ETHICS AND ONCOLOGY

Supreme Court Decision: Are We Oncologists Prepared for Its Ethical Implications?

By Paul R. Helft, MD | June 29, 2012

Dr. Helft is an Associate Professor of Medicine at the Indiana University School of Medicine; his clinical work is based in the Gastrointestinal Oncology Program at the Indiana University Melvin and Bren Simon Cancer Center. Dr. Helft is also director of the Charles Warren Fairbanks Center for Medical Ethics at Indiana University Health in Indianapolis.

In the wake of the Supreme Court’s decision today to uphold the major provisions of the Affordable Care Act, I have been pondering the ethical implications of the decision that will affect those of us who care for patients on the ground level. My hospital system, like many others, is deep into the process of planning to become an Accountable Care Organization (ACO) as part of its effort to survive in a post-Affordable Care Act world. The details of this protean effort are vaguely mysterious to most clinicians like me, but the broad outlines of the effects of inevitable changes are pretty clear. Instead of getting paid for everything we do to a patient with a cancer diagnosis, our organization will receive a lump sum for each “episode of care”—an uncomfortable term for anyone who understands the long-term complex planning that must go into a cancer patient’s care. Everything we do for that patient will be “withdrawn” from his or her account, creating a powerful financial incentive to eliminate treatments that provide marginal benefits, especially those with very high cost-benefit ratios.

Paul R. Helft, MD

From the point of view of people outside the specific realm of clinical oncology, many of the treatments we routinely employ for patients appear to fit this category—treatments that cost perhaps tens of thousands of dollars and provide, on average, a few months of survival advantage. So we are headed directly for conflict, and we are wholly unprepared to manage the conflict on the ground. The conflict will involve clinicians and ACOs (we clinicians will be increasingly in salaried situations removed from direct financial risk, but ACOs will necessarily need to put pressure on us to cut back on marginally beneficial and expensive treatments); and, importantly, it will directly affect clinicians and patients and their families. This pressure point gives me the most anxiety.

We clinicians have profound and unalienable fiduciary responsibilities to our patients (and, by extension, to their families). The organizational pressures to limit cost-ineffective treatments will be channeled through clinicians to patients. We are the face of the organization to patients—indeed, frequently the only face with which they come into contact. Although there is evidence that clinicians are more mindful of the financial implications of their treatment recommendations than in the past, and that most physician practices have financial and insurance-oriented personnel who explain and manage the personal financial implications of treatment for patients, there is little evidence that we clinicians are routinely engaging in discussions about the cost-benefit ratios of recommended treatments. But soon we will find ourselves under enormous pressure to limit treatments in ways we have not yet imagined.

How will we deal with patients and families who, given their tremendous access to information, learn about and demand expensive (and up until now reasonable) treatments once we have recast them as too expensive to justify their marginal benefits? Are we prepared to engage in such discussions directly? How will we uphold our ethical obligations to patients to advocate for their good when organizations and pathways pressure us in other directions? Do we have enough training and communication skills to manage these questions and preserve our relationships with patients and their families? Accountable Care Organizations will not be dealing directly with patients and families; clinicians will.

I believe there is a good chance that the Affordable Care Act, whose major premise is that redirecting the financial incentives for treating populations of patients and building in so-called quality incentives will incentivize clinicians to find ways of treating patients in more cost-effective ways, will soon implode—because the American public will not be willing to accept limitations on their choices (however cost-ineffective such choices are shown to be). But also because we are unprepared to engage in the kinds of conversations we will be forced to undertake by virtue of our roles within ACOs.

by Paul H Barrett, MD, MSPH | August 03, 2012 10:53 AM EDT

Dr. Helft fears that Accountable Care Organizations (ACOs), which predate the Affordable Care Act (ACA), will lead to "[the implosion of the Act] because the American public will not be willing to accept limitations on their choices"[in the treatment of cancer]. The author's argument depends on several dubious assumptions:

1. That it is unacceptable for ACOs to "put pressure on [oncologists] to cut back on marginally beneficial and expensive treatments."ACOs were first proposed several years ago by physician leaders in large multi-specialty group practices like the Mayo Clinic and the Permanente Medical Groups (the physicians in Kaiser Permanente). They were proposed because only groups of physicians (in collaboration with other health care professionals and managers) are likely to be able to move American medicine beyond its current unsustainable rise in costs and persistent, systemic problems with quality of care. He makes himself and his patients into victims, when in fact, ACOs are designed to allow him and other oncologists to be a part of the solution. This solution may include cutting back on marginally expensive and expensive treatments, but something must be done about the damage that the cost of medical care is doing to our country. Where best to start if not with marginally useful, expensive treatments?

2. That ACOs will create individual patient "accounts" which would be used to stimulate physicians to withhold care from individual patients. For example, once a patient has "spent" his account there would be pressure on the physician to unreasonably limit further care to that patient. If his ACO implements such a system that would be unacceptable to patients, families and physicians. However, it is more likely that the physician managers of his ACO will collaborate with its full-time clinicians to determine how it will manage the care of all of its patients to appropriately restrain the overall cost of care in the practice.

3. That fee-for-service (FFS) care with its "unalienable fiduciary responsibilities to patients" is ethically superior to "lump sum" (prospective) payment for care as delivered by salaried physicians. In fact, the AMA, through its Council on Ethical and Judicial Affairs (1996-1997) explicitly refers to "cost/benefit judgments made by physicians as a part of their normal professional responsibilities." The author's assumption that he must not consider costs in treatment decisions because he thinks it's unethical to do that, but the AMA disagrees. If he is to be a part of the solution he needs to broaden his view of the role of the physician to include acting as a member of a group of physicians who explicitly address the cost-benefit issues that he is, understandably, uncomfortable addressing patient-by-patient with only his own values, beliefs, knowledge and experience to guide him. Beginning with multispecialty group practices such those referred to above as far back as the 1930s groups of physicians have delivered high quality care at a lower cost than that provided in traditional, FFS medicine.

4. That oncologists will not be able to deliver care under prospective payment in a way that will be acceptable to physicians and patients. In fact, some large group practices have been doing that successfully for employer groups since the 1930s and for Medicare beneficiaries since the 1980s. In addition, since the 1980s hospitals, collaborating with their medical staffs, have been prospering under prospective payment for each admission ("episode" of care) through Diagnosis-Related Groups" (DRGs). There is no reason that physicians in ACOs can't do the same.

5. That physicians won't be able to deal with demanding patients. It's true that there will be some demanding patients and families who will succeed in getting expensive, marginally-useful care for terminal cancer. But the vast majority will accept the more reasonable options offered to them by their oncologists once oncologists and other physicians in ACOs have addressed the issue, e.g., through guidelines or less formal norms applied flexibly on a patient-by-patient basis. Many physicians don't believe that it is reasonable to continue aggressive chemotherapy, with its frequent office visits for infusions and ER visits for complications of the treatment or disease, to terminally-ill patients. The broader group of physicians will be able, through ACOs, to address the ethical, clinical, professional and financial issues involved in such care. And, regardless of the extent of such discussions, individual oncologists can certainly learn how to talk to patients and families. Many institutional Ethics Committees already provide such training. Finally, the fact that some demanding patients get inappropriate care doesn't mean that it must be offered, let alone, recommended, to all patients by their oncologists.

In summary, ACOs give physicians the opportunity to take the lead in making American medical care more cost-effective, the AMA has long recognized the fact that physicians take cost into account, prospective payment is a well-established method of paying for care and finally, there are well-established avenues for physicians to relate to patients, including the demanding ones, while delivering cost effective care.

- Paul H Barrett, MD, MSPH