91 Ethics Case Study Series
Authors, Case History
Matthew DeCamp, MD, PhD
Associate Professor
Department of Medicine
University of Colorado – Anschutz Medical Campus
Aurora, Colorado
Lois Snyder Sulmasy, JD
Director
Center for Ethics and Professionalism
American College of Physicians
Philadelphia, Pennsylvania
Authors, Commentary
Matthew DeCamp, MD, PhD
Lois Snyder Sulmasy, JD
As seen above.
Editor
Lois Snyder Sulmasy, JD
Director
Center for Ethics and Professionalism
American College of Physicians
Philadelphia, Pennsylvania
The authors would like to thank Paula Katz, staff at the 91 Center for Ethics and Professionalism, for editorial assistance.
Ethics case studies are developed by the American College of Physicians Ethics, Professionalism and Human Rights Committee and the 91 Center for Ethics and Professionalism. The series uses hypothetical examples to elaborate on controversial or subtle aspects of issues in the College's Ethics Manual or other College position statements. The current edition of the 91 Ethics Manual and additional case studies and College policy on ethics, professionalism, and human rights issues are available at /clinical-information/ethics-and-professionalism or by contacting the Center for Ethics and Professionalism at 215/351-2839.
Case History
Mike Johnson, MD, is finishing his endocrinology fellowship and contemplating his future. He has been thinking about whether to join a large suburban multi-specialty practice where he knows two other physicians or perhaps accepting employment at the academic medical center downtown at which he has been training. A small, independent practice might also be an option.
Dr. Johnson is not sure how to sort out which practice setting might be best for his patients and for him. He recalls receiving some education about health systems and reimbursement in general, but not much about the specifics of individual practices. A number of comments by more senior colleagues come to mind about the pros and cons of different practice arrangements. For example, one made a few remarks about “restrictive covenants” In contracts. Another expressed concerns about “in-network referral requirements” or “leakage control” and so called “gag rules.” Someone else noted the importance of physician leadership, no matter the specific practice setting, and of reading any employment contract carefully. Dr. Johnson is familiar with the concept of clinical performance incentives but is not sure how they will affect him or his patients. These and other comments are causing him to pause.
In general, Dr. Johnson worries he may not know what he doesn’t know. “Medical school and training introduced me to the idea of systems of practice and payment, but I’m not sure I know what ethical and other issues different practice environments might raise” he thinks to himself. What kinds of issues-- and their ethical implications-- should he be considering in his planning?
Commentary
In this case, Dr. Johnson finds himself trying to decide about his practice future and feeling he needs additional support to assess how different options affect his fundamental ethical and professional obligations as a physician. This is not entirely surprising. Although the Accreditation Council for Graduate Medical Education includes systems-based practice and professionalism as core competencies, their intersection is not always examined in training. Dedicated curricula about the business aspects of medicine for medical students, graduate medical trainees, and fellows may be more common in specialties such as anesthesia, dermatology, and surgery (1) with a few examples in internal medicine such as the Abbott Northwestern Internal Medicine Residency Real World Curriculum on coding, physician compensation, finding the right practice, personal finance, and accountable care organizations comprising lectures to resident physicians.
Nevertheless, the fundamental ethical principles that guide medicine-- including beneficence (putting patients’ interests first), non-maleficence (do no harm), respect for patient autonomy, and justice-- should also guide decision-making about business practices (2). The American College of Physicians has published ethics recommendations about business practices in contemporary medicine (3) and has a contract guide that can support physicians in their decisions (4).
A Changing Practice Environment
In a constantly changing practice environment--even before the COVID-19 pandemic caused significant disruptions for physicians, medical practices, and hospitals-- several trends in recent years are notable: 2018 marked the first time that the majority of physicians were employees rather than owners of their practices (5), payment models among public and private insurers have increasingly moved toward value-based care models instead of traditional fee-for-service, and mergers and acquisitions (including private equity investment and ownership) have the potential to alter market dynamics.
All practice arrangements and payment mechanisms have their own advantages, disadvantages, and ethical implications. Dr. Johnson might be interested in the primacy of individual decision-making an independently-owned solo practice might afford him, but should be aware of the greater financial risk such a practice might entail (4). On the other hand, employment within a larger organization might have less financial risk, and greater access to specialists, continuing medical education and peer review, but might also mean relatively less control over issues such as patient volume, scheduling, and practice priority-setting (3).
In reviewing practice settings, concepts of ethics and professionalism can inform Dr. Johnson’s decision-making in a number of ways.
Contract Provisions
A senior colleague cautions Dr. Johnson to read any employment contract carefully; others mention specific provisions regarding restrictive covenants, in-network referral requirements, and gag rules (or gag clauses). How such provisions affect the physician’s primary obligation to promote the patient’s best interests and how to maintain trust in the patient-physician relationship is a matter of ethical concern (6).
Restrictive covenants or non-compete clauses attempt to restrict physicians from practicing within a specific geographic area for a specified period of time should they leave an employment arrangement. They may help stabilize the marketplace and are negotiating points in contracts in exchange for higher compensation, training, and other resources for the physician. However, they must be reasonable and not interfere with the physician’s ability to maintain strong patient–physician relationships (3). “91 supports the American Medical Association recommendation that physicians should not sign contracts with restrictive covenants that ‘(a) unreasonably restrict the right of a physician to practice medicine for a specified period of time or in a specified geographic area on termination of a contractual relationship; and (b) do not make reasonable accommodation for patients' choice of physician’ (7)” (3).
In-network referral requirements (sometimes referred to as “leakage control”-- an unfortunate and demeaning term) attempt to require physicians to keep referrals to specialists within a network. There can be advantages to in-network referrals, such as improved communication, care coordination, and the avoidance of unnecessary duplicative testing. However, physician referrals to specialists should be motivated by concern for what is medically best for the patient and consistent with the patient’s autonomous choices-- not contract or financial restrictions. Transparency and honesty about referral practices are key to trust in the patient-physician relationship (8).
Gag rules or clauses refer to contractual clauses that may limit what a physician can disclose or say, often including to patients. They were widely debated in the managed care environment of the 1990s (when clauses attempted to prevent physician disclosure of plan details or financial incentives) (9), but they are not unique to managed care. Such rules or clauses are ethically problematic-- they can “undermine trust in the patient–physician relationship, violate informed consent, and obstruct the physician's ethical duty of beneficence” (3). In particular, they can prevent physicians from meeting their ethical obligations to advocate for individual patients and for community- and societal-level health issues (e.g., by making known patient safety and quality concerns). As 91 recommends, “Confidentiality clauses should not interfere with patient well-being, respectful professional relations, or the individual and collective responsibility of physicians to promote patient best interests, community health, and quality improvement” (3).
Non-Practice Activities
As Dr. Johnson reviews his potential employment contract, he should examine it carefully for any activities that appear to be restricted or required. Some contracts, for example, may appear to limit physician outside activities or non-clinical time. Any such restriction should be clearly spelled out, keeping in mind that limitations on research or teaching could “restrict or appear to prevent physicians from fulfilling their societal commitment to teach, to engage in unbiased research…” and to be health advocates (3).
Other employment arrangements may require non-clinical activities, such as community engagement or other activities. These may be consistent with physician obligations to promote the health of society (1). However, more recently organizations have pressured or required physician participation in what is known as grateful patient fundraising. The 91 Ethics Manual disapproves this practice, noting it raises ethical issues for privacy, confidentiality, and the patient-physician relationship. The use of financial bonuses for physicians for this kind of fundraising is particularly worrisome, raising concerns about conflicts of interest and equal treatment of all patients. The AMA recommends that physicians “refrain from directly soliciting contributions from their own patients, especially during clinical encounters” (10).
Aligning Practice with Patients’ Best Interests
Understandably, many aspects of medical practice cannot be covered in an employment contract. This requires that Dr. Johnson understand the practice setting and activities that may affect his ethical and professional responsibilities.
For instance, Dr. Johnson is aware of clinical performance incentives. Some evidence exists, however, that pay-for-performance may have little effect on cost or quality but may exacerbate health disparities (11). Even if incentives are effective in the short-term, from the standpoint of ethics, there is an additional concern that use of extrinsic motivators, such as financial incentives or bonuses, crowd out the intrinsic motivation that is a hallmark of medicine as a profession-- one that supports clinical integrity and physician well-being (12).
Emphasis on promoting value in health care is important when trying to achieve better outcomes for patients, reduced costs, and greater health equity. The promise of value-based care must match practical realities. Because value-based care relies on measuring value, it is critical for those measures to reflect and respect what patients value (13)-- including time with physicians, which is often undervalued. As 91 notes, “Even high-quality metrics that support population health have varying benefit to individual patients” (3). Similarly, it would be inappropriate to focus narrowly on cost measures without attending to the fact that how costs are borne can vary considerably among patients, the practice, and society as a whole (14). It is important that practice policies and procedures are aligned with delivering high value care; if physicians are evaluated solely on volume-based productivity goals, for example, the mixed messages sent about value and volume can create tensions for professional integrity (the ability to know and act in ways consistent with ethical values).
Promoting a Moral Community
If pursuing an employment arrangement, Dr. Johnson should consider carefully how the moral community of medicine is reflected in leadership and organizational decisions. Being in a profession committed to the effacement of self-interest in service of patients, to lifelong learning, and to teaching others means that physicians have obligations to patients but also to each other and to society (15). Every individual physician has the responsibility-- through words and action, in ways large and small-- to support and promote the fundamental ethical and professional values of medicine. This starts with explicitly referencing these values in conversations and meetings as decisions are made. There is evidence that physician leadership is essential to high-quality care (16) and that alignment of values and an emphasis on quality (over productivity) promote a positive environment that is conducive to trust (17).
Dr. Johnson should ask about the role physicians play in decision-making around practice priorities. For example, do physicians hold leadership positions, and if so, which ones? 91 recommends that health care employers “engage patients and physicians in priority setting across all aspects of health care” (3); how are the perspectives of practicing physicians and their patients included in decisions? What steps has the practice taken to foster a collegial atmosphere among physicians, supportive of the ethical responsibilities and moral community of medicine, to enable that community to advocate on behalf of patients? While not part of any formal contract, such questions can help Dr. Johnson understand the practice environment before joining.
Conclusion
In an ever-changing practice environment, the ethical principles and professional obligations of medicine remain timeless. Applying concepts such as the primacy of patient best interests, respect for autonomy, the obligation to promote health equity, and transparency (among others) can help physicians see the details of practice arrangements, employment, and contracts in a new way. Physicians should seek out and advocate for practice arrangements and payment mechanisms that best align with and support these obligations.
References
- Salib S, Moreno A. Good-bye and good luck: Teaching residents the business of medicine after residency. J Grad Med Educ. 2015;7(3):338-40.
- Sulmasy LS, Bledsoe TA; 91 Ethics, Professionalism and Human Rights Committee. American College of Physicians ethics manual: seventh edition. Ann Intern Med. 2019;170:S1-S32.
- DeCamp M, Snyder Sulmasy L; American College of Physicians Ethics, Professionalism and Human Rights Committee. Ethical and professionalism implications of physician employment and health care business practices: A policy paper from the American College of Physicians. Ann Intern Med. 2021;174:844-51.
- American College of Physicians. Physician Employment Contract Guide. 2017. Accessed at www.acponline.org/system/files/documents/running_practice/practice_management/human_resources/employment_contracts.pdf on 11 October 2022.
- Kane CK. Updated Data on Physician Practice Arrangements: For the First Time, Fewer Physicians Are Owners Than Employees. Policy Research Perspectives. American Medical Association; 2019. Accessed at on 11 October 2022.
- Poses RM, Smith WR. How employed physicians' contracts may threaten their patients and professionalism. Ann Intern Med. 2016;165:55-6.
- Goold SD. Restrictive Covenants. Report of the Council on Ethical and Judicial Affairs. CEJA report no. 3-A-14. 2014. Accessed at on 14 January 2021.
- DeCamp M, Lehmann LS. Guiding choice—ethically influencing referrals in ACOs. N Engl J Med. 2015;372:205-7.
- Brody H, Bonham VL Jr. Gag rules and trade secrets in managed care contracts. Ethical and legal concerns. Arch Intern Med. 1997;157(18):2037-43.
- Council on Ethical and Judicial Affairs. Physician Participation in Soliciting Contributions From Patients. CEJA Report 7-A-04. Chicago, IL: American Medical Association.
- Frakt AB, Jha AK. Face the facts: we need to change the way we do pay for performance [Editorial]. Ann Intern Med. 2018;168:291-2
- Biller-Andorno N, Lee TH. Ethical physician incentives—from carrots and sticks to shared purpose. N Engl J Med. 2013;368:980-2.
- Lynn J, McKethan A, Jha AK. Value-based payments require valuing what matters to patients. JAMA. 2015;314(14):1445–1446.
- Parikh RB, Milstein A, Jain SH. Getting real about health care costs - a broader approach to cost stewardship in medical education. N Engl J Med. 2017 Mar 9;376(10):913-915.
- Pellegrino ED. The medical profession as a moral community. Bull N Y Acad Med. 1990;66:221-32.
- Angood P, Birk S. The value of physician leadership. Physician Exec. 2014;40(3):6-20.
- Linzer M, Poplau S, Prasad K, et al. Characteristics of health care organizations associated with clinician trust: results from the healthy work place study. JAMA Netw Open. 2019;2(6):e196201