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Medicine’s Monopoly: From Trust-Busting to Trust

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Reading Engelhardt

Abstract

In his revised Foundations of Bioethics, Engelhardt has provided a rich and far-reaching account, not just of the moral foundations of bioethics, but of their implications in a wide array of areas. From issues of birth, life, and death, to defining the concept of disease, to patients’ prerogatives in choosing and refusing their health care, to the shape and future of the nation’s health care system, Engelhardt offers a coherent picture of the ways in which particular controversies should be addressed. Even the most comprehensive account, however, cannot discuss every issue. This chapter takes up a significant challenge in the changing economics of health care, one whose resolution has already begun but whose future directions need careful consideration. The chapter is not a critique, but rather an extrapolation of the ways in which Engelhardt would probably regard this issue.

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Notes

  1. The middle ages were known for guild control over many occupations, but the widespread use of licensing to regulate professions is largely a feature of the twentieth-century. By the mid-1800s, an antiregulatory movement in the country had opened the medical profession essentially to anyone who chose to hang a shingle. Only after the turn of the century did licensing laws emerge. See D. B. Hogan, “The Effectiveness of Licensing: History, Evidence, and Recommendations,” Law and Human Behavior 7 (1983): 117–138, at 118–20. See also P. Starr, The Social Transformation of American Medicine (New York: Basic Books, 1982).

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  2. Howard Brody would call this power the physician’s “Aesculapian power”—the mastery of facts, theories, and skills that achieves healing results. Brody distinguishes this sort of power from the “charismatic power” that a physician may win based on personal qualities, and from the “social power” that arises from the special authority that society has given physicians to determine what will count as truth and knowledge in medicine. H. Brody, The Healer’s Power (New Haven: Yale University Press, 1992), 16–17. Brody’s account of social power points toward the legal and economic power discussed just below in this essay, but does not entirely capture the force that arises when society grants physicians exclusive legal permission to define, diagnose, and treat disease, or the economic authority to determine how much others will spend on their care.

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  3. Hogan, “The Effectiveness,” 129–130.

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  4. Cited in Medical Licensing Board of Indiana v. Stetina, 477 N. E. 2d 322 (Ind. App. 1985). In Tennessee: “Any person shall be regarded as practicing medicine who treats, professes to treat, operates on, or prescribes for any physical ailment or any physical injury to or deformity of another.” T.C.A. §63-6-204. The statute explicitly does not apply to “the administration of domestic or family remedies in cases of emergency” or to dentistry, military physicians, midwives, veterinary surgeons, osteopaths, chiropractors not giving or using medicine, opticians, optometrists, chiropodists, Christian Scientists, physician assistants, registered nurses, or licensed practical nurses rendering services “under the supervision, control and responsibility of a licensed physician.”

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  84. Morreim, “Diverse and Perverse Incentives.” Note that these changes would require courts to look quite differently on health care. In order to permit patients to contract for the level of care they want, courts would have to abandon their insistence that health plans are generally contracts of adhesion whose terms may be discarded any time they disadvantage the individual patient. If patients are to have the freedom to make contracts in the first place, those contracts must be enforced. Havighurst, Health Care Choices; P. E. Kalb, “Controlling Health Care Costs by Controlling Technology: A Private Contractual Approach,” Yale Law Journal 99 (1990): 1109–1126; E. H. Morreim, “Moral Justice and Legal Justice in Managed Care: The Ascent of Contributive Justice,” Journal of Law, Medicine & Ethics 23 (1995): 247–265. In like manner, increased access to alternate health care providers would require courts to place greater responsibility on these providers, and less on physicians. When nurses market their services directly to patients, physicians who no longer’ supervise’ others should not be held legally accountable for what the latter do. In Adams v. Krueger, 856 P. 2d 887 (Idaho App. 1991), a physician was held vicariously liable for the acts of a nurse practitioner employee, even though the nurse practitioner was not herself found liable. Such holdings may need reevaluation if allied health care providers gain greater independence, as proposed here.

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  85. Although this chapter argues that medicine’s monopoly should be mitigated, it is admittedly not clear just how far or how fast this should occur. One might argue, for instance, that it may be best to let physicians retain some control over prescription medications, if only for public health reasons. Instant public access to antibiotics, for instance, may contribute to the development of resistant organisms that pose a threat to everyone. On the other hand, perhaps physicians have contributed to the development of these resistant organisms as much or more than direct public availability might have. Physicians, wary of malpractice suits and sometimes concerned that they must please the demanding patient by writing a prescription, may have overprescribed common antibiotics over the years and thereby contributed to the rise of resistant organisms in conditions such as otitis media, for instance. See N. Joshi, D. Milfred, “The Use and Misuse of New Antibiotics,” Archives of Internal Medicine 155 (1995): 569–577. The question is empirical, and cannot be settled by reason alone. Suffice it here to conclude that, at the very least, we need to reexamine the notion of permitting one particular group of healers exclusive control over all access to such a broad array of powerful healing tools.

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Morreim, E.H. (1997). Medicine’s Monopoly: From Trust-Busting to Trust. In: Minogue, B.P., Palmer-Fernández, G., Reagan, J.E. (eds) Reading Engelhardt. Springer, Dordrecht. https://doi.org/10.1007/978-94-011-5530-4_4

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