Patients' Rights and the Quality of Medical Care

By Gilbert Cant

It is fitting not merely that he [the physician] should possess a knowledge of diseases and their remedies but also that he should be one who may safely be trusted to apply those remedies. Character is as important a qualification as knowledge. --Supreme Court of the U.S. (1898)

Each year in the U.S. thousands of patients die needlessly, or needlessly soon, or have the quality of their remaining life irreparably damaged because they have received incompetent medical care. In the vast majority of cases, nei ther a suffering survivor nor a next of kin has any recourse. Although malpractice suits now jam the courts, a malpractice award is no remedy; it cannot restore lost health or life or limb.

In this respect, as in many others, medicine stands alone among the professions. Poor performance by a tax accountant, an architect, or a tort lawyer can usually be expressed in terms of dollars, which any layman can understand. Not so with medicine. The cliche has it that medicine is as much art as science. Granted, the art part is in tangible and immeasurable. But much of the science part of medicine remains largely hit or miss. One doctor will pre scribe twice as much of a potent antibiotic as another, or prescribe a needlessly dangerous drug. One surgeon will hurry to operate, while another will say, "This child will outgrow the problem," and spare the knife.

However they may disagree, many doctors are brilliant and dedicated and most are at least competent, practicing in accordance with medical ethics and standards. But the size of the minority who are incompetent, unethical or both is unknown. Too few standards of ethics or practice have been set, and that many doctors will strenuously resist any attempt to strengthen or enforce them became evident last week in an anti-standards revolt within the American Medical Association.

Because surgeons' work is more tangible and precise, surgery was the first area of medicine to come under critical scrutiny. For a half-century, the American College of Surgeons has condemned operations by insufficiently qualified surgeons, fee splitting between surgeons and the physicians who send them patients, and needless surgery. But while the college's professed policies are unimpeachably correct, effectiveness and enforcement are another matter. The college expels few of its errant members and does not publish the names of those expelled. Even after expulsion, a doctor can continue to practice "cut more, make more" surgery until some remote state board lifts his license--if it ever does. In fact, many state boards have not revoked a single license in years. As for character, the states set no precise standards, and Washington unfrocks a doctor convicted of income tax fraud, while Maryland lets him keep his license.

Horror stories like that of California's drug-popping Surgeon John Nork (TIME, Dec. 10), while mercifully rare, are not rare enough. Indeed, there is a broad spectrum of incompetent and unwarranted surgery. One reason for the spate of sterilizing hysterectomies and other dubious operations may be simply that there are too many surgeons. The U.S. has twice as many in proportion to population as Great Britain--and Americans undergo twice as many operations as Britons. Yet, on the average, they die younger.

Of the 5,000 U.S. hospitals where surgery is performed, perhaps 4,500 have a watchdog peer review or "tissue committee." If an undue proportion of the organs removed by a surgeon are found healthy, he gets rapped over the knuckles and is expected to reform. But too many tissue committees are far too lenient. Knowing the imprecision of medicine and their own fallibility, the members are apt to say "There but for the grace of God go I," and let the matter drop.

In the nonsurgical areas, medical practice is still more imprecise. Many a diagnosis presents real difficulties. But since many cases of appendicitis are missed (some with fatal results) and so many heart attacks are misdiagnosed as indigestion, the gun-shy doctor freely orders batteries of tests to reinforce his diagnosis. With so much medical care now at least partially covered by some form of insurance, few doctors bother to reckon what these tests will cost.

In any attempt to judge the quality of care, myriad questions arise, most of them unanswerable in any concrete terms. How good is this doctor? How good was his school? How good was his hospital training? Has he kept up with medical progress? The last is the easiest to answer. Often he has not, because there is no prod beyond his own conscience for him to do so. The American Academy of Family Physicians requires its 35,000 members to take 150 hours of refresher courses in every three years and annually expels about 350 for failure to do so. But this does not keep these men from practicing.

There are other vital questions. Is this doctor conscientiously dedicated to giving the best possible care to his patients? Or is he giving merely routine --or worse--care to as many patients as he can crowd into a day's appointments, for all the cash he can collect? Here, clearly, the answers involve the most subjective value judgments. With rare exceptions, conscience and cash-consciousness are mixed in widely varying proportions. The one-snake staff of Aesculapius the healer--the official emblem of the American Medical Association--is obviously in conflict with the two-serpent caduceus of Mercury, the god of commerce. Although medical ethics has long been the subject of resounding rhetoric, it has not been effectively taught in medical schools. William Curran, Harvard Professor of Legal Medicine, says: "For years, medical ethics was more etiquette than ethics. Students were taught how doctors shouldn't advertise and shouldn't discuss other physicians when talking to patients. What Harvard is offering now is a one-year interschool program in medical ethics that is much more about patients' rights, about the patients' equity in medical care."

It is the costs of medical care that have made medical ethics and medical quality national issues. Medicare and Medicaid, along with smaller programs for maternal and child health care, have poured hundreds of millions of dollars into doctors' pockets and hospitals' coffers. To make sure that the Federal Government is getting its money's worth for the $18 billion it now pays out annually for health care, Utah's Senator Wallace F. Bennett, no radical, but a pinchpenny conservative Republican, attached amendments to last year's Social Security Act. They set up Professional Standards Review Organizations (PSROS), which are to be composed exclusively of physicians (doctors of medicine or of osteopathy), recruited mainly from state and county medical societies. There is no provision for any layman or consumer representation. The legislation, which becomes effective Jan. 1, gives the PSROS two years in which to draw up "norms" for the kind and cost of care usually given in their area for 350 different conditions. After January 1976, any doctor who wants to get paid through a federally supported medical program will first have to sign up with a PSRO and ad here to its norms in regard to fees and plans of treatment.

The law clearly precludes any lay interference in the practice of medicine. PSROs will be a system of doctors policing doctors. The essential difference between this and the present non-system is that the policing becomes compulsory for federally financed care. True, Bennett's plan would create over whelming paper work and a new bureaucracy, which cost money. But New York City's monitoring of doctors' Medicaid billings has saved millions of dollars at a relatively small administrative cost.

When Bennett first introduced his PSRO plan, the A.M.A. opposed it -- just as it had long opposed Medicare. With the Medicare defeat fresh in its mem ory, the A.M.A. hierarchy decided to string along with PSROS but to try to get the law amended to relax some provisions that it considers onerous.

That seemed reasonable. But at the A.M.A.'s semiannual convention in Anaheim, Calif., last week, the vocal majority of the 3,179 members attending were unequivocally against PSROS. Amid calls to preserve traditional liberties and the secrecy of doctor-patient relation ships, some observers heard a jarring undertone of "The patient be damned." As hyperbole and passion carried the day, the embarrassed A.M.A. leadership was forced to accept a schizophrenic compromise under which it will both try to get the PSRO law repealed and at the same time try to get it amended.

A man who is not yet over 65 or indigent may ask, "How would PSROS affect me?" The answer is, not at all -- immediately. But if the quality and costs of care and the ethics of practitioners were effectively monitored for Medicare and Medicaid, there would soon be irresistible public pressure to apply the modest protection of enforced professional review to all medical care.

As Dr. Clement Brown, director of medical education at Chicago's Mercy Hospital, sees it, "The profession so far has done nothing for the patients who don't actually get hurt by poor care but who don't get the best treatment either. Now the Federal Government has said that if we don't provide quality care they're not going to pay for it. They have given us a last chance to discipline our selves, and the funds to pay for it." At Anaheim, the A.M.A. flubbed one chance. Whether it will get another chance is in the lap of Congress. Medicine may be the last forum in which the voice of the consumer makes itself heard. But eventually it must and will be heard, since the ultimate consumer is the patient -- and it is on the patient that the profession practices.

This file is automatically generated by a robot program, so reader's discretion is required.