Is Managed Care Unethical?
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Is Managed Care Unethical?

Is Managed Care Unethical?

There are a variety of potentially problematic concepts that come into play when evaluating managed care according to Jewish values.

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Managed care, once touted as the panacea for rising health care costs, has not lived up to its promise. Billed as a solution to rising healthcare cost and method to bring fiscal responsibility back to medical care, the reality has been far less rosy. While politicians, employers, and workers debate whether to abandon systems such as HMO's based on monetary concerns, let us approach the issue from a Jewish perspective. Do the means utilized by managed care companies conflict with Jewish values? A variety of potentially problematic concepts come into play when evaluating managed care.

RATIONING MEDICAL CARE

It is crucial to first establish that rationing of medical care is not intrinsically problematic. There are established principles in Jewish law regarding triage. As a rule, in instances of limited resources, care is provided to those most likely to benefit medically from a given therapy. If two patients require a transplant, priority should be given to the one most likely to have the best medical outcome independent of patient age, social status, or prior destructive behavior.

We do not judge value of life, just medical suitability.

Nevertheless, such factors may be used to establish medical suitability. For example, a patient who will not stop his destructive behavior may be deemed medically non-suitable for a transplant, not because we judge his behavior, but because we do not expect him to be compliant with the rigorous regimen required following transplant (e.g. compliance with anti-rejection drugs). While age is not in itself a criterion for withholding care, someone who is elderly may not be a prime medical candidate for a dangerous surgery. The key is that we do not judge value of life, just medical suitability.

The same approach may be applied to managed care. From a Jewish perspective, we support the idea of triaging limited medical resources by maximizing the efficiency of healthcare delivery. Nevertheless, an acceptable system may not sacrifice ethics for efficiency. Both the goals and the means must be "kosher."

There are many ethical issues involved in managed care, but there are four major areas that bear examination: the gatekeeper principle, incentives to deny treatment, gag clauses, and confidentiality.

THE GATEKEEPER

The gatekeeper concept stipulates that a primary care physician should coordinate patient care. Referrals to specialists are permitted only when the patient's condition requires "specialized" care beyond the expertise of the primary care physician. This would appear to conflict with the requirements of the Code of Jewish Law (Yoreh Deah 336: Laws Applying to Physicians) which states: ". . . one may not engage in healing unless he is an expert and there is none better qualified than him present, because if this is not the case, he is considered a shedder of blood." By definition, the specialist is more qualified than is the generalist to treat conditions covered within his specialty. This would imply that one is (almost) always required to refer cases to a specialist, for few of us can truly claim that we are the "best" and that there is "none better qualified." Fortunately, the true meaning of this passage is that a physician must be qualified to treat the particular patient standing before him or her. This distinction may be illustrated with the following examples.

A patient consults her primary care physician for symptoms that are classic for the flu. If the physician feels confident of the diagnosis, the doctor need not seek out the world's greatest infectious diseases expert, but may prescribe fluids, bed rest and Tylenol. The same would apply to a patient with a rash. If the primary care physician is confident of his diagnosis of poison ivy, having seen multiple cases on previous occasions, he may suggest appropriate treatment without a dermatology consultation. However, if a patient approaches his primary care physician with a rash, and the doctor is not sure of the diagnosis, the patient must be permitted to seek a consultation. In the first two cases, there is none better qualified to treat those particular patients because the physician feels competent to diagnose those ailments. But in the last case, the doctor is not qualified to treat that particular patient and there is one ‘better qualified than him' to make the diagnosis, namely the dermatologist.

INCENTIVES TO DENY TREATMENT

While less common today, one model for managed care offers incentives to physicians who use fewer resources than average as means to control costs. For example, if a physician refers fewer patients to the emergency room than the average physician in their area, they would receive a "bonus" at the end of the year. An expert physician with excellent diagnostic skills may well be able to achieve such cost savings without decreasing the quality of care for his patients. Does Judaism accept such a system?

A system that offers incentives to physicians to discourage referrals to specialists runs the risk of corrupting even the most honest practitioner.

The Torah states, "You shall not pervert justice, you should not show favoritism and you should not accept a bribe for the bribe will blind the eyes of the wise and make just words crooked" (Deuteronomy 16:19). Biblical commentators are quick to point out that the Torah is worried about corrupting the honest judge, the judge who would be unwilling to change his judicial decision to benefit the party, which gave him the gift. Nevertheless, Jewish law prohibits a judge involved in a case from receiving even the smallest gift from either party, even the party the judge feels is correct, lest it subconsciously affect the juror's judgment. By analogy, a system that offers incentives to physicians to discourage referrals to specialists or emergency rooms runs the risk of corrupting even the most honest practitioner. As the Torah recognizes, it is human nature for money to cloud the judgment of even the most upright person.

GAG CLAUSES

A gag clause prohibits the doctor from disclosing certain types of information to her patients. This forbidden information is often crucial to the patient's ability to accurately assess the doctor's medical advice and the lack of that information could impact on the patient's health. For example, some HMO contracts limited the medical options that a physician could offer to patients since by pointing out therapies not covered by the HMO it would disparage the managed care organization. Some reasonably argue that from a practical point of view, gag clauses are a threat to patients. Due to extreme public and governmental pressure, these clauses have been abandoned. Nevertheless, they have been replaced with business clauses that generally require the physician not to disparage the business, not to encourage patients to use some other business instead, and not to break confidentiality with the business. These business clauses are just another version of gag clauses.

Prohibiting physicians from suggesting the best course of treatment for a patient is absolutely forbidden by Jewish law.

It goes without saying that prohibiting physicians from suggesting the best course of treatment for a patient (including using another doctor, hospital or HMO) is absolutely forbidden by Jewish law. The Torah mandates that the physician heal to the best of his or her ability. Additionally, like all other Jews, the doctor is also bound by the Torah's requirement "not to stand idly by as your neighbor's blood is being shed," (Leviticus 19:16,) meaning that he must do whatever is necessary to insure that the patient not be harmed. Lastly, there is a clear prohibition of giving bad advice to someone who relies upon you for your expertise ("do not put a stumbling block before the blind" Leviticus 19:14).

CONFIDENTIALITY

Patient confidentiality is often compromised when HMOs require private information (often unrelated to the patient's current medical problem and often provided to non-medical HMO representatives) before authorization for treatment is forthcoming. For full discussion of the parameters of professional confidentiality, please see my previous article [hyperlink to "confidentiality" in work site]. It is sufficient to assert that strict confidentiality guidelines are a prerequisite for an ethical managed care system with information only provided to those who truly require it.

INTELLECTUAL HONESTY

The common thread in these four issues is that Judaism demands intellectual honesty in managed care as it does in all other areas of life. Those caring for others must recognize their limits and never allow arrogance or monetary incentive to color their judgment. An honest gatekeeper, operating in an environment that does not compromise his or her professional integrity by restricting the practice of good medicine or rewarding bad medicine, can facilitate excellent treatment.

Judaism does not have a problem with managed care, only badly managed care. If means can be developed to more efficiently utilize medical resources, we are strongly in favor of such a system. But that system must be based upon an ethical foundation of good patient care.

Published: August 3, 2002


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Visitor Comments: 8

(8) Anonymous, April 3, 2009 3:14 PM

Agreed.....

As a former Managed Care staff member, I have seen and experienced significant conflicts involving ethical, clinical, and fundamentally moral issues versus the "bottom line" and increasing profit margins of the corporation. Unfortunately, profits are the priority, and it is the member that typically suffers. I resigned my position as a result of such "corporate behavior", and while unemployed---my conscience remains intact. Regardless of the religious doctrine to which one adheres, this does not change the fundamental nature and "essence" of the humanity. We are all worthy to be treated in a dignified, respectful, and just manner. This does not occur in the managed care system.

(7) Rose Berry, August 19, 2002 12:00 AM

medicine and ethics

Perhaps the key to controling spiraling medical costs is a greater emphasis on ethics. HOwever, for full effect, the ethical behavior must come from all parties in health care situations.

When doctors and other providers refrain from encouraging or requiring unnecessary tests and treatments, that will help reduce costs. Patients should refrain from demanding treatment that is not necessary, such as antibiotics for colds, and doctors should resist patient pressure to prescribe such. While some business might be lost, I would respect a doctor who told me the treatment I wanted would be a poor use of my funds.

And when patients are ethical about paying for their care, that will also reduce the cost of medical care. When patients seek care in a timely manner, and at the most appropriate source, rather than waiting until a minor problem becomes an emergency, or going to the emergency room because they are too lazy to make an appointment, costs go up.

The matter of confidentiality is not only a problem with HMO's and other private insurers, but also with the Medicare/Medicaid system. Because health care should be available to the poor, deserving or not, does not make it right that so many non-medical people have access to patient information. The chief excuse for letting so many noses into the records of a public-assistance patient is the belief that most people will commmit all the abuse of charity they think they can conceal. There is a lot of uncharitable thinking behind government charity, as much in the context of health insurance as in the context of food stamps and welfare.

In short, in medicine as elsewhere in society, honesty by all parties makes the system work, but dishonesty hurts everyone.

(6) h.e.brown, August 8, 2002 12:00 AM

well put

Doctors and health care need to take care of people not their pockets.

I suffer now because of this type of
system.

(5) Scott Rosenberg, August 6, 2002 12:00 AM

Canadian system unethical

Responding to Harry Gross's comments, the Canadian system artificially restricts access to medical care through government management of the healthcare system. This results in patients waiting many extra days (or even weeks or months) for therapies that one would be allowed to break Shabbos to administer, it tightly restricts access to specialists and, perhaps most egregiously, it sells American-made pharmacuticals discounted prices achieved by threatening the use of illegal copy-cat (pre-generic copies) drugs if American drug companies don't meet the Canadian goverment's price demands. This means that American consumers pay inflated prices for those same drugs to make up for the drug companies' losses in Canada and to fund the research and development of new drugs that Canada will also presumably sell at less than market prices obtained through its unique style of 'negotiations'.

Interestingly, Canadians with money flock to America for treatment. Why? Even with all our system's problems, we still deliver better, more innovative care (or any care, for that matter) faster than Canada.

As for Michael's comment, physicians are halachically similar to dayanim in these matters. While accepting small gifts may not be an issue, being paid based on restriction of services or for directing patients to less qualified but "in system" specialists is. But then, someone who has worked in and around managed care for 10 years may himself be 'bribed' by his salary, perks, and the other rewards offered for his loyal service, and may, like Michael himself, be blind to that.

(4) Michael, August 5, 2002 12:00 AM

Interesting... but what is the point of the article?

I have been in managed care for 10 years... working for an HMO, for a hospital, for a physician group, for a consulting company, and even on behalf of major pharmacuetical companies. I am having a difficult time understanding what Dr. Eisenberg's point is other than there are some potential problems from a Halachic standpoint with managed care, or any system that rations medical care for that matter (including Kupat Cholim). In fact, most the measures mentioned in the article are no longer prevelant within managed care in the US. Gag clauses are a thing of the past, confidentiallity is insured by new Federal laws (HIPPA), physicians are not dayanim, and many plans have eliminated gatekeepers. In fact, the only plan I can think of that may be influenced is Elderplan in Brooklyn, the only "Jewish" HMO I am aware of.

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