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by Emily Friedman

First published in Hospitals & Health Networks OnLine, December 2, 2008

Recent events have revealed a troubling paradox: Although everyone from politicians to health care executives talks about "the new accountability," it appears that more and more people in high places are immune from responsibility for the consequences of their actions and decisions. This is not good for society, nor is it acceptable in a health care system.

Emily Friedman
Emily Friedman

Impunity (n). From the Middle French or Latin word for "without punishment": exemption or freedom from punishment, harm, or loss.

-- Paraphrased from Merriam Webster's Collegiate Dictionary

Most of us were raised to have a sense of consequences: You spill the milk, you clean it up. You are rude to a parent, you get a "time out." You stay out too late, you are grounded.

Understanding what happens when you break the rules is, in fact, one of the most basic lessons in human development: You do this, that happens. You do that, this happens. It's not complicated, but it is profound; indeed, in my opinion, one of the basic rules of all ethical behavior is that actions have consequences, and you are responsible for what happens as a result of your actions. Although much of ethics can tend toward the arcane, this one is not rocket science.

Getting Away with It

Nonetheless, with this society facing possibly the worst economic crisis since the Great Depression, and with most of us almost benumbed by the misbehavior of celebrities in all walks of life, a deeply disturbing pattern has emerged: Some folks apparently can do anything they want and get away with it.

We almost expect it in politics, of course. Thirty years ago, then-U.S. vice president Spiro Agnew, who had accepted bribes totaling over $200,000 while governor of Maryland, was allowed to plead "no contest" to corruption charges, paid a $10,000 fine and resigned his office. In the election just past, Alaska Senator Ted Stevens, convicted of corruption a week before the election, nearly retained his seat. In Louisiana, Congressman William Jefferson, who is under federal indictment for bribery and other offenses (and in whose freezer $90,000 in cash was found by federal agents), handily won the state Democratic primary in November and is a shoo-in to be re-elected this month.

I am reminded of when, in 1992, a Wisconsin court found demented serial torturer and murderer Jeffrey Dahmer sane and capable of standing trial. I thought at the time, "If he's sane, what do you have to do around here to be mentally ill?"

If we insist on electing and re-electing people who are under investigation, have been indicted or have even been convicted, what do you have to do around here to be unfit for office?

The final irony is that if anyone is convicted near the end of a president's or governor's term, he or she can always be pardoned as the chief executive leaves office.

It isn't just in politics. For nearly 20 years, beginning in 1972, Chicago police commander Jon Burge and his henchmen tortured dozens of "suspects"-almost all African-American men-into making false confessions. Some of his innocent victims spent decades in prison. Burge eventually retired and moved to a lovely spot in Florida.

Also, everyone in this country-and in much of the world-has been treated to an endless string of corporate scandals dating back, at least in the current round, to the 2001 Enron bankruptcy. You would think, after Enron and Adelphia and Global Crossing and dozens of dot-com disasters, that someone might have thought the chicken coop needed a watcher.

Oh, no; then came the housing bubble. The mortgage brokers and the real estate agents and the bankers and the investment houses found overinflation in housing a lovely way to make money, and most of them did exactly that. Big money. With no oversight, how much of a stretch was it to start loaning $500,000 to people making $40,000 a year, with no down payment or proof of income?

No stretch at all; the loan was sold at closing to another bank, and then to another bank, and then to Freddie Mac or Fannie Mae, whose executives were living large and paying lobbyists and making big-time contributions to politicians of both parties, so who cared? Those nine-figure incomes were their due.

Until it came crashing down on their heads.

But it didn't really come crashing down on their heads; it came crashing down on ours. They aren't being bailed out with their money, but with ours.

Former Federal Reserve chief Alan Greenspan, on whose watch most of these monsters were hatched, said recently that he really believed the private sector could police itself, and thus there was no need for oversight. Right, Alan; the Securities and Exchange Commission is there to be a decoration, not to prevent recurrence of the calamities of 1929 and 1987.

And as our economy shreds around our ears, what does the current head of the Federal Reserve do? Ben Bernanke arranges for Michael Alix, the former risk manager for the failed investment house of Bear Stearns, to become a key official of the Federal Reserve group that supervises banks. Two Bear Stearns executives are under indictment for lying to investors and costing them nearly $2 billion when their hedge funds failed. Hey-no risk, no gain.

Within days of their ailing firm receiving more than $100 billion in federal bailout money, executives of the highly politically connected insurance firm AIG licked their wounds at a weekend retreat in California that cost nearly $500,000.

And then there's O.J. and the professional athletes of the performance-enhancing drug crowd, but there is only so much of this one can take.

Health Care Is Not Immune

Let's not be too cocky; health care has its own impunity stars. Take (please) Peter Rogan, former CEO of Edgewater Hospital in Chicago, which went bankrupt and closed in 1991. Several of its leaders were imprisoned for everything from providing unnecessary medical services to taking kickbacks to cheating Medicaid and Medicare.

Rogan managed to finesse all that, but was indicted earlier this year for perjury and obstruction of justice in connection with a $64 million federal judgment against him; he claimed, under oath, that he had no money. At the time, one of his offshore accounts was producing $760,000 in interest and dividends annually. The trustee of another account-which Rogan claims he had no control over-paid big bucks for maintenance and service of Rogan's 48-foot yacht, the aptly named Fringe Benefit.

Richard Scrushy of HealthSouth has yet to go to prison, despite being convicted for bribery, and was recently out yachting off the Florida coast. Many of those responsible for the 1998 bankruptcy of the Allegheny Health & Education Research Foundation in Pennsylvania got away with what can only be described as pillaging their own organization. The cardiologists in California who were doing totally unnecessary angioplasties and bypasses never went to prison. Physicians with financial stakes in for-profit niche hospitals regularly refer patients to them, despite the fact that, near as I can tell, that's against the law. Physicians and hospitals that claim to be willing to treat Medicaid patients never get around to doing so.

Patients are abused and abandoned, nurses are sexually harassed and raped, rogue physicians run roughshod over other staff members, trustees are too busy playing golf with vendors to notice, and nobody does anything to stop it.

And as Bob Dylan once wrote, "Money doesn't talk; it screams." If you are rich enough, you can get away with anything. Warren Buffett can buy a newspaper in a major American city and basically destroy it; Bill Gates became one of the world's richest people by establishing a monopoly (antitrust? what antitrust?) and then forcing the rest of us to buy buggy, dysfunctional products. You have enough bucks, you have impunity.

So What?

And so, you might ask, what else is new? That's how it is.

That's one response. Another is, that may be how it is, but it cannot be how it is in health care. It just can't.

There are four issues here worth considering before we throw in the towel.

First, impunity is not healthy for any society-does the name Hitler ring a bell?-but it is particularly deadly in health care because our health care system-indeed, any health care system-is rooted in trust. Trust between patient and providing institution, between patient and physician, patient and nurse, physician and nurse, nurse and nurse, payer and provider, regulator and provider.

There is no way that a social organism as complex as a health care system-and even the smallest hospital or clinic is very complex-can be completely regulated from the outside. Most health care activities are on an honor system because there is no other way. And when that honor is violated, when shortcuts are taken, when profiteering takes place behind closed doors, when the crooked deals are made and the winks and grins win the day, the effect on our entire system is toxic.

For all those nonprofit organizations that are being scrutinized by Congress and state attorneys general, for all those hospitals and clinics that are finding the credit markets closed to them-and at least one hospital has closed, and probably more will before this column is published because of lack of access to credit-do you really think that the malfeasance of your brethren doesn't affect you? Do you not understand that the shadows of Allegheny and HealthSouth haunt every American health care provider?

The Public Isn't Stupid

Beyond the financial risk and possible heavier regulation is the basic fact that our public is losing faith in its health care system, and I cannot imagine anything more tragic for our field. People feel betrayed. They believed in their hospitals and clinics and physicians, and they donated money and left legacies in their wills, and all those who are still living hear about is new wings and new buildings and avoidance of the desperately sick and poor and lavish executive and board compensation. Those exposés in The Wall Street Journal-whatever the sources of the research or the politics behind them-have poisoned health care's waters, and yet we still don't seem to get it. The basic American values of fairness and equality of opportunity have been violated, within health care and in many other sectors, and people are heartsick-and angry.

A Short, But Vicious, Half-Life

A few days ago I was having dinner with a group of nurse executives, and I was lamenting a situation I learned about in which a megalomaniac physician who has his fingers in all the pies in his community had engineered the firing of most of the executive and nursing leaders in his pursuit of total control of the organization. I was quite bummed out-here was yet another situation in which impunity seemed to have trumped morality-and one of my colleagues replied brightly, "It won't last long."

She was right, of course; these situations do not go on forever. Yes, often the miscreants walk away with immense fortunes and smug grins on their faces, and sometimes they pay their dues in something resembling real time and sometimes justice takes longer, but the thing about impunity is that it doesn't last.

I was discussing this notion with Maria Friedman (no relation), a health care consultant and student of history, and she reminded me that the word triumph originally derived from a ceremony in ancient Rome in which a victorious general was honored. It is said that during the parade honoring the hero, a slave stood behind him in the chariot, holding a golden wreath over his head and whispering words like, "Look behind you; you are only a man" and "Remember that you are mortal."

Impunity doesn't last. Professional football star Ray Lewis, who was neck-deep in a murder, may have been voted MVP, but Rae Carruth, also a football star, is in prison for the murder of his pregnant girlfriend. And although no one will ever know if the Las Vegas jury convicted O.J. Simpson for the crime he was accused of, or for the crime of which he was acquitted, he may well be headed to prison. Kenneth Lay of Enron escaped prison only by dying; most of his cohorts are incarcerated. Spiro Agnew eventually was forced to pay the state of Maryland nearly $300,000. Rogue Chicago cop Jon Burge has finally been indicted. What goes around does come around, I think, although sometimes the process is Byzantine and agonizingly slow.

In the Meantime . . .

But all this avoids the central question. Let us say that, at least for a while, impunity prevails. Microsoft can sell lousy software. Investment bankers walk away from the housing disaster with nine-figure incomes while regular people who lost their jobs become homeless. Trustees who oversaw gross malfeasance looked the other way and are still on the board. The rest of us watched all this with growing anger and, given that there was an election being conveniently held at the time, engaged in something of a throw-the-bums-out purge (with the exception of the politicians mentioned above, and, unfortunately, many more).

But for those of us who wish to live responsible lives, the transient satisfaction of replacing one leader who thought he or she had impunity with another who may soon be deluded into thinking the same thing is fleeting. What might we do, in our individual lives, to look in the face of impunity and try to blunt its often awesome force? I have four thoughts.

First, engage in small acts of resistance. Don't shop there; don't buy the product; don't go with the flow. Two of the most remarkable-and successful-social movements in this country's history did not involve the use of force or guns, but rather small actions: refusing to sit in the back of the bus, insisting that paper and metal and glass be recycled, and buying recycled products. No government dictated that fathers be allowed to be in the presence of their wives when their children were born; that victory was won one teeny step at a time, hospital by hospital, physician by physician. We all make small decisions, every day, that can eventually build, drop by drop, into a tidal wave.

Second, don't give up in the face of impunity. Fight back. Complain. Demand change. The rich and powerful hold the field much of the time, but not all of the time. If there is anything that this quirky democracy of ours offers, it is the opportunity to change the status quo. Asked what he thought the key lesson of the 20th century was, historian Arthur Schlesinger Jr. replied, "Free men are not the slaves of history." (I wish he had said "free people," but anyway….) This country was founded by people who did not wish to be the slaves of history, and I think we should follow their lead.

Third, don't get all starry-eyed in the face of those who seem invulnerable. I'm not a fan of the celebrity cultism of current American society, but that's neither here nor there; if someone is dumb enough to pay Paris Hilton to make a music CD, and if people are dumb enough to buy it, then fine. It's a free country. But there is no reason to give up your sense of judgment, your freedom of choice, and especially your dignity, simply because someone seems to be all-powerful and immune to consequences and is demanding obeisance. To do so demeans you, and it does not impress the people in power; they expect it. Surprise them; walk away.

Fourth and finally, remember one of my other basic ethical precepts: There is only one person for whose behavior you are, in the end, responsible. I have been asked on many occasions-and I am greatly complimented by this, and I could certainly use both the money and the perks-to sit on the boards of organizations. I will not do so, simply because I am still a working journalist and analyst and I never know when I may need to write about this or that outfit, and if I am going to do so, I wish to do it with clean hands. Obviously, I am paid for my work by my clients, but I differentiate that from taking fiduciary responsibility for an organization. It's like the old joke about bacon and eggs: The chicken is involved, but the pig is committed.

And when I tell folks, with gratitude, that I cannot accept their kind invitation, I am often told that such-and-such a journalist sits on this or that board, so what's my problem? My response is always the same: I am not responsible for what they do. I am only responsible for what I do.

In the end, impunity did not last for Julius Caesar or Napoleon or Shah Reza Pahlavi of Iran or Saddam Hussein of Iraq or many others who were seduced by the perception of their own invulnerability. Humanity has not survived this long by allowing that sort of thing to go on endlessly. So I will leave the last words to the great, late historian Barbara Tuchman, a true student of the human experience, who wrote in her marvelous study of political failure, The March of Folly: "Three outstanding attitudes-obliviousness to the growing disaffection of constituents, primacy of self-aggrandizement, and the illusion of invulnerable status-are persistent aspects of folly."

Let us find other, more substantive altars at which to worship.

Emily Friedman is an independent health policy and ethics analyst based in Chicago. She is also a regular contributor to H&HN OnLine.

First published in Hospitals & Health Networks OnLine, December 2, 2008

© Emily Friedman 2008

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