Identification of physician incompetence: the ethical dilemmas.

Quis custodiet ipsos custodes?" --"Who shall guard the guardians themselves?" Juvenal wisely asked about ancient Rome's rulers. His inquiry can be directed at our doctors as well, given the trust we place in--and occasionally find betrayed by--those we expected to maintain vigil over our lives. Of course, Juvenal's guardians lived centuries before laser therapy, organ transplants, and peer-review committees. But the excellence of health care is still linked to the quality of its providers, who remain the same imperfect beings who practiced medicine 200 or even 2,000 years ago. Thus, we need to examine how society guards these guardians now, and to better understand when and why they fail.

If a physician's defects go unidentified, one certain reason is that the most rigorous examinations of their qualifications occur at the beginning of their careers and rarely, if ever, again. After degrees are conferred and hospital privileges or specialty certification obtained, a doctor's professional life is largely free of supervision or scrutiny. Maintenance of skills, while encouraged, is largely optional, and most medical decisions remain private, confined to and rarely challenged by medically unsophisticated patients who are likely to be frightened or intimidated. And as professional success or reputation may be won more by personal charm, or by the simple market mechanism of supply and demand, than by ability or character, patients may be misled about their doctor's personal trustworthiness.

To illustrate these points, three case histories are presented showing how a flaw in a practitioner's character is an essential (yet often overlooked) cause of malpractice. Each case illustrates how a conventionally capable doctor harmed a patient--not through any lack of intelligence or skill but because of a subtler moral or ethical deficiency. Furthermore, though the patient remained ignorant about defects in his care, every doctor's error was identified by a colleague, whose intimidation into silence strongly implies a shared culpability.

Each describing an actual case history, these stories suggest that, as a form of ethical incompetence, character defects may well cause more injury than the more apparent and sensational issues of scientific ignorance, physical impairment, inexperience, substance abuse, or sexual misconduct. Also, while the cases emphasize the fallibility of a setting in which the doctor's only judge is a colleague, the technical basis of contemporary medicine and the arbitrary nature of clinical decision-making convincingly argue that the only meaningful evaluation of a physician's pattern of practice can be by another physician.

Finally, know that these cases are fact, not fiction; each describes a preventable death and the forms and consequences of intimidation and silence. And as similar events occur with some regularity, they represent a continuing practical dilemma facing medicine.

CASE I

The Prospective Awareness of Clinical Disaster

In the hospital where he trained, a young internist beginning private practice agrees to direct a class in diagnostics for second-year medical students. "Looking around," he is told of an ideal teaching subject for his neophytes: a loud cardiac murmur caused by a defective valve in a 43-year-old man awaiting corrective surgery. From his bed, the patient cheerfully agrees to be examined, stating, "I'll be okay after tomorrow." And then, with obvious pride, he volunteers his surgeon's name, that of the newly appointed chairman of the hospital's Department of Cardiovascular Surgery and a professor at the adjacent, affiliated medical school.

Naturally, the young instructor knew the name, but his knowledge was not so comforting. While the chairman's animal research and administrative capabilities were widely admired and well-funded, his surgical skills on humans were rumored to be substandard by many of the institution's senior staff. As it was July--the start of the academic year, when surgical residents are still relatively inexperienced--the instructor's concerns increased.

Wondering how this difficult case had come to this marginal surgeon's care, he glanced into the nursing-station records and learned that the patient, a firefighter, had consulted his nearby Veteran's Administration Hospital for severe shortness of breath. There, the murmur and mild heart failure both were identified and, after a defective valve was disclosed by cardiac catheterization, its replacement through cardiac surgery was recommended. However, the VA hospital had no facilities for the operation. Instead, it maintained a contact through which patients needing open-heart surgery were referred to this teaching hospital, specifically to the service of whoever was the departmental chair. The patient had no family doctor or cardiologist; his "physician," in truth, was the VA hospital, and the choice of surgeons had been made by an earlier agreement between two hospital administrators. Lacking a personal advocate, this agreeable, optimistic fireman had become a teaching case--not only at the bedside but in the operating room.

Minutes after the young instructor read the record, his students arrived, listened with their new stethoscopes to the murmur, then to their teacher's explanation of its clinical significance. Having already visited his own hospitalized patients, he returned to his office and the appointments remaining. Yet, for the rest of his office day, he kept picturing the smiling face of that affable, trusting fireman who--he was convinced--was likely to die in surgery in less than 24 hours, a tragedy that he alone could prevent. He considered placing an anonymous phone call, warning the patient that the surgeon, though an excellent researcher, was rumored to be not so well-qualified clinically. Time after time, he rehearsed his phone message, urging the fireman to leave the hospital, to seek his help elsewhere from any of several superior cardiac surgeons whose names he could provide.

But wasn't the patient certain to ask who was calling? And if the truth were told and the advice not taken, this unsolicited, troubling message from a junior staff physician certainly would be reported, likely spelling an end to his career at that institution. Alternatively, he considered an unsigned telegram, then an anonymous note.

And as a long day ended, and a longer night began, he found himself doubting his own feelings. After all, did he really know anything about cardiovascular surgery? And from where did his negative judgments emerge, apart from rumors or gossip? What right had he to discredit a recognized leader in cardiac surgery, or to impair a patient's confidence in his doctor? He thought also about his own reputation, his ability to earn a living, his mortgage, his car payments, and his daughter's private school. If his charitable act got him into serious trouble, where could he turn for help? He knew he had no legal obligation to act. He had not been invited to participate in the patient's care, had made no entries onto the record, and wasn't entitled to render a bill for his teaching visit. Yet, he sensed that he alone possessed information vital to that man. But as he passed the night sleeplessly, he reminded himself also that, had the patient been warned and fled to a "better" surgeon, he could still die--and then who would be blamed? And, of course, tomorrow could be the chairman's lucky day.

But it was to be no one's lucky day, for the following morning, early in surgery, a major blood vessel near the fireman's heart was lacerated. The chest filled with blood, the patient went into shock, and a full hour was required to repair the damage before the actual valve replacement could commence. Three additional hours of operative fiasco followed, causing substantial brain, liver, and kidney damage. The next day, the chairman left to deliver a paper in Honolulu, and 40 hours later, the patient who was confident he would soon be well was pronounced dead. Having followed the case from a distance, the young internist blamed himself.

Albeit by hearsay, hadn't he enough reason to doubt the surgeon's competence? Didn't his career concerns seem selfish and trivial when compared to the possible loss of a human life? But did he really have a professional obligation to someone seen informally for only minutes? If not this reluctant would-be samaritan, who was available to help the endangered patient?

Equally complex questions can be asked of the operating surgeon. Knowing his own clinical deficiencies, as he must have, shouldn't he have declined the case--or at least asked for qualified operating room help? But then, what might subsequently happen to his teaching program, which depended upon that referral contract with the Veteran's Administration? Wasn't his career also at risk? Knowing that he was not the best man for the task at hand, this surgeon clearly placed his own political well-being above the life of his patient, an unschooled public servant who died trusting that his VA hospital would not contract with a marginal surgeon, or that clinical ineptitude could never be tolerated at a great teaching hospital.

This case also raises other questions when a doctor witnesses a colleague's incompetence. First, to what degree is a physician obligated to jeopardize his personal well-being on a patient's behalf? Second, does a physician owe a duty to another doctor's patient? Third, should we punish doctors who fail to "blow the whistle"? Finally, how should society and the medical profession protect or punish both the accuser and the accused?

To some, the physician's vulnerability as a judge of his peers argues that medical supervision should come from without. Certainly, there would be no shortage of volunteers. Many non-doctors find medicine and medical ethics both mysterious and fascinating. Their inevitable, sometimes unpleasant experiences as patients seem to justify their pronouncements. Feeling qualified to render opinions on the suitability of care, theologians, lawyers, statisticians, biologists, social workers, nurses, hospital administrators, insurance companies, and federal and local governments increasingly claim a right to opinions on subjects previously confined within doctor-to-doctor or doctor-to-patient dialogues. They argue also, perhaps correctly, that, by paying handsomely for this vital service, they are entitled both to judge and influence its quality. Public involvement is stimulated further by increasing portrayals of the doctor and his colleagues as villains and co-conspirators.

But the amateur's opinions can also be silenced by intimidation, for what nonphysician--for example, an attorney familiar with the laws of slander or restraint of trade--would have openly criticized forthcoming open-heart surgery by a recognized authority in cardiovascular physiology (and a department chair, for that matter)?

CASE II

A Pattern of Repetitive Negligence

A 52-year-old female domestic-relations attorney is sent by her family physician to a pulmonary specialist for evaluation of a worsening cough. She admits to years of heavy cigarette smoking and substantial, recent weight loss. A chest X-ray is interpreted as showing a large, malignant-appearing tumor of the mid-portion of the right lung. Advising the patient of his concern, the consultant suggests hospitalization for biopsy confirmation and, after additional testing, to consider the treatment options.

But the consultation did not end there, for it was the pulmonary specialist's pattern of practice to review any previous chest X-rays taken on his new patients. Knowing this, his experienced office nurse contacted the referring practitioner's office and, a few hours later, retrieved a backlog of this patient's old films. Later that day, the specialist placed six earlier chest X-rays on his viewbox, the dates on each conforming to earlier "annual physicals" at her doctor's office: 1991, 1989, 1987, 1985, 1984, and 1982. To his astonishment, evident on each film was the lung cancer diagnosed that day: a small, barely visible shadow in 1982 but increasing in volume to nearly five inches across by 1989. A report on each film was also found and, except for the date, all were identical; each bore the phrase, "No abnormalities of the heart or lungs," followed by a rubber-stamp facsimile of the doctor's signature. None made any reference to the tumor.

While the referring physician may have been ignorant of how to interpret X-rays, it was more likely that he hadn't even looked at them. So the pulmonary consultant made another diagnosis that day: though performing office chest X-rays and certainly charging for the service, the referring family practitioner only assumed them to be normal, and the patient, who might have been cured surgically a few years earlier, had been continuously misled about her health and now appeared doomed.

In hospital, both the tumor's malignancy and incurability were confirmed, and, despite later radiation and chemotherapy, her deterioration accelerated. Recognizing that her problems were specialized, she requested that her terminal care be provided by the pulmonary specialist. As his wife approached death, the patient's husband asked her new doctor, "How could this have happened so quickly? We're told that this cancer is widespread, inoperable. But my wife and I both got physical exams nearly every year. For God's sake, how long has it been there?"

The response was evasive, for were the inquiry answered correctly, a claim against their family physician would almost certainly follow. Clearly, the X-rays and the bogus reports confirmed a colleague's negligence--all the documentation necessary to provide an immense monetary award to the patient's estate. The pulmonary specialist also would be expected, however reluctantly, to provide testimony clearly damaging to his colleague. Was a duty of truth owed his new patient, even if in fulfilling it he risked ostracism, lost hours from work, and understandable worry?

He had known the general practitioner for years: an amiable, hardworking doctor in his late sixties, the son of immigrants and a Korean War veteran who had gone to medical school on the GI Bill. The specialist also knew that his personal reputation was excellent, enhanced by having had several earlier high-ranking positions in the local medical society. Furthermore, he appeared to live modestly, projecting the very image of a dedicated community elder statesman.

The lung specialist considered discussing the issue of the X-rays with the G.P. But what was to be gained but mutual embarrassment, perhaps hearing some concocted explanations or a plea for silence? And how should he respond were the general practitioner to ask--or for that matter demand--the return of the incriminating X-rays which were, in reality, his property?

Another issue loomed larger: that the referring doctor was still generating fees by doing office X-rays and, very likely, still not reading them carefully, if at all. How many other undiagnosed diseases were incubating within his film files? Surely he must have known he was engaging in a dangerous practice and that, eventually, there would be a conspicuous oversight, an asymptomatic visible abnormality overlooked at great cost.

Trying to think like a defense attorney, the specialist wondered who but a radiologist, oncologist, or surgeon could know whether a malignancy seen on X-ray was curable--or when, in its course, it should be obvious to any doctor? How could one distinguish between X-rays examined incorrectly from those glanced at casually or not at all? Also, how energetic would he himself be, were he lucky enough to still be practicing into his late sixties? And this man was a colleague, perhaps a tired, overworked one, with only this one flaw. Was there any foretelling what tragedy could befall him were his negligence publicized?

In considering his action--or more appropriately, inaction--he recalled that this patient and her husband were both wealthy; a malpractice judgment or financial settlement wouldn't benefit them, particularly considering the little time remaining to the patient. Also, wouldn't her suffering increase were she to learn that all of it could have been prevented?

As indicated earlier, most physicians' work rarely is scrutinized. The usual practitioners have no deadlines, no production or sales quotas, no supervisors to report to or promotions to attain. Their careers literally begin at the top, in an office or operating room, seeing patients one at a time. But their professional interactions ensure that any inadequacies, if present, will be evident first to their colleagues by direct observation, perhaps through rumor or even the hurried, unsupervised transfer of an "unsanitized" X-ray file.

In both of the aforementioned cases, the treating doctors certainly wished no harm to anyone, but neither chose voluntarily to change a hazardous pattern of practice. And the physicians who witnessed the problem, while recognizing an obligation to protect these patients, had an even greater desire to avoid any disputes--political or medico-legal. In the day-to-day lives of doctors, isn't it clear that courage must occasionally accompany compassion and intellect?

CASE III

A Dangerous, Unnecessary Procedure Is Identified

Late in a midweek afternoon, a specialist in esophageal disease is asked to provide a consultation on a retired, 74-year-old Third World diplomat scheduled for surgical treatment of difficult swallowing. The problem was traced earlier to a weakened, herniated left diaphragm, the muscular wall separating the thoracic and abdominal cavities. This abnormality allowed the stomach, ordinarily confined to the abdomen, to migrate upward into the left side of the patient's chest cavity. Swallowed food going downward would temporarily halt at the point in the esophagus where it had to reverse course up into the mislocated stomach. Planning to repair the hernia and pull down the stomach, the surgeon requests the internist's thoughts on the case, including the patient's suitability for surgery.

The consultant felt flattered, for the referring surgeon was a well-known practitioner, a man of conspicuous personal elegance, wealth, and intellect, with a witty, beautiful wife. His social and charitable activities were publicized widely, drawing the attention of various diplomatic enclaves in the city where he practiced--perhaps even the mechanism by which he obtained this surgical referral.

In early evening, the consultant visited the patient at his bedside and found there an elderly, thin, but overtly healthy Asian man, who provided his medical history in perfect though accented English. The patient already knew his diagnosis, recalling with pride that, decades earlier, his bizarre upper digestive tract received his newly independent nation's first barium X-ray. For as long as he could remember, his meals took extra time and always were accompanied by excessive belching; to prevent regurgitation, he was required to drink large volumes of liquid. But now, retired from work, he had time to devote to himself, and his only daughter, living in the United States, persuaded him to come here to inquire whether there might be some new, safe way to treat his lifelong problem. Through his country's embassy, he was referred to this chest surgeon, who recommended an operation and described it as easy and low-risk. On further questioning, the patient denied any recent worsening, continuing to adapt to his disability by chewing his food well or preparing it in a motorized blender.

Earlier X-rays were reviewed, confirming a defective left diaphragm through which the patient's stomach, spleen, and part of his intestine had herniated into the chest, compressing a tiny left-lung remnant. The right lung and diaphragm were normal. The consultant knew this condition--"congenital eventration of the diaphragm"--to be an interesting but irreparable curiosity, important only in newborns when both lungs are compressed, threatening asphyxiation. When only one side is involved, it is usually symptomless, identified in adults by serendipity.

Accordingly, the doctor wrote his candid assessment in the medical record: that the planned surgery was unlikely to benefit this patient, whose stomach was certain to be irretrievably "stuck" in the chest. Furthermore, considering his age and diminished overall lung capacity, the operation represented a needless risk to life. At home, wondering whether his opinion would influence plans for surgery, he called the hospital's operating room and learned that the patient was scheduled as the next day's first case. Obviously, the surgeon did not anticipate any argument with his recommendations. Moreover, as he was likely to begin his day with this case, it was doubtful that he would either read or heed the warning in the chart. So before he began his supper, the consultant telephoned the surgeon. He recounted the reasons why surgery seemed both unnecessary and unwise, including his feeling that both the chest and abdomen would need to be opened in this frail, old, essentially stable patient.

But his warning did not produce the intended effect. The surgeon insisted that the operative risk was acceptably low and, particularly as the patient had come several thousand miles to be treated, surgery would proceed. He acknowledged that the problems were unlikely to be completely reversed, so he claimed to view the procedure in part as exploratory and, "if nothing could be done," he would close the patient's chest. The conversation then ended.

The medical consultant wondered if he should return to the hospital to share his concerns with the patient, but it was late. The ward nurse was contacted and reported that the patient's trunk was already shaved in preparation for surgery, a sedative injection had been given earlier, and he was sound asleep. The consultant asked if there were relatives named on the medical record; perhaps he could call them. But the nurse could find nothing on the patient's registration sheet. The admitting office had no means of contacting the family; the clerk also mentioned that, lacking any health insurance, the patient had made a substantial cash deposit in advance with the institution. It seemed likely that a deposit had also been made with the surgeon.

He put the phone down. What was to be done? And suppose he was wrong about warning the patient away from surgery. As an internist, he had nothing to offer the patient beyond negative, perhaps imperfect advice. He could also imagine the surgeon's outrage at such an intrusion, particularly since he gave assurances that surgery would be aborted should he feel the repair impossible.

The following morning, both the patient's left thorax and abdomen were opened and an attempt was made to pull the stomach and adjacent intestines downward from the chest to the abdomen. Not surprisingly, a resistant loop of bowel was torn, spilling liquid feces throughout. After the chaos of clearing the debris and repairing the perforation, further surgery was abandoned and the wound closed. Now critically ill, the patient spent six weeks in the surgical intensive care unit before dying, enduring three additional operations for abscess drainage and bowel obstruction.

Having seen his original consultative advice ignored, the internist chose to make no further entries into the patient's record. Some months later, the two doctors met by chance in the hospital dining room. "I should have listened to you that night," was the surgeon's only remark. Left unsaid but evident to both was the real cause of the patient's death: a desire for money which prompted him to suggest a dangerous operation to a naive old man.

These three cases focus on moral failures, deriving respectively from pride, negligence, and greed, but each involving conventionally competent physicians. The faulty doctors were not running fat farms, selling bogus cancer cures, or working outside their specialties. No intellectual deficiencies, false billing practices, or instances of substance abuse existed. These were, by all appearances, outstanding physicians, men of consequence. Yet their moral incompetence proved as lethal as the more conspicuous forms of physical, emotional, or intellectual impairment.

At its simplest, a doctor's incompetence could derive from a lack of physical stamina. If one cannot endure hours in an operating room, the athletic work of a surgeon becomes exhausting, therefore perilous. And there are more complex intellectual issues: doctors unable to identify the suicidal patient, to distinguish the diagnostic possibilities of chest or abdominal pain, or to choose intelligently among several antibiotics each present a different risk.

Ignoring a personal deficiency of training or ability is another form of incompetence. Examples are a general surgeon choosing to do "just a bit" of plastic surgery, a family practitioner who attempts management of a complex cardiac rhythm disturbance, or an orthopedist undertaking a vertebral operation that requires neurosurgical expertise.

Even if capable and thoroughly prepared, physicians lose skills as they age. Some of those losses--a tremor in the hands of a retina surgeon, deafness in a cardiologist, or a radiologist's cataracts--can be critical. But in the intellectually honest, morally intact doctor, these impairments are mitigated by personal maturity, incorporating the lessons of experience and a willingness to get consultative assistance or curtail one's activities.

The infrequent examples of drug addiction or mental illness aside, a doctor's incompetence is less likely to be an intellectual or physical issue than an ethical one. For example, surrendering to the desire to earn money rapidly at a patient's expense and risk is as dangerous as it is inconspicuous. We expect car salespeople to try to convince us we need electric windows, wire wheels, or a luxury radio, for the more they sell, the greater their commissions. But physicians are human, too, and those in conventional fee-for-service practice do regulate the rate at which they earn by selling a product--in particular, the care they provide. A patient may be told that a cardiogram or a blood count is needed, yet it may be truer that it is the doctor who "needs" them--specifically, the income that accrues from their performance. And what if services described as necessary are more extravagant, perhaps a hysterectomy or coronary bypass?

In addition to raising the issues of moral competence in doctors, these cases fall within the purview of medical ethics. Rarely described as any formal code of right and wrong, medical ethics were, for years, considered only a code of ideal fraternal conduct: one didn't criticize a colleague's care, advertise services to the lay public, or have a financial interest in a hospital or pharmacy. Much has changed. The number of physician, businesspeople proliferates. Testifying against colleagues in malpractice lawsuits is both common and remunerative. Some doctors utilize the media regularly to generate work. But our ethicists are concerning themselves mostly with management of the dying or chronically ill, fraudulent biomedical research, and health-care cost containment. And all this is complicated by the mixed blessing of society's growing litigiousness.

Lawyers have been among the most vocal in accusing doctors of inadequately policing their house. But their reformist posture has an ironic ambiguity, for some bad doctors have a great deal of money to use for vigorous legal defense and have little trouble retaining a highly skilled attorney. Thus, should a malpractitioner's reputation or decision-making abilities be questioned, he, will have considerable opportunity to bring a successful lawsuit for libel or slander against the well-meaning accuser who dared to publicize, improve, limit, or terminate his substandard pattern of practice.

Certainly the prospect of being sued for libel will chill a doctor's wish to protect the patient community. Conventional malpractice insurance will not underwrite their defense, nor pay for a successful counterclaim. While it is sometimes difficult to prove medical incompetence, it is virtually impossible to establish moral ineptitude.

On the other hand, the community deserves protection, and if we agree that the best judge of a physician's work is another physician, the participatory obligation is clear. Malpractice prevention is risky and sometimes ineffective, but consider the alternatives: minding one's own business, refusing to stick one's neck out, or caveat emptor. Each is an unsuitable refuge for the medical profession, risking that quality control and discipline will either fail or ultimately be delegated to an incompletely trained bureaucracy.

With some exceptions, American doctors are honorable, caring, and superbly trained; to improve our national health, we should not have to live in a system where each physician is encouraged to spy on his or her colleagues. But lawyers aren't the answer either. Most malpractice suits and judgments are unwarranted, starting with unpredictable or unavoidable bad results and outrageously exaggerated claims and continuing through an overworked judiciary, terrified insurance companies, and uninformed but charitable juries. And ironically, most malpractice--particularly he moral variety--remains undiscovered.

But these problems do have solutions. There is an increasing sense within the medical establishment that ethics are inseparable from the everyday practice of medicine, which cannot help but emphasize to doctors that their medical decision-making is a measure of their personal quality. The reemphasis on the education of competent generalists should stimulate the image of the doctor as humanitarian, less conscious of remuneration, less procedure-oriented. The creation of the recent National Practitioner Data Bank indicates that a doctor's conduct is ultimately a public matter of concern to colleagues, hospitals, licensure boards, and consumers.

To the doctor on the spot, however, the prescription continues to be a recommendation for the courage to speak out when it is necessary. But there is still much else to be done; if society is to make real strides toward better quality care, shouldn't we replace our nearly automatic pattern of medical relicensure? Or, recalling Galen's argument that every doctor is a philosopher, shouldn't we ensure that continuing education include portions devoted to the ethical issues of day-to-day practice? Certainly, professional liability insurance must be expanded to cover the financial risks inherent in peer review and criticism; for whether or not the law spells it out, good doctors--knowing that they sometimes are responsible for a colleague's patient--also deserve protection.

Society has a right to expect moral excellence in its physicians. In trusting them, we are rewarded by finding most to be intelligent, honest, hardworking, and willing to sacrifice convenience, money, and even their own health in caring for their patients. Happily, doctors of this dedication far outnumber those of the cases illustrated here. But the doctorly qualities of wisdom and compassion must be joined by professional courage. If asked, "Who shall guard the guardians?" doctors should respond with the words of Virgil, who counseled: "Tu ne cede malis, sed contra, audentior ito"--"Do not yield to misfortunes, but, on the contrary, meet them more boldly."

Dr. David A. Morowitz is a clinical Professor of medicine at Georgetown University and a practicing physician in Washington, D.C.