Thursday, May 29, 2008

Physician's Right To Choose?


Can a physician refuse to treat a patient based on religious views? This is a question that is being brought before the California Supreme Court. Oral arguments were presented on May 28th. At the center of the case is a woman who is making the claim that she was refused an intrauterine insemination with donated sperm because of her sexual orientation. (ABC)
Benitez, now 36, is a lesbian. She sued her doctors under California's civil rights laws, charging that they discriminated against her because of her sexual orientation. Today, the state Supreme Court will consider whether a doctor can invoke his faith to refuse a patient treatment.
In reading articles from sources like the LA times, AP, and ABC, the press is spinning this into a gay verses religious issue. They always love doing that. Also, take a look at the LA times comment section - definitely no love lost for docs. The press also like to sprinkle in a little racism undertones to add fuel to the fire.
Benitez's lawyer, Pizer, compared their response to the civil rights era: "I don't treat black patients, but I will refer you to someone who will." "It opened our eyes to discrimination," Clark said. "We knew how black people felt and didn't realize how deep it went and how on-guard it makes you."
Here's my take on this case. First of all, fertility services are an ELECTIVE procedure - meaning this is not an emergency situation. The rules are entirely different for an elective procedure. The press is playing this off as the docs refusing "the right" of treatment. And, people are asking on "how can doctors refuse treatment?" "Doctors should be required to do these services or have their license taken away." If this was a doc refusing to treat a unstable and dying patient because of religious or any other beliefs, that would be a lot different. But, this is not the case here.

Secondly, when it comes to non-emergency treatment, doctors, nurses, hospitals, dentists, chiropractors, physicians assistants, minute clinics, and anyone else in the medical field - can and have - refused treatment - pretty much on any grounds. Whether it's right or wrong in your opinion, finances are a reason. Some offices don't accept Medicare anymore. Some offices don't accept Medicaid anymore. Most offices do not accept every single insurance out there. If people don't pay their bill, then they are terminated from treatment. Is this discrimination? Some say it is. Some say it's not fair, but it happens every day in this country.

I have the ability to prescribe antibiotics for conditions which I think are appropriate. If a gay person wants antibiotics and I don't think they're appropriate, does that make me a homophobe? If a person of different race and I disagree on a particular treatment course, or if I refer this person to someone I think would be more appropriate for a treatment, does that make me a racist?

The press and the media have engrained in this culture that patients have the ability and "the right" to refuse any treatment that they like. The press and the media have engrained in this culture that patients have the ability and "the right" to sue any and all doctors if they believe they received inappropriate treatment. The press and the media have engrained in this culture that patients have the ability and "the right" to express their religious beliefs to a point where patient care may be compromised. Even soldiers in the war zone can refuse (on religious or any other grounds) to take any role that would support a combatant organization armed forces. Do docs have any rights here?

This California case is NOT about sexual orientation or religion or racism or refusal of treatment. This is about seeking different options with regard to an elective procedure. Are you telling me that physicians cannot decline to treat a non-emergency condition? That's ridiculous. Fast track this case to the US Supreme Court and let's have this settled once and for all.

11 comments:

Anonymous said...

Our "public servants" have found a scapegoat, doctors, who they want to force into real servitude, apparently.

Mary said...

I don't like how people think that they are entitled to so much. And of course disagreeing with a homosexual person makes anyone a homophobic. I hate how people throw that term at anything that moves. Probably to cover up their own insecurities on where they stand on the issue. Loved reading this take on it! Thanks for your insight, Dr. A.!

OHN said...

I can't tell you how many "patient termination" letters I have transcribed for my clients. Usually they are for non compliant patients but some are for personality conflicts between the doc and patient.

Sadly anyone can sue anyone for anything...and they do.

Katie Bee RN said...

This is a great post, and I can sense your passion for the subject. Yes, sadly it seems that people like to find a reason and a person to blame when they can't get what they want. Like the guy here in DC that sued a dry cleaners for $53 million in emotional damages when they lots his pants, and the woman that is suing PetSmart because her husband received a liver from a person that touched a gerbil at the store and got a rare vermin virus. That's our lititgious society - there are people who bog the judicial system down with these stupid cases and lawyers willing to take their cases.

Anonymous said...

"Are you telling me that physicians cannot decline to treat a non-emergency condition? That's ridiculous."

Is it? The government grants physicians an enormous number of privileges--most prominently, their guild monopoly that inflates their income and does little for consumers. Also, exclusive control over prescription drugs, special protective liability statutes, etc.

It's reasonable to expect something back for all those goodies--is an ethos of nondiscrimination so awful?

James said...

This isn't about a doctor's right to refuse treatment. Yes, doctors can decline to provide particular services (i.e. abortions, fertility treatments, withdrawl of feeding tube, or even birth control) based on their personal or religious beliefs. But that can't offer this kind of care to some but not others. It's just like if I own a two-flat and life downstairs. I can decline to rent out the upstairs. Nobody has a "right" to rent it from me. But I can't run an ad sayting the upstairs is available to rent only for white people.
In addition, the equal protection clause of California's constitution particularly singles out homesexuals as deserving of special consideration whenever there is an issue of discrimination. I know this because of the recent CA supreme court ruling overturning the ban on gay marriage.
You're right - it's not an issue of gay vs religion. But it is a civil rights issue and I doubt very much that the CA supreme court will uphold a physician's right to discriminate based on sexual orientation.

Anonymous said...

Who Does Not Want To Be A Doctor Today?

Lately in the media, others have said and expressed concern about the apparent shortage of primary care doctors, most notably. Typically, the main reason stated for this shortage is lack of pay of this particular specialty compared with others chosen by potential physicians.
Yet considering the additional attention of shortages of students in some medical schools, one may ask the question as to whether or not people want to be any type of doctor in the first place in the United States. About one third of their lives are spent achieving the requirements of this profession. Reasons for not choosing to enter this profession are several and valid.
There is the issue of long hours- with primary care in particular because of the apparent lack of doctors of this specialty. Such doctors may be over-worked without an expected pay reflecting the work they do. Furthermore, those doctors employed by health care systems are required to see a certain number of patients a day, and receive a monetary bonus if this expectation is exceeded. It seems that most doctors are members of such health care systems. So burnout certainly may occur. And I consider such a requirement mandated by health care systems demeaning to this profession, and leaves the doctor without the control that the doctor is entitled to due to their training and experience.
However, the recent increases in hospitalists, who are those doctors that are usually Internal Medicine doctors who specialize in patients presently under hospital care, and they have lessened the load for all doctor specialties for the work they do that the admitting doctors would have to do without their presence. This in itself makes a doctor possibly more effective and efficient in their practice outside of the medical institution.
All doctors, I presume, face a high degree of emotional and physical stress associated with their profession, as stated in the previous paragraph, for example. And this is not to mention the incredible stress associated with patient care in the first place, with some patient cases causing more stress than others
Doctors, due to the changes that have occurred recently in the U.S. health care system, not only have the issue of money to deal with, but also a loss of autonomy regarding patient care combined with loss of respect that may be due in large part to others dictating on how they practice medicine. Ironically and often, these others are not as qualified as the doctor in the first place. This is complicated by the perception that the public, with some who view doctors as having the easy life with their pay and profession, which does not seem to be the case presently.
There are also reasons of malpractice insurance, which is why doctors choose to join health care systems, it is believed, to pick up the tab for this necessity, along with eliminating the concerns of running a practice in a private manner, which historically has been the case, as their offices are owned by the health care system as well.
Up to 90 percent of malpractice cases against a doctor are baseless and without merit, so they are unsuccessful for the plaintiff, yet this still affects the rate the doctor has to pay for malpractice insurance. I understand that simply filing a lawsuit against a doctor, as frivolous as it may be, still increases the malpractice premium of that doctor. This is combined with the amount the doctor has to spend to defend themselves in such cases, which approaches about 100,000 dollars over the course of about 4 years for such cases. A tort reform in Texas in 2004 resulted in annual malpractice premiums reduced by about a third of what they were. Soon afterwards, claims against doctors remarkably dropped by about 50 percent. Some specialties of doctors pay more premiums for malpractice than others. For example, OB/GYN doctors have been known to pay around 300 thousand dollars a year for this insurance. Certain types of surgeons experience a similar high rate of malpractice premiums.
Also, about a third of the U.S. is insured by Medicare, which progressively has lowered what they will reimburse a doctor for regarding the care they give a patient they treat. This fact is recognized by other insurance companies who will eventually follow the recommendations of Medicare, usually, regarding the reimbursement issue, so it seems. This will lead to a doctor having to see even more patients in order to make it financially with their profession, as this has resulted in the overall income of a doctor experiencing a decline of about 10 percent over the last decade.
Furthermore, doctors normally have to pay off the debt acquired from attending medical school, which averages well over 100,000 dollars today after their training. About 20 years ago, that debt was only about a fifth of what it is today. Paying this debt off is typically about 2 thousand dollars a month that doctors on average have to pay in order to eliminate this debt in a timely fashion. There are some who believe that doctors in the U.S. are over-paid. This may be true, but they are not absent of financial concerns as with any other profession.
Most doctors do not recommend their profession to others for such reasons stated in this article, and perhaps others not mentioned. This is somewhat understandable, yet extremely unfortunate for the health of the public in the future, especially. There have been cases where doctors do in fact change careers, and get into vocational fields such as medical communications or corporate medical companies. Also, expert witnessing is another consideration for those who choose to leave their profession. Finally, other choices considered include consulting and research. The training of doctors fortunately leaves them with options not involved directly with the flaws of medical care, but this is bad for us as citizens, overall.
No all doctors are saints. Like others, some are greedy and corrupt, which complicates others in this profession. Personally, I believe that the intentions of most physicians are bonafide. Yet in time,,due to the nature of the current health care system, doctors frequently become cynical and apathetic, and this may be considered a significant concern to the well-being of those in need of restoration of their health.
Not long ago, the medical profession that has been discussed had honor and an element of nobility. Such traits are not as visible anymore, which saddens many intimate with the profession needed by many.
“In nothing do me more nearly approach the Gods then in giving health to men.”
--- Cicero
Dan Abshear

gay CME guy said...

OK, James, you've hit one of my hot buttons (and not in a good way). Civil rights/equal rights for LGBT people are NOT "special rights". Getting fired from one hospital because I'm gay (and yes it DID happen) is no different that someone getting fired because of their race,ethnicity, gender, age, etc. Only the other groups have legal grounds to stand on in this country if it happens to them. For GLTB people, it's select states, cities, and municipalities that currently protect their GLTB citizens, and then those laws are not transferable outside of said locales.
It's heterosexist myopia that continues to call civil and equal rights 'special' because it's attached to gays. I want the same basic freedoms, responsibilities, and privileges that are constitionally granted to opposite gendered couples. That's not 'special'. It's the same freaking rights.
Is there a bit of absurdity to the lawsuit? Maybe. I won't issue a position, as I don't know the details, and cannot at this time make an informed opinion. What I know is that after continuously getting bashed, doors slammed in your face, (or things thrown in your face), one reaches the point where the next thing that happens, the perpetrator of the action is going to pay for all of the previous infractors. As the line from the movie (Network?) --I think, "We're made as hell and we aren't going to take it anymore!" That doc was probably holding that lesbian's last straw.
My apologies, Dr. A. for posting a rant after a long absence.

gay CME guy said...

ps, to Mary. Point of clarification: Disagreeing with a gay person does not make one a homophobe. (btw, homosexual is not the preferred nomenclature as it has a negatvie clinical diagnostic connotation. Gay/Lesbian,Trangendered, bisexual or even Queer is acceptable in proper context.)
Being a bigotted hate mongering person to GLTB people makes one a homophobe. I'm not making personal judgements nor accusations, merely clarifying incorrect information.

Zoe Brain said...

I can understand someone only performing, say, abortion in the case of rape, and only in the first trimester, because of their religious beliefs. But not allowing it for gentiles, and refusing it for jews. I think you confuse the two situations.

A defence would be to show that the same treatment would be given to a straight, married woman in the same medical circumstances, and if so, the suit should fail. But if not, then an appropriate sanction should be imposed.

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