The impact of the adoption of gag laws on trust in the patient-physician relationship

Physician organizations, policy makers, and patient advocates have expressed concern that health plans have contractually limited the freedom of physicians to communicate with their patients. In response, many states have adopted gag laws that limit the ability of managed care contracts to restrict patient-physician communication. We examine the impact of these laws on patient trust in the physician. We analyzed patients' ratings of trust in their physicians in states before and after adoption of gag laws. Individuals in states that had such laws throughout the study period were used as the comparison group. The analysis is based on a nationally representative sample of adults obtained from the 1996-1997 and 1998-1999 Community Tracking Study Household Surveys. After adjustment for patient characteristics, it was estimated that the adoption of gag laws had no statistically significant impact on trust in the physician for the average patient. However, the adoption of gag laws is estimated to have increased trust in the physician by a modest amount (25 percent of a standard deviation) for health maintenance organization (HMO) enrollees who did not have a usual source of care. Gag laws may assure HMO enrollees without a usual source of care that their physicians are free to speak candidly about treatment options. This does not necessarily imply that physicians are prohibited from speaking freely in the absence of such laws, but gag laws indicate concerns (justified or not) that patients have about unrestricted communication with their health care providers.     

Physician Participation in Executions: Care Giver or Executioner?

The "medicalization" of the death penalty has ignited a debate, by those within the medical profession and by others outside it, about the appropriateness of physicians participating in state-sponsored executions. Physicians participating as "agents" of the State in executions argue that their presence ensures a more humane execution. Opponents argue physician participation violates the Hippocratic Oath which states clearly that physicians should never do harm to anyone. How any physician, who is dedicated to "preserving life when there is hope," can argue that taking the life of a healthy person because the state commands it is in the patient's best interest, and does not conflict with the goals of medicine is beyond comprehension. Physician participation in executions is unethical because it violates the four basic principles that govern medical ethics: respect for persons, beneficence, nonmaleficence, and justice.     

Dr. Death? Professionalism,Virtue, and U.S. Physician Participation in the Death Penalty

In the United States at present, the death penalty is a possible sentence in 31 out of 50 states, as well as within the military and for federal cases. In the U.S., numbers of executions are declining, in part due to moratoriums in place and challenges to execution by lethal injection. Participation by physicians in lethal injection executions has been steadfastly viewed by professional medical organizations as contrary to their ethical standards. However, physicians have participated in lethal injection executions, and the morality of the death penalty itself is a matter of intense social and political debate. Medical ethics commentators and professional organizations have typically held that the prohibition on physician participation in the death penalty is independent of the ethical status of the death penalty itself. This article argues that this view is untenable, and that it is tied to a view of professional role virtue that is similarly untenable. At the same time, it argues that, given the morally uncertain status of the death penalty, it is plausible that virtuous physicians may either refuse or choose to participate in some aspects of the death penalty.     

The Department of Health and Human Services issues proposed regulations on physician incentive payments by hospitals

Hospitals tempted to operate their own physician incentive plans are reminded that, under OBRA 1986, they are precluded from paying physician incentives of any kind to reduce or limit Medicare or Medicaid covered services. In light of the proposed regulations and the guidance of the preamble, hospitals should review their incentive plans to determine whether physicians providing direct patient care are receiving prohibited payments. Further, supervising physicians who are receiving incentives for certain hospital departments may not influence direct care over patients served by those departments, even through other physicians. Some risk may also exist if incentives are based on a formula that considers patients of the supervising physician's medical group. Finally, it may be useful to develop a utilization and quality of care review program specifically designed to assure that patient undertreatment does not occur as a result of any supervising physician incentive program.     

Health law and mental health law courses in US medical schools

Results of a recent survey of all 127 medical schools in the United States indicate that about two fifths of medical schools offer a separate course that focuses on topics in medicine and law and a number of medical schools integrate health law topics into other courses. Presumably reflecting concern over temporary medical malpractice litigation, most health law courses include informed consent, medical malpractice, privileged/confidential information, and patients' rights. In contrast, schools that offer a course on psychiatry and law are clearly in a minority. It is elective at all but two of the 13 schools with such a course. Although the hours allotted and the format of these courses vary greatly, courses typically cover most of the topics listed on the questionnaire. Most of the courses are led or co-led by a member of the American Academy of Psychiatry and the Law. Information from two additional surveys suggests two related factors that may influence a medical school to present a separate course on health law. Medical licensing boards were surveyed to determine which states require physicians to be examined on health law. In two states that require physicians to pass a separate medical jurisprudence examination for licensure, all four-year medical schools offer a course on health law for medical students. Medical malpractice companies providing coverage in all 50 states and the District of Columbia were surveyed to determine which states have the highest claim rates. The claim rate per 1,000 physicians insured per year was significantly greater in states with health law courses than was the rate in states without such courses.     

Physician noncompete agreements must be carefully tailored

When covenants not to compete are used, care must also be taken that they are not viewed as a violation of the Medicare anti-kickback statute, 42 U.S.C. Section 1320a-7b(b). Some government officials have asserted that, when physicians selling their practices continue to be affiliated with the buyers of those practices, payments to physicians for intangibles (including covenants not to compete) could be disguised payments for future referrals. See Dec. 22, 1992 letter from D. McCarty Thornton, General Counsel to the Office of Inspector General, to T. J. Sullivan at the Internal Revenue Service. Although the anti-kickback statute is beyond the scope of this article, it must be considered in this context, and care should be taken in any event to assure that purchase prices for physician practices in no event exceed fair market value.     

Tort Reform and Physician Sanctioning

This article examines the relationship between changes in tort rules and the sanctioning of physicians by state medical boards. It compares the sanctioning rates for doctors in states that have passed tort reforms with the rates in states that have not made legislative changes. It concludes that alterations to the joint liability rule may have increased sanctioning, while the addition of pre–trial screening panels and regulation of attorney fees may have limited the number of physicians who receive punishment.     

Medical advances in transsexualism and the legal implications

Transsexualism is a condition wherein an individual's psychological gender is the opposite of his or her anatomic sex. The general belief now among behavioral scientists and physicians is that it is an identifiable and incapacitating disease, which can be diagnosed and successfully treated by reassignment surgery in carefully selected patients. Although many advances have been made in the reassignment surgery techniques, phalloplasty still remains a major challenge; to date, no ideal technique has been developed. The new gender created by the reassignment surgery has, in turn, led to many legal complications for postoperative transsexuals because states and the judiciary have not recognized the new gender. However, with wider acceptance of transsexuals by society, this outlook has changed for the better, with many states amending their laws in accordance with the advances in medical sciences. But in many developed and the developing countries, transsexuals are not given a legal identity, thereby adding to their agonies and miseries.     

Ethical issues in managed care: can the traditional physician-patient relationship be preserved in the era of managed care or should it be replaced by a group ethic?

Over the last decade managed care has become the dominant form of health care delivery, because it has reduced the cost of health care; however, it has also created serious conflicts of interest for physicians and has threatened the integrity of the traditional physician-patient relationship. In this Article, Dr. Grochowski argues that the efficiencies created by managed care are one time savings and will not in the long run reduce the rate of rise of health care expenditures without a concomitant plan to ration health care. He explores the traditional physician-patient relationship and concludes: a) that while rationing of health care is inevitable, physicians must not ration care at the bedside; b) that physicians must be advocates for their patients; c) that physicians must avoid conflicts of interest whenever possible; d) that physicians must put the needs of the patient before their own self-interests; and e) that physicians must act in ways to promote trust in their relationship with patients.     

The Fate of the State Revisited

The State, which during the three and a half centuries since the Treaty of Westphalia (1648) has been the most important and the most characteristic of all modern institutions, appears to be declining or dying. In many places, existing states are either combining into larger communities or falling apart; in many places, organizations that are not states are challenging them by means fair or foul. On the international level, we seem to be moving away form a system of separate, sovereign, legally equal, states towards less distinct, more hierarchical, and in many ways more complex political structures. Inside their borders, it seems that many states will soon no longer be able to protect the political, military, economic, social and cultural life of their citizens. These developments are likely to lead to upheavals as profound as those that took humanity out of the middle ages and into the modern world. Whether the direction of change is desirable, as some hope, or undesirable, as others fear, remains to be seen.     

Not enough help for themselves--the risk of physicians to commit suicide

Physicians seem unwilling to deal with their own suicidal problems professionally. Suicide is a repressed topic. According to international studies, medical students and physicians are clearly over-represented among suicide victims. Committing suicide stands in sharp contrast to the positive image physicians enjoy as competent, strong helpers transmitting positive energy. Various studies and meta-analyses show that physicians use knowledge specific to their profession and are therefore "more successful" than the general population in committing suicide. Moreover, the data reveal a number of risk factors specifically correlating with medical practice. This is confirmed by an increased number of suicides during medical training and professional life in comparison with the general population. Gender-specific analyses show an even higher suicide risk for female physicians. In this context it cannot be excluded that out of "professional respect" cardiovascular causes of death are sometimes falsely documented in death certificates instead of suicide. Despite their special education, physicians are not very good at diagnosing their own emotional disorders and asking colleagues for adequate professional help. They rather tend to camouflage their own psychological problems also because they are afraid of occupational and personal discrimination.     

美国医师道歉制度及其对证据法的影响

在病人安全运动的推动下，从上世纪80年代开始美国各州陆续制定了道歉法案，并逐渐确立了排除医师道歉自认效力的制度。该制度实施以来，理论界一直争议不断。各州的医师道歉制度在内容、形式、时间、对象及是否仅适用于诉讼程序方面不尽相同，也导致实务中医师因担心法律风险而拒绝道歉，以及法院挑选等问题。不过，理论和实证研究数据均表明，该制度的确能够减少医疗诉讼数量、降低医疗损害索赔数额，从而缓和医患关系。为了使其更好的发挥作用，学者们提出了对联邦证据法的修订建议。在构建和谐医患关系的目标下，该制度及其对证据法的影响，值得我国加以学习和借鉴。     

Variation in the growth and incidence of medical malpractice claims

This study analyzes the incidence of medical malpractice claims since 1976, using data drawn from the 1982 core survey of the American Medical Association's Socioeconomic Monitoring System. The data show that, on average, physicians incurred twice as many claims per year in the years 1976 to 1981 as they did during their careers prior to that period. Using Tobit analysis, we find the annual frequency of claims to be greater among surgeons, obstetricians and gynecologists (OBGs), physicians in group practice, and physicians in states which apply the legal doctrine of informed consent. In addition, we find that the number of years since medical residency is positively related to physicians' claims incidence during the first 27 years of practice, and that OBGs and medical specialists who spend more time with their patients per office visit incur fewer claims.     

Legal considerations of sleep deprivation among resident physicians

Medical training in the United States often takes the form of a grueling endurance test in which patients are often those most at risk. This Article discusses sleep deprivation among resident physicians in the United States with an eye towards resolving the problem through legal channels. It analyzes the effects of sleep deprivation on resident physicians, with subsequent discussion of the implications for patient care and medical training. Next, it makes comparisons to medical training in other developed nations, as well as regulations that exist in the airline and trucking industries, where public safety is a principal concern. Furthermore, this Article discusses proposals to mend the dilemmas created by sleep-deprived resident physicians through statutory and regulatory reform, deterrence by way of tort law, and unionization or collective bargaining.     

The ethics of managed care: a dose of realism

This article examines the ethics of medical practice under managed care from a pragmatic perspective that gives physicians more useful guidance than existing ethical statements. The article begins by stating the authors' starting premises and framework for constructing a realistic set of ethical principles: namely, that bedside rationing in some form is permissible; that medical ethics derive from physicians' role as healers; that actual agreements usually trump hypothetical ones; that ethical statements are primarily aspirational, not regulatory; and that preserving patient trust is the primary objective. The authors then articulate the following concrete ethical guides: financial incentives should influence physicians to maximize the health of the group of patients under their care; physicians should not enter into incentive arrangements that they would be embarrassed to describe accurately to their patients or that are not in common use in the market; physicians should treat each patient impartially, without regard to source of payment, and in a manner consistent with the physician's own treatment style; if physicians depart from this ideal, they must tell their patients honestly; and it is desirable, although not mandatory, to differentiate medical treatment recommendations from insurance coverage decisions by clearly assigning authority over these different roles and by having physicians to advocate for recommended treatment that is not covered.     

How effective is medical self-regulation?

Licensing and disciplining of physicians, police powers of the individual states, are carried out by boards and committees, the majority of whose members are physicians. How effective is medical self-regulation? I attempt to answer this question by examining several aspects of the disciplinary process such as the medical practice acts, inconsistencies in disciplinary actions, and the number and proportion of doctors disciplined during various periods. Also included in this study is an examination of obstacles to discipline, many of which are caused by hospitals and organized medicine. I conclude that medical self-regulation is of limited effectiveness.     

Immigration,Association, and the Family

In this paper I provide a philosophical analysis of family-based immigration. This type of immigration is of great importance, yet has received relatively little attention from philosophers and others doing normative work on immigration. As family-based immigration poses significant challenges for those seeking a comprehensive normative account of the limits of discretion that states should have in setting their own immigration policies, it is a topic that must be dealt with if we are to have a comprehensive account. In what follows I use the idea of freedom of association to show what is distinctive about family-based immigration and why it ought to have a privileged place in our discussion of the topic. I further show why this style of argument neither allows states to limit nearly all immigration nor requires them to have almost no limits on immigration. I conclude by showing that all states must allow some degree of family-based immigration, and that this is a duty owed not to ‘outsiders’ seeking to enter, but rather to current citizens.     

Aligning physician decision-making with the goals of health care organizations: are there any lessons from law firms?

In order to achieve efficiency in the delivery of health care services, it is essential to align more closely the behavior of physicians with the goals of the health care organization with which they are affiliated. Achieving alignment presents a number of challenges, including legal constraints, a long tradition of physician independence, a tendency for physicians to become involved in procurement decisions, and a scarcity of comparative effectiveness data that could serve as a basis for treatment protocols and purchasing decisions. The article discusses these challenges and suggests some partial solutions. In addition, it compares the incentives that affect physicians in health care organizations and partners in law firms and suggests that there may be some lessons that health care organizations can learn from the firms.     

Federal anti-referral status raises unanswered questions. Part I: Group practice issues

Although legislation is pending that would require the federal government is issue advisory opinions to those seeking to comply with Stark II (see Press Release #26-A, Committee on Ways and Means, U.S. House of Representatives, July 1, 1994, at 26), such legislation would not entirely solve these interpretive problems, as questions encountered under Stark II are likely to be far too frequent and the response time too long to make it practical to obtain opinions each time. Thus, until such time as Stark II is amended, clarifying regulations are issued, or courts interpret it meaning, physicians who practice in groups that provide designated services must hope that federal enforcement agencies use common sense and understanding in applying an ambiguous statute to real life situations, affording leniency toward participants in arrangements that fit within reasonable interpretations of the statute's exceptions.     

Estimating the impact of state manpower policy: a case study of reducing medical school enrollments

Perceptions of an impending oversupply of physicians have prompted proposals to reduce medical school enrollments in a number of states. Most of these states are also concerned with improving the specialty and geographic distribution of their medical manpower. The present study provides estimates of the effects of reduced numbers of in-state medical school graduates upon the future supply of physicians in Texas, and examines the medical school origin, medical specialty, and practice location of selected groups of Texas physicians. The results suggest that in Texas enrollment reductions would have no significant impact on physician supply over the next 15 years, and might actually prove counterproductive in altering physician distribution. The analysis of Texas data illuminates the unintended consequences likely to accompany a policy option that has been widely embraced by state officials largely on the basis of its intuitive appeal.