Friday, November 13, 2009

COI: Reply from Lance Stell

Since I posted the commentary just downhill from this post, I received a quick response from my colleague Lance Stell. I am pleased to quote here the meat of his reply, toward the goal of promoting scholarly inquiry and discussion.


You acknowledge drawing inspiration for thinking analytically about COI from Erde. I draw mine from John Langbein, a trust law scholar.

Langbein writes, “The very term “conflict” is an epithet that prejudices our understanding that some overlaps of interest are either harmless or positively value enhancing for all affected interests.” [ “Questioning the Trust Law Duty of Loyalty: Sole Interest or Best Interest?” 114 Yale L J 929 (2005)].

If you’re not familiar with this article or Langbein, I highly recommend both.

In my view, Langbein is correct. COI, as used in pharmascold-commentary on the physicians’ relationships with industry, is an epithet.

How so? “Harmless” or “value-enhancing conflicts”, if not oxymoronic for pharmascolds (Tom Stossel’s term), languish as empty ethical categories. If populated at all, it’s token “tip of the hat.”

Traditionally, physicians’ relationships with a patient have involved that of a diagnostician, a therapist and a source of billing. The physician is permitted to offer treatment for conditions he diagnoses and to bill or somehow be reimbursed for doing these. This manifests acceptance of Plato’s opportunity-cost axiom – “no one takes on the troubles of strangers, to straighten them out, but everyone expects pay for that.”

The relationships of diagnostician, therapist and biller for services overlap, to use Langbein’s term. The associated incentives involved are very complex. Some incentives incline to advantage taking (medicalization, sometimes to the point of quackery, over-utilization in FFS or under-utilization in capitated settings, over-billing/up-coding, and the encouragement of valetudinarianism with a resulting loss of patient autonomy).

Reputational incentives and disciplinary incentives (because of physicians’ relationships w/ colleagues, licensing boards, pharmacy benefits managers, credentials committees, the plaintiff’s bar, third-party insurers, and the general public) work in off-setting directions.

On the whole, we all seem quite confident that allowing physicians to offer treatment for what they diagnose encourages dutifulness (w/ allowances for referral, but w/ scorn for fee-splitting, a practice common in Japan). Yet Westerners are vexed over the third relationship, that of reimbursement. Some commentators quote GB Shaw as holy scripture. And if so, buy his socialist biases, whether self-consciously or not. GB Shaw is not lionized among intellectuals in Japan, where specialists pay up to $2500 for a referral.

More reason to suppose that COI is an epithet.
To say of a professional, “Over the past year, Dr. S has substantially increased her conflicts,” implies presumptively (& especially for pharmascolds) that she now has a professionalism-based reason to “eliminate, reduce, minimize and/or to disclose” all of them.

There is additionally the blind spot in the jihad against physicians’ relationships with industry that financial relationships are more ethically toxic than non-financial sources of bias. Levitsky is one of the few commentators to acknowledge that non-financial relationships may be more toxic ethically than financial ones.

In my view, the COI-label is not only an “epithet” (Langbein’s characterization) it has all the properties characteristic of a “framing bias” (a point I made in my OPC supporting Tom Huddle’s article in AJOB). I’ve agreed to write an article further elaborating this claim.

Best regards, Lance

Lance K Stell, PhD, FACFE
Thatcher Professor of Philosophy
Director, Medical Humanities Program
Davidson College
PO Box 7135
Davidson, NC 28036
Clinical Professor of Medicine
UNC-Chapel Hill School of Medicine
Medical Ethicist
Department of Internal Medicine
Carolinas Medical Center
PO Box 32861
Charlotte, NC 28232

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