1 Boring Old Man

Why Did US Physicians Give Up Their Ability to Enforce Their Own Professional Standards?
Healthcare Renewal
by Roy Poses

June 26, 2009

In his recent review of Dr Ezekiel Emanuel’s book, [Healthcare, Guaranteed: A Simple, Secure Solution for America,] Dr Arnold Relman, Editor-Emeritus of the New England Journal of Medicine, discussed the history of the deprofessionalization of American physicians.

The behavior of US physicians has been changed by the commercialization of medical care, and this too has increased costs. US medical practice has traditionally relied on fee-for-service, which has always given it some of the attributes and incentives of a business. However, the American Medical Association (AMA) maintained for many years that medical practice was a profession, not a business. The AMA’s ethical guidelines therefore advised physicians to limit their income to reasonable earnings from the care of patients, and to refrain from advertising and from entering financial arrangements with drug and device manufacturers. Those restrictions were lifted after the US Supreme Court decided in 1975 that lawyers, and by extension members of other professions, including physicians, are engaged in interstate commerce and therefore must be subject to antitrust law [from which they had largely been exempt].
This decision had an enormous effect on the medical profession, but its consequences have received relatively little public attention. Although the courts did not initiate the commercialization of medicine, they certainly accelerated it and gave it legal justification. In 1980, after medical organizations lost some costly antitrust trials, in which they were accused of such offenses as limiting doctor fees or denying staff privileges, the AMA changed its ethical guidelines, declaring medicine to be both a business and a profession. This lowered the AMA’s barriers to the commercialization of medical practice, allowing physicians to participate in any legal profit-making business arrangement that did not harm patients…

Writing about the decline of physicians’ professionalism in 2007 [Relman AS. Medical professionalism in a commercialized health care market. JAMA 2007; 298: 2668-2670], Dr Relman had briefly alluded to the effect of the 1975 Supreme Court decision [see our post here]:

The law also has played a major role in the decline of medical professionalism. The 1975 Supreme Court ruling that the professions were not protected from anti-trust law undermined the traditional restraint that medical professional societies had always placed on the commercial behavior of physicians, such as advertising and investing in the products they prescribe or facilities they recommend. Having lost some initial legal battles and fearing the financial costs of losing more, organized medicine now hesitates to require physicians to behave differently from business people. It asks only that physicians’ business activities should be legal, disclosed to patients, and not inconsistent with patients’ interests. Until forced by anti-trust concerns to change its ethical code in 1980, the American Medical Association had held that ‘in the practice of medicine a physician should limit the source of his professional income to medical services actually rendered by him, or under his supervision, to his patients’ and that ‘the practice of medicine should not be commercialized, nor treated as a commodity in trade.’ These sentiments reflecting the spirit of professionalism are now gone.

I guess I have an anachronistic Medical Superego – the one I was taught in the 60’s. I’m kind of glad I didn’t know about the change. The old way makes more sense to me. I don’t accept honoraria when I give talks, or when I do outside work. I paid out of pocket for my Training Analysis rather than use insurance. My fees were lower than most. It is, to me, a standard that seems to be one of the great things about Medicine – "the American Medical Association (AMA) maintained for many years that medical practice was a profession, not a business" – something to be proud of. I’ll be the first to acknowledge that there are some solid neurotic reasons for having held that position for over forty years. There always are. We all have childhoods to grapple with. But understanding those intrapsychic conflicts didn’t change much. People sometimes act like I’m being pathologically humble or naive when I don’t join in the business thing – some kind of warped idealism. I’m not the one to evaluate that assessment. But what it feels like to me is a rational part of a doctor-patient covenant – that it’s more about trying to relieve suffering than about making profits. Medicine pays well enough doing it my way to have a decent life and retirement.

I’m saying this because of that article up there and because of this – the document cache amassed by Senator Grassley and Paul Thacker in their investigation of Emory and Dr. Nemeroff. In particular, there’s a listing of his dinner meeting speaking engagements from GSK [makers of Paxil] from 2000 to 2006 that I’ve never looked over. This is 1 page of 39 pages!

And GSK was not his only customer during the period. Here are some of the others [notice "Selected"]:

He clearly never even heard of the old standard that I liked so much: ‘in the practice of medicine a physician should limit the source of his professional income to medical services actually rendered by him, or under his supervision, to his patients’  ‘the practice of medicine should not be commercialized, nor treated as a commodity in trade.’ But I’m pretty sure that he didn’t even live up to the new standard, "… allowing physicians to participate in any legal profit-making business arrangement that did not harm patients." The Internet bristles with people who think he did just that – made business arrangements that actually harmed patients.

From the tenor of his lawyers’ letters in his response to POGO, they threaten to  bring damage suits  and his lawyers seem to think that they can limit the suit to the fact that the documents in the POGO letter don’t prove that the book was ghost-written [it quacks like a duck to me…]. They further seem to think that they can make it an ad hominem suit because of Thacker’s previous work with Senator Grassley. And they would likely try to keep data like that above or of other cases involving STI out of the suit altogether – limit things to simply the "ghost-writing" of that specific book. I frankly think they’re smoking something. Nemeroff’s overall relationship with GSK is relevant. All documents from STI having to do with this book and other such cases are relevant. So Nemeroff is playing with opening himself [and GlaxoSmithKline] to a level of legal discovery that could bury them all.

I think there’s an unfortunate twist to this story. It seems clear to me that it would be in Medicine’s best interest to move back closer to the pre-1975 standard. Being "just another business" is no way to posture for our future or our patients’ future, particularly with the rising costs of healthcare guaranteeing that some form of healthcare reform is on our horizon – even more than the recently passed version. Physicians as simply a cog in the industry wheel lose something valuable – patients lose something valuable too. At least that’s what I think. The unfortunate part of this Nemeroff story is that it tarnishes the whole profession, particularly by staying on the front burner so long – yet it’s just too ludicrous to call attention to the overall destructive trend of "businessification" in medicine. The Nemeroff apple is so thoroughly rotten that it eclipses looking at the rest of the barrel – just like the Madoff story is too off-the-wall to focus us on the overall Hedge Fund Industry.

NIH must take a firm stance against ghostwriting, both to protect public health and the integrity of NIH funding. We ask that you implement new policies that will require institutions to ban ghostwriting, and to make NIH funding contingent upon periodic certification from institutions that ghostwriting is strictly prohibited and that enforcement mechanisms such as disciplinary action and dismissal are in place. Setting this example will improve the integrity of federally funded science. Additionally we ask that you fund seminars and research on ghostwriting to educate physicians about this practice and ensure that it disappears from biomedical research altogether.

It seems to me that Dr Relman has elucidated one of the "missing links" that help explain the current sorry state of physicians’ core values, and the broader continuing health care crisis. I am amazed that this bit of history seems to have been so thoroughly forgotten. Dr Relman did write about it before 2007, but in publications that few physicians and other health care professionals were likely to see. Other than Dr Relman, almost no one writing in the medical and health care literature seems to have interest in this issue… Yet in my humble opinion, every physician and health care professional ought to know that the profession once foreswore the commercialization of medical practice, but gave up on its ability to police its own conflicts of interest after the US Supreme Court decided that professionals are subject to anti-trust law. But knowing this important bit of history raises more questions than it answers:

• The Supreme Court decision apparently involved interpretation of law, not the constitution. Therefore, why didn’t organized medicine pursue a change in the law that would allow physicians to continue to enforce their traditional professional values?
• The Supreme Court decision was primarily directed at lawyers, not physicians. Since the decision, to my knowledge, the law profession has maintained strict rules about conflicts of interest [For example, no legal CME is sponsored by corporations whose products they seek to have the attendees favor]. Why did the decision wreck physicians’ but not lawyers’ abilities to regulate their own conflicts of interest?
• The Supreme Court decision only affects US law. Why have physicians in other countries also abandoned their traditional values about commercial entanglements?
• Why did this application of US antitrust law have such significant effects during an era when antitrust enforcement in health care was generally declining [Insurance companies and hospitals that dominate local markets have not feared antitrust enforcement]?
• Why did only Dr Relman and Prof Bloche seem to care about this up to now?

Inquiring minds want to know…. And answering these questions might bring us back on the path of true medical professionalism.