Section 2: Preserve Physicians’ Independent Medical Judgment

The patient-physician relationship is unique in modern American life. Patients place their lives in their physicians’ hands. Not only must they trust in their doctors’ knowledge, experience, and skill, but they also must trust that their physician is acting in their best interest — neither motivated nor distracted by competing interests. In return, the physician is responsible for recommending and applying the most appropriate, science-based treatments for the patient’s individual circumstances and medical conditions. All of these pressures are magnified during the often-emotional final days and weeks of a person’s life.

 Defend physicians’ ethical responsibilities to patients
Evolving health care structures and financing are making it more and more challenging for physicians to navigate the intersection of professional ethics and economics. 

Our health care system is constantly emphasizing lowering costs. So-called “quality-based measures” may give physicians perverse incentives to dismiss patients who do not (or cannot) meet target measures, and they may be asked to ration health care resources in ways that place employers’ or Wall Street’s needs above individual patient needs. 

Furthermore, hospitals and other entities continue to look toward employing physicians so they can consolidate market share and capture the payment stream for physician and ancillary services. Physicians employed by hospitals and other practice models not owned and controlled by physicians could find their clinical autonomy threatened. 

The recent controversies at the U.S. Department of Veterans Affairs show how unrealistic it can be to mandate appointment times with physicians without a concomitant increase in funding to hire or contract with enough primary care physicians to meet the demand. 

The ability of physicians to act in their patients’ best interests must not be compromised by outside — and sometimes competing — economic, political, and social pressures. Each patient encounter must be governed by the ethics of the medical profession, the integration and application of advancing medical knowledge, and the partnership with the patient in making good decisions for that patient’s health. Yet lawmakers and other nonphysicians are ever more inclined to dictate the details of the interaction between physicians and patients. Physicians increasingly face nonphysicians’ attempts to mandate what information, tests, procedures, and treatments they must — or must not — provide to their patients. 

The practice of medicine is founded upon ethics that arise from the imperative to alleviate suffering and to care for patients. According to the American Medical Association Code of Medical Ethics, 

“The relationship between patient and physician is based on trust and gives rise to physicians’ ethical obligations to place patients’ welfare above their own self-interest and above obligations to other groups, and to advocate for their patients’ welfare.”

 Maintain restrictions on lay control of the practice of medicine
In a changing and uncertain environment, many physicians will seek employment opportunities as a way to deal with unpredictable and oftentimes inadequate payment models and the increasingly overwhelming administrative burden of running their own practices. At the same time, hospital-controlled health care corporations and other nonphysician-owned businesses are trying to recruit physicians. In Texas, while only 7 percent of physicians report they are hospital employees, 34 percent report that their practices are at least partially owned by some nonphysician organization that is not bound to honor the professional and ethical standards that apply to licensed physicians. 

It’s critical that physicians’ ability to make decisions in the best interest of their patients is not compromised — regardless of the business or practice arrangement. Some nonphysician businesses are trying to control physicians by requiring them to be bound by restrictive contracts. These are contracts that limit the physicians’ ability to contract with other payers, limit to whom they can refer their patients, and direct how they should practice medicine. 

Protecting the patient-physician relationship lies at the heart of Texas’ long-standing legal doctrine banning the corporate practice of medicine. This commitment to patient-focused care has led to Texas becoming a global destination for health care. 

Employment without protections is the corporate practice of medicine. Employment with protections is part of the practice of medicine.
At TMA’s urging, the 2011 Texas Legislature passed groundbreaking laws that protected patients and their physicians’ ability to exercise independent medical judgment from interference by a hospital administrator or corporate officer. At the same time, we preserved Texas’ ban on the corporate practice of medicine with several carefully delineated expansions for physician employment. These included strong protections for physicians employed by or associated with hospital-controlled health care corporations, rural county hospital districts, large urban government-controlled hospital districts, and the newly established Texas health care collaboratives. Texas is the first state in the country to take this critical step of protecting clinical autonomy. These laws place responsibility for monitoring and ensuring enforcement of autonomy with the Texas Medical Board, which is the agency responsible for upholding the standards of medical practice in the state.  

Over the course of the coming decade, patients and physicians will see many changes in the organization and delivery of medical services. New payment models are driving new practice arrangements. Many physicians will continue to practice independently, some will partner in small to large groups, and others will join larger single or multispecialty groups. Payment models for physicians’ services will continue to be a mix of global or capitated payments, fee-for-service, and salary.

Regardless of the practice arrangement, TMA and its member physicians remain committed to protecting the clinical autonomy of physicians and the primacy of the patient-physician relationship. 

Respect patients in their final days 
Thanks to advancements in medicine and science, Texans are living longer. However, these blessings bring the challenges of care and treatment decisions in life’s final stages. Advance directives allow patients to make their end-of-life treatment decisions known in the event they become incompetent or incapable of communication. Without advance directives, some of life’s most difficult decisions are being thrust upon unprepared adult children, parents, or other loved ones. While some families are prepared to handle these difficult situations, others face significant challenges and uncertainty. 

At each step, human beings are involved in both deciding on and providing treatment. We must respect the value of life and the moral conscience of those involved. 

Texas physicians abide by the principle, “First, do no harm.” For this reason, TMA supports the Texas Advance Directives Act (TADA). Its aim is to allow patients to make their care preferences known before they need care, and to protect patients from unnecessary discomfort, pain, and suffering due to excessive medical intervention in the dying process. The time sometimes comes when all that can be done for a patient is to alleviate pain and suffering, and preserve the patient’s dignity. For physicians, this is about medical ethics and providing medically appropriate care. 

In 1997, then-Gov. George W. Bush signed TADA into law. It had unanimous support from physicians, nurses, hospitals, nursing homes, hospice care facilities, disability groups, and pro-life organizations. The law provides a balanced approach to addressing some of life’s most difficult decisions. 

TADA allows a patient to issue an out-of-hospital do-not-resuscitate (DNR) order, a medical power of attorney, or a directive for physicians and family members regarding the person’s wishes to administer or withhold life-sustaining treatment in the event the person is in a terminal or irreversible condition and unable to make his or her wishes known. Additionally, when an attending physician disagrees with a health care or treatment decision made by or on behalf of a patient, the act provides for a process whereby an ethics or medical committee reviews the physician’s request. The patient is given life-sustaining treatment during the process. If the ethics committee decides that discontinuing lifesaving treatment is in the best interest of the patient, and the family disagrees with that decision, the hospital must continue treatment for 10 days to allow the family time to find a different facility for the dying patient.  

Legislation has been introduced over the past four legislative sessions that would instead require indefinite treatment with no provision for the physician exercising ethics or moral judgment. TMA has opposed these proposals because they would prolong unnecessary — and often painful or even torturous — care that cannot prevent but can only prolong death. They would also require physicians, nurses, and other health care professionals to provide medically inappropriate care, even if that care violates medical ethics or the standard of care. They also would set a dangerous precedent for the legislature to mandate the provision of physician services and treatments that may be medically inappropriate, outside the standard of care, or unethical. 

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  • Pass no laws or regulations that violate the American Medical Association Principles of Medical Ethics or that permit a nonphysician-owned business to require physicians to practice medicine in a manner inconsistent with those principles. 

  • Pass no laws or regulations that interfere with the patient-physician relationship. Preserve the primacy of the patient-physician relationship in the face of health system reform.

  • Support strong statutory provisions that protect independent medical judgment for physicians in all employment relationships.

  • Oppose any legislation that would weaken or erode Texas’ physician employment protections. 

  • Strengthen state laws to ensure that corporate entities cannot direct medical decisions to the detriment of patient care.

  • Strengthen statutory provisions to protect physicians’ due process rights and prohibit retaliation for patient advocacy in all employment and contractual relationships.

  • Support legislation that protects the rights and moral conscience of physicians in serving their patients. Texas statute should not require physicians to provide care or counsel that they conclude is medically inappropriate, that violates their personal conscience and moral beliefs, or that does not protect their patients.

  • Encourage or require all covered patients in state-directed programs or state-regulated health plans to enact advance directives to ensure patients’ concerns and wishes are incorporated into their care.

  • Support methods of resolving disagreements and conflict regarding medical treatments without litigation.  

 Healthy Vision 2020


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