Joanna M. Cain
• Professionalism is the foundation of patient care and is as much an ongoing educational endeavor as learning new procedures or techniques.
• The right to privacy prohibits a physician from revealing information regarding the patient unless the patient waives that privilege.
• Informed consent is a process whereby the physician educates the patient about the medical condition, explores her values, and informs her about the risks and benefits of treatment and reasonable medical alternatives.
• The concept of autonomy does not allow a patient’s wishes to take precedence over good medical judgment.
• For children, parents are the surrogate decision makers, except in circumstances in which the decision is life threatening and might not be the choice a child would make later, when adult beliefs and values are formed.
• Creating a highly professional environment of safe culture, lack of harassment, high professional behavior standards, and disclosure of unexpected outcomes benefits both patients and health professionals.
The practice of gynecology, as with all branches of medicine, is based on ethical principles that guide patient care. These principles and concepts create a framework for ethical decision making that applies to all aspects of practice:
• Autonomy: a person’s right to self-rule, to establish personal norms of conduct, and to choose a course of action based on a set of personal values and principles derived from them
• Confidentiality: a person’s right to decide how and to whom personal medical information will be communicated is part of autonomy
• Beneficence: the obligation to promote the well-being of others or, in medicine, to benefit the patient through meeting a goal of medicine by the care offered
• Covenant: a binding agreement between two or more parties for the performance of some action
• Fiduciary Relationship: a relationship founded on faith and trust and the obligation to act in a trustworthy manner
• Informed Consent: the patient’s acceptance of a medical intervention after adequate discussion and consideration of the nature of the procedure, its risks and benefits, and alternatives
• Justice: the right of individuals or groups to claim what is due to them based on certain personal properties or characteristics
• Maleficence: the act of committing harm (Nonmaleficence obliges one to avoid doing harm)
Patient and Physician: Professionalism
Health care providers fulfill a basic need—to preserve and advance the health of human beings. Despite the challenges imposed by the commercial aspects of the current medical environment, for most physicians, the practice of medicine remains very much a “calling,” a giving of oneself to the greater good. The behavior of health professionals is judged against this list of ethical principles and concepts by other professionals and the public who share the belief in the “calling” of medicine. There are examples of unprofessional behaviors that mar this professional image. They are demonstrably easier to see in others than ourselves, including unprofessionalism in relation to drug companies, shouting at or mistreating others, or inappropriate behaviors with students, patients or colleagues, that abuse professional standing such as boundary violations or learner abuse (1). Lapses do not always represent inherent flaws in professionals, “most lapses represent deficiencies in judgment and skill. They occur when the physician in question fails to recognize the presence of a challenge to professionalism or lacks the skill to handle a challenge at the time it occurs” (2). As Lucey and Souba note, the solution to unprofessional behavior is not recrimination but development of a set of skills that allow professionals to recognize and address these professional challenges—and those skills need to be developed and reinforced not just by individuals but by the whole community of practicing physicians throughout their professional careers (2). Professionalism is as much an ongoing educational endeavor as is learning new procedures or techniques, and “we should assume that our peers want to be professional and that they will welcome interventions from a trusted colleague when circumstances suggest that a lapse is imminent” (2). Creating an environment where we can help one another in this way improves the quality and safety of the care for our patients by preventing unprofessional behavior. An environment without fear of recrimination, harassment, or unprofessional behavior promotes speaking up for patients' interests and promotes safer environments for everyone. It is a fundamental principle of excellence in patient care.
Professionalism has to balance the differences of fiduciary and contractual relationships between physician and patient: “The kind of minimalism that a contractualist understanding of the professional relationship encourages produces a professional too grudging, too calculating, too lacking in spontaneity, too quickly exhausted to go the second mile with his patients along the road of their distress” (3). There is a relationship between physician and patient that extends beyond a contract and assumes the elements of a fiduciary relationship—a covenant between parties. The physician, having knowledge about the elements of health care, assumes a trust relationship with the patient where her interests are held paramount. Both the patient and the physician have rights and responsibilities in this relationship, and both are rewarded when those rights and responsibilities are upheld. Honesty, disclosure, confidentiality, and informed consent are expressions of that trust or covenantal relationship.
Disclosing Medical Errors and Unanticipated Outcomes
In creating a trustworthy and safe environment, disclosure of unanticipated outcomes can add to the trust patients have in their health care team and ensure that all medical errors or near misses are used to improve the environment of care. If we are obligated as professionals by our trust relationship with our patients, then patients should expect truthfulness, including being made aware of individual or systemic errors, which, as Kohn et al. noted in To Err Is Human, are inevitable in the delivery of health care (4). The climate of no-fault discussion of errors creates an environment conducive to restructuring the systems or procedures that make it possible for errors to occur and is critical in development of a safety culture.
Medical errors can create a keen sense of shame, humiliation, and failed responsibility in health professionals, and efforts have begun to identify and develop the skills and methods for disclosing and learning from them (5). Support for individuals facing these feelings and wanting to disclose is critical in this development. Skills that seem common to disclosure are: telling the medical facts, honesty and truthfulness (responsibility and answering questions), empathy (and apology), stating how future errors will be prevented, and using good communication skills (6). These are skills that require training and development and should not be taken for granted.Many institutions have risk management groups or other support groups that can be helpful in development of skills and can accompany or lead such a discussion in the absence of those skills. Disclosure and apology cause apprehension for physicians—particularly in the discipline of obstetrics and gynecology where litigation adversely affected practice patterns (defensive medicine) and heightened a reluctance to disclose medical errors for fear of litigation (7). It is interesting to note that open disclosure overall generated less litigation than failing to disclose, and the growth of compensation with disclosure seems to add to this decrease (8–12). Apology raises particular anxiety about implying culpability and inciting litigation, so help with framing an apology is always appropriate. The obligation of trust (fiduciary relationship) that we have with our patients is part of the healing aspects of medicine—and we owe it to our patients and to ourselves to develop the robust curricula and support at all levels of medicine to make disclosure the step toward solution and healing that it can be for both physician and patient.
Confidentiality
The patient seeking assistance from a health professional has the right to assurance that the information exchanged during that interaction is kept private. Privacy is essential to the trust relationship between doctor and patient. Discussions are privileged information. The right to privacy prohibits a physician from revealing information regarding the patient unless the patient waives that privilege. Privileged information belongs to the patient except when it impinges on the legal and ethical rights of institutions and society at large, regardless of the setting. In a court situation, for example, physicians cannot reveal information about their patients unless the patient waives that privilege. If privilege is waived, the physician may not withhold such testimony.
The privilege of privacy must be maintained even when it does not seem intrinsically obvious. A patient’s family, friend, or spiritual guide, for example, has no right to medical information regarding the patient unless the patient specifically approves it, except if the patient is unable to provide that guidance because of their medical circumstance. In that circumstance, health providers must exercise their judgment based on their assessment of the involvement of that particular person with the patient’s health. This may seem obvious but often can be overlooked, such as when a health care giver receives a call from a concerned relative inquiring about the status of a patient. The response may be a natural attempt to reassure and inform a caring individual about the patient’s status. However, for her own reasons, the patient may not want certain individuals informed of her medical condition. Thus, confidentiality has been breached. It is wise to ask patients about who may be involved in decision making and who may be informed about their status. If a health care giver is unclear of the patient’s wishes regarding the person requesting information, the reply should indicate that the patient’s permission is necessary before discussing her status. When trying to contact patients for follow-up of medical findings, it is never appropriate to reveal the reason for contact to an individual other than the patient.
Record Keeping
Health care professionals are part of record-keeping organizations. Those records are used for multiple purposes in medicine and are a valuable tool in patient care. There is an increasing tendency for ancillary organizations to collect, maintain, and disclose information about individuals with whom they have no direct connection (13). Health care professionals must be aware of this practice and its ramifications. Patients sign a document, often without understanding its meaning, upon registering with a health care institution or insurance plan. That document waives the patient’s privilege to suppress access and gives insurers, and often other health care providers who request it, access to the medical record. The consequences of such disclosure for patients can be significant in terms of insurance coverage and potential job discrimination (14). Even with health care reform, this continues to be a concern because individuals may have shifts in the pools of insurance available to them and the costs may vary. This concern must be weighed against the need for all health care providers involved with an individual to be informed about past or present diseases or activities that may interfere with or complicate management. The use of illegal drugs, a positive HIV test result, and even a history of cancer or psychiatric illness are all exceptionally important to health care providers in evaluating individual patients. When revealed to outside institutions, these factors may affect the patient’s ability to obtain medical care, insurance, or even credit. Everything that is written in a patient’s record should be important to the medical care of that patient, and extrinsic information should be avoided. It is appropriate for physicians to discuss with patients the nature of medical records and their release to other parties so that patients can make an informed choice about such release.
The Health Insurance Portability and Accountability Act (HIPAA) was enacted in 1996 and the effective compliance of the “privacy rule” was instituted in April 2003, and this rule imposed additional requirements for access to patient records for clinical research and guidelines for protecting electronic medical records. Although the intent of the act was laudable, the extent to which privacy will be improved is unknown, and the potential harm to the public from failure to do critical database research because of its costly requirements may be greater than any benefit. The considerable confusion and misunderstanding of the rules associated with the act are potentially harmful to patients. The exceptions from the requirement to obtain patient authorization to share health information include areas such as patient treatment, payment, operations (quality improvement, quality assurance, and education), disclosure to public health officials and health oversight agencies, and legal requirements (15). One widely misunderstood feature of the act was whether protected health information could be sent via fax, e-mail or mail to another treating physician (which is allowed) (16). It is important that researchers understand the influence of these rules in all settings; preplanning for clinical database research to include consent for research database efforts when the patient first enters the office or institution will make this critical research possible (17). The security of medical records is a concern not just for individual patients and physicians but also for health systems and researchers.
Legal Issues
The privilege of patients to keep their records or medical information private can be superseded by the needs of society, but only in rare circumstances. The classic legal decision quoted for the needs of others superseding individual patient rights is that of Tarasoff v. Regents of the University of California (18). That decision establishes that the special relationship between a patient and doctor may support affirmative duties for the benefit of third persons. It requires disclosure if “necessary to avert danger to others” but still in a fashion “that would preserve the privacy of the patient to the fullest extent compatible with the prevention of the threatened danger.” This principle is compatible with the various codes of ethics that allow physicians to reveal information to protect the welfare of the individual or the community. In other words, “the protective privilege ends where the public peril begins” (18).
Legislation can override individual privilege. The most frequent example is the recording of births and deaths, which is the responsibility of physicians. Various diseases are required to be reported depending on state law (e.g., HIV status may or may not be reportable in individual states, whereas AIDS is reportable in all states). Reporting any injuries caused by lethal weapons, rapes, and battering (e.g., elder and child abuse) is mandatory in some states and not others. The regulations for the reporting of these conditions are codified by law and can be obtained from the state health department. These laws are designed to protect the individual’s privacy as much as possible while still serving the public’s interest. Particularly in the realm of abuse, physicians have a complex ethical role regardless of the law. Victims of abuse must feel supported and assured that the violent act they survived will not have an adverse effect on how they are treated as people. Their sense of vulnerability and their actual vulnerability may be so great that reporting an incident may increase their risk for medical harm. Despite the laws, physicians have an ethical responsibility to protect the patient’s best interest.
Informed Consent
Informed consent is a process that involves an exchange of information directed toward reaching mutual understanding and informed decision making. Ideally, informed consent should be the practical manifestation of respect for patient preferences (autonomy) (19,20). An act of informed consent is often misunderstood to be getting a signature on a document. The intent of the individual involved in the consent process is often the protection of the physician from liability. Nothing could be further from either the legal or ethical meaning of this concept.
Informed consent is a conversation between physician and patient that teaches the patient about the medical condition, explores her values, and informs her about the reasonable medical alternatives. Informed consent is an interactive discussion in which one participant has greater knowledge about medical information and the other participant has greater knowledge about that individual’s value system and circumstances affected by the information. This process does not require an arduous lecture on the medical condition or extensive examination of the patient’s psyche. It does require adjustment of the information to the educational level of the patient and respectful elicitation of concerns and questions. It also requires acknowledgment of the various fears and concerns of both parties. Fear that the information may frighten patients, fear of hearing the information by the patient, a lack of ability to comprehend technical information, and an inability to express that lack are among the many barriers facing physicians and patients engaging in this conversation. Communication skills are part of the art of medicine, and observation of good role models, practices, and positive motivation can help to instill this ability in physicians (21).
Autonomy
Informed consent arises from the concept of autonomy. Pellegrino defines an autonomous person as “one who, in his thoughts, work, and actions, is able to follow those norms he chooses as his own without external constraints or coercion by others” (22). This definition contains the essence of what health care providers must consider as informed consent. The choice to receive or refuse medical care must be in concert with the patient’s values and be freely chosen, and the options must be considered in light of the patient’s values.
Autonomy is not respect for a patient’s wishes against good medical judgment. Consider the example of a patient with inoperable, advanced-stage cervical cancer who demands surgery and refuses radiation therapy. The physician’s ethical obligation is to seek the best for the patient’s survival (beneficence) and avoid the harm (nonmaleficence) of surgery, even if that is what the patient wishes.Physicians are not obligated to offer treatment that is of no benefit, and the patient has the right to refuse treatment that does not fit into her values. Thus, this patient could refuse treatment for her cervical cancer, but she does not have the right to be given any treatment she wishes, in this case a treatment that would cause harm and no benefit.
Surrogate Decision Makers
If the ability to make choices is diminished by extreme youth, mental processing difficulties, extreme medical illness, or loss of awareness, surrogate decision making may be required. In all circumstances, the surrogate must make every attempt to act as the patient would have acted (23). The hierarchy of surrogate decision makers is specified by statutory law in each state and differs slightly from state to state. For adults, the first surrogate decision maker in the hierarchy is usually a court-appointed guardian if one exists and second is a durable power of attorney for health care if it exists, followed by relatives by degree of presumed familiarity (e.g., spouse, adult children, parents). For lesbian couples this presents issues in some states and the creation of a durable power of attorney can address this issue proactively. Physicians should make sure their patients are aware of the need to have clear instructions about who they would want to speak for them if they are not able—in some cases it is not the person specified by the state guidelines. For example, elderly women may not want their elderly (and slightly senile) spouse making decisions and prefer a friend or children—and should have a durable power of attorney for health care that ensures that will be the case.
For children, parents are the surrogate decision makers, except in circumstances in which the decision is life threatening and might not be the choice a child would make later, when adult beliefs and values are formed.The classic example of this is the Jehovah’s Witness parents who refuse life-saving transfusions for their child (24). Although this case is the extreme, it illustrates that the basic principle outlined for surrogate decision making should apply to parents. Bias that influences decision making (in protection of parental social status, income, or systems of beliefs) needs to be considered by physicians because the potential conflict may lead parents to decisions that are not in the best interest of the child. If there is a conflicting bias that does not allow decisions to be made in the best interest of the child or that involves a medical threat to a child, legal action to establish guardianship (normally through a child protective agency by the courts) may be necessary. This action can destroy the patient (child)–physician relationship and the parent–physician relationship. It may affect the long-term health and well-being of the child, who must return to the care of the parents. Such decisions should be made only after all attempts to educate, clarify, and find alternatives are exhausted.
The legal age at which adolescents may make their own decisions regarding their health care varies by state (25). There is a growing trend to increase the participation of adolescents who are capable of decision making for their own health care. Because minors often have developed a value system and the capacity to make informed choices, their ability to be involved in decisions should be assessed individually rather than relying solely on the age criteria of the law and their parents' views.
A unique area for consideration of informed consent is providing care or conducting clinical research in foreign settings or caring for individuals from other countries who have differing viewpoints regarding individual autonomy. For example, if the prevailing standard for decision making by a woman is that her closest male relative makes it for her, how is that standard accommodated within our present autonomy-based system? In international research, these issues presented major concerns when women were assigned to placebo or treatment groups and consent was accepted from male relatives (26). The potential of coercion when no other access to health care is available creates real questions about the validity and freedom of choice for participants in entering clinical research studies in order to access health care in under-resourced areas (27). When caring for patients from certain cultures and foreign countries in daily practice, it is important to recognize that these issues exist in a microcosm. Ensuring that the patient can make the choice herself or freely chooses to have a relative make it for her remains an important element of informed consent.
Beneficence and Nonmaleficence
The principles of beneficence and nonmaleficence are the basis of medical care—the “to do good and no harm” of Hippocrates. These issues can be clouded by other decision makers, consultants, family members, and sometimes financial constraints or conflicts of interest. Of all the principles of good medical care, benefit is the one that continually must be reassessed. Simple questions can help clarify choices. What is the medical indication? How does the proposed therapy address this issue? How much will this treatment benefit the patient? How much will it extend the patient’s life? When confronted with multiple medical problems and consultants, physicians should ask how much treatment will be of benefit given all the patient’s problems (e.g., failing kidneys, progressive cardiomyopathy, HIV-positive status, and respiratory failure) rather than considering treatment of one problem without acknowledging that the overall benefit is limited by the presence of all the other problems.
An additional area of balancing beneficence and nonmaleficence is ensuring that the medicine we practice is the safest and highest quality relative to medical evidence. The safety and quality agenda in medicine is growing and necessitates consideration of the role of experience (number of procedures, simulation for ongoing maintenance of skills and development of skills, team training) in ensuring that our patients have access to the highest quality of care. When evidence shows improved outcomes for specific interventions—for example, with timing difference in preoperative antibiotics—health care professionals must participate in and embrace efforts to achieve those metrics on behalf of their patients as part of their fiduciary duty and their obligation to seek the benefit of their patients. Steps specific to this in obstetrics and gynecology are listed by the American College of Obstetricians and Gynecologists as developing the commitment to encourage a culture of patient safety, implementing safe medication practices, reducing the likelihood of surgical errors, improving communication with health care providers and patients, and working with patients to improve safety (28).
The benefit or futility of the treatment, along with quality-of-life considerations, should be evaluated for all aspects of patient care. It is best to weigh all of the relevant issues in a systematic fashion. Some systematic approaches depend on a sequential gathering of all the pertinent information in four domains: medical indications (benefit and harm), patient preferences (autonomy), quality of life, and contextual issues (justice) (19). Other approaches identify decision makers, followed by facts, and then ethical principles. It is important for physicians to select an ethical model of analysis under which to practice so that, when faced with troubling and complex decisions, they have sufficient experience with an ethics-based analytic system to help clarify the issues.
Medical Futility
The essence of good medical care is to attempt to be as clear as possible about the outcomes of the proposed interventions. If the proposed intervention (e.g., continued respiratory support or initiating support) has a slight or highly unlikely chance of success, intervention might be considered futile. Physicians have no obligation to continue or initiate therapies of no benefit (29). The decision to withdraw or withhold care is one that must be accompanied by an effort to ensure that the patient or her surrogate decision maker is educated about the decision and agrees with it. Other issues, such as family concerns, can and should modify decisions if the overall well-being of the patient and of the family is best served. For example, waiting (within reason) to withdraw life support may be appropriate to allow a family to reach consensus or a distant family member to see the patient for a last time.
Quality of Life
Quality of life is a much used, often unclear term. In the care of patients, quality of life is the effect of therapy on the patient’s experience of living based on her perspective. It is perilous and speculative to assume that physicians know what quality of life represents for a particular patient judging from a personal reaction. It is instructive, however, to attempt to guess what it means and then seek the patient’s perspective. The results may be surprising. For example, when offered a new drug for ovarian cancer, a patient might prefer to decline the treatment because the side effects may not be acceptable, even when there may be a reasonable chance that her life may be slightly prolonged. Conversely, the physician may not believe that further treatment is justified but the patient finds joy and fulfillment in entering a phase I clinical trial because it adds meaning to her life to give information to others about the possibilities of a new treatment. Informing patients of the experiences of others who had alternative treatments may help in their decision making, but it is never a substitute for the individual patient’s decisions.
Professional Relations
Conflict of Interest
All professionals have multiple interests that affect their decisions. Contractual and covenantal relationships between physician and patient are intertwined and complicated by health care payers and colleagues, which create considerable pressure. The conflict with financial considerations directly influences patients' lives, often without their consent. Rennie described that pressure eloquently: “Instead of receiving more respect (for more responsibility), physicians feel they are being increasingly questioned, challenged, and sued. Looking after a patient seems less and less a compact between two people and more a match in which increasing numbers of spectators claim the right to interfere and referee” (30). One response to this environment is for the physician to attempt to protect his or her efforts by assuming that the physician–patient relationship is only contractual in nature. This allocation of responsibility and authority to the contract precludes the need for the ethical covenant between the physician and patient. For example, a pre-existing contract, insurance, a relationship with a particular hospital system, or a managed-care plan may discourage referral to a specialist, removing the physician’s responsibility. All health care professionals will experience this tension between a covenantal or contractual relationship. A reasonable consideration of that relationship is “one that allows clients as much freedom as possible to determine how their lives are affected as is reasonably warranted on the basis of their ability to make decisions” (31).
Health Care Payers
An insurance coverage plan may demand that physicians assume the role of gatekeeper and administrator. Patients can be penalized for a lack of knowledge about their future desires or needs and the lack of alternatives to address the changes in those needs. Patients are equally penalized when they develop costly medical conditions that would not be covered if they moved from plan to plan. These situations often place the physician in the position of being the arbiter of patients' coverage rather than acting as an advocate and adviser. It is an untenable position for physicians because they often cannot change the conditions or structure of the plan but are forced to be the administrators of it.
In an effort to improve physician compliance with and interest in decreasing costs, intense financial conflicts of interest can be brought to bear on physicians by health care plans or health care systems. If a physician’s profile on costs or referral is too high, he or she might be excluded from the plan, thus decreasing his or her ability to earn a living or to provide care to certain patients with whom a relationship has developed. Conversely, a physician may receive a greater salary or bonus if the plan makes more money. The ability to earn a living and to see patients in the future is dependent on maintaining relationships with various plans and other physicians. These are compelling loyalties and conflicts that cannot be ignored (32–34).
These conflicts are substantially different from those of fee-for-service plans, although the ultimate effect on the patient can be the same. In fee-for-service plans, financial gain conflicts of interest have the potential to result in failure to refer a patient or to restrict referral to those cases in which the financial gain is derived by return referral of other patients (35). Patients who have poor insurance coverage may be referred differentially from those who have better coverage. Patients may be unaware of these underlying conflicts of interest, a situation that elevates conflict of interest to an ethical problem. A patient has a right to know what her plan covers, to whom she is being referred and why, and the credentials of those to whom she is referred. The reality is that health care providers make many decisions under the pressure of multiple conflicts of interest. Physicians can be caught between self-interest and professional integrity. The outcome for individuals' and society’s relationship with health care providers is damaged by failure to recognize and specifically address conflicts of interest that impede decision making (36). Focusing clearly on the priority of the patient’s best interest and responsibly rejecting choices that compromise the patient’s needs are ethical requirements.
Institutions, third-party payers, and legislatures avoid accountability for revealing conflicts of interest to those to whom they offer services. The restrictions of health care plans are never placed in a position as equally prominent as the coverage. The coverage choices can be quite arbitrary, and there is rarely an easily accessible and usable system for challenging them. Whole health systems or options may or may not be covered, but their presence or absence is obscured in the information given to patients. The social and financial conflicts of interest of these payers can directly affect the setting and nature of the relationship between physician and patient. To deal with ambiguous and sometimes capricious decision making, revelation of the conflicts of interest and accountability for choices should be demanded by physicians and patients (37).
Legal Problems
Abuses of the system (e.g., referral for financial gain) led to proposals and legislation, often referred to as Stark I and II, affecting physicians' ability to send patients to local laboratories and facilities in which they have a potential for financial gain. There were clearly documented abuses, but the same legislation would negatively affect rural clinics and laboratories whose sole source of financial support is rural physicians. States vary on the statutory legislation regarding this issue. Regardless of the laws, it is ethically required that financial conflicts of interest are revealed to patients (38,39).
Another abuse of the physician–patient relationship caused by financial conflicts of interest is fraudulent Medicare and Medicaid billings. This activity resulted in the Fraud and Abuse Act of 1987 (42U.S.C. at 1320a–7b), which prohibits any individual or entity making false claims or soliciting or receiving any remuneration in cash or any kind, directly or indirectly, overtly or covertly, to induce a referral. Indictments under these laws are felonies, with potential fines, jail sentences, and loss of the license to practice medicine. Physicians should be aware of the legal ramifications of their referral and billing practices (40–42).
Harassment
The goal of medicine is excellence in the care of patients and, often, research and education that will advance the practice of medicine. Everyone involved in the process should be able to pursue the common goal on equal footing and without harassment that interferes with employees', learners', or colleagues' ability to work or be promoted equally in that environment. Every office and institution should have an assessment strategy to ensure that the work environment is conducive to focusing on work and learning and not hostile to individuals.
Every office and institution must have written policies on discrimination and sexual harassment that detail inappropriate behavior and state specific steps to be taken to correct an inappropriate situation and make sure they are widely accessible and available. The goal is to ensure appropriate reporting and procedures for taking appropriate action and protecting victims, educating or rehabilitating an offender, and preventing the reoccurrence of the behavior.
The legal sanction for this right is encoded in both statutory law through the Civil Rights Act of 1964 [42 U.S.C.A. at 2000e–2000e–17 (West 1981 and Supp. 1988)] and reinforced with judicial action (case or precedent law) by state and U.S. Supreme Court decisions. Charges of sexual harassment can be raised as a result of unwelcome sexual conduct or a hostile workplace. Employees are not the only ones to experience sexual or other harassment, learners such as medical students or nursing students can experience it and have a high reported prevalence of it (43). Sexual or other harassment for students can interfere with the educational process and trigger federal discrimination liability, including loss of federal funds encoded in Title IX protections (44).
Stress Management
There is little doubt that the day-to-day stress of practicing medicine is significant. Besides the acknowledged stress of the time pressures and responsibility of medicine, the current health care environment has a detrimental effect on physicians' job security, with concurrent health risks (45). Stress takes a toll on cardiac function and on the practice of medicine and life outside of medicine (46,47).
Responding to stress through drug or alcohol abuse increases overall health and marital problems and decreases effectiveness in practice. In a long-term prospective study of medical students, individuals with high-risk (e.g., volatile, argumentative, aggressive) temperaments were shown to have a high rate of premature death (particularly before 55 years of age) (48). Adequate sleep, reasonable working hours, exercise, and nutritional balance are directly related to decreases in psychological distress (49). Simple relaxation training is shown to decrease gastroesophageal reflux in response to stress (50).
The pace that physicians maintain has a seductive quality that can easily mask the need for stress reduction by means of good health practices, exercise, and relaxation training. The answer to increased stress is not to work harder and extract the time for this from the relaxing and enjoyable pursuits that exist outside medicine. The outcome of that strategy (in terms of optimal psychological and physical functioning) is in neither the physician’s nor the patient’s best interest. Both the welfare of the patient and the welfare of the physician are enhanced by a planned strategy of good health practices and relaxation. This strategy is important to all members of the health care team. By providing such leadership, physicians can contribute to a better work and health care environment for everyone.
Society and Medicine
Justice
Some of the ethical and legal problems in the practice of gynecology relate to the fair and equitable distribution of burdens and benefits. How benefits are distributed is a matter of great debate. There are various methods of proposed distribution:
• Equal shares (everyone has the same number of health care dollars per year)
• Need (only those people who need health care get the dollars)
• Queuing (the first in line for a transplant gets it)
• Merit (those with more serious illnesses receive special benefits)
• Contribution (those who have paid more into their health care fund get more health care)
Each of these principles could be appropriate as a measure of just allocation of health care dollars, but each will affect individual patients in different ways. Just distribution has become a major issue in health care. The principles of justice apply only when the resource is desired or beneficial and to some extent scarce (51).
The traditional approach to medicine was for practitioners to accept the intense focus on the individual patient. The current changes in medicine will alter the focus from the patient to a population: “in the emerging medicine, the presenting patient, more than ever before, will be a representative of a class, and the science that makes possible the care of the patient will refer prominently to the population from which that patient comes” (52). Physicians increasingly are bound by accumulating outcomes data (population statistics) to modify the treatment of an individual in view of the larger population statistics. If, for example, the outcome of radical ovarian cancer debulking is only 20% successful in a patient with a certain set of medical problems, that debulking may be offered instead to someone who has an 85% chance of success. Theoretically, the former individual might have a successful debulking and the procedure might fail in the latter, but population statistics were used to allocate this scarce resource. The benefit was measured by statistics that predict success, not by other forms of justice allocation by need, queuing, merit, or contribution. This approach represents a major change in the traditional dedication of health care solely to the benefits of individual patients. With scarce resources, the overall benefits for all patients are considered in conjunction with the individual benefits for one patient.
There was always an inequity in the distribution of health care access and resources. This inequity is not seen by many health care providers who do not care for those patients who are unable to gain access, such as those who lack transportation or live in rural areas or where limits are imposed by lack of health care providers, time, and financial resources. Social discrimination sometimes leads to inequity of distribution of health care. Minorities are less likely to see private physicians or specialists with clear impacts on outcomes of care, regardless of their income or source of health care funding (53–58). Thus, health care is rationed by default.
Health care providers must shift the paradigm from the absolute “do everything possible for this patient” to the proportionate “do everything reasonable for all patients” (19). To reform the health care system requires judicial, legislative, and business mandates, and attention to the other social components that can pose obstacles to efforts to expand health care beyond a focus on individual patients.
Health Care Reform
The tension between understanding health as an inherently individual matter (in which the receipt of health care is critical to individual well-being) and as a communal resource (in which distribution of well-being throughout society is the goal) underpins much of the political and social debate surrounding health care reform (56). The questions of health care reform are twofold: 1) What is the proper balance between individual and collective good? and 2) Who will pay for basic health care? Because much of health care reform requires balancing competing goals, legislation to achieve reform should specifically address how this balance can be achieved. The role of government should be as follows:
• Regulating access of individuals to health care.
• Regulating potential harms to the public health (e.g., smoking, pollution, drug use).
• Promoting health practices of benefit to large populations (e.g., immunization, fluoridation of water).
Even with the present changes in health care structure in the United States, health care payers, not individual providers, often make decisions regarding both the amount and distribution of resources. The health insurance industry determines what are “reasonable and customary” charges and what will be covered. The government decides (often with intense special-interest pressure) what Medicare and Medicaid will cover (57–60). These decisions directly affect patient care. For that reason, health care providers cannot ethically remain silent when the health and well-being of their individual patients and their communities are adversely affected by health care reform decisions.
Research on the outcomes of care provided by gynecologists or affected adversely by the current system for financing health care (financial aspects, safety, quality-of-life measures, survival, morbidity, and mortality) will allow the discipline to have a voice in determining choices for women’s health care. This is an ethically important responsibility for all women’s health care providers.
References
1. Steinman MA, Shlipak MG, McPhee SJ. Of principles and pens: attitudes and practices of medicine housestaff towards pharmaceutical industry promotions. Am J Med 2001;110:551–557.
2. Lucey C, Souba W. Perspective: the problem with the problem of professionalism. Acad Med 2010;85:1018–1024.
3. May WF. Code and covenant or philanthropy and contract. Hastings Cent Rep 1975;5:29–38.
4. Kohn KT, Corrigan JM, Donaldson MS. To err is human: building a safer health system. Washington, DC: National Academy Press, 1999.
5. Bell SK, Moorman DW, Delbanco T. Improving the patient, family, and clinician experience after harmful events: the “when things go wrong” curriculum. Acad Med 2010;85:1010–1017.
6. Stroud L, McIlroy J, Levinson W. Skills of internal medicine residents in disclosing medical errors: a study using standardized patients. Acad Med 2009;84:1803–1808.
7. Lumalcuri J, Hale R. Medical liability an ongoing nemesis. Obstet Gynecol 2010;115:223–228.
8. Feinmann J. You can say sorry. BMJ 2009;339:b3057.
9. Kraman SS, Hamm G. Risk management: extreme honesty may be the best policy. Ann Intern Med 1999;131:963–967.
10. Popp PL. How will disclosure affect future litigation? J Heath Risk Manag 2003;23:5–9.
11. Boothman RC, Blackwell A, Campbell D Jr, et al. A better approach to medical malpractice claims? The University of Michigan experience. J Health Life Sci Law 2009;2:125–159.
12. Gallagher T. A 62 year old woman with skin cancer who experience wrong site surgery. JAMA 2009;302:669–677.
13. Privacy Protection Study Commission. Personal privacy in an information society. Washington, DC: U.S. Government Printing Office, 1977.
14. Cain J. Confidentiality. In: APGO Task Force on Medical Ethics. Exploring medical-legal issues in obstetrics and gynecology. Washington, DC: APGO, 1994:43–45.
15. Lo B, Dornbrand L, Dubler N. HIPAA and patient care: the role for professional judgment. JAMA 2005:293;1766–1771.
16. Centers for Medicare and Medicaid Services. Is mandatory encryption in the HIPAA Security rule? HIPAA certification compliance. Available online at: http://www.hipaacertification.net/Is-mandatory-encryption-in-HIPAA-Security-Rule.htm
17. O'Herrin J, Fost N, Kudsk K. Health insurance portability accountability act (HIPAA) regulations: effect on medical record research. Ann Surg 2004;239:772–778.
18. Tobriner MO. Majority Opinion, California Supreme Court, 1 July 1976. California Reporter (West Publishing Company) 1976:14–33.
19. Jonsen AR, Siegler M, Winslade WJ. Clinical ethics. New York: McGraw-Hill, 1992:5–61.
20. American College of Obstetricians and Gynecologists. Ethical dimensions of informed consent. Committee Opinion No. 108. Washington, DC: ACOG, 1992.
21. Katz J. Informed consent: must it remain a fairy tale? J Contemp Health Law Policy 1994;10:69–91.
22. Pellegrino ED. Patient and physician autonomy: conflicting rights and obligations in the physician-patient relationship. J Contemp Health Law Policy 1994;10:47–68.
23. Buchanan AE, Brock DW. Deciding for others: the ethics of surrogate decision making. New York: Cambridge University Press, 1989.
24. Ackerman T. The limits of beneficence: Jehovah’s Witnesses and childhood cancer. Hastings Cent Rep 1980;10:13–16.
25. Nocon JJ. Selected minor consent laws for reproductive health care. In: APGO Task Force on Medical Ethics. Exploring medical-legal issues in obstetrics and gynecology. Washington, DC: APGO, 1994:129–136.
26. Loue S, Okello D. Research bioethics in the Ugandan context. II. Procedural and substantive reform. J Law Med Ethics 2000;28:165–173.
27. Emanuel E, Wendler D, Grady C. What makes clinical research ethical? JAMA 2000;283:2701–2711.
28. ACOG Committee. Opinion 447. Patient safety in obstetrics and gynecology. Obstet Gynecol 2009;114:1424–1427.
29. Jecker NS, Schneiderman LJ. Medical futility: the duty not to treat. Camb Q Healthc Ethics 1993;2:151–159.
30. Rennie D. Let us focus your worries! Health care policy: a clinical approach. JAMA 1994;272:631–632.
31. Bayles MD. The professional-client relationship. In: Professional ethics: an annotated bibliography of monographs. Belmont, CA: Wadsworth, 1981.
32. Ellsbury K. Can the family physician avoid conflict of interest in the gatekeeper role? An affirmative view. J Fam Pract 1989;28:698–701.
33. Stephens GG. Can the family physician avoid conflict of interest in the gatekeeper role? An opposing view. J Fam Pract 1989;28:701–704.
34. Miles C. Resource allocation in the National Health Service. In: Byrne P, ed. Ethics and the law in health care and research. New York: Wiley, 1990:117–123.
35. Cain JM, Jonsen AR. Specialists and generalists in obstetrics and gynecology: conflicts of interest in referral and an ethical alternative. Women’s Health Issues 1992;2:137–145.
36. American College of Obstetricians and Gynecologists. Deception. Committee Opinion No. 87. Washington, DC: ACOG, 1990.
37. Wrenn K. No insurance, no admission. N Engl J Med 1985;392:373–374.
38. Hyman D, Williamson JV. Fraud and abuse: setting the limits on physicians' entrepreneurship. N Engl J Med 1989;320:1275.
39. McDowell TN Jr. Physician self referral arrangements: legitimate business or unethical entrepreneurialism. Am J Law Med 1989;15:61–109.
40. Stark F. Ethics in patient referrals. Acad Med 1989;64:146–147.
41. Green RM. Medical joint-venturing: an ethical perspective. Hastings Cent Rep 1990;20:22–26.
42. Nocon JJ. Fraud and abuse: employment kickbacks and physician recruitment. In: APGO Task Force on Medical Ethics. Exploring medical-legal issues in obstetrics and gynecology. Washington, DC: APGO, 1994:69–74.
43. Best CL, Smith DW, Raymond, JR Sr, et al. Preventing and responding to complaints of sexual harassment in an academic health center: a 10-year review from the Medical University of South Carolina. Acad Med 2010;85:721–727
44. Recupero PR, Heru AM, Price M, et al. Sexual harassment in medical education: liability and protection. Acad Med 2004;79:817–824.
45. Heaney CA, Israel BA, House JS. Chronic job insecurity among automobile workers: effects on job satisfaction and health. Soc Sci Med 1994;38:1431–1437.
46. Sloan RP, Shapiro PA, Bagiella E, et al. Effect of mental stress throughout the day on cardiac autonomic control. Biol Psychol 1994;37:89–99.
47. Serry N, Bloch S, Ball R, et al. Drug and alcohol abuse by doctors. Med J Aust 1994;60:402–407.
48. Graves PL, Mead LA, Wang NY, et al. Temperament as a potential predictor of mortality: evidence from a 41-year prospective study. J Behav Med 1994;17:111–126.
49. Ezoe S, Morimoto K. Behavioral lifestyle and mental health status of Japanese workers. Prev Med 1994;23:98–105.
50. McDonald HJ, Bradley LA, Bailey MA, et al. Relaxation training reduces symptom reports and acid exposure in patients with gastroesophageal reflux disease. Gastroenterology 1994;107:61–69.
51. Daniels N. Just health care. Cambridge, UK: Cambridge University Press, 1985.
52. Jonsen AR. The new medicine and the old ethics. Boston: Harvard University Press, 1990.
53. Watson SD. Minority access and health reform: a civil right to health care. J Law Med Ethics 1994;22:127–137.
54. Watson SD. Health care in the inner city: asking the right question. North Carolina Law Rev 1993;71:1661–1663.
55. Freeman HE, Blendon RJ, Aiken LH, et al. Americans report on their access to health care. Health Aff (Millwood) 1987;6:6–8.
56. Burris S. Thoughts on the law and the public’s health. J Law Med Ethics 1994;22:141–146.
57. Evans RW. Health care technology and the inevitability of resource allocation and rationing decisions: part 2. JAMA 1983;249:2208–2210.
President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research. Securing access to health care: the ethical implications of differences in availability of health services. Washington, DC: Government Printing Office, 1983:1–3.
59. Eddy DM. What care is essential? JAMA 1991;265:786–788.
Committee on Health Care for Underserved Women, ACOG. The uninsured. Obstet Gynecol 2004;104:1471–1473.