A. The Private Dimension of Biased Medical Judgments

Although the physician-patient relationship may be understood as a personal and confidential relationship, it is nonetheless a relationship that exists within and is (at least theoretically) subject to well-developed ethical and legal norms. A fundamental premise of medical ethics is that a physician is obligated to act in her patient's best interests and to base medical decisions solely on advancing those interests. It is commonly stated that physicians should not allow outside influences to affect their decisions about what is best for their patients. It might also be said that physicians should not allow their own internal biases to affect decisions about their patients' treatment. Indeed, the American Medical Association (AMA) has addressed evidence of racial and gender bias in clinical decision making by including in its code of medical ethics express condemnations of such influences. Thus, organized medicine's official view is that at least some forms of bias are inconsistent with a physician's ethical obligations.

The wrongness of biased medical decisions can also be seen from a slightly different perspective. Not only may bias interfere with a physician's obligation to advance a patient's best medical interests, it also leads to a physician being disloyal to a patient in a fundamental sense. The physician-patient relationship is often characterized as a relationship of trust that is fiduciary in nature; in this light, the physician serves as a “trustee for the patient's medical welfare.” This obligation of loyalty and fidelity requires the physician to elevate the patient's well-being over any self-interest that the physician may have in a situation. While medical ethics recognizes that this obligation of loyalty is not absolute in all situations, *240 the physician who permits personal biases to influence his medical judgment is not maintaining the focus on patient welfare that professional fidelity requires.

Aside from the lofty aspirations expressed in medical ethics codes, the more mundane law of medical malpractice also regulates the relationship between physician and patient, requiring that the physician exercise due care in advising and treating patients. The standard of care in medical malpractice actions is typically articulated as a professional and customary standard of care. Thus, a physician must treat his patients as physicians customarily do under the circumstances. Consequently, if personal bias leads a physician to treat a patient in a manner that falls below the professional standard of care and the patient suffers injury as a result, the physician may be liable. In this scenario, however, the reason for the substandard care (here, bias) is irrelevant; the focus is simply on the quality of care delivered.

The nature of a physician's ethical and legal obligations to her patients has received renewed attention over the past decade as the growth of managed care delivery systems has generated perplexing questions about the conflicts of interest a physician may face in treating managed care enrollees. Managed care plans often incorporate financial incentives for the physician to make cost-conscious diagnostic and treatment choices. Put more bluntly, the physician is paid more for providing less expensive care. Such methods of reimbursement may create a conflict between the patient's best medical interests and the physician's financial self-interest.

A debate has taken root in the medical and legal literature about how to properly view these conflicts of interest: Should they be seen as violating the ethical precepts requiring a doctor to act loyally and solely in the patient's best interests? Or does our understanding of the nature of the physician-patient relationship require revision in light of changes in the world of health care financing and delivery? While some commentators argue *241 that the conflicts of interest posed by managed care's financial incentives create an intolerable incentive for the physician to profit at the patient's expense, others contend that disclosure of the conflict to the patient can adequately ameliorate any risks posed by the conflict. Yet others argue for a reconceived understanding of the physician-patient relationship, an understanding that accepts some carefully bounded financial incentives as ethically legitimate.

Are these questions, regarding the survival of the ethical ideal of a physician's single-minded focus on patient well-being in the face of an assault by managed care payment methodologies analogous to questions about the tolerability of physician bias based on patients' non-medical characteristics? A shared inquiry, after all, is whether a factor other than the patient's welfare (whether that factor is the physician's own financial welfare or the physician's personal biases) can legitimately influence medical treatment decisions. Perhaps, one might argue, if the individual-patient-centered ideal of professionalism is crumbling in the face of managed care's focus on cost containment and population health, then that ideal may no longer be sufficiently robust to demand the elimination of personal biases from physician decision making.

The resemblance between the two situations, however, quickly dissolves upon consideration. The debate regarding physicians' professional obligations in a changing health care financing and delivery system seeks a proper balance between two goods. Doctors, lawyers, ethicists and policymakers all seek to determine when the good of single-minded patient-centeredness should yield somewhat to the conflicting good of containing health care expenditures. It is critical to note that in this debate, commentators deem that containing health care expenditures on an individual patient is a “good” when it permits more cost-effective and broader deployment of health care resources--not when it simply creates fatter profits for managed care investors. In other words, the debate does not diminish the weight attached to professional values of patient-centeredness and loyalty; those values are simply weighed against other identifiable “goods.”

By contrast, identifying any “good” that flows from the unimpeded operation of physician bias is difficult. The most that can be said on behalf *242 of the physicians' personal biases is that human nature allows for such biases to exist and operate. The mere commonness of biases in the broader society, however, hardly qualifies the operation of physician biases as a “good” that could outweigh the ideals of professional fidelity and patient-centeredness. Indeed, it is because human nature often leads individuals to stray from the desired path, that professionals like doctors adopt codes of ethics. Thus, in contrast to the benefits that cost containment may promise, the operation of physician bias offers no “good” capable of outweighing a physician's obligation to act solely in the interests of his patients. This obligation, which inheres in the private relationship between physician and patient, provides one basis for rejecting biased medical judgments.