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Taking the train to a world of strangers: health care marketing and ethics.

The marketing of health care services raises the Prospect that an ethic of strangers will govern relations between providers and patient& A fiduciary model that emphasizes honesty and public accountability, as well as the patient's good and avoiding unnecessary services, can keep marketing consistent with the ethical tradition of medicine. The natural limit to any person's moral universe, for Tolstoy, is the distance he or she can walk, or at most ride. By taking the train, a moral agent leaves the sphere of truly moral actions for a world of strangers, toward whom he or she has few real obligations and with whom dealings can be only casual or commercial.' For hospitals, physicians, and patients, the times. are more than a'changing. The American health care system is undergoing an economic revolution.2 Fewer patients, fewer occupied acute care beds, and fewer reimbursement dollars have converged to push health care providers from peaceful coexistence into outright competition. Hospitals and physicians, to remain competitive, are now marketing their services like commercial sellers. We believe it is time to evaluate health care marketing from an ethical perspective. Health care marketing raises the fundamental questions of whether caring for the sick is actually "just" another commercial endeavor to be sold effectively and profitably to the public and whether the conduct of health care providers should be governed by the same basic ethical values that apply to any other business. Put differently, should health care providers take the train to a world where providers and patients are strangers whose obligations to each other are few and whose dealings "can be only casual or commercial?" A Moral Exemption for Business?

All human activity is subject to ethical evaluation. Any human act can violate someone's rights, show disrespect for persons, or have harmful consequences for the agent or others. At a minimum, an "ethics of strangers" applies to all equally with attendant basic obligations that are "limited, anonymous, and chiefly negative: namely, not to act offensively, violently, or deceitfully." Persons conducting business are subject to the same negative moral obligations as everyone else.4 PoSitive ethical obligations, such as doing good by donating money to charity or maximizing shareholders'interests, may govern business activity, but their applicability is controversial. It is unarguable, however, that all persons, including those conducting business, are ethically obligated to refrain from fraud, coercion, violence, or otherwise doing harm to others.

Assuming that basic moral obligations are met, it is not unethical for a business to conduct arm'slength transactions with strangers under the assumption that both parties are (more or less) independent, equally positioned, and admittedly self-interested individuals who can decide for themselves the value of the commercial transactions they make. Nor is it intrinsically unethical for a business to sell a product by intentionally associating it with a desirable extrinsic feature: for example, linking

possession of a certain object (a sports car) with romantic or sexual success. (Such promotion is perhaps open to question as to whether it intentionally deceives consumers.) There is no special relationship between a business and its customers that generally obligates the former to comply with greater or higher ethical duties than those imposed by the common ethics of strangers. Health Care Providers, Patients, and Ethics We will use the term "provider" to include both individual persons and corporate institutions that provide health care services to patients. The basic ethical obligations of all providers are similar because all are engaged in the special activity of caring for patients. Furthermore, the status of health care institutions as for-profit or not-for-profit entities does not affect the ethical obligations imposed upon them insofar as they all hold themselves out as caring for patients. In addition, patients rely on institutional providers to care for them and to serve their best interests in fundamentally the same way irrespective of whether the corporate entity is nonprofit or forprofit. While the provision of health care to patients is a business in the sense that money changes hands in return for the provision of goods and services intended to improve patient health, both the tradition of medical practice and the venerable ethical values of beneficence and loyalty to the patients interests on which this tradition rests clearly indicate that the provision of health care should be something more than a commercial transaction between strangers. In short caring for the sick is no% and should not be, considered largely the same as commercial selling. At the risk of oversimplification, we see patients as being fundamentally different from consumers of commercial products in three ways. First, the ill and injured are in a distinctive position of vulnerability and dependency. The vast majority of patients do not possess the knowledge or skills that would enable them to restore themselves to health in most situations. They are dependent on the special knowledge and technical skills of the provider and largely unable to judge the quality of medical care. Commercial buyers and sellers are highly independent, and consumers often can evaluate the quality of the goods offered to them." Second, a patient's own self and destiny-maybe even her very life-is at stake in an encounter with a provider. A patient frequently discloses intimate personal information to facilitate therapy. In contrast, a consumer purchasing a product lacks this highly personal and intimate stake in the transaction. The patient's very personal concern for his or her own health makes the relationship with providers substantively different than those where a consumer is dealing with a seller of products. Third, the substance and history of the healing relationship as well as the manner in which providers present themselves to the public lead patients to trust their providers and reasonably assume that their interests receive priority in the healing encounter. Patients do not expect a physician to recommend a treatment like open heart surgery solely for the surgeon's economic self-interest. As Pellegrino and Thomasma have argued, providers are ethically obligated to put the good of the patient first. The good of the patient is the most fundamental norm of the physician-patient relationship. Physicians cannot interpose other priorities, such as research goals, their personal self-interests, or institutional goals, if these conflict with the good of the patient.6 Consequently, providers are ethically obligated to act so as to deserve and maintain the patient's trust and confidence. The special relationship that links patient and health care professional distinguishes the latter from commercial sellers: [T]hose who get sick or hurt have no sensible way to judge the value of medical services, let alone strike a balance of value and price, as they commonly do in the case of dresses and deodorants. So they have to trust the intentions as well as the competence of their physicians and institutions, and this trust imposes on physicians and hospitals the obligation that is the bedrock of the professional ethic. The obligation and the ethic that emerges from it measure the difference between hospitals and industry, and nowhere more obtrusively than in marketing.1 The obligation to maintain trust requires that providers adhere to high standards of truthfulness and disclosure. Unlike strangers who merely have to avoid deceiving others, providers should avoid even subtly misleading patients or unfairly inducing them to agree to treatrnent. A provider has an affirmative obligation to present accurate, fair, and honest information about health matters. The patient's responsibility to participate in his own care notwithstanding, a patient is not under an obligation to root out ambiguities, material omissions, or confusing statements in a provider's information. A patient as patient, and especially one who is in pain, disabled, dysfunctional, or perhaps even dying, typically suffers from what Kenneth Arrow calls informational inequality" and clearly is not in a position to cross-examine his provider about his condition or to negotiate on fair terms about obtaining appropriate health care.

In sum, providers are in a fiduciary relationship with their patients. As in law, this relationship is based on the special confidence entrusted by one party to another who, in fairness and good conscience, is bound to act in the utmost good faith and with regard to the primacy of the trusting person's interests. [B]usiness shrewdness, hard bargaining, and astuteness to take advantage of the forgetfulness or negligence of another [is] totally prohibited" between persons standing in this relation.8 A Fiduciary Model for Health Care Marketing Ethics

This view of the ethics of providing health care leads us to propose a fiduciary model of ethical responsibility for health care marketing. This model assumes that it is appropriate for marketing representatives to be held to the same ethical standards that apply to the persons associated with the product, service, or profession they represent. Specifically, the means used in promoting health care services should be consistent with the ethical standards that bind providers. The main characteristics of this model concern the primacy of the patient's good, the avoidance of unnecessary services, high standards of honesty and accuracy, and public accountability.

The Primacy of the Patient's Good. Health care marketing should place the good of patients above other interests, especially a provider's economic interests. Marketing should be consistent with the primary goal of enhancing the health of patients as individuals and as a community. A provider's fiduciary responsibilities are not violated if rendering services to patients generates a reasonable profit (that is, it generates money permitting a provider to remain in operation, make a decent living, or even deliver a return on investors' capital), as long as the profit'is created in a manner truly consistent with the best interests of patients as individuals and as a community.

Infertility clinics, for example, that use advertisements enticing persons to undergo in vitro fertilization (a procedure that costs $4,000 to $6,000 per attempt, has a success rate of perhaps 15-20%, and is not covered by most insurance) by suggesting that "the dream might still come true for you" can be seen as selling profitable services paid in cash at the expense of vulnerable people suffering the anguish and disappointment of childlessness.' Another infertility clinic has been criticized for allegedly using chemical rather than clinical pregnancies in calculating its publicized success rate on the basis that only one out of four chemical pregnancies results in a live birth.

The Avoidance of Unnecessary Services. Marketing should not induce a patient to accept excessive, unneeded, or non-medically indicated health services, regardless of cost risk, or source of payment. Although a good deal of commercial marketing is intended to create desires or needs in consumers, fostering demand for health services that are neither necessary or cost-effective is unethical."

Some years ago a Nevada hospital, faced with low weekend occupancy, successfully stimulated weekend admissions by offering discount rates and a weekly drawing for a free vacation cruise. 12 One critic charged that this practice had patients spending unnecessary days fillings beds ... often benefit[ting] no one but the hospital," given that little other than basic care was available on weekends.13

The promotion of cosmetic surgery with claims of complete safety or assurances of improvement in appearance and self-image can be interpreted as generating utilization of unnecessary services. One California hospital has attempted to attract cosmetic surgery patients with an advertisement implying that such surgery is performed more safely in a hospital than in less expensive settings and touting "the serenity and confidentiality" of its nonurban location.

High Standards of Honesty and Accuracy. Marketing should not merely avoid false or misleading information, but also information that is unfair, incomplete, slanted, designed to take advantage of particularly vulnerable groups of patients (for example, AIDS patients who may be desperate for any respite from their uniformly fatal disease), or is other-wise inconsistent with providers' fiduciary and professional responsibilities. The burden is on the provider to meet high standards of honesty and accuracy in disclosures to patients, not on the patient to wrest the truth out of ambiguous statements or to acquire other information necessary to evaluate properly a provider's communication.

For example, one hospital promotion has called its birthing unit "more than a safe place to have your baby." This language could mislead patients into thinking that nothing can (or does) go wrong during birth there. It could also deceive patients because this hospital does not have a newborn intensive care unit, a fact making it arguably not a "safe place" at all for the birth of what might be an unexpectedly critically ill baby.

Marketing legitimately may seek to influence behavior by providing scrupulously accurate and fair information to persons utilizing health care services. For example, a university teaching hospital could properly promote the advantages of its structure (such as, continuous coverage by physicians of most specialties, the presence of sub-specialists, and access to experimental treatments) to prospective patients, but it would not be required to make full disclosure" by describing how its physical facilities or food service are inferior to those of a competing community hospital. If marketing makes claims about the quality of health services rendered by individual practitioners or institutional programs, reasonably objective and well-accepted evidence must be presented in support. Lay persons should be able to evaluate such claims in a meaningful manner on their own. Promotions should avoid stating or implying a guarantee of successful outcome or of patient satisfaction with the services rendered as providers cannot truthfully promise either in every case. Despite their inability to guarantee medical results or patient satisfaction, providers do promote their services with such claims. One advertisement for an impotency clinic has stated: Fact: There is no reason to suffer with impotence. No matter how old you are or how long you've been impotent, your problem can be solved' (emphasis original). A psychiatric hospital in Utah has published a promotion with the headline "She Doesn't Want To Cry All The Time. But She Does. In Two Weeks She Won't." The hospital also guaranteed patient satisfaction after two days of treatment with a money back offer. One chemical dependency program has described itself as "designed to save money as well as lives" by promising to provide two free retreatments to any patient who successfully completed its program but had a relapse within five years.15 Public Accountability. Providers and marketing agents should be publicly accountable for their activities. If questions are raised about the ethical propriety of their marketing activities, providers should be able to produce an explanation and justification for public comment and criticism. Marketing decisions that affect patients' health should be subjected to the rigors of public debate and ethical discussion as are so many other aspects of health care. Health care marketing is most like to mature ethically when exposed to the light of public comment and criticism. The Nature of Health Care Marketing Marketing has been defined as "a social process by which individuals and groups obtain what the need and want through creating and exchanging products and value with others. Traditional marketing has been divided into four segments denominated as place,. promotion, product, an price. Marketing in health care concerns: access "place")-the ability of a patient to get into the health care delivery system as well as the location where health care goods and services are sold; promotion-advertising, personal selling, public relations, and health education; services ("product") in health care, services rather than products are marketed; and cost "price")-anything of value given up by the patient in exchange for health care services such as time, money, or opportunity." Access. Here we examine one aspect of access to health care services: physician referral systems. Many hospitals offer physician referral services to prospective patients that are designed to generate more patients for a particular hospital by attracting more patients for the physicians on its medical staff. A published advertisement of one service announced: Now there's an easy way to find the right doctor with whom you'll feel comfortable and confident. just call me. My name is B.W, and I'm an experienced registered nurse .... There is no charge for this community service. I look forward to helping you find a doctor who is just what the patient ordered (emphasis original). A similar advertisement placed by a national chain of hospitals contained a picture of a nurse in uniform with the headline: "Last year, she helped 10,755 people find a doctor. One at a time." The copy noted that the service offered a "free call to a Registered Nurse who knows doctors-and understands patients... "; stated that the "nurse knows doctors so well... "; and suggested that the listed number be called "For a number of good doctors... " While there is nothing wrong with helping people find a physician who can properly meet their health needs, these particular ads are ethically suspect. First, neither discloses how a physician comes to be a member of the referral panel used by the nurse. Based on our experience, only physicians who practice at the particular hospital that sponsors the referral service are placed on the panel; they are not selected from all right," good," or licensed doctors in a community. Second, the former ad does not disclose how the nurse determines the doctors on the panel are "right" and are persons "with whom you'll feel comfortable and confident," while the latter makes no mention of how the nurse knows [thesel doctors so well" or knows they are "good." The ads, in short, can mislead patients. The fiduciary nature of the provider-patient relationship calls for qualitatively different disclosure than is demonstrated by these examples of marketing. Patients should not be allowed to think that the "free community service" offered gives them access to all physicians from the local community or that the nurse operating the service has personal knowledge of the professional competence of the physicians on the referral panel if she does not. Furthermore, if claims are made about the quality of the physicians on the panel, some reasonably objective evidence (something more than the opinion of some interested party) should exist to support these claims and be made available for public scrutiny. Providers could overcome these deficiencies by disclosing the composition of the referral panel and the basis for any claims about its quality in the promotion itself.

Promotion. While all of marketing cannot be reduced to promotion, making potential buyers aware of a product and inducing them to purchase it through advertising is its most visible aspect. In the present economic climate, many providers are turning to advertising to help them compete. We do not subscribe to the view that advertising by providers (or any professional) is inherently ethically objectionable. Provider advertising that communicates accurate information useful to patients in understanding their existing health problems, identifies needed health-related services and products, and helps persons locate providers who can best satisfy their needs (by specialty, geographical location, religious affiliation, etc.) serves the best interests of patients. The timely and accurate presentation of such information increases opportunities for more autonomous decisionmaking by patients.

A hospital promotion that accurately lists its available services (such as a sports medicine program or an alternative birth center) or describes educational classes it offers to the public is not ethically objectionable. One California hospital has promoted its "affordable maternity services" by publishing a newsletter that describes the program in a factual and straightforward manner. Its statement about the program's financial aspects, for example, provides helpful information to potential patients: Using a sliding fee scale tailored to each family's needs and household income, families can save up to 75% of the regular cost of delivering a baby. Even families who do not qualify for the full discount can take advantage of reduced fees for hospital and physician services... Eligibility for the program ... is determined in a private meeting with the ... social worker.

This type of promotion is consistent with patients' interests and avoids omissions of material information or deception, though it does raise an issue of fairness with respect to those patients who pay the full charges and thus arguably subsidize those who do not. Unfortunately, much provider advertising falls into ethically questionable areas.

For example, a company in the United States will, for a considerable fee, provide laboratory services and experimental drugs to cancer patients whose disease has not responded to standard treatment. The company typically offers these services in conjunction with a hospital under contract. The drugs are usually administered on an inpatient basis by certain physicians on the hospital's medical staff who have no direct connection to the company. Thus, providers are intimately involved. in the company's activities. For a considerable time, this company utilized a four page promotional brochure that was given to prospective patients by providers, although its use was discontinued in june 1988. The front cover of the brochure read: "If it were your life, what would you do?" The second page contained, among other things, the following text in prominent type: "Think about it. If YOU had cancer, and standard treatments were known to be ineffective, what would YOU do? Give up? Or fight, pursuing every reasonable option? Ifs a choice every cancer patient deserves." This brochure is ethically suspect for a number of reasons. First, it presents the cancer patient with a false choice between either "giving up" or fighting" with the resources the company provides. This language appears designed to induce the patient to think that she would be surrendering to death or yielding to despair if she did not fight' by purchasing the company's services. However, a decision by a seriously or terminally ill cancer patient not to utilize treatment of unproven efficacy and high financial cost is not necessarily "giving up." In fact such a decision may be both reasonable and responsible under these difficult circumstances.

Second, the brochure begs the question by implying that the company's experimental program is, in fact a "reasonable option" for patients with advanced cancer. Perhaps it is for some, but the factual and value basis for determining reasonableness in this context will vary considerably. Nor does the brochure mention the precise nature of the benefits the experimental drugs might yield, success rates for remission or cure, or the burdens it may impose. While it is true that such disclosure is primarily the duty of the attending physician, it is ethically irresponsible to be utterly silent on whether there is any risk to the proffered service. A principal danger is that a cancer patient might obtain an initial impression that the "treatment" offered is risk-free and so have very unrealistic hopes when she learns the truth: the treatment," interleukin-2, has harmful side effects."

Third, it is both misleading and unfair to say that every cancer patient deserves" to have the opportunity to choose between "giving up" and fighting" by "pursuing every reasonable option." This statement asserts that these patients have a moral right to "every reasonable option" (namely, the companys experimental offerings) and implies that they are somehow wronged if denied access. The assertion is misleading in that it is far from clear that anyone "deserves" access to unproven therapy in the moral sense; it is unfair by trying to make the patient and others (most importantly, those who can influence the patient, like family members) feel guilty if they do not purchase the experimental treatment.

Advertisements by other providers have utilized similarly questionable promotional tactics. One California hospital published a newspaper ad touting its mortality rate for coronary bypass surgery as "the lowest in the country" based upon data from the Health Care Financing Administration HCFA). The ad appeared aimed at attracting more bypass business by convincing potential surgical patients that the particular hospital is better than others: "Although coronary bypass surgery has saved many lives, there is a difference between hospitals and surgeons. It is expressed in very dramatic terms: mortality rate." Though the hospital truthfully reported HCFA data, they are difficult to interpret correctly, particularly by a vulnerable lay person. For example, the statistics may not yet be accurate enough to provide valid comparisons. Second, to be truly meaningful, mortality data must be adjusted for age, sex, intensity of patient illness, and other factors significantly affecting outcome. Such ads do not provide useful information and so do not aid patients in making informed decisions about their health care.'

The same critique holds true for individual providers as for institutions. An advertisement for two plastic and cosmetic surgeons noted that they are "board certified," but did not mention which specialty board (plastic surgery? dermatology? radiology?) granted the certification. The ad also stated that one doctor "has performed over 1400 liposuction operations with a PERFECT SAFETY RECORD" (emphasis original). The danger inherent in this claim is that it might well lead a lay person to think that liposuction is an innocuous procedure when this is not true. Reports indicate that eleven patients have died after such surgery and that the complication rate (including infection, pain, skin sloughing, bruising and lessened sensitivity to touch) is about 9 percent.10

Services. The choice of services providers will and will not offer the public is a key aspect of marketing. Traditionally, marketing is geared toward assessing consumer needs and wants and then determining how to meet them in a manner that will generate maximum profit. Some may believe that governmental certificate of need programs require institutional providers to offer only those services truly needed by the public, while peer review, reimbursement mechanisms, and tort law will require individual providers to do the same. However, we are not sanguine that these methods are sufficient to maintain patient good as providers' first priority. Even in the presence of regulatory mechanisms, providers still are ethically required to scrutinize their own behavior in the discharge of their fiduciary duties to their patients.

Provider marketing decisions pertaining to the provision of services should be made in light of four interrelated factors, all of which are linked to promoting patient welfare.

Patient outcome. If a service generates increased morbidity and mortality to which patients would not have been subjected had they received the service elsewhere or not at all, then offering the service is ethically suspect. For example, there is evidence that the success rates of established programs for cardiac transplantation (such as at Stanford Medical Center) cannot be duplicated without proper support and careful development" Assuming there is an established program for heart transplantation with the resources and capacity to render the service and reasonably accessible to the patient population in need, the creation of a new heart transplant program for that population would be ethically objectionable on the ground it would likely cause unnecessary harm to some patients.

Similarly, certain services (such as microsurgery and chorionic villus sampling for prenatal diagnosis) are associated with higher morbidity and mortality rates when they are first offered than after the providers have accumulated considerable experience. Consequently, a marketing decision by a hospital to add a new service must take into account its ability to properly maintain a patient load sufficient to sustain high levels of proficiency concomitant with lower morbidity and mortality rates.

Use of scarce resources. A service that utilizes a scarce resource in an inefficient manner when it demonstrably could be put to better use elsewhere is ethically highly suspect. For example, if a new heart transplant program has a significantly higher morbidity and mortality rate compared to other programs supplying the same service to the same population, not only is the individual patient at a greater risk of harm, but a scarce vital organ that might have been transplanted with success into another candidate is lost. Providers must consider the effects of their use of scarce resources on those patients who will thereby be denied access.

Provider-driven demand. Once a service is available, there is often strong economic pressure on the providers to ensure that the service is adequately utilized to make it cost-effective. Such pressures create the danger that patients will be channeled into the program in the absence of clear medical indications. For example, one study of carotid endarterectomies (the surgical scraping of fatty deposits in the arteries that supply blood to the head and neck) found that 35 percent of the procedures were done for appropriate clinical indications, 32 percent for equivocal indications, and 32 percent for inappropriate indications, with the three categories defined by a panel of nationally known medical experts.23 Not only may patients with marginal medical indications receive a service, but patients with no medical need may receive it as well, particularly if the service seems to lack any harmful side-effects (for example, magnetic resonance imaging or ultrasound).

Increases in cost. The addition of a new service or continuation o f an existing service to remain competitive may require large expenditures to purchase the latest equipment or retain highly remunerated staff Providers must recognize that these expenditures can drive up health care costs without yielding a corresponding benefit to the patients they serve.

Marketing decisions cannot ethically be made solely on the basis of whether a service will prove profitable for the hospital, whether it will enhance the prestige of the hospital and its medical staff, or whether it will attract a surgeon who will admit many new fully insured patients. If the hospital is to remain faithful to its fiduciary responsibilities to patients, such decisions must first be consistent with patient welfare. A hospital, for example, could fulfill this responsibility by honestly evaluating whether its own economic interests or its community will be better served by the addition of another magnetic resonance imaging scanner.

Such a decision should be made quite differently than the business decision of General Motors to produce a new line of passenger cars. GM is not ethically obligated to determine whether there is consumer need for a new car or whether existing manufacturers are already producing cars that adequately meet consumer need for transportation. GM can produce a new line of cars solely because it thinks it can sell them at a profit whether or not anyone "needs" them. A hospital cannot ethically adopt this same stance.

Cost. Patient welfare should not be measured solely by whether a given health service benefits a patient more than it harms her. Patients'economic interests are important too, although balancing cost and benefit in health care is a highly inexact aTt. Whatever one thinks of the level of physicians' incomes or the surpluses generated by hospitals, providers bear an ethical responsibility to deliver services in a cost-efficient manner that does not line their pockets at the literal and figurative expense of patients. "Whatever the market will bear" is not the right standard to apply to the cost of health care, given the emotional, physical, and fiscal vulnerability of patients.

A physician, for example, may attempt to replace income lost through discounting fees to insurance plans by subjecting patients to additional procedures of marginal or no value. These patients may incur increased out-of-pocket expenses, waste time, and be exposed to the detrimental effects of the procedures. Such churning" is ethically unacceptable. Other physicians consciously equate an increased level of care with high quality care. Critical self-examination and peer review are perhaps the best methods for identifying and rooting out behavior that drives up the cost of health care without generating corresponding benefit for patients. Ethically-Informed Marketing

Health care marketing appears to be yet another component of our health delivery system strongly affected by the forces of expediency and economics that challenge providers' commitment to the light and the good. There is a legitimate place for marketing in health care, but it needs to be informed and shaped by the venerable and rich ethical tradition of medicine and the other healing professions. The goal of our fiduciary model is to keep the marketing of health care services consistent with this tradition.

Caring for the sick and injured should not be seen as just another commercial product to be marketed like the proverbial better mousetrap. A patient deserves much more when physicians, nurses, hospitals, and others provide services that profoundly affect her health and life.
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Author:Nelson, Lawrence J.; Clark, H. Westley; Goldman, Robert L.; Schore, Jean E.
Publication:The Hastings Center Report
Date:Sep 1, 1989
Previous Article:Bioethics as civic discourse.
Next Article:Long-Term Care: Principles, Programs and Policies.

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