Dual agency and fiduciary responsibilities in modern medicine.

A principle difference between working in an occupation and practicing a profession is the fiduciary responsibility that comes with a profession.

An agent is a person who performs an act for another. Dual agency, also referred to as mixed agency, (1) is a situation where a person/physician performs or acts for two others. Or, as is the case more often, there is an appearance of acting in a traditional role, but the physician is also acting in a non-traditional role.

A fiduciary is a person who stands in a position of trust. That trust represents a significant obligation to care for the interests of someone else. Inherent in practicing as a physician is the fiduciary responsibility that the physician accepts placing the interests of others above those of self.

This concept fit well with the medical profession until physicians began to be employed by corporations, the legal system or the military, and before the prevalence of health insurance, when conflicts began to arise beyond the traditional patient-physician relationship.

The forensic psychiatrist is a classic example. (2) Forensic psychiatrists may appear to be interacting with "patients" in order to diagnose or treat, when in actuality they are collecting data to diagnose, not for the benefit of the patients but rather for some other entity such as a court of law. The forensic psychiatrist should tell the patient for whom he is conducting the examination and what he will do with the information.

Another example of dual agency in daily medical practice is how to meet the needs of the aged while attempting to be cost-efficient in the face of the increased rehabilitation needs of the elderly, and remain respectful of patient autonomy. These differing responsibilities have significant contrasting goals. (3)

As the practice of medicine matured, various new relationships became the focal point of debate regarding the patient-physician relationship. As workers' compensation issues arose, industry began to employ physicians to evaluate workers for their ability to perform a job and to evaluate job-related injuries.

The concept of dual agency and the duties toward the patient and the duties toward the employer began to surface. Specifically, the worker may be treated by his personal physician, but may also have a second physician--an agent of the corporation, insurance company or the state--also making a diagnosis but never entering into a treatment agreement with the patient.

And in another example, while the military long employed physicians to evaluate recruits and treat combat injuries and illness, the debate regarding the divergent duties to the individual and to the government took a long time to be recognized and discussed.

Patients and payers

Dual agency has become an increasingly more common issue with the changes in the practice of medicine in America. Many questions may arise such as:

* Who is the beneficiary of my medical decisions?

* Who is paying for my medical decisions?

* Who is impacted by my medical decisions?

* Who is aware of the impact of my decisions?

* How do I, as a physician, know who is affected by my decisions?

Traditionally, medical education has taught little of the business of medical practice. Equally problematic, because of busy practices, most physicians have little time to reflect on these issues and easily overlook potential problems.

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There is evidence that the more a physician identifies with an organization, the more difficult it is for him to judge his decisions. (1) That organization may be a corporation, the military or even a private practice.

Drug dilemma

Commonly, the issue of payment for services confronts the practitioner in the form of restricted formularies.

To define the dual agency issue here, does a physician prescribe the medication he believes is best for the patient--based on education, knowledge and experience--or the one that is paid for by the patient's insurance, or the one requested by the patient based upon the pharmaceutical company's direct-to-patient marketing campaign?

Most of these questions can be "negotiated" by a discussion between the patient and the physician. But the concept of dual agency drives deeper into medical practice. The same patient who is adamant on which allergy medication they want may also be requesting a "doctor's note," not only for the time covered by the specific visit to your office, but for additional time they took off from work--time not related to their medical diagnosis.

Beyond the integrity issue of doing what is right, what is the relationship that the physician holds with society in general, that he is asked to justify absences from work when the physician has no contractual relationship with an employer?

Simply put, is the physician the agent of the patient, society or both? Statisticians routinely quote the financial impact of lost time from work based on medical reasons. Does the physician have a responsibility to be the high school hall monitor of the workplace?

Child protection

Some states have made child and domestic abuse reporting mandatory. (5) The discussions around the loss of privacy concerns are outweighed by the benefit to society of reporting and prosecuting those who endanger the lives of children and spouses.

Equally responsible people cite potential overly aggressive child protective agencies as being a greater danger to society. Whichever side a physician agrees with, their medical practice is impacted by the dual agency of the reporting laws, particularly in those states that the suspicion only of child maltreatment must be reported.

A parent brings a child to a physician for an injury that could easily have been accidental or the result of rough or irresponsible handling of the child. The physician is the agent for multiple parties: the child, the parent, the state, and the insurer.

What complicates the physician's medical practice is not doing what is required by any one of these parties, but remembering each of these parties while attempting to keep with his office schedule of patients.

Because of the complexity of the practice of medicine and medical decision making, the physician is in danger of over-identifying with many possible agents--the employer, the patient, the state or the insurer. Subsequently, the issues of dual agency and the boundaries surrounding the autonomy of the physician can become blurred.

Physicians finding themselves in dual agency situations tend to act in a role-specific or "corporate" manner. There develops a great danger of losing this autonomy, and the ability to respond to the fiduciary responsibilities can become unmet.

Physicians should ask them-selves, who are the stakeholders in any patient-physician encounter? Are there issues that are not apparent, like am I prescribing this specific medication or performing this procedure for the right reasons, who will benefit?

As physicians become engaged in more and more types of businesses, the opportunities to encounter dual agency situations expand. In some areas, the lines between the medical profession and the associated organization become blurred.

Some good examples of this are the pharmaceutical company physician or the military physician.

A pharmaceutical medical executive has the responsibility to ensure that the expectations of the stock-holders are realized; yet he also has fiduciary responsibilities to the public to ensure that safe and effective medications are brought to market.

The military physician must ensure that military members are given the best care possible, while also ensuring that the international laws of armed conflict are followed and all injured are triaged and treated appropriately.

Dual agency situations are found everywhere medicine is practiced in America today. These are complex decisions brought about by the ever-increasing complexity of modern medical practice.

The challenge for the physician executive is to recognize these situations in private medical practice, in hospital settings, in the corporate world and in the military medical field and to react with the integrity that the American people have come to expect and deserve in resolving the conflicts among the competing interests.

Vincent F. Carr, DO, MSA, CPE, FACC, Colonel, USAF, MC, CFS and is the U.S. Air Force Chief Consultant for Internal Medicine Services. He can be reached at 202-767-4060 or [e-mail]

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References

1. Sidel, VW, Levy, BS, In: Lounsbury, DE, Bellamy, RF. Textbooks of Military Medicine, Military Medical Ethic, Office of The Surgeon General, Department of the Army, United States of America, 2003.

2. Berger, SH. "Ethics and Dual Agency in Forensic Psychiatry," Psychiatric Times, 1998.

3. Levy, RN. Does Cost Containment Create Conflict in the Care of the Elderly Patient? In: Bunch, W.H. Clinical Orthopaedics & Related Research, Lippincott Williams & Wilkins, Inc., 2000.

4. Haney, C and Zimbardo, P. "Interpersonal Dynamics in a Simulated Prison." International Journal of Criminology and Penology, 1, 1973.

5. 42USC5101, Child Abuse Prevention and Treatment and Adoption Reform, http://www.law.cornell.edu/uscode/html/uscode42/usc_sup_01_42_10_67.html. Accessed Sept. 12, 2005.

By Vincent F. Carr, DO, MSA, CPE, FACC