When is it okay to discriminate?

Before you get your knickers in a bunch, let's agree that there are differences among discrimination, prejudice, and bigotry.

Discrimination is recognizing the differences between things generally and valuing some more than others.  This is why we choose one melon out of the bunch in the supermarket and we don't marry the first person we date.  We may have a discriminating taste.

Prejudice is an opinion on things or people not necessarily based on personal knowledge or experience.  It is alterable by countervailing evidence.  I have a prejudice against ferrets as pets, but a friend said his was a lovely animal.

Bigotry is prejudice independent of, and unalterable by, evidence.

So, recognizing that discrimination is good and bigotry is bad and everyone is prejudiced about something, let's take a concrete example.  The AMA has recently updated its policy on cherry-picking and lemon-dropping patients.   It says that's undesirable but not unethical, and about 85% of physicians have done that at least once in their career (but only 14% ten times or more).  (Link here, but it is accessible only on application.)

Cherry-picking is choosing pleasant and compliant patients and referring undesirables to specialists.  Lemon-dropping is refusing or shunting patients who are seen to be non-compliant or abusive or to consume excessive time or resources, and this at least touches the boundary of the unethical in at least some cases.  One comment was "I don't get paid enough to take care of someone like that."  Note that insurers follow Medicare guidelines that may allow only 30%-40% of a physician's charge.

When I was chief radiologist in a small (40-bed) private hospital in the downtown area, a homeless man was admitted from the E.R. because of difficulty swallowing.  At that time, there was no Medicaid or other coverage, and Joe Bleau was not Medicare age.  Workup discovered cancer of the esophagus, non-metastatic, and a surgeon was called.  The operation took six hours and involved removing his esophagus and interposing a segment of the transverse colon to connect the severed top end to the stomach.  That was the first week.  As a radiologist, I was involved with the diagnosis of the multiple complications that followed in seemingly endless procession.  A leak at the anastomosis.  Mediastinitis.  Pleural effusion followed by infection and empyema.  Pneumonia.  Infarction of several loops of small bowel.  These were all successfully treated over the ensuing months in hospital.  He was discharged.  The hospital went bankrupt six months later, and Joe was the reason.

That's a tough one.  No one got paid – not the E.R. doc, the endoscopist, the surgeon, the anesthesiologist, the O.R. time, the radiology department, the lab, or the hospital, which paid the salaries of the staff.  Did they do the right thing?  Yes.  Did they pay the penalty?  Yup.  Did they realize at the outset what the consequence would be and therefore exercise the choice to refuse care?  Nope.  Were they saintly martyrs?  Not bloody likely.  There were two large hospitals within 15 minutes' drive that received Hill-Burton funds to provide indigent care, and no one would have faulted them for shunting the man to one of them for purposes of providing fuller care.

The AMA's statement is, "Physicians are not ethically required to accept all prospective patients."  That's discriminatory.  And it's not illegal. 

Now, the AMA does have a general requirement that physicians honor a contractual obligation to patients they have accepted into their practice, but it later provides a process for "terminating a patient-physician relationship."  It states that physicians can exclude patients who "could seriously compromise" their ability to treat other patients. Arguably, non-adherent and high-acuity patients can make a medical practice lose money and thus could "seriously compromise" its ability to treat other patients.

This has implications for pay-for-performance regulations and outcome-based medical evaluations that determine allowable charges.  Even in the old days, there were grumblings in practices where someone was spending too much time with patients and not pulling his weight.  Now that medicine has become actuarial, it's much, much worse, at least partly because individual practices have been sold to hospitals and large health care groups because they can't afford the time and the cost for the regulatory paperwork and documentation.  And physicians are now employees.

One of the advantages of HSA-based health payments is getting the accountants out of the way and putting the patient in charge of what he pays for and how much.

Now let's go to the florist or the baker who declines to provide service to an unapprovable event.  That's not life-threatening.  Not even inconvenient, since the client can go down the street to the next shop.  It is in concert with the American idea of being in command of your own life and work and behavior as long as you're not hurting anyone.  And the only hurt is to the feelings, and even there, we know that they had to deliberately call around to find someone unwilling to provide service and then make them a horrible example for the rest.

That sounds like a despicable practice, and it's completely dependent on the collusion of some lawyers and judges.  They got some 'splainin to do.

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