Can Doing the Right Business Thing Protect Physicians From Liability?

Physicians and executives worried about liability are starting to pay some serious attention to ethics. Physicians know that ethical breaches could cost them something more than patients and money: their reputations for professional integrity.

Can lawsuits be avoided when there is barely office time to write out selective serotonin reuptake inhibitor prescriptions, much less discover that a patient’s daughter was hospitalized last week for a drug overdose?

Doing the right thing was never so safe. Or so necessary.

Billing, coding and referring

Many systems push physicians to be worker bees and produce more for less. Rapid patient turnover has many forms, and one of them is “churning”–seeing patients weekly for blood pressure checks or monthly for cholesterol tests, for example. Medicare measures to reduce churning are weak and easily evaded.

“Churning” should have gone out with home butter production. Most physicians hate it, and it fits poorly with who most of us are–entrepreneurial, achievement-oriented, independent.

It is one thing to hold seminars instructing physicians how to bill for procedures previously unrecognized as compensable (complex family meetings, for example). It is quite another to ignore or encourage systematic upcoding, unbundling of procedures or gaming the system to code what is not there.

Subtle coding changes can become routine within a matter of weeks, and soon they don’t seem like changes at all. Some English generalists have described dialysis to eligible 60-year-olds as “not indicated” when in truth it was not available because of systemwide allocation decisions. As economic forces have changed clinical judgment, so have they changed coding judgment.

Business judgment can also be distorted by the promise of easy money. Self-referral and kickbacks are not made any more beneficent because they are filtered through a hospital or hospital system. Physicians caught with their hand in the till are destined for the same kind of cell as the executives who hired them–or maybe one not quite as nice.

Referral has another dark side. It has been an ethical problem since the first time someone told a primary care physician that his or her patient could not see a specialist. Shortly thereafter, a specialist demonstrated that a primary care doctor had missed a melanoma, or had inefficiently managed a myocardial infarction, or had only three days’ laparoscopy training before offering the procedure.

Issues of professionalism, competence, education, and promise-keeping are raised when a referral is denied or approved with conditions. Unknown specialists 26 miles from the patient’s home or office are inconvenient and often transient, as whose turn it is to be credentialed seems to change annually. Inconvenience and confusion seem certain to frustrate, discourage and anger any middle-aged patient with nephrotic syndrome who, after all, wants only to know whether he or she really needs a kidney biopsy.

From student days onward, physicians probably learn best from each other, about particular cases, and in informal settings– the parking lot, the clinic hallway, the Internet chat room. Pushing doctors to spend less time learning about their patients can only make for reduced doctor-patient communication, greater feelings of inadequacy and vulnerability, and a void where professionalism should be.

Physicians change behavior in response to the law, and especially in response to malpractice suits. Harvard researcher Lucian Leape, M.D., and colleagues have documented that only 5 percent of significant inpatient errors are ever reported. Those reported are often linked to patient satisfaction and doctor-patient communication.

Unfortunately for physicians, the first things to go in shortened office visits are psychosocial interactions. The core components of patient satisfaction–emotional support, attentiveness and partnership–are hard to provide in 10 minutes of face time.

Physicians who want to stay employed have heard the time-crunched message. Dissatisfaction and some patient turnover are now expected, but also unnecessary.

Johns Hopkins’s Debra Roter and colleagues recently documented very high satisfaction with visits that just discussed problems of daily living, feelings and social relationships. Physicians liked these visits, and they also liked “consumerist” visits, in which they answered questions about patient health instead of asking them.

Contracts are the bane of many physicians’ existence, because many of us were never trained to read them, or have been too naive to hire someone who can. No-appeal restrictive covenants, 30-day deselection and gag clauses are immoral facts of too many lives.

The doctor-patient relationship now usually depends on a payer for its existence, and the real payer is the employer. Health insurance is linked to employment, and job security is history. Presto chango: The doctor-patient covenant is now a contract, easily truncated by someone else’s pen.

When Congress legislates how many days a patient should be hospitalized, or what disease du jour should receive special allowance, the quality of care goes down. Congress didn’t go to medical school– most of it, anyway–and it has never seen a patient in the middle of the night or on Saturday afternoon. Doctors and patients, not legislators, should make therapeutic decisions.

Managed care could provide the very best for our patients and tap our creativity and compassion. It could reward patients who do more for themselves. It could find diabetics and hypertensives just as soon as they enroll, and prevent complications. It could use ethics committees to review policies before they are implemented. It could create a clinical consulting service for tough cases. It could recommend guidelines on limitation of marginal and futile treatment.

By Porter Novelli’s recent assessment, managed care companies are rated only slightly more believable than tobacco companies. Tobacco’s legal time has come: managed care is next, unless it finds a way to support physicians who want to solve ethical problems before they become legal ones.

Managed care has this chance, before its physicians are sued for unethical business practices that have sullied managed care medicine’s reputation and made it one of the least trusted industries in America. Corporate integrity programs help comply with regulations, but few physicians have the time to call another 800 number while their patient waits.

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