AMA Journal of Ethics^®

Case

Dr. Hendry, a neurosurgeon in his first year of private practice, entered the exam room to see Ms. Davis. She explained that she had been experiencing back pain and paresthesia in her right leg. Her symptoms had begun one month before, after she had bent down to pick up her grandson. While examining her, Dr. Hendry noticed that Ms. Davis's right leg was slightly weaker than her left and that she had a right foot drop. After reviewing the MRI, Dr. Hendry saw that Ms. Davis had a ruptured L5-S1 disk and mild degenerative changes. He explained the MRI results to her, and said that she could either have surgery now or wait longer to see if her symptoms would resolve on their own. "I thought I might need surgery," she said. "Is that what you recommend?" she asked.

As the newest member of a three-surgeon practice, Dr. Hendry had the fewest patients and had performed the fewest surgeries. At the group's monthly meeting the week before, one of the partners assured him that it was normal for young surgeons to take a few months to build their practices. But Dr. Hendry also noticed subtle suggestions that his was moving slower than most. There was a joking reminder that, as surgeons, they were paid for doing surgery and that office visits alone would not "pay the rent." Ms. Davis was the first patient on his schedule for the following week.

Dr. Hendry felt confident that he could remove the extruded disk material and that Ms. Davis, who was 58 years old and in good health, would have a favorable outcome. She seemed to have come to his office expecting that she would need—and he would recommend—surgery, and she had medical insurance that would pay a substantial part of the bill.

Dr. Hendry also knew that, as he explained to Ms. Davis, some patients recover without surgery. The disk fragment can be resorbed by the body, relieving the pressure on the nerve. He also knew that it was impossible to predict if or when the symptoms might resolve, and, as he told Ms. Davis, the longer they were allowed to persist, the greater the chance of doing lasting damage to the nerve. As Dr. Hendry considered the case, he remembered his partner's joking that office visits would not cover the group's expenses. Dr. Hendry knew that—from a clinical point of view—it was one of those 50/50 calls in which the patient, having been given the necessary information, should make the decision, based on her own pain and reduced function. He was still conflicted about how to answer Ms. Davis's question of, "Do you think we should schedule the surgery?"

Commentary 2

When a physician encounters a new patient, he or she "professes" to have special knowledge and skills that will be used to benefit the patient [1]. Implicit in this claim is the understanding that the physician will act in the patient's best interest even at the expense of his or her own. But as soon as such a promise is made, the physician is at risk for conflicts of interest. Indeed it has been argued that such conflicts are the defining ethical dilemma in any profession, including medicine [2,3]. Procedures performed by physicians have the potential to enhance not only their financial well-being but also their stature within the medical community. The conflicts of interest that receive public notoriety often involve physicians owning stock in, or receiving large payments from, companies for whom they do research or about whose products they speak in public. But the dilemma faced by the physician in the case presented here is far more common for those practicing clinical medicine. Dr. Hendry must make a decision which has the potential to enhance his financial productivity and his stature within his group but which may subject his patient to the pain, trauma, and cost of unnecessary surgery.

Even though some medical professionals have conflicts with society's goals or those of the institutions in which they practice, the most frequent involve their obligations to patients. A conflict of interest occurs when the physician's action is likely to compromise the patient's trust by serving his or her own interests before those of the patient [3,4]. It is notable that this definition implies that a conflict is present not only when a breach of obligations to the patient has occurred but also when there is potential for compromising the patient's interests.

How can conflicts such as those faced by Dr. Hendry be managed? First, it is important to realize that the majority of dilemmas in clinical practice are unlikely to ever come to the public's attention. As a result, the medical profession is dependent on its members having a well-formed conscience and being continually aware of the pervasive nature of conflicts of interest in practice. The four techniques most commonly used to regulate conflicts are: prohibition of certain activities that are particularly prone to exploitation of the patient with little likelihood of benefit, use of informed consent with disclosure of the conflict, adherence to professional standards of practice, and soliciting review of the activity by other members of the profession (e.g., second opinions) [2]. We can now apply these guidelines to Dr. Hendry's quandary.

Managing Conflicts of Interest

The first technique for regulating conflicts of interest is to prohibit an activity or divest one's involvement in an entity if the nature of the activity or involvement is extremely likely to compromise one's obligations to the patient. It is difficult to expect Dr. Hendry to give up performing lumbar surgery to avoid any possibility of recommending a surgery which might not be strictly necessary. In fact, patients would suffer from limited access to such surgery, when indicated, if large numbers of physicians removed themselves from these types of interventions over concerns about conflicts of interest. If, however, he believes that his partners are taking advantage of vulnerable patients, it may be wise for him to find another practice to avoid being placed in situations where he is likely to act against his patients' interests.

This form of regulation might also come into play for the physician who has a major interest in a company or device used for a particular type of surgery—if, for example, the physician invents a type of implant that compromises his or her ability to objectively choose between different options for a patient. If this surgeon found it difficult to recommend a competing device, even one that was more appropriate for treatment of a particular patient, he or she might find it necessary to divest interest in the device or give up clinical practice to work for industry.

A robust use of informed consent is more applicable in the case presented. In instances such as this, where both conservative and surgical approaches are reasonable, providing the patient with a careful discussion of the various options with the risks and benefits of each is crucial to avoiding recommendations that are based on the physician's interests. If there is truly no clearly preferred approach in the medical literature, the physician must be careful to avoid subtly introducing a bias in this conversation that is not grounded in purely clinical facts. Given appropriate information, many patients will be able to decide on a course of action based on their particular philosophy and tolerance for risk. Still, many other patients will want or need a recommendation from the physician. It appears that Dr. Hendry has appropriately informed Ms. Davis of the options available, so how should he advise her? It is here that professional guidelines may be helpful.

Many specialty societies publish clinical guidelines for the diagnosis and treatment of various conditions based either on review of the literature or on professional consensus of opinion, when the literature does not provide clear guidance. When there is a clear consensus among published studies, following these guidelines can help the physician ensure that he or she is not acting primarily from self-interest in recommending a particular therapeutic option. As in the case presented, however, there may be no definitive guidance, and the recommendations will have to allow for clinical judgment in the choice of treatment. If guidelines suggest that an initial trial of conservative therapy is an acceptable option without major risk of progressive neurological dysfunction, Dr. Hendry might be wise to recommend such a trial for four to six weeks, especially if he is concerned about his motivation for recommending surgery. If no professional guidelines have been issued, he should make an effort to follow the best available data from the literature.

The final option to minimize the danger of conflicting interests in the case presented is to obtain consultation from other medical professionals. Dr. Hendry could consider discussing the case with colleagues in his practice. Indeed, one of the advantages of a group practice is the availability of partners with varied experience and interests to provide a sounding board about the appropriateness of a recommendation. Some have even argued in a situation analogous to this case—that of angioplasty or stenting versus medical therapy for stable angina—that the cardiologist who places a stent or performs angioplasty on a patient should not be the same one who performs a diagnostic arteriogram and makes the decision to pursue medical therapy versus an intervention [5].

Given the subtle pressure placed on Dr. Hendry by his partners, he may be uncomfortable with the advice he would receive in this case. Because he has recently completed training, a call to a respected mentor from his training program or a senior member of his local medical community may make him more comfortable with his recommendation to his patient.

In summary, the best defense against compromising obligations to patients is constant awareness of the pervasiveness of conflicts of interest in medical practice. When a conflict is identified, consideration should be given to prohibiting the activity if the likelihood of compromising the patient's interests is sufficiently high. If not, the clinician should depend on meticulous informed consent, use of professional guidelines if available, and consultation with partners or trusted senior physicians.