Finding oneself in the hands of an unethical physician can be a terrifying experience. How can we know whether the physician to whom we entrust our bodies and our confidences seriously lacks medical ethics? Are government and medical community safeguards effective in weeding out unsafe doctors?
Fear of ignorant and venal physicians has been with us as long as the profession itself. Bad doctors have been caricatured in literature for centuries. George Bernard Shaw and William Shakespeare have used farce to highlight patient vulnerability to unscrupulous physicians. But in real life ethical failure is often masked by a convincing bedside manner. Neither educational nor performance credentials are infallible. Like it or not, the ethics of the physician provide us with our ultimate protection against harm when we receive medical care.
The potential of the physician to do great harm (as well as great good) has been recognized since ancient times. In addition, the susceptibility of the physician to dangerous moral lapses that can lead to serious harm has led to the creation of legal and ethical codes to protect patients.
First, Do No Harm——or Else
The Code of Hammurabi, the first written set of laws in human history, was created nearly 4,000 years ago by the ruler of Babylonia. Its system of clearly defined rewards and punishments set standards for many professions, including medicine. A surgeon who successfully saved a patient’s eye from a tumor received 10 shekels; one whose patient died under the knife had his hands cut off. Thus the niceties of ethics were eclipsed by the penalties for incompetence, whether it arose from lack of training, carelessness, or gross negligence. The code provided no excuses and made no exceptions, giving pause to aspiring physicians and inhibiting the performance of all but the most straightforward procedures.
Some 1,500 years later, Hippocrates, the great Greek physician on the island of Cos, formulated his Oath of the Physician. It, too, defined standards for physicians but in a very different way. Coming from within the medical profession, it aimed to motivate more than to frighten. This combination of external regulation under penalty of the law and self-regulation by a consensus of the medical profession has shaped medicine ever since.
The Hippocratic Oath
Through the ages, the Hippocratic Oath has provided the moral foundation for the practice of Western medicine. Generations of students, myself included, recited it on graduation from medical school. I found the experience very moving, providing me with an overwhelming sense of connection with generations of physicians past and yet to come, all dedicated to preserving the health of our patients and combating disease.
There are many versions of the oath. The following representative example appears in the Columbia Encyclopedia:
You do solemnly swear, each man by whatever he holds most sacred, that you will be loyal to the profession of medicine and just and generous to its members; that you will lead your lives and practice your art in uprightness and honor; that into whatsoever house you shall enter, it shall be for the good of the sick to the utmost of your power, you holding yourself far aloof from wrong, from corruption, from the tempting of others to vice; that you will exercise your art solely for the cure of your patients and will give no drug, perform no operation, for a criminal purpose, even if solicited, far less suggest it; that whatsoever you shall see or hear of the lives of men which is not fitting to be spoken, you will keep inviolably secret. These things do you swear. Let each man bow the head in sign of acquiescence. And now, if you will be true to this, your oath, may prosperity and good repute be yours; the opposite, if you shall prove yourselves forsworn.
This antique formulation still rings true to me. It is straightforward, inspiring, and unambiguous. It is also nonsectarian. The oath acknowledges the law but aspires to something higher. Good repute is the basis for good fortune. Unethical practice and breaches of trust are shunned without any legalistic loopholes. Medicine is a profession, and new physicians are inducted into it with a requirement to share responsibility and cooperate with colleagues. Justness and generosity involve transmitting one’s skills to the next generation of healers. The new physician commits himself or herself to all this. And it is all done for the good of the sick.
Although physicians like myself find such words highly compelling, others have noted the gap between intention and achievement. The oath has also been criticized as being long on principle but short on specifics. Even the punishment for moral failure (or worse) seems mild: Are poor reputation and poverty adequate penalties for immoral or even criminal behavior? An inherent conflict may also exist between the high calling to which the House of Medicine aspires and the clubbiness of the profession. Furthermore, should virtue be its own reward? Or is its linkage with material success simply a useful, self-reinforcing association?
Codifying Standards of Conduct
Perhaps such considerations led the nascent American Medical Association, in 1847, to adopt a detailed Code of Medical Ethics that ran more than 100 pages. The principles of the code were shortened to a preamble and seven short sections in 1980, then re-expanded slightly in 2001, into the version that follows.
I. A physician shall be dedicated to providing competent medical care, with compassion and respect for human dignity and rights.
II. A physician shall uphold the standards of professionalism, be honest in all professional interactions, and strive to report physicians deficient in character or competence, or engaging in fraud or deception, to appropriate entities.
III. A physician shall respect the law and also recognize a responsibility to seek changes in those requirements which are contrary to the best interests of the patient.
IV. A physician shall respect the rights of patients, colleagues, and other health professionals, and shall safeguard patient confidences and privacy within the constraints of the law.
V. A physician shall continue to study, apply, and advance scientific knowledge, maintain a commitment to medical education, make relevant information available to patients, colleagues, and the public, obtain consultation, and use the talents of other health professionals when indicated.
VI. A physician shall, in the provision of appropriate patient care, except in emergencies, be free to choose whom to serve, with whom to associate, and the environment in which to provide medical care.
VII. A physician shall recognize a responsibility to participate in activities contributing to the improvement of the community and the betterment of public health.
VIII. A physician shall, while caring for a patient, regard responsibility to the patient as paramount.
IX. A physician shall support access to medical care for all people.
Much is promised here. Is it too much, the right amount, or still not enough? Are the terms used clear to all or are all such codes merely collections of words? We can quibble over many things. Can all physicians be equally competent? What particular human rights do we mean? Formerly, physicians were told simply to deal honestly with patients and colleagues. Now, something called “professional interactions” has been introduced. Is this good?
Consider four more questions. First, does swearing allegiance to the AMA code inspire young physicians on the threshold of their careers? Second, does it foster an increase in self-serving, guildlike behavior or greater patient advocacy by physicians? Third, is it more important to appeal to the physician’s heart or mind when inculcating ethics? And, fourth and most important, which does more to protect patients: ethical discipline or a no-nonsense legal system?
Medicine has been dealing with unprecedented stresses in recent years. Rapid scientific advances have sharpened a focus on maintaining clinical competence. Information technology has heightened concern over the loss of privacy, aggravated by the intrusion of third-party payers and their access to confidential information. At the same time that medicine has become more bureaucratic, it has also become more legalistic, with increased interference and regulation by both governmental and private reviewers of such things as appropriateness of care and use of resources. One wonders if it is even possible to discuss medical ethics today without indulging in endless hairsplitting that may do more to establish loopholes than to maintain ethical purity. A careful reading of the nine AMA ethical principles reveals the fine hand of the lawyer in their crafting.
The biggest departure since the time of Hippocrates, however, is the change in the concept of physician responsibility. What began as an obligation to individual patients has now expanded to include specific duties to insurance carriers and government agencies and more general obligations to all of society. For example, medical care shall be consensual—except in emergencies. Physicians shall share “relevant information” not only with patients and colleagues but with “the public.” It is (fortunately) said that the responsibility to the patient under treatment remains paramount. Yet how this is to be achieved when the physician is concurrently participating in plans that attempt to do the greatest good for the greatest number (in HMOs, for example) is left unsaid.
The ambition of the dual role portrayed in the AMA principles raises the question of whether they embody (or even can embody) a realistic self-image for physicians or are merely an organizational response to rising social expectations. Are physicians, long accused of trying to play God, now being asked to do more than is humanly possible? Because of the important role that physicians play in crucial moments in everyone’s lives, there is a natural reluctance to think of physicians as human themselves. Yet, at some point, moral precepts that appear neither straightforward nor doable become boilerplate that inspires cynicism rather than commitment.
Moral Balance——or Back to Hammurabi?
Patients want dedicated physicians they can trust. Physicians want to feel good about themselves and what they do. Each party seeks a measure of security from the other. Ideally, a medical code of ethics should reassure both.
But the distinction between legal codes and ethical codes has become blurred. Hammurabi and Hippocrates clearly defined the two poles, each aiming to protect patients, but in different ways. Today, however, we have a massive medico-legal edifice, with laws against malpractice, state medical boards for licensure, the surveillance of medical practice, and the entire Fraud and Abuse section of the 1993 National Health Security Plan that was incorporated into Medicare regulations despite the defeat of the legislation in Congress. Medicare regulations alone run more than 100,000 pages, and there are 450 pages of privacy rules under the Health Insurance and Portability Act. There is no end in sight.
Medical ethicists seem to want to compete with lawyers in complexity and obscurity. The year 2001 saw the latest attempt to outdo Hippocrates with the promulgation of the Charter on Medical Professionalism. Created by three preeminent internal medicine organizations in the United States and Europe, it speaks in near-religious terms of “three fundamental principles and ten commitments” (the latter actually total 36 by my count when compound sentences are teased apart) that would challenge a genius to comprehend and a saint to perform.
Hippocrates did not view physicians as superhuman or in need of micromanagement. But paradoxically, as the power of medicine to do good has grown to previously unimagined levels, public trust in physicians has plunged. Although it is unclear whether this is due to rising societal expectations or the inadequacies of physicians, the resulting externally imposed behavioral controls are sapping physician morale and contributing to burnout and premature retirement.
Hippocrates helped me to remain a good physician more than did the web of ensnaring legal and regulatory threats that have become part of my everyday medical life in recent years. But I am not arguing for the elimination of Hammurabi as much as for an increased reliance on Hippocrates. The medical students I teach are brimming with idealism and altruism. These young people are not yet aware that what awaits them when they emerge (with an average educational debt that exceeds $109,000!) is not likely to be honor and prestige as much as a debilitating daily battering. Nitpicking and frustration will do more to erode their idealism and altruism than caring for patients. This is especially true for primary care physicians.
Despite all the energy and expense devoted to policing physicians, the good character of the physician still remains the strongest protection for patients. It is simply too easy for unethical physicians to inflict significant harm before the usual pitfalls of greed or carelessness expose them. Qualities of the physician’s heart, intangible as they are, should therefore not be tampered with lightly. Morality can neither be legislated nor imposed.
The AMA Code of Ethics and the Charter on Professionalism are too hard to grasp by individual physicians. Implementing their broader goals necessitates a partnership between a vibrant medical profession and its organizations and those who represent the rest of society. But as individual physicians seek to find ways to live a moral life in a market world, and as patients seek safety while in their care, the light shed by Hippocrates still burns brightly.
