Hammurabi, Defensive Medicine, and Practice Guidelines

The world owes all its onward impulses to men ill at ease.
The happy man inevitably confines himself within ancient limits.

Nathaniel Hawthorne (1804-1864)

On Managed Care And Cutting-Edge Technology

In the wake of the epochal November 1994 elections that swept conservatives to power, and hopefully a new philosophy of health reform—viz, economic incentives to promote healthy lifestyles and the pursuit of longevity—it is appropriate and relevant we discuss the new vistas of opportunities for cutting-edge technologies in the biomedical industries and the potential impediments to health progress.

Despite the presently available medical networks for communication via Cybermedix and the Information Superhighway, the greatest impediment to this “state of the art” technology reaching clinical medicine and patients any time soon, remains the present atmosphere of cost controls, covert rationing of medical care, and litigation- (of individual physicians, not the networks which are shielded) on-demand.

Managed competition—the prevailing philosophy of health care delivery with its centerpiece, managed care, incarnated in HMOs—does not have the advancement of cutting-edge technology, promotion of academic medicine, or the prolongation of life expectancy as its primary goals, but the implementation of cost control mechanisms and the fiscal realization of the bottom line, as the ultimate objectives. We will have more to say later about cost controls and rationing in the managed care/managed competition model.

Managed care may be free-market for the health system network mega-corporations, but not for the traditional innovators of medical technology (the medical scientists and entrepreneurs of yore), nor for physicians and their patients, who will relate under a new set of ethics and a yet-to-be-determined “new model” of the patient-doctor relationship.(1)

Unless we are very careful and actively oppose the present trend, the role of gatekeeper will be amplified from that of following practice guidelines (or parameters) and restricting access to specialists and complex treatments, to that of actively denying their patients referral to new and expensive technologies and to potentially life-saving, “experimental” treatments and procedures.

I’m deeply concerned in the present zeitgeist and under the prevailing winds of cost controls and persistent interference in the patient-doctor relationship, further restrictions will be made—be that via the denial of coverage of procedures deemed “experimental,” or “not appropriate or medically necessary” by utilization review personnel responsive to the cost control incentives of the HMOs that employ them.  Also quite disturbing are the reports about the increasing practice of “off-the-cuff” diagnoses (without the benefit of the appropriate diagnostic studies such as MRIs or CT scans until late in the progress of the illness) made by managed care physicians attempting to hold down costs that frequently are proved to be “off-the-mark”; instead, not infrequently, this practice results in damaging and costly lawsuits.(2) (And, in this setting, I will be the first to admit lawsuits would not only be justified, but necessary to protect patients from wayward, unethical “providers.”)

It does not take a lot of cogitation and analysis to realize that the relationship of managed care and the implementation of new (and frequently) expensive technologies pose a new problem in health care delivery. As things now stand, characterization of a treatment modality as an “experimental procedure” could result in denial of care, and consequently, more lawsuits and stagnation of medical innovation as well as further erosion of the already strained patient-doctor relationship.

Unless truly free-market principles are put firmly in place in the delivery of medical care, particularly research and development, I suspect we could end up with a scarcity of new medical treatments and procedures, if not frank regression in everyday clinical practice, negating the great medical strides made since the turn of the century

Today, a gatekeeper may be a conscientious “primary care” physician, or physician’s assistant, or even a nurse practitioner. Tomorrow, he may be a savvy medical provider who would undercut his colleague’s economic base because of a willingness to apply more flexible ethics and display a disposition that more easily conforms to the wishes of the third-party payers or the government.

And this brings us to the ultimate question: Do we want to continue to extend (or resume our drive towards) improving life expectancy (concomitant with enhancements in quality of life), advance superior and cutting-edge technology, or should we keep the course of today’s self-proclaimed health care experts and bio-medical ethicists who believe that overt rationing is inevitable, and thus, we should relent to the present limits of scientific technology? For myself, I will opt for the patient-oriented, free-market approach* to medical care and for the continued expansion of the vistas of medical knowledge. Those who would chose the latter option, I suppose, will be content to use low-level of care palliation for the chronically ill and those suffering from the ravages of advancing age, while promoting the drive toward the more aggressive use of advanced directives and other right-to-die reforms leading incipiently toward active euthanasia.

And for those who say we cannot afford to expand the limits of medical technology much longer because of burgeoning population, and “the proper allocation of finite resources,” I say: “Yes we can.” Look at the thriving nations of the Pacific Rim in Asia: Taiwan, Singapore, Malaysia, Indonesia, and Hong Kong—all of which, under the banner of free-market capitalism, individual incentives, and the application of advancing technology—are becoming prosperous communities with higher standards of living and with individuals living healthier and longer than their counterparts in India and Africa who continue to languish under the old, discredited ideas of socialism and collectivism.

If we are not quick to learn and make amends about the impediments that managed competition poses to medical advances, research and development, we may find ourselves falling behind in the communication and biomedical, technologic revolutions of the 21st Century.

Perhaps we should look at the lessons of history for guidance and using its wisdom address two pressing problems brought on by new developments in medical care—the implementation of practice guidelines with its concomitant reduction in innovation in medical progress, in general, and medical technology, in particular, and the practice of defensive medicine with its resulting decrease in the quality of medical care.

Hammurabi’s Medical Legacy—Defensive Medicine in Egypt c. 1750-1500 B.C.

The Code of Hammurabi strictly and harshly dealt with an “eye for an eye” justice, as well as general medical jurisprudence in Akkadian Babylonia, c. 1750 B.C. For example, regarding surgical fees and operations, the Code promulgated:

“If a physician shall cause on anyone a severe operation wound with a bronze operating-knife and cure him, or if he shall open a tumor (abscess or cavity) with a bronze operating-knife and save the eye of the patient, he shall have ten shekels of silver; if it is a slave, his owner shall pay two shekels of silver to the physician.

“If a physician shall make a severe wound with the bronze operating-knife and kill him, or shall open a growth with a bronze operating-knife and destroy the eye, his hands shall be cut off.

“If a physician shall make a severe wound with a bronze operating-knife on the slave of a freed man and kill him, he shall replace the slave with another slave. If he shall open an abscess (growth, tumor, cavity) with a bronze operating-knife and destroy the eye, he shall pay the half of the value of the slave.

“If a physician shall heal a broken bone or cure diseased bowels, he shall receive five shekels of silver; if it is a matter of a freed slave, he shall pay three shekels of silver; but if a slave, then the master of the slave shall give to the physician two shekels of silver….”(3)

The Code of Hammurabi profoundly affected medical practice, not just in Babylonia and Mesopotamia but also in faraway lands and empires, such as existed then in ancient Egypt—far more than had ever been imagined. Egyptian physicians were in fact subject to many strict rules and harsh regulations as a result of the pervasive influence of the Code of Hammurabi. This is further corroborated by Dr. James Salander’s (Associate Professor of Surgery at Walter Reed Army Medical Center, Bethesda, Maryland) fascinating study of the Edwin Smith Papyrus, considered by some scholars to be the world’s oldest surgical textbook.  After years of researching a translation of the papyrus (a copy translated and annotated by the renowned scholar James Henry Breasted), Salander was able to elucidate very interesting details regarding medical knowledge and the practice of medicine in Egypt c. 1500 B.C.

Salander confirmed that the papyri were a collection of 48 cases, 45 of which were trauma cases. Case stories were presented “in anatomical sequence, beginning with injuries of the head and onward down the body.” In the papyri, he continues, “each case is assigned a prognosis….” Then a very important ethical statement follows: “In cases in which an injury was so severe that a favorable outcome seemed unlikely, the practitioner declined to treat the patient. Fifteen of the 45 trauma cases received unfavorable verdicts.” The report went on to say, “not all patients denied care suffered devastating injuries.” For example, closed fractures of the mandible and open-rib and nasal fractures were all considered “untreatable.”(4)

The student of history will agree with Salander’s explanation for the unfavorable prognoses rendered in these cases, and that is, that the strong influence of the Code of Hammurabi which “holds strict accountability to the physician with uncomfortably severe penalties…,” made Egyptian physicians wary of treating those injuries which carried a high degree of failure or deformity. Thus, rather than treating these common injuries with the medical expertise they were known to possess, they falsely rendered the prognoses unfavorable and abstained from treating those unfortunate patients whose injuries they considered too risky and likely to result in severe or lethal reprisals.

The implications, of course, are tremendous and very relevant to the present adversarial litigious climate that permeates our society. What we have found here is that knowledgeable Egyptian physicians, the most knowledgeable in the ancient world, were advising that medical treatment be withheld as a self-protective measure—defensive medicine—against the potential harsh government reprisals applicable in cases of treatment failure in victims with life-threatening wounds, or as in the case of nasal fractures, patient dissatisfaction.

Practice Guidelines and Medical Progress

Like Moses, who received the Ten Commandments from God, Hammurabi claimed to have received his laws from the Babylonian sun god, Shamash, god of justice. The laws are inscribed in 4000 lines of Akkadian cuneiform writing containing 300 legal provisions covering not only an oppressive code of medical ethics but also voluminous rules regulating businesses, criminal laws, agricultural provisions, and rules of conduct in all ways of life, public and private.

The jurisdiction of the Code was enforced by the King and his jurists throughout the kingdom and established what became known as “an eye for an eye” justice: The state was supreme. The Code was extremely oppressive to medical practitioners and thus impeded medical innovation. Medical progress would have to flourish elsewhere.

Codified laws were for the first time formulated to regulate public health and enumerate the duties and responsibilities of physician-priests. Along with these duties went stiff legal penalties…thus, as we have seen under King Hammurabi, the first code of “ethics” was imposed on the medical profession.

Many centuries later, in his travels among the Babylonians, Herodotus (5th Century B.C.), the Father of History, noted:

“They bring out their sick to the market-place, for they have no physicians; then those who pass by the sick person confer with him about the disease, to discover whether they have themselves been afflicted with the same disease as the sick person, or have seen others so afflicted; thus the passers-by confer with him, and advise him to have recourse to the same treatment as that by which they escaped a similar disease, or as they have known to cure others.  And they are not allowed to pass by a sick person in silence, without inquiring into the nature of his distemper….”(5)

What Herodotus had so clearly described is the regression of Babylonian medicine to a primitive state of affairs. Once again, as a result of oppressive government intervention, medical practice (and ethics) had deteriorated. We learn from the writings of Herodotus that, so oppressive had become the state of affairs for practitioners, that physicians had become scarce or non-existent, and thus, the whole community was forced to act as a sort of medical collective, utilizing a communal approach to treat the many illnesses and afflictions suffered by the common folks.

Yet, in Egypt, as is evident by thorough and careful review of the Edwin Smith Papyrus, the physician-priests were known to have definite knowledge about the diagnosis, treatment, and even prognosis of the traumatic injuries, that later physicians were loathe to treat.

In short, knowledgeable Egyptian physicians were forced to withhold certain high-risk surgeries and even relatively innocuous procedures (that is, practice defensive medicine) to fend off harsh but lawful reprisals from potentially poor outcomes (medical liability).

We can surmise that Mesopotamian (Babylonian) surgery which was even more restricted was hampered even further, with the result that there were no significant innovations, and progress was essentially nil—all as a result of the natal and closer legacy of the harsh Code of Hammurabi.

From the foregoing what is eminently clear is that the practice of medicine cannot thrive in a milieu of government oppression, coercion, and intimidation, and as we have just found, this is true, whether we are speaking of an antediluvian era 4,000 years ago or the worsening, deteriorating practice environment of today.

Let us all hope that health care reform in its present format  (managed care/managed competition) is rejected, and the real problems in the American health care system addressed at a more propitious time and in the not-too-distant future—for, in the great scheme of things, we are here to accomplish much, if only for a brief, fleeting, epochal moment.

Footnotes

* See Chapter 4, pp. 37-39 in Medical Warrior — Fighting Corporate Socialized Medicine or the article “Crisis in Health Care Delivery,” section entitled “The Solution,” posted on this website.

References

1. Faria MA Jr. Vandals at the Gates of Medicine—Historic Perspectives on the Battle Over Health Care Reform. Hacienda Publishing, Inc., Macon, Georgia, 1995, p. 255-263.

2. Salerno S. High price of managed care. The Wall Street Journal, January 18, 1994.

3. Faria, op. cit., p. 25.

4. Ibid., p. 25-26.

5. Ibid., p. 36.

Written by Dr. Miguel Faria

This article, which originally appeared in the March 1995 issue of the Journal of the Medical Association of Georgia as Dr. Faria’s “Editor’s Corner,” was subsequently updated and re-published as Chapter 21 in Medical Warrior: Fighting Corporate Socialized Medicine (1997). A version of this article also appeared in the Summer 1996 issue of the Medical Sentinel.

Copyright ©1992-2021 Miguel A. Faria, Jr., MD