Avoiding Ethical Conflicts in Health Care
By Laurence B. McCullough, PhD
Examine preventive steps you and your health care
organization can take to minimize the risks of
ethical breaches.
] Unethical business practices in US health care alarm physician leaders
The Physician Executive, 2005 - net.acpe.org
... Fully a third said they believe a doctor or doctors within their own organization is engaged in an unethical business practice. ... defined by the individual. What might be clearly unethical in my opinion would be dismissed by others as normal business practice. ...
18 MARCH•APRIL 2005 THE PHYSICIANEXECUTIVE
As the survey showed, conflicts of interest are often at
the heart of ethical dilemmas. Conflicts of interest are well
understood in ethics. They involve conflicts between a person’s
obligations to others and their own self-interest.3,4
Conflicts of interest are ethically problematic because
they pose a threat to the routine fulfillment of fiduciary
responsibility, the basis of every health care organization’s
obligations to its patients.
Ethically responsible management of conflicts of
interest keeps fiduciary responsibility to patients the primary
consideration and motivation for clinical judgments
and decision making.
By contrast, ethically irresponsible management of
conflicts of interests occurs when self-interest becomes
primary without ethical justification.
The ethical concept of the physician as fiduciary of
the patient was introduced by two 18th century
physicians, Dr. John Gregory (1724-1773), a Scottish
physician-ethicist, and Dr. Thomas Percival (1740-1804),
an English physician-ethicist.
Gregory and Percival developed this concept as the
core of what Percival was the first to call professional
medical ethics. They did so largely in response to the
entrepreneurial nature of medicine in 18th century Britain
and the English colonies in North America.3
At that time, there was no single pathway into medical
practice, with surgeons and apothecaries training by
apprenticeship, physicians by attending courses at a medical
school or simply purchasing their degree, and most
people “self-physicking,”—diagnosing and treating themselves
with tried-and-true and sometimes experimental
home remedies.
As a physician leader, you have two ways to
respond to ethical challenges in health care
organizations:
1. Wait for ethical problems or conflicts to occur and
then respond to them.
2. Practice preventive ethics to keep conflicts from
arising.
Experience teaches us that the reactive approach can
take an unacceptable toll on patients, their family members,
physicians, other members of the team, and even
the culture of the health care organization.
The culture of an organization includes its mission
statement and policies, but also its actual practices—from
how it treats its physicians, employees, and patients to its
budget priorities.
Don’t get me wrong, when ethical conflicts occur, we
need to respond to them rapidly and effectively. They
need to be managed.
However, physician leaders also need to lead their
organizations by adopting the second approach to ethical
conflicts—developing effective organizational policies and
practices designed to prevent ethical problems from
occurring in the first place.
In other words, preventive ethics should become one
of the basic tools in every physician executive’s leadership
tool box.1,2 Reactive ethics won’t be enough and
may come too late.
The results of ACPE’s ethical behavior survey underscore
the myriad of ethical challenges facing physician
leaders and the impact ethical breaches can have on an
organization’s good name and culture.
When an ethical problem arises, the professional
integrity of your organization’s culture is at stake and,
should it be lost, you will be reduced to managing
things, not leading people.
Only the rich could afford to
purchase the services of physicians
and these folks paid the piper and
called the tune. Physicians were
hired and fired completely at the
discretion of the head of household.
The world of private medical
practice was one of intense competition
with little of the economic
security that physicians now take
for granted.
To be successful in this crowded,
absolutely unforgiving medical
marketplace, physicians had to do
what they could to stand out and
compete successfully.
So they developed idiosyncratic
theories of health and disease and
secret remedies or “nostrums” that
they would sell directly to the sick.
Other physicians were not colleagues;
they were the competition
to be attacked through pamphlets
and broadsides and sometimes
even physically assaulted.
Gregory and Percival set out to
reform medicine into a profession
worthy of the name. In doing so,
they gave us the ethical concept of
the physician as fiduciary of the
patient. (Although neither used
the word, “fiduciary,” they had
the concept.)
This ethical concept, which is
the foundation of medical professionalism,
has three components.
1. The physician should be competent.
Physicians and surgeons
should practice and teach medicine
and conduct research to
standards of intellectual and
moral excellence. By this, both
Gregory and Percival meant that
physicians should base theories
of health and disease, as well as
clinical practice and research, on
the best available science.
2. Physicians and surgeons should
use their competence primarily
for the benefit of patients, keeping
individual self-interest in a
systematically secondary place.
3. Physicians and surgeons should
maintain and pass on medicine
as a public trust in service to
patients and society, not as a
guild or corporation that puts
group self-interest and “corporation
spirit” first.
The state of fiduciary
professionalism today
The ethical concept of the
physician as fiduciary of the patient
gained traction over the ensuing
two centuries. We should not, however,
be sanguine about the current
state of professionalism in medicine.
Well-informed critics, such as
David Rothman,5 remind us that the
state of professionalism in medicine
may be weaker than any of us want
to admit. The ACPE ethics survey
shows that physician leaders are
clearly concerned about potentially
unethical business practices among
organizational leaders and physicians
that impact culture itself.
I find it especially interesting
that, while most respondents are
confident that colleagues in their
own organization are not involved
in unethical business practices,
many are concerned about unethical
business practices of other
Physicians and physician leaders should not want to work for
health care organizations that are poorly led with respect to conflicts
of interest. Such organizations are at serious risk of betraying
the trust of patients and the communities that they serve.
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health care organizations in their
communities.
From the perspective of other health care organizations in a community, one’s own organization, of course, is among those “other” health care organizations. That should give us considerable pause.
Practicing prevention Physician executives can wait for
potential unethical business practices to occur and then react to them. But if poor management of conflicts of interest is prolonged before organizational leaders become aware of these
conflicts, they can do tremendous, even irreversible damage to the organization’s culture.
So it’s critical that physician executives take a preventive ethics
approach to individual and organizational conflicts of interest.
1. The first step is strengthening
your fiduciary professionalism.
This ethical concept should be
the foundation for your organization’s
culture. The animating
concept should be co-fiduciary
responsibility for patient care.6
The concept of co-fiduciary
responsibility means the organization’s
leaders—physicians and
non-physicians alike, including
the board of directors—share
ethical responsibility for the
quality of patient care.
2. The next step involves close attention
to enforcing mission statements.
Mission statements should
include an explicit commitment to
co-fiduciary responsibility and its
expectations. There should be
policies in place to enforce cofiduciary
responsibility and these
policies should be routinely and
fairly implemented.
Rhetoric without enforceable and
enforced policies becomes mere
rhetoric. In health care organizations
mere rhetoric expressed in
lofty but never-enforced mission
statements promotes cynicism or
even worse, ethical consequences,
especially for the
organization’s physicians and
other health care professionals.
3. The next step should be developing
and enforcing clear,
detailed policies on reporting
and managing individual and
organizational conflicts of interest.
These should begin with a
definition of “conflict of interest,”
because everyone in a health
care organization may not understand
what a conflict of interest
is and why they must be responsibly
managed.
Conflict of interest policies
should require that all conflicts
of interest of individual physicians,
physician leaders, nonphysician
leaders and board
members be reported regularly.
Financial conflicts of interest
are often complex. The scope of
financial arrangements considered
to involve conflicts of interest from
the organization’s perspective
should be made clear in its policies.
Board members’ financial arrangements
that constitute conflicts of
interest such as contracts between
the health care organization and
their own business ventures must
be scrutinized, as well.
Policies should set under which
self-reported conflicts of interest
will be evaluated. The need for
transparency is crucial. Everyone
must be able to have confidence
that the evaluation process will be
rigorous and fair.
Conflicts of interest threaten professional
integrity. In the evaluation
process, the burden of proof should
be put on the acceptability of a conflict
of interest. George Khushf and
Robert Gifford recently suggested
that conflicts of interest should be
evaluated against four criteria.8
• Intensity—the percent of a person’s
earnings represented by the
financial interest in question.
• Immediacy—asking whether the
conflict of interest is such that
the first thing the physicians
think about when making a clinical
decision is the economic
impact it will have on them,
rather than the patients’ healthrelated
concerns. The parallel
organizational question is
whether organizational leaders
are first thinking about the economic
impact of their decisions
on the organization or about
how to fulfill the organization’s
fiduciary responsibilities to its
patients.
• Systematic nature of the conflict
of interest—does its influence
pervade the process of decision
making and patient care?
• The fourth concerns is whether
individuals are placed under a
conflict of interest alone, in
isolation from colleagues who
might be able to act together
to maintain and protect their
professional integrity and that of
the organization.
The more intense, immediate,
systematic, and individual the conflict
of interest is, the greater the
threat that it poses to the fiduciary
professionalism of physicians and
health care organizations.
Conflict of interest policies
should include provisions for
enforcement. When a conflict of
interest has been reliably judged
through a transparent and fair
process to be ethically unacceptable,
then the involved party
should be given clear instruction to
eliminate the conflict of interest by
eliminating the financial relationship
that created it or face loss of
employment and/or privileges.
When conflicts of interest are
judged ethically acceptable, such as
accepting small gifts from vendors
like a holiday fruit basket for office
staff, then they should be routinely
monitored to prevent them from
evolving into unacceptable conflicts
of interest.
Unacceptable organizational
conflicts of interest could emerge in
contracting with physician groups
for services or rental of facilities or
with suppliers who offer extraordinary
discounts in exchange for
exclusive purchasing.
Conflict of interest policies
should set out clear criteria for
evaluating organizational conflicts
of interest. Setting up an “ethics
hotline” for employees to anonymously
report suspicious practices
could be one component of such a
policy, but should not be mistaken
for a comprehensive organizational
conflict of interest policy. Hospital
ethics committees can and should
be recruited to develop organizational
conflict of interest policies.9
Regaining lost trust not easy
The stakes for physician executives
for providing, or failing to provide,
organizational leadership for
the prevention of ethically unacceptable
conflicts of interest are the
same for us as they were for
Gregory and Percival—whether
patients, payers, and society should
be willing to trust physicians, physician
leaders and health care organizations
intellectually and morally.
Poorly managed conflicts of
interest distort clinical judgment
and decision making, putting
patients at risk of under-treatment,
mistreatment or over-treatment and
sometimes putting their families at
considerable financial risk, given
increasing deductible and co-payments
in health insurance plans.
Poorly managed conflicts of
interest at the level of organizational
leaders and the organization
itself can and will undermine
public trust and confidence in
health care organizations.
Americans justifiably become a
very tough sell when our trust is
betrayed. Who among us will be
inclined to believe the next director
of the Central Intelligence Agency
when he or she reports that an
enemy of the United States has
weapons of mass destruction?
Suppose you are that next
director and you rightly judge the
evidence to be very convincing
indeed. The intellectual and moral
authority that you need to convince
us and our elected leaders of a
grave peril may have been squandered
by your predecessors.
We are justifiably reluctant to
give our trust back once our trust
has been betrayed. Being a physician
executive of a health care
organization that has betrayed the
public’s trust will be an equally
grim undertaking.
Physicians and physician leaders
should not want to work for
health care organizations that are
poorly led with respect to conflicts
of interest. Such organizations are at
serious risk of betraying the trust of
patients and the communities that
they serve.
Taking only a reactive approach
to conflicts of interest or, worse,
ignoring them altogether and hoping
they will go away or that no
one will notice, simply will no
longer do.
The ethical standard of leadership
with respect to the individual
conflicts of interest of physicians and
of organizational leaders and the
conflicts of interest of the organization
itself is a robust, sustained, highquality
preventive ethics approach.
Laurence B. McCullough, PhD, is professor
of medicine and medical ethics
and associate director for education
in the Center for Medical Ethics and
Health Policy, Baylor College of
Medicine, Houston, Texas. He is also
adjunct professor of ethics in obstetrics
and gynecology and of public health
at Weill Medical College of Cornell
University in New York City and
adjunct professor of philosophy at Rice
University in Houston. He currently
teaches the ACPE Interact course,
Ethical Challenges of Physician
Executives.
References
1. Chervenak FA, McCullough LB. “Clinical
guides to preventing ethical conflicts
between pregnant women and their
physicians.” Am J Obstet Gynecol 1990;
162: 303-307.
2. Chervenak FA, McCullough LB. “An ethical
framework for identifying, preventing,
and managing conflicts confronting
leaders of academic health centers.”
Acad Med 2004; 79: 1056-1061.
3. McCullough LB. John Gregory and the
Invention of Professional Medical Ethics
and the Profession of Medicine.
Dordrecht, The Netherlands: Kluwer
Academic Publishers, 1998.
4. McCrary SV, Anderson CB, Jakovljevic J,
Kahn T, McCullough LB, Wray NP, Brody
BA. “A national survey of policies of disclosure
of conflicts of interest in biomedical
research.” N Engl J Med 2000;
343: 1621-1626.
5. Rothman D. “Medical professionalism:
focusing on the real issues.” N Engl J
Med 2000; 342: 1283-1286.
6. McCullough LB. “A basic concept in the
clinical ethics of managed care: physicians
and institutions as economically disciplined
co-fiduciaries of populations of
patients.” J Med Philos 1999; 24: 77-97.
7. Chervenak FA, McCullough LB. “Physicians
and hospital managers as cofiduciaries of
patients: rhetoric or reality?” J Healthcare
Manag 2003; 48: 172-179.
8. Khushf G, Gifford D. “Understanding,
assessing, and managing conflicts of interest.”
In McCullough LB, Jones JW, Brody
BA, eds. Surgical Ethics. New York:
Oxford University Press, 1998: 342-366.
9. McCullough LB. “Preventive ethics, managed
practice, and the hospital ethical
committee as a resource for physician
executives.” HEC Forum 1998; 10: 136-151.
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