Section 2: Protect 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
It will be more and more challenging for physicians to maintain professional ethics when ethics collide with economic interests.

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

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

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. Yet lawmakers and other nonphysicians are ever more inclined to delineate 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 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.” [24]  

 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 increasing — and sometimes overwhelming — administrative burden of running their own practices. At the same time, hospitals and other nonphysician-owned entities will continue to seek to employ physicians.

Quality measures must take into account how sick patients are and what associated diseases they have. Incentives focused primarily on cost per member will reward physicians and providers for treating only the healthiest patients. The poorest and sickest likely will drag down the “efficiency” ratings so that their physicians and providers become ranked as “lower performing.”

Protecting the patient-physician relationship lies at the heart of Texas’ legal doctrine banning the corporate practice of medicine. Patients must be able to trust that the tests and treatments their physicians recommend are tailored to their individual medical needs and are shielded from improper lay influence. 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.

Employment without protections is the corporate practice of medicine. Employment with protections is part of the practice of medicine, and that’s what we stand for.

At TMA’s urging, the 2011 Texas Legislature passed groundbreaking new laws that protect patients and their physicians’ ability to exercise independent medical judgment free 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 hospital districts, and the newly established Texas health care collaboratives. Texas is the first state in the country to take the critical step of protecting clinical autonomy. The laws place responsibility for monitoring and enforcement 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 likely will drive 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 arrangements for physicians who choose employment.

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

Support physician-developed, science-based quality measures
In modern health care, evidence-based medicine (EBM) is good medicine.

Contrary to its name, EBM isn’t just about evidence. It includes:

  • The best research available. Generally, EBM guidelines are based on the analysis of many large, well-designed clinical studies on the same topic.
  • The physician’s expertise. Physicians use their experience and education, along with EBM guidelines, to make informed medical recommendations for their patients.
  • The patient’s values. Patients share in the decisionmaking process about their medical care.

Patients must have confidence in the competence of their physicians and must feel that they can confide in the physicians fully to help them select treatment options that will work for them and their families. When patients are diagnosed with medical problems that require treatment, especially chronic diseases like diabetes or potentially life-ending diseases like cancer, they want to know which treatment has the best chance of curing them or helping them to manage the problem with the least negative impacts on their quality of life (such as pain).

Practicing EBM usually means that patients and their physicians are entering the treatment path with an understanding of trade-offs between treatment options, lengths of treatment, and how a selected treatment may affect patients and their families. EBM helps patients and physicians understand potential consequences; this understanding helps patients make informed decisions.

For example, the doctor may be able to tell the patient that 75 percent of patients with the same medical symptoms who took a certain medication were cured but suffered from pain or hair loss. In contrast, an alternate drug had a 30-percent efficacy rate but was not as damaging to the patient’s quality of life. Physicians who practice EBM allow their patients to participate in creating a “game plan” for treatment.

Evidence-based medicine helps patients and physicians understand potential consequences; this understanding helps patients make informed decisions. 

The policies of insurance companies don’t always correspond with EBM recommendations. A stark example of this is the traditional underfunding of evidence-based preventive and mental health care; both are expensive in the short term but highly cost-effective in the long term. Unfortunately, many insurers base their payment and coverage policies on the early costs and not on the eventual savings. This threatens a patient’s ability to receive care according to EBM guidelines. EBM is rapidly evolving and needs to make its way more quickly to physician practices. Use of EBM has been included in all components of health system reform and is a growing aspect of licensure requirements for physicians.

Respect patients in their final days
Thanks to the advancements of 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 incapable of communication or incompetent. Without advance directives, some of life’s most difficult decisions are being thrust upon unprepared adult children, parents, or other loved ones.

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 discomfort, pain, and suffering due to excessive medical intervention in the dying process. The time may come 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.

Then-Gov. George W. Bush signed TADA into law in 1997. It had unanimous support from physicians, nurses, hospitals, nursing homes, hospice care facilities, and pro-life organizations. The law provides a balanced approach to addressing one 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 morally 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 refusal. 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 some time to find a different facility for the dying patient.

Legislation has been introduced in the past two legislative sessions that would instead require indefinite treatment.

TMA has opposed the proposed legislation because it would prolong unnecessary — and often painful — care. It would 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. It also sets 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.

TMA Recommendations  

  • Pass no laws or regulations that violate the Principles of Medical Ethics or that 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.


  • Actively monitor regulations related to enforcing 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 relationships.


  • Require all payers to align their payment policies with evidence-based medicine and ensure payers disclose how they score physicians.


  • Ensure that evidence-based quality-of-care measures are the primary measures used in any health care quality improvement program.


  • Support legislation that protects the rights and moral conscience of physicians in provision of care. Texas statute should not require physicians to provide care that they believe is medically inappropriate or that violates their personal conscience and moral beliefs.


  • Encourage 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 the use of do-not-resuscitate (DNR) orders that are consistent with accepted standards of medical treatment, ethics, and science. Support efforts to require two physician signatures on an in-hospital DNR. 

 


 Healthy Vision 2020 


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