 I'm so delighted to welcome you to the 23rd Annual Dorothy J. McClain Fellows Conference. This conference celebrates and remembers Dorothy McClain, who helped us organize and establish the McClain Center and always remain deeply committed to its work. This is McClain believed throughout her life that education was the best way to improve the world and throughout her life supported many educational initiatives and institutions from her alma mater at Colorado College to schools where her husband had gone Yale and her children had gone Dartmouth and supported the McClain Center. We particularly want to recognize and acknowledge Marianne and Barry McClain who have been such grand supporters of the Center and who are the co-chairs of our Center Advisory Board. Marianne and Barry, thank you. It's their support that has allowed us to continue to have conferences like this but also to help the McClain Center work to improve patient care by focusing on the practical clinical ethics problems that confront all of us in taking care of patients. Today's program as you know is centered on the topic of medical professionalism. It was Francis Peabody in his 1927 essay who wrote that medicine is not a trade to be learned but a profession to be entered. Sentiments like that had been around medicine throughout the 19th century and even in the late 18th century but in recent decades there has been a renewed focus in medical education on professionalism. Professionalism being seen as a way to improve patient care, to strengthen the doctor-patient relationship, to reduce conflicts of interest, to improve physician self-regulation and ultimately to strengthen the alliance between medicine and patients and society. This afternoon's program promises to explore those kinds of matters as we go forward. Chris Castle will be our second speaker. Chris is a leading expert in internal medicine, geriatrics medicine and medical ethics and is president and CEO of the American Board of Internal Medicine and their foundation. Chris is the past president of the American Federation for Aging Research and of the American College of Physicians and has served as dean of the School of Medicine and vice president at Oregon Health Sciences University. Chris is an active scholar and lecturer, the author or co-author of 14 books and many many journal articles and is I must add a graduate of the University of Chicago College. Professionalism is not a nostalgic old-fashioned idea nor is it irrelevant but that it in fact is redefining itself and that we and people in the field of bioethics and those of us who are thinking seriously about the future of our healthcare system in the United States need to be part of that redefinition. The triple aim which Don Burwick has brought to the CMS and to the healthcare reform effort is not only part of the challenge but is part of the answer. So this is the big challenge for us. Can we have affordable healthcare where everybody has access and we still have good quality? Can you actually have all three of those and I would say the answer is not without physician engagement and leadership but I hope to show you some thinking about actually a hopeful way in which the profession can be part of the solution. So I don't have to show you this you've seen millions of different versions of this but just this just compares the rise in healthcare costs to that of every other developed country and ought to be telling us that there's got to be a better way to do this. So in the United States right now this really huge experiment is going on which is the Center for Medicare and Medicaid Innovation. This major investment in healthcare technology and healthcare redesign which I think we should not underestimate the significance of because with our support that is to say us in the profession and that includes the whole world of providers hospitals and physicians and other health professionals actually might be able to come to some of these changes in how we approach healthcare. So there's four things I want to point out. One is a disruptive realignment of economic incentives absolutely essential. So the experiments are primary care medical homes accountable care organizations other kinds of innovations with people who are the most costly of the beneficiaries both for Medicare and Medicaid but it's also the case that we don't have to invent this from scratch. There are healthcare delivery systems around the country that have the lowest cost and the highest quality and do relate to all three of those principles so we have examples we can look to. Secondly and importantly a reduction in information asymmetry. There's now an open government.gov website that has some healthcare data and just as of this year the health cost and pricing data. So the idea is that people should know what they're being charged for things. I don't know if you've ever tried before you're having an elected procedure to find out how much it's going to cost impossible and just having those prices of things be more visible. Many economists and others believe will really help to level the playing field and make us question the value of some of these expensive things that are in fact waste or could be considered that. Third in improved information at the point of care. So evidence about comparative effectiveness both for physicians and for patients. Do I really need this? Isn't there a less costly way to get a better result? Decision support. Doctors can't carry all this in their minds so they need electronic real time evidence based decision supports which are out there now. There's a growing entrepreneurial area in the cloud if you will of these kinds of decision supports and finally personal health records that not only do we need electronic records for the doctor's office in hospital but we need the patient to be able to have access to that information in real time themselves. And then of course the dream of the pervasive use of IT that we put lots of money both from the previous stimulus bill and from the ACA into the adoption of what every other advanced industry already has been doing for a long time which is electronic seamless interoperable information so that whenever you're taking care of a patient you have the relevant information about that patient in front of you. So in that context where are the doctors? That's what I want to talk to you about here. And I want to do so by referring back to Julian LeGrand who is a British social economist who was a leader in Britain just after World War II when the National Health Service was being founded and after that time. I had the pleasure in the paper that's cited here of collaborating with a young physician Sachin Jane who is a resident at the Brigham and Women's Hospital who took a year off to be special assistant to David Blumenthal at the Office of National Coordinator implementing the HIT, the beginning of the HIT efforts of the federal government and then he was stolen by Don Burwick to be Don Burwick's special assistant for another almost a year starting up the efforts at ACA and Medicare and he's now gone back to the Brigham to finish this residency because he told me he wanted to be board certified internist so I said well that's a good idea but he's a brilliant young guy and he and I were talking about this issue of the changing role of physicians and looked at this paper by Julian LeGrand where he's describing the attitude of the social policymaker towards the public so when he's thinking about it it's mostly about consumers that when the National Health Service and the whole British welfare state came in they generally thought of the citizens of the UK as good people trying to live their lives do the right thing and they just needed a government handout occasionally to help them along and then as the years and decades went by and budget issues came up there started to be more of a sense that they were gaming the system and trying to do things to get more money that they really didn't deserve that's the nave in the system and all of the social policy makers were trying to figure out how can we put incentives in place that will get them to do the right thing and not the wrong thing that is to say pawns so that in his view the British public sort of just waited for the next government initiative to figure out well what does the government want us to do now and then they figure out how to respond to that so what I want to do is try to apply this concept to 21st century physicians in the United States and to ask this question how do we use incentives without undermining socially positive motivations so LeGrand in his article quotes these two people you know it's more than a century apart but one is David Hume who has a fundamentally navish view of human nature and thinks that any system of government basically has to counteract avarice and ambition because people are not interested in other people's well-being they're only interested in their own well-being he counters this with Richard Titmuss who's someone who bioethicists have studied about the gift relationship and Titmuss argues that you shouldn't in his book about blood donation you shouldn't pay people to donate blood because then you'll undermine their altruistic motivations in doing so and then it'll just become a financial transaction rather than a true gift so you can say what you think my guess is that for most of us there's a range of human behavior and a range of motivations and we need to be careful about the Titmuss worry when we think about incentives for doctors but we also need to be realistic that doctors are working with the incentives in front of them right now and that's what's gotten us in part where we are so the question then is another triangle what motivates physicians we have on the one hand what I think of as an intrinsic motivation and actually there's a lot of pretty good survey data about both doctors and about what the public expects and thinks of doctors that suggests that there is an intrinsic professionalism there are patient-centered values it's not all just a market transaction but the fact of the matter is that there are these intrinsic motivations and you get what you pay for so if you have a system that pays for more volume you're going to get more volume and therefore the government or the payers put in place regulation the third part of this stool because you want to control those incentives being sort of overblown so let's ask ourselves this same question is are the doctors Knights are they basically good people and we need to just give them the space to do the right thing on behalf of the patients are they naves that really just in it to make money and we need to put a lot of regulations in place to make sure that they don't harm patients and that they don't raid the public good in doing so or are they pawns if we just get the incentives just right they'll do the right thing and I would argue that at the center of this question at least for me and I'm particularly in a lot of the places I interact with policymakers these days it's all about pay for performance there is this idea that we just need to change the payment strategies and pay doctors for doing the right thing and then we'll get a better result and so a great deal of thought has gone into that a great deal of money has gone into that as well so this is really a turning point for us in the United States if we think we can claim to be nice and I think if you what you just heard from Arthur is that at least not all of us can make that claim and certainly not all the organizations that represent us but if we wanted to claim that it would be the old world just trust us we're the doctors we know what's best we always do what's best for the patient and of course we take social responsibility into account if we're naves then we put self-interest first then we need more even more regulation even more liability risk and we have to make sure that patients rights are really enforced because they can't trust the doctors and if they're pawns then it's just tell us what to do if you're gonna pay us to do this set of tests we'll do this set of tests give us some algorithms and we'll do what the algorithm says very limited freedom of decisions some of the things that I think a lot of people are worried about with comparative effectiveness but if they don't they're not seeing comparative effectiveness as a tool rather than as a limit so I'm not going to go through this slide or the next one in great detail but I put this up here I've been playing around with this idea lately about the complexity of the role of being a physician and I want to sort of point out that these notions of complex and complicated Hollywood know this are part of how we think about medical education that there is a complicated part of medical of medicine which is the technical part all of the different things that you need to understand about human physiology and human pathology and and the treatment of illness and then there's the complex part which is about dealing with human beings and subtleties and nuances that are part of human reaction dealing with uncertainty dealing with situations where you don't know actually what's likely to happen or where there could be multiple influences on some kind of impact and then you add to that all of these different roles that we actually expect doctors to play in our society relating to the patient relating to companies that are selling things that they need relating to insurance companies relating to institutions like hospitals relating to consumers in the marketplace relating to society and particularly in this issue of stewardship well so it gets more complicated this is this is what it looks like now with healthcare reform in place okay so we have all of the efforts to try to insert various different programs some of them opportunities for huge creativity some of them incentives like pay for performance some of them ways of getting more information like comparative effectiveness and other kinds of value purchasing information to the physician but it's both complicated and complex this is my office assistant does this I don't do this myself so I can't take credit for it but it just gives you a sense that when we're trying to create incentives for doctors and try to create payment that actually gets results for consumers this is not a linear process or relationship and it's going to be very hard as we think about looking at the results of these innovations to make sure that we're producing quality of care for the patients one way to think about it is let me just turn to this it's complexity theory this is a cartoon about complexity theory the cats figuring out how to get this ball off the table right and to my mind we lit what I want to show you now is that doctors are surrounded and increasingly surrounded by people measuring them people evaluating them a whole world of measures that are going to tell us are we getting quality of care or not are we getting efficiency of care or not and if you think of health care as being what's inside that complex little box diagram and then ask yourself how many of these outcomes are measurable and are we measuring the right thing and the measures are for all these kinds of purposes for differential payment for meaningful use of health information technology for public reporting report cards about doctors some from the government some from private sector to feedback to the physician so that they can improve a very important role of measurement for licensure and increasingly for maintenance of certification for specialty certification and this is just to make your eyes glaze over because it's what happens to me when I go to these meetings and we slog through hundreds of these measures to say now which ones really are the measures that are going to tell us what are the good quality health care so these are just a few of the 240 measures that are currently being used in the Medicare pay for performance scheme called physician quality reporting and they're very linear each one of them is a very little like did you prescribe this kind of thing for asthma or did the hemoglobin A1C for the diabetic reach this level so each one of this very specific and not comprehensive and not looking at the whole picture and then you have all these people entering the field the commercial world is blooming with people who want to put out doctor report cards because consumers in this world are getting paying more out of pocket and getting more and more nervous about making sure they know what they get and each one of these entities has advantages and disadvantages different ways of using measures none of them except with the possible exception of consumer reports is very evidence based but they are all very successful and people are looking for ways to evaluate what they're getting when they go to a physician what are the results of all of this effort of public reporting of measures about doctors well I want to first and I think I see Troy Brennan sitting back there so I can give Troy some credit here we know that the medical malpractice system which has been our kind of time honored way of sort of getting rid of quote the bad doctors and compensating physicians patients who've been harmed Troy's work and that of people since that have time have shown that it not only does it not compensate adequately people have been harmed but it really doesn't lead to overall better care and we see that all our national quality of care scores for pay for performance we actually have seen progress in the hospital arena and I want to I want you to remember that because I think that's really important that when you look at a whole institution and you put some performance goals out there and you attach money to it you can see real progress and that's happened with the Medicare pay for performance efforts in the hospital but so far the trying to do the same thing for doctors has not shown nearly the same kind of dramatic results and in fact the metrics that have shown results are just those where the payment is attached and then like in the VA other things actually get worse so that's the pawn thing that I think we want to avoid that word only just teaching to the test here so what about just putting the information out there letting the public decide well so far the public hasn't shown great interest in this tremendously granular reporting of the doctor did good on this and not so good on that they just want to know who's a good doctor and how can I find somebody I can trust so there seems to be a need to really figure out how this information is used the one place that it does seem to actually produce quality is when you share it with other doctors within a system of care where people work together physicians are very competitive people there when there's peer pressure and you're looking at how each other are doing then you talk to each other about well how can we actually get our scores better with asthma or how can we actually make the patient satisfaction improve that's the place internally where you've seen at least to date most demonstrable results well what about standards from the profession can we really expect self regulation the profession ourselves to contribute to this problem with quality and with cost the state licensing boards as you know are mandatory legally requirement their government run although they have consumer strong consumer prep presence on them but they're very much minimum standards and while they're being upgraded and there's going to be a higher level for state licensing going forward called maintenance of licensure you really have to look to the specialty certification boards to get more specialty specific higher standards that include performance standards now the the 24 member boards of the ABMS include these specialties internal medicine the one that I'm have the privilege of leading is the largest of these by far but all of them have agreed to this combination of assessing knowledge and whether you're up to date and also assessing performance and that's the reason why we're interacting with all of these other entities that are trying to measure doctor performance because we're trying to reduce the burden of unnecessary measures and trying to bring all of this effort together in a way that can be independent and available to the public but so as many of you know who have maybe done maintenance of certification or are afraid to do it it is a lot of work you have to actually take an exam often more than one if you have more than one specialty and evaluate the quality of care in your practice submit the data have a result improve it why do they do this it's not required it's not any legal requirement it's not part of a pay for performance scheme of any kind we've surveyed the tens of thousands of physicians who come through the ABIM every year doing this and the fascinating thing to me is that most of them say the reason they do it is because of professional image which I think is really interesting it's a kind of a pride in the profession it's not because they get paid more to do it it's not because their job depends on it and the other answers they gave is update knowledge patient quality of care and finally lower down on the scale required for employment now that may be changing we're actually seeing more and more concern from our diplomates when they don't pass the exam that they're going to lose their job so I'm hearing that hospitals and health plans and medical groups increasingly are requiring this I think because of this concern about quality and because of looking at some something that might be publicly recognizable as a marker of quality so we feel that we have of responsibility to to be part of the answer to this solution but I want to highlight that just because I think board certification in a way is a lever that has grown up within the profession that we ought to be able to take advantage of as a kind of a self-motivating factor these commitments to professional competence improving quality and access just distribution of finite resources as well as scientific knowledge are all very much a modern interpretation of that responsibility to the patient and you have to then ask yourself so what motivates doctors and how can some of these positive levers be used to really get to the public good and this I'm going to go over very quickly but I want to recommend to you a report that just came out in March of this year called pay for performance in health care methods and approaches by the RTI press it was a study that was contracted for and done by scientists at RTI looking at this question of what works in pay for performance what doesn't work and how could it be how can the good part be advanced so just very quickly in economics that the economics of pay for performance is actually not good and if it just take it at face value the there's the principal agent problem that the patient is never really going to have enough information to sort of shop around for out the perfect kind of treatment for this condition or that condition that isn't why they come to medical care in the first place that most pay for performance incentives are too small to really counter the really strong drivers of fee for service or fear of malpractice and that individual rewarding individual doctors disincent cooperation collaboration which is exactly the care coordination that Arthur told us we need and at least today as I told you the literature is not very compelling on results now I have sociology up here with Paul star in the audience I'm hesitant to put this forward but the RTI experts have said that there is in fact an internalization of professional behavior in medical education and that's why an institution like this one and is so important and and like the other medical schools around the country that we could change how we talk about the responsibility of the profession from the sort of hierarchy meritocracy and intense personal responsibility to a sense of a more of a collective responsibility and be able to change some of these things the clinical realities is that these linear measures of care are not usually what the normal process of care is it's much more uncertain much more complex and you need to act in the face of that uncertainty and then there's also tremendous external pressure for deprofessionalization with all of this kind of sense that you're in a small business you need to be a successful business person you need to document what you do you need to get paid for it and it's up to the patient to be the consumer caveat emptor and to my mind if that's where a marketplace health care system takes us then I think we would have lost something precious and serious now Eric Campbell and David Blumenthal and Paul Cleary at Mass General did this study using the charter as a template in which they asked people do you believe in all these values of the charter the doctor said oh yes we believe they saluted 90% and yet when you asked them about their actual behavior there were great gaps and shortfalls and what they actually did they were not disclosing medical errors they weren't reporting incompetent colleagues they admitted to ordering all kinds of unnecessary exams they refused to see uninsured and poor patients and they also didn't maintain their certification which was a question we wanted to ask them so I think what you're seeing here is the pressures externally really are difficult and the profession is struggling in the psychology part of the RTI report they point out that we really ought to be working more with intrinsic motivators than with extrinsic motivators which is that doctors really like to accomplish difficult task they like to learn new skills they actually like collegial relationships with peers and when you put them in a comprehensive group where everybody's held accountable for the goals then in fact you tend to get a much better result so in organization theory that's what happens that you have a management culture you don't want the doctors to all become managers and thinking about this sort of bottom line all the time but you do want to take advantage of the physician values and getting them to work together in this culture where you bring responsibility for individuals together with a responsibility for a defined population that's exactly what the CMI innovations are doing so quality improvement requires leadership a culture of learning working in teams information technology and patient engagement those are all things that are becoming more a part of medical education these days and medical training and I would argue that our institutions of medical learning need to themselves become exemplars in these areas so that the people who study in there in those settings would be able to resist this external environment where it is headed in the wrong direction and that may be pay for performance in the right configuration could in fact enhance professionalism rather than damaging professionalism the key is to getting that kind of result our physician trust in the measures and standards they have to believe that these measures actually mean something and that they reflect something that's of value to the patient and they have to change in many cases thinking about how they work in an organizational culture so just in conclusion I want to point out this is from a New York Times article a couple of years ago in the midst of the whole debate about health care reform that the systems that have demonstrably produced good quality of care with defined populations at lower cost are all systems where the doctors are on salary they're not paid fee for service where there is a culture of sharing comparative data about their own performance with each other internally within the institution and where they have a rich data environment where they really know what they're doing and they're able then to understand if patients are not getting quality of care and do something about it so I think professionalism is not only not irrelevant it's essential but to my mind it's a new kind of professionalism it's a professionalism that leaves behind these old ideas of what the nostalgic profession was and becomes committed to collaboration to evidence to measurement and transparency so that it's not at odds with accountability but in fact becomes accountability so just so I can get some sense that this is a challenge for many of us and it's going to take change it's easy the first step is to entirely change who you are so that is true for many of our institutions of medicine there have been so traditionally siloed and independent and personal accountability is everything but this is what modern leaders in health care are challenged with and this is what I think some of the new arrangements for care are going to demand of professionalism so the answer to the question I started with are all three possible yes with physician engagement and leadership thank you the second panel will include the first week will be dr. Troy Brennan will be followed by professor Paul star and then professor Richard Epstein will speak third let me let me introduce the three speakers so that we can move ahead through the three talks Troy Brennan currently is the executive vice president and chief medical officer for CVS care mark the nation's largest pharmacy health care company and this role dr. Brennan has responsibility for the company's minute clinic according to health care clinical and medical affairs and to help develop health care strategy previously dr. Brennan served as the chief medical officer for etna the nation's third largest health insurer and before etna dr. Brennan was president and CEO of Brigham and women's physician organization in Boston and served also for that hospital as director of quality measurement and improvement in his academic work dr. Brennan served as professor of medicine at the Harvard Medical School and his professor of law and public health at the Harvard School of Public Health dr. Brennan received his MD and MPH from the Yale Medical School a JD from Yale a master's degree from Oxford where he was a Rhodes Scholar today dr. Brennan will speak on the topic professionalism theory to action the case of conflict of interest in prescription medications he'll be followed by Paul star the professor of sociology and public affairs at Princeton University and the co-founder and the co-editor of the journal the American prospect at Princeton professor star holds the Stuart chair in communications and public affairs at the Woodrow Wilson School he received the 1984 Pulitzer Prize for nonfiction and the bankrupt prize in American history for his well-known book the social transformation of American medicine professor star wrote a short book in 1992 entitled the logic of health care reform laying out the case for a system of universal health insurance and managed competition and during 1993 he served as a senior advisor at the White House in the development and formulation of president Clinton's health plan professor stars most recent book published just a few weeks ago is entitled remedy and reaction to peculiar American struggle over health care reform and it traces health care reform in this country from its beginning to its current uncertain prospects professor stars topic will be professionalism as a public resource the third speaker in today's panel is Richard Epstein who's a Lawrence Tisch professor of law at New York University and the Peter and Kirsten Bedford senior fellow at the Hoover institution here at the University we continue to recognize Richard as the James Parker Hall distinguished service professor emeritus of law and as a senior lecturer at the University of Chicago Law School Richard remains among the most productive legal scholars in the country his many books are well known to to many of you takings in the 1885 forbidden grounds the case against employment discrimination laws 1992 mortal peril our inalienable inalienable rights to health care published in 1997 what Richard oh question mark quite a question mark and and on and on in keeping in keeping I love this part of Richard in keeping with his reputation as a polymath Richard has taught courses in the law school in the following disciplines civil procedure communications constitutional law contracts corporations criminal law health law legal history labor law Roman law property real estate development jurisprudence torts workers compensation it goes on today Richard is going to speak about will the deep fresh deep professionalization of medicine improve quality of care let me begin by calling up professor Troy Dr. Troy Brennan for the topic professionalism theory to action the case of conflict of interest in prescription medication Troy the narrower topic then the speeches that were just delivered and I don't know whether that's good or bad it kind of reminds me of a story that my friend Tom Lee likes to tell who's a humorous and doctor about he and his brother who are both cardiologists and his brother Richard went into research and Tom went into general medicine Tom was having to learn sort of more and more different topics in order to be a generalist and seemed like he was grasping kind of less and less about each of the topics meanwhile Richard was sort of drilling in on a very specific topic and learning more and more and more about very ever sort of smaller things so that they decided between them that you know Tom was in danger of knowing nothing about everything and Richard was in danger of knowing everything about nothing and I'm afraid this might be on the sort of Richard side but it's a little story about conflicts of interest and medical ethics and I think it raises some interesting questions from the point of view of sort of how professionalism should operate so these are my disclosures I work for CVS caremark and I'm on the board of a couple of nonprofit organizations and I was formerly on the board of the American Board of Internal Medicine important thing is a lot of what I'm saying going to say is based on empirical insights that disclosures really don't make any difference in other words it's not going to change your view of anything I do me having disclosed that and that's relatively important to the overall you know machinery of the lecture I guess and these are the key questions you know so the first one is can a new formulation of medical ethics that emphasizes the importance of professionalism make a difference at all in the health care system and drilling in on that a little bit you know will attention to the professional contact conduct and specific instances lead to self-imposed changes in which the way the profession behaves so you know the whole idea here is to explore whether or not sort of ideas and structure of ideas can actually lead to sort of overall changes in the way in which people act and then the interesting question sort of underlying that is is professionalism a matter of sort of individual behavior or can it be regulated by institutions you'll see I come down on the side sort of regulated by institutions but that might be something that a lot of people find suspicious so this is a story it's about a decade-long story and it's nice to have a relatively long professional career because you can follow these things along so back in the early 2000s the American Board of Internal Medicine was interested in pursuing a new project on professionalism and in Chris's predecessor at the ABIM Dr. Kimball asked me to sort of take this on and Chris when she took over the ABIM was certainly a supporter and we did a lot of casting about we had a lot of different ideas which met with a great deal of skepticism but finally we decided we'd write a charter which is a word that the Europeans came up with working with the American College of Physicians in the European Federation internal medicine Europeans in particular were sort of saying we need a series of sort of print simple principles that we can outline that basically form the core of medical professionalism and then we draw that out into some reasonable conclusions that issue forth from the basic principles and then we call that our charter or you know this is what we're going to sort of adhere to so it was a it was a good idea but it was hard because about 15 people working on it and finally we had to sort of ensconce ourselves in a relatively sort of tawdry beach resort on the south coast of Spain for about six days in order to actually pull something together we threatened we wouldn't let people leave and we finally came up when finished it and then it got published by the Lancet in the Anals of Internal Medicine and when you do these kinds of things because I've written a lot of papers that are about you know here's an interesting idea about this or an interesting idea about that but you find that you know basically it's fun to publish them but nobody ever reads them and nothing ever happens but over the course of next three years surprisingly really to us and I think in large part due to some sex successful efforts at public relations the charter was adopted by almost all the medical societies around the world you know internationally in the United States finally culminating in it's being sort of accepted by the American Medical Association after I think you know sort of about six or eight years of studying it and but that was gratifying for those of us who were involved and it's relatively straightforward Chris showed a slide from the board you know it's basically three principles you know there's the principle of patient welfare so this is a sort of strong notion of altruism that runs through the most basic of medical ethics literature in the United States this is basically the sort of night trust me we'll take care of you another you get trusted and as result of earning that trust you have to make sure you take care of people the second part is patient autonomy that is patients are right bearing the individuals and their rights have to be respected so if the first one's the night's approach the second one maybe the knave's approach the third one was the social justice notion which was important really for me at least in terms of participating in this and it was to move things to sort of a more structural level and basically say that the physician is part of professionalism had a responsibility not only for the individual patient there but also for the structure of health care and that there had to be a fair distribution of health care resources and then naturally coming out of that there were these sort of 10 commitments and they made up the charter so just the side of a couple first a commitment to professional competence that was really important to us because we were driving at this from the point of view of being members the American board of internal medicine improving the quality of care not only sort of making sure that you were providing good care for your patients and you were there at sort of seven o'clock at night to take care of the patient but also that you were doing things that could be measured and helping develop those sorts of measurements we could be sure quality of care was being rendered in a structural fashion promotion of scientific knowledge you know going back to almost any definition of professionalism that you look at about how you're supposed to be sort of promoting a scientific expertise and and management of conflicts of interest so point about management of conflicts of interest by 2004 2005 there was increasing questions about whether these kinds of pronouncements could lead to real change and so we went through the list of different group now from the American board of internal medicine the American board of internal medicine foundation to the try to find a couple of the issues within this in the charter that we could sort of bring the life and after considering a several others we focused on conflicts of interest it was a good time to do it because basically right at that time first of all that's when Grassley first got awakened about various different conflicts of interest and then there's also the massive litigation against the pharmaceutical manufacturers for promotion of off-label uses of medications that were seen as violations of the false claims act now two different including last week another one over two billion dollar settlements on the part of pharmaceutical manufacturers so there was a lot of interesting sort of coming together at the time and congressional hearings so it was a good time to sort of focus on conflicts of interest and we were mostly exercised about the pharmaceutical firms and exactly how they basically exerted influence within medical centers that basically sort of took conflict of interest one interest is patient care the other interest is promotion of particular pharmaceuticals and those things weren't always in alignment so that's what we were really interested in anyway with a different group of people equally sort of hard to write with all very sort of opinionated people we wrote you can see if you go back to jam in February of 2006 the group that I was writing with I love them all but they all are very difficult and but the project was entitled a policy proposal for academic medical centers and basically it was an outreach to medical schools and hospital systems to continue consider how to regulate the relationship with pharmaceutical manufacturers and we went pretty far with this I would say this was not sort of a milk toast set of recommendations we basically said ban gifting by pharmaceutical representatives eliminate samples eliminate pharmaceutical firm input on hospital formularies if there was going to be money for continuing medical education give it to the dean let the dean distribute it same thing for physician travel if you're going to have the physicians travel give it to a central office you put a ban on speakers bureau I don't know if it's s or x there so I put both and and ghost writing you know this notion that we'll pay you to write an article or we'll pay you to put your name on article that we've written and have relatively sort of complete transparency so it contrasts really quite nicely with for instance the IOM report which looked at all these things three years later and then sort of diluted each of them and I think that was good because you know it really sort of set forth you know a very crisp set of recommendations and the argument was really motivated by a couple of key empirical insights I always try to come back to the empirical but within this George Lowenstein old friend of ours from days in New Haven and now at Carnegie Mellon behavioral economist had done a series of very interesting experiments with students at Carnegie Mellon and then sort of extended them but basically what he had sort of published was that there's no such thing as a small gift all gifts matter you know so most stocks would say that's ridiculous but on the other hand most pharmaceutical manufacturers don't waste money they're smart and they were constantly sort of giving out small gifts so they thought small gifts mattered it turned out from George's research that gift always creates debt and then the other thing was the disclosure issue that you can be trans disclosure doesn't provide real transparency because most consumers just simply can't process it and and having those two things were the sort of two key you know sort of crutches that you relied on when you had a conflict of interest I told you about it and by the way this money really doesn't matter to me it's too small to matter to me or these gifts don't matter and so once you got rid of those things was really hard to sort of support most of the structure around the way with which pharmaceutical manufacturers interacted with medical centers so but the important point was I think from the from this sort of idea of sort of trying to deal with you know here at the United Chicago deal with the ideas or the difference in the ideas we moved the discussion about professionalism from a manner of sort of individual discretion into a discussion about sort of structural integrity of the institution so we weren't afraid to sort of say we're taking this in some ways out of the hands of the individual doctor decide so one way you could deal with this would be just say follow your own lights okay you're smart you're ethical you decide if you want to take the money from the pharmaceutical manufacturers we said no you know the whole charter thing is about sort of structural as well as individual and we ran this straight at the academic medical centers and said that you know an integrated system is involves doctors and nurses and other professionals and they should be thinking in terms of how they're organized how they're going to care for patients and then also specifically at academic medical centers because academic medical centers are responsible for training of future doctors and nurses and should take the lead in sort of developing these professional norms and so we basically put this as a challenge the academic medical centers to accept the norms associated with these various bands that we had in place and the other important point on underlying it that goes back to this sort of just distribution of resources pharma marketing basically leads to unnecessary care wasteful care talking to a friend of mine who's now working at Bristol wire squibber one of the drug companies and you know about the third and fourth generation medications for diabetes and his his plea to the researchers is you know just come up with something that's as good as metformin for example a drug like genuvia that is a testament to Merck's ability to be able to market because there's no professional guideline that would suggest that the number of patients who are on genuvia today should be on that drug and it's a very very expensive drug so this spillover effect was cost without value so it had an important point from the point of view of trying to make sure that resources were being used appropriately so at first we I have to say we went out and we talked to the pharmaceutical manufacturers you know join hands with us on this this makes good sense and we went and talked to them and some of them you know they were nice like the people at Merck they were nice but you know and thanked us gave us hand us our hat but you know couple places you went to the marketing person was sitting there and mostly men and the marketing guy you know said at least on two occasions you know it's all it sat very quietly and said it's all fine and good but we own the doctors so you know so it looked like well we weren't going to get anywhere with pharma and they predicted there'd be no change in attitudes really and the reaction was largely negative but then couple of medical schools began to sort of look at it and adopt it meanwhile there was much more sort of litigation that was being brought by the federal government and Grassley basically was investigating various different places Harvard where I used to work for example had some relatively sort of heinous examples especially in the Department of Psychiatry where you know people have been totally conflicted and had revealed none of that and and he was after that part of it and then the medical students got involved so the medical students were really in the vanguard and one thing you say about the medical students they're always more idealistic and it's a shame in some ways we sort of drive that out of them but they got right in the middle of it the IOM was not and several states began to pass laws around sort of transparency and it looks like attitudes have begun to change somewhat at least some places have begun to sort of adopt much more stringent approaches than was the case in the past and this is you know now this is a study from it looks about from 2010 it's by Campbell in the group at Mass General but what they show look comparing 2004 2009 there's been a decline in physician industry relationships we'd like to sort of see what this looks like today it's interesting kind of empirical evidence that maybe there is a sort of shift in the way people are viewing these things which would be exactly kind of what we had intended and the medical students the American Medical Association this thing that these are called Jolly Balls I think of what those that particular approach to grading is called but in any case I put on their University of Pittsburgh Medical Center Penn I just took a sample the Chicago Medical School the University of Chicago Medical School Cornell and Yukon to give some sense about sort of how people are being graded and I'm told by the Dean's office here that people take a lot of time and effort to make sure that they report appropriately to the American Medical Student Association so that these ratings can kind of occur and I personally don't think of you I think of you PMC is a very business oriented medical center so you know I find it surprising that they are rated so highly I can't understand why Cornell and Yukon a private and a public institution would be so low but at least it gives you a sense that there is some measurement that's going on out there now it's not making all that much difference it's a little hard to read just one more little empirical piece you know first of all this is total payments to orthopedist and what has happened is that the transparency laws that now the pharmaceutical manufacturers are basically saying this is how much we paid people so some enterprising orthopedist at the Brigham got that information and compared it to what was reported at the national meeting by the speakers so you can see that in the in the blue that's the good those are self reported people who are disclosing including disclosing all the royalties they got the yellow report that they got some money but they didn't include royalties in that and then green they didn't disclose their payments at all so even though they were required to by the American Association of Orthopedic Surgeons so two things about this first of all it suggests we got a long ways to go because we got you know somewhere around a third of the people who are even not disclosing when they're supposed to disclose the other thing is this kind of blows up the notion that these are small payments you know the in in fact in many ways when you do if you did a sort of nice sociological study of orthopedic surgery especially orthopedic surgery that involves implants you would find that the implant manufacturers are sort of in control of the situation no other way to explain why there's no registries in this country or no or at least no long-term registry of these kinds of devices so the empirical research that we want to do because I always try to come back around to sort of something that's measurable we're doing something at CVS caremark right now full disclosure we make no money on brand medications we make money on generic medications so we're trying to push generic medications to the greatest extent possible I'm proud of that because in most situations generic medications are as good or better than the brand medications and they lower costs overall for the health care system but what we're interested in is sort of seeing whether or not stronger conflict of interest policies will lead to less pharmaceutical company marketing and hence the more better utilization of medications including generic medications so we take advantage of the amps of analyses to basically look at the strength of the conflict of interest policy to each of the individual medical centers those might not be very accurate or they may be inaccurate in places and things like that but that just increases the noise in the measure in the measurement and but biases us towards the null in terms of the statistical analysis that will be done and then we associate physicians to medical centers and then we look at how the physicians are using the generic medications and unfortunately I hope they have this sort of data run but we're just in the business in the in the process of sort of putting it together so the data is still pending but as part of the sort of end of the story what it shows is that you know if you go back 10 years you can sort of have a set of interesting ideas about sort of big picture professionalism and get kind of surprised that people are interested in that and then you can choose a smaller area there conflicts of interest and sort of try to reiterate what a new look at professionalism would say about how you handle those conflicts of interest and then you can assess whether or not you're actually sort of making change associated with that so I think in many ways as I said it's a small story compared to the sort of big picture the woes of our healthcare system but it's an interesting story in terms of the sort of stresses and strains shows around various different interpretations of professionalism so I think my summary is what I just basically stated and you know at some point or another hope they'll publish the empirical investigation and see sort of exactly whether or not this specific sort of effort to point at the academic medical centers has really made any difference thank you very much our next speaker will be professor Paul Star from Princeton professor star well thank you mark for inviting me giving me the opportunity to test out some new ideas at least I I hope they're new ideas professionalism is is an old subject it's a subject that I wrote a good deal about some years ago and without ever intending to give it up I decided for a number of years to give it a rest in the hope that I could come back to it with a fresh perspective I've now written a new book that some of you may have seen out there remedy and reaction which is about the history of health care reform that's not what I've come to talk about today the themes I want to develop today are different but they are very much a reflection on on where we are now as a society and and and how we might think about professionalism a bit differently than at least some of us did in the past starting out with something more familiar what what are the distinctive assets of the professions well I'd sum them up by saying knowledgeable trust trustworthy knowledge and skill with the emphasis as much on the trustworthiness as on the knowledge and skill themselves information after all is not scarce or inaccessible in the age of the internet in fact we're overwhelmed by it and when confronted with complex choices we often don't feel competent to find just the information that's appropriate to our situation or to sort through all the conflicting claims out there professionals answer that need though that's not the only reason that we turn to them they stand at the doorway so to speak of courts hospitals insurance companies and other institutions with decisive influence in our lives so we have no choice but to ask professionals to be our agents in entering and navigating those alien worlds so from a private standpoint from a layperson's standpoint there isn't any doubt about the value of professionalism professionalism however is also a public resource a resource for all modern societies but especially valuable for a liberal democracy and a peculiarly important resource for america today that at least is my thesis so I approach professionalism now from a somewhat different angle than in the past I want to put professionalism in the context of democratic theory and to consider the role of the professions and professionalism in relation to the polity there is a venerable democratic tradition of hostility to professionalism that was the stance of the jacksonians in early 19th century america who abolished professional licensing laws the same view has echoed through a long line of critics who've been suspicious like George Bernard Shaw who said that every profession is a conspiracy against the laity the professions are surely jealous guardians of their prerogatives professional and scientific communities are also certainly not democratic in the crude sense of believing that questions of scientific validity should be submitted to a majority vote but a liberal democracy needs many other features besides a procedure for registering the will of the public it needs methods for informing that will and for circumscribing and constraining it just as we individually need trustworthy knowledge applied to our personal situation so a democracy needs trustworthy public knowledge and if the voters are to hold their representatives accountable they need that information a liberal democracy also needs mechanisms to correct errors and limit the damage from the characteristic democratic pathologies such as excessive partisanship what our founders thought of as the problem of faction the 18th century concept of checks and balances emphasize the constitutional division of powers among branches of government but to constrain the enlarge power of both the modern administrative state and the modern corporation liberal societies have developed other methods of checking and balancing of error correction and damage limitation and professionalism and professionalism is part of that larger system the professions have several features that enable them to create independent countervailing influence against both states and corporations professional and scientific communities extend across organizations and international borders which makes them less subject to the arbitrary control of any single entity governmental or private in addition the the norms of those communities generally call upon their members in the way that that physician charter does to maintain a sense of higher obligation than either profit or political advantage to the extent that professionals look to their peers for recognition and reputation they have incentives to take into account professional standards that their immediate employers may prefer them to ignore and those standards moreover may become so deeply internalized through professional training and experience that they become a strong internal moral compass to work well a liberal democracy needs those forces to work within the state itself we rely for example on the professionalism of the military on the professionalism of public health officials on the professionalism of social scientists who for example gather and analyze public data we need their trustworthy knowledge and skill trustworthy we hope in part because of the standards imbued in their training and upheld through their professional associations professionalism within the government helps to maintain a boundary of the political we expect professionals to provide competent skill that is independent of partisan bias and that limits how deeply politics penetrates into the everyday working of government professionalism within the corporation has some of the same features it serves as a limit to how deeply pecuniary incentives penetrate into the work of the enterprise a pharmaceutical company may want to get a drug approved for sale but the scientists and physicians engaged in developing and testing that drug must nonetheless abide by the standards of their fields it is their professionalism that primarily vouches for the trustworthiness of the data and the failure of that to maintain that trustworthiness is primarily there and the organization's disgrace of course not all professionals live up to high standards when organizations cross pressure them but the standards are nonetheless a public resource a basis in social norms for trying to improve the performance of both public and private organizations professionalism today has to contend not only with the pressures of politics and commerce but also with the new environment created by digital technology and by the growing belief the technological innovation enables us to dispense entirely with expertise there's no question that technology can empower consumers with the use of new devices consumers can do many things for themselves individually that used to require the services of a physician a lawyer or an architect and more over the internet has facilitated the rise of online communities that enable people to cooperate on a non-market basis in providing information goods and services wikipedia is a familiar case in point in the online world credentials are often less important as a basis of intellectual claims than the willingness and ability to point to or disclose the data and documents on which those claims are based as one of the observers of the new media says transparency is the new authority but the belief in the expanding competence of individual consumers and lay communities can turn into a cult of the amateur a good example is the response of some enthusiasts of new media to the shrinking number of professional journalists as the revenues of newspapers and other news media have declined since 2000 the number of editors and reporters at newsrooms in the united states has dropped from 56 000 to about 40 000 and various forms of reporting such as reporting on state governments have diminished sharply well some new media enthusiasts say not to worry citizen journalists will make up for it but while blogs have proliferated bloggers don't do much original reporting and they typically lack professional training and editorial supervision the internet has certainly given us more opinion but it has not yet provided the economic basis for professionally reported news these changes may be good for democracy in some ways but very bad in others professionalism has a public value a public value that i think has become more important in america today the capacity to provide trustworthy knowledge has that special value it seems to me in a society that however rich it may be in information is low in trust for decades surveys have shown a decline in trust in american society in two different senses first americans are less trusting of one another than they used to be several decades ago there is less mutual trust trust for example of a stranger who knocks on your door and second americans have less trust in their institutions both governmental and private suspicions of malevolent of malevolent intent are just pervasive ideological polarization has exacerbated the problem and it isn't just electoral politics that's become polarized on ideological lines it's evident in the news media as well there's very little confidence in any neutral arbiters of fact but on less different sides can establish some body of agreement about facts the ordinary business of democracy becomes exceedingly difficult the scientifically based professions have not been immune from declining trust and confidence but the erosion hasn't been as severe now these conditions seems to me ought to provide a new context for thinking about the professions including medicine they ought to tilt the balance back a bit from the direction that the social sciences took in thinking about the professions three or four decades ago let me talk now just a bit about the sociology of the professions which like so much of american thought shifted from a celebratory to a critical view of its subject between the 1950s and more or less the 1970s initially the dominant perspective let us call it the standard model viewed professionalization as functional and benign until a new generation recast it as the project of self-interested monopolists the sociologist harold wilensky succinctly summarized the standard model in 1964 any occupation wishing to exercise professional authority must find a technical basis for it assert an exclusive jurisdiction link both skill and jurisdiction to standards of training and convince the public that its services are uniquely trustworthy as this formulation suggests sociologists at that time particularly emphasize the following elements as requisites for a profession one a cognitive base that is an area of technical specialized knowledge the two normative commitments to a service ideal often formally expressed in a code of ethics like that charter and contrasted with commercial norms of the market and third an exclusive jurisdiction in support of their cognitive normative and jurisdictional claims professionals have typically developed three interrelated institutions professional schools associations and licensing and accreditation systems and take it together these allow for a high degree of collective self-regulation by a profession and instill in its practitioners a concern for the approval of colleagues a peer orientation now those are the standard elements and really they continue to be I think non-controversial among sociologists but the problem with the standard model as it was developed I think in the 50s lay in the tendency of some sociologists such as Talcott Parsons to take the self-conception of professions at face value and to view their ascendancy as a functional response by society to the growing complexity of knowledge just as Kenneth Arrow and other neoclassical economists saw professionalism and other aspects of medicine as rational welfare maximizing responses to uncertainty the basic idea was that as knowledge becomes more complex society needs both to educate people to apply that knowledge and to trust the people it educates and professionalism represents a solution to both of those problems this view of the professions then came under attack in the 1960s as insufficiently critical of existing institutions where the older generation saw a consensus about values and a commonality of interest between the professions and society at large the new generation saw a deep conflict where the standard model accepted the profession's self-representation the power approach questioned their claims according to this perspective this monopoly power perspective much of the professions applied specialized knowledge was merely ideology service their service ethic was propaganda and the mechanisms allegedly established for self-regulation were just ways of protecting the members of the guild rather than the public from this standpoint profession's insistence that only those with professional credentials be allowed to engage in certain forms of practice reflected the interests of monopolist attempting to control a market the view of the professions as monopolies of both knowledge and markets was the central point of this alternative approach and interestingly enough this critique had support on both sides of the ideological spectrum some of the earliest economic work critical of medical licensing laws came from Milton Friedman and by the 1970s other free market economists as well as legal scholars were arguing that medical care and other professional services ought to be subjected to the antitrust laws and stronger competition to break down the profession's monopoly power meanwhile drawing on the ideas of Marx and Weber sociologists were arguing that the professions had used their monopoly power to dominate other occupations as well as consumers and this story had a gender component male doctors feminists said drove out female healers and controlled women and subordinate occupations although the intellectual traditions were different the thrust interestingly enough in both economics and sociology aimed at shattering the aura of the professions and reducing the power that they exercise in the book that i wrote in 1983 the social transformation of medicine i was trying in part to synthesize the standard model and the monopoly approach as well as the work coming out of economics and law my view was that the various perspectives on professionalism though sometimes overdrawn give part of the picture while the standard model was too benign and schematic much of it wasn't wrong so much as incomplete professionalization does involve conflict and power but the professions could never have succeeded in raising their status and income if they had not gained support from wider interests in society that that achievement had to be understood as a political and cultural process rather than just simply a functional response to society's needs i still don't take the functionalist view that society's needs determine how things develop historically there is never any guarantee of a happy functional ending my argument today is normative contemporary social and political conditions make the potential contribution of the professions more valuable than a half century ago when american society exhibited a far higher degree of consensus and mutual trust than it does now at a time when society is divided and distrustful the professions can serve an important as an important resource for defending important for defending critical values and reconstructing a sense of the common good now let me try to bring this to bear on professionalism in health care i've suggested that professionalism can be a public resource as a countervailing influence against some of the pressures of commercialism and politics and technology and health care professionalism is not of course the peculiar property of physicians it's part of the moral framework of all the health related occupations that require extensive training medicine however occupies a strategic position in representing and interpreting the health sciences not just individuals but to the wider public and so physicians are justifiably a primary focus of discussion the value of bringing trustworthy knowledge to bear on public debate can hardly be doubted a time when ideological politics overflows into all manner of questions related to the human body especially reproduction and sexuality but also drug use vaccines cancer screening tests so long to go on and on but professional knowledge and judgment don't always command universal respect and deference when prominent political figures make uninformed statements on national television about the effects of a vaccine or distort the findings of researchers on a cancer screening test the politicians may have a real substantial impact on public understanding but it is just at those moments when the scientific community should hold its ground and insist on abiding by the evidence and when it can make seems to me the most vital contribution the medical profession is inevitably implicated in public controversies over health and health policy in those controversies the nation needs physicians to uphold standards that may sometimes require them to concede for example that the practices they have followed are not in fact justified the recent findings on the prostate cancer screening test by the U.S. preventive services task force and the varying responses of different professional organizations are a relevant case in point there is nothing more difficult than reversing established practices but there's nothing more necessary if we are to direct and control health care spending intelligently if the sciences and professions are to serve the purposes that I mentioned earlier of being an error correction and damage limitation mechanism they have to be willing to be summoned to that work as professions often need to serve as a corrective and countervailing force in relation to politics so they often need to do the same in relation to the marketplace and I think that was really what Troy Brandon was talking about in that fascinating discussion an increasing percentage of physicians work as employees of organizations and many of those organizations are operated on a for-profit basis while the organization's management has a fiduciary responsibility to the shareholders the physicians must have a fiduciary responsibility primarily to their patients and those interests may sometimes conflict and that's where it is crucial to defend professionalism within the corporation. In the New York review of books a couple of weeks ago Arnold Rellman recently Arnold Rellman argued that physicians can provide the solution to the rising costs of health care and and other ills that beset the health care system Rellman argues for non-profit multi-specialty prepaid group practices which have long provided high quality care at a lower cost than conventional fee-for-service medicine he also argues that there is a trend taking place now a shift from solo to group practice and he argues that in time that will provide the basis for a reformed health care system a basis for a system that's more cost efficient and professionally controlled. Rellman offers that perspective in contrast to what he says in the article is the despairing view of health care reform that I set out in my book remedy in reaction I don't think my view is all together that despairing is just realistic and though I share his belief that multi-specialty group practice is a good thing I think we should be realistic about what the current trends portend an increasing number of groups are being purchased by hospitals in order to capture more revenue dominate their markets and prepare for new kinds of insurance contracts and develop accountable care organizations that's not necessarily a bad thing though it could lead to greater local market power and higher costs not greater efficiencies in general I would not count on developments of this kind to achieve the greater cost containment or lead to the receptivity to the kind of health reform that Dr. Rellman prefers but it is true that some group practice organizations have channeled professionalism in a more productive direction and perhaps we can build on their efforts finally what about the brave new world of digital innovation so yesterday's New York Times op-ed page brought us a piece by Frank Moss who I learned is the former director of MIT's Media Lab and he tells us that new devices and software for consumers will render much of our current health care system superfluous and let me quote from him it would begin with a digital nervous system inconspicuous wireless sensors worn on your body and placed in your home that would continue continuously monitor your vital signs and track the daily activities that affect your health counting the number of steps you take and the quantity and quality of food you eat risk bands would measure your levels of arousal attention and anxiety bandages would monitor cuts for infection your bathroom mirror would calculate your heart rate blood pressure and oxygen level then you'd get automated advice software that could analyze and visually represent this data would enable you to truly understand the impact of your behavior on your health and suggest changes to help prevent illness and then I think trying to be diplomatic Moss then says this would not make physicians entirely unnecessary many situations would still call for professional medical attention but in most cases you wouldn't need to make a costly trip to the doctor's office if you were not feeling well a lifelike avatar on your smartphone would use natural language processing to listen as you describe your symptoms and then would translate them into medical jargon and after consulting a diagnostic supercomputer the avatar would ask you to run a few quick medical tests at home the thought of being continuously monitored doesn't seem to me altogether reassuring think of all the possibilities of being momentarily alarmed by what appear to be dangerous signals and warnings from your mirror or your wristband the instant availability of online information about symptoms of diseases is already said to have caused an outbreak of a new condition cyber-condria perhaps perhaps you've suffered it from your yourself as you've checked to see what your symptoms might mean years ago the New Yorker had a cartoon of two elderly women sitting and talking and one of them is motioning to a photo which is apparently the photo of her late husband and she's saying no he didn't really die of anything in particular he was a hypochondriac if frank moss is right and we're all soon wired up and continually on edge about the status of our various bodily organs we may well kill ourselves through a technologically advanced form of hypochondria but i don't want to seem entirely negative about these possibilities i am sure that i will come to revere my avatar as much as i do by doctor but reducing the role of physician to the strictly cognitive functions is is missing something not just the emotional contact but also the moral dimension of medical practice and it's missing the element i've tried to highlight this afternoon the professions can serve a public purpose by upholding the values integral to professional work and representing those values in both their relations with patients and with the polity at large technology can do a great deal for us i can't do that thank you professor star is not going to be happy to learn because the new york times didn't say it that frank moss sits on the princeton board and uh i know frank pretty well uh our final speaker in today's panel is professor richard epstein professor epstein will speak on will the depress deprofessionalization of medicine improved quality of care come here with a certain degree of advertiser of apprehension i looked at the faculty program i see dr rubenstein dr castle dr brennan professor star and i'm missing so i assume that there's something that you did either on purpose or by accident for mark but it is true but i'm going to try to redeem that by speaking about the subject in a way that i hope shows that i am indeed not a doctor i hope to prove that quite conclusively i'm going to come to this as a lawyer and to some extent as an economist an industrial organization economist i'm going to agree with the odds and ends that have been set here but try to take a fundamentally different approach which is captured in the idea about the deprofessionalization of medicine which to some extent i regard not as an unpleasant prospect but perhaps as some kind of a necessary one in order to explain why it is i think that this is the case i think it's very important when you start to think about this situation to understand the sort of general tendencies that professions have and as poll star said quite rightly they are always conflicted by two particular goals on the one hand they always have a certain level of aspiration and professionalism knowledge and expertise on the other hand they always have a desire to act in restraint of trade and it turns out that the correct analysis on this particular point is to recognize that both of these points are true even if you wanted to be the world's perfect monopolist as many people try to aspire there is no way that you can be a monopolist unless you have a product that is worth providing to the public at large so that the good monopolist constantly works to improve the efficiency of the operation and also to batten down the hatches so that new forms of businesses cannot come in and in fact when i listen to some of the discussions you can see very strong elements of the monopolist kind of situation here let me briefly comment on for example what Troy Brennan talked about in the experiment with respect to conflicts of interest i should say for the record that i wrote something quite critical about this particular proposal on multiple places including in our biological prospectus magazine here and let me just tell you what i think the source of the uneasiness is on my part which is when i see a professional organization trying to set standards with respect to all private institutions the one question that i ask is whether or not this is in fact a violation of the antitrust laws on the grounds that when you start setting standards with respect to all organizations it amounts to a collective refusal to deal and that turns out to be a per se violation under the antitrust law i don't regard this as a joke i think it's a very serious kind of problem that you have to have and this is even if i happen to agree with some of the recommendations that turn out to be proposed and the question is why is it that one would do this it's because my own view about these things is the only way that you get knowledge over which particular systems are going to work and which particular systems are not going to work is to be able to have some form of open entry into the market and when you start having trade associations pushing very hard in one particular direction other people with other models may in fact now find themselves very reluctant to sort of express that and everybody may go along with it in dealing with this it's also very difficult to know what the correct output measures are there's no question that you could track a decline in physician pharmaceutical company influence over the way and medical centers operate it's not at all clear that you can show that this is a good thing because the dissemination of information can take place in many ways and one of the possibilities is you allow all of these people to come in you try to set up various kinds of theaters in which they go on a panel for six guys selling different six different kinds of statements each try to say their case and you have everybody in the room talking about it and in my own view i would rather have in many cases information provided by multiple sources which you could try against rather than trying to keep everybody out altogether and so for example when you have the kinds of recommendations that have been made that form of innovation which might work should be tried now it might fail but in fact if you have uniform leading hospitals taking one kind of physician or medical centers you're not going to get the kind of experimentation so my view about it is that competition not only is efficient from the traditional economic sense but in a world of high levels of information uncertainty it acts as a discovery message method whereby you could figure out what's going on and how things ought to be done now i have exactly the same view with respect to the way in which we think about the health care i can think of no people who are more representative of the establishment of medicine and chris castle and arthur rubenstein and i think we were all very grateful for the wonderful work that they've done but they look at the profession from the inside i look at from the outside and we have a complete difference about the approach to the particular subject which is captured by the other part of my talk named with the issue having to do with the the deprofessionalization of medical care and let me see if i could explain what goes on to me the single most important question about the failure of american medicine is why they're not new voices showing up so the troi brend and i want to put on stage is the guy who runs the cbc camera and starts to set up these clinics where you can get a reliable visit for 25 dollars without having to have an important appointment and waiting in a particular room and the key feature about this is it's a form of deprofessionalization because now what you do is you take people who are not familiar with the traditional medical hierarchy and what they try to do is to radically reconstruct the provision of health care in a way that is going to be necessarily consumer driven now what are the kinds of things that that entails and then why might it turn out that it actually makes consent well the first thing what it does is it recognizes that individual professional judgment is an enormously expensive thing to exercise and it turns out that even the best physicians relying on their own intuitive judgments will have very high error rates of both type one and type two so what you try to do when you put the system together is to get somebody in hmo a caremark provider of one form or another which can take large amounts of data so as to be able to develop protocols which can handle the question of how it is that you sort individuals when they present for treatment in the first time and I don't even remember all the details but I gather there were some folks at cook county hospital trying to figure out the way in which you start the sort patients when they come in and you don't know whether they do or do not have a form of cardiac arrest whether you should or should not keep them and what they did is they developed a three set protocol three step protocol which turned out to be cheaper to apply by a rank amateur than any of the most sophisticated techniques supplied by doctors and it was better with respect to both dimensions that is had lower levels of false admissions to the hospitals and lower levels of exclusion now to the extent that that information is reliable and I'm not going to verify the reliability of the information but just simply make the conditional proposition then we want to do is to find ways in which we can deprofessionalize medicine by professionalizing another segment of the market those people who are really good at information technology who can take lots of reports from lots of companies and lots of patients and then try to put together the generalizations which will in turn allow the protocol which then will allow for the sorting of patients at the time that they are wrong and it turns out that this particular method involves professionalization by individuals who are not doctors in effect it has a second version of a great advantage which is again I've simply ignored I think when you start to talk about the way in which the dominance of the medical model takes place if you look at any other industry when they centralize information what they're always trying to do is to find a way to take those people who operate at the periphery and sort of reduce them to lower skill levels than the people whom they used to have so if you go to the banking industry what happens is you take a standard metric much like you would do in medicine of a number of inputs which give you something like a credit score and then what would happen is you'd put it inside a computer and they would spit back the price or the interest rates are going to be charged for certain kinds of loans and so forth so if you buy a car today nobody interviews you nobody sees whether you have calluses on your hand is evidence that you work hard the entire process goes out to competitive bid and the return since everybody's talking to computers essentially is given back to you within 15 seconds 30 seconds or a minute and there's nobody else there what this does in effect is it means that you don't have to hire layers of people who are expert in credit finance and so forth to compute things because what you did is you hired a relatively few number of people with very powerful algorithms and they're the ones who essentially ran the show and the folks at the outer levels had less discretion therefore commanded lower wages and therefore allowed you to disseminate the services into the market at a lower price than what otherwise take place when it comes to medicine exactly the same kind of thing can take place there is nothing which says that medical or to be slightly different about it health care services have to be provided by health care professionals what you always are trying to look for is whether or not you can find a way so that routine services can be tied by other sorts of people nurses nurse practitioners aids of one sort or another and the task of a very sophisticated system of management is to try to figure out when you start to do all of this stuff exactly how you match the people with the particular problem or one of the things that you understand is that in every business known to man the single most dangerous point are always those of transition if you think for example something alike Joe Paterno that's a transition problem you didn't get the right information to the right people at the right time and you have a natural disaster on your head when you sort patients if you don't get the right patient to the right doctor at the right time if that's what's needed you're going to have exactly that kind of situation but you have to remember there are always two kinds of errors when you're working with these things because it is not an efficient solution to have a lot of situations where you refer patients who are in relatively good health to physicians when in fact nothing is needed of the sort and it's disastrous to run it in the opposite direction as well so the protocol essentially becomes the standard technique and it will allow you essentially to decide a set of institutional systems in which the ratio of doctors on the one hand the other kinds of healthcare professionals can shift in a way which can drive the cost curves down in a way that no reorganization associated with the standard provision of medicine can possibly do the second lesson that you start learning about this is that you despair to use the old chicago maxim that's the law school economics maxim of whether or not it is that one size fits all and here i want to be agnostic rather than dogmatic if one starts to listen to the standard rhetoric there is abundant evidence most of which i would accept which says that the high levels of inefficiency that are associated with fee-for-service medicine and it also turns out that i think that if you're trying to figure out once you get within a healthcare system that what chris castle said is probably correct that a cooperative model will be the authoritarian models every time in which you get team engagement with respect to in fact anybody who's ever worked in medicine in any other field in the world would be astonished that it took doctors so long to realize what is management a b and c and every other business that i've been encountered in my life turns out to be an alien conception when you start to come to medicine if you don't know how to build morale how to get team production and all the rest of that then in effect you are a failure as a manager and if you can't make widgets with this kind of obsolete philosophy there's no way that you're going to be able to take care of healthcare as well okay that's the general point but the question is whether or not when we start having general preferences it turns out that they should become universal in pairs and the lesson that you learn if you do industrial economics or do the law of it is that anytime you try to universalize a good idea it becomes a bad idea the fundamental notion in all of these situations is that populations have distributions the heterogeneity you don't even know what the outset whether you're looking at a normal distribution if it's is normal exactly what the skew in the variance is you don't know whether or not you're going to have an asymmetrical distribution you don't know whether you're going to have a discontinuous distribution and so forth but what happens is unless until you know all those particular variables you cannot be sure exactly the way in which a particular firm want to operate there are in every business scale effects their key questions for example as to whether or not you could have one firm with multiple locations or whether it's going to be more efficient to have two separate firms these are very hard questions to answer they cannot be answered in the abstract and the danger of having this sort of model that Kaiser Permanente rules the world is in effect that it is not responsive to the way in which various kinds of outlying communities ought to respond and it tries to use central government which doesn't have interest or knowledge of the fine variations that take place with various sorts of institutions to make the affected differentiation to put this in a somewhat more economic or philosophical term one of the great 20th century philosophers economists he was a little bit of both a man named Friedrich Hayek and if you tried to figure out what his central contribution was to the theory of knowledge and how it applies to health care you would put the thing as follows what you'd say is a Hayek understood that the purpose of a price system the perfect of a market was to communicate information about prices and about the relative value and cost of services that no one person could hope to have over its head and so his major opponent was in fact central planning where the thought was that you can get through one particular person all the data and then essentially have whatever distribution of wealth you want because you knew exactly what quantities to produce and how to supply them you note that there's a kind of attention because what I said is that when you're talking about firms what you actually are looking for is the kind of centralization which our friend Hayek despaired of when you started to talk about trying to control economies but the key difference of this is when you're dealing with a government you've committed yourself to a scale effect you're trying to run this for the United States and frankly you're going to fail whereas in the standard market model that I'm talking about there's no restriction on entity of new firms such that if one firm becomes too big or one firm has a database which is suspect there's always a way for a competitor to come in there so you will have competing firms and you will get decentralization at the firm level even though you may not get it at the doctor level and so once you get this kind of decentralization what will happen is people will be able to perceive and take advantage of local knowledge and that will start to lead to a kind of variation within the set of firms what will then happen when you start to do all this well you get a little bit more hump it may well be that with certain kinds of super specialties that fee for service will still remain the optimal form of health care notwithstanding the fact that it may be that group care will be very important and it may well be and I think this already is taking place with respect to the Medicare population that people will have two physicians instead of one they'll have a Medicare physician for standard services and they will go to some elite physician if they can afford it who will provide them with a different set of services on diagnosis or whatever else it is that they want which in fact is more consistent with the kinds of money that they pay or the medical they can afford to pay or the medical conditions that they start to have and once you start to see these kinds of things what you want to do is to be very cautious about starting to talk about a kind of a universalization of any model one as against all the others now there's another way in which I think I could make the same point there was a discussion during the earlier session about the question of whether we want global capitation fees or whether we want some other system of payment and the basic proposition that you have to make if you're doing this as a kind of an economist lawyer is that there is no system which is first best optimal and what one means by that is that no matter how it is that you decide to organize and to price the services there will always be some kinds of conflict of interest in the legal and economic field we call this agency cost and what we mean in effect is that the returns to the principal and the returns to the agent will vary in some key respect such that there will be a situation in which an agent will in fact find it in his or her interest to do something which works against the interests of the firm how much more time well that turns out to be an endemic problem to all sorts of businesses what you have to understand is you can never drive that particular problem down to zero what you can do is you can substitute monitoring costs of one kind or another to control for it and indeed one of the really strong and I think consistent criticism of Medicare is that it spends too little on monitoring relative to private health care plans and so that you get much more waste fraud and abuse than you might on the others and when Tom Phillipsen presented here last spring he showed that with you looked at the data the Wenberg data in particular based on public Medicare stuff it showed far higher variations in cost and price and penetration than it did for the same regions when you started to look to private firms which essentially are capable of supplying more uniform standards of oversight in medicine in medicine than the others so what you can do therefore is to say we solve the problem with the cap or we solve the problem where in fact we do the Medicare billing you do not know our priori we heard a lot of ridicule which I fully share that if you look at the way in which the Medicare system is trying to solve this problem their attitude today is to slice the salami even thinner than it's previously done and to create multiple classifications none of which makes sense all which lead to essentially an antecedent question which creates the kind of up billing which everybody fears and mentions in the group what it turns out is you're going to really have to think and no government agency knows how to think about it to fundamentally repackage health care services and this is going to conclude for example the further question of how it is that you integrate non-visits in the way in which you actually price the health care services can you find a way in which you could have patients use for example scans that come on a video screen or in fact just email their doctors for some kind of information so as to save the cost of transportation the weight in the rating room the potential of getting sick when you go outside and all these other things and you know Paul Starr is a hundred percent right when he says you know that fantasy land won't arrive tomorrow but good markets don't work by fantasies what they tried to do is to figure out gaps in the information technology gaps in the pricing structures and then take incremental steps see whether they work and when they move do others one of the great failings of a government program about this is they are not systematic incrementalists so they don't get marginal information and use it correctly and so for example when you start talking about do we or do we not have electronic records the idea sort of is well we want electronic records the entire team starts to move towards electronic records and you spend billions of dollars putting in systems that don't talk to one another that come too quickly and that in fact are probably going to be obsolete in a very short period of time so what i'm trying to say here is that if you're trying to actually figure out how you run a system of medicine it's too important to be left to doctors frankly i teach in mocks clinical medical ethics class and i've come to believe very passionately in the division of labor when it comes to the question of what kind of cut you make in order to remove a spleen i will yield to anybody in this room but when it comes to figuring out how you organize business and payment structures i think doctors have no comparative advantage in that i think i know something about it because i've done it so many years in so many different industries and even i would be enormously hesitant to start to say this is the right way to do it the only way you can do it is through collaborative efforts but you will never have collaborative efforts of the sort that you want if you put on the blackboard a chart which says the advantage and leadership all lies with respect to medicine and we can have all three things that we want access quality of care and all the rest of this stuff simultaneously you cannot do that you have to throw in a budget constraint you have to figure out the way this works and so let me just end on one note which is if you're trying to figure out what the most conspicuous change is with respect to the provision of health care today the answer is it's the rise of government regulation at all parts and at all sectors of the economy and the only way in which you can improve quality improve access and lower price is at the government level to figure out how it is that you can engage in some level of deregulation what the deregulation will do is the lower cost if you get it right once it lowers cost of increased access once their market pressures created through intermediates like cbc and other places you can increase the quality of the care and you might be able to reverse the cycle but what i fear is that everything i heard in the first session at lunch reminds me of russian standard central planning by benevolent people circa 1950 and that is not going to work thank you bob or from global india university at the risk of being labeled a dinosaur i'd like to address a question to professor star i'd be interested in the other responders as well in your encapsulation of professionalism as trustworthy knowledge and skill you did not include two components that i thought have been classically associated with professionalism altruism and self-policing i wonder do you think those are still important components say yes well when i elaborated the analysis of professionalism later i did include those elements but i was trying at the beginning to distill what i thought was the central element and i think those things that you point to the self-policing and altruism and so forth that is in support of the trustworthiness but if you want to you know boil it down to me trustworthy knowledge is a is a is a good summary of what the distinctive asset is the distinctive claim of the professions on the altruism point it's interesting there's a famous paper by ruben kessel about 1958 talking about how it is that the medical profession becomes cartiline and i remembered one of the workshops when he came back in the early 70s we asked him the question these guys are cartilists why would they ever supply anything below marginal cost particularly why would they give anything away for zero and it turns out that he had a bunch of basically crazy explanations and the only explanation that works is that even in a cartilized industries when you have altruism you will find for a variety of individual motives that people will give away the stuff for zero price when you look at self-interest or self-policing it's a somewhat different variable self-policing is what good physicians do on an honorable basis but it's also what cartels do to make sure that people don't chisel against the price so that what you do is you have this peculiar dichotomy that at the same time you guys are running cartels and you're giving away things for free and i think that actually captures the joint interaction between the sort of the ethical side of the medical business and the professional side so it's a slightly more complicated model of individual self-interest but i think it's actually a more accurate one. A real case radiologists in my institution have to increase their the MRIs and the the exams they have to look at for for about 10 percent they have no more resources no more money and basically the reaction of many was yes but if i miss a diagnosis or the evolution of cancer i cannot live with that and somebody said you know one out of 200 it's not a big deal or one out of 500 we can deal with that so for professionals they have to deal with real persons and they care about individuals but when you look at the same thing as a market or for large numbers you miss one diagnosis one out of 1000 you can deal with that i would like to hear i'll give you an answer because i think what you're trying to do is to make scarcity disappear that is if you actually run a particular system and you have finite resources at any level you will have error costs in both directions so if you say that you can't live with error that you're saying is i demand an infinite budget and frankly we're not going to give you or anybody else that well what you need to do in effect is to try to run the system so that you get the right protocols to minimize the two types of error and if you could lower cost you get another virtue which you're missing when you look at it slowly from the bench namely you hope to be able to take more people into the system in an earlier stage so that what happens is it may well be that you make two errors but if you bring in another 100 people you may prevent five more cancers out of this situation so that's what you want and one of the serious problems of the of the canadian system is that its initial intake on virtually all things like mammograms and pap smears is markedly lower by a significant level than what it is in the united states today because of their budget constraint so again what you gotta do is you sit down and you tell that concern and that should lead you to try to do it the other way and if you really care about the place patients one of the things that you try to figure out a way is to automate the diagnosis outsource them to india all sorts of other things because the only way you will get greater market penetration is through lower price thank you i have a question for paul star and maybe a little bit for um um so that so professor star made a case for kind of professionalism as a counter veiling force in some ways against the abuses of market forces as well as um other kinds of rampant democracy i think or it was what you were talking about or or the the impact of the media on misinformation and the way it gets um uh transmitted and part of what my case which i think richard was mischaracterizing in a way is that the the complexity of medical care and the drive for lower costs is leading to more innovation in how groups come together and there's something about the group not so much how they're paid but the fact that it's a group that leads to better performance and that comes from industrial theory so you know troys involved in this particular kind of innovation as well that involves non-physicians working with physicians pharmacists and a whole group of people my question for you is is there such a thing as group professionalism is that have you thought about that in your new look at this because we tend to sort of think well you know the um doctors have their code and the nurses have their code in the far but i wonder if people are thinking about standards for groups in this in this environment well um generally one of the one of the characteristics of professional work is uh is a peer orientation a collegial orientation that doesn't necessarily mean within a single formal organization but a collegiality and professionalism are congruent ideas so there's nothing incompatible about that but it is certainly true from the historical perspective in American medicine where there was this long tradition still to some extent is this tradition of independent solo practice that that there seems to be some conflict but really think about about many other professions that that work in groups and have have all you know there so I don't think I don't think there's any inherent conflict at all okay I'm making a couple of observations about this I want I don't think I mischaracterize you because I don't even think I disagreed with you in the way you think I did what I said was I thought that what you described was in fact the dominant credible business model but that you have to be careful about trying to generalize from a dominant model to an exclusive model given the way in which the factors of production interact and so it doesn't seem to me to be remotely plausible that all physician services are best applied through the Kaiser market no I'm not talking about the Kaiser model there are many different and any other one but the point is as I understand but that's the point is that the I think what you're talking about in terms of the culture inside of an organization is generally when when you do business the first thing you teach students about morale and culture and everything else is in second place but they could be very different organizations I want to comment something about the public pressure because this is something on which you know Marsha Angel actually wrote the right study I don't mean her book on the pharmaceuticals about which the less said the better but the earlier book that she did on with the physicians on trial you start to show the pressure that is put upon physicians to basically doctor their findings in order to satisfy the requirements associated with the mass tort litigation that takes in the United States and this is happens not only in the cases that she documented with the breast cancer implants but if you go when you look at the senate hearings on the lead levels associated with danger and so forth they're just incredible pressures that are put on there indeed it has gotten so bad in the United States in many areas that even when cases get up to the supreme court people stop lobbying start lobbying the justice department and the solicitor general to get them to weigh in on the case even to reverse findings that have been taken below by professional administrative agencies if I had to say it the single most disappointing feature of public life is when I entered a legal profession in 1968 you know I wasn't very high in it but you knew that professional staffs at treasury in the FDA were largely immune to these kinds of pressures and I think the size of the stakes in the current situation have transformed that situation mightily and have created an immense amount of distrust which you cannot cure unless you have a firm system of property rights in terms of the way that government doesn't have the kind of discretion that it currently has and I think that's something inside the American medical profession you have to really worry about because the erosion is going to take place you sue doctors you start suing pharmaceutical manufacturers it's amazing what happens in the transformations to the FDA and other organizations that have to worry about monitoring and policing these things I have a question kind of for Dr. Epstein when looking at sort of a an increasingly market based approach to health care I wonder if there's fundamental disagreement among the different parties involved as to what the actual product is and when I see people listen to the political or the public health spectrum people look at this abstract concept of societal health and physicians seem to concern themselves with the relief of the burden of the problems inherent sort of in the human body and that the the populace is looking at something that may be sort of a true commodity which is both viewed as getting better day by day although it's probably never been as good as people think it is and one that the more they get the better and so how a increasingly market approach which may very well be more efficient at distributing the dollars around is going to be effective until we can really decide what it is that health care is supposed to be as a collective we do that we don't want to be distributing dollars around that gets a lot of course for very little benefit one of the ways in which I try to put the point is it's important for doctors to encourage the commodification of medicine and what I mean by that is not that I want bad care it's that if you look at the really successful complex systems dealing for example with the transfer of money and so forth you can do that in relatively automated ways to the extent that you could introduce although it would be harder those things you reduce the cost function and that simply takes the pressure off of everything else but it will not eliminate all conflicts of interest basically what happens is the two-step story of why medicine is in such difficulty is you start with fee for services then it turns out these become very costly patients can pay because the stochastic nature of the obligations upon them but you then do is you introduce the insurance companies that the beginning they just sign checks and then they realize that the patient and the physician will alter for the increased level of medical care given the fact that there's outside payment and then the outside organization insists upon putting some controls on it but there's no dominant solution about the way in which the controls work and I think the only thing that you could say about a market is that that tripartite conflict between the physician and his or her autonomy the patient and the level of care and the overall budget paid to the HMO is something which can only be resolved by negotiation there's no outside situation the name of the game I mean one of the real disservices put it other way that Milton Friedman tended to give in doing market economics is it you assume that markets always cleared and there was never any high level of error coming out of the system that's true when you're selling baked beans and cans that you get ninety nine point nine nine nine percent quality control it's not true with medicine and you have to lower your expectations and if you do that you may actually be able to raise your performance is how central do you think the conflict of interest problem is in the decline of confidence and trust in the profession I mean is is it is it close to the fundamental problem or is it just one of of a number I don't know I mean you know I think first of all how much of a decline has there been in the trust of the profession I'm not certain you know sort of empirically that's a correct statement and then secondly I don't think it looks good from a variety of points of view when you have positions who appear to be sort of making decisions that are based on their affiliations and payment that they receive from the pharmaceutical firms I think it is interesting you know we use and certainly in my business we use a restraining trade a lot in terms of a lens for analysis and what restrain of trade I mean because there is no such thing as a group professionalism that Chris was asking about the doctors would very much like to sort of keep the nurse practitioners from making any inroads in terms of treatments available on the other hand don't see it restrain of trade when a professional organization like the American Diabetes Association gets 10 experts together and they say here's a practice guideline for taking care of diabetics that excludes expensive and unnecessary medications I don't see that as a restraint of trade against the manufacturers of those of those medications so somewhere in between you know there's an interesting area but it's not when you're sort of trying to find practice guidelines referring to that as a antitrust problem yeah but the antitrust law is not what you say it is it is certainly the case where you're drawing a naked exclusions are always actionable but when you're talking about the recommendation and non-recommendation of treatment the correct legal position today is it's a rule of reason inquiry in which the professionalism counts as a slight plus for the defendants against the suit but you're not getting some re-judgment on that case well you could make it out as a per se violation well I don't I'm not trying I think in effect it's not a per se violation well I think but you can make it out in that regard but I think anybody who will argue that would think it's ridiculous but that's why I'm not doing it I'm arguing a rule of reason I mean I mean I you know I can take a certain position but not gratuitously once you get a rule of reason it's going to you know you know no one would be able to make an actionable claim in that regard I think it is interesting to sort of think about sort of the University of Chicago decides to say that its faculty can no longer have participate in speaker's bureau that's a more interesting question from a sort of rule of reason analysis for me but when you say there's a practice guideline that says you know this is how we take care of diabetics I don't think anyone makes that argument well the difference is the diabetic situation is cross firm the University of Chicago is only on the individual firm and unless the University has market power there's no antitrust violation no matter what it says so again that's not quite right on the wall I mean honest this that for once it's actually something I do teach Bill Ellis University of Texas this is a question really for you Dr. Brennan but I'm sure I would like to hear from both Paul Starr and Richard Epstein I'm I suspect I will but first of all Dr. Brennan you'll be glad to know that I am a very very satisfied customer of CVS so you serve me very well my question is a larger question about the role of pharmaceutical companies not only in the academic area and so on and I'm not saying anything about your company at all because of the comments I'm going to make I've never seen your company doing but a number of other pharmaceutical companies do in a enormous amount of advertising I'm I'm I don't like to watch TV because I get sick you could have this you could have that and all these sorts of things so I wonder whether you could talk about the dynamics of really my bottom line question is the making of profit in pharmaceuticals and the ethical or unethical ways of making that profit you need to make a profit and I'm all in favor of that but I wonder if you could comment on some of those things well we're not a pharmaceutical firm basically you know what we do is distribute through the retail pharmacies and then do pharmacy benefit management and our big job is to reduce the amount of profit that the pharmaceutical manufacturers make especially on the pharmacy benefit management side that's where we make profit by reducing the amount of profit that they make but in terms of sort of the things that they're doing both with regard to sort of what would be considered commercial free speech which I know Rich is going to want to get in on as well as their efforts to sort of make as large a profit as possible I think that's perfectly reasonable from the point of view of sort of a market they're in the market that's what they should be doing that's their fiduciary responsibility to their shareholders so I don't have a problem with that but that doesn't mean we don't spend a lot of time trying to cook up ways to overcome influences that they derive from direct to consumer marketing for example look I think the best way to do this is is not to start with pharmaceuticals as though it's some distinctive industries but just to ask why any firm advertisers in any market whether they're competitive or monopolistic and you know it's obviously to gain market share but people often forget that many drug many industries particularly drugs have high fixed low marginal cost with respect to their products and if you can expand the base by advertising what you can then do is divide the fixed cost which for a drug a new one could be over a billion dollars today among a larger class of users so that what happens is as the advertisement costs go up the total cost of the customers start to go down which essentially is a social benefit then the next question is can you find places where an individual firm acting on its own creates advertisements that generate conflicts of interest with social welfare and that's a very hard case to make out under the antitrust laws what you have to do is to assume there's some subtle form of market domination and I've never seen a successful case of that form in fact I would go further now I'm going to side with Troy on this once you get generic drugs into the market one of the things that you see happen is that they don't last as long in terms of periods of time as you might expect because if they're multiple generics it turns out none of them find it in their interest to advertise so that's one of the reasons why if you listen to the earlier discussion the new the new Merck drug comes in because it's back in the way in which metformin is not one of the things I think that should be allowed and the explicit approval of the Justice Department should be that you would always allow all generics to join in an advertisement tell you what the nature of the drug is and list the 17 companies that make it each with their website and say go get it and at that particular point you'd be able to overcome a collective action problem which will put greater pressure on the new guys coming in so I think in effect that there are ways that you can handle this situation the antitrust stuff is really extremely complicated in these kinds of industries and I hope I'm getting it across that it just doesn't all cut in one direction sometimes you're really worried about it in the sense that it's not enforced sometimes you're worried about it because it's over enforced thank you moving away from the legal and the quantitative if we may and perhaps segue into tomorrow morning I have a question about quality of care and quality of patient feelings about care with regard to in the context of the deprofessionalization hospice care and end of life issues as we have several states now that have death with dignity laws and there seems to be some growing interest in other states to allow people to choose at the end of life and the greater intersection of hospice care there do you think that turning over some of that fanatology if you will might improve the profession or not turn it over to whom to hospice care givers to those in the medical profession who focus on that aren't we doing that it's happening this is the whole point about deprofessionalization getting non-physicians to provide healthcare services and I don't think anyone's opposed the question the real question is how you measure and let me again just do it as a management science observation which is one of the things that you discovered is that you cannot do this stuff without objective metrics and you cannot do this stuff only with objective metrics for example if you want to find out why all the efforts at the national level to evaluate school education is the only thing they do is they give you a test and they don't look into a classroom and if you're running an operation for example like Teach for America they know how to actually send somebody into a classroom and do both qualitative and comp and metrics you have to develop those metrics for healthcare and that's something which doctors are a necessary input to but it really takes a lot of different kinds of professionals to do it thank you I'm going to thank the panelists to Dr. Brennan Paul Starr Richard Epstein where Troy go Troy is right there where is he we know you're running out on this guy good luck and Chris Castle and Arthur Rubin seem for the first half and the audience for your wonderful participation and questions we'll resume tomorrow morning about eight o'clock I think and thank you all very much for coming