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Occupational Medicine and Its Moral Discontents

2003; Lippincott Williams & Wilkins; Volume: 45; Issue: 12 Linguagem: Inglês

10.1097/01.jom.0000095003.95440.2d

1536-5948

Sheldon W. Samuels,

Medical Malpractice and Liability Issues

Sociologic and historical vectors of change in the role of the corporate physician include empowered workers as well as changes in occupational medical practice resulting from socioeconomic factors, peer group leadership in the adoption of codes of ethics, peer-stimulated criticism, and structural studies. Yet conflicts of obligation, the separation of community and occupational medical practice, and misleading atomism in moral judgment persist. Draper’s study of “corporatization” and other studies, including Gert’s critique of principalism in bioethics, support separating the physician from the corporation. Using genetic tests in the workplace could force change. In the United States, soul-searching among practitioners of occupational medicine has increased in pace since the passage of the Occupational Safety and Health Act of 1970. We can conjecture about the vectors: changes in the workforce and the profession, the perennial struggle between labor and management over the conditions of work, the force of law, broad change within the medical profession per se, public and legislator awareness, production and healthcare cost containment, the surge of torts and workers compensation claims, an engulfing environmental movement, demands of a more knowledgeable and empowered worker, and the impact of technologic innovation. There is an additional factor, assuredly surprising to some, about which there should be little conjecture: an opportunity to do the “right thing.” Bernard Gert has made a simple, yet insightful, observation: discovery resolves the differences we have over facts. Given the universal human nature, the Common Morality, “once agreement on the facts is obtained, including agreement about the consequences of an action and its alternatives, most moral disagreement ceases.”1 Facts of History In the first years after the passage of the Act, industry conferences began to build on new facts. In 1974, the President of the Corning Glassworks, Thomas MacAvoy, at a ceramics industry conference, emphasized the essential achievement of the Act: the expression of a new worker’s insistence “on participation in the decisions which affect their work and careers, ” including “the improvement of occupational health and safety.”2 Labor’s statement at the conference enlarged the participatory theme to include not only occupational health, but also the total health of the workers and workers’ families. A key statistic summed up labor’s priorities: “28 community health centers sponsored by trade unions in New York City alone.”3 The participatory role of workers and the priority they give to community health are persistent characteristics of labor’s basic outlook. The statement also pinpointed conflicts of obligation recognized by occupational physicians. A leading corporate physician, Dr. Robert B. O’Connor, was cited as advocating a “clearly needed” change in role to “an objective, knowledgeable third party beholden to neither industry nor labor…. ”3 These were not new anxieties. The early unions in America, reflecting member concerns about occupational and nonoccupational disease, filled a void created by either the absence of, or distrust for, employer or government efforts. They sought to be both consumer and employer of medical services. Before the turn of the century, mining unions in the West built clinics wherever they had sufficient members to support them. Management support for these hospitals was sought. There were more than 20. However, typically, the mine owners shut them down with overwhelming economic, political, and military force (as was the case in Telluride, Colorado; the town museum at Telluride, built in the former union hospital, documents this point). Once established, they often were converted to community hospitals (as was the case in Coeur d’Alene, Idaho). 4 Other unions followed this example. In the East, the International Ladies Garment Workers (now UNITE) started its Union Health Center in 1914. There are still union-sponsored community clinics associated with the needle trades and healthcare workers in New York. Nevertheless, as a leading health scientist in the international labor movement, Dr. Knut Ringen observes, “the need for union-sponsored clinics became largely obsolete by the 1950s with the negotiated group health benefits that enabled workers to have free access to the entire medical system, and then with the emergence of free-standing or academic-based clinics in the 1970s and 80s” (personal communication, June 25, 2003). In 1987, at a national meeting in Cincinnati of unions representing workers in Department of Energy nuclear weapons facilities, there was a request that the Workplace Health Fund of the Industrial Union Department, AFL-CIO help meet a narrower need: alternative occupational health services. Negotiations with management to upgrade in-plant medical services had failed. A labor-sponsored regional clinic focused on occupational disease was opened in Cincinnati assisted by the city and state AFL-CIO. It was a freestanding clinic manned by a board-certified occupational physician and public health nurse–educator. Efforts to organize freestanding labor clinics focused on occupational disease alone in other regions failed. The Cincinnati effort ultimately also was unsuccessful, leading to a reorganization under the umbrella of the University of Cincinnati Clinics, but maintaining a strong tie with local unions. This pattern has been successful (Dr. Eula Bingham, personal communication, June 24, 2003). In union-sponsored clinics, occupational health has been a concern secondary to family health. Today, all by construction unions, only 3 occupational physicians are in the employ of labor. Yet the interest of labor in the health of its members has not diminished; it has followed another path, one closer to needs historically perceived by workers themselves. The broad-based thrust of labor’s interest is reflected in a survey 5 conducted by the Workplace Health Fund of 25 international unions representing more than 12 million workers. Forty-eight programs, ranging from alcohol and drug abuse to ergonomics and weight control, were identified. Sixteen of the 25 unions surveyed reported that affiliated local unions provided such programs. Of 24 programs identified by 13 unions, approximately one third were run by the union with the cooperation of the employer. Few were run exclusively by either the union or by management. The most prevalent kinds of programs available at a national level were alcohol/substance abuse (76.9%), blood pressure testing (61.5%), stress management (46.2%), and smoking cessation (38.5%). Some programs targeted specific risk groups such as those workers at high risk of silica exposure. Employers funded less than half the programs. Most of the programs had been initiated since passage of the Act, although the earliest formal wellness program, an alcohol and substance abuse program for members of the United Steelworkers of America, was 20 years old. The UNITE Health Center had wellness programs from its inception in 1914. Many of the programs were offered off the worksite in union clinics and halls. Responsibility for these programs within the union varied, including collective bargaining specialists. At the federation level of the labor movement, structural experimentation in health programs is constant, a mirror of the constantly changing workforce. The Workplace Health Fund was created by the Industrial Union Department to facilitate innovation. A vestige of the CIO now dismantled, the Department had also organized the Workers Institute for Safety and Health (WISH). The first Medical Director of WISH was Dr. Harry Heimann, a former director of the pre-OSHA predecessor to the National Institute for Occupational Safety and Health. The Research Director was Dr. Ringen, who had been recruited from the staff of the National Academy of Sciences. Professor Ido DeGroot, a pioneer in human ecology 6 of the University of Cincinnati, was deeply involved. When WISH was dissolved, many of its programs were eventually absorbed by the Center for the Protection of Workers Rights of the AFL-CIO’s Building and Construction Trades Department or by structures associated with individual unions. Ecologic Links As negotiated health benefits, and arguably workers compensation programs, became prevalent, the family burden of the worker was somewhat relieved, allowing attention to the work environment, a need that had never left the consciousness of workers and their peer group leaders. William “Big Bill” Green, a President of the American Federation of Labor, in a statement as relevant today as it was when published in 1926, pointed to the failure of the workers compensation systems to account for changes in “the work environment… new industrial hazards… discovered only through increasing sickness.”7 At the time Green’s statement was written, a group “of radical women” on the periphery of the labor movement formed the Worker’s Health Bureau of America, in hope of becoming labor’s “parallel for the Rockefeller Foundation, AN INSTITUTE OF HEALTH RESEARCH” focused on occupational disease and the work environment. 8 The Workplace Health Fund and WISH were created for the same purpose, but were at the center of organized labor. All were responses to perceived needs persisting over time, the genesis of tradition. WISH and the Fund had a specific approach to the work environment: exploring its interface with the total well-being of the worker and his or her family. Known as “high risk management,” it evolved by integrating labor’s traditional comprehensive approach to health issues with the insights of Dr. Irving J. Selikoff of the Mt. Sinai Environmental Sciences Laboratory. The concept was most clearly expressed in his excellent history of etiologic paradigms, and subsequent discussion by Dr. Thomas F. Mancuso at a conference in 1976 on workers compensation at The University of Chicago, held to develop a report mandated by the Act. 9,10 Conceptually, the overriding theme of high-risk management is a reassertion of accepted concepts of multifactorial etiology that put into question the after-the-fact, single-cause, single-effect, single-discipline, single-event, victim- and fault-driven microcosm of “accidents,” “safety,” and associated confusions that prevail in the courtroom and the counting house, but have been (or should be) rejected in the clinic and laboratory. 9 The elements of “high risk management” collectively outline an ambitious model that includes: lifetime medical surveillance, strong participatory roles for the worker, independent physicians, accounting for compounding effects of multiple factors, assessing occupational and nonoccupational environmental interactions, linking worksite medical services with multidisciplinary community-based family care, notification and empowering education, and aggressive clinical intervention during the “silent” period of latency. The independence of the physician was as controversial at the Chicago conference as it is now. Dr. Irving Howe of the American Medical Association objected to the position of Drs. Mancuso, Irving Tabershaw, and others that the medical departments within industry “withdraw… into an independent contractual relationship with no ties to either labor or management.” In a discussion chaired by Dr. Norbert J. Roberts, former President of AOMA and international medical director of EXXON, he supported having both corporate physicians and occupational physicians in community group practices and clinics, a trend he called a “progressive development,” especially for small plants. 11 Physician independence quickly ascended the ladder of labor’s concerns, moved by a factor not considered in labor’s paper at the conference, 12 but mentioned by Dr. B. Dinman, Medical Director of ALCOA: “individual genetic endowment.”13 Subsequent labor policy papers began to fully address the genetic factor and the role of the corporate physician. The early impetus for high risk management programs emanated from the identification of hundreds of long-neglected populations in which there were known or suspected high incidences of cancer and other chronic diseases associated with environmental exposure to hundreds of toxic agents. It became clear, however, that the genetic factor could not be ignored, especially after publication of an estimate by Knudson that individual predisposition to cancer imposed by the environment in the absence of genetic variation, or imposed by both factors, constitute 70% to 80% of the afflicted in industrial nations. 14 Dr. Knudson describes 4 oncodemes, one of which describes cancer as a result or environmental exposure without genetic predisposition, and a second as an interaction of environment and heredity. 15 The Workplace Health Fund began to facilitate biomedical and psychosocial research on the applications of genetic science to the reduction of disease, especially cancer. Support grew for shaping federal legislation to assist in the interpretation of genetic data “in a socially and individually meaningful context… in the management of risk and high-risk populations….”16 On June 3, 1983, in Nashville, Tennessee, after a rousing endorsement by then-Congressman Albert Gore, Jr., the Industrial Union Department adopted a policy resolution adding genetic testing to the high-risk concept. The policy endorsed genetic screening and monitoring in community-based programs under conditions of environmental control, strict confidentiality, increased worker and family participation, counseling, and increased empowerment in program management by workers and their families. 17 Dr. Ringen and his colleagues at WISH initially concentrated on the pressing concerns of that time: the environmental, notification, and medical surveillance elements of the high-risk concept. 18–20 However, their studies include occupational and nonoccupational factors such as smoking, which raise difficult-to-answer questions in the seemingly seamless psychosocial reality of the work and community environments. 21,22 These show, for example, that some workers smoke more. However, why do they smoke more? What need, if any, does smoking meet or mask relative to the workplace? The management of work populations at high risk is not just a biomedical problem. It is a human ecologic problem. There are still many populations at high risk of cancer and other chronic diseases, but more than 3 decades have gone by since the passage of the Act, during which labor, management and government have increased their resources and made some progress on the environmental issues. This allows an expansion of the high-risk concept to address the contribution of psychosocial factors to occupational disease. Prospective studies of mortality data, reinforced by experimental and clinical research indicate, for example, that variations in social patterns produce psychologic or physiological effects that could, if prolonged, produce sickness and death. 23 The effectiveness of psychosocial intervention does not seem to be in doubt. Even employee assistance programs, which deal primarily with behavioral issues, can be evaluated in terms of their impact on sickness and accident data, especially those associated with insurance and workers compensation costs. 24 The clinic also is being judged by economic criteria. Over the last decade, the average medical cost to the insurer alone per workers compensation claim has nearly doubled to $15,300. 25 This and other insurance costs raise the priority of cost containment mechanisms. In reaction to costs, there has been a s hift in the paradigm of practice in community health care, whether the vehicle is an HMO, managed care, or any other system. The shift could mean a multidisciplinary approach, efficiencies of volume, centralized records and finance, laboratory controls, and a better distribution of technical resources. It also could mean no greater or even less independence for the practitioner, i.e, just another master. As costs shift the paradigm, it is in the interests of the workforce that the new structure not fetter the key decision-maker in the system, the physician. The pressures of genetic technologies also are pushing the paradigm. Literally tens of thousands of genetic or gene-associated tests have been devised for purposes of etiologic and therapeutic research, clinical diagnosis, genetic counseling, personal identification, and determination of disease or physiological disorder susceptibility. These include tests for over 7000 genetic disorders and associated genes, only a few of which have been studied for environmental factors in their phenotypic expression. Some tests hold the potential for the very early detection of a broad range of inheritable disease that can be successfully treated with sufficiently advanced warning. Others, as a recent study by Dr. Antonio Giordano, President of the Sbarro Institute indicates, test tumor-suppressing genes that could play a significant role in determining the effectiveness of drug therapies for cancer and other diseases. 26 Computer-assisted databases of personal genetic information are being proliferated by insurance companies, government and private employers, private and public research institutions, pharmaceutical companies, and others, fed by some 1300 biotechnology companies in the United States alone, capitalized at approximately a half trillion dollars. Testing could become routine in plant medicine. It has already begun at Los Alamos National Laboratory and the Brush-Wellman Corporation, where workers are tested for genetic susceptibility to Chronic Beryllium disease. Genetic tests are an easily abused technology, as illustrated in a recent attempt in the railway industry to defeat compensation claims for carpal tunnel syndrome. Burlington Railroad lost its legal battle against the Equal Employment Opportunities Commission (EEOC). 27 In this case, the corporate physician used the test as part of a protocol he developed, even though the scientist who authored the test suggested that this was a misapplication of the test. The scientist’s opinion has been verified in subsequent review. 28 However, the war is not over. Legal experts warn us that future EEOC cases, and cases that could be brought under legislation being considered in the Congress and state legislatures involving the abuse of other tests, might not be decided negatively, regardless of their scientific merit. 29 Not all future applications will be ethically abused, without scientific merit and stopped by the courts. The prospect for the introduction of genetic technologies into the workplace adds urgency to answering the persistent question: Will we be able to trust the physicians who will select, administer, interpret the results, safeguard the information, and determine how the information will be used? Implementation requires a basis in fact. Implementation also requires trust in the interpretation of fact. This in turn requires judgment within the context of the “as if” or heuristic nature of all intellectual endeavor, not the posturing of opposing “experts” whose “scientific” and “objective” certainties are bought and sold in the marketplace, but the opinions of professionals whose personal independence is weighted by conscious impartiality and supported by social structure. Seeking moral agreement, without which there can be no trust, becomes a moral imperative. The Moral Agreement Impartiality, Gert reminds us, is intimately related to morality, but “one cannot simply be impartial.” It is a dynamic evoked in the face of the violation of moral rules. 30 In the wake of the passage of the Occupational Safety and Health Act, peer group leaders such as Dr. Heimann, and most significantly Dr. Roberts and other leaders among corporate physicians, sought changed conditions of practice for themselves and their colleagues. They took steps to transform their profession by writing a more meaningful code of ethics, and by support for “outside” criticism. In 1973, Dr. Heimann asked the writer then Director of Health, Safety and Environment of the Industrial Union Department to meet with an AOMA committee in Cleveland. Subsequently, meetings were held on ethical issues with Dr. Roberts, other corporate medical directors, the board of AOMA, and the corporate physicians’ Ramazzini Society [not to be confused with Collegium Ramazzini or the Ramazzini Institute]. A mediating organization was formed, the Society for Occupational and Environmental Health, funded jointly by labor and management. Roberts and other corporate medical directors were officers. They initiated peer-conducted studies of their profession, and the full horizon of their clinical responsibility. 31,32 Although the process of reform achieved some success, the questions raised in writing a code, the criticism, and the studies did not resolve a basic problem: the inherent conflict of obligation when the payor, the employer, has a different interest than the patient. The conflict generates still more questions to be answered amid the disquiet amplified by the new genetic technologies not only by workers and the public, but at least some in industry as well. 33 If it is still commonly found, as Dr. Thomas Szasz noted more than a quarter century ago, that the corporate physician is inevitably “an agent of the party that pays him and thus controls him,”34 then arguably this problem cannot be resolved without changes broader than those that have taken place to date. Szasz’ conclusion applies not only to corporate physicians, but also to public interest, labor, academic and government doctors. The Conference Board, a policy research arm for major multinational corporations founded on the tide of labor unrest in 1916, looked at how company doctors themselves perceive their roles and conflicts. A study chartered by corporation physicians reported, in 1974, that the profession is troubled by “insufficient management interest in employee health and health care programs and by insensitivity to ethical standards.” They charged that management demands breaches of confidentiality and classification of occupational disease as nonoccupational and withholds from them information on work environment hazards. 31 A decade and a half later, an independent study verified this conclusion. Dr. Paul Brandt-Rauf, Chair, Department of Environmental Health Science, School of Public Health, Columbia University, in 1989 polled a randomly selected sample of members of AOMA. The number of respondents (80) was small, but the findings were nonetheless significant. Sixty-nine percent of respondents thought ethical conflicts arose sometimes, frequently, or always on issues such as confidentiality, cost, and acceptability of risk. Most of the respondents, 68%, were employed full-time or part-time by industry. Among all respondents, only a small number (2%) believed that primary loyalty was always to management, whereas most (56%) thought that primary loyalty was always to the patient. “Their basic response to these problems,” wrote Brandt-Rauf, “was as a physician.” Most interesting of all was his finding that although three fourths of the physicians found codes of ethics useful in resolving conflict sometimes, frequently, or always, less than half (48%) favored more codes of ethics to implement further change (sometimes, frequently, or always). 35 A recent study by Dr. Elaine Draper also puts into question whether simply more codes of ethics will resolve the conflicts of obligation. 36 A sociologist at California State University and the Institute for the Study of Social Change, her prior work has been descriptive analysis of the genetic testing issue. 37 Draper’s recent work is a chronicle of “The Company Doctors” who will be in charge of the testing in the workplace. She describes a subculture the depressing burden of which is not confined to the practice of plant medicine, a burden made heavier by the failure of codes of ethics to be useful in defining appropriate professional behavior. The atomistic ideas that prevail in these codes and reinforce the isolation of the would-be moral agent work only to confuse the conflicts of obligation. A recent probe illustrates this point. Conducted by the writer, simple questionnaires were distributed to be filled out and collected prior to participation in 2 focus groups: elected and nonelected peer group leaders. The discussion was open-ended and not forcefully focused. Fifty-four of the 62 in the 2 focus groups convened returned the questionnaire. Following the open sessions, both of which were held outside the plant, and the session for nonelected leaders held outside the union hall, participants were given an opportunity to express themselves in private, one-on-one, open-ended discussions. In a production workforce of 607 employed in metals processing, little fundamental change was found over pre-OSHA practices. Of 44 respondents to the question, “does your [personal] doctor ask you about your work history,” only 14 marked “yes.” This sad indictment of community medicine is consistent with responses of dozens of similar groups convened by the writer since passage of the Act. Sadder still is the response of three of those who marked “yes.” In case no. 1, the worker said privately that he asked his doctor not to probe further, that is, contact the plant medical department to ascertain his exposures. He has an advanced case of disease and fears that if this information is given the employer, he will lose his job. He said that he has no hope of health care or compensation if he is unable to work, whether his condition is “occupational” or not. In case no. 2, the doctor is being “stonewalled” (the worker’s quote of the doctor’s word) in seeking additional information from plant authorities. In case no. 3, allegedly the doctor went to the local medical society for assistance and was told to “back off… he was interfering with their livelihood … if he didn’t like it, he should leave” (The quotes are from a long note the respondent wrote on the back of a questionnaire and confirmed in an interview.) He left the community. This writer has heard the same charge often, directly from community physicians in mill-dominated communities, and has never observed a situation in which the plant physician alone or with professional support was able, or could have been able, to change the Ibsenite mentality—afflicting not only the town’s people and the plant workforce, but the physician and his colleagues as well—typically found in “company towns” (Henrik Ibsen’s Enemy of the People, written more than a century ago, has yet to lose its relevance to the practice of environmental medicine.) This experience warrants what Draper calls “the broader social trend of eroding trust in physicians and, more generally, in the professional experts who are responsible for protecting health and the environment along with the public welfare.” The erosion of trust taking place within the medical profession is accelerated by the delegation, if not the mass abnegation, of moral responsibility inherent in the rise of a new medical specialty. A new kind of medical “ethicist” provides not just the traditional analytic framework for making ethical decisions, but increasingly is given the role of making the ethical choice itself. Although the exercise of moral responsibility by the medical profession is seldom clearly “black-and-white,” it need not be morbidly gray. The acceptance of the sophistry found among this new class of unlicensed medical practitioner is a persistent, but not inevitable, source of moral discoloration and intraprofessional distrust. These are not mere anecdotes. There are serious limitations to judgment drawn from the use of focus groups. The small numbers involved and selection of participants could limit their role to hypothesis generation. Yet, when the generated hypotheses are verified by similar results in other groups and by observations found in full studies, then a mass of relatively objective data emerges that might support the hypothesis. Thus, the justifiable beliefs that the erosion of trust we have observed is real, the conflicts of obligation and the failure of the medical profession as a whole are real, and the moral corruption is real. The ’Corporatization’ of Medical Practice in Industry Moral corruption is difficult to contain in any context, but the first step toward this objective surely is to look at the source in ways conducive to producing information on the basis of which intervention can take place. Professor Draper has taken a hard look, in the manner of Max Weber, at what she calls the “corporatization” of medical practice in industry. To do this, besides digesting mountains of literature on the subject, she conducted 100 confidential interviews, including corporate executives and attorneys, as well as corporate physicians. The outcome is a critical look at the corporatization of medical practice and how we understand ethical conduct. “The conventional approach of medical ethics,” she writes, “has been to apply a set of principles [such as autonomy, beneficence, nonmaleficence, and justice] to discrete decisions by physicians.” The dominant example of this view is seen in the work of Beauchamp and Childress. 38 Draper takes a different approach than Beauchamp and Childress: “By locating physicians in their social and organizational context rather than treating them largely as free-standing decision-makers, we can better understand… their obligations … [and] ethical concerns.”36 Draper does more than take a Weberian approach to the analysis of bureaucracies. She challenges the accepted wisdom of the basic tenets of the endless chain of governmental reports and rules on patient, research subject, and public health protection, and (with the notable e