"Oh, I hope he has pneumonia," thought Sarah to herself. At that moment, she found herself actually wishing, desperately hoping that Benjamin, a 93-year old patient at Jewish City Hospital, had a diagnosis of pneumonia. It was at that moment when Sarah realized that something was wrong. Not wrong with Benjamin, but wrong with Jewish City Hospital.

"If he has pneumonia," she had been saying to herself, "then we've got a good reason not to transfer him, at least not for a few days." Then the horror of it struck her: "Here I am praying that a patient has pneumonia, has anything, that would keep the discharge planning office off his back."

Years ago pneumonia was called "the old man's friend:" namely, a disease leading to a peaceful death. Pneumonia could now be Benjamin's friend, not because Benjamin would die but because he would have a pretext for staying a few more days in the hospital. In fact, Benjamin's story did have a happy ending. His diagnosis of viral pneumonia bought him a more time, enough to arrange a proper transfer to a nursing home where his family could visit him. Things went back to normal for Sarah and for Jewish City Hospital.

But Benjamin's wasn't an isolated case. The trouble started earlier in the year, when an outside consulting group, Health Management Services, had come to Jewish City Hospital to find ways of reducing the length of patients stay. At the time, social work staff welcomed the inquiry by Health Management because they had been grappling with impediments to timely discharge such as uncooperative doctors, delays in medical tests and procedures, staff reductions, and lack of transportation at the point of discharge. Sarah knew as well as anyone that hospitals, with nosocomial infections and other hazards, are dangerous places.

At the first meeting with Health Management Services, Joseph Ferrous, the lead consultant, offered a grim tone. "I am not a nice man and you better get used to that," he announced. Mr. Ferrous was true to his word. Contrary to Jewish City Hospital policy reflected in its "Rules of Conduct," Mr. Ferrous proceeded to attack, belittle, and insult social work staff assembled to hear what could be done to reduce length of patients stay.

But the tone at the meetings was only the beginning of problems. The consultants' attention was soon drawn to the situation of elderly patients needing nursing home placement at the Hospital. State regulations made it clear that when a patient was on an alternate level of care (ALC) the hospital would be required to make weekly contact with nursing facilities. Before Health Management came on the scene, social work staff were in timely contact with nursing homes and families and patients had an opportunity to be involved in the discharge decision. For medical, legal and ethical reasons, patients were not discharged until they were medically ready.

But Health Management saw things differently. Contrary to regulations, the consultants insisted that selection of a nursing home be made within hours of admission to the hospital. If a patient failed to make a selection, the consultants ordered the social worker to select the nursing homes for the patient. That new practice prevented the patient and family from choosing, though it did not necessarily reduce the length of stay in the hospital.

State regulations governing discharge did take account of hardship. For example, another regulation directed social workers to make use of "priority readmission." This regulation was based on the humane fact that a patient who has been a long-time resident of nursing home "A" should not be arbitrarily sent to a completely unfamiliar nursing home "B" just because facility "A" happened to have no bed available at the time the patient is ready for discharge, but would have one available in a day or two.

The rules of conduct at Jewish City were comparable to those found in other acute care facilities. But Jewish City also had a clause stating that it tried to be faithful to the "Jewish" moral and ethical obligations dictated by the Talmud and by long-standing tradition. That tradition of compassion is reflected by the phrase made famous by the book and film "Schindler's List:" "For a person to save one life is as if that person had saved the lives of all humanity." It seemed clear enough to Sarah that, whatever Jewish City Hospital's tradition might have been, Health Management consultants came from a very different point of view.

Sarah remembered the case of Benjamin and his "fortunate" pneumonia, and she found herself, again, hoping for pneumonia in the case of another old man, 89-year old Jacob, this time from Tikkun Nursing Home, a facility that serves primarily Holocaust survivors. When Jacob appeared ready for discharge on a Friday, Health Management consultants directed that he be sent immediately to another facility because Tikkun Nursing Home would not have a bed available until Monday. Sarah and other staff pointed out that discharge to a different facility would make it virtually for Jacob's elderly and frail wife, his only family, to visit him, something she could do if the patient were at Tikkun.

Health Management consultants heard about Jacob's case but insisted that Jacob would have to go to another facility, whatever facility was available, so as not to increase the length of stay by three days. Sarah felt this decision was wrong, but was uncertain about what to do. She was hoping that state "hardship" regulations might provide a basis for action, but it turned out that Jacob had only been living in the Tikkun Home for six months. Then she got word from medical staff that tests showed Jacob did not have pneumonia at all: he just had trouble breathing from a mild allergy. When she got back to her office, Sarah found a message from Mr. Ferrous himself: "Jacob must leave Jewish City Hospital for the first available bed outside."

As Sarah thought about this case, she was reminded of what happened last year to Sophie, a social work colleague at Jewish City Hospital. Sophie had gone "outside of channels" to give a patient some "tips" on what to say in order to avoid being discharged from the Hospital too early. When Sophie's informal counseling came to light, she was demoted and eventually fired. Sophie insisted that she had only been informing that patient about her rights under hospital rules. Sarah knew perfectly well that Mr. Ferrous and Health Management consultants had the full support of Hospital management. Their decisions had never been overruled.

What then should Sarah do?

ANALYSIS OF THE CASE

Hospital social workers face many ethical issues (Proctor, 1993) but this case presents a dilemma appearing more and more frequently in the era of managed care: the conflict between individual patient needs in contrast to the imperative for institutions to manage resources and contain costs. Each extra day in a hospital can cost $ 1,000 or more, and this expense may not be reimbursed by Medicare if a patient falls outside of DRG categories permitting a longer stay. The clash between patient rights versus health cost-containment is stark. This case presents "ethics in the trenches" and the stakes here are high (Chally & Loriz, 1998).

This case also raises other questions:

• Is there an inherent ethical conflict between managed care and patient rights?

• What should professionals, including physicians, nurses and social workers, do when confronted with orders that violate their conscience even where the orders do not violate the law?

• How far are professionals obliged to sacrifice themselves and their own interests in order to follow an ethical standard?

• Do government "hardship" regulations provide sufficient flexibility to cover a wide variety of hardships, or does this exception itself become a narrow basis for decision-making?

• Should a facility with a traditional identity-- for example, a religious identity such as Catholic or Jewish-- be held to a distinctive or higher standard based on its own traditional ethics?

• Is it ever proper to "manipulate" diagnostic or clinical information in order to make it possible for an individual patient to length hospital stay?

• Are there changes in a facility's "Rules of Conduct" or in state law and regulations that could help professionals prevent unfortunate outcomes in a case like this?

We may approach this case by asking a fundamental question: is managed care the villain of this piece? Not necessarily. Johnson (1995) notes that it is not necessarily managed care which is the cause of all evil but rather that, in more than a few cases, regulations are adopted as internal procedures for the facility's own interest. That seems to be the situation in the case of Jewish City Hospital, which may not be living up to its own code of ethics or traditions. The substantive ethical goal of managed care is to save money by reducing the length of stay of patients and the imperative of cost containment will create ethical dilemmas (Anderlink 2001). But we have seen that merely lengthening a patient's stay is not necessarily a good thing. It is significant that at the outset of this case the social work staff were not unhappy to see Health Management Services come on the scene. It was the way that the consultants behaved, not their overall goal, that caused the problem.

Moreover, the problems in this case are not unique (Bull, 1995; Bull, 1996). Pressure for early discharge goes back to the advent of DRGs in the 1980s hospital administrators faced an environment with pressures to discharge Medicare patients "sicker and quicker." As Spielman (1988) notes, administrators used a series of balancing strategies which she including code morality, survivalism, mission dependency, and related institutional imperatives. By contrast, legal norms are based on the value of identified lives (the patient in front of me) and on the reliability of the health care system.

The ethical dilemmas in this case are very different from those revolving around patient autonomy, a theme that dominates discourse in applied ethics. Dill (1995) conducted an ethnographic analysis of discharge planning with older adults which identified a series of recurrent ethical dilemmas. She focused primarily on the patient's decisional capacity and the involvement of family members in decision-making. But she also noted the neglect of social and structural factors that condition discharge decision-making and argued in favor of a socially grounded principles recognizing the unintentional and unrecognized ways in which decisions are restricted.

Discharge planning is governed by some clear and well-defined standards (Payne et al, 1996). Just as hospitals cannot refuse patients with life-threatening emergencies presented at their doors, so they cannot evict patients with life-threatening conditions, as in the case of Benjamin and his pneumonia. But hospitals are also held to a higher standard than merely a patient's medical status. Elderly patients in particular face special risks at the point of discharge (Potthoff et al, 1997). Hospitals must not discharge a patient until satisfied that there is adequate care and support either at home or in another health care facility. Patients themselves may autonomously choose to leave ("against medical advice") but institutions have no such freedom to discharge patients under adverse conditions, whether of medical status or social support. Thus, Benjamin was "saved" by his pneumonia and Sarah avoided an ethical dilemma.

We should also avoid the uncritical assumption that continued stay in an acute-care facility is an unequivocal benefit. Indeed, under pre-DRG reimbursement rules, it is likely that patients were kept in hospitals longer than they needed to be. Iatrogenic illness, or diseases caused by medical intervention, could well be the penalty for a hospital stay of any length. We should in general think of hospitalization as an option containing both risks and benefits, which complicates our judgments of distributive justice when it comes to access or discharge.

Based on what we know from this case the state regulations governing alternate level of care patients appear to be largely procedural. The regulations sound good in theory but there is no certainty that patients will actually be involved in decisions about when they leave and where they will go. Proper procedures can easily fail to involve patients in any serious way, and patients or families can be manipulated by discharge planners who present only part of the whole picture. State regulation is a good beginning but it does not guarantee ethical outcomes in difficult cases (Schwartz, 1997).

Does this mean patients are victims whose wishes should be respected and honored? Not at all. Patient autonomy is routinely, and sometimes justifiably, limited by claims of families, other patients, and institutions. There is no general right for patients to use a hospital as a hotel and extend their stay simply because they are comfortable there. Patient autonomy, therefore, is far from absolute and questions of distributive justice quite properly have a place in this discussion.

In this case, Health Management Services is not much interested in discussion or negotiation. One may ask, is it reasonable for a patient to make selection of a nursing home within hours of entering a hospital? On the one hand, this demand might seem reasonable. After all, we routinely ask patients to make decisions about foregoing life-sustaining treatment (DNR orders) at the time of admission and these decisions are entered on the patient's chart. Why should nursing home selection be treated differently?

It is not clear that the order from Health Management Services for "early decision" actually would reduce the length of stay. One way to challenge orders within a system is to argue that the means commanded will not in fact achieve the end desired. This pragmatic or instrumental kind of argument, which is not based on any assessment of the balance between patient rights and institutional demands, was not attempted in this case. If the social work staff had done so on a collective basis, it is uncertain whether it might have had an effect in challenging the exercise of authority by the outside consultants. In any such challenge, of course, allies would be needed, including groups such as family members, labor unions, or other outside bodies, such as hospital accreditation groups. Outside scrutiny and countervailing power can be enormously important in situations such as the one Sarah is facing in this case.

Another way to challenge an order is to claim that it violates either internal institutional policy (e.g., "Rules of Conduct") or external constraints (e.g., state law). In terms of internal institutional constraints, we might point to the history of this hospital as an historically Jewish facility. But an accumulated body of civil rights laws have substantially eroded the ability of institutions to act in accordance with sectarian traditions: for example, by refusing service to non-Jews. We need to ask: to what degree has Jewish City Hospital been a "Jewish" facility at all? If it has not been, then it is difficult to claim now that Jacob has some special claim for treatment based on the fact that he is a Holocaust survivor. Ethnic favoritism doesn't trump the U.S. Constitution, nor can the claims of the Talmud easily be brought to bear on this case.

What about external constraints? As we saw, the state regulations governing "priority readmission" are drawn very narrowly. The regulations focus on "long-time residents" and give no weight to a whole variety of other factors-- such geographic distance, which could inhibit family visiting.

In the case of Jacob and his imminent discharge, Sarah wants to wait "only" until Monday. But what about the next patient who will not have a bed until Tuesday? We have here an instance of the "notch" problem. In terms of time for discharge planning, a cut-off point must be drawn somewhere. There will always be some perceived unfairness by the patient whose discharge is compelled and who "almost" makes the cut for access to some preferred facility. We are attentive to the case of Jacob, but not to the many other cases where the pressure of timely discharge circumscribes the choice of a patient for a particular facility.

Moreover, why must we assume that only the Tikkun Nursing Home is an acceptable facility for Jacob? He has only lived there six months, so it seems unlikely that transfer trauma would result from going somewhere else. Health Management Services would probably argue (if they were willing to argue at all) that Jacob is entitled only to a minimal or acceptable long-term care facility, but not entitled to the best possible placement that could be devised for him (assume Tikkun Nursing Home fits that description). Therefore, depriving Jacob of readmission to Tikkun is unfortunate but not unfair. On this argument, Sarah would be required to carry out the orders precisely in order to be fair to all other patients similarly situated as Jacob is. Treating him in a special way could even be construed as a kind of favoritism. Justice, in short, consists in treating similar cases similarly.

Sarah does not accept this argument because she believes that consistency in the application of rules is not the proper definition of justice in this case. Consistency offers only a minimal standard for justice. It does not take much to imagine a heartless bureaucracy or a consistently cruel tyranny. Sarah's sense of justice seems rightly aroused here. But tactics are another. How can Sarah challenge the decision? And what risks should she run in order to challenge it?

Sarah's recollection of Sophie's story is a cautionary tale about what can happen when employees try to avoid publicly challenging an institutional practice. But suppose Sophie were successful in her backdoor advocacy. We may wonder: Is it right to "manipulate" the discharge system in order to promote the best interests of a single patient? Where does "patient advocacy" end and illicit "favoritism" begin? This question is not easy to answer, but one step toward answering would be to present reasons in a public setting to justify an act that could be construed (or attacked) as favoritism or insubordination. This approach could be characterized as communicative ethics, a different approach from either consequentialism or the ethics of principles (Moody, 1992).

But communication itself has risks. If Sarah publicly challenges the consultant's decision, she runs the risk of losing her job, as Sophie did, though Sophie tried to avoid the public communication in the first place. Is Sarah obligated to undertake this public challenge as a kind of civil disobedience? The ethics of civil disobedience is a noble tradition reaching from Thoreau to Ghandi and Martin Luther King. A central element in civil disobedience is not just to disobey a lawful order but to do so in a public way and voluntarily accept punishment that comes from the act.

In this case, we cannot say for certain whether Sarah should step forward and run the risk of sacrificing her job as a protest. Such sacrifice would be a supererogatory act-- admirable, but not absolutely required. Sarah's own sense of obligation, and its limits, will depend on her personal circumstances. For example, if she is well-off and doesn't need the job to survive, or if she is a year or so from retirement, that would be one thing. But if she were a single mother and the sole support of small children, that would be a quite different matter. Consequences do need to be weighed and Sarah has an obligation toward prudent judgment to choose the best course of action in light of all the circumstances of this case.

There is prudential question here whether Sarah should challenge the order for Jacob's discharge in a direct way-- by refusing to carry out the order-- or more indirectly-- by carrying out the order but under protest (e.g., to higher hospital management). In either case, Sarah is well advised to do this in as public a fashion as possible, which may mean cultivating allies outside the institution. It will be important for her to make sure that if she loses the struggle, Jacob's case must not become a precedent for iron-clad rules (justice equals consistency) in the future. Still worse, if she loses her job, Jacob's case must not be allowed to "die quietly" or else Sarah's struggle for Jacob will have been in vain.

Negotiation and Struggle. Whatever course Sarah decides, she is best advised to pursue a strategy of reflection and negotiation before acting. Without attempting to negotiate she cannot be sure how far either Health Management Services or Jewish City Hospital might bend its rules in the face of countervailing power. But "bending the rules" is only one way of formulating the goal here. Is Sarah's obligation to advocate for her client (Jacob) or to challenge conditions that brought about the treatment Jacob is receiving? It is possible to achieve the first goal or the second, or both, or neither. There are serious trade-offs between "identified lives" (e.g., Jacob) as against the interests of future patients and the common good.

In selecting strategies, Sarah needs wise counsel and allies, both within the institution and outside of it. She may be tempted by a "heroic" course of action that would be consistent with principle but have little likelihood of achieving her goal. Of course, a pure "principlist" would say, simply, "Do the right thing." This is poor advice because it neglects competing interests: e.g., the interests of Sarah herself, perhaps her family, perhaps the good that she could do for future patients if she keeps her job and works for change from within the Hospital. But Jewish City Hospital itself may not give her much room for "working for change" or even give her latitude for negotiation. Kierkegaard once remarked that "We live life forward but understand it backwards." That is, we understand the risks and options only after we have acted and can no longer go back and do it all over again. True enough, but far from the whole story in a case like Sarah.

One can argue that in this case, as in "Sophie's Choice," people are presented with a hopeless choice, an unfair set of circumstances: self-sacrifice or working within a system that has been made increasingly dehumanized and insulated from protest or negotiation. This is the dilemma often faced by whistle blowers, and there are no easy answers. One clear answer is the "Sunshine Principle:" namely, to expose these cases to the light of day and to the scrutiny of a wider world. Negotiation, alliance-building, publicity, even lawsuits and legislative hearings to change the regulatory environment-- these are all parts of the strategy of public visibility called for in this case.

The overall approach is part of "preventive ethics." Sarah's dilemma, like Sophie's choice, calls for an approach to ethics very different from the "quandary ethics" so familiar in analytic studies. Instead of looking at the conflict in front of us, we need to step back and apply a preventive medicine model to field of clinical ethics (Forrow et al, 1993). In short, we need to work to change conditions so that we do not have to face a "Sophie's Choice" in the future. After all, in the original Sophie's Choice, the solution did not lie in saving either child but in sending in armies to end the Nazi regime that forced that unethical choice in the first place.

For too long, hospital discharge planning has been an arena where it is too easy to manipulate patients by the information conveyed to them (Chadwick & Russell, 1989). An abstract "ethic of autonomy" in this case is actually of very little help. When people are vulnerable, they can be made to "go quietly" and, once outside an institution, they are "out of sight, out of mind." For this reason, Sarah's case deserve the widest possible attention and reflection. Ethical dilemmas in carrying out orders are likely to crop up again and again-- indeed, we should hope that they will come to light more frequently because these dilemmas are reminders to us of institutional obligations to people who are vulnerable. We forget or turn away from these cases at peril to our humanity. REFERENCES

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This article will appear in a forthcoming issue of the Journal of Gerontological Social Work.