October 1997 Bulletin

'Something for nothing' is test for ethical behavior

by Richard N. Stauffer, MD

Richard N. Stauffer, MD, is professor and chairman, department of orthopaedic surgery, Johns Hopkins University School of Medicine.

Ethics has been defined by the Academy as "the discipline dealing with principles or moral values that govern relationships between individuals. It defines what we ought to do." Ethical behavior is aspirational and represents the third, or highest, level of proscribed activity designed to maintain harmony in a complex society of human interactions.

The first, or basic level, is our system of laws - which are codified prohibitions of certain behaviors which are the most destructive to society, and which carry at least the threat of specific penalties for transgression. The second level, of mores and folkways, represents expected, customary, moral behavior. Neither this, nor the third level (ethical behavior) are written or codified, and neither carry the threat of direct punishment - except for the possible withholding of approbation by peers and the community.

Unfortunately, because ethical behavior represents such a high level of activity and is so aspirational, it does at times become "murky" and poorly defined and while certain basic tenants of ethics remain stable and unchanging (e.g., thou shall not bear false witness or split fees), others change as society changes. For example, several decades ago it was considered unethical for a physician to advertise. Now, however, it is considered ethical (even if distasteful to most) to advertise, provided the promotion is truthful, and no false claims are made.

Also, as society, and with it our health care delivery systems change, so too do new questions arise regarding ethical behavior. For example, what about the ethics of rationing or withholding care for financial gain to the physician in a managed care environment? We must grapple with the question of whether to push Mrs. Jones out of the hospital three days after a total hip replacement because that is all her insurance company will allow. Generally, we know that the answer to most ethical dilemmas can be "correctly" addressed by simply applying the template of doing what in our honest assessment is the best thing for the patient.

However, there are some areas where there is no direct involvement of a patient and where the question of "what one ought to do" becomes more opaque. One such area is the orthopaedist-industry relationship. This is an area where our community seems to be facing a particularly pernicious problem which may be expanding rapidly to crisis proportions. It may be that greed and avarice are becoming the societal norm of behavior, that orthopaedists are particularly vulnerable to "extra inducements" to replace declining practice income or that appliance manufacturers and drug companies are becoming ever more aggressive in a very competitive marketplace. Perhaps, all of the above may be true - or perhaps residing in an academic medical center one may be the repository of more "stories" and rumors of goings-on in the community than other practitioners. For whatever reasons the tales of unacceptable and unethical behavior between orthopaedist and industry seem to be mushrooming in terms of frequency and egregiousness.

What are the areas of ethical conflict in this relationship? These include:

The template of acceptable or ethical behavior is whether the something accepted is of significant value. One might define "significant" as being worth more than $50 to $100. For example, in discussions with our residents I ask, "Is it okay to accept this pen from a company representative?" (holding up a plastic 59 cent ballpoint). The intuitively correct response is, "Sure, no problem." Then I hold up a $150 fountain pen (gift from my wife) and ask, "What about this one?" This question is not so quickly answered and evokes quizzical expressions, "Gee, maybe not because it is worth more and something may be expected in return."

The "acid test" of accepting any sort of gratuity from a company is "something for nothing." Is the gift or reward out of proportion to the effort/work expended? Accepting payment of expenses (or even an honorarium) from a company for participating in an educational meeting for which one has prepared and is giving one or more lectures, is probably appropriate and represents ethical behavior; accepting airfare expenses to a meeting for attendance only is not. Again, using the litmus test of abjuring "something for nothing" is a beacon which can direct one to the safe harbor of ethical behavior.

The Academy's Committee on Ethics, chaired by Charles Epps, MD, produced its first Code of Ethics in 1988. The committee substantially amended this code and developed the Principles of Ethical Behavior for Orthopaedic Surgeons in 1991. Because of societal and medical care delivery changes, and because novel ethical questions and concerns seem to be arising, it is recommended that the Committee on Ethics continue to actively monitor, modify and update the Academy's ethics statements on an ongoing basis.

Editor's note: The Third Edition of the Academy's Guide to Ethical Practice of Orthopaedic Surgery is being developed and will be included with an upcoming mailing of the Bulletin magazine.

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