Should ethical and legal standards for physicians be changed to accommodate new models for rationing health care?

• Author: Hirshfeld, Edward B.
• Position: The Law and Policy of Health Care Rationing: Models and Accountability

INTRODUCTION

This Commentary provides a physician-oriented perspective on rationing health care.(1) It frames the rationing issues that are facing physicians and suggests ways in which they should be handled.

Americans expect that all people should have access to health care when it is necessary for the diagnosis or treatment of an illness or injury.(2) This ideal is based on our perception that health care can be essential to the maintenance of life itself, and may also be essential for the enjoyment of life free from disability. Health policy in the United States has long been oriented towards assuring that all Americans have access to needed health care, and enormous progress has been made during the past fifty years to achieve that goal.(3) It has not, however, been attained. Implicit, market-based rationing(4) has always existed in the United States and continues to affect a substantial number of Americans. While about 85% of the population is covered by a health plan that finances needed health care, there are thirty-four to forty million individuals who are not covered by a health plan.(5) In addition, of those Americans who are covered by a health plan, it is estimated that twenty million are underinsured, meaning that they do not have adequate coverage.(6)

During recent years, our progress towards attaining the ideal of 100% access to needed health care has been threatened by rapidly increasing expenditures on health care.(7) The increases are straining the ability of payers to maintain existing levels of coverage and are hampering the effort to expand coverage for the uninsured.(8) As a result, there is great concern that the United States will lose many of the gains already made as a result of efforts to attain the ideal, unless solutions to the cost problem are found and implemented.(9) The reasons for the cost problem are numerous, but they can be organized into two categories: (1) inefficiencies in the finance and delivery of health care, and (2) fundamental factors that could not be altered by eliminating inefficiencies. Two types of solutions have been proposed to resolve the problem of increasing costs--one optimistic and the other pessimistic.

The optimistic solution is to rein in costs and bring the economics of the health care system into balance by eliminating inefficiencies.(10) A variety of health system dysfunctions would be targeted by these efforts, and numerous methods have been proposed to correct them, ranging from comprehensive government regulation to the introduction of controlled-market forces. A procedure that would be used by all the different proposals and that may be essential to the success of any is the development of criteria and techniques to distinguish needed care from unnecessary services. It is believed that one of the dysfunctions in our current system is the provision of substantial amounts of care that is not needed.(11)

The pessimistic solution assumes that elimination of inefficiencies will not solve the cost problem because fundamental factors--an aging population, advances in technology, and structural inflation--will continue to increase costs more rapidly than the underlying rate of inflation for the economy as a whole.(12) Pessimists argue that rationing is the inevitable solution to cost increases, and they advocate that new models of rationing be developed. Some propose explicit rationing schemes under which health care would be allocated pursuant to equitable principles arrived at through an open and democratic process.(13) Others advocate more sophisticated versions of our existing system of implicit rationing.(14)

Some scholars have suggested that the standard of care in medical malpractice litigation be altered to accommodate explicit rationing or new forms of implicit rationing.(15) The political reality, however, is that Americans generally do not want a comprehensive explicit rationing scheme or new forms of implicit rationing--they want access to needed health care. Therefore, the optimistic solution has been embraced by politicians and policy makers and efforts are being made to implement it.(16) As a result, the problem that deserves our attention is not how to accommodate new forms of rationing; rather, it is how to define necessary as opposed to unneeded care.(17)

Under our current system, physicians and other providers make decisions about necessity in consultation with their patients, payers second guess those decisions, and courts may review the performance of providers and payers in malpractice or other tort litigation. Neither medicine nor law has a usable or reliable methodology or set of principles in place to distinguish between needed and unnecessary care, although one major theme followed is that the best interests of the patient should be the overriding concern when determining what care should be provided.(18)

Decisions about necessity, however, are based on case by case determinations aided by the judgments of medical professionals as opposed to the application of a set of predetermined criteria.(19)

Currently, physicians and others are attempting to develop criteria for the identification of unnecessary care.(20) The issue is important because where the boundary is set defines the difference between the withholding of unneeded care and the failure to provide or recommend needed services (i.e. malpractice). Ultimately, the boundary defines the difference between rationing and withholding of unnecessary care. One of the primary issues involved in defining necessary care is the extent to which the societal interest in conserving costs should be taken into account. While economic considerations have not been totally excluded by physicians and courts in decisions about what care should be provided to a patient, such considerations have not played a major role. In deliberations about the extent to which the societal interest should be taken into account, it may be possible to redefine-as the provision of unnecessary care--the withholding of certain types of care that providers and courts would now consider to be rationing.

Physicians will play an important role in the process of defining what constitutes unnecessary care. They will provide the medical information necessary to form opinions about whether care should be provided in certain situations, and they will also develop and advocate their own opinions about necessity. This Commentary argues that physicians should adhere to traditional patient-interest oriented ethical and legal standards when developing medical information and forming opinions about necessity. Other societal institutions, including legislatures, regularoty agencies, and courts, may choose to override physician opinions about necessity and give greater weight to the societal interest in conserving costs. Given that these institutions have the ability to do so, and given that they are ultimately accountable to the populace in a representative democracy, it is appropriately their role to make such decisions and there is no reason for physicians to abandon their traditional role as the patient's advocate. If that role is abandoned, we lose something of incalculable value.

1. CAUSES OF RISING COSTS

   The debate over how to control costs is crucial to the issue of whether rationing can be eliminated. There are two basic reasons for cost increases: rising prices for health care services and increases in the volume and intensity of services.(21) The problems are interrelated in cause and effect. It is not enough to bring one problem under control without the other. Increases in prices can offset savings achieved by reducing volume, and volume increases can obliterate savings achieved by reducing prices. Of these two problems, however, the more difficult one is controlling volume and intensity. Prices can be limited by government price control regulations or the introduction of market forces. The Gordian knot is whether volume can be controlled without denying people needed care.

   As was mentioned earlier, many observers believe that it is possible to bring volume and intensity under control without denying anyone needed health care; others disagree.(22) To understand the differences in these perspectives, it is necessary to examine the perceived causes of health care cost increases. There appear to be multiple causes, but the extent to which each cause contributes to cost increases is not known. Some of the problems are external to the health care system, which means that the problems cannot be eliminated by altering health policy. Other problems exist within the health care system and therefore can be more easily resolved. The major factors thought to contribute to increases in volume and intensity are discussed below.

   1. Factors Internal to the Health Care System(23)

      1. Health Insurance and Government Health Plans

         Perhaps the most significant contributor to increased health care expenditures is the spread of private health insurance programs and the creation of Medicare, Medicaid, and other government health plans. Employer sponsored health insurance and subsidized government plans insulate patients from the price of health care.(24) Historically, the existence of health insurance and government plans also insulated providers from their own costs. Insurers and health plans generally paid for medical care on the basis of "usual, customary, and reasonable" fees and charges.(25) Some insurers simply paid the usual and customary fees or charges of providers, while others based their payments on the average amounts claimed for specific services by the providers in a community.(26)

         Insulation from costs encourages patients to select providers on the basis of perceived quality and to disregard differences in fees or charges among providers.(27) This propensity of patients causes providers to compete by attempting to offer better quality, which often means investing heavily in new medical technology.(28) Protection...