The Journal of Things We Like (Lots)
Select Page
Richard S. Saver, Physicians' Elusive Public Health Duties, 99 N.C. L. Rev. 923 (2021).

Both legal and ethical frameworks governing the practice of medicine typically emphasize the importance of “putting patients first.” In a thoughtful new article, Richard Saver shows how this often-unquestioned maxim has allowed the medical profession to “too easily discount community health considerations.” (P. 926.) After identifying a variety of ways in which physicians’ patient-centered ethos has led to the “externalization of health risks to the general public” (P. 928), he offers suggestions for “making community physicians’ public health duties more cognizable and influential.” (P. 929.)

As Saver demonstrates, physicians sometimes use the mantra of putting patients first as a justification for actions that threaten community welfare. For example, when the COVID-19 pandemic worsened in March 2020, some physicians continued to perform elective surgical procedures, citing their duties to patients as a justification for ignoring public health advice to conserve hospital resources. Similarly, physicians have appealed to patient interests as a justification for ignoring public health guidance to limit the prescription of broad-spectrum antibiotics and, until recently, for prescribing large amounts of opioids despite the foreseeable risk that leftover pills would be diverted to non-patients. Physicians’ patient-centered orientation has also led them to resist calls to use medical encounters as an opportunity to promote public health messages. For example, while many medical groups have urged physicians to play a greater role in combatting gun violence, most physicians rarely talk to patients about firearms, perceiving such discussions “as beyond their professional scope of practice” and potentially damaging to the physician-patient relationship. (P. 964.)

Saver attributes these attitudes to both legal influences and the culture and ethics of the medical profession. On the legal side, he notes that physicians’ duties to patients are typically not triggered absent the formation of a treatment relationship with an individual patient, and once triggered, these duties are often characterized in fiduciary terms. While some courts have recognized circumstances in which physicians have duties to non-patients, those duties have been carefully circumscribed. For example, courts that have recognized a duty to warn third parties at risk of contracting an infectious disease from a patient have limited the duty to household members or other specific persons with a very close nexus to the patient. In addition to judicial reluctance to recognize public health duties, most licensing statutes focus exclusively on physicians’ patient care obligations. While a few statutes mention physicians’ duties to comply with disease reporting obligations, and a handful even incorporate more open-ended duties to avoid “harm to the public,” Saver notes that these broader public health obligations are rarely enforced.

The law’s conception of physicians’ duties largely mirrors the medical profession’s understanding of its own responsibilities. Even though the American Medical Association (AMA) revised its Code of Ethics in 2016 to emphasize that physicians have certain public health obligations, Saver argues that “much of this guidance pays mere lip service to physicians’ public health role.” (P. 944.) For example, while the AMA recognizes physicians’ obligation to participate in routine universal patient screening for HIV, it advises physicians that their “primary ethical obligation is to their individual patients.” In light of this obligation, the AMA cautions, screening programs must include a mechanism for patients to opt out of being tested. Saver points out that no AMA ethics opinion provides “any indication when physicians’ public health duties will ever eclipse and outweigh their obligations to individual patients.” (P. 945.)

The profession’s “seeming enfeeblement of [public health] duties by obfuscation” should not be surprising, Saver argues, as appeals to public health conflict with medical ethics’ “strong concern with individual autonomy and patient beneficence.” (P. 945.) He also suggests that a focus on public health could also be seen as a threat to physicians’ autonomy and potentially their economic welfare. For example, when physicians refused to postpone elective surgeries in the early months of the COVID-19 pandemic, “the ‘patients first’ rationale was so broad and seemingly beyond reproach that it could obscure financial incentives and other questionable reasons at odds with community health protection.” (P. 952.)

Saver cogently explains the costs of viewing physicians’ responsibilities primarily in terms of individual patients. The public health system, he argues, “cannot effectively operate without broad, engaged participation of private physicians.” (P. 972.) For example, physicians are the first to observe warning signs of community health threats and are often in the best position to act on those threats in a timely manner. Similarly, physicians’ role as gatekeepers to health care products and services “makes them uniquely positioned to direct the use of limited societal resources for safeguarding the health of the community.” (P. 974.) Because physicians are trusted community members, they also can play an important role in communicating public health messages, both to their own patients and members of the community.

Saver recognizes that efforts to reconceptualize physicians’ duties to incorporate public health interests are likely to face resistance. In addition to challenging the dominant patient-first attitude, a legal duty to promote public health could be seen as conflicting with the common law’s reluctance to impose affirmative duties. It could also raise fears about exposing physicians to potentially unlimited liability or undermining physicians’ fiduciary duty of loyalty to patients. However, he convincingly argues that none of these potential objections raises insurmountable problems. Moreover, “from the ex ante perspective, before knowing what their particular circumstances will be, most individuals would likely prefer a regime where physicians have more robust public health duties that sometimes trump patient welfare concerns.” (P. 980.)

Saver concludes with recommendations for legal and policy reform. As a starting point, he urges stronger enforcement of the minimal public health obligations the law already imposes on physicians, such as statutes requiring physicians to report certain communicable diseases, and stepped-up enforcement of public health obligations by medical licensing boards. He also calls on lawmakers to consider adding financial incentives under Medicare and other government health care programs to encourage physicians to meet targeted public health goals, such as prescribing antibiotics according to public health guidelines or engaging in a particular number of gun-violence screenings with patients. Recognizing concerns about exposing physicians to unbounded liability, he suggests that enforcement of public health duties might be delegated to “intermediaries and proxies for the public, such as state attorneys general or state medical boards,” rather than expanding tort-law causes of action.

Saver’s analysis demonstrates that, while “putting patients first” is often an admirable attitude, physicians who focus exclusively on their individual patients can undermine community well-being. While the legal changes he recommends are relatively modest, they could lay the groundwork for an important shift in physicians’ self-conception of their professional responsibilities. The article is an important contribution that deserves the attention of anyone interested in health law, bioethics, and the medical profession.

Download PDF
Cite as: Carl Coleman, The Hidden Public Health Consequences of “Putting Patients First”, JOTWELL (February 14, 2022) (reviewing Richard S. Saver, Physicians' Elusive Public Health Duties, 99 N.C. L. Rev. 923 (2021)),