The Veterans Affairs (VA) Hospitals scandal, which involved unduly long delays in getting doctors’ appointments that jeopardized veterans’ health, "inevitably erodes trust by patients in individual providers as well as our system of health care," says Charity Scott, JD, MSCM, Catherine C. Henson Professor of Law at Georgia State University College of Law in Atlanta, GA.
The same is true of other recent news stories on fraud and abuse committed by physicians and exorbitant pricing at hospitals, she argues.
"Media coverage is replete with stories in recent years of other breaches of trust — unconscionably high numbers of medical errors causing harm and death to patients, financial conflicts of interest in research as well as in the provision of health care services — the list goes on and on," Scott says.
Not about rationing
The VA is often seen as among the best of the many separate U.S. health care systems — small market private insurance, large market private insurance, Medicare, Medicaid, and others — according to I. Glenn Cohen, JD, director of Harvard Law School’s The Petrie-Flom Center for Health Law Policy, Biotechnology & Bioethics in Cambridge, MA
"These revelations were unfortunate, then. But this is not about the problems with government-provided health care per se," says Cohen, noting that such problems are not endemic to other government-run health care systems such as Canada’s.
"This is not about rationing or death panels," says Cohen. "All attempts to connect this scandal to those claims are more political than real, I think."
Pay-for-performance systems have many benefits, says Cohen, "but they require careful auditing or monitoring to reduce bad behavior such as that seen here. Secondly, transparency is key to maintaining the trust of the public and patients, and that was sorely lacking here."
It is important to draw distinctions between access versus quality, asserts Cohen. "No one disputes that the quality of care from the VA, especially the quality per dollar spent on the system, is excellent," he says. "The real problem here was with access."
There is significant ethical literature questioning the moral fairness of waiting lists and "first come, first served," notes Cohen. "These tend to favor richer and more sophisticated users over poorer ones."1,2,3
Putting self-interest over patients’ interests
As an ethical and legal proposition, physicians stand in a fiduciary relationship with their patients, which is fundamentally one of trust and confidence, underscores Scott. "A fiduciary relationship applies to physicians because they — and other professionals like lawyers — are, by virtue of their superior knowledge and skills, potentially able to take unfair advantage of a layperson seeking their services," she says.
Law and ethics temper this power imbalance by imposing both a duty of care and a duty of loyalty on physicians. This requires the physician to put a patient’s interests ahead of his or her own interests.
"Trust is thus breached by putting one’s own self-interest above the other person’s interest, when the parties stand in a fiduciary relationship to each other," says Scott. "Examples of this abound."
Conflicts of interest are one way in which doctors can put their own self-interests above their patients’ welfare. The practice of defensive medicine is another, if doctors are ordering tests and procedures that serve no purpose other than to try to prevent litigation against the doctor.
"Physicians today are feeling inordinate pressures on their time and their finances — from fear of lawsuits to administrative and payment headaches to technology glitches to overwhelming workloads," says Scott. These and other stresses strain their abilities to do the right thing by patients.
The physician who blew the whistle on the VA scandal said "it was unethical to put us in that position" of being understaffed and with too little infrastructure support to adequately care for veterans.4
"Most doctors deserve and want to earn the trust of patients," says Scott. "Yet they find themselves in systems of care that impair their ability to foster such trust."
- Cohen IG. Rationing legal services.
The Journal of Legal Analysis 2013; 5(1):221-307.
- Persad G, Wertheimer A, Emanuel EJ. Principles for allocation of scarce medical interventions. Lancet 2009;373(9661):423-431.
- Daniels N. Fair process in patient selection for anti-retroviral treatment in WHO’s goal of "3 by 5." Lancet 2005;366:169-171.
- Oppel RA, Goodnough A. Doctor shortage cited in delays at VA hospitals: "Exploding workload," falsified wait lists also linked to reviews of performance. The New York Times, Friday, May 30, 2014, p. A1.
- I. Glenn Cohen, JD, Professor of Law, Faculty Director, The Petrie-Flom Center for Health Law Policy, Biotechnology & Bioethics, Harvard Law School, Cambridge, MA. Phone: (617) 496-2518. E-mail: [email protected].
- Charity Scott, JD, MSCM, Catherine C. Henson Professor of Law, Georgia State University College of Law, Atlanta, GA. Phone: (404) 413-9183. Fax: (404) 413-9225. E-mail: [email protected].
