Commercial Pressures on Professionalism in American Medical Care: From Medicare to the Affordable Care Act Theodore R. Marmor and Robert W. Gordon
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his essay describes how longstanding conceptions of professionalism in American medical care came under attack in the decades since the enactment of Medicare in 1965 and how the reform strategy and core provisions of the 2010 Affordable Care Act (ACA) illustrate the weakening of those ideas and the institutional practices embodying them. The opening identifies the dominant role of physicians in American medical care in the two decades after World War II. By the time Medicare was enacted in 1965, associations of American physicians were almost completely in charge of medical education, specialist certification, and the enforcement of professional norms on their members. Who could be a doctor, what education and training would be required, and what collegial oversight was operative was first a professional matter and only secondly implicated the state through malpractice or major corporations via the employment of physicians. Medicine was a profession that enjoyed the classic benefits of selfregulation. That world came under mounting pressure over time from skepticism about professionalism and by commercial practices rationalized by beliefs in the merits of market allocation of most services. At the same time, professionalism came under criticism from quite different critics, occupational analysts who thought the professional creed was no longer workable in modern societies. The article then takes up these sources of pressure and discusses the strengths and weaknesses of commercial conceptions of how medical care should be organized, financed, and delivered over recent decades. Following that discussion the final section turns briefly to the embodiment and expression of these pressures in some of the provisions of the ACA.
Occupational Self-Regulation in American Medical Care The process of professionalizing American medicine had its origins in the late 19th century. American physicians succeeded in upgrading their image — from that of too many quacks and frauds — to that of a well-respected profession. Associations of physicians gained control over medical education by limiting the size of medical schools and developing standards for the curriculum in the early 20th century. They regulated access to practice and took on the self-policing by medical boards. They extended their control over activities of others, in particular nurses. Finally — Theodore R. Marmor, Ph.D., teaches at the schools of Medicine and Management and at the Institute for Social Policy Studies at Yale University. Robert W. Gordon, J.D., is a Professor of Law at Stanford Law School.
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more so in Europe and Canada than in the United States — medical associations acquired collective bargaining power over forms of payment and working conditions. By the mid-20th century, American physicians had firmly established themselves as the leading professionals in medical care, with monopolies protected by the state. They also were (at least until the late 1970s) successful in warding off “corporate medicine,” prohibiting their members from taking employment posi-
for initiates — includes a formal code of ethics, with mechanisms for complaints and adjudication of violations. It is a disciplinary system with sanctions — and ultimately, the admittedly crude mechanism of external legal and administrative regulation. At the core of its mechanism of control, however, is the inculcation of an internal self-discipline. This is not an idealistic formulation of the case for professionalism. In the grander conception, professional organization and practice exemplify social
The article then takes up these sources of pressure and discusses the strengths and weaknesses of commercial conceptions of how medical care should be organized, financed, and delivered over recent decades. Following that discussion the final section turns briefly to the embodiment and expression of these pressures in some of the provisions of the ACA. tions with corporate organizations. There was broad societal acceptance of this leading role, and other health providers did not fundamentally challenge that position. The legacy of the past was exemplified by the explicit provision in the Medicare statute of 1965 that none of its statutory provisions were intended to challenge the practice of medicine and the profession’s control of it. Only financing the care of America’s senior citizens was legitimate — and that itself had been attacked by the American Medical Association and others as an improper intrusion in the protected zone of professional-client financial relations. We will turn to those pressures and challenges after first elaborating on the ideas that gave professionalism an honored reputation.
Conceptions of Professionalism There is a version of professionalism that solves the problems above by making the client’s welfare the primary virtue of physician conduct. This formulation, however, is not so much as an ethical obligation as a description of a job. As professionals, looking after people is what we do. Looking after them well is the definition of doing the job well. The hope is that professional training, made habitual by experience, reinforced by the teaching of mentors and the example and esteem of peers, will internalize the ethics of quality and care. Even professionals are, of course, sometimes incompetent or may be tempted to stray from ethical standards. For them there is a backup system to one of informal incentives and pressures: supervision by others in the profession. That supervisory arrangement — hierarchical for novices, collegial
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ideas and models of social practice worthy of celebration. This has produced at various times a celebratory version of professionalism as a calling, an ideology defending a way of life and an exemplary mode of work relations. In medicine as in law, this has most prominently meant defending doing skilled, meaningful work. It has held out the vision of doing good work for patients while doing well, making a comfortable living without letting money-making become one’s primary focus. This view has had many twentieth century advocates, including Thorstein Veblen, R. H. Tawney, and Emile Durkheim, and has a substantial place in the history of professionalism.1 But it is a more demanding argument to sustain against critics. To defend professionalism now requires articulating the least vulnerable case for it, which in this article is the instrumental argument above. So, what are the central claims in the basic case for professional control of occupations like medical care? They include distinctive relations of authority, responsibility, and trust. Client needs generate the appropriate demand for the professional’s service; this dependence and the client’s relative ignorance prompt the need to trust in the professional’s skill, judgment and devotion to the client’s welfare. Most importantly, this makes the professional-client relationship much more than the sale of specialized technical services and the reason for the profession’s authority more powerful than the possession of special knowledge. It is this exercise of fiduciary responsibility that justifies broad claims not only to income and status, but also to collegial control of professional education and practice. And, in that exercise of that control, the fol413
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lowing have been typically justified: collegial supervision rather than hierarchical or bureaucratic forms; viewing medicine as a calling where honor and reputation among peers outweigh money as primary goals; and, finally, that the physician’s main ethical obligation is to the patient. Looking back to the period after the Second World War, it is almost astonishing how successfully this conception of professionalism was institutionalized. There are related, but different ideas that justify physician autonomy and independence from external regulation or the discipline of ordinary market competition. One way to make sense of them is to distinguish between the different problems occupational self-regulation is regarded as capable of solving. The most restrained case for professionalism is the conventional argument that professionals provide services whose quality and effectiveness clients (or ‘consumers’ in market talk) find difficult to evaluate. The major premise accordingly is that evaluating services like modern medical care requires the technical training and complex education of medical professionals. The second feature of this instrumental account is the emphasis on the limits of ordinary market competition in medical care. There is, to be sure, non-price competition among medical care professionals, as there is among for example colleges and universities. Yet there is a special intensity to that consideration in medical care. The factors that stifle or at least inhibit competition include the high costs of initially searching for physicians as well as the situations of urgent need and ongoing medical treatment that make patients unlikely to switch providers in the middle of treatment even if permitted to do so. A third problem arises when professionals face situations where their interests and those of their clients conflict. For example, a doctor prescribes an expensive, brand drug made by a company with which she has a consulting relationship, rather than the generic version that is just as good for treating the medical condition. Or, to take other examples, the doctor sends a patient for testing to a facility in which she has an ownership stake or performs an expensive and invasive but medically unnecessary surgery. These conflicts are hard to resolve by arms-length bargaining about mutually acceptable contract terms. In any professional-client relation in which one party is vastly better informed than the other, and undertakes tasks requiring complex, professional judgment, it will be impossible or at least highly impractical to try to specify in detail and in advance exactly what the professional is supposed to do, how she is supposed to do it, and what should happen in every imaginable case in which something might go wrong. Similarly, 414
it will be difficult for the client to judge if the professional is performing the service or exercising judgment competently. Malpractice actions are a notoriously clumsy form of ex post monitoring. We have to trust professionals — educated, monitored, and evaluated by other professionals — to do their jobs properly. The weaknesses of other options to professional self-regulation in dealing with these problems constitute one basis for supporting professionalism itself. External regulatory regimes — for example, tort law, obligations of disclosure of conflicts, securing informed consent, avoiding malpractice — can supply some sources of restraint, but not very effectively. No regulator can hope to undertake ongoing supervision of professionals exercising complex discretionary judgments in provider/client interactions and all the many other decisions professionals must make. The attempt to simplify supervisory functions by reducing them to rules risks crippling discretion and in that way reduces the value of professional advice and treatment. Interventions once something appears to have gone wrong are also of limited use. The difficulties of reconstruction what happened and evaluating it are daunting and malpractice action is only a plausible remedy for the grossest kinds of misconduct, and a crude and capricious one at that.
Attacks on Professionalism Attacks on professional self-regulation since the late 1960s have been strikingly extensive and largely successful in calling into question the validity of professionalism’s social contribution. While leaders of the American Medical Association prompted fear of an intrusive government following on the financing of Medicare, the most powerful attacks on professional rationales came largely from other sources in the 1970s and thereafter. First, there was increased expression of skepticism of the very virtues that had constituted the professional ideal. The authority arising from unequal knowledge and the patient’s situation of dependent vulnerability was for many critics turned into (or interpreted as) condescension and misplaced superiority. Concealment of information critical to informed decision-making, of the professional’s own ignorance and neglect, and unwillingness to involve the patient in treatment of the condition — all were highlighted as crucial flaws in the professional creed. Second was the attack on the claims about autonomy and independence. Critics could and did point to how often such defended virtues turn into defensive guild or practitioner protectionism, resistance to any outside critical review of practices or proposals for reform. “Self-regulation,” on this interpretajournal of law, medicine & ethics
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tion, becomes its opposite: the prevention of realistic monitoring of medical ethics and the quality of medical care. Similarly, collegial supervision and peer review became for many critics a regime of reciprocal willingness to overlook individual and system failures. Both critiques have the strength of illustration since some degree of deviation from professional ideals had always been the case and had provided the rationale for a spectrum of constraints. (Highlighting dangers, of course, does not entail conclusions about whether competing ideas of occupational control are superior). Third, a professional virtue — constraints on commercial practices to promote independence — becomes in the view of critics simply protection against competition among providers and between licensed and alternative providers. The disdain for competitive commercialism can easily become indifference to medical costs and the problem of controlling them. Fourthly, and even more broadly, the ideology of the primacy of the individual doctor-patient relationship was increasingly depicted as a constraint
icaid or private health insurance, emerged as leading health reform issues after the election of 2008. To make that distinction clear and to assess its importance, the next section takes up the question of how to understand what pressures are budgetary and constrain medical incomes and what are properly understood as commercial pressures on professionalism as such. The comparative North American experience of these pressures on medicine will set the stage for the concluding discussion of the Affordable Care Act’s professional premises.
The United States and Other Countries: Commercial Pressures on Professionalism 1960s to the Present
The attacks on professionalism in the decades following the 1960s drew considerable support from intellectual sources distant from the professions themselves. The stagflation of the 1970s, coming on the heels of the intensely controversial Vietnam War and the urban unrest and riots of the period, challenged many orthodoxies. Hierarchies of all sorts came under criticism, but a distinctive consequence of the economic unrest of the 1970s was the challenge to the capaciThe attacks on professionalism in the decades ties of elites to plan, to monitor, following the 1960s drew considerable support from and to distribute economic benefits fairly.2 Across many wealthy intellectual sources distant from the professions democracies there was a revival of themselves. The stagflation of the 1970s, coming the faith in markets, a challenge to on the heels of the intensely controversial Vietnam elites deciding for others what was wanted, what should be produced, War and the urban unrest and riots of the period, and how goods and services should challenged many orthodoxies. be allocated. It is that revival of faith in the superiority of markets for distributing goods and services on efforts to deal with large socio-medical problems. of all sorts that most profoundly challenged the hegeSimilarly, attachment to the professional model was mony of physicians and their organizations in their seen by many critics as preventing many physicians occupational control. from supporting measures — such as preventive pubThat process was anything but orderly and yet there lic health or greater reliance on paraprofessionals — was no question that medical authority was under that would in some contexts do away with the need for attack. It was apparent in the brief expression of faith in publicly financed professional review and health their more expensive services. planning organizations. It became more salient as Skepticism about the ethical underpinnings of American health economists emphasized how inflathe professional ideal also supported criticism of the tionary was the American mode of health care financinstitutional forms in which that ideal was embeding. With most Americans fully insured and physided. That in turn contributed greatly to the erosion cians largely paid for on a fee-for-service basis, the of confidence in the organizations and practices of the argument went, costs were under great pressure that American medical profession. It is important to disno amount of professional oversight could counter. tinguish changes in the financing and organization of So, from economic criticism of cartels to sociological care from attacks on professional self-regulation. The attacks on medical paternalism, the circumstances former has changed American medicine profoundly supported a wider critique of medical professionaland concerns about who gets paid how much for what, whether by public programs like Medicare and Medthe buying and selling of health care • winter 2014
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ism that had been anticipated when Medicare was enacted. Comparing US and Canadian developments from the 1970s to 2010 highlights how distinctive these sets of pressures were in the United States. The economic and sociological critiques of professional self-regulation were certainly not restricted to the US. These arguments were everywhere in play. But the difference was that Canada — as well as the other OECD nations — had found a way to balance the claims of professionalism with the necessity of limits on health expenditures. There is a large literature on these comparative developments, but here it is enough to note that Canadian experience illustrates that professional selfregulation is compatible with reasonable cost control. What does the Canadian evidence show? In 1970, Canada spent approximately 7.2 percent of its GNP on medical care while the US figure was practically the same. Interestingly enough, from 1945 to 1970, the increases in medical expenditures as a proportion of national income in both countries were almost identical, moving from roughly 4 to the 7 percent figure of 1970. The sharp differentiation took place over the subsequent four-plus decades. To put this in bold relief, with universal health insurance established in Canada over this period, Canadian outlays constituted by 2010 roughly 10 percent of national income; the comparable figure for the United States in the same year was 17 percent of a national income. In short, Canadian expenditures by US standards were restrained even though Canada was hardly austere. Rather Canada was behaving comparably to the OECD average. The significance of this comparative spending is this. During these decades, Canadian medical professionalism was relatively unchanged in practice and commentary even though the academic and pressure group critique of professional ideologies crossed all borders. The accommodation to medical professional norms — apart from the public financing of Canadian services — sets its experience apart from that of the United States. As Carolyn Tuohy has rightly emphasized, while the Canadian state took over the financing of hospital and physician services, the Canadian medical leadership maintained its dominant, professional control over the education, licensure, certification and related controls on professional conduct. There is explicit organizational evidence of separating professional from financial autonomy. In Canadian provinces, one organization of physicians bargains with the government about the budget and a separate organization — usually called the “College” — deals with all the other matters of professional self-regulation. Importantly, the major interest groups in Canadian finance and commerce largely acceded to this accom416
modation among state, profession, and finance.3 This does not justify claims that Canadian doctors took a virtuous professional path and were justly rewarded. It does support the proposition that a largely self-regulating profession is compatible with public financing of the services of its practitioners within a constrained budget. The key understanding here is that professional and financial autonomy is fundamentally incompatible with acceptable levels of medical care costs. The classic formulation is this. Cost control, the improvement of service quality, and prompt access to care are everywhere defended values. Yet pursuing any two of these goals puts the third under pressure. And that is obvious when you consider that a dollar of health expenditure is a dollar of income for someone in the medical care world. That in itself means success in cost control must be controversial because some part of the medical world has to earn less than would have been otherwise. This understanding is common in the rest of the industrial democracies, but is hardly so in the United States. The lesson of Canada’s Medicare is that medical professionals can trade off financial for professional autonomy where they are forced to choose. That trade off also applies to tenured professors who, as with doctors, have only an exit option from the budget circumstances of their university or national health financing program. And every year some Canadian doctors do immigrate to the United States for financial gain and some Canadian physicians return to Canada to enjoy a greater degree of professional autonomy than they enjoyed in the United States. It is important to note that professional regulation by US private insurers is far more intrusive than anything discussed, let alone done, in Canada’s Medicare program. For defenders of professional norms in American medicine, the comparison suggests that American medical associations, to the extent they have opposed public health financing as a threat to their way of life, concentrated on what some would regard as the wrong target.4 It is no surprise then that the commercial threats to American physicians come as much from private regulation as public programs. Because the United States has not had a bargain between the nation’s physicians and those financing care, the fragmentary controls on American doctors are multiple, hard to negotiate, and have left a profession both wealthy by comparison with others and deeply disappointing to those who recall a period of greater autonomy. It will be more obvious as we review some features of the ACA that bear on this discussion. But, before that, it might be useful to make a broader claim about the language of commercialism developed in the United States before journal of law, medicine & ethics
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the intense debates over health care reform throughout the 2000s and beyond. Since the 1970s there has been an undeniable increase in proposals to improve the management of medicine by subjecting it to market-like competition. At the same time, and related, a dramatic shift took place in the language of medical commentary. The traditional doctor-patient relationship becomes, in the language of market competition, provider-consumer, seller-buyer, or supplier-demander. Medicine becomes
policy answer to improving the quality of care. The ACA gives preventive services priority in medical care financing even though there is no professional consensus supporting its capacity to restrain medical inflation. Preventive services — under the ACA’s insurance rules that define acceptable standards — are not to be subject to patient cost-sharing. There are two features here that prompt skepticism. On the one hand, there is the presumption that preventive services trump curative ones. But on what basis? Secondly, the ACA
The conflict over the enactment and implementation of the Affordable Care Act (ACA) has prompted millions of words about American medical care — its problems, what remedies the ACA does and does not provide, and the managerial disaster its “rollout” in the fall of 2013 exemplified. then just another business, albeit a service business. This refashioned language came itself to threaten the professional ethos of medicine, most obviously in America, less powerfully elsewhere. After all, some portion of the “income” physicians and other medical professionals earn had traditionally been non-economic: respect from grateful patients and their families and the self-esteem that respect and celebration fostered. The stereotype of the medical professional as a self-interested (selfish) agent of commerce feeds on itself. And, in the decades since the stagflation of the 1970s, the American public’s esteem for medical and other professionals did indeed fall substantially. That broader context both highlights the relevance of the earlier Canadian-US commentary and sets the stage for the ACA discussion.5
The ACA and Professionalism The conflict over the enactment and implementation of the Affordable Care Act (ACA) has prompted millions of words about American medical care — its problems, what remedies the ACA does and does not provide, and the managerial disaster its “rollout” in the fall of 2013 exemplified. Beyond attention to those topics were the pressures of medical inflation and seemingly endless questions about the quality of American medicine and the complexities of our health insurance that continue. But there are ways in which the ACA is structured that bear on our discussion of professionalism. The most obvious example is the legislation’s commitment to the belief that increased prevention will both improve the nation’s health and save the country money. More preventive care is treated as an obvious the buying and selling of health care • winter 2014
introduces a sharp distinction between the costs sick or injured patients should face and the absence of those out-of-pocket costs when one seeks screening, check-ups, or vaccinations. Substantial proportions of American physicians might well find that inconsistent with their view of who deserves what services, but very little debate took place about either the benefits of prevention or the burdens of patient cost-sharing. And where guidelines are advisory, carrots easily turn into sticks. The ACA’s commitment to promoting preventive services is not itself a product of commercial pressures on professionalism and in that respect may seem anomalous in this paper. It is better understood as an illustration of the penchant in American medical care in recent decades to embrace faddish panaceas. It is wrong to neglect preventable illness and injury, but it is misleading to suggest that increased prevention will be a major constraint on the inflationary pressures in American — or any other — medical care system. There is, however, another aspect of the argument that preventive services deserve special financial rewards. The ACA takes the opposite position: namely, that financial barriers to other medical services — with increased reliance on deductibles, co-insurance and co-payments — should be encouraged. This emerges in many program features, but is especially prominent in the presumption that platinum, gold, silver, and bronze plans available in the new insurance exchanges must not permit first-dollar health insurance. It is reflected as well in critique of so-called Cadillac health insurance, the provision of the ACA that at a future year very expensive health insurance plans will have to pay a tax for their generous coverage. The under417
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lying premise of that provision, as with the exchange provisions, is the view that financial barriers to care serve a defensible purpose. They exemplify the competitive market idea that any free good or service will be overused. The ACA’s provisions for patient cost-sharing illustrate the impact of the pro-market ideology noted above. The commentary during the American health reform debate was very limited on why it is to be desired that patients pay out of pocket substantial proportions of their medical bills. The “Cadillac tax” did prompt outrage, particularly from union leaders who had worked hard to produce what amounts to prepaid medical care for their members. The postponement of that provision to 2018 reflected sensitivity to union anger more than a weakening of the case for cost-sharing. In fact, the literature on patient costsharing does not support the claim that such ‘taxing’ of illness visits makes patients wiser users of medical care. Were that the case, neither the British National Health Service nor Canadian Medicare could defend their policy bans on patient charges at the point of use. The ACA’s treatment of different levels of insurance for those using the exchanges suggests that the idea of patient-cost sharing as appropriate policy has a theological rather than an empirical basis of support. The expression “skin in the game” has come to symbolize the seeming obviousness of patient cost-sharing as desirable. Here then is an example where one occupational conception — the faith in patient cost-sharing of much pro-market health economics — came to legislative fruition despite the dubious analytical and empirical authority for the presumption.6 Finally, there is the broader faith in market competition and delivery reform that are central to the ACA. Health insurers competing for the custom of more potential patients constitute one set of key parties. On the one hand, there are extensive rules to restrain insurers from competing for healthier patients, restricting access to coverage with those with preexisting conditions, and a variety of other regulations designed to make private health insurance resemble social health insurance. These rules constrain competition, but they depend on premises about medical care’s special character rather than its suitability for ordinary market competition. On the other hand, the vision of health insurance firms competing for customers in exchanges, albeit regulated ones, does depend on the celebration of market allocation of goods and services. That takes place through two ACA provisions in the insurance exchanges. One is subsidies for lower income families that will vary with income but not with the different prices of the four different levels of health insurance coverage. 418
The idea is that citizens as insurance customers will be rewarded financially if they buy the cheaper plan with an invariant subsidy. This premise, hardly explained clearly enough in the health reform debate so that most Americans could understand it, rests on a fundamental principle, however masked. And that principle holds that ability and willingness to buy should determine market purchase, health insurance included. Social policy can cushion that decision, as subsidies do. But there is no presumption that medical care is a merit good, one to be distributed according to ability to benefit and medical need. Market allocation does not work that way. There is no commitment in the ACA to equal access to any medical care but preventive services. What is more, patient choice, another feature of the professional ideal, will continue to be constrained by financial forces. The narrow networks that insurers are offering in the exchanges regarding who can go to what doctor or hospital will be influenced substantially by what health insurance firms decide are their favored professional clientele. This was not broadly anticipated in the debate over the ACA. But it is an example of what one should expect when the terms of access to medical care are treated as largely a market good, with requirements that most be insured but not on common terms. Choice of caregiver, once sacred to the professional creed, gets ironically transformed into choice of insurance plan, a plan that is reasonably likely to constrain choice of care giver.
Conclusion What is striking about the topic of commercial pressures on professionalism is how influential changing ideas have shaped the state of affairs we observe in 2014. The institutions of American government have remained largely stable: an anti-majoritarian, liberal democracy that disperses authority at the national level and through federalism. That was the case in 1965 when Medicare passed and was also the case in 2010 when the ACA passed. The major interest groups in the medical care industry broadly understood remained familiar: organizations of physicians, nurses, lawyers, chambers of commerce, health insurers, regulators, and the hundreds of suppliers of goods and services to this nearly three trillion dollar industry. There have been enormous changes in the machinery of medicine, and the world of genomic, robotic, and pharmaceutical discovery has proven to be fecund. But, what seems even more impressive is the change in the dominant ideas about what kind of world medical care should be. The idea of a self-regulating profession not only was held up to standards it often did not meet, but over time the notion that medical care should be treated like any other commercial enterprise has journal of law, medicine & ethics
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taken root. It does not dominate the minds of patients, but it is embodied in many of the provisions of the health reform of 2010, the ACA. In thinking about those aspects of the ACA that threaten older ideas of medical professionalism, it is worth concentrating on how much pro-market thinking influenced those provisions. But the ACA is not a singular document; it incorporates different ideas about medical care. There is preventive enthusiasm as well as efforts, albeit inadequate, to arrive at universal health insurance. There are provisions that punish behavior thought to be bad for health, especially in permitting higher insurance premiums for smokers. This is using market signals for health promotion ends. There are provisions to prevent medical bankruptcies, a vision of insurance that does not, for example, extend to cushioning economic disaster for owners of small businesses. So, the ACA’s role in the diminished world of professionalism in American medical care should not be exaggerated. It should, instead, be noted...and evaluated. References
1. See E. Durkheim, Professional Ethics and Civic Morals, C. Brookfield, trans. (Westport, Conn: Greenwood Press, 1983); T. Veblen, The Higher Learning in America (New Brunswick: Transaction Publishers, 1993); R. H. Tawney, The Acquisitive Society (New York: Harcourt, Brace and Co., 1948); and the illuminating discussion of their ideas in T. Haskell, “Professionalism versus Capitalism,” in Haskell, ed., The Authority of Experts: Studies in History and Theory (Bloomington: Indiana Univ. Press, 1984): 180-225.
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2. For documentation of the decline of professional authority, see, among many works, S. Brint, In an Age of Experts: The Changing Role of Professionals in Politics and Public Life (Princeton: Princeton Univ. Press, 1994) and E. A. Krause, The Death of the Guilds: Professions, States and the Advance of Capitalism 1930 to the Present (New Haven: Yale Univ. Press, 1996). 3. See for this documentation and explanation, C. Tuohy, Accidental Logic (New York: Oxford University Press, 2000). 4. For further discussion of the Canadian experience in comparative terms, see T. Marmor, R. Freeman, and K. Okma, eds., Comparative Studies and the Politics of Modern Medical Care (New Haven: Yale University Press, 2009). 5. This discussion of the language of professional commentary draws on T. R. Marmor, Fads, Fallacies and Foolishness in Medical Care Management and Policy (Singapore: World Scientific Publishing 2009). See especially chapter one. 6. This article in not the appropriate place to discuss at length the long, contentious, and continuing argument about user charges in medical care financing. There is a series of seven papers that two decades ago reviewed the literature on the subject for the Ontario Premier’s Council on Health, WellBeing and Social Justice in 1993. Those articles are available from the University of British Columbia’s Centre for Health Services and Policy Research. For a summary of them, see this article: R. Evans, M. L. Barer, and G. L. Stoddart, “User Fees for Health Care: Why a Bad Idea Keeps Coming Back,” Canadian Journal on Aging 14, no. 2 (1995): 360-390. Their perspective is clear; see especially R. G. Evans et al., “User Fees for Health Care: Why a Bad Idea Keeps Coming Back,” Health Policy Research Unit Discussion Paper #93-9D, 1993. While the work of Evans and his colleagues is well known in other industrial democracies, they are hardly cited at all in the health economics literature published in the United States.
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T
his essay describes how longstanding conceptions of professionalism in American medical care came under attack in the decades since the enactment of Medicare in 1965 and how the reform strategy and core provisions of the 2010 Affordable Care Act (ACA) illustrate the weakening of those ideas and the institutional practices embodying them. The opening identifies the dominant role of physicians in American medical care in the two decades after World War II. By the time Medicare was enacted in 1965, associations of American physicians were almost completely in charge of medical education, specialist certification, and the enforcement of professional norms on their members. Who could be a doctor, what education and training would be required, and what collegial oversight was operative was first a professional matter and only secondly implicated the state through malpractice or major corporations via the employment of physicians. Medicine was a profession that enjoyed the classic benefits of selfregulation. That world came under mounting pressure over time from skepticism about professionalism and by commercial practices rationalized by beliefs in the merits of market allocation of most services. At the same time, professionalism came under criticism from quite different critics, occupational analysts who thought the professional creed was no longer workable in modern societies. The article then takes up these sources of pressure and discusses the strengths and weaknesses of commercial conceptions of how medical care should be organized, financed, and delivered over recent decades. Following that discussion the final section turns briefly to the embodiment and expression of these pressures in some of the provisions of the ACA.
Occupational Self-Regulation in American Medical Care The process of professionalizing American medicine had its origins in the late 19th century. American physicians succeeded in upgrading their image — from that of too many quacks and frauds — to that of a well-respected profession. Associations of physicians gained control over medical education by limiting the size of medical schools and developing standards for the curriculum in the early 20th century. They regulated access to practice and took on the self-policing by medical boards. They extended their control over activities of others, in particular nurses. Finally — Theodore R. Marmor, Ph.D., teaches at the schools of Medicine and Management and at the Institute for Social Policy Studies at Yale University. Robert W. Gordon, J.D., is a Professor of Law at Stanford Law School.
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more so in Europe and Canada than in the United States — medical associations acquired collective bargaining power over forms of payment and working conditions. By the mid-20th century, American physicians had firmly established themselves as the leading professionals in medical care, with monopolies protected by the state. They also were (at least until the late 1970s) successful in warding off “corporate medicine,” prohibiting their members from taking employment posi-
for initiates — includes a formal code of ethics, with mechanisms for complaints and adjudication of violations. It is a disciplinary system with sanctions — and ultimately, the admittedly crude mechanism of external legal and administrative regulation. At the core of its mechanism of control, however, is the inculcation of an internal self-discipline. This is not an idealistic formulation of the case for professionalism. In the grander conception, professional organization and practice exemplify social
The article then takes up these sources of pressure and discusses the strengths and weaknesses of commercial conceptions of how medical care should be organized, financed, and delivered over recent decades. Following that discussion the final section turns briefly to the embodiment and expression of these pressures in some of the provisions of the ACA. tions with corporate organizations. There was broad societal acceptance of this leading role, and other health providers did not fundamentally challenge that position. The legacy of the past was exemplified by the explicit provision in the Medicare statute of 1965 that none of its statutory provisions were intended to challenge the practice of medicine and the profession’s control of it. Only financing the care of America’s senior citizens was legitimate — and that itself had been attacked by the American Medical Association and others as an improper intrusion in the protected zone of professional-client financial relations. We will turn to those pressures and challenges after first elaborating on the ideas that gave professionalism an honored reputation.
Conceptions of Professionalism There is a version of professionalism that solves the problems above by making the client’s welfare the primary virtue of physician conduct. This formulation, however, is not so much as an ethical obligation as a description of a job. As professionals, looking after people is what we do. Looking after them well is the definition of doing the job well. The hope is that professional training, made habitual by experience, reinforced by the teaching of mentors and the example and esteem of peers, will internalize the ethics of quality and care. Even professionals are, of course, sometimes incompetent or may be tempted to stray from ethical standards. For them there is a backup system to one of informal incentives and pressures: supervision by others in the profession. That supervisory arrangement — hierarchical for novices, collegial
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ideas and models of social practice worthy of celebration. This has produced at various times a celebratory version of professionalism as a calling, an ideology defending a way of life and an exemplary mode of work relations. In medicine as in law, this has most prominently meant defending doing skilled, meaningful work. It has held out the vision of doing good work for patients while doing well, making a comfortable living without letting money-making become one’s primary focus. This view has had many twentieth century advocates, including Thorstein Veblen, R. H. Tawney, and Emile Durkheim, and has a substantial place in the history of professionalism.1 But it is a more demanding argument to sustain against critics. To defend professionalism now requires articulating the least vulnerable case for it, which in this article is the instrumental argument above. So, what are the central claims in the basic case for professional control of occupations like medical care? They include distinctive relations of authority, responsibility, and trust. Client needs generate the appropriate demand for the professional’s service; this dependence and the client’s relative ignorance prompt the need to trust in the professional’s skill, judgment and devotion to the client’s welfare. Most importantly, this makes the professional-client relationship much more than the sale of specialized technical services and the reason for the profession’s authority more powerful than the possession of special knowledge. It is this exercise of fiduciary responsibility that justifies broad claims not only to income and status, but also to collegial control of professional education and practice. And, in that exercise of that control, the fol413
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lowing have been typically justified: collegial supervision rather than hierarchical or bureaucratic forms; viewing medicine as a calling where honor and reputation among peers outweigh money as primary goals; and, finally, that the physician’s main ethical obligation is to the patient. Looking back to the period after the Second World War, it is almost astonishing how successfully this conception of professionalism was institutionalized. There are related, but different ideas that justify physician autonomy and independence from external regulation or the discipline of ordinary market competition. One way to make sense of them is to distinguish between the different problems occupational self-regulation is regarded as capable of solving. The most restrained case for professionalism is the conventional argument that professionals provide services whose quality and effectiveness clients (or ‘consumers’ in market talk) find difficult to evaluate. The major premise accordingly is that evaluating services like modern medical care requires the technical training and complex education of medical professionals. The second feature of this instrumental account is the emphasis on the limits of ordinary market competition in medical care. There is, to be sure, non-price competition among medical care professionals, as there is among for example colleges and universities. Yet there is a special intensity to that consideration in medical care. The factors that stifle or at least inhibit competition include the high costs of initially searching for physicians as well as the situations of urgent need and ongoing medical treatment that make patients unlikely to switch providers in the middle of treatment even if permitted to do so. A third problem arises when professionals face situations where their interests and those of their clients conflict. For example, a doctor prescribes an expensive, brand drug made by a company with which she has a consulting relationship, rather than the generic version that is just as good for treating the medical condition. Or, to take other examples, the doctor sends a patient for testing to a facility in which she has an ownership stake or performs an expensive and invasive but medically unnecessary surgery. These conflicts are hard to resolve by arms-length bargaining about mutually acceptable contract terms. In any professional-client relation in which one party is vastly better informed than the other, and undertakes tasks requiring complex, professional judgment, it will be impossible or at least highly impractical to try to specify in detail and in advance exactly what the professional is supposed to do, how she is supposed to do it, and what should happen in every imaginable case in which something might go wrong. Similarly, 414
it will be difficult for the client to judge if the professional is performing the service or exercising judgment competently. Malpractice actions are a notoriously clumsy form of ex post monitoring. We have to trust professionals — educated, monitored, and evaluated by other professionals — to do their jobs properly. The weaknesses of other options to professional self-regulation in dealing with these problems constitute one basis for supporting professionalism itself. External regulatory regimes — for example, tort law, obligations of disclosure of conflicts, securing informed consent, avoiding malpractice — can supply some sources of restraint, but not very effectively. No regulator can hope to undertake ongoing supervision of professionals exercising complex discretionary judgments in provider/client interactions and all the many other decisions professionals must make. The attempt to simplify supervisory functions by reducing them to rules risks crippling discretion and in that way reduces the value of professional advice and treatment. Interventions once something appears to have gone wrong are also of limited use. The difficulties of reconstruction what happened and evaluating it are daunting and malpractice action is only a plausible remedy for the grossest kinds of misconduct, and a crude and capricious one at that.
Attacks on Professionalism Attacks on professional self-regulation since the late 1960s have been strikingly extensive and largely successful in calling into question the validity of professionalism’s social contribution. While leaders of the American Medical Association prompted fear of an intrusive government following on the financing of Medicare, the most powerful attacks on professional rationales came largely from other sources in the 1970s and thereafter. First, there was increased expression of skepticism of the very virtues that had constituted the professional ideal. The authority arising from unequal knowledge and the patient’s situation of dependent vulnerability was for many critics turned into (or interpreted as) condescension and misplaced superiority. Concealment of information critical to informed decision-making, of the professional’s own ignorance and neglect, and unwillingness to involve the patient in treatment of the condition — all were highlighted as crucial flaws in the professional creed. Second was the attack on the claims about autonomy and independence. Critics could and did point to how often such defended virtues turn into defensive guild or practitioner protectionism, resistance to any outside critical review of practices or proposals for reform. “Self-regulation,” on this interpretajournal of law, medicine & ethics
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tion, becomes its opposite: the prevention of realistic monitoring of medical ethics and the quality of medical care. Similarly, collegial supervision and peer review became for many critics a regime of reciprocal willingness to overlook individual and system failures. Both critiques have the strength of illustration since some degree of deviation from professional ideals had always been the case and had provided the rationale for a spectrum of constraints. (Highlighting dangers, of course, does not entail conclusions about whether competing ideas of occupational control are superior). Third, a professional virtue — constraints on commercial practices to promote independence — becomes in the view of critics simply protection against competition among providers and between licensed and alternative providers. The disdain for competitive commercialism can easily become indifference to medical costs and the problem of controlling them. Fourthly, and even more broadly, the ideology of the primacy of the individual doctor-patient relationship was increasingly depicted as a constraint
icaid or private health insurance, emerged as leading health reform issues after the election of 2008. To make that distinction clear and to assess its importance, the next section takes up the question of how to understand what pressures are budgetary and constrain medical incomes and what are properly understood as commercial pressures on professionalism as such. The comparative North American experience of these pressures on medicine will set the stage for the concluding discussion of the Affordable Care Act’s professional premises.
The United States and Other Countries: Commercial Pressures on Professionalism 1960s to the Present
The attacks on professionalism in the decades following the 1960s drew considerable support from intellectual sources distant from the professions themselves. The stagflation of the 1970s, coming on the heels of the intensely controversial Vietnam War and the urban unrest and riots of the period, challenged many orthodoxies. Hierarchies of all sorts came under criticism, but a distinctive consequence of the economic unrest of the 1970s was the challenge to the capaciThe attacks on professionalism in the decades ties of elites to plan, to monitor, following the 1960s drew considerable support from and to distribute economic benefits fairly.2 Across many wealthy intellectual sources distant from the professions democracies there was a revival of themselves. The stagflation of the 1970s, coming the faith in markets, a challenge to on the heels of the intensely controversial Vietnam elites deciding for others what was wanted, what should be produced, War and the urban unrest and riots of the period, and how goods and services should challenged many orthodoxies. be allocated. It is that revival of faith in the superiority of markets for distributing goods and services on efforts to deal with large socio-medical problems. of all sorts that most profoundly challenged the hegeSimilarly, attachment to the professional model was mony of physicians and their organizations in their seen by many critics as preventing many physicians occupational control. from supporting measures — such as preventive pubThat process was anything but orderly and yet there lic health or greater reliance on paraprofessionals — was no question that medical authority was under that would in some contexts do away with the need for attack. It was apparent in the brief expression of faith in publicly financed professional review and health their more expensive services. planning organizations. It became more salient as Skepticism about the ethical underpinnings of American health economists emphasized how inflathe professional ideal also supported criticism of the tionary was the American mode of health care financinstitutional forms in which that ideal was embeding. With most Americans fully insured and physided. That in turn contributed greatly to the erosion cians largely paid for on a fee-for-service basis, the of confidence in the organizations and practices of the argument went, costs were under great pressure that American medical profession. It is important to disno amount of professional oversight could counter. tinguish changes in the financing and organization of So, from economic criticism of cartels to sociological care from attacks on professional self-regulation. The attacks on medical paternalism, the circumstances former has changed American medicine profoundly supported a wider critique of medical professionaland concerns about who gets paid how much for what, whether by public programs like Medicare and Medthe buying and selling of health care • winter 2014
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ism that had been anticipated when Medicare was enacted. Comparing US and Canadian developments from the 1970s to 2010 highlights how distinctive these sets of pressures were in the United States. The economic and sociological critiques of professional self-regulation were certainly not restricted to the US. These arguments were everywhere in play. But the difference was that Canada — as well as the other OECD nations — had found a way to balance the claims of professionalism with the necessity of limits on health expenditures. There is a large literature on these comparative developments, but here it is enough to note that Canadian experience illustrates that professional selfregulation is compatible with reasonable cost control. What does the Canadian evidence show? In 1970, Canada spent approximately 7.2 percent of its GNP on medical care while the US figure was practically the same. Interestingly enough, from 1945 to 1970, the increases in medical expenditures as a proportion of national income in both countries were almost identical, moving from roughly 4 to the 7 percent figure of 1970. The sharp differentiation took place over the subsequent four-plus decades. To put this in bold relief, with universal health insurance established in Canada over this period, Canadian outlays constituted by 2010 roughly 10 percent of national income; the comparable figure for the United States in the same year was 17 percent of a national income. In short, Canadian expenditures by US standards were restrained even though Canada was hardly austere. Rather Canada was behaving comparably to the OECD average. The significance of this comparative spending is this. During these decades, Canadian medical professionalism was relatively unchanged in practice and commentary even though the academic and pressure group critique of professional ideologies crossed all borders. The accommodation to medical professional norms — apart from the public financing of Canadian services — sets its experience apart from that of the United States. As Carolyn Tuohy has rightly emphasized, while the Canadian state took over the financing of hospital and physician services, the Canadian medical leadership maintained its dominant, professional control over the education, licensure, certification and related controls on professional conduct. There is explicit organizational evidence of separating professional from financial autonomy. In Canadian provinces, one organization of physicians bargains with the government about the budget and a separate organization — usually called the “College” — deals with all the other matters of professional self-regulation. Importantly, the major interest groups in Canadian finance and commerce largely acceded to this accom416
modation among state, profession, and finance.3 This does not justify claims that Canadian doctors took a virtuous professional path and were justly rewarded. It does support the proposition that a largely self-regulating profession is compatible with public financing of the services of its practitioners within a constrained budget. The key understanding here is that professional and financial autonomy is fundamentally incompatible with acceptable levels of medical care costs. The classic formulation is this. Cost control, the improvement of service quality, and prompt access to care are everywhere defended values. Yet pursuing any two of these goals puts the third under pressure. And that is obvious when you consider that a dollar of health expenditure is a dollar of income for someone in the medical care world. That in itself means success in cost control must be controversial because some part of the medical world has to earn less than would have been otherwise. This understanding is common in the rest of the industrial democracies, but is hardly so in the United States. The lesson of Canada’s Medicare is that medical professionals can trade off financial for professional autonomy where they are forced to choose. That trade off also applies to tenured professors who, as with doctors, have only an exit option from the budget circumstances of their university or national health financing program. And every year some Canadian doctors do immigrate to the United States for financial gain and some Canadian physicians return to Canada to enjoy a greater degree of professional autonomy than they enjoyed in the United States. It is important to note that professional regulation by US private insurers is far more intrusive than anything discussed, let alone done, in Canada’s Medicare program. For defenders of professional norms in American medicine, the comparison suggests that American medical associations, to the extent they have opposed public health financing as a threat to their way of life, concentrated on what some would regard as the wrong target.4 It is no surprise then that the commercial threats to American physicians come as much from private regulation as public programs. Because the United States has not had a bargain between the nation’s physicians and those financing care, the fragmentary controls on American doctors are multiple, hard to negotiate, and have left a profession both wealthy by comparison with others and deeply disappointing to those who recall a period of greater autonomy. It will be more obvious as we review some features of the ACA that bear on this discussion. But, before that, it might be useful to make a broader claim about the language of commercialism developed in the United States before journal of law, medicine & ethics
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the intense debates over health care reform throughout the 2000s and beyond. Since the 1970s there has been an undeniable increase in proposals to improve the management of medicine by subjecting it to market-like competition. At the same time, and related, a dramatic shift took place in the language of medical commentary. The traditional doctor-patient relationship becomes, in the language of market competition, provider-consumer, seller-buyer, or supplier-demander. Medicine becomes
policy answer to improving the quality of care. The ACA gives preventive services priority in medical care financing even though there is no professional consensus supporting its capacity to restrain medical inflation. Preventive services — under the ACA’s insurance rules that define acceptable standards — are not to be subject to patient cost-sharing. There are two features here that prompt skepticism. On the one hand, there is the presumption that preventive services trump curative ones. But on what basis? Secondly, the ACA
The conflict over the enactment and implementation of the Affordable Care Act (ACA) has prompted millions of words about American medical care — its problems, what remedies the ACA does and does not provide, and the managerial disaster its “rollout” in the fall of 2013 exemplified. then just another business, albeit a service business. This refashioned language came itself to threaten the professional ethos of medicine, most obviously in America, less powerfully elsewhere. After all, some portion of the “income” physicians and other medical professionals earn had traditionally been non-economic: respect from grateful patients and their families and the self-esteem that respect and celebration fostered. The stereotype of the medical professional as a self-interested (selfish) agent of commerce feeds on itself. And, in the decades since the stagflation of the 1970s, the American public’s esteem for medical and other professionals did indeed fall substantially. That broader context both highlights the relevance of the earlier Canadian-US commentary and sets the stage for the ACA discussion.5
The ACA and Professionalism The conflict over the enactment and implementation of the Affordable Care Act (ACA) has prompted millions of words about American medical care — its problems, what remedies the ACA does and does not provide, and the managerial disaster its “rollout” in the fall of 2013 exemplified. Beyond attention to those topics were the pressures of medical inflation and seemingly endless questions about the quality of American medicine and the complexities of our health insurance that continue. But there are ways in which the ACA is structured that bear on our discussion of professionalism. The most obvious example is the legislation’s commitment to the belief that increased prevention will both improve the nation’s health and save the country money. More preventive care is treated as an obvious the buying and selling of health care • winter 2014
introduces a sharp distinction between the costs sick or injured patients should face and the absence of those out-of-pocket costs when one seeks screening, check-ups, or vaccinations. Substantial proportions of American physicians might well find that inconsistent with their view of who deserves what services, but very little debate took place about either the benefits of prevention or the burdens of patient cost-sharing. And where guidelines are advisory, carrots easily turn into sticks. The ACA’s commitment to promoting preventive services is not itself a product of commercial pressures on professionalism and in that respect may seem anomalous in this paper. It is better understood as an illustration of the penchant in American medical care in recent decades to embrace faddish panaceas. It is wrong to neglect preventable illness and injury, but it is misleading to suggest that increased prevention will be a major constraint on the inflationary pressures in American — or any other — medical care system. There is, however, another aspect of the argument that preventive services deserve special financial rewards. The ACA takes the opposite position: namely, that financial barriers to other medical services — with increased reliance on deductibles, co-insurance and co-payments — should be encouraged. This emerges in many program features, but is especially prominent in the presumption that platinum, gold, silver, and bronze plans available in the new insurance exchanges must not permit first-dollar health insurance. It is reflected as well in critique of so-called Cadillac health insurance, the provision of the ACA that at a future year very expensive health insurance plans will have to pay a tax for their generous coverage. The under417
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lying premise of that provision, as with the exchange provisions, is the view that financial barriers to care serve a defensible purpose. They exemplify the competitive market idea that any free good or service will be overused. The ACA’s provisions for patient cost-sharing illustrate the impact of the pro-market ideology noted above. The commentary during the American health reform debate was very limited on why it is to be desired that patients pay out of pocket substantial proportions of their medical bills. The “Cadillac tax” did prompt outrage, particularly from union leaders who had worked hard to produce what amounts to prepaid medical care for their members. The postponement of that provision to 2018 reflected sensitivity to union anger more than a weakening of the case for cost-sharing. In fact, the literature on patient costsharing does not support the claim that such ‘taxing’ of illness visits makes patients wiser users of medical care. Were that the case, neither the British National Health Service nor Canadian Medicare could defend their policy bans on patient charges at the point of use. The ACA’s treatment of different levels of insurance for those using the exchanges suggests that the idea of patient-cost sharing as appropriate policy has a theological rather than an empirical basis of support. The expression “skin in the game” has come to symbolize the seeming obviousness of patient cost-sharing as desirable. Here then is an example where one occupational conception — the faith in patient cost-sharing of much pro-market health economics — came to legislative fruition despite the dubious analytical and empirical authority for the presumption.6 Finally, there is the broader faith in market competition and delivery reform that are central to the ACA. Health insurers competing for the custom of more potential patients constitute one set of key parties. On the one hand, there are extensive rules to restrain insurers from competing for healthier patients, restricting access to coverage with those with preexisting conditions, and a variety of other regulations designed to make private health insurance resemble social health insurance. These rules constrain competition, but they depend on premises about medical care’s special character rather than its suitability for ordinary market competition. On the other hand, the vision of health insurance firms competing for customers in exchanges, albeit regulated ones, does depend on the celebration of market allocation of goods and services. That takes place through two ACA provisions in the insurance exchanges. One is subsidies for lower income families that will vary with income but not with the different prices of the four different levels of health insurance coverage. 418
The idea is that citizens as insurance customers will be rewarded financially if they buy the cheaper plan with an invariant subsidy. This premise, hardly explained clearly enough in the health reform debate so that most Americans could understand it, rests on a fundamental principle, however masked. And that principle holds that ability and willingness to buy should determine market purchase, health insurance included. Social policy can cushion that decision, as subsidies do. But there is no presumption that medical care is a merit good, one to be distributed according to ability to benefit and medical need. Market allocation does not work that way. There is no commitment in the ACA to equal access to any medical care but preventive services. What is more, patient choice, another feature of the professional ideal, will continue to be constrained by financial forces. The narrow networks that insurers are offering in the exchanges regarding who can go to what doctor or hospital will be influenced substantially by what health insurance firms decide are their favored professional clientele. This was not broadly anticipated in the debate over the ACA. But it is an example of what one should expect when the terms of access to medical care are treated as largely a market good, with requirements that most be insured but not on common terms. Choice of caregiver, once sacred to the professional creed, gets ironically transformed into choice of insurance plan, a plan that is reasonably likely to constrain choice of care giver.
Conclusion What is striking about the topic of commercial pressures on professionalism is how influential changing ideas have shaped the state of affairs we observe in 2014. The institutions of American government have remained largely stable: an anti-majoritarian, liberal democracy that disperses authority at the national level and through federalism. That was the case in 1965 when Medicare passed and was also the case in 2010 when the ACA passed. The major interest groups in the medical care industry broadly understood remained familiar: organizations of physicians, nurses, lawyers, chambers of commerce, health insurers, regulators, and the hundreds of suppliers of goods and services to this nearly three trillion dollar industry. There have been enormous changes in the machinery of medicine, and the world of genomic, robotic, and pharmaceutical discovery has proven to be fecund. But, what seems even more impressive is the change in the dominant ideas about what kind of world medical care should be. The idea of a self-regulating profession not only was held up to standards it often did not meet, but over time the notion that medical care should be treated like any other commercial enterprise has journal of law, medicine & ethics
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taken root. It does not dominate the minds of patients, but it is embodied in many of the provisions of the health reform of 2010, the ACA. In thinking about those aspects of the ACA that threaten older ideas of medical professionalism, it is worth concentrating on how much pro-market thinking influenced those provisions. But the ACA is not a singular document; it incorporates different ideas about medical care. There is preventive enthusiasm as well as efforts, albeit inadequate, to arrive at universal health insurance. There are provisions that punish behavior thought to be bad for health, especially in permitting higher insurance premiums for smokers. This is using market signals for health promotion ends. There are provisions to prevent medical bankruptcies, a vision of insurance that does not, for example, extend to cushioning economic disaster for owners of small businesses. So, the ACA’s role in the diminished world of professionalism in American medical care should not be exaggerated. It should, instead, be noted...and evaluated. References
1. See E. Durkheim, Professional Ethics and Civic Morals, C. Brookfield, trans. (Westport, Conn: Greenwood Press, 1983); T. Veblen, The Higher Learning in America (New Brunswick: Transaction Publishers, 1993); R. H. Tawney, The Acquisitive Society (New York: Harcourt, Brace and Co., 1948); and the illuminating discussion of their ideas in T. Haskell, “Professionalism versus Capitalism,” in Haskell, ed., The Authority of Experts: Studies in History and Theory (Bloomington: Indiana Univ. Press, 1984): 180-225.
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2. For documentation of the decline of professional authority, see, among many works, S. Brint, In an Age of Experts: The Changing Role of Professionals in Politics and Public Life (Princeton: Princeton Univ. Press, 1994) and E. A. Krause, The Death of the Guilds: Professions, States and the Advance of Capitalism 1930 to the Present (New Haven: Yale Univ. Press, 1996). 3. See for this documentation and explanation, C. Tuohy, Accidental Logic (New York: Oxford University Press, 2000). 4. For further discussion of the Canadian experience in comparative terms, see T. Marmor, R. Freeman, and K. Okma, eds., Comparative Studies and the Politics of Modern Medical Care (New Haven: Yale University Press, 2009). 5. This discussion of the language of professional commentary draws on T. R. Marmor, Fads, Fallacies and Foolishness in Medical Care Management and Policy (Singapore: World Scientific Publishing 2009). See especially chapter one. 6. This article in not the appropriate place to discuss at length the long, contentious, and continuing argument about user charges in medical care financing. There is a series of seven papers that two decades ago reviewed the literature on the subject for the Ontario Premier’s Council on Health, WellBeing and Social Justice in 1993. Those articles are available from the University of British Columbia’s Centre for Health Services and Policy Research. For a summary of them, see this article: R. Evans, M. L. Barer, and G. L. Stoddart, “User Fees for Health Care: Why a Bad Idea Keeps Coming Back,” Canadian Journal on Aging 14, no. 2 (1995): 360-390. Their perspective is clear; see especially R. G. Evans et al., “User Fees for Health Care: Why a Bad Idea Keeps Coming Back,” Health Policy Research Unit Discussion Paper #93-9D, 1993. While the work of Evans and his colleagues is well known in other industrial democracies, they are hardly cited at all in the health economics literature published in the United States.
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