- Email: [email protected]
Ethics, case management, and the standard of care
CM ETHICS
ETHICS, CASE MANAGEMENT, AND THE STANDARD OF CARE John D. Banja, PhD
I
f I were a health care professional, I think I would harbor a nearly constant worry about whether I was complying with the “standard of care.” As we will see, the standard of care (SOC) is as easy to define as it is vague. It is easy to remember because it is oblivious to the fact that a few variables can transform an otherwise straightforward clinical decision into a controversial or uncertain one.
happens when a number of them disagree about what to do? What does the professional do when a patient presents with a complex of symptoms that no one has ever seen before or that is poorly understood? When should a new finding, such as one reported in our best research journals, be embraced as the SOC, and how much patience should we have with health professionals who are slow to adopt it?
Words most commonly used to characterize the SOC include “the process that a clinician should follow in a particular case,” “the level at which the average, prudent provider in a given community would practice,” “how similarly qualified practitioners would have managed the patient’s care under the same or similar circumstances,” or “the degree of prudence and caution required of an individual who is under a duty of care.” A famous 1837 case, Vaughn v Menlove, described the SOC in terms of whether an individual “proceed[ed] with such reasonable caution as a prudent man would have exercised under such circumstances.”1
I would be surprised if case managers didn’t find these questions significant, because two very important and interrelated professional considerations ride on them. First, because the SOC prescribes what patients are owed, the patient who receives care that falls below the SOC is morally wronged. The health professional is trained and licensed (or certified) to deliver the SOC, and his or her failure to do so raises uncomfortable ethical questions about failing to perform his or her duty. Second, failing to perform one’s duty also can trigger a lawsuit, especially if that failure results in the client’s sustaining harm. Ethics, law, and the SOC go hand in hand. Failure to deliver the SOC is ethically problematic as well as legally hazardous.
“Average,” “prudent,” “cautious,” and “reasonable” are the most common words used to characterize the SOC, and who could argue with them? By calling attention to what the average or reasonable health professional would do, these definitions do not require that professionals be perfect or all-knowing but that they simply act in the way that the professional ordinarily does—which sounds eminently reasonable. The problem that these words do not—indeed, cannot— take into account is that the SOC is not frozen in time but can seem like a moving target. How does a particular intervention become the SOC, and what is the process by which it ceases to be the SOC if some new, more effective treatment displaces it? Who exactly is the “average, prudent provider,” and what TCM 20
July/August 2006
The 2006 March/April issue of The Case Manager carried a number of well-done articles on licensure and liability, and, inevitably, the SOC was mentioned more than once. It was especially discussed in the recent case of Smelik v Humana, wherein over $7 million was awarded to the Smelik family, in part because of the failure of the Humana Health Plan of Texas Inc. to deliver case management services appropriately to Mrs. Joan Smelik.2 Although Humana is appealing the decision, it would be well to look at this case particularly from the standpoint of the case management SOC, because there is little question that Smelik will be discussed in that context for some time to come.
Smelik v Humana Mrs. Joan Smelik was a member of a Humana health maintenance organization (HMO) in Texas. She suffered from chronic kidney disease (CKD), emphysema, and a circulatory condition that affected her kidneys. Humana had originally provided case management services, but when Humana’s contract with the case management provider expired, Humana took over the case management internally. At that point, however, Humana believed that Smelik’s condition did not “hit the triggers” for case management and so relinquished that service. Humana later claimed that they didn’t know that Smelick had CKD, which would otherwise have qualified her for services in view of this chronic and potentially catastrophic disease. She died from renal failure in May 2001. An important aspect of the interface between the “reasonable” health professional and the SOC is what he or she knows or should know at the time services are contemplated. The “know or should know” expectation distinguishes the health professional from the nonprofessional and partially informs the evaluation of how well the professional complied with what duty demands (ie, to deliver the SOC). In that regard, the Smeliks were able to convince the jury that Humana most certainly knew or should have known of Mrs. Smelik’s disease because their own computerized records had data confirming her undersized kidneys, which indicated CKD. It was on that basis, the Smeliks argued, that she should have been (but wasn’t) referred in an appropriate manner to a kidney specialist and to case management. Moreover, the Smeliks produced evidence that showed that in September 2000, Mrs. Smelik had a documented episode of acute renal failure that apparently resulted from the combination of three drugs—a nonsteroidal anti-inflammatory drug, a diuretic, and
an angiotensin converting enzyme (ACE) inhibitor. Four months later, however, and some 4 months prior to her death, Humana nevertheless approved the purchases of the same three-drug combination. Both of these decisions appear to imply negligence by way of Humana’s failure to accommodate the SOC according to the “know or should know” criterion. In addition, the Smeliks were able to convince the jury that Humana failed to accommodate the SOC as Humana itself defined that standard! Importantly, the Smeliks did not claim that Mrs. Smelik was denied care, such as having a referral request to a nephrologist denied. They claimed instead that Humana failed to exercise ordinary care as that care was outlined in Humana’s own Member Handbook, Physician’s Administration Manual, and internal guidelines, policies and procedures. From an ethical perspective, this amounts to Humana’s failing to keep its promises to its members, which the Smeliks argued cost Mrs. Smelik her life. Notice how powerful such an evidentiary demonstration can be. It is one thing for a health professional to plead that a “reasonable” practitioner might be unaware of the SOC—because, for example, it is very new or remains controversial. But when the professional’s employing organization delineates guidelines that themselves amount to the SOC but aren’t subsequently followed, that organization might face a decidedly uphill climb in explaining why the guidelines were not followed. Although a professional’s failure to follow his or her organization’s policies sounds very unsettling, it is hardly unusual. The literature on medical errors demonstrates a surprising number of catastrophic events wherein some health professional violated or neglected the organization’s own policies and proce-
dures in a way that directly contributed to the adverse event.3 What kinds of implications can case managers draw from this information? Implications and Recommendations As attorney Gayle Sullivan wrote in commenting on the Smelick case, “First and foremost, know your employer ’s policies and procedures … because these internal guidelines can be used to determine the standard of care.”4 A common organizational shortcoming, however, is that organizations often don’t take enough time to educate staff on what various SOC policies are, or the organization leaves it up to the employee to learn them. Of course, some policy and procedure manuals are so overwhelming that it would be impossible for a person to be intimately acquainted with their contents. In a case like Smelick, however, these excuses would ring hollow. The ethical objective of SOC policies and procedures is to ultimately protect clients and advance their welfare. From that perspective, it not only makes no sense but seems morally vile for an organization to develop policies and procedures that bear on the SOC and then ignore them. Furthermore, case managers, like all professionals, should be wary of temptations to deviate from the SOC. A standard or guideline might seem needlessly burdensome, or the provider might think there is a more efficient way to accomplish the task at hand. In such instances, organizations should have mechanisms whereby providers who implement problematic policies and procedures that amount to the SOC can call attention to them and have them revised. The employee who simply “does things differently” might well be putting herself and her organization in serious ethical and legal jeopardy. A second recommendation is for case managers to acquaint themselves with
the SOC as it is nationally understood, such as through CMSA standards. Case managers should secure certification, go to national conferences, and be active in their local chapters. They absolutely must stay abreast of the literature. And they should not regard the legal literature, such as commentaries on the Smelick case that have begun to appear and will surely keep appearing in the case management literature, as reports of what “bad organizations do” but rather as important sources of knowledge that can inform case management practices. Also, case managers should be able to work in organizations that allow them to openly discuss troublesome developments or trends in case management— such as when a few organizations some while back began requesting that their case managers do video surveillance on clients—and pursue measures to rectify them. It is virtually a truism that the more creative, thoughtful, and interested a case manager is in the development of her practice, the more likely it will be that she will respond to problematic developments in an ethical and legally sound manner. The reason for that lies in a third suggestion: case managers should trust their instincts when it comes to patient advocacy, because when problems arise, as they tragically did in the Smelick case, those “client-centered” sensibilities will be center stage. A fundamental case management skill is the ability to identify individuals who can benefit from case management services. In light of Mrs. Smelick’s death, one wonders how it was decided at Humana that her condition did not warrant case management services. Did a case manager make that decision, and if so, what criteria did he or she use? Again, I quote from Sullivan’s article “The Cost of Negligence”: “A proactive step for managed care organizations to take now would be to review July/August 2006
TCM 21
continued
CM ETHICS
their criteria for patient referral to case management, determine whether reliable and valid assessment steps are in place, and determine whether they are being followed.” One hopes that such a review will occur in good faith and ultimately be directed by a keen, justice-based concern, because in the aftermath of the Smelick case—a case that proceeded, incidentally, despite Humana’s claim that the contended benefit was ERISA (Employee Retirement Income Security Act of 1974) preempted and hence should not have been decided in a state court and should not have awarded anywhere near $7 million to the Smelicks—we should expect to see more legal interest in similar incidents and allegations. Last, and again as Sullivan notes, case management organizations should not promise more than they can deliver, because such statements can imply how
the organization understands its SOC. Thus, health plans or case management services that use superlatives like “best” or “optimal” on their Web sites or in their marketing literature should consider if there is a consensus on what those words mean and, if there is, whether the organization is able to make good on what can sometimes be construed as legally enforceable promises. Conclusion I hope, then, that it’s apparent why I’d be constantly thinking about the SOC. It’s what health professionals owe their clients and therefore what constitutes the dutiful course of action. It also constitutes the weight of their responsibility, however, and can sometimes seem burdensome or onerous. Nevertheless, this is why the provision of health care, as that provision is informed by the SOC, is unimpeachably ethical.
The ethical act is invariably the “otherregarding” act. It is not done for the sake of the professional or the organization but for the sake of the client. It explains why people become consumers of health care organizations, and it forms the basis of our ethical expectations when consumers have a reasonable need for services. Health care organizations cannot routinely provide their consumers with perfection—just what “the ordinary, reasonable professional acting in an ordinary and reasonable way” would do. Continuing to unpack and ethically consider what that seemingly innocuous phrase means, however, can be read as the historical unfolding of the American health care system itself. Ethically, legally, and historically, determining and delivering services that accommodate the SOC is, in large part, what the best intentions of health care are all about. ❏ References 1. MedicineNet.com. Definition of standard of care. Available at www.medterms.com/ script/main/art.asp?articlekey=33263. Accessed April 26, 2006. 2. Texas jury finds Humana HMO liable in wrongful death lawsuit. Available at: www.insurancejournal.com/news/southcentral/ 2005/07/21/57517.htm. Accessed April 26, 2006. 3. Banja J. Medical errors and medical narcissism. Sudbury (MA): Jones and Bartlett; 2005. 4. Sullivan G. The cost of negligence. Case Manager 2006;17(2):54-5, 66.
John Banja, PhD, is an associate professor at the Center for Ethics at Emory University. The opinions expressed in this article are the author’s and not necessarily those of any organization with which he is affiliated. You can e-mail your ethical queries, stories, or case examples to him at [email protected] or call his office at (404) 712-4804. Reprint orders: E-mail authorsupport@ elsevier.com or phone (toll-free) 888-834-7287; reprint no. YMCM 402 doi:10.1016/j.casemgr.2006.04.010
TCM 22
July/August 2006
ETHICS, CASE MANAGEMENT, AND THE STANDARD OF CARE John D. Banja, PhD
I
f I were a health care professional, I think I would harbor a nearly constant worry about whether I was complying with the “standard of care.” As we will see, the standard of care (SOC) is as easy to define as it is vague. It is easy to remember because it is oblivious to the fact that a few variables can transform an otherwise straightforward clinical decision into a controversial or uncertain one.
happens when a number of them disagree about what to do? What does the professional do when a patient presents with a complex of symptoms that no one has ever seen before or that is poorly understood? When should a new finding, such as one reported in our best research journals, be embraced as the SOC, and how much patience should we have with health professionals who are slow to adopt it?
Words most commonly used to characterize the SOC include “the process that a clinician should follow in a particular case,” “the level at which the average, prudent provider in a given community would practice,” “how similarly qualified practitioners would have managed the patient’s care under the same or similar circumstances,” or “the degree of prudence and caution required of an individual who is under a duty of care.” A famous 1837 case, Vaughn v Menlove, described the SOC in terms of whether an individual “proceed[ed] with such reasonable caution as a prudent man would have exercised under such circumstances.”1
I would be surprised if case managers didn’t find these questions significant, because two very important and interrelated professional considerations ride on them. First, because the SOC prescribes what patients are owed, the patient who receives care that falls below the SOC is morally wronged. The health professional is trained and licensed (or certified) to deliver the SOC, and his or her failure to do so raises uncomfortable ethical questions about failing to perform his or her duty. Second, failing to perform one’s duty also can trigger a lawsuit, especially if that failure results in the client’s sustaining harm. Ethics, law, and the SOC go hand in hand. Failure to deliver the SOC is ethically problematic as well as legally hazardous.
“Average,” “prudent,” “cautious,” and “reasonable” are the most common words used to characterize the SOC, and who could argue with them? By calling attention to what the average or reasonable health professional would do, these definitions do not require that professionals be perfect or all-knowing but that they simply act in the way that the professional ordinarily does—which sounds eminently reasonable. The problem that these words do not—indeed, cannot— take into account is that the SOC is not frozen in time but can seem like a moving target. How does a particular intervention become the SOC, and what is the process by which it ceases to be the SOC if some new, more effective treatment displaces it? Who exactly is the “average, prudent provider,” and what TCM 20
July/August 2006
The 2006 March/April issue of The Case Manager carried a number of well-done articles on licensure and liability, and, inevitably, the SOC was mentioned more than once. It was especially discussed in the recent case of Smelik v Humana, wherein over $7 million was awarded to the Smelik family, in part because of the failure of the Humana Health Plan of Texas Inc. to deliver case management services appropriately to Mrs. Joan Smelik.2 Although Humana is appealing the decision, it would be well to look at this case particularly from the standpoint of the case management SOC, because there is little question that Smelik will be discussed in that context for some time to come.
Smelik v Humana Mrs. Joan Smelik was a member of a Humana health maintenance organization (HMO) in Texas. She suffered from chronic kidney disease (CKD), emphysema, and a circulatory condition that affected her kidneys. Humana had originally provided case management services, but when Humana’s contract with the case management provider expired, Humana took over the case management internally. At that point, however, Humana believed that Smelik’s condition did not “hit the triggers” for case management and so relinquished that service. Humana later claimed that they didn’t know that Smelick had CKD, which would otherwise have qualified her for services in view of this chronic and potentially catastrophic disease. She died from renal failure in May 2001. An important aspect of the interface between the “reasonable” health professional and the SOC is what he or she knows or should know at the time services are contemplated. The “know or should know” expectation distinguishes the health professional from the nonprofessional and partially informs the evaluation of how well the professional complied with what duty demands (ie, to deliver the SOC). In that regard, the Smeliks were able to convince the jury that Humana most certainly knew or should have known of Mrs. Smelik’s disease because their own computerized records had data confirming her undersized kidneys, which indicated CKD. It was on that basis, the Smeliks argued, that she should have been (but wasn’t) referred in an appropriate manner to a kidney specialist and to case management. Moreover, the Smeliks produced evidence that showed that in September 2000, Mrs. Smelik had a documented episode of acute renal failure that apparently resulted from the combination of three drugs—a nonsteroidal anti-inflammatory drug, a diuretic, and
an angiotensin converting enzyme (ACE) inhibitor. Four months later, however, and some 4 months prior to her death, Humana nevertheless approved the purchases of the same three-drug combination. Both of these decisions appear to imply negligence by way of Humana’s failure to accommodate the SOC according to the “know or should know” criterion. In addition, the Smeliks were able to convince the jury that Humana failed to accommodate the SOC as Humana itself defined that standard! Importantly, the Smeliks did not claim that Mrs. Smelik was denied care, such as having a referral request to a nephrologist denied. They claimed instead that Humana failed to exercise ordinary care as that care was outlined in Humana’s own Member Handbook, Physician’s Administration Manual, and internal guidelines, policies and procedures. From an ethical perspective, this amounts to Humana’s failing to keep its promises to its members, which the Smeliks argued cost Mrs. Smelik her life. Notice how powerful such an evidentiary demonstration can be. It is one thing for a health professional to plead that a “reasonable” practitioner might be unaware of the SOC—because, for example, it is very new or remains controversial. But when the professional’s employing organization delineates guidelines that themselves amount to the SOC but aren’t subsequently followed, that organization might face a decidedly uphill climb in explaining why the guidelines were not followed. Although a professional’s failure to follow his or her organization’s policies sounds very unsettling, it is hardly unusual. The literature on medical errors demonstrates a surprising number of catastrophic events wherein some health professional violated or neglected the organization’s own policies and proce-
dures in a way that directly contributed to the adverse event.3 What kinds of implications can case managers draw from this information? Implications and Recommendations As attorney Gayle Sullivan wrote in commenting on the Smelick case, “First and foremost, know your employer ’s policies and procedures … because these internal guidelines can be used to determine the standard of care.”4 A common organizational shortcoming, however, is that organizations often don’t take enough time to educate staff on what various SOC policies are, or the organization leaves it up to the employee to learn them. Of course, some policy and procedure manuals are so overwhelming that it would be impossible for a person to be intimately acquainted with their contents. In a case like Smelick, however, these excuses would ring hollow. The ethical objective of SOC policies and procedures is to ultimately protect clients and advance their welfare. From that perspective, it not only makes no sense but seems morally vile for an organization to develop policies and procedures that bear on the SOC and then ignore them. Furthermore, case managers, like all professionals, should be wary of temptations to deviate from the SOC. A standard or guideline might seem needlessly burdensome, or the provider might think there is a more efficient way to accomplish the task at hand. In such instances, organizations should have mechanisms whereby providers who implement problematic policies and procedures that amount to the SOC can call attention to them and have them revised. The employee who simply “does things differently” might well be putting herself and her organization in serious ethical and legal jeopardy. A second recommendation is for case managers to acquaint themselves with
the SOC as it is nationally understood, such as through CMSA standards. Case managers should secure certification, go to national conferences, and be active in their local chapters. They absolutely must stay abreast of the literature. And they should not regard the legal literature, such as commentaries on the Smelick case that have begun to appear and will surely keep appearing in the case management literature, as reports of what “bad organizations do” but rather as important sources of knowledge that can inform case management practices. Also, case managers should be able to work in organizations that allow them to openly discuss troublesome developments or trends in case management— such as when a few organizations some while back began requesting that their case managers do video surveillance on clients—and pursue measures to rectify them. It is virtually a truism that the more creative, thoughtful, and interested a case manager is in the development of her practice, the more likely it will be that she will respond to problematic developments in an ethical and legally sound manner. The reason for that lies in a third suggestion: case managers should trust their instincts when it comes to patient advocacy, because when problems arise, as they tragically did in the Smelick case, those “client-centered” sensibilities will be center stage. A fundamental case management skill is the ability to identify individuals who can benefit from case management services. In light of Mrs. Smelick’s death, one wonders how it was decided at Humana that her condition did not warrant case management services. Did a case manager make that decision, and if so, what criteria did he or she use? Again, I quote from Sullivan’s article “The Cost of Negligence”: “A proactive step for managed care organizations to take now would be to review July/August 2006
TCM 21
continued
CM ETHICS
their criteria for patient referral to case management, determine whether reliable and valid assessment steps are in place, and determine whether they are being followed.” One hopes that such a review will occur in good faith and ultimately be directed by a keen, justice-based concern, because in the aftermath of the Smelick case—a case that proceeded, incidentally, despite Humana’s claim that the contended benefit was ERISA (Employee Retirement Income Security Act of 1974) preempted and hence should not have been decided in a state court and should not have awarded anywhere near $7 million to the Smelicks—we should expect to see more legal interest in similar incidents and allegations. Last, and again as Sullivan notes, case management organizations should not promise more than they can deliver, because such statements can imply how
the organization understands its SOC. Thus, health plans or case management services that use superlatives like “best” or “optimal” on their Web sites or in their marketing literature should consider if there is a consensus on what those words mean and, if there is, whether the organization is able to make good on what can sometimes be construed as legally enforceable promises. Conclusion I hope, then, that it’s apparent why I’d be constantly thinking about the SOC. It’s what health professionals owe their clients and therefore what constitutes the dutiful course of action. It also constitutes the weight of their responsibility, however, and can sometimes seem burdensome or onerous. Nevertheless, this is why the provision of health care, as that provision is informed by the SOC, is unimpeachably ethical.
The ethical act is invariably the “otherregarding” act. It is not done for the sake of the professional or the organization but for the sake of the client. It explains why people become consumers of health care organizations, and it forms the basis of our ethical expectations when consumers have a reasonable need for services. Health care organizations cannot routinely provide their consumers with perfection—just what “the ordinary, reasonable professional acting in an ordinary and reasonable way” would do. Continuing to unpack and ethically consider what that seemingly innocuous phrase means, however, can be read as the historical unfolding of the American health care system itself. Ethically, legally, and historically, determining and delivering services that accommodate the SOC is, in large part, what the best intentions of health care are all about. ❏ References 1. MedicineNet.com. Definition of standard of care. Available at www.medterms.com/ script/main/art.asp?articlekey=33263. Accessed April 26, 2006. 2. Texas jury finds Humana HMO liable in wrongful death lawsuit. Available at: www.insurancejournal.com/news/southcentral/ 2005/07/21/57517.htm. Accessed April 26, 2006. 3. Banja J. Medical errors and medical narcissism. Sudbury (MA): Jones and Bartlett; 2005. 4. Sullivan G. The cost of negligence. Case Manager 2006;17(2):54-5, 66.
John Banja, PhD, is an associate professor at the Center for Ethics at Emory University. The opinions expressed in this article are the author’s and not necessarily those of any organization with which he is affiliated. You can e-mail your ethical queries, stories, or case examples to him at [email protected] or call his office at (404) 712-4804. Reprint orders: E-mail authorsupport@ elsevier.com or phone (toll-free) 888-834-7287; reprint no. YMCM 402 doi:10.1016/j.casemgr.2006.04.010
TCM 22
July/August 2006