You feel vaguely uncomfortable as you are placed in a darkened room in the Comfort Care wing of the hospital. In moments of lucidity, you wonder if you shouldn’t have some oxygen, an IV or SOMETHING! But the appropriate therapy, kidney dialysis, is not on the approved list of treatments for patients over 65, having been deemed too expensive. The new regulations from the Department of Health and Human Services were presented just last month to your hospital’s Futile Care Committee. It was decided at the highest levels that for those over 65 years of age, renal dialysis would not be a beneficial treatment, that the alternatives of a kidney transplant were too expensive, and that your quality of life on chronic dialysis would be too diminished.
Your children wonder why you are not in an ICU. They are told that you will be placed on a morphine drip to make you more comfortable as you pass away, and that this is the highest standard of care for your diagnosis and age. It is called terminal sedation. You signed an advanced directive indicating that you did not want extraordinary care for a terminal condition, and under the new protocols renal failure, although treatable, qualifies as a terminal condition.
Your children frantically try to find their old family doctor. But your health plan replaced him with a large group of younger physicians, the hospital’s Consortium for Health, a private-public foundation that was created to promote efficiency and reduce wasteful spending in medical care. By 2014 when he left, your family doctor was a dinosaur, having been trained in an earlier era. His medical school was one of the last to retain the original Hippocratic Oath. It affirmed the covenantal relationship between the physician and patient, overseen by God, and that whatever the physician did would be for the patient’s benefit. You had felt safe entrusting your health to Dr. O’Brien’s professional judgment.
Not only did the Hippocratic Oath your doctor took decades ago took specifically forbid physician assisted suicide and abortion, it also established patient confidentiality so that your secrets would never be disclosed. That is, until 2012, when physicians participating in the national healthcare system, which included ALL licensed physicians, were mandated to submit your visits to the unified electronic medical record system. This data base was created in 2003 to coordinate medical care, detect emerging health threats, and exchange clinical information. Your doctor was very uncomfortable with this policy despite reassurances that HIPAA regulations would maintain your privacy.
But forces beyond any individual’s control began to erode your relationship with your doctor long before he left the practice of medicine. The insurance companies stopped paying him in the late 1990′s for hospital care, preferring to hire “hospitalists” or “intensivists” for greater efficiency in reducing hospital stays. Since office visits were reimbursed at lower and lower rates, your doctor had to see more and more patients in the office to just stay even. So although O’Brien knew you well and was trained to treat conditions such as renal failure or pneumonia, he stopped treating patients in the hospital.
Around 2007 both the hospital and office physicians began to be paid by a formula that rewarded them for saving money on medical care. When your family doctor was forced to join the Consortium in 2012 because the health plans stopped contracting with individual physicians, a powerful new computer system tracked each doctor’s prescribing habits, referrals to specialists, and utilization of expensive lab tests. But your doctor was an “outlier” in this new system, having been brought up in Hippocratic tradition of doing what was necessary for the individual patient, rather than the Greater Good, the newer communitarian ethic followed by the younger doctors. He was financially penalized for doing too much for his patients, since the formulas based 30% of physician income on “efficiency.”
Your old doctor could tolerate the erosion of his income, but had trouble with the new regulations that insisted that he discuss and refer for “all legal procedures.” Since by 2013 physician assisted suicide was legal in 21 of 50 states, the Consortium enumerated the conditions that mandated the “euthanasia talk”, including multiple sclerosis, metastatic breast cancer, and many others. He could never actually bring himself to violate his original Hippocratic Oath that not only forbade assisting his patients in committing suicide but also prohibited even mentioning it. It was impossible to rid himself of the idea that a physician’s role was to assist in healing and that medical killing was antithetical to his professional integrity.
Back in 2007, ACOG, the ob/gyn’s professional organization, issued Ethics Committee Opinion 385, contending that ob/gyn doctors had the duty to either do abortions or have offices in close proximity to abortion doctors to whom they would refer patients. There was an outcry from professional organizations of pro-life ob/gyns, Catholic physicians, and other Christian doctors. Especially troubling to many was the assertion in Committee Opinion 385 that defined conscience as a sentiment, and measured its “authenticity” by the degree to which a provider would suffer “guilt, shame or loss of self esteem” if it were violated. Your doctor and many of his colleagues regarded medical killing as anathema, and were incensed by describing their integrity as a physicians as a “feeling”. But by 2013 the protests had died down, and the ethics committee recommendation for ob/gyn’s had evolved into a mandate for family practice doctors under new rules enforced by the Department of Health and Human Services.
The final blow came in early 2014. Back in 2008, in Benitez v North Coast Women’s Care Medical Group, the California Supreme Court ruled against ob/gyn doctors who did not want to provide intrauterine insemination to a lesbian couple because of their religious beliefs. Although most European nations did not allow the buying or selling of eggs or sperm, and restricted fertility therapies to heterosexual married couples, the California courts not only permitted but required health care providers to cooperate in any reproductive therapies for any patient regardless of sexual orientation or marital status.
Although the birth of octuplets in 2009 with assisted reproductive technology to a single woman with six other children initially created a brief public uproar, ultimately no legislation was passed protecting physicians who did not want to participate in a patient’s procreative endeavor. Your physician had a 68 year old bipolar single male patient who wanted to have an heir. The patient requested that your doctor appeal to the Consortium to provide him with a donated egg and surrogate mother for his desired offspring. Since your doctor did not want to be used as a tool in his patient’s peculiar agenda and was legitimately afraid of an expensive lawsuit that would decimate his dwindling retirement funds if he refused, he decided at this point to quit medicine altogether and move to a sunny warm state.
Your family doctor had been inspired as a young man by study of the U.S. Constitution and other foundational documents that he thought would forever ensure his liberty. He had studied the same “Rules of Civility” that the young George Washington had encountered in 1747. One of the most memorable of these maxims was “Labor to keep alive in your breast that little spark of celestial fire called conscience.” It was clear to him that conscience here referred to man’s innate understanding of moral right and wrong. When the American Founders would later declare independence from Great Britain in 1776, it was by virtue of this “spark of celestial fire” that they would establish the principles of human equality, unalienable rights, and government by consent as the foundations of American constitutional government.
Just before he left for his retirement home, your doctor was deeply disturbed to see the concept of conscience mocked in the New England Journal of Medicine by University of Wisconsin law professor R. Alta Charo in her article “The Celestial Fire of Conscience – Refusing to Provide Medical Care.” Charo’s presentation did not acknowledge that many Americans do not believe that abortion, assisted suicide, and embryonic stem cell therapies are legitimate medical care in the first place. Her article also did not distinguish between emergency and elective care, and merely regards the health care provider as a tool for whatever ends the patient wants to achieve. Attorneys such as Ms. Charo claimed the right to take whatever cases they want, but seem deny the same basic right to physicians. Patients can always seek the care of other providers.
Your doctor (and many other Americans) believed that failure to protect physician conscience will destroy the trust and accountability that is essential to the physician patient relationship. If the physician and patient cannot freely collaborate, ultimately another agenda — that of the health plan or state — will replace it, to everyone’s detriment.
Dr. Davenport is an obstetrician/gynecologist in private practice in El Sobrante, California.
