Publicising performance data on individual surgeons: The ethical issues - Policy implications

Convened by Steve Clarke (Research Fellow, Centre for Applied Philosophy and Public Ethics, Charles Sturt University) and Justin Oakley (Director, Centre for Human Bioethics, Monash University) at the University of Melbourne on 16-17 November 2004.

<download (pdf - 22kb)> the policy paper.

Report on the workshop & summary
An important development in health care over the last fifteen years is the publication and disclosure to patients of performance information on individual surgeons. Performance information on cardiac surgeons has been publicly available in New York State and Pennsylvania for over a decade, and has recently been made available in the UK, following the national inquiry into paediatric cardiac surgery deaths at the Bristol Royal Infirmary. There is now increased public awareness of medical errors and adverse events, and many developed countries are investigating new measures to improve the safety and quality of their health care systems. A major focus of debate has been the public release of individual surgeon performance information, or surgeon 'report cards', which has been debated by surgeons, professional associations, health administrators, patient support groups, and policymakers. There has, however, been very little analysis and discussion of these developments from an ethical point of view.

The workshop on Publicising performance data on individual surgeons: the ethical issues, organised by Steve Clarke (Research Fellow, Centre for Applied Philosophy and Public Ethics, Charles Sturt University and Australian National University, Canberra) and Justin Oakley (Director, Monash University Centre for Human Bioethics), addressed these debates. The workshop was held at the University of Melbourne in November 2004, and was sponsored by the Academy of Social Sciences in Australia. The workshop arose from a three-year NHMRC-funded project led by Clarke and Oakley, An ethical analysis of the disclosure of surgeons' performance data to patients within the informed consent process. The workshop was divided into seven sections, covering the most important ethical issues raised by surgeon report cards. There were sections focusing on surgeons' perspectives, defensive medicine, implementation issues, informed consent, report cards in market-based health care systems, patients' perspectives, and a concluding section on policy issues.

Surgeons' views of publicising performance data on individuals

The first section discussed surgeon's viewpoints on publicising performance data. The first paper, by Joe Ibrahim (Professor, Health Services, Peninsula Health Services, Victoria) and Silvana Marasco (Cardiothoracic surgeon, the Alfred Hospital, Melbourne) examined whether the reporting of individual surgeon performance is harming or helping with patient care. Ibrahim and Marasco discussed the ways in which surgeons' report cards can be utilised to enhance patient involvement in their own health care. They also considered ways in which surgeons can be encouraged to become involved in the process of creating and using report cards.

The second paper in this section was presented by Tony Eyers (Colo-rectal surgeon, Royal Prince Alfred Hospital, Sydney). Eyers considered the difficulties of undertaking surgical innovation and providing adequate training to surgeons in a system in which surgeons' performance data is widely publicised. He addressed the problem of providing fair assessments of trainee surgeons and he considered the difficulty of adapting the culture of medicine to ensure that established surgeons will continue to assist the development of trainees in a culture that is focused on providing publicly verifiable results.

Defensive surgery and the avoidance of high-risk patients

The second section discussed concerns about surgeons avoiding high-risk patients, as a response to the introduction of report cards on individual practitioners. Yujin Nagasawa (Centre for Applied Philosophy and Public Ethics, Australian National University and Department of Philosophy, University of Alberta) considered the plausibility of well-known 'defensive surgery' objections to the publicising of individual surgeons' performance data. He argued that the strongest form of the defensive surgery objection is that surgeons will be motivated to avoid anxiety resulting from a fear of litigation as a result of high risk surgery going wrong. However, Nagasawa argued that this form of the objection can be met by utilising adequate risk adjustment techniques when preparing surgeons' performance information for public presentation.

In the second paper in this section, Justin Oakley (Director, Centre for Human Bioethics, Monash University) evaluated the plausibility of the claim that publicising individual surgeons' performance data will lead surgeons to avoid operating on high-risk patients. He argued that this claim is not substantiated by available empirical evidence. Oakley further argued that even if this claim were substantiated, it should not be taken as a knock-down objection to the public reporting of individual surgeons' performance data, as there are compelling ethical arguments in favour of public reporting of such data.

Implementing 'report cards' on individual surgeons

The third section concentrated on implementation issues for practitioners and patients. The first paper in this session was given by Steven Bolsin (Associate Professor, Divisional Director of Perioperative Medicine, Anaesthesia and Pain Management, Geelong Hospital, Victoria). Bolsin is well-known as the 'whistleblower' in the paediatric cardiac surgery deaths at Bristol Royal Infirmary in the 1990s. Bolsin explained to participants a practical means of collecting accurate surgeon specific performance information. He argued that personal digital assistants can be effectively utilised to record accurate performance information. Bolsin also considered how such devices might best be introduced into the contemporary culture of medicine.

Steve Clarke (Research Fellow, Centre for Applied Philosophy and Public Ethics, Charles Sturt University and Australian National University, Canberra) presented the second paper in this section. Clarke identified a number of heuristics and biases that affect the lay interpretation of statistical information. He argued that 'report cards' presenting surgeons' performance information to patients should be developed with the reality of such interpretive biases in mind, and he provided examples of how this might be done.

Informed consent and patients' rights to information

Section four considered informed consent, autonomy, and patients' rights. David Neil (Philosophy, University of Wollongong) and Merle Spriggs (Ethics Unit, Murdoch Children's Research Institute, University of Melbourne) each served as discussants in this section. Neil raised the question of whether patients' rights to medical information entail a right to be provided with risk information that does not yet exist (as would be the case where surgeon report card data has not been collected). Spriggs spoke, inter alia, about different conceptions of patient autonomy, and how these bear on autonomy-based arguments for providing patients with individual surgeon performance information.

Surgeon report cards in market-based health care systems

The public release of practitioner performance data is sometimes advocated as a way of making health care systems more closely resemble markets, so the fifth section of the workshop examined these ideas. Adrian Walsh (School of Philosophy, University of New England, Armidale) argued that an adequate assessment of the ethical ramifications of surgeons' report cards requires an understanding of the market or quasi-market condition in which report cards are to be introduced. Walsh argued that consumer-sovereignty justifications of markets, where what matters is that people can choose among a range of products or services, lend themselves to individual surgeon report cards. He examined a range of market and quasi-market arrangements that institutions may implement. In considering markets as distributive mechanisms, Walsh posed the question of whether surgeon report cards might lead better-performed surgeons to charge higher fees. Walsh also discussed how perverse incentives can best be avoided and how altruistic motivations can be encouraged under such market and quasi-market arrangements.

Neil Levy (Centre for Applied Philosophy and Public Ethics, University of Melbourne) contended that autonomy-based arguments for surgeon-specific report cards are too narrow, and that a full ethical evaluation of report cards would also consider the relevance of equality in this context. Levy argued that undesirable social consequences will follow as a result of the publicising of individual surgeons' performance information. In particular, Levy argued that report cards will lead to the best surgeons becoming concentrated at the bigger hospitals, in more affluent areas, and that the poor can be expected to bear a disproportionate share of the cost of medicine in a more market-driven system. However, he argued that report cards on institutions can perform useful social functions, and should be implemented instead of report cards on individual surgeons. Levy also suggested that patients will be able to make more informed decisions with report cards on institutions rather than on individuals, as surgical outcomes are in fact produced by teams rather than individuals.

Patient perspectives, trust, and surgeon-patient relationships

Section six focused on patients, and on report cards' effects on surgeon-patient relationships. The first paper, by Merrilyn Walton (Associate Professor of Ethical Practice, Office of Teaching and Learning, University of Sydney) was on how transparency rather than secrecy puts patients in the picture. Just prior to the workshop A/Prof Walton found that she would not be able to attend, but she agreed to her paper being presented and discussed at the workshop. Drawing on her recent experience as Health Care Complaints Commissioner for NSW, Walton's paper considered how patients can be best prepared to use report cards on individual surgeons. Her paper argued that patients will incorporate information from surgeon report cards into their decision-making procedures only when they feel comfortable discussing the information contained on report cards with their surgeons.

The paper by David Macintosh (Cairns Base Hospital, Queensland) built well upon these ideas. Macintosh focused on the importance of building trust in the doctor-patient relationship. Some opponents of surgeon report cards claim that such measures exemplify a misguided recent trend to seek ways of replacing the need for trust in this context with what some regard as more secure. In response, Macintosh argued that this view sets up something of a false dichotomy. Macintosh acknowledged the value of trust in doctor-patient relationships, and argued that report cards can actually promote well-founded trust of surgeons. Drawing on his experience as an orthopaedic surgeon, Macintosh argued that patients place great significance on knowing they are in safe hands, and so report cards can also enhance autonomous decision-making by patients. Macintosh concluded that report cards on individual surgeons should be presented and used in such a way as to foster trust and that there is a danger of developing a culture of suspicion if report cards are not introduced into medicine in a careful manner.

Surgeon report cards and public policy

The final section focused on some ethical issues for public policy on practitioner report cards. Michael Parker (Professor, The Ethox Centre, Department of Public Health, Oxford University) discussed how much choice individuals might be prepared to sacrifice for social purposes, and whether some of the public goods of report cards might be jeopardised by a 'league table' approach. Parker argued that reporting can help to correct injustices in the distribution of surgical care, and he examined who in a democracy ought to be able to decide the criteria against which professional performance is to be measured.

Ian Freckelton (Medical Practitioner's Board of Victoria, Victorian Bar, and Adjunct Professor at the Law Schools of Monash and La Trobe Universities) argued that the introduction of practitioner report cards reflects increasing mistrust of health professionals, and he addressed some possible legal implications of report cards. He argued that few patients who make complaints about being inadequately informed say they would have altered their decision about a medical procedure if the relevant information had been provided, and so most such complaints are not actionable under medical negligence statutes. He then considered whether surgeon report cards are likely to result in an increase in litigation against surgeons.

The workshop papers are being revised for publication in an edited volume.