February 6th, 2010 by DrRich in Better Health Network, Health Policy, Opinion
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Yesterday, DrRich noted (with his usual affecting humility, modesty, self-deprecation, &c.) that the Covert Rationing Blog has been named a Finalist in the 2009 Medical Weblog Award Competition, in the category of Best Health Policy/Ethics Blog. He now calls to his readers’ attention the fact that, among the other two finalists – both of which are of very high quality and undoubtedly are more deserving of this award than DrRich – is none other than the ACP Advocate Blog.
The ACP Advocate Blog, written by Bob Doherty, is a publication of the American College of Physicians, and its purpose is to explain, elaborate on and advocate for the ACP’s positions on important matters related to health policy and medical ethics that affect its members, namely, internal medicine specialists. Doherty – who DrRich does not know, but of whom he has heard many very complimentary things – is an insightful analyst of matters related to healthcare policy, and to boot he is an excellent writer. DrRich is a loyal reader of the ACP Advocate Blog, which in fact has habitually led off DrRich’s blogroll.
Here’s why this is interesting. While both the ACP Advocate Blog and DrRich’s blog are finalists in the medical ethics category, it so happens that DrRich and the ACP are far apart on that very issue. Read more »
*This blog post was originally published at The Covert Rationing Blog*
September 24th, 2009 by David H. Gorski, M.D., Ph.D. in News, Quackery Exposed
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Although I have criticized state medical boards for not doing enough to protect patients from physicians who practice pseudoscientific medicine and quackery, they do nonetheless serve a purpose. Moreover, critical to medical boards doing even the limited amount of enforcement that they do is the ability of health care providers or other citizens to submit anonymous complaints against physicians who are not practicing up to the standard of care or who may be in other ways taking advantage of patients.
Unfortunately, the other day I found out about a very disturbing case in Kermit, Texas. Two nurses who were dismayed and disturbed by a physician peddling all manner of herbal supplements reported him to the authorities. Now, they are facing jail:
In a stunning display of good ol’ boy idiocy and abuse of prosecutorial discretion, two West Texas nurses have been fired from their jobs and indicted with a third-degree felony carrying potential penalties of two-to-ten years’ imprisonment and a maximum fine of $10,000. Why? Because they exercised a basic tenet of the nurse’s Code of Ethics — the duty to advocate for the health and safety of their patients.
The nurses, in their 50s and both members of the American Nurses Association/Texas Nurses Association, reported concerns about a doctor practicing at Winkler County Memorial Hospital in Kermit. They were unamused by his improperly encouraging patients in the hospital emergency department and in the rural health clinic to buy his own herbal “medicines,” and they thought it improper for him to take hospital supplies to perform a procedure at a patient’s home rather than in the hospital. (The doctor did not succeed, as reportedly he was stopped by the hospital chief of staff.)
How can this be? This is how:
The nurses Vicki Galle, RN, and Anne Mitchell, RN, say they were just trying to protect patients when they anonymously reported their concerns April 7 to the Texas Medical Board (TMB). The RNs believed a physician wasn’t living up to ethical practice standards at the 15-bed county hospital where they worked.
The report indicated Rolando Arafiles, MD, one of three physicians on contract with the hospital, improperly encouraged patients at the Winkler County Memorial Hospital emergency department and the county’s rural health clinic to buy herbal supplements from him.
However, because the two nurses worked for a county hospital – and included medical record numbers of the patients in their letter to the TMB in April – the county attorney’s office indicted them on “misuse of official information” – a third-degree felony that carries potential penalties of 2-10 years’ imprisonment and a maximum fine of $10,000. Additionally, the prosecution asserts the nurses used patient records as part of the evidence they offered to the TMB to “harass or annoy” Arafiles.
Part of what’s so disturbing about this is that complaints to the medical board are supposed to be confidential. Indeed, this sort of retaliation is exactly why such complaints are confidential. Why do I say “retaliation”? Well, certainly there is the suspicious timing of how they were arrested:
Mitchell and Galle, both long-time nurses at the facility, were fired from their positions and were subsequently arrested June 12, just 5 days past the 60-day window that could have been part of the defense to prove retaliation. The two nurses are free on bond of $5,000 each.
Gee, you don’t think that timing was intentional, do you? If that’s not enough, take a look at this account:
The nurses went up their chain of command with their complaints. They got nowhere with their 25-bed rural hospital. So they anonymously turned the doctor into the Texas Medical Board using six medical record numbers of the involved hospital patients .
When the medical board notified the physician that he was under investigation for mistreatment and poor quality of care, he filed a harassment complaint with the Winkler County Sheriff’s Department.
To find out who made the anonymous complaint, the sheriff left no stone unturned. He interviewed all of the patients whose medical record case numbers were listed in the report and asked the hospital to identify who would have had access to the patient records in question.
At some point, the sheriff obtained a copy of the anonymous complaint and used the description of a “female over 50″ to narrow the potential complainants to the two nurses. He then got a search warrant to seize their work computers and found a copy of the letter to the medical board on one of them.
So let’s get this straight. Two nurses, alarmed that a physician was inappropriately peddling herbal remedies that he sells to patients in the emergency room of a small rural hospital in the middle of Nowhere, Texas, try to report him through the chain of command. From here on out, I’m going to try to read between the lines a bit, but I bet my speculation is not too far from the truth. My guess is that Dr. Arafiles is probably either popular or desperately needed in Kermit–or both–and that he’s well-connected in the town. Well, actually, that last part is almost certainly true, as apparently Dr. Arafiles is buddies with the Sheriff (Robert Roberts) and–who knows?–probably Winkler County Attorney Scott Tidwell as well for all we know. The Sheriff, tipped off by his buddy that someone at the hospital was complaining about his questionable choice of venue to peddle his herbal woo, went after Mitchell and Galle as though they had gone on a four county shooting spree and and then, after he figured out who they were, threw the book at them, even though they had no justification in doing so:
The Texas Medical Board sent a letter to the attorneys stating that it is improper to criminally prosecute people for raising complaints with the board; that the complaints were confidential and not subject to subpoena; that the board is exempt from federal HIPAA law; and that, on the contrary, the board depends on reporting from health care professionals to carry out its duty of protecting the public from improper practitioners.
Excerpts from this letter include:
- Information provided by an individual to the board… is information used by the Board in its governmental capacity as a state agency…Information provided triggering a complaint or furthering and investigation by the Board is information provided for a governmental purpose – the regulation of the practice of medicine.
- …under federal law, the TMB is exempt from the [HIPAA] requirements; therefore, the provision of medical documentation with patient names on them to the Board is not a violation of [HIPAA].
And it’s true. In order to encourage whistleblowing and minimize the chances of retaliation, HIPAA rules don’t apply to complaints to state medical boards. Regardless of the merit of Mitchell and Galle’s complaint, they were well within their rights to report Dr Arafiles to the Texas Medical Board. It doesn’t matter whether they had first gone through the chain of command or not, regardless of what hospital flunkies or apologists for the sheriff say.
This case is bad. Real bad. Nurses and other health care professionals are reluctant enough as it is to report a bad doctor or a doctor peddling dubious therapies as it is. What makes this case particularly outrageous is not only because it appears to be a horrible abuse of power by Sheriff Roberts, but, even worse, it sends the clear and unmistakable message to nurses in Texas: Don’t get out of line or the medical powers that bewill make you pay. They will find out who you are, no matter what it takes to do so, and then they will do everything in their power to retaliate. They’ll even try to throw you in jail if they can figure out a rationale to do so, legal or not. It’s hard enough to go against a doctor as it is, particularly in small towns, where doctors are often considered pillars of the community, making it hard enough to risk the disapproval that would be likely to be directed at any whistleblower. Without legal protections against prosecution for reporting a doctor to the board, confidentiality means nothing if there is someone in a position of power who is determined enough to shred the confidentiality of the complaint (like a county sheriff) and apparently ready to abuse his power to retaliate against the nurses making the complaints.
Even though I’m a bit late to the game, it disgusted me to read about this case. If we are to protect the public from physician misconduct, be it quackery, breaches of ethics, inappropriate sexual behavior, fraud, or whatever, there must be protections for the complainants against retaliation by hospitals or whomever. Quite correctly, the Texas Nurse’s Association is fully backing Mitchell and Galle, and Mitchell and Galle are also filing a civil lawsuit in federal court against the hospital (Winkler County Memorial Hospital), the county attorney, and the sheriff. The complaint alleges:
Specifically, Winkler County had a policy to prohibit any adverse report without first getting the approval of the Board of Control of Winkler County Memorial Hospital and the Medical Staff. This discouraged employees from publicly reporting matters of public concern regarding patient safety and patients’ health and welfare as to how they were being treated that would cast Winkler County or Winkler County Memorial Hospital or Rolando G. Arafiles, Jr. in a negative light.
This sort of miscarriage of justice should not be allowed to stand. TheTexas Nurses Association has set up a legal defense fund for these nurses (a link is on the TNA home page), and I urger SBM readers to contribute. I have. I also encourage SBM readers to write polite letters of protest to the Winkler County District Attorney’s Office. It is a travesty that this retaliation against nurses just trying to do their duty for their patients has been allowed to continue this long and this far. We should do whatever we can to make sure that this pure power play to put a couple of uppity nurses back in their place does not stand.
April 15th, 2009 by DrRich in Better Health Network
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DrRich thanks the Cockroach Catcher (his favorite retired child psychologist) for pointing him to an article (by Mark Wicclair, a bioethicist) and an accompanying editorial (by Deborah Kirklin, a primary care physician) in the peer-reviewed medical journal, Medical Humanities, which deconstruct the television show “House MD.”
A TV show may at first glance seem a strange subject for a medical journal, but this is, after all, a journal whose subject is the “softer” side of medical science. (DrRich hopes his friend the Cockroach Catcher will take no offense at this characterization, and directs him, in the way of an apology, to the recent swipes DrRich has taken at his own cardiology colleagues for their recent sorry efforts at “hard” medical science.) Besides, the Medical Humanities authors use the premise and the popularity of “House MD” to ask important questions about medical ethics, and the consequent expectations of our society.
DrRich does not watch many television shows, and in particular and out of general principles he avoids medical shows. But he has seen commercials for House, and has heard plenty about it from friends, so he has the gist of it. The editorial by Dr. Kirklin summarizes:
“[House] is arrogant, rude and considers all patients lying idiots. He will do anything, illegal or otherwise, to ensure that his patients—passive objects of his expert attentions—get the investigations and treatments he knows they need. As Wicclair argues, House disregards his patients’ autonomy whenever he deems it necessary.”
Given such a premise, the great popularity of “House MD” raises an obvious question. Dr. Kirklin:
“… why, given the apparently widely-shared patient expectation that their wishes be respected, do audiences around the world seem so enamoured of House?”
Indeed. While it has not always been the case, maintaining the autonomy of the individual patient has become the primary principle of medical ethics. And medical paternalism, whereby the physician knows best and should rightly make the important medical decisions for his or her patient, is a thing of the past.
It has been formally agreed, all over the world, that patients have a nearly absolute right to determine their own medical destiny. In particular, unless the patient is incapacitated, the doctor must (after taking every step necessary to inform the patient of all the available options, and the potential risks and benefits of each one) defer to the final decision of the patient – even if the doctor strongly disagrees with that decision. Hence, the kind of behavior which is the modus operandi of Dr. House should be universally castigated.
So, the question is: Given that House extravagantly violates his patients’ autonomy whenever he finds an opportunity to do so, joyfully proclaiming his great contempt for their individual rights, then why is his story so popular? And what does that popularity say about us?
To DrRich, the answer seems quite apparent.
The notion that the patient’s autonomy is and ought to be the predominant principle of medical ethics, of course, is entirely consistent with the Enlightenment ideal of individual rights. This ideal first developed in Europe nearly 500 years ago, but had trouble taking root there, and really only flowered when Europeans first came to America and had the opportunity to put it to work in an isolated location, where rigid social structures were not already in place. The development of this ideal culminated with America’s Declaration of Independence, in which our founders declared individual autonomy (life, liberty and the pursuit of happiness) to be an “inalienable” right granted by the Creator, and thus predating and taking precedence over any government created by mankind. And since that time the primacy of the individual in American culture has, more or less, remained our chief operating principle. Individual autonomy – or to put it in more familiar terms, individual freedom – is the foundational principle of our culture, and it is one that is perpetually worth fighting and dying to defend.
So the idea that the autonomy of the individual ought rightly to predominate when it comes to making medical decisions is simply a natural extension of the prime American ideal. Of course, most think, this ought to be the governing principle of medical ethics.
But unfortunately, it’s not that easy. There’s another principle of medical ethics that has an even longer history than that of autonomy – the principle of beneficence. Beneficence dictates that the physician must always act to maximize the benefit – and minimize the harm – to the patient. Beneficence recognizes that the physician is the holder of great and special knowledge that is not easily duplicated, and therefore has a special obligation to use that knowledge – always and without exception – to do what he knows is best for the patient. Dr. House is a proponent of the principle of beneficence (though he is caustic and abrasive about expressing it). DrRich believes House is popular at least partly because the benefits that can accrue to a patient through the principle of beneficence – that is, through medical paternalism – are plain for all to see.
Obviously the principles of beneficence and of individual autonomy will sometimes be in conflict. When two worthwhile and legitimate ethical principles are found to be in conflict, that is called an ethical dilemma. Ethical dilemmas are often resolved either by consensus or by force. In our case, this dilemma has been resolved (for now) by consensus. The world community has deemed individual autonomy to predominate over beneficence in making medical decisions.
DrRich’s point here is that Dr. House (the champion of beneficence) is not absolutely wrong. Indeed, he espouses a time-honored precept of medical ethics, which until quite recently was THE precept of medical ethics. There is much to be said for beneficence. Making the “right” medical decision often requires having deep and sophisticated knowledge about the options, knowledge which is often beyond the reach of many patients. And even sophisticated patients who are well and truly medically literate will often become lost when they are ill, distraught and afraid, and their capacity to make difficult decisions is diminished. Perhaps, some (like House) would say that their autonomy ought not be their chief concern at such times. Indeed, one could argue that in a perfect world, where the doctor indeed has nearly perfect knowledge and a nearly perfect appreciation of what is best for the patient, beneficence should take precedence over autonomy.
It is instructive to consider how and why autonomy came to be declared, by universal consensus, the predominant principle of medical ethics. It happened after World War II, as a direct result of the Nuremberg Tribunal. During that Tribunal the trials against Nazi doctors revealed heinous behavior – generally involving medical “research” on Jewish prisoners – that exceeded all bounds of civilized activity. It became evident that under some circumstances (circumstances which under the Nazis were extreme but which were by no means unique in human history) individual patients could not rely on the beneficence of society, or the beneficence of the government, or the beneficence of their own doctors to protect them from abuse at the hands of authority. Thusly was the ethical precept which asks patients ultimately to rely on the beneficence of others starkly revealed to be wholly inadequate. The precept of individual autonomy, therefore, won by default.
Subsequently, the Nuremberg Code formally declared individual autonomy to be the predominant precept in medical ethics, and beneficence, while also important, to be of secondary concern. Where a conflict occurs, the patient’s autonomy is to win out. It is important to note that this declaration was not a positive statement about how honoring the autonomy of the individual represents the peak of human ethical behavior, but rather, it was a negative statement. Under duress, the Nuremberg Code admitted, societies (and their agents) often behave very badly, and ultimately only the individual himself can be relied upon to at least attempt to protect his or her own best interests.
DrRich will take this one step further. When our founders made individual autonomy the organizing principle of a new nation, they were also making a negative statement. From their observation of human history (and anyone who doubts that our founders were intimately familiar with the great breadth of human history should re-read the Federalist Papers), they found that individuals could not rely on any earthly authority to protect them, their life and limb, or their individual prerogatives. Mankind had tried every variety of authority – kings, clergy, heroes and philosophers – and individuals were eventually trampled under by them all. For this reason our founders declared individual liberty to be the bedrock of our new culture – because everything else had been tried, and had failed. In the spirit of the enlightenment they agreed to try something new.
There is an inherent problem with relying on individual autonomy as the chief ethical principle of medicine, namely, autonomous patients not infrequently make very bad decisions for themselves, and then have to pay the consequences. The same occurs when we rely on individual autonomy as the chief operating principle of our civil life. The capacity of individuals to fend for themselves – to succeed in a competitive culture – is not equal, and so the outcomes are decidedly unequal. Autonomous individuals often fail – either because of inherent personal limitations, bad decisions, or bad luck.
So whether we’re talking about medicine or society at large, despite our foundational principles we will always have the tendency to return to a posture of dependence – of relying on the beneficence of some authority, in the hope of achieving more overall security or fairness – at the sacrifice of our individual autonomy. In DrRich’s estimation the popularity of “House MD” is entirely consistent with this tendency. (Indeed, the writers almost have to make Dr. House as unattractive a person as he is, just to temper our enthusiasm for an authority figure who always knows what is best for us and acts on that knowledge, come hell or high water.)
Those of us who defend the principle of individual autonomy – and the economic system of capitalism that flows from it – all too often forget where it came from, and DrRich believes this is why it can be so difficult to defend it. We – and our founders – did not adopt it as the peak of all human thought, but for the very practical reason that ceding ultimate authority to any other entity, sooner or later, guarantees tyranny. This was true in 1776, and after observing the numerous experiments in socialism we have seen around the world over the past century, is even more true today.
Individual autonomy will always be a very imperfect organizing principle, both for healthcare and for society at large. Making it an acceptable principle takes perpetual hard work, to find ways of smoothing out the stark inequities, without ceding too much corrupting power to some central authority. This is the great American experiment.
Those of us who have the privilege of being Americans today, of all days, find ourselves greatly challenged. But earlier generations of Americans faced challenges that were every bit as difficult. If we continually remind ourselves what’s at stake, and that while our system is not perfect or even perfectable, it remains far better than any other system that has ever been tried, and that we can continue to improve on it without ceding our destiny – medical or civil – to a corruptible central authority, then perhaps we can keep that great American experiment going, and eventually hand it off intact to yet another generation, to face yet another generation’s challenges.
*This blog post was originally published at the Covert Rationing Blog.*
