Your money or your life: a new variation on the Heinz Dilemma.

Millions of Medicare-age Americans are drug dependent, not because of addiction but because of common chronic health problems such as diabetes, heart failure, high blood pressure and arthritis. Seniors are up in arms because drug company control of distribution and pricing of pharmaceuticals is eating away hard-earned nest eggs. Who cares? Where's the justice?

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Mrs. Heinz, a 66-year-old widow, suffers from a life threatening chronic illness. She is kept alive by two daily doses of a miracle drug. The drug was discovered by and is produced and distributed by a local pharmacist who charges $2,000 per dose, 10 times the cost of producing the drug.

Mrs. Heinz can no longer afford the drug. She first spent a hard-earned and carefully planned nest egg that, without the illness, would have provided for comfortable living the rest of her life. A public fund-raising effort was successful but could not be sustained over time. Mrs. Heinz has three sons who send her money regularly, but the sons must safeguard their own economic position and consider obligations to their children as well as to their mother, so they cannot totally cover the cost of the drug.

Mrs. Heinz goes deep into debt by taking out a loan, but the borrowed money is soon exhausted and now she can't afford two things, the cost of the drug and loan payments. She maxes out her credit cards, but cannot meet those payments either so the credit cards are no longer honored.

So Mrs. Heinz appeals directly to the inventor/pharmacist. She presents a note from her doctor confirming that she will die without daily doses of this medicine. She asks the pharmacist to supply the drug to her at a cost she can afford. The pharmacist refuses. "Like any other business," he argues, "I am entitled to make a profit."

Normally a law-abiding citizen, Mrs. Heinz is now considering the only option left to her as she sees it, which is breaking into the pharmacist's warehouse and stealing a huge supply of the drug.

Fantasy and reality

That fantasy is a paraphrased version of the Heinz Dilemma, a popular case study discussed in college ethics and psychology classes since 1973. (1,2)

Today, some key features of the Heinz Dilemma are disturbingly familiar. The question of whether or not prescription drug benefits should be included in socialized medicine systems such as Medicare is a hot topic but only in the United States. Angry seniors struggling with a combination of chronic medical conditions, fixed incomes, and unaffordable prescriptions are ordering affordable drugs from Canada. (3,4)

At the present time, this is an act of civil disobedience because it openly flaunts laws against importation of drugs by individuals.

Setting aside for a moment the strong emotions aroused by this issue, what generally accepted ethical principles thread through this complex political, social and economic dilemma?

The answer depends on your choice of ethical perspective. This issue can be viewed as a question of caring, a matter of conflicting rights, a test of virtues and moral character, or an exercise in distributive justice.

* Caring is a feeling that includes elements of spiritual love, protectiveness, and personal involvement. Caring in the extreme is altruism, which means actions are based more on expected results for others than on considerations of one's own welfare. Some consider caring a desirable character trait; some consider it a weakness. Caring is a major feature of the professional ethic, so it is expected of doctors and nurses. But those running a business cannot be expected to become personally involved with each customer.

So when people ask, "Don't drug companies care?" the answer is, "No," but that answer does not justify a conclusion of immoral behavior by the drug companies.

* A right is something justifiably claimed by an individual. The claim might be based on tradition and experience (a customary right), law and government (legal rights and civil rights), or simply existence as a human being (human rights). There is no such thing in a civilized society as an absolute right. Rather, rights conflict. Whether a right exists or not is an ethical discussion. Which person's or groups rights prevail is a legal battle or a political battle and some of these battles are long, bitter and famous. Which is greater, the fetus' right to become a human, or a person's right to choose life without raising a baby? Which is greater, the smoker's right to light up or the non-smoker's right not to inhale second-hand smoke?

So far, no one denies a sick person's human right to medication or a drug manufacturer's customary right to make a profit. The drug companies are winning the political battle over which right prevails.

* Virtue ethics is the traditional view of ethics as moral philosophy. Morality is concerned with judging human actions either good (angelic) or bad (evil). Virtues exhibited by people whom moralists judge good include the four basic virtues proposed by Aristotle:

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* self-control (patience)

* courage

* wisdom

* justice

Benjamin Franklin was a virtue ethicist whose list of 13 virtues include:

* temperance

* sincerity

* justice

* cleanliness

Christianity is virtue ethics (faith, hope, and charity) with the added mystical component of awarding God-like attributes to that culture's founding guru, Jesus Christ.

To a moralist, drug companies are definitely evildoers.

* In ethics, justice is an attempt to consider the views and needs of all stakeholders in the decision making process. Justice differs from caring because caring is up close and personal, while justice is detached and objective. Social justice is the counterpart of fairness in dealings between individuals. John Rawls, a Harvard faculty member until his death in 2002, created a highly respected and currently popular theory of justice ethics. (5) Some features of Rawlsian justice are common goods, the social contract, reflective equilibrium, considered judgments, and the veil of ignorance.

Common goods are values generally considered desirable, such as opportunity, income, and self-respect. The social contract or rules of a society, Rawls believes, should offer members of the society reasonable access to common goods. This view dictates that affordability of drugs be one consideration in pricing, but does not require absolute altruism on the part of drug companies because that would violate the principle of reflective equilibrium.

Reflective equilibrium is Rawls' theoretical view of how the best social contract would be negotiated. That is, those establishing societal rules balance their own interests against the interests of others, whether those others were members of the rule-setting group or not.

This process of reasoning together in a mutually supportive way is a far cry from the usual business negotiation, which is an adversarial process in which each participant supports only his or her own interests. U.S. drug companies attempt to balance their own interests against society's interests by claiming that if prescription drug prices were any lower, research to find needed new drugs would come to a screeching halt. Even if that were true, it would be only a half-hearted attempt to consider the immediate needs of seniors when pricing prescription drugs.

Considered judgments are intuitive starting points for reasoned discussion of the social contract, not to be ranked in any order of importance. One considered judgment in health care is a result of the traditional professional ethic; patients' interests come first. (6)

Numerous health care providers including drug companies discarded that view in favor of the considered judgment that being in business means doing whatever is necessary to maximize profit.

The theoretical veil of ignorance is establishment of rules for a new society by people who do not know what their place in that new society will be. In this imaginary world, people who do not know whether they will be patients or healthy pharmacists and don't know the amount of their income are the ones who set drug prices.

So, is disregard for affordability of prescription drugs by manufacturers and distributors of prescription drugs just?

No.

Keep in mind, this is a conclusion arrived at by ethical reasoning, not a moral judgment. But the conclusion could be of practical value. In Canada, exploitative profit taking is not controlled by social contract and reflective equilibrium, but by laws capping the amount of profit drug companies can make.

That could happen in this country if the injustice continues and senior citizens continue civil disobedience and vote their frustrations. The common good of liberty to take a profit invites legislative intervention if it is used as a license to steal.

If you discuss this column with others, which I hope you will, practice one important reasoning skill. Avoid red flag words that lead to emotional flare-ups like greed, charity and conscience. And be sure all discussion participants know the contextual meanings of terms used in the discussion.

Personal note: In my considered judgment, admission of wrongdoing is a mark of moral character. Therefore in an attempt to live ethically, I admit to you that I am a lawbreaking evildoer. Jo, my wife, has several chronic medical conditions and takes nine indispensable prescription drugs a day. We save $3,600 a year by ordering the expensive ones from Canada.

References

1. Kohlberg, L. Collected papers on moral development and moral education. Harvard Education Foundation. 1973.

2. Gilligan, C. In A Different Voice. Psychological Theory and Women's Development. Harvard UP. 1982.

3. Rao, N. "Buying drugs across border a lifesaver: Ozarks residents who order from Canada feel their needs surmount the fuzzy law." Springfield News and Leader, November 2, 2003. p. 1.

4. McKenna, B. "Canadian drugs not prescription for U.S. health ills." The Globe and Mail. November 7, 2003. p. B8.

5. Rawls, J. A Theory of Justice. The Belknap Press of Harvard University Press. 1971.

6. Beauchamp, T. and Childress, J. Principles of Biomedical Ethics, Fourth Edition. Oxford University Press. New York and Oxford. 1994.

Richard E. Thompson, MD, is adjunct instructor of ethics at Drury University, Springfield, Mo. and president of Thompson, Mohr and Associates. Previously, he was an adjunct instructor of ethics at the Ethics Institute, St. Petersburg College, St. Petersburg, Fla. He can be reached by phone at [phone] or by e-mail at [e-mail]

By Richard E. Thompson, MD