among peers as a way to enable professionalism in practice. There need to be more fruitful opportunities for physicians engage in reflection and to allow them to routinely self-assess values and beliefs and reflect on how they behave under circumstances of dual agency. It is equally as important to develop a more indepth appreciation of the professional challenges that physicians face in their day-to-day practices. Helping physicians identify not only what the “right” response to these challenges may be (that may not even exist in an absolute sense), but also the “best” response given the situation in which they find themselves is one way to continually assess how physicians negotiate competing professional obligations and contextual factors to produce professional behavior. Doing so will help the medical community understand why physicians may or may not endorse elements of the ABIM Physician Charter and why they may endorse them in theory but not act in accordance with them in actual practice. Drawing from these two arguments, which outline the many contextual factors that affect physicians’ ability to
September, Volume 14, Number 9, 2014
manage dual agency, we believe that the ABIM Physician Charter may fall short in an attempt to offer concrete ways for physicians to act in scenarios of dual agency. What may be “right” for one physician in one scenario may be only “slightly right” for another physician in the same scenario, or even completely wrong another physician (Ginsburg et al. 2014). The “right” decision may also change over time due to gained perspective as a practicing physician, changing clinical guidelines, patient context, and other unpredictable demands. Rather than addressing dual agency through offering specific ways to handle conflicting obligations, such as in the ABIM Physician Charter, we have argued that other priorities, such as acceptance of the reality of professionalism often being gray due to context, knowledge of and reflection on one’s beliefs and values, and understanding of mechanisms for recognizing situations presenting dual agency, must first take place in order to achieve this goal. The “expectations of professionalism” are probably seen in this light because we as a medical profession have not yet sufficiently addressed these important emerging and foundational issues. Expanding our focus to include not just behaviors and principles outlined in professional codes, but also the context in which they occur, is critically important for understanding professionalism in practicing physicians. Moreover, when offering specific approaches on recognizing and handling instances of dual agency, we must be explicit that looking to professional codes for answers may offer clarity for some physicians in some scenarios, but individual physicians must ultimately learn to become aware of and negotiate their values themselves. Physicians should be supported to become aware of how they act professionally may be a complex, context-dependent algorithm that draws upon both guiding principles and interacting contextual factors. They should also be supported to use this information as they are encouraged to act consistently across a diverse practice setting riddled with diverse professional situations. Physicians collectively may not act consistently when approaching professional challenges, but as long as physicians take action to reflect on their own practices and identify which values they strive to uphold, we can better depend on physicians to act as thoughtful, autonomous, professional individuals who can determine which practice-based elements might trigger lapses in professional behavior. &
REFERENCES Bernabeo, E. C., S. G. Reddy, S. Ginsburg, and E. S. Holmboe. 2014. Professionalism and maintenance of certification: Using vignettes describing interpersonal dilemmas to stimulate reflection and learning. Journal of Continuing Education in the Health Profession. 34 (2): 112–122. Campbell, E. G., S. Regan, R. L. Gruen, et al. 2007. Professionalism in medicine: Results of a national survey of physicians. Annals of Internal Medicine 147: 795–802.
ajob 39
American Journal of Bioethics
Davis, D. A., P. E. Mazmanian, M. Fordis. M., et al. 2006. Accuracy of physician self-assessment compared with observed measures of competence: A systematic review. Journal of the American Medical Association 296(9): 1094–1102. DesRoches, C. M., S. R. Rao, J. A. Fromson, et al. 2010. Physicians’ perceptions, preparedness for reporting, and experiences related to impaired and incompetent colleagues. Journal of the American Medical Association 304: 187–193. Ginsburg, S., E. Bernabeo, K. Ross, and E. Holmboe. 2012. “It depends”: Results of a qualitative study investigating how practicing internists approach professional dilemmas. Academy of Medicine 87(12): 1685–1693.
Downloaded by [North Dakota State University] at 22:21 28 February 2015
Ginsburg, S., E. Bernabeo, and E. Holmboe. 2014. Doing what might be “wrong”: Understanding internists’
responses to professional challenges. Academy of Medicine 89 (4): 664–670. Ginsburg, S., G. Regehr, R. Hatala, et al. 2000. Context, conflict, and resolution: A new conceptual framework for evaluating professionalism. Academy of Medicine 75(10 suppl.): S6–S11. Levine, M. 1993. Professionalism: The need for a workable code of ethics. IEEE Potentials 13(3): 5–7. Schon, D. (1983). The reflective practitioner. New York, NY: Basic Books. Tilburt, J. C. 2014. Addressing dual agency: Getting specific about the expectations of professionalism. American Journal of Bioethics 14 (9): 29–36. Veatch, R. M. 2012. Hippocratic, religious, and secular medical ethics: The points of conflict. Washington, DC: Georgetown University Press.
Legal Barriers to Physicians’ Stewardship Role Jessica Mantel, University of Houston Law Center Dr. Tilburt’s provocative essay (2014) rightly argues that current tenets of professionalism fail to provide physicians with specific guidance on how to reconcile their competing responsibilities—promoting patient welfare and ensuring the just allocation of health care resources. Revising the moral tenets of professionalism, however, will mean little if the law frustrates physicians’ performance of their dual roles by requiring physicians to give primacy to individual patient’s welfare. This commentary discusses two areas of American law that erect legal barriers to physicians’ stewardship role: the medical malpractice system and informed patient consent.
THE MALPRACTICE SYSTEM AS A BARRIER TO PHYSICIANS’ DUAL AGENCY ROLE The medical malpractice system performs the important function of determining whether a physician’s provision of medical care constitutes negligence. The quality standards that establish the boundary between minimally necessary care and optional care, however, generally ignore cost considerations. Physicians fearful of malpractice liability therefore may be reluctant to compromise patient care in the name of cost containment. A physician will be liable for malpractice if the plaintiff establishes that the physician failed to exercise reasonable care. In determining whether care was reasonable, courts typically defer to the medical profession’s customary
practices. The respectable minority rule, however, recognizes departures from customary practices as reasonable when regarded by the profession as “respectable” and/or embraced by a considerable number of physicians (Dobbs et al. 2013). Although some contend that physicians’ customary practices may incorporate cost-sensitive practices (Hall 1989), countervailing factors encourage costly, technology-driven practice patterns. Many physicians are paid in whole or in part on a fee-for-service basis that rewards providers for doing more. Technological innovations often rapidly become the norm as a result of physicians’ desire to be on the cutting edge and their commitment to give their patients the best possible care. In addition, physicians fearful of lawsuits may engage in the defensive practice of medicine, with physicians’ customary practices then reflecting the defensive administration of medical care. The respectable minoity rule also offers little protection to the cost-conscious physician, as the rule is meant to accommodate legitimate scientific disagreements within the medical profession. Consequently, the doctrine may not permit departures from custom based on cost–benefit grounds, particularly when many in the medical profession regard as disreputable cost-conscious practices that sacrifice patients’ best interests (Blumstein, 2002). Current malpractice law thus poses significant risks for the costconscious physician, risks that may deter physicians from acting as prudent stewards of health resources.
Address correspondence to Jessica Mantel, University of Houston Law Center, 100 Law Center, Houston, TX 77204, USA. E-mail: [email protected]
40 ajob
September, Volume 14, Number 9, 2014
The American Journal of Bioethics Publication details, including instructions for authors and subscription information: http://www.tandfonline.com/loi/uajb20
When Professional Obligations Collide: Context Matters a
Kathryn M. Ross & Elizabeth Bernabeo
a
a
American Board of Internal Medicine Published online: 15 Aug 2014.
Click for updates To cite this article: Kathryn M. Ross & Elizabeth Bernabeo (2014) When Professional Obligations Collide: Context Matters, The American Journal of Bioethics, 14:9, 38-40, DOI: 10.1080/15265161.2014.935888 To link to this article: http://dx.doi.org/10.1080/15265161.2014.935888
PLEASE SCROLL DOWN FOR ARTICLE Taylor & Francis makes every effort to ensure the accuracy of all the information (the “Content”) contained in the publications on our platform. However, Taylor & Francis, our agents, and our licensors make no representations or warranties whatsoever as to the accuracy, completeness, or suitability for any purpose of the Content. Any opinions and views expressed in this publication are the opinions and views of the authors, and are not the views of or endorsed by Taylor & Francis. The accuracy of the Content should not be relied upon and should be independently verified with primary sources of information. Taylor and Francis shall not be liable for any losses, actions, claims, proceedings, demands, costs, expenses, damages, and other liabilities whatsoever or howsoever caused arising directly or indirectly in connection with, in relation to or arising out of the use of the Content. This article may be used for research, teaching, and private study purposes. Any substantial or systematic reproduction, redistribution, reselling, loan, sub-licensing, systematic supply, or distribution in any form to anyone is expressly forbidden. Terms & Conditions of access and use can be found at http:// www.tandfonline.com/page/terms-and-conditions
American Journal of Bioethics
That’s why the ethical practice of any profession is ultimately a balancing act. The job of bioethicists, then, is not to define away all dilemmas but, instead, to help practitioners recognize irresolvable conflicts and give them the tools to make wise judgments. &
REFERENCE Tilburt, J. C. 2014. Addressing dual agency: Getting specific about the expectations of professionalism. American Journal of Bioethics 14 (9): 29–36.
When Professional Obligations Collide: Context Matters Downloaded by [North Dakota State University] at 22:21 28 February 2015
Kathryn M. Ross, American Board of Internal Medicine Elizabeth Bernabeo, American Board of Internal Medicine In “Addressing Dual Agency: Getting Specific About the Expectations of Professionalism,” Tilburt (2014) highlights how the ABIM Physician Charter may fail to guide physicians to arrive at informed decisions in the event of conflicting professional obligations. Upon reflecting on Tilburt’s suggestions for addressing dual agency through prioritization, specification, and role morality, we caution that our work supports the notion that professionalism is nearly always gray due to context. When we explored practicing internists’ reasoning in their perceived handling of typical challenges to professionalism, we discovered that physicians act upon a set of rules or guiding principles when encountering challenges to professionalism, but that these rules or principles are context dependent. We therefore argue that context has such a critical influence on individuals’ responses to professionalism challenges—potentially leading physicians to any one of several “right” decisions— that addressing dual agency by offering specific ways to handle conflicting obligations is not always feasible. First, we posit that professional codes are not designed to be all-encompassing, nor are they intended to suggest “the ideal way” for physicians collectively to handle the conundrum of dual agency. Frustration toward professional codes may exist because critics do not view them as guidelines to be applied on a case-by-case basis. There are varying stances on the subject: Veatch (2012) is against the acceptability of any professional code, while Levine (1993) and to some extent Tilburt (2014) argue the need for a “workable” code of professional ethics. Levine (1993) calls for a normative code that requires acceptance of two prerequisites: (1) emphasis on reality and (2) intelligence in order to comprehend the reality. These two prerequisites for a workable professional code may be helpful as we think critically about Tilburt’s conundrum of dual agency. To begin, we believe that codes such as the ABIM Physician Charter are intended as guidelines for living in reality
as professionals in the field of medicine. In reality, it would be difficult for any individual to fulfill the expectations of codes of professionalism, because we are human and susceptible to relativity and human error. There may also be gaps between the values or attributes physicians believe to be important for professional behavior, and how these values or attributes play out in professional behavior. Moreover, physicians and patients experience and share different personal narratives. Thus, to suggest that a professional code can offer guidance that is both universal and specific enough to address every challenge is a lofty, if not impossible, goal. The issue of context is also important here. Context has a critical influence on individuals’ behavior and is essential to understanding lapses in professionalism (Ginsburg et al., 2000). Campbell and colleagues (2007) have illustrated that gaps do exist between what physicians endorse as important to professionalism, and how they actually act in practice. In one study by DeRoches and colleagues (2010), the reasons physicians cited for not acting in accordance with their own self-endorsed values (e.g., reporting an impaired colleague) included a belief that someone else would take care of the issue, a belief that nothing would change, and fear of retribution. There may be other ways to think about why physicians may not act in accordance with their professional values and beliefs. Do they modify responsibilities outlined by the ABIM Physician Charter and other professional codes, and if so, how frequently or typically? What kinds of situations might prompt this behavior? How do physicians balance conflicting obligations across a spectrum of professional challenges? In one of our studies, we explored how and why practicing physicians respond to a set of professional challenges (Ginsburg et al. 2012). Our goal was to develop a better understanding of how physicians view these challenges, how they come to decisions about how to act, and what factors influence these decisions.
Ó American Board of Internal Medicine Address correspondence to Kathryn M. Ross, American Board of Internal Medicine, 510 Walnut Street, Suite 1700, Philadelphia, PA 19106, USA. E-mail: [email protected]
38 ajob
September, Volume 14, Number 9, 2014
Downloaded by [North Dakota State University] at 22:21 28 February 2015
Dual Agency and Expectations of Professionalism
Our analysis identified a set of guiding principles that physicians used in the face of typical professional challenges. These principles were not identified as “ideal” principles to draw upon in such challenges; they simply suggested mechanisms for understanding how physicians thought about their responses. We also identified a list of factors that appeared to modify how participants interpreted and acted on these principles. In other words, participants articulated how they might think about and respond to situations quite differently depending on certain factors, the most important of which were the type of patient and the nature of the illness or request (Ginsburg et al. 2012; Ginsburg, Bernabeo, and Holmboe 2014). Thus, while physicians frequently make reference to principles that guide their behavior in professional challenges, their responses may change across scenarios. Therefore, the assumption that there is one single, universal “right” or “correct” response across situations, even perhaps within an individual across these situations, is not entirely justified. Our work suggests that physicians vary in their responses to professional dilemmas, and that this variability is reflective of the current reality in the field of medicine. Regarding Levine’s second prerequisite for a workable professional code, intelligence in order to comprehend the reality, we assert that physicians must first understand and reflect on their own professional beliefs and values. Through reflection, physicians should be able to connect with their feelings, emotions, and prior experiences used to attend to a challenging situation, with one goal of discovering how one’s knowing in action may have contributed to a specific outcome (Schon 1983). While ongoing work of ours explores reflection in an individual setting (Bernabeo et al. 2014), we did identify a level of reflection generated by the open and supportive discussion within a group setting in earlier work. While we acknowledge the limitations of physicians to self-assess (Davis 2006), we do believe that there is potential to further explore the use of critical reflection among peers as a way to enable professionalism in practice. There need to be more fruitful opportunities for physicians engage in reflection and to allow them to routinely self-assess values and beliefs and reflect on how they behave under circumstances of dual agency. It is equally as important to develop a more indepth appreciation of the professional challenges that physicians face in their day-to-day practices. Helping physicians identify not only what the “right” response to these challenges may be (that may not even exist in an absolute sense), but also the “best” response given the situation in which they find themselves is one way to continually assess how physicians negotiate competing professional obligations and contextual factors to produce professional behavior. Doing so will help the medical community understand why physicians may or may not endorse elements of the ABIM Physician Charter and why they may endorse them in theory but not act in accordance with them in actual practice. Drawing from these two arguments, which outline the many contextual factors that affect physicians’ ability to
September, Volume 14, Number 9, 2014
manage dual agency, we believe that the ABIM Physician Charter may fall short in an attempt to offer concrete ways for physicians to act in scenarios of dual agency. What may be “right” for one physician in one scenario may be only “slightly right” for another physician in the same scenario, or even completely wrong another physician (Ginsburg et al. 2014). The “right” decision may also change over time due to gained perspective as a practicing physician, changing clinical guidelines, patient context, and other unpredictable demands. Rather than addressing dual agency through offering specific ways to handle conflicting obligations, such as in the ABIM Physician Charter, we have argued that other priorities, such as acceptance of the reality of professionalism often being gray due to context, knowledge of and reflection on one’s beliefs and values, and understanding of mechanisms for recognizing situations presenting dual agency, must first take place in order to achieve this goal. The “expectations of professionalism” are probably seen in this light because we as a medical profession have not yet sufficiently addressed these important emerging and foundational issues. Expanding our focus to include not just behaviors and principles outlined in professional codes, but also the context in which they occur, is critically important for understanding professionalism in practicing physicians. Moreover, when offering specific approaches on recognizing and handling instances of dual agency, we must be explicit that looking to professional codes for answers may offer clarity for some physicians in some scenarios, but individual physicians must ultimately learn to become aware of and negotiate their values themselves. Physicians should be supported to become aware of how they act professionally may be a complex, context-dependent algorithm that draws upon both guiding principles and interacting contextual factors. They should also be supported to use this information as they are encouraged to act consistently across a diverse practice setting riddled with diverse professional situations. Physicians collectively may not act consistently when approaching professional challenges, but as long as physicians take action to reflect on their own practices and identify which values they strive to uphold, we can better depend on physicians to act as thoughtful, autonomous, professional individuals who can determine which practice-based elements might trigger lapses in professional behavior. &
REFERENCES Bernabeo, E. C., S. G. Reddy, S. Ginsburg, and E. S. Holmboe. 2014. Professionalism and maintenance of certification: Using vignettes describing interpersonal dilemmas to stimulate reflection and learning. Journal of Continuing Education in the Health Profession. 34 (2): 112–122. Campbell, E. G., S. Regan, R. L. Gruen, et al. 2007. Professionalism in medicine: Results of a national survey of physicians. Annals of Internal Medicine 147: 795–802.
ajob 39
American Journal of Bioethics
Davis, D. A., P. E. Mazmanian, M. Fordis. M., et al. 2006. Accuracy of physician self-assessment compared with observed measures of competence: A systematic review. Journal of the American Medical Association 296(9): 1094–1102. DesRoches, C. M., S. R. Rao, J. A. Fromson, et al. 2010. Physicians’ perceptions, preparedness for reporting, and experiences related to impaired and incompetent colleagues. Journal of the American Medical Association 304: 187–193. Ginsburg, S., E. Bernabeo, K. Ross, and E. Holmboe. 2012. “It depends”: Results of a qualitative study investigating how practicing internists approach professional dilemmas. Academy of Medicine 87(12): 1685–1693.
Downloaded by [North Dakota State University] at 22:21 28 February 2015
Ginsburg, S., E. Bernabeo, and E. Holmboe. 2014. Doing what might be “wrong”: Understanding internists’
responses to professional challenges. Academy of Medicine 89 (4): 664–670. Ginsburg, S., G. Regehr, R. Hatala, et al. 2000. Context, conflict, and resolution: A new conceptual framework for evaluating professionalism. Academy of Medicine 75(10 suppl.): S6–S11. Levine, M. 1993. Professionalism: The need for a workable code of ethics. IEEE Potentials 13(3): 5–7. Schon, D. (1983). The reflective practitioner. New York, NY: Basic Books. Tilburt, J. C. 2014. Addressing dual agency: Getting specific about the expectations of professionalism. American Journal of Bioethics 14 (9): 29–36. Veatch, R. M. 2012. Hippocratic, religious, and secular medical ethics: The points of conflict. Washington, DC: Georgetown University Press.
Legal Barriers to Physicians’ Stewardship Role Jessica Mantel, University of Houston Law Center Dr. Tilburt’s provocative essay (2014) rightly argues that current tenets of professionalism fail to provide physicians with specific guidance on how to reconcile their competing responsibilities—promoting patient welfare and ensuring the just allocation of health care resources. Revising the moral tenets of professionalism, however, will mean little if the law frustrates physicians’ performance of their dual roles by requiring physicians to give primacy to individual patient’s welfare. This commentary discusses two areas of American law that erect legal barriers to physicians’ stewardship role: the medical malpractice system and informed patient consent.
THE MALPRACTICE SYSTEM AS A BARRIER TO PHYSICIANS’ DUAL AGENCY ROLE The medical malpractice system performs the important function of determining whether a physician’s provision of medical care constitutes negligence. The quality standards that establish the boundary between minimally necessary care and optional care, however, generally ignore cost considerations. Physicians fearful of malpractice liability therefore may be reluctant to compromise patient care in the name of cost containment. A physician will be liable for malpractice if the plaintiff establishes that the physician failed to exercise reasonable care. In determining whether care was reasonable, courts typically defer to the medical profession’s customary
practices. The respectable minority rule, however, recognizes departures from customary practices as reasonable when regarded by the profession as “respectable” and/or embraced by a considerable number of physicians (Dobbs et al. 2013). Although some contend that physicians’ customary practices may incorporate cost-sensitive practices (Hall 1989), countervailing factors encourage costly, technology-driven practice patterns. Many physicians are paid in whole or in part on a fee-for-service basis that rewards providers for doing more. Technological innovations often rapidly become the norm as a result of physicians’ desire to be on the cutting edge and their commitment to give their patients the best possible care. In addition, physicians fearful of lawsuits may engage in the defensive practice of medicine, with physicians’ customary practices then reflecting the defensive administration of medical care. The respectable minoity rule also offers little protection to the cost-conscious physician, as the rule is meant to accommodate legitimate scientific disagreements within the medical profession. Consequently, the doctrine may not permit departures from custom based on cost–benefit grounds, particularly when many in the medical profession regard as disreputable cost-conscious practices that sacrifice patients’ best interests (Blumstein, 2002). Current malpractice law thus poses significant risks for the costconscious physician, risks that may deter physicians from acting as prudent stewards of health resources.
Address correspondence to Jessica Mantel, University of Houston Law Center, 100 Law Center, Houston, TX 77204, USA. E-mail: [email protected]
40 ajob
September, Volume 14, Number 9, 2014
