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When Doctors Break the Rules

On the Ethics of Physician Noncompliance

Published online by Cambridge University Press:  29 February 2012

JEFFREY BLUSTEIN
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Extract

Suppose a primary care physician practicing in an underserved community orders a treatment for one of her indigent patients under the state’s Medicaid program.

Type
Professionalism
Information
Cambridge Quarterly of Healthcare Ethics , Volume 21 , Issue 2 , April 2012 , pp. 249 - 259
Copyright
Copyright © Cambridge University Press 2012

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References

Notes

1. Rule breaking is often distinguished from rule bending, although the differences between them are rarely explained in the bioethics literature. Sometimes rule bending is thought to involve tweaking the rules or pushing against the limits imposed by them, rather than violating them; other times rule bending is thought to be a less serious form of rule breaking. See, for example, Hutchinson, SA.Responsible subversion: A study of rule-bending among nurses. Research and Theory for Nursing Practice 1990;4(1):3–17Google ScholarPubMed; and Ubel, P.Physicians’ duties in an era of cost containment: Advocacy or betrayal? Journal of the American Medical Association 1999;282:1675.CrossRefGoogle ScholarPubMed

2. Rawls, J.A Theory of Justice. Cambridge, MA: Harvard University Press; 1971, at 369.Google Scholar See also Childress, J.Civil disobedience, conscientious objection, and evasive noncom-pliance: A framework for the analysis and assessment of illegal actions in health care. Journal of Medicine and Philosophy 1985;10:63–83.CrossRefGoogle ScholarPubMed

3. Norm Daniels makes this point as well, in Just Health. New York: Cambridge University Press; 2008, at 235–6.Google Scholar See also Fox, DM. Physicians versus lawyers: A conflict of cultures. In: Windt, P, Appleby, P, Battin, M, Francis, L, Landesman, B, eds. Ethical Issues in the Professions. Englewood Cliffs, NJ: Prentice Hall; 1989:32–8.Google Scholar

4. Wasserstrom, RA. Lawyers as professionals: Some moral issues. In: Windt, P, Appleby, P, Battin, M, Francis, L, Landesman, B, eds. Ethical Issues in the Professions. Englewood Cliffs, NJ: Prentice-Hall; 1989:84–95, at 87.Google Scholar

5. These views of the lawyer correspond to strongly and weakly role-differentiated conceptions of the role. They are distinguished in Cohen, ED. Pure legal advocates and moral agents: Two concepts of a lawyer in an adversary system. In: Flores, A, ed. Professional Ideals. Belmont, CA: Wadsworth; 1988:82–95Google Scholar; and Wasserstrom 1989 (see note 4).

6. Gaming, as she characterizes it, includes deliberate rule breaking. Morreim EH. Gaming the system: Dodging the rules, ruling the dodgers. Archives of Internal Medicine 1991 Mar;151:443–7.

7. See note 6, Morreim 1991, at 446.

8. Regis, C.Physicians gaming the system: Modern-day Robin Hood? Health Law Review 2004;13(1):19–24.Google ScholarPubMed

9. There is also the question of the influence some rule breakers have on others. If one doctor breaks the rules, this may make a small contribution to making such actions respectable among those of his fellow doctors who know him and give any weight to his views, and probably a more significant contribution to making such actions acceptable among his trainees. Still, these contributions do not necessarily amount to the kind of large-scale threat to the resource allocation system contemplated by Morreim and Regis.

10. There are other consequentialist arguments against rule breaking that focus on the effects of rule breaking on the individual rule breaker. Thus, it may be argued that a physician who engages in minor acts of rule breaking will, if he does this often enough, be less disinclined to engage in more serious acts of rule breaking. His disinclination to break the rules will gradually weaken, and he will end up breaking the rules when the morality of doing so is much more questionable.

11. See note 2, Rawls 1971, at 112.

12. Daniels distinguishes these in Just Health. See note 3, Daniels 2008, at 233–4.

13. For a discussion of conditions for justified evasive noncompliance, see Gross, M.Physician-assisted draft evasion: Civil disobedience, medicine, and war. Cambridge Quarterly of Healthcare Ethics 2005;14(4):444–54.CrossRefGoogle ScholarPubMed

14. See note 2, Childress 1985, at 70; see also note 2, Rawls 1971, at 373.

15. Little, MO. Cosmetic surgery, suspect norms, and the ethics of complicity. In: Parens, E, ed. Enhancing Human Traits: Conceptual Complexities and Ethical Implications. Washington DC: Georgetown University Press; 1998:162–76, at 170.Google Scholar

16. Williams, B. Utilitarianism and moral self-indulgence. In: Williams B. Moral Luck. Cambridge, UK: Cambridge University Press; 1981:40–53.CrossRefGoogle Scholar

17. See note 15, Little 1998, at 173.