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

June 29, 2012

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?

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 Everything we do for that patient will be “withdrawn” from his or her account, creating a powerful financial incentive to eliminate treatments that provide marginal benefits, especially those with very high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.