A Challenge for the Constitutional Democratic State
The authors concluded that “It is important to acknowledge that economic pressure on hospitals can undermine the independence of medical decision-making” (1); I agree without reservations. However, their suggested approaches—open discussion/the lifting of taboos, reform of funding regulations and improved healthcare structures, intercommunication within the hospital, a strong voice for medical ethics—do require clarification.
In a liberal constitutional democracy, undesirable effects of profit maximization in the market economy on issues of general public interest are avoided not by ethical appeals, but by a legal system that effectively sanctions behavior inconsistent with the public interest. In the hospital sector, state regulation should provide for mandatory quality specifications pertaining to the necessary equipment and staffing levels, which provide doctors and nursing staff the scope to do their jobs in ways consistent with their professional ethical requirements. Violations of quality specifications should lead to sanctions in the setting of criminal liability for businesses, as stipulated by Deutsches Ärzteblatt in 2016. The civil liability system is not suitable for this purpose as it does not sufficiently capture the organizational culpability of decision-makers distant from patient services.
In the view of criminal lawyers, organizational decisions at the management level of healthcare institutions should primarily be under the control of criminal law (2), with the caveat that prosecuting attorneys’ offices and the courts will have to be equipped (and staffed) accordingly and appropriately.
When the authors state that “Our society could benefit greatly from discussion of the role of economic arguments in medicine and the health care system”, it has to be stressed that, in a democratic state, the place for this debate is parliament, where legislators should fulfil their remit of correcting obviously undesirable developments within the healthcare system.
Prof. Dr. med. Peter Elsner
Vertreter des Deutschen Hochschulverbands an der Universität Jena
|1.||Wehkamp KH, Naegler H: The commercialization of patient-related decision-making in hospitals—a qualitative study of the perceptions of doctors and chief executive officers. Dtsch Arztebl Int 2017; 114: 797–804 VOLLTEXT|
|2.||Neelmeier T: Organisationsverschulden patientenferner Entscheider und einrichtungsbezogene Aufklärung. Baden-Baden: Nomos 2014 CrossRef|