IN CASE YOU MISSED IT

It may be time to treat doctors' fees differently

This story was first published in The Sunday Times on July 18, 2013

In July 2012, the Singapore Medical Council (SMC) found Dr Susan Lim guilty of professional misconduct in billing $24 million for services rendered to a royal personage of the Brunei sultanate.

The surgeon appealed to Singapore's highest court but failed. While doctors' fees are not regulated by statute here, doctors have an ethical obligation to not overcharge, the court ruled.

This ruling has elicited many readers' letters to the Forum pages: the concept of an ethical limit to doctors' fees is disconcerting to many in a system where public policy marketises health care remorselessly. Singaporeans are familiar with MediShield's coverage for hospitalisation and catastrophic conditions, which come with high deductibles the patient must pay before claims are allowed, which also come with strict limits. Then there are patient co-payments, physician ads, expensive brands versus cheaper generics and so on.

These things remind us whenever we need medical attention that, unhappily, we aren't just patients but consumers also.

And physicians can't remain unsullied by this ever present patient-consumer dualism.

Yet the notion of a doctor as member of a special profession that is expected to perform a service for society's good and not overcharge for it has a long historical tradition in the West.

Though the court failed to acknowledge this, it is, in the final analysis, the reason why there is an ethical limit to physician fees. Singapore inherited that reason, which is both historical and cultural, in adopting scientific medicine from the West - and English common law as well. Owing to the vulnerability and dependence of the patient, who knows much less about his own condition than his doctor, medical care has historically been considered in law in the West to be more than business.

That is, the polities that people organised themselves into would make laws to protect themselves from the physician overcharging by construing medical care as something more than mere commerce.

The quid pro quo for those who chose the vocation of attending to human illness and suffering was an elevated social status. In return, from Roman times and well into the 18th century, doctors in England weren't permitted to collect fees. Instead, they were to receive honoraria only. This has been noted by Dr Reinhard Zimmermann of the Max Planck Institute for Comparative and International Private Law in Hamburg.

In The Law of Obligations: Roman Foundations Of The Civilian Tradition (1996), his magisterial survey of how the Roman law of obligations became modern law in England and Germany, Dr Zimmermann noted that an honorarium is paid by parties who, by law, do not have to pay for certain services that, by tradition, are free, like guest speakers today.

Thus, under the law at the time, patients had no legal liability to pay fees to physicians. This arrangement worked because the wealthy paid (or were expected to pay) much larger honoraria to doctors than the less well off. As a result, doctors could then treat the poor for little or even nothing, if needed.

From Roman times this was indeed so and, by mediaeval times, the practice had become recognised as common law. This was largely out of fear that physicians would overcharge, according to the seminal Medical Ethics: A Code Of Institutes And Precepts (1803), by Dr Thomas Percival, an English physician of Manchester. Dr Percival noted that, in the 18th century, English doctors could not sue to collect fees, a rule adopted from Roman law too.

Still, doctors could receive payment in other forms, by charging for drugs, say. Some doctors also refused to treat until a sufficient honorarium was pre-paid.

However, in 1858, England passed a statute that permitted doctors to sue for fees, thus overturning the common law that physicians may not charge or collect.

This momentous decision changed the nature of medical care, embedding the doctor-patient relationship in markets under the law of contracts. From the 19th century, then, expectations of that relationship remaining a purely fiduciary one became imprisoned inside a contractual shell.

Still, because of the historical view of illness as vulnerability for which doctors are pledged to offer succour selflessly, the law continues to regard the sick as patients first and foremost, and only then as consumers, a distant second.

Because the law codifies social norms and is slow to change, its tendency is to conserve the status quo. This may explain why we find the law, or the court in this case, asserting that the doctor- patient relationship transcends profit-making "by first principles".

In essence, the Appeals Court appears to have defined medicine's ethical obligation as such: Doctors can't overcharge because to do so would overturn what society has collectively always wanted. And it is society that permits someone to enter training to become a doctor with the understanding that society will accord her respect, honour and deference in return for selfless devotion to her patients. A doctor could expect to earn a comfortable living but not amass great wealth.

According to the late sociologist Eliot Freidson whose life work focused on doctors, the distinguishing mark of a profession was that its members were acculturated into a transcendent value. In the case of medicine, this was that clinicians were to pursue only the patient's best interests.

In Professionalism, The Third Logic (2001), probably the first analysis of professionalism as a method of organising work, Dr Freidson noted that a clinician was thus only to be concerned with and protective of the individual.

Another professional, the lawyer, is acculturated into a different transcendent value: that of public or social justice. Whether an advocate, prosecutor or judge, the law professional acts as an officer of the court to uphold truth for the sake of justice. This being the case, the law profession is concerned with and protective of society as a whole, not individuals.

But these days, the terms of engagement for doctors have been eroded by practices and policies that marketise the physician-patient relationship.

How can society tilt the relationship back in the direction of its collective interest?

Since that relationship has always been defined by law to be more than a market transaction, it falls to society to resort to law once again to rein in the rising remunerative aspirations of physicians which threaten to further erode that relationship.

Accordingly, in pursuing its transcendent value of protecting society, the Appeals Court continued in the tradition of defining doctors as being ethically obliged to not overcharge in society's interest: it is so because it was always so.

But perhaps this no longer suffices. If so, it may be time for doctor fees to be explicitly limited by statute and rules, in the same way lawyers' fees are in Singapore.

andyho@sph.com.sg

This story was first published in The Sunday Times on July 18, 2013

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