Legal / Ethics

Many shades of grey

Grey or gray is defined as an intermediate color between black and white, a neutral or achromatic color, meaning literally a color “without color.” According to color historian Eva Heller, “grey is…neither warm nor cold, neither material or spiritual. With grey, nothing seems to be decided.” And where nothing is decided, anything is possible: right and wrong lose their definitions amid a welter of ambiguity. For example, when health care, always in the past an altruistic endeavor, became a business (but only in the USA) and then only for certains “segments” of the “marketplace.” As a result, healthcare institutions and professionals alike found themselves in a netherland composed of many shades of grey.

  • On April 16, 2013, The Chicago Tribune reported that “the owner and another senior executive of Sacred Heart Hospital and four physicians affiliated with this west side Chicago facility were arrested today for allegedly conspiring to pay and receive illegal kickbacks, including more than $225,000 in cash, along with other forms of payment, in exchange for the referral of patients insured by Medicare and Medicaid to the hospital.” And they are hardly alone.
  • On July 9, 2013, The Hospital Advisory Board reported that “the CEO of a psychiatric hospital in Florida faces up to 170 years in prison for a $67 million Medicare billing scam that prosecutors have described as a ‘brothel of fraud,’ the Miami Herald reports.”
  • And then on June 28, 2013 the Miami Herald reported that “the top executive and three aides who prosecutors say operated a Hollywood psychiatric hospital like a ‘brothel of fraud’ were found guilty Friday of bilking Medicare by submitting false claims for $67 million. The taxpayer-funded healthcare program was duped into paying almost $40 million to Hollywood Pavilion, whose chief executive officer and others covered up the ‘sham’ by falsifying patient records and marketing contracts with ‘dirty’ patient recruiters, according to Justice Department prosecutors. The recruiters, many convicted felons, were paid more than $1 million for the patient referrals, prosecutors said.”
  • And when I Googled “Medicare Fraud,” I got 43,000,000 results in 0.43 seconds!

In her article, “How do we get in ethically murky situations?” Gaillour asks, “Do we have the courage to occasionally point out to our fellow physicians and executive colleagues that their approach bothers us ethically?” She answers herself with, “Just because there is money to cover a therapy, that doesn’t make it necessary. Our silence is permission for everyone to continue dipping into the deep pockets of taxpayers, government and patients, no matter the medical appropriateness.”

Over 30 years ago, Scott and Hart, in their book Organizational America, were alarmed by the drift toward the totalitarian organization: “…The organizational imperative has now become absolute: Whatever is good for the individual can only come from the modern organization…Therefore, the overriding concern of managers is to keep their organizations healthy; if their clients are served as a consequence, it is a happy secondary result of the primary managerial concern.” Five years later Valesquez, writing in Business and Professional Ethics Journal, asserted, “As loyalty to the corporation becomes the basic virtue and service to the corporation the basic moral act, the individual will end up by being swallowed up by the corporation.” Thus it was predicted, and thus it has become. Corporate executives who decide to sacrifice the public’s well-being to the bottomline go unnamed and unpunished. Industry advocacy and quality experts claim that the system, not the professional, is responsible for medication errors. Just about everybody ducks behind the corporate skirt to avoid responsibility!

Even the law views a corporation as a “legal person” and rare, indeed, is it for those executives who made the decisions and/or created the incentives that rewarded corporate members for unethical or illegal behavior to be held morally, professionally, or legally accountable. This is not all bad, especially for those who wish to sue the “corporate person” (who has far deeper pockets) for some evil or irresponsible deed performed by one of its members—but it is mostly bad. At the very least, it confuses two very important concepts of responsibility. Although the issue is more complex, when we say a corporation is responsible for some wrongful act, what we mean is that some people within the corporation are morally responsible for the act; it does not mean that some disembodied entity called “the corporation” performed an action—and it almost never means that we think that every member of the organization was morally complicit in the act (yet, under the law, every member of a lynch mob is morally complicit in the murder).

This kind of discussion is essential if we don’t want corporate accountability to destroy the corporation’s members’sense of personal responsibility. As for the notion of a morally autonomous corporate person whose importance is so great that its members and customers alike can be sacrificed to its collective well-being: We are already weaving the handbasket—and we’re half way to hell!

Leah Curtin is Executive Editor, Professional Outreach for American Nurse Today.


Seleted references

Gaillour F. How do we get into ethically murky situations, anyway? HealthLeaders News. Aug. 4, 2003.

Scott WG, Hart DK. Organizational America. Boston, Mass: Mariner Books; 1980.

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One thought on “Many shades of grey”

  1. Ann says:

    I just wanted to take this time to thank Dr. Curtin for her wisdom, insight and intelligence. And to thank the publishers for making her work available to us online as well as in the print magazine.

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