The Physician's Role, "Sham Surgery," and Trust: A Conflict of Duties?

Introduction

Franklin G. Miller (2003) argues that an absolute prohibition on placebo surgical procedures, or "sham surgery," is ethically unwarranted. I agree with the conclusion, but I find that his reasons do not uniformly support his view. I take issue with his claim that a primary mistake in the argument favoring a prohibition of sham surgery is that it confuses the ethical roles of clinical research and clinical therapy. The question on sham surgical research, I contend, finally turns on what constitutes acceptable risks when using human subjects. This question, however, is sensitive to the climate of trust in the medical profession. Since public trust in medicine is not robust, it gives the medical profession reason to tread lightly when contemplating the use of sham surgical-clinical trials, even though the prohibition against sham surgery cannot be absolute.

The Basic Argument for a Prohibition of Sham Surgery

According to Miller, the prohibitionist argument (PA) runs something like this: Physicians should not expose patients to risks from interventions unless it is reasonable to believe the risks are outweighed by potential medical benefits; however, since sham surgery fails to deliver such benefits to patients, the use of sham surgery is not ethically justified. Thus, according to PA, sham surgery appears to be inconsistent with the duty of personal care.

It should be noted, however, that while Miller mentions recent commentators arguing against any use of sham surgery (Clark 2002), the movement toward prohibition does not appear overwhelming. For instance, in June 2003 the American Medical Association (AMA) adopted the Council on Ethical and Judicial Affairs's opinion 2-A-03, which allows limited justification for sham surgery in some of its forms.

Challenging the Prohibitionist Argument

Let us then consider Miller's challenge to PA. For Miller, PA founders on three basic mistakes. As to the first mistake, Miller writes that what makes sham surgery appear inherently or presumptively unethical is the tendency to confuse the ethics of a randomized clinical trial with the ethics of personal medical therapy. The role of clinical research, says Miller, is the improvement of medical care generally, and the anticipated advance in scientific knowledge justifies the research. Personal medical care, however, is grounded in benefiting the patient and protecting them from unnecessary harm during therapeutic care. However, Miller's distinction does not recognize crucial hierarchical elements that warp the physician's role across both ethical concerns.

The Deontic Character of the Physician's Role

It is instructive to note that the two roles fall quite naturally into Kantian and utilitarian camps. According to PA, patient advocacy sounds like a Kantian perfect duty that must always be followed, while other obligations of physicians are similar to imperfect duties that are obligatory but discretionary in application. The ethics of research, on the other hand, is driven by goals promoting the greater medical good for the general welfare. While a pure Kantian picture is perhaps too strong for contemporary analysis, it seems undeniable that the physician's role, both in general conception, and as articulated in PA, has a broad prima facie deontic character and structure.

The structure of this role is succinctly articulated in the preamble of the AMA Code of Medical Ethics (2002): "The medical profession has long subscribed to a body of ethical statements developed primarily for the benefit of the patient" (xii). The overall message is clear. In a conflict, benefit to the patient trumps other duties. Certainly, we must allow that what is said in the AMA Code is not sufficient to conclude debate, but as the first and oldest living code of professional ethics, founded in 1847, its presumptive force is well established.

Miller seems to view the issue of physician's roles as different hats for different duties. I have denied this. The hierarchical quality of the physician's role counts decidedly against it. The point of the deontic...