Michael S. Victoroff, MD

Michael S. Victoroff, MD

The other day, a lawyer called to ask me whether it was ethical for a doctor to accept a large bequest from a patient's estate.

He represented the daughters of an elderly gentleman, who moved from the East Coast to be closer to his children. After moving, the man located a new primary care physician — a young family practitioner recently out of residency just establishing herself in practice.

The patient's numerous medical issues made him a frequent visitor to his new doctor. He was happy with how she treated him on a professional level, and he also became personally fond of her. The friendship was mutual. They exchanged holiday cards and discovered they attended the same church. A few times, they attended church functions together. Despite their 40-year age difference, the doctor and patient cultivated a number of shared interests.

An ethical error

There was no impropriety. The man was widowed; the doctor was married. At all times they respected appropriate boundaries in both their professional and personal conduct. There was no obsession or infatuation on either side — just a level of comfort between an old man near the end of his life and a struggling young doctor, burdened with medical school debt and preoccupied with the stress of establishing herself in private practice.

As his health began to fail, the old fellow told the doctor two things. First, he had named her his "health care proxy" under his durable power of attorney. Second, he was going to leave her $100,000 in his will.

The doctor said something like, "You don't need to do that." But, she accepted the role of proxy defined in the advance directive. Not much later, the patient had a medical crisis and died suddenly. In the course of events, there was never a point when he was unable to make his own decisions under the terms of his advance directive. So, the doctor was never called upon to exercise her decision-making authority.

After their father died, his daughters discovered the large gift he had left the doctor in his will. They knew their father had had a social relationship with his doctor, and they generally understood that he had trusted her with medical decisions as well as his care. But, he hadn't informed them that his fondness extended so far — too far for the heirs' comfort. They hired an attorney to contest what they considered an impulsive and inappropriate provision of the will.

The daughters argued that it was unethical for a doctor to accept a gift of this magnitude from a patient, because it represented an improper inducement for services and tainted the doctor-patient relationship.

The daughters raise a reasonable question. We can list several potential kinds of mischief that can occur when doctors find themselves beneficiaries of their patients' estates. Yet, I'm not as concerned about this issue as I am about the primary care doctor playing the role of proxy decision-maker. Even though it turns out to be moot in this case, this is where I think the doctor made an ethical error. In combination, these two circumstances set up a conflict of interest that doctors should always avoid.

There are no doctor-patient relationships — or any human relationships — without conflicts of interest. My definition of a "professional" is "someone who can manage significant conflicts of interest." Physician-patient boundary issues are a subset of these. Many nonboundary conflicts of interest can be cured simply by disclosure and diligence. For example, I can't avoid the conflicts inherent in wanting time with my family, billing for my services, or treating adolescents. But I can almost always handle these by communicating honestly, following conventions, and keeping open my therapeutic "third eye."

In contrast, boundary problems necessitate stiffer discipline than most typical conflicts of interest. They can't as often be resolved with win-win solutions. For example, if a doctor and patient want to have a romance (assuming two single adults), the doctor-patient relationship usually shouldn't continue. Some ethical challenges can only be solved by a choice between incompatible options, each of which might be permissible standing alone.

Our young doctor finds herself in three roles: caregiver, decision maker, and heir. As a friend, she could be any one of these. But, being a decision maker is ethically incompatible with being a caregiver. And, it's unseemly and hubristic, if not outright inappropriate, for a nonfamily member to be both decision maker and heir.

There is enormous value to a patient in having a trusted noncaregiver close by, to help deflect medical errors and accidents, and to add perspective to medical decisions. This person can be a doctor — just not one providing care. Attending physicians should advise about treatments and options, and may even argue the merits of one over another; but, they should never have direct authority to make decisions, as a proxy does under a durable power of attorney.

Caregivers and decision makers have different accountabilities. Personal decision-making is often (properly) shaded by considerations quite apart from medical appropriateness. The healthy tension between personal values and standard of care can be balanced among separate individuals in ways that are impossible for one alone. For this reason, doctors should decline the role of health care proxy if a patient offers it. What I have often told patients is, "There are some services I don't offer; making your decisions is one of them."

Wide discretion granted

If the doctor sticks exclusively to the caregiver role, then accepting a bequest is a softer problem. There are still questions. Does this set up an expectation of special treatment (from either party)? Is anything improper going on, like extortion, guilt, or deception? If the answers are clearly no, then I have no problem with a physician being named in a patient's will.

Our society grants wide discretion to people disposing of their estates. People leave fortunes to their cats, weird political parties, and frivolous causes all the time — to the dismay and disadvantage of their heirs. Whimsy, perversity, and spite are all permitted. Our culture feels that fairness comes second to our right to distribute our goods freely after death (and taxes). This is part of the fun and drama of writing a will, as anyone who has done it knows.

Of course, this applies only in the absence of undue influence. If the patient was delusional or coerced to act against his own wishes, the gift is invalid. In this case, it sounds as if the patient was not impaired. He wanted to do a nice turn for his favorite physician. On his part, there's nothing unethical.

We mustn't be complacent about physicians' tendency to influence the passions of the people they serve. I would find it ghastly if it became a frequent custom for patients to name their doctors in their wills. This expectation, or even possibility, would set up a thousand unfortunate scenarios. But, it doesn't seem likely to become a trend, for all sorts of practical reasons. An occasional instance does not create a pattern, and there is no reason to declare a "slippery slope" where there isn't one.

This case illustrates a cardinal error that patients unwittingly can induce doctors to make. Hopefully, this young practitioner will take something more valuable than cash from this experience.

Michael S. Victoroff, MD, is a family practitioner in Denver.

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