- Email: [email protected]
Ethics in the Legal and Business Practices of Radiation Oncology
Accepted Manuscript “Ethics in the Legal and Business Practices of Radiation Oncology” Terry J. Wall, J.D., M.D. PII:
S0360-3016(17)33545-9
DOI:
10.1016/j.ijrobp.2017.06.2462
Reference:
ROB 24396
To appear in:
International Journal of Radiation Oncology • Biology • Physics
Received Date: 27 February 2017 Revised Date:
20 June 2017
Accepted Date: 23 June 2017
Please cite this article as: Wall TJ, “Ethics in the Legal and Business Practices of Radiation Oncology”, International Journal of Radiation Oncology • Biology • Physics (2017), doi: 10.1016/ j.ijrobp.2017.06.2462. This is a PDF file of an unedited manuscript that has been accepted for publication. As a service to our customers we are providing this early version of the manuscript. The manuscript will undergo copyediting, typesetting, and review of the resulting proof before it is published in its final form. Please note that during the production process errors may be discovered which could affect the content, and all legal disclaimers that apply to the journal pertain.
ACCEPTED MANUSCRIPT
“Ethics in the Legal and Business Practices of Radiation Oncology”
Terry J. Wall, J.D., M.D.
RI PT
TRI, PA (Kansas City) 5011 Neosho Lane Shawnee Mission, Kansas 66205
SC
913 236 8920
M AN U
[email protected]
The author has no conflicts of interest; no specific legal advice for any entity in any jurisdiction is intended.
AC C
EP
TE D
Acknowledgements: The support of my practice associates at TRI is gratefully acknowledged.
AC C
EP
TE D
M AN U
SC
RI PT
ACCEPTED MANUSCRIPT
ACCEPTED MANUSCRIPT
Every profession faces the challenge of managing the intersection of its high calling of ‘selfless service to others’ with the practicalities of the business and legal practices required to turn that profession into a livelihood.
RI PT
Medical ethics is founded upon the principle that the physicians’ first and highest duty is to provide for their patients’ well-being and to place those concerns above their own self interest. As such, the practice of medicine seeks to be radically set apart from ordinary commercial activity.
M AN U
SC
Reconciling lofty abstractions with granular business decisions in medicine has always been a very human and communal undertaking; you can’t digitize integrity. The most thoughtful, complete, persuasive and living communal ruminations on these topics are the pronouncements of the American Medical Associations’ Council on Ethical and Judicial Affairs and its Code of Medical Ethics. ASTRO has also promulgated its own Code of Ethics, but its ethics committee does not render formal opinions on specific subjects. Deliberations on each of the hundreds of specific issues in medical ethics that have been the subject of formal AMA opinions are based on only nine principles, including two that obligate the physician to support access to medical care for all people and which impose a responsibility to participate in activities that better public and community health. The ethical center of gravity is the proposition that: “A physician shall, while caring for a patient, regard responsibility to the patient as paramount.” (1)
TE D
A host of business and legal practices have been identified as potentially problematic, including: referral of patients, physician employment by non-physician supervisors, physician/hospital contractual arrangements, advertising, contingent physician fees, fee splitting, insurance form completion charges, interest and finance charges on patient accounts, competition, forgiveness of insurance copayments, professional courtesy, appointment charges, sale of medical practices and ‘economic incentives and levels of care,’ to name just a few. Other issues yet to receive formal deliberation include the issue of ethical sloth in the use of the electronic medical record where “cutting and pasting” to satisfy billing requirements may be done without professional mindfulness and cognitive analysis. In this editorial, I propose to discuss three issues arguably of particular relevance to the radiation oncology community: restrictive covenants, self referral issues and the general comity among physicians.
AC C
EP
Restrictive covenants, also known as ‘covenants not to compete,’ are legally binding obligations that prevent a physician from continuing practice after their employment by a given entity has concluded. These covenants may restrict post-employment medical practice by some combination of time or distance from their prior practice, or may restrict a modality of practice. Restrictive covenants have been laughingly called involuntary non servitude in a riff on the language of the thirteenth amendment abolishing slavery! Let us consider two cases. The first is such a covenant in a contract of a resident in training not to compete with his or her training program after the completion of their studies. These were flat-footedly declared unethical by a 1997 opinion of the Council on Ethical and Judicial affairs. (1) The disparity of power between a training institution and a trainee makes such agreements over-reaching and inherently inequitable, in addition to the ethical problems presented by the very nature of a restrictive covenant, in any context.
ACCEPTED MANUSCRIPT
But, what about restrictive covenants between physicians who have completed their training? These are legally enforceable in many jurisdictions, but just because a covenant is legal does not make it medically ethical, because the practice of medicine aspires to higher standards than the lowest common denominator of non-punishable marketplace behavior.
RI PT
First, permit some contextualization of this issue. Restrictive covenants in the practice of law are frankly outlawed in every state in the Union and in practice before the entire Federal Court system, because they interfere with a client’s right to seek the counsel of an attorney of their choice and because they place the self interest of a law firm above the rights of an individual attorney’s clients. You may ask: Why does the lawyer/client relationship have a higher protected legal status than the doctor/patient relationship? And well you should ask; it would be a difficult brief to argue that people are less interested in their personal health and survival than in their “legal” health.
M AN U
SC
Citing arguments that restrictive covenants restrict competition, disrupt continuity of care and potentially deprive the public of access to medical services, the position of the Council of Ethical and Judicial Affairs is that Physicians should not enter into covenants that unreasonably restrict the right of a physician to practice medicine…and do not make reasonable accommodations for patients’ choice of physician (1) Even if not unreasonable, the Council’s language has been that it “discourages any agreement that restricts the right of a physician to practice medicine for a specified period of time or in a specified area upon termination of employment, a partnership or a corporate agreement.” (2)
TE D
Despite those condemnations, restrictive covenants continue to be distressingly common in radiation oncology. In a survey of residents who finished training this past year, restrictive covenants were part of the employment agreement of 70% and another 10% had negotiated them out of a proffered contract. (3) So, our collective behavior does not seem to be in harmonic resonance with the better angels of our nature. What to do?
AC C
EP
There are alternatives to protect legitimate business interests that don’t involve the use of restrictive covenants. One alternative is a liquidated damages provision that would require a departing physician to pay the reasonable costs of their recruitment and other practice expenses incurred in bringing them into a group. Another less ethically troubled alternative is a covenant not to solicit their former patients. At the very least, a severance package to cover the costs of physician relocation could be included coterminously with a restrictive covenant, although that option does not solve the argument about the patient’s right to choose their physician. My view is that medicine, as a profession, needs to ‘up our game’ and drive a stake through the heart of restrictive covenants in the practice of our art. It doesn’t seem unreasonable to aspire to ethical parity with the legal profession and to seek to give patients comparable protection to the relationship with their physician to that which is afforded in attorney/client privilege. Use of restrictive covenants is a simple metric to measure our will and our ethical fortitude. Patterns of practice suggest that it will be an uphill battle, but we should say with Sir William Osler, notable Canadian physician and ethicist of a past century: “if the fight is for principle and justice, even when failure seems certain, where many have failed before, cling to your ideal.” (7)
ACCEPTED MANUSCRIPT
Self Referral: You are doubtlessly aware that there are segments of the radiation oncology community who are highly invested in differing views about a common practice arrangement exempted from the general legal prohibition against self referral by the so called ‘in office ancillary exception.’ (10) This practice arrangement has been most commonly developed in the context of urologic oncology.
RI PT
Once again, radiation oncology should not feel constrained to accept the position that what is legal is, ipso facto, ethical. The law sets a floor, we are free to seek the ceiling.
M AN U
SC
The problem that we have in radiation oncology is that most of the thoughtful pronouncements of medical ethicists on this subject, including the AMA Council, view the issue from the lens of the obligations of the referring physician, and not from what might be described as “our” viewpoint as the receiving physician, who might arguably be seen as the facilitator of, but not the instigator of, the self referral. Radiation oncologists, therefore, are placed in the position of asking whether or not we are eating fruit from a poisonous tree. I propose that radiation oncologists take the position that if the ethical analysis does not support the appropriateness of the referral, then we should decline the legally permissible opportunity of being the recipients of that referral. It has been suggested that the “rugged individualist” approach to solving the problem, one practitioner at a time, might call for an improbable and sacrificial commitment and that more “communal” solution sets should also be advocated. Agreed! The search for communal solutions, I perceive, is one of the animations of this series of articles on ethics. However, as to self referral, specifically, one has to mournfully note that ‘community action’ to close the “self referral loophole” has been a top legislative priority of the ASTRO for nine years but, to date, the operational language remains the law of the land.
EP
TE D
The present communal analysis of the ethics of self referral is a complex process. So, let me quote at some length from the Ethical and Judicial Council’s pronouncement on self referral: (1) “Business arrangements among physicians in the health care marketplace have the potential to benefit patients by enhancing the quality of care and access to health care services. However, these arrangements can also be ethically challenging when they create opportunities for self referral in which patient’s medical interests can be in tension with physician’s financial interests. Such arrangements can undermine a robust commitment to professionalism in medicine as well as trust in the profession.”
AC C
So far, so good. But, then comes the general ethical prohibition: “In general, physicians should not refer patients to a health care facility that is outside their office practice AND (emphasis added to highlight the conjunctive) at which they do not directly provide care or services when they have a financial interest in that facility. The opinion continues to say that if physicians do enter into such a legally permissible relationship that physicians are “expected to uphold their responsibilities to patients first.” The opinion then goes on to list four mandatory conditions which should be met when physicians enter into an arrangement that provide opportunities for self referral. First: physicians entering into these legal relationships must first “ensure that referrals are based on objective, medically relevant criteria and , secondly, must ensure that the arrangement a) is structured to enhance access to appropriate, high quality health care” AND, secondly, comply with subsection b, which itself has three parts, namely: within the constraints of applicable law i) does not require physician-owners to make referrals to the entity ii) does not prohibit the physician owner from referring
ACCEPTED MANUSCRIPT
patients to competing facilities AND iii) adheres to fair business practices vis a vis the medial professional community, eg, by ensuring that the arrangement does not prohibit investment by nonreferring physicians. (This latter requirement is automatically problematic for the “in office ancillary exception.”)
RI PT
The third requirement, which is linked to requirement two by an “AND,” is to do three things to mitigate conflicts of interest. All three are conjoined by “AND” 1.
Ensure that financial benefit is not dependent on the physician owners volume of referrals
2.
Establish mechanisms for utilization review
SC
3. AND identify or, if possible, make alternative arrangements for care of the patient when conflicts cannot be appropriately managed/mitigated.
Fourth and finally: disclose their financial interest, inform patients of alternatives for referral AND ensure that their ongoing care is not conditioned on accepting the recommended referral.
M AN U
In short, a high bar is set for the ethical acceptability of these arrangements. Radiation oncologists should acknowledge the need to perform an ethical analysis when the potential for receiving a “self referral” patient presents itself . Comity among physicians: A more generic ethical issue might be defined as that of how business interests affect comity among physicians. As an illustration of the issue, consider a recent case of a radiation oncologist who owned a 10% interest in a practice that was going to be sold for 26 million dollars. The math: their share should have been 2.6 million dollars. (6)
AC C
EP
TE D
The radiation oncologist was summoned to the office of the group’s attorney to meet with the group’s attorney and a senior co-owner of the practice. Documents were presented for the radiation oncologist to sign and the senior partner in the practice stated that if they were not signed, the physician’s employment in the group would be terminated. The radiation oncologist in question was subject to a restrictive covenant that would prevent practice in the area if employment was terminated—this was the contractual anvil upon which the forces of inequity were applied. The radiation oncologist was told that the documents would merely begin a month long ‘due diligence’ period. The group’s lawyer stated that he was looking after the radiation oncologist’s interests as a partner and as an individual, the physician would have until the close of the agreement to make changes in the agreement, that it was in their best interest to sign, that it would not affect ownership in the practice and that the attorney would secure a release from the non-competition agreement. The radiation oncologist signed. None of these representations were found to be true and the radiation oncologist got exactly nothing from the sale of the practice—until after spending $84,000 in costs of litigation—at which time, the radiation oncologist received a judgment of 1.47 million dollars, a net overall loss of 1.13 million dollars. (The attorney was disciplined; I find no record that a physician was). So, what about this? This case is not an isolated incident in the legal literature of how radiation oncologists interact. (5,8,9) Is it just good, tough business practice, or is there something fundamentally wrong with what I would characterize as predatory behavior among physicians?
ACCEPTED MANUSCRIPT
The ASTRO code of ethics holds: “ASTRO members shall….treat all members of the radiation oncology community and the broader health care community with mutual respect, be trustworthy and honest in all professional interactions…”
RI PT
The AMA Code of Ethics also speaks of professionalism as involving “honesty in all professional interactions,” and of practitioners having an investment in policing those physicians “deficient in character,” at least as regards medical practice. The history of medicine also continues to inform what is appropriate behavior today. For example, the oath of medical graduates at the University of Berlin since 1810 has included these words: “I will treat my colleagues with courtesy and friendliness as becomes the dignity of our art and will always be ready, without regard to my own interest, to be associated with them in the care and treatment of the sick.” 4
SC
I would argue that the best interests of our patients are served when physicians function in a nonpredatory, mutually supportive ecology, fostering the communal achievement of altruistic aspirations, focused foremost on the needs of our patients.
M AN U
In summary, the radiation oncology community has the opportunity, through mindfulness, introspection, and perhaps even through reform, to provide a shining example of conformity of “business and legal practice” with the highest standards of medical ethics.
References
AMA Code of Medical Ethics, 2016, American Medical Association.
2.
AMA Code of Medical Ethics, 2014, American Medical Association.
TE D
1.
3. Annual Survey of Graduating Residents, Association of Residents in Radiation Oncology, presented at the ASTRO meeting, 2016.
EP
4. Etziuony, M. THE PHYSICIANS’ CREED: An ANTHOLOGY OF MEDICAL PRAYERS, OATHS and CODES OF ETHICS WRITTEN and RECITED by MEDICAL PRACTITIONERS THOUGH the AGES, 1973. Kademian v Marger, 2012 WL 762316 (2012)
6.
Jackson v Levine, 2010 WL 3230467 (2010)
7.
Osler, William, Aequanimitas, Valedictory Address, University of Pennsylvania, May 1, 1889.
8.
AC C
5.
Tidwell v Critz, 248 GA 201 (1981).
9. United States of American ex rel. Syed Rahman v. Oncology Associates, PC v. Douglas Colkitt v. Steadfast Insurance Company, 269 BR 139 (United States District Court for the District of Maryland, 2001). 10.
42 USC §1395 nn, et seq.
S0360-3016(17)33545-9
DOI:
10.1016/j.ijrobp.2017.06.2462
Reference:
ROB 24396
To appear in:
International Journal of Radiation Oncology • Biology • Physics
Received Date: 27 February 2017 Revised Date:
20 June 2017
Accepted Date: 23 June 2017
Please cite this article as: Wall TJ, “Ethics in the Legal and Business Practices of Radiation Oncology”, International Journal of Radiation Oncology • Biology • Physics (2017), doi: 10.1016/ j.ijrobp.2017.06.2462. This is a PDF file of an unedited manuscript that has been accepted for publication. As a service to our customers we are providing this early version of the manuscript. The manuscript will undergo copyediting, typesetting, and review of the resulting proof before it is published in its final form. Please note that during the production process errors may be discovered which could affect the content, and all legal disclaimers that apply to the journal pertain.
ACCEPTED MANUSCRIPT
“Ethics in the Legal and Business Practices of Radiation Oncology”
Terry J. Wall, J.D., M.D.
RI PT
TRI, PA (Kansas City) 5011 Neosho Lane Shawnee Mission, Kansas 66205
SC
913 236 8920
M AN U
[email protected]
The author has no conflicts of interest; no specific legal advice for any entity in any jurisdiction is intended.
AC C
EP
TE D
Acknowledgements: The support of my practice associates at TRI is gratefully acknowledged.
AC C
EP
TE D
M AN U
SC
RI PT
ACCEPTED MANUSCRIPT
ACCEPTED MANUSCRIPT
Every profession faces the challenge of managing the intersection of its high calling of ‘selfless service to others’ with the practicalities of the business and legal practices required to turn that profession into a livelihood.
RI PT
Medical ethics is founded upon the principle that the physicians’ first and highest duty is to provide for their patients’ well-being and to place those concerns above their own self interest. As such, the practice of medicine seeks to be radically set apart from ordinary commercial activity.
M AN U
SC
Reconciling lofty abstractions with granular business decisions in medicine has always been a very human and communal undertaking; you can’t digitize integrity. The most thoughtful, complete, persuasive and living communal ruminations on these topics are the pronouncements of the American Medical Associations’ Council on Ethical and Judicial Affairs and its Code of Medical Ethics. ASTRO has also promulgated its own Code of Ethics, but its ethics committee does not render formal opinions on specific subjects. Deliberations on each of the hundreds of specific issues in medical ethics that have been the subject of formal AMA opinions are based on only nine principles, including two that obligate the physician to support access to medical care for all people and which impose a responsibility to participate in activities that better public and community health. The ethical center of gravity is the proposition that: “A physician shall, while caring for a patient, regard responsibility to the patient as paramount.” (1)
TE D
A host of business and legal practices have been identified as potentially problematic, including: referral of patients, physician employment by non-physician supervisors, physician/hospital contractual arrangements, advertising, contingent physician fees, fee splitting, insurance form completion charges, interest and finance charges on patient accounts, competition, forgiveness of insurance copayments, professional courtesy, appointment charges, sale of medical practices and ‘economic incentives and levels of care,’ to name just a few. Other issues yet to receive formal deliberation include the issue of ethical sloth in the use of the electronic medical record where “cutting and pasting” to satisfy billing requirements may be done without professional mindfulness and cognitive analysis. In this editorial, I propose to discuss three issues arguably of particular relevance to the radiation oncology community: restrictive covenants, self referral issues and the general comity among physicians.
AC C
EP
Restrictive covenants, also known as ‘covenants not to compete,’ are legally binding obligations that prevent a physician from continuing practice after their employment by a given entity has concluded. These covenants may restrict post-employment medical practice by some combination of time or distance from their prior practice, or may restrict a modality of practice. Restrictive covenants have been laughingly called involuntary non servitude in a riff on the language of the thirteenth amendment abolishing slavery! Let us consider two cases. The first is such a covenant in a contract of a resident in training not to compete with his or her training program after the completion of their studies. These were flat-footedly declared unethical by a 1997 opinion of the Council on Ethical and Judicial affairs. (1) The disparity of power between a training institution and a trainee makes such agreements over-reaching and inherently inequitable, in addition to the ethical problems presented by the very nature of a restrictive covenant, in any context.
ACCEPTED MANUSCRIPT
But, what about restrictive covenants between physicians who have completed their training? These are legally enforceable in many jurisdictions, but just because a covenant is legal does not make it medically ethical, because the practice of medicine aspires to higher standards than the lowest common denominator of non-punishable marketplace behavior.
RI PT
First, permit some contextualization of this issue. Restrictive covenants in the practice of law are frankly outlawed in every state in the Union and in practice before the entire Federal Court system, because they interfere with a client’s right to seek the counsel of an attorney of their choice and because they place the self interest of a law firm above the rights of an individual attorney’s clients. You may ask: Why does the lawyer/client relationship have a higher protected legal status than the doctor/patient relationship? And well you should ask; it would be a difficult brief to argue that people are less interested in their personal health and survival than in their “legal” health.
M AN U
SC
Citing arguments that restrictive covenants restrict competition, disrupt continuity of care and potentially deprive the public of access to medical services, the position of the Council of Ethical and Judicial Affairs is that Physicians should not enter into covenants that unreasonably restrict the right of a physician to practice medicine…and do not make reasonable accommodations for patients’ choice of physician (1) Even if not unreasonable, the Council’s language has been that it “discourages any agreement that restricts the right of a physician to practice medicine for a specified period of time or in a specified area upon termination of employment, a partnership or a corporate agreement.” (2)
TE D
Despite those condemnations, restrictive covenants continue to be distressingly common in radiation oncology. In a survey of residents who finished training this past year, restrictive covenants were part of the employment agreement of 70% and another 10% had negotiated them out of a proffered contract. (3) So, our collective behavior does not seem to be in harmonic resonance with the better angels of our nature. What to do?
AC C
EP
There are alternatives to protect legitimate business interests that don’t involve the use of restrictive covenants. One alternative is a liquidated damages provision that would require a departing physician to pay the reasonable costs of their recruitment and other practice expenses incurred in bringing them into a group. Another less ethically troubled alternative is a covenant not to solicit their former patients. At the very least, a severance package to cover the costs of physician relocation could be included coterminously with a restrictive covenant, although that option does not solve the argument about the patient’s right to choose their physician. My view is that medicine, as a profession, needs to ‘up our game’ and drive a stake through the heart of restrictive covenants in the practice of our art. It doesn’t seem unreasonable to aspire to ethical parity with the legal profession and to seek to give patients comparable protection to the relationship with their physician to that which is afforded in attorney/client privilege. Use of restrictive covenants is a simple metric to measure our will and our ethical fortitude. Patterns of practice suggest that it will be an uphill battle, but we should say with Sir William Osler, notable Canadian physician and ethicist of a past century: “if the fight is for principle and justice, even when failure seems certain, where many have failed before, cling to your ideal.” (7)
ACCEPTED MANUSCRIPT
Self Referral: You are doubtlessly aware that there are segments of the radiation oncology community who are highly invested in differing views about a common practice arrangement exempted from the general legal prohibition against self referral by the so called ‘in office ancillary exception.’ (10) This practice arrangement has been most commonly developed in the context of urologic oncology.
RI PT
Once again, radiation oncology should not feel constrained to accept the position that what is legal is, ipso facto, ethical. The law sets a floor, we are free to seek the ceiling.
M AN U
SC
The problem that we have in radiation oncology is that most of the thoughtful pronouncements of medical ethicists on this subject, including the AMA Council, view the issue from the lens of the obligations of the referring physician, and not from what might be described as “our” viewpoint as the receiving physician, who might arguably be seen as the facilitator of, but not the instigator of, the self referral. Radiation oncologists, therefore, are placed in the position of asking whether or not we are eating fruit from a poisonous tree. I propose that radiation oncologists take the position that if the ethical analysis does not support the appropriateness of the referral, then we should decline the legally permissible opportunity of being the recipients of that referral. It has been suggested that the “rugged individualist” approach to solving the problem, one practitioner at a time, might call for an improbable and sacrificial commitment and that more “communal” solution sets should also be advocated. Agreed! The search for communal solutions, I perceive, is one of the animations of this series of articles on ethics. However, as to self referral, specifically, one has to mournfully note that ‘community action’ to close the “self referral loophole” has been a top legislative priority of the ASTRO for nine years but, to date, the operational language remains the law of the land.
EP
TE D
The present communal analysis of the ethics of self referral is a complex process. So, let me quote at some length from the Ethical and Judicial Council’s pronouncement on self referral: (1) “Business arrangements among physicians in the health care marketplace have the potential to benefit patients by enhancing the quality of care and access to health care services. However, these arrangements can also be ethically challenging when they create opportunities for self referral in which patient’s medical interests can be in tension with physician’s financial interests. Such arrangements can undermine a robust commitment to professionalism in medicine as well as trust in the profession.”
AC C
So far, so good. But, then comes the general ethical prohibition: “In general, physicians should not refer patients to a health care facility that is outside their office practice AND (emphasis added to highlight the conjunctive) at which they do not directly provide care or services when they have a financial interest in that facility. The opinion continues to say that if physicians do enter into such a legally permissible relationship that physicians are “expected to uphold their responsibilities to patients first.” The opinion then goes on to list four mandatory conditions which should be met when physicians enter into an arrangement that provide opportunities for self referral. First: physicians entering into these legal relationships must first “ensure that referrals are based on objective, medically relevant criteria and , secondly, must ensure that the arrangement a) is structured to enhance access to appropriate, high quality health care” AND, secondly, comply with subsection b, which itself has three parts, namely: within the constraints of applicable law i) does not require physician-owners to make referrals to the entity ii) does not prohibit the physician owner from referring
ACCEPTED MANUSCRIPT
patients to competing facilities AND iii) adheres to fair business practices vis a vis the medial professional community, eg, by ensuring that the arrangement does not prohibit investment by nonreferring physicians. (This latter requirement is automatically problematic for the “in office ancillary exception.”)
RI PT
The third requirement, which is linked to requirement two by an “AND,” is to do three things to mitigate conflicts of interest. All three are conjoined by “AND” 1.
Ensure that financial benefit is not dependent on the physician owners volume of referrals
2.
Establish mechanisms for utilization review
SC
3. AND identify or, if possible, make alternative arrangements for care of the patient when conflicts cannot be appropriately managed/mitigated.
Fourth and finally: disclose their financial interest, inform patients of alternatives for referral AND ensure that their ongoing care is not conditioned on accepting the recommended referral.
M AN U
In short, a high bar is set for the ethical acceptability of these arrangements. Radiation oncologists should acknowledge the need to perform an ethical analysis when the potential for receiving a “self referral” patient presents itself . Comity among physicians: A more generic ethical issue might be defined as that of how business interests affect comity among physicians. As an illustration of the issue, consider a recent case of a radiation oncologist who owned a 10% interest in a practice that was going to be sold for 26 million dollars. The math: their share should have been 2.6 million dollars. (6)
AC C
EP
TE D
The radiation oncologist was summoned to the office of the group’s attorney to meet with the group’s attorney and a senior co-owner of the practice. Documents were presented for the radiation oncologist to sign and the senior partner in the practice stated that if they were not signed, the physician’s employment in the group would be terminated. The radiation oncologist in question was subject to a restrictive covenant that would prevent practice in the area if employment was terminated—this was the contractual anvil upon which the forces of inequity were applied. The radiation oncologist was told that the documents would merely begin a month long ‘due diligence’ period. The group’s lawyer stated that he was looking after the radiation oncologist’s interests as a partner and as an individual, the physician would have until the close of the agreement to make changes in the agreement, that it was in their best interest to sign, that it would not affect ownership in the practice and that the attorney would secure a release from the non-competition agreement. The radiation oncologist signed. None of these representations were found to be true and the radiation oncologist got exactly nothing from the sale of the practice—until after spending $84,000 in costs of litigation—at which time, the radiation oncologist received a judgment of 1.47 million dollars, a net overall loss of 1.13 million dollars. (The attorney was disciplined; I find no record that a physician was). So, what about this? This case is not an isolated incident in the legal literature of how radiation oncologists interact. (5,8,9) Is it just good, tough business practice, or is there something fundamentally wrong with what I would characterize as predatory behavior among physicians?
ACCEPTED MANUSCRIPT
The ASTRO code of ethics holds: “ASTRO members shall….treat all members of the radiation oncology community and the broader health care community with mutual respect, be trustworthy and honest in all professional interactions…”
RI PT
The AMA Code of Ethics also speaks of professionalism as involving “honesty in all professional interactions,” and of practitioners having an investment in policing those physicians “deficient in character,” at least as regards medical practice. The history of medicine also continues to inform what is appropriate behavior today. For example, the oath of medical graduates at the University of Berlin since 1810 has included these words: “I will treat my colleagues with courtesy and friendliness as becomes the dignity of our art and will always be ready, without regard to my own interest, to be associated with them in the care and treatment of the sick.” 4
SC
I would argue that the best interests of our patients are served when physicians function in a nonpredatory, mutually supportive ecology, fostering the communal achievement of altruistic aspirations, focused foremost on the needs of our patients.
M AN U
In summary, the radiation oncology community has the opportunity, through mindfulness, introspection, and perhaps even through reform, to provide a shining example of conformity of “business and legal practice” with the highest standards of medical ethics.
References
AMA Code of Medical Ethics, 2016, American Medical Association.
2.
AMA Code of Medical Ethics, 2014, American Medical Association.
TE D
1.
3. Annual Survey of Graduating Residents, Association of Residents in Radiation Oncology, presented at the ASTRO meeting, 2016.
EP
4. Etziuony, M. THE PHYSICIANS’ CREED: An ANTHOLOGY OF MEDICAL PRAYERS, OATHS and CODES OF ETHICS WRITTEN and RECITED by MEDICAL PRACTITIONERS THOUGH the AGES, 1973. Kademian v Marger, 2012 WL 762316 (2012)
6.
Jackson v Levine, 2010 WL 3230467 (2010)
7.
Osler, William, Aequanimitas, Valedictory Address, University of Pennsylvania, May 1, 1889.
8.
AC C
5.
Tidwell v Critz, 248 GA 201 (1981).
9. United States of American ex rel. Syed Rahman v. Oncology Associates, PC v. Douglas Colkitt v. Steadfast Insurance Company, 269 BR 139 (United States District Court for the District of Maryland, 2001). 10.
42 USC §1395 nn, et seq.