Edited by Sarah Mejia
According to a recent Wall Street Journal article, “Doctor in Repeat-Surgery Probe Gives Up License” by John Carreyrou and Tom McGinty, neurosurgeon, Vishal James Makker, has surrendered his medical license after an 18-month investigation. This investigation started in March of 2011 when the Wall Street Journal determined that multiple spinal-fusion surgeries performed on the same patients within a short period of time could be the surgeon’s fault. When the first surgery performed on a patient fails to fuse the vertebrae or when a disk adjacent to the fused vertebrae wears out because of added stress placed the disk, a spine surgeon will perform additional spinal fusions on that patient. Through compiling data from a Medicare hospital billing database, the Wall Street Journal was able to calculate a rate of additional fusions for each surgeon. The Journal uncovered that Dr. Vishal James Makker had a rate of 39% during the years 2008 and 2009, which is significantly higher than the average of less than 4%. Dr. Makker credited his high rates of multiple fusions to referrals of difficult cases and to failures of spinal implants from his old supplier.
This practice becomes a question of ethics, built on three questions. Firstly, is it okay to “engage in unprofessional conduct and in repeated negligence in the practice of medicine”? Secondly, is it okay to “potentially defraud the taxpayer-funded health program for the elderly and disabled”? Thirdly, is it okay for the government to keep information in Medicare databases about individual doctors strictly confidential? Most professionals in the field of ethics would consider these three questions to form the basis of a wicked problem. This problem generates additional unique, dynamic problems with each attempt to solve it, and has no known optimal solution.
Decision makers, such as Dr. Makker, would be more likely to avoid contributing to wicked problems in a harmful way if they understood the three basic philosophical approaches of ethical reasoning: consequentialism, deontology, and virtue ethics. All three approaches help to determine the ethicality of certain actions and guide good choices to be made. “Deontology holds that an ethical act depends upon the duty, rights, and justice involved”(Brooks, Dunn 21). Different from the other two approaches, deontology focuses on the obligations or duties motivating a decision or action. Dr. Makker wasn’t following his duty to his patients. His duty and responsibility as a surgeon is to serve as an effective advocate of each patient’s needs and disclose both the risks and benefits of each suggested treatment option. Dr. Makker was serving in self-interest rather than on behalf of the patients – that is, to garner the most high-paying work for himself as possible. “Rightness depends on the respect shown for duty, and the rights and fairness that those duties reflect” (Brooks, Dunn 174).
Dr. Makker’s rate was nearly ten times the national average for multiple spinal fusions on the same patient and he operated on some patients as many as seven times. For this reason, in April of 2011, the Oregon Medical Board forced Dr. James Makker to seek prior approval from a board-approved mentor before performing any more surgeries on both new and old patients.
The purpose of the mentor arrangement was to assess the appropriateness of each procedure he deemed necessary. In my opinion, a mentor program should be put in place for all surgeons throughout their entire career. Even surgeons who have practiced medicine for many years should still be held accountable for their actions through a mentor program. The damage Dr. Makker caused to all these patients is already done and starting the mentor program at this point does not change what already happened. A mentor program would help to ensure more cases like this do not arise in the future because all surgeons would need to report to another surgeon. Additionally, this mentor cannot be a business partner to prevent incentive for them to perform additional unnecessary surgeries to increase revenues for the firm. A continuous mentor program would allow for a system of checks and balances where one surgeon does not hold entire control in a patient’s treatment plan. The gains from such mentorship come from the mentoring effect, whereby one qualified individual can use their knowledge to adjust the incentives of the other. This monitoring may likely increase costs because now two surgeons need to look at each patient case. However, in the long run, it might save money for the entire medical system because it will decrease the number of unnecessary surgeries and repeat visits for the same illness.
Another possible solution would be to force patients to change doctors after two unsuccessful surgeries with one surgeon. This would prevent surgeons from continuing to perform unnecessary surgeries for purely revenue-enhancing reasons. Even if both of the surgeries were unsuccessful through no fault of the doctor, the patient would have an alternative plan moving forward.
In 2006, the Oregon Medical Board issued a “complaint and notice of proposed disciplinary action” against Dr. James Makker. His only consequence was a remedial training program and a billing course. If the board knew he was acting unethically, using both deontological and utilitarian measures (a surgical strategy of an unacceptable failure rate and also excessive patient costs) the board should have enforced stricter measures at this time. The board should not have waited until the Journal article came out two years later for them to act on Dr. Makker’s actions.
The second ethical dilemma question that arises from his practices deals with Medicare. This relates back to the issue of performing unnecessary surgeries with the taxpayer money. The Medicare data for 2008 and 2009 it shows that Dr. Makker performed spinal fusions on 61 Medicare patients. In 16 of those 61 cases, he performed a total of 24 additional fusions. One of the three basic philosophical approaches, consequentialism, requires that an ethical decision have good consequences. Performing unnecessary and potentially harmful surgeries and wasting taxpayer money in the process is not considered an ideal/good consequence. This issue runs even deeper regarding the government keeping Medicare databases private.
Here is an additional moral conflict that exists within the question about confidential Medicare records for medical practitioners. Let us consider another medical specialty to provide a second example to the Dr. Makker scenario. Neurosurgery is a lucrative business for surgeons and medical-device makers, which gives these professionals incentive to act unethically. The government and other doctors often know the controversial and potential list of unethical doctors; however, patients usually do not. Many people argue that patients should be able to receive this confidential information about their doctors before they are treated. On the other hand, people also believe that releasing this data would be misleading to medically uneducated patients as well as an invasion of the doctors’ privacy.
It is hard to determine what side holds more weight because the information that could help determine that isn’t available. In my opinion, I believe the public needs to know! The government should reveal what individual physicians earn from Medicare as well as other private information about individual doctors. Surgeons are affecting peoples’ lives every day and patients deserve to know important information about their surgeons before operations. Overall the public interest should come before the privacy of physicians. It is not right that surgeons are gaming Medicare to increase their revenue. When surgeons underperform and/or overcharge, this information is of public concern. On this point, I argue for a basic virtue: the interest of the public, when given primacy over the interests of any single individual, tends to lead to the satisfaction of interests of all individuals.
My position, however, doesn’t fully alleviate the wicked problem here. For, if surgeons become exposed, many good surgeons could be deterred from the profession, and adverse selection happens; only average and below-average surgeons willing to accept lower pay will dominate the medical landscape. Is it better to say one acted according to a social virtue (public good), even if it may cause outcomes of uncertain value (i.e. some better and some worse medical practitioners in the field in the long run, perhaps with a regression towards the mean?) All in all, these are just a few possible solutions to fix the moral problems that exist in the case of Dr. James Makker. According to the no “going” rule, one cannot predict whether each solution presented will ultimately prove better or worse. Only time will tell if these solutions presented will better the medical practice and community.
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Carreyrou, John, and Tom McGinty. “Doctor in Repeat-Surgery Probe Gives Up License.” The Wall Street Journal 12 Oct. 2012: A3. Web.
Carreyrou, John, and Tom McGinty. “Medicare Records Reveal Troubling Trail of Surgeries.” The Wall Street Journal. N.p., 29 Mar. 2011. Web. 14 Oct. 2012.
Carreyrou, John. “Board Forces Doctor to Seek Approval on Surgeries.” The Wall Street Journal. N.p., 15 Apr. 2011. Web. 14 Oct. 2012.
Brooks, Leonard J., and Paul Dunn. Business & Professional Ethics for Directors, Executives & Accountants. 6th ed. N.p.: South-Western Cengage Learning, n.d. Print.