In two previous chapters we have looked systematically at the problems of balancing harms and good (chapter 6) and allocating scarce resources (chapter 10). Often the good that needs to be balanced and the resource that needs to be allocated involve money. Dentists cannot provide all of their services without compensation; they must be given some kind of payment so that they can provide for themselves and their families.
Until recently, the traditional fee-for-service method was usually used. Unlike medicine, which has long relied on insurance and publicly supported and charity care, dentistry was available, except in special cases and emergencies, primarily to those who paid directly for services rendered. This could mean that, despite a long history of dentists providing a certain amount of free care, some patients were forced by financial considerations to go without badly needed services.
The emergence of dental insurance has changed this somewhat, but it may have introduced a new set of ethical problems as well. Dental insurance is often considerably different from medical insurance, especially in its orientation toward prevention rather than treatment. The emphasis on prevention is a consequence of the fact that dental policies resemble prepaid health care more than they do true insurance. Medical insurance, like homeowners, automobile, and life insurance, exists primarily to cover unexpected and often very expensive events. When medical policies cover diagnostic or preventive services, they do so on an actuarial basis to contain costs in the long run. In contrast, dental policies are written to “prepay” predictable and affordable diagnostic and preventive services that people value. Furthermore, even when corrective dental treatment is required, the total cost is still smaller and more predictable than is most medical care, no matter how bad the problem is.
Another feature of dental insurance is that, although the terms of most policies are superficially variable, they are fundamentally similar in their structure. They all involve patient copayments for most services, and the less expensive services have the lowest copayments. Nevertheless, variability in the policies can lead to moral problems and confusion. For example, under the terms of a typical policy, it is often confusing to patients that while they pay nothing out of pocket for their examination or prophylaxis, they may be responsible for a 50% copayment for fixed partial dentures and a 20% copayment for amalgam and resin composite restorations. Thus, although total fees are usually lower in dentistry than in medicine, patient copayments are often proportionately higher. This sometimes leads to misunderstandings and conflicts between dentists and patients about the costs of treatment and the type of treatment provided.
Despite these differences between dentistry and medicine, there is a major similarity in the ethical tensions between capitation programs and traditional indemnity insurance. Capitation programs foster undertreatment and underutilization; fee-for-service programs foster overtreatment and overutilization.
The underlying ethical principles relevant to the economics of dentistry, dentists’ relationships with insurers, and setting financial limits on care have been covered in Part II. Many of these cases involve disputes over whether care is really beneficial (see the cases in chapter 6) and what should be done when an intervention is marginally beneficial but very expensive or when an insurer openly declares that a procedure is not covered (see the cases in chapter 10). Many of these cases also raise problems of what patients should be told about insurance companies that impose such limits. (The issues surrounding patient autonomy and informed consent are presented in chapter 8.) In this chapter, we look at additional cases that pose these questions while focusing specifically on insurance and the relationship among insurer, dentist, and patient.
Disputes About Whether Procedures Are Beneficial
We have seen in cases in previous chapters that deciding whether an intervention will do more good than harm is itself a controversial issue. In chapter 6 we saw that competent dentists can disagree with each other and that patients may sometimes disagree with their dentists about whether an intervention is, on balance, a benefit.
Part of this problem stems from the recognition that all judgments about benefit and harm inherently contain a subjective dimension. Deciding whether a treatment is, on balance, beneficial requires that the anticipated good be compared with the potential harm. Deciding how much good is done and how bad an envisioned side effect is are both value judgments to which no amount of dental science can provide completely definitive answers. (For more discussion of this problem see the introduction to chapter 6 and the accompanying cases in that chapter.)
Because of the subjective nature of judgments about benefits and harms, it is understandable that dentists disagree about how beneficial a treatment is in comparison with alternatives or even whether the treatment is, on balance, beneficial at all. It is also understandable that laypeople might reasonably come to a different value judgment about these matters.
An understanding of the subjective nature of clinical decisions is necessary to make sense out of the increasingly complex and frustrating problems of the dentist’s relationship to the insurer or to the manager of a prepaid capitation health care plan that covers dentistry. No rational subscriber would want to fund a service that was known in advance to be useless. Surely, insurers are within their rights not to cover such services. Some procedures can be demonstrated by good dental science not to produce the effects the dentist or the patient desires. For example, for many years oral surgeons often surgically managed nonpainful temporomandibular joint problems with symptoms of clicking or popping by physically repositioning the displaced meniscus. It is now clear that this treatment is completely ineffective. Eliminating such services may generate empirical disputes, but once it is agreed that the intervention will not have an effect, there is little ethical support for funding the service.
Much more commonly, there are disputes between insurers and dentists (or their patients) about whether there really is a benefit from the service. Because these are value judgment calls, it is not surprising that different people reach different conclusions even when they are acting in a disinterested, conscientious way. The following two cases involve disagreements about whether particular treatments are of any value. The cases in later sections of this chapter deal with claims against insurers in which the parties probably would agree that there is some value, but there may be disagreement about whether there is enough value for the insurer to fund the care.
Case 61: Insurance Consultant Says No to Bioresorbable Membrane
Dr Gordon Long submitted a preauthorization request to a patient’s insurance company for the management of a 10- to 12-mm bony defect on the distal root of a molar using a bone graft with the barrier membrane Resolut Adapt (WL Gore and Associates, Flagstaff, AZ). This bioresorbable membrane, composed of copolymers glycolide (PGA) and trimethyene carbonate, is surgically placed to lie between the bone graft and the overlying gingival tissue. Its presence keeps the gingival epithelium from proliferating into the defect site. This barrier action is the essence of its success because it is the proliferation of gingival epithelium that confounds the regeneration of new connective tissue and is a major factor in bone graft failure. The regeneration of new connective tissue attachment has been well documented in monkeys1 and dogs,2 and some success has been reported in humans.3–5 Many periodontists believe that the use of barrier membranes has radically improved the management of deep vertical periodontal pockets. Based on clinical trials, 90% success rates, as measured by evidence of tissue closure, now seem possible, compared with 20% in the more commonly used surgical debridement.
Other periodontists approach the use of barrier membrane techniques with some caution. Although it is true that connective tissue closure of the defects is well demonstrated, it is also true that the formation of new bone is unpredictable.6 Presumably the insurance company looked to this type of evidence when it took the position that the proposed care was not of clear net benefit and notified both the patient and Dr Long of its view.
Dr Long had been turned down before on similar requests and was angry with the insurance consultant’s lack of understanding of current developments in the field. The refusals also annoyed him because they tended to raise questions in the patient’s mind about Dr Long’s competence. It was difficult to continuously fight with insurance companies; Dr Long wondered whether he should decide on a less efficacious treatment approach.
Case 62: Obligations of an Insurance Consultant
Dr Douglas Kates is a periodontist who serves part-time as a dental consultant for a major insurance carrier. He reviews complex or controversial cases involving restorative or periodontal therapy that are submitted by dentists from around the country.
Recently Dr Kates received a request from a general practitioner for the approval of periodontal treatment for a 47-year-old man with no overriding medical complications. The treatment plan consisted of: (1) home care instructions, (2) scaling and root planing, (3) gingivectomy on two buccal segments, and (4) a bone graft (freeze-dried allograft) to replace extensive interradicular bone loss on a mandibular first permanent molar.
Dr Kates was impressed with the overall treatment plan. It showed much more knowledge of periodontics than he usually saw from a generalist. However, the bone graft troubled him because he thought it would probably fail. Freeze-dried allografts have shown greater than 50% fill in almost two thirds of the cases for intrabony defects but are only minimally effective in furcation defects.6 Other approaches would predictably yield better results, especially the use of PGA barrier membranes with allografts. The latter method would have been Dr Kates’ choice.
However, Dr Kates was glad that the dentist had not attempted to use the barrier membrane because general dentists rarely had formal training in its use. The manipulation of PGA membrane is so technique-sensitive that failures are common in untrained hands. That was probably why, at a fee of $985, it was the most expensive choice. For a fee of $765, the bone graft chosen by the dentist might have led to new bone formation, but unreliably so. Despite equivocal evidence of their success, these grafts were still regularly used in furcation defects by some periodontists. Other approaches, though less expensive, could only be expected to slow the progress of periodontal disease but could not be expected to generate new bone.
Dr Kates thought about whether to approve the overall treatment plan or to disapprove the bone graft while approving everything else. He had been so impressed by the dentist’s overall approach that he wanted to encourage the dentist by approving the entire treatment plan. He also knew that in the event that he rejected the request, the dentist could resubmit it for review by a different consultant. About half of such cases under appeal were approved.
What should Dr Kates do? Do his obligations lie with a patient he does not know, with the submitting dentist he would like to encourage, or with the insurance company that pays him?
DISCUSSION:
The previous two cases are complicated. Let us first look at them from the point of view of dentists who serve as consultants to the insurance companies. What precisely is the consulting dentist’s task? Is it only to determine if a procedure is covered under the terms of the policy? Is it to make sure that the clinical decision is based on acceptable scientific evidence? Is it to review and approve of the dentist’s value judgment, trading off the chance of success with other treatment alternatives? Keeping in mind that the assessment of the side effects requires a completely nonscientific judgment about the trade-offs and alternatives, is the consulting dentist’s task to decide whether to concur in the judgment that the side effects justify the procedure?
Let us assume that one of the operating rules for such dentists is that they are not to approve procedures that are not of known value. By definition, any procedure that is labeled “experimental” cannot be of known value.
Randomized clinical trials in which some subjects undergo experimental procedures and others do not are ethical only when it is more or less plausible that it is unknown whether the procedure is likely to be better or worse than the alternative treatment. Thus, any procedure that is still in an ethically acceptable clinical trial may be one that insurers would decide against funding.
Even procedures that are not experimental may produce real doubt about their benefit in specific patients. Presumably the consulting dentist should also disapprove of funding when it is not expected that a routine procedure of clinical practice will be of net benefit. In the case of the bone graft with a barrier membrane, presumably competent dentists disagree about whether the procedure will provide better treatment compared with its alternatives. Hence, it is important to know why these dentists disagree and what is the nature of their disagreement. They may be appealing to different facts, in which case the consultant must establish whether data support the desired outcome. Or they may value the outcomes or possible side effects differently. In the case Dr Kates is reviewing, there seems to be real doubt that the bone graft will work in that patient’s particular circumstances. Moreover, there is concern about discomfort. If Dr Kates doubts the general practitioner’s estimate of the likelihood of success, it is understandable that he would question funding the procedure. If he doubts whether some agreed-upon likelihood of success is worthwhile, given the discomfort and other possible side effects, we need to know why he makes the value judgment that he does.
Given the complexity of the decisions made by Dr Kates and other dentists who serve as consultants for insurance companies, it is debatable to what extent they should have a free hand to decide for or against procedures such as these bone grafts. They could be told that they should only assess the scientific data that support the clinician’s recommendation. They could be given explicit rules about funding or not funding experimental procedures or other classes of treatment.
In evaluating these cases, we need to determine who else could be expected to make these value judgments. One approach is to assume that the insurer is a rational, self-interested economic agent who will have to make value judgments such that the particular insurance package he or she is selling will be marketable. Presumably patients (or the employers who choose dental insurance for them) will select the plans that, in the long run, meet their needs and desires most effectively. Furthermore, employers will match benefits and costs in order to remain within a preconceived total cost. This approach is plausible when the coverage item is one that the typical consumer can anticipate needing—routine prophylaxis, for example—but it is unlikely to work for a procedure that is sufficiently obscure that buyers of insurance are unlikely to think about it and base their insurance purchase on whether it is covered.
Another approach is to assume that the money generated by an insurance plan can be divided into two “pots.” One would be the salaries of the insurance company administrators, management costs, etc. That amount could be set by free-market forces or by regulators in the way that public utility rates are set. The remaining funds could be viewed as “belonging” to the subscribers to use as they see fit. Even in this situation, however, there is a need to rationally allocate these benefits in an actuarially sound way. Logically, the managers would have no real interest in how the subscribers’ pot of money was spent. Likewise, consulting dentists would have no basis for deciding which values should be served or which moral principles should be used in deciding whether to maximize efficiency or distribute benefits equitably. (This conflict between utility and justice or equity was the focus of the cases in chapter 10.)
If neither insurance company managers nor health professionals have an interest in or a basis for deciding how the subscribers’ money is spent, then some have suggested that the subscribers themselves must allocate their pot of money. They could do this directly, such as in meetings of health maintenance organization (HMO) subscribers to decide what the general principles of coverage should be and which kinds of services should be given priority. They could also use indirect means—patient representative panels and labor negotiations—to further articulate which kinds of services are important. Finally, they could engage a consulting dentist to fine-tune the decisions on a case-by-case basis. This consultant, however, would be selected by the subscribers because he or she would represent the subscribers’ values and be trusted as their gatekeeper. This would mean that Dr Kates or the dentist who was questioning Dr Long’s treatment plan should be in tune with the subscribers as a group when it comes to making decisions about whether there is a net benefit of the treatment. The problem gets complicated, however, because even though this consultant dentist is hired by the group, he or she still has to work with rules and his or her interpretation of them. Different members of the group will have different values, and the consultant’s judgment will probably always make some individuals unhappy. There is no collective unified understanding. Instead, the policy is an average of many different preferences that, when realized, will show variation. This raises a further question about the moral duty of clinicians who make themselves available as consultants for insurers or managed care plans. Traditionally, the dentist’s moral commitment was to work for the welfare of the patient only. We saw in the cases in Part II that increasingly this has been expanded to include working for the rights as well as the welfare of the patient. Now, however, people are suggesting that dentists might legitimately work for public agencies or private insurers in roles that conflict with the welfare of individual patients. In these cases, if dentists are hired to make judgments on behalf of the insurer, they appear to end up with divided loyalties.
The moral principle of fidelity (discussed in chapter 7) plausibly would require that the consultant dentist refuse to accept any such commitments. Alternatively, a dentist might be able to engage in a division of moral labor, remaining loyal to the individual patient when in the clinical setting but shifting loyalties to an employer or a collectivity of patients when contractually committed to them. For example, a dentist could accept employment by which he or she was accountable to an HMO to see that no ineffective care was funded (even if the patient and patient’s dentist think that the care is valuable).
This poses a serious problem for any dentist who accepts an assignment from a labor union or a group of insured patients to serve as their gatekeeper. Theoretically, this dentist could be informed about the preferred value judgments of the subscribers and told to try to make allocational choices based on those values. The subscribers as a group would recognize that individuals from within their group would occasionally not get the care that they desired. Increasingly, dentists are accepting such assignments. While they seem incompatible with the traditional professional obligation to remain loyal to the individual patient, dentistry practiced in a social setting must involve moral judgments based on competing interests. That will necessarily mean not giving every patient everything that he or she could conceivably want.
There is a closely related problem raised by these two cases. We have seen that there is a real dispute about whether these treatments offer more good than harm. Apparently reasonable, competent, dedicated dentists can disagree, in part because some issues are inherently subjective evaluations of the alternatives.
In these cases, the problems of informed consent discussed in the cases in chapter 8 emerge once again. If Dr Kates believes that the bone graft is not worthwhile (even though the patient’s clinician does find it worthwhile), the patient would seemingly have a right to be informed of the disagreement about the treatment course. Alternatively, if Dr Kates did concur with the general practitioner, even though both knew that a significant proportion of competent dentists would not concur, the patient would plausibly have a right to know that other dentists had a differing view. This patient’s treatment plan and insurance funding cannot be left to the luck of the draw as to whether the insurance company’s dentist and the patient’s dentist happen to be on the same side of the dispute. It would be reasonable to inform the patient of the dispute regardless of whether these two dentists happen to agree.
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