Update on yesterday's ethics case

The comments on yesterday’s ethics post are terrific.  Please keep them coming.  I’m working on responding to each one in context.

One, though, I’m promoting to it’s own post, because the author asks particularly interesting questions that require more space for examination:

I don’t really see an ethical problem here.

I love that phrase, and what follows, so let’s discuss.

First, contemporary doctors in most countries are forced to practice “defensive medicine”, i.e. they are trying to protect themselves against possible lawsuits. The most important thing is to have impeccable documentation.

I’ve argued previously that a medical ethics course should be a pre-requisite for medical school admission.  The ethics of our profession are not easy to follow, and before committing to being constrained by them for a lifetime, a student has the right to know what they’re getting into.  The commenter’s first point shows exactly why she doesn’t see an ethical problem: she is focused primarily on the physician’s well-being.  While the physician’s well-being is important, it is not primary.  Ignoring the unfounded assumption that most doctors practice “defensive medicine”, she is correct about good documentation being vital.  But it is not the “most important thing.”  The most important thing is providing good care, and usually, proper documentation furthers this goal.  But not always.

After explaining to the patient that a doctor cannot lie in the chart and after informing her/him of their other possible options, they are free to choose what to do.

This is certainly true.  Transparency is important, but it’s also important not to back a patient into an insoluble dilemma.  The patient wants my help and I am ethically bound to provide it, within certain parameters.  I certainly cannot lie in the chart (barring extreme circumstances such as guarding dissidents in a totalitarian regime or something), but this is not a dichotomous problem.

Second, I can’t really sympathize with such patients because what they are trying to do is shift the responsibility for their own medical problems and their consequences solely onto their doctors (not only for STDs, but even for the running nose of their children). This is not how the doctor-patient teamwork should function.

The patient has a problem.  Who “caused” the problem is largely irrelevant in providing proper care (aside from explaining to the patient the nature of disease and prevention, which she probably already understands).  I don’t see her trying to “shift responsibility” as such, but she is reaching out for help.  She feels trapped, and from her perspective, my “lie” will help mitigate the harm of her actions.  I may believe her assumption to be wrong, and I will tell her that.  But it’s not about blame.

Third, if a patient doesn’t want to to disclose a piece of sensitive information, he/she is not obliged to but once it’s on the table, there is little they can do about it.

An actual, dynamic doctor-patient relationship does not close doors.  Yes, she cannot make me “forget” the information, but neither should I tell her she no longer has any control over what happens.  This may cause harm to someone I’m trying to help.

The comment is one I expect to hear from many of my colleagues.  It is much more biased toward paternalism than patient respect and autonomy, a set of values that has shifted but that many clinicians still need to catch up with.

It is important to remember that the first goal is to provide care that helps the patient, minimizes harm to the patient, and does so respecting her autonomy, privacy, and dignity.  How the physician feels is much less important.

16 Comments

  1. There are several issues here.

    Your most important obligation in this is to yourself, to not do something that jeopardizes your well being unless your decision to do so is voluntary and made without duress. For example, not reporting someone to totalitarian authorities even if such was your legal obligation and you would be sanctioned if you did not is such a decision you have already made. Lying on a medical chart would be a similar action, something you might do to save a life, something you would not do to fudge billing.

    Your next most important obligation is to your patient, to do right by them. This is more complicated because to diagnose and treat your patients’ problems, you need information from them and information that could be extremely damaging to your patients if that information was disclosed to the wrong party.

    Medical records are not secure enough to prevent disclosure of this information. In the interests of transparency, your patients should know the degree of security associated with the medical records system before they disclose information to you that they would not want disclosed to anyone else.

    There are several legitimate reasons for others to access these medical records, insurance billing, continuity of care if PalMD is unavailable, and court ordered access. Medical records only need to be accurate and accessible for legitimate reasons. There is no reason that lab tests need to be labeled in the clear with easily identifiable patient information (they probably should not be). Any information user with legitimate access to the medical records could get access to the actual medical records.

    Insurance access only relates if the care is paid for by insurance. If the patient pays out of pocked for these particular services, there is no reason any insurance companies need access to the record. If the patient gave a fake name and paid in cash, no insurance company has a right to look at the medical records under that fake name. You are not a security agent for anyone, if someone tells you their name is Jane Doe, you are free to take them at their word if it does not otherwise impede your treatment of them.

    Continuity of care is more tricky because that relates to malpractice for not following the standard of care. A patient can’t waive their right to sue over their doctor not following the standard of care even if it is at the patient’s request. A doctor’s malpractice insurance may require adherence to the standard of care and so by not keeping accurate records a doctor may generate a risk of voiding his/her malpractice insurance. But if someone tells you their name is Jane Doe, and you keep records for each different Jane Doe that you treat, then your records are not incomplete.

    It is my understanding that people have the right to call themselves what ever they want, so long as they are not trying to commit fraud. If a person wanted to have two sets of medical records, so long as the records were not being used to commit fraud, I don’t see any legal or ethical problem with that. What might be tricky is information in the records used to cross-connect them. You need there to be such information in the records so that you see both records when you look up your patient, but that anyone else only sees one record.

    A way to do it might be to have her pay out of pocket so there is no insurance record, then use a bogus name like “Jane Doe”, but with her actual medical record number for lab tests. The lab people will see the bogus name, but the lab results still come back to her record. A mismatch in name and record number gives everyone “plausible deniability” except under oath.

    I am reminded of a story (which I am pretty sure is correct), where a obgyn in a group practice treated one of the other obgyn’s wives for pelvic pain. While they were playing golf the husband asked what was the problem, the treating physician said it was just a condom that got stuck. The husband never used condoms, he sued for divorce for infidelity, the wife sued the treating physician for malpractice for the disclosure and won.

  2. My favorite dilemma is when we test parents as transplant donors for their offspring and discover that dad did not father the child. That doesn’t remove dad as a potential donor, but it means mom is a better match. And that’s what we tell them. I have no ethical qualms about it.

    This case is a bit trickier. You have to test and treat for STI, whoever gave it to her. Her husband likely needs treatment as well. I guess I would document that she is sexually active without condoms, but not the details. Yes, her husband will see the tests that were done. It’s possible that he gave it to her as well. She is an adult and, frankly, put herself in this situation. Unless you have a time twister, she will have to deal with it one way or another.

    • JJM

       /  October 9, 2010

      Pascale, your post is a little unclear. You can tell the parents that the mother is the better donor candidate without saying that the father is unrelated. Are you saying that you tell the father that he is not related?

  3. I’ve argued previously that a medical ethics course should be a pre-requisite for medical school admission.

    This makes no sense at all. Why the fucke would the medical profession want to make it the responsibility of the pre-med curriculum to teach medical ethics? Who the fucke in an undergraduate institution is even qualified to teach medical ethics? Medical ethics should be taught by medical schools!

    • meh. then it’s too late. we require biology, physics, chemistry, orgo, all to make sure the student is “prepared” for medical school. There is no reason not to require something as important as ethics.

  4. The problem is that for some things that are considered to be “ethical” questions there is not agreement.

    In Uganda there was legislation proposed that would have criminalized homosexual behavior (aka the “kill the gays bill”) and criminalized not disclosing knowledge of homosexual behavior.

    What kind of “ethics” is going to be taught in Texas? They can’t even get matters of fact correct.

  5. Barquentine

     /  October 10, 2010

    PalMD, thank you for the analysis of my comment!

    What I meant by my first point was that good documentation is most important for avoiding legal troubles. Of course, I don’t argue that doctors have to provide good medical care in the first place. And indeed, it was clearly stated in your ethics case, that we deal with a “good doctor”, who adheres to the standard of care.

    I just think, that in this particular case it wouldn’t be ethical if the doctor complies with the patient’s request. What if the sexual encounter wasn’t consensual and she is not telling the truth out of fear? In this case, the medical records would be vital, if she decides to sue the perpetrator later. Or what if the sexual encounter was consensual but the patient got infected with hepatitis B? It is a disease that would endanger her family.
    You mentioned that a doctor should minimize the harm to the patient, but if one of the above scenarios is true, eventually the harm to herself or to her family would be greater. And if these considerations are shared with the patient, she would be able to think of other ways to take control over what happens. And it is not about blame at all, but about finding a real solution to her problems.

    We could theoretize further but too many practical concerns arise at the same time.

    PalMD, which medical ethics books would you recommend?

  6. The classic is Beauchamp and Childress, but i’ll have to see if there are any other comprehensive texts.

  7. Jean

     /  October 10, 2010

    One of the things I think is most interesting about medical ethics is that there is not necessarily a right answer to a dilemma.

    First, as you point out, you need to learn more about why the patient doesn’t want this in her chart, and more specifically about why she doesn’t want her husband finding out the extramarital encounter. Does she fear violence/personal harm, or is she really just trying to work things out?

    I would point out to the patient that omitting documentation of an episode of unprotected, extramarital sex is likely not to solve her problems. Should a test return positive for an STD (not unlikely), that positive result would definitely be recorded in her medical record (I don’t know of an EMR that lets you remove a patient’s lab results easily). So even if you can explain away ordering a test as standard for a patient with her presenting symptoms, you can’t ignore the result. Should she have an STD, her husband would also likely need to be treated (if they are having sex). As she’s tying to work out her marital problems with her husband, she probably still cares for him–she would be placing his health at serious risk by not telling him about her STD. Given this likely scenario, hiding the extramarital affair in the medical record (which, if not perfectly secure, is pretty secure) is a moot endeavor.

    Having explained this, I would explain that a history of unprotected sex is an important risk factor that should be noted for the reference of her current and future physicians. Say, for example, that she didn’t get gonorrhea or chlamydia from that unprotected encounter. However, she did get HIV. You didn’t mark her sexual encounter in the chart, and she thinks she’s in the clear–her symptoms clear up with treatment for a UTI/yeast infection/what have you. An HIV test, given that the encounter was only a week ago, wouldn’t be positive for about another 2 weeks, even up to about 6 months from now. Then, a couple years down the line, she feels off, and starts experiencing dementia and behavior changes, maybe a hint of motor changes. Low and behold, she has HIV encephalitis, but she doesn’t know that. She goes to another doctor (you’ve moved). (You could substitute any number of other HIV- associated conditions here, including more acute ones). Now since she has dementia, she isn’t giving a very clear history. Her husband, who doesn’t know about the extramarital encounter, says there is no way she could have and STD. The medical record gives no hint, and that past STD panel was totally clean. Diagnosis is delayed.

    If, when you’ve gone through the discussion with the patient of 1) her motivations and concerns about her privacy 2) the likelihood of futility of not putting this in the chart and 3) the risks of leaving out medically relevant information from her chart, she still wants you to leave out the info, then you need to decide if you, personally, feel like you can do that. Is honoring the patient’s request–and in doing so placing other aspects of her future health at risk– going against do-no-harm, more than risking her trust and her already on the rocks marriage?

    I don’t think we have enough information to answer that here. Also, even though you say we can’t consider this an option, in real life going to PP for anonymous testing (including follow-up testing for HIV), and then coming back to you for treatment if anything comes up positive (the cat’s out of the bag at that point, anyways) seems like the best option.

  8. Isabel

     /  October 10, 2010

    “First, as you point out, you need to learn more about why the patient doesn’t want this in her chart, and more specifically about why she doesn’t want her husband finding out the extramarital encounter. Does she fear violence/personal harm, or is she really just trying to work things out?”

    No, first you need to learn to MYOFB.

    “Given this likely scenario, hiding the extramarital affair in the medical record (which, if not perfectly secure, is pretty secure) is a moot endeavor.”

    Right. It’s useless information. Yet factual information of a highly personal nature. And as far as the HIV I think everybody knows it’s a risk and you won’t find out right away. If you feel the word needs to get out more print up some pamphlets. Inform the patient. Again this is paternalistic “if I don’t print in her chart she had an affair with a guy she met in a bar she will never get tested for HIV and will become mentally incapacitated blah blah”

  9. BB

     /  October 12, 2010

    I’ve argued previously that a medical ethics course should be a pre-requisite for medical school admission.

    It would have to be offered at every college (including foreign colleges), which may not be possible. Rather, include it in med school curricula.

  10. I’d like to see how more impeccable record keeping would solve the ethics dilemma in this case. I see the notes in the chart being something like this:
    “Patient had unprotected sex with partner not her husband. Patient asked me not to write that down. I did anyways.”

    I don’t see whether the sex being consensual or not here matters. It’s clearly too late for a rape kit. I think it’s a good idea medical doctors recommend counseling to patients, but whether or not she chose to have sex with someone else is probably not necessary information to recommend counseling, and something I think is a waste of time to speculate on. The fact that she asked you not to write down information in her chart, and is putting secrecy/her marriage above her own health is probably inspiration enough to recommend she see a counselor. If she hadn’t told you about the bar, but was presenting symptoms of an STD wouldn’t you still have her tested? Obviously the more a patient tells a doctor, the better that doctor can treat the patient, but if she was keeping that information from you you should still do your best to treat her.

  11. Speaking from the patient’s side of things:

    if a patient doesn’t want to to disclose a piece of sensitive information, he/she is not obliged to but once it’s on the table, there is little they can do about it.

    I am well aware of this, and as such if there were a piece of information I didn’t want in my chart, I would not share it with the doctor, possibly even if I suspected it was medically relevant.

    So yes, that is the reality. And this is one potential effect of that reality. FWIW, I’m not saying the doctor should definitely not record this in her chart… but to pretend it’s not even an ethical dilemma… I don’t see how one could possibly assert that!

    If patients have the presumption that anything they say can and will be recorded in the doctor’s chart, that will lead some patients to withhold information. That creates a dilemma whether you like it or not.

    On a side note, I worry there is an aspect of misogyny and/or slut-shaming involved in some responses to this. “She slutted it up, now she’s got to face the consequences.” Yeah, kiss my ass on that one.

  12. I really appreciate this discussion, especially Isabel’s contribution.

    As I stated early in my original post, ethics problems aren’t “problems” when the answer is obvious. It’s the tough cases that help us illuminate which specific issues are problematic, and how we may overcome them.

  13. I am pretty sure my father hid his lung cancer from his doctor for at least 6 months so that my mother would not cancel a trip she was taking with her daughter-in-law’s mother to her village in the Ukraine where she (DILM) had not been since she was taken as a child to work in the factories by the Nazis. He had a physical a few months before the trip and chose to not have the echo cardiogram his doctor ordered. A month or so after she got back, he was taken to the ER with difficulty breathing. They operated a few days later, and it was the largest tumor the surgeon had ever removed from a chest (this was in a large hospital in the NY metropolitan area). By then it was high grade, they debulked it, took out a lung, and during recovery his other lung collapsed. He never recovered from that.

  14. Connie Bristol

     /  October 15, 2010

    What about this… in Tennessee a provider (nurse practitioner, physician assistant, MD, DO, Podiatrist, etc.) has 3 business days to report a patient for “doctor shopping” or could possibly be charged for a felony. A main precursor to this, Tennessee is the number one state in the USA for hydrocodone abuse. Now, do you become a martyr and save your patient who does this and risk loss of license, DEA number, freedom while you are in prison, or do you squeal like a pig? Thanks. God speed!

%d bloggers like this: