Ethics @ Work: Payment for services is not bribery

Can a doctor ask for an extra fee to provide care?

Dr. Arie Fieger is a well-respected physician who was for many years the assistant head of Ichilov Hospital’s oncology department. Although he was expected to treat patients for a standard fee, as dictated by the Public Health Law, many patients testified that they were able to obtain his undivided attention only if they added a few thousand dollars to the standard rates.
Many did so, some evidently quite grudgingly, and ultimately he was tried and convicted for this practice. Fieger was originally sentenced to six months of community service, but during his appeal this week, the court increased his sentence to one year in jail.
“Only through bribery were patients able to obtain the attention and good graces of Fieger,” the judges wrote in their decision. According to Justice Berliner, “Bribery, which has already been defined as a cancer in the social and public body, is the most appropriate term for the instance of bribery on the part of a physician whose specialty is treating cancer.”
I think this comment betrays a very fundamental misunderstanding of the definition of bribery and the ethical problem it presents. It follows that I think the criminal conviction was excessive and the jail sentence completely unjustified.
Bribery is often defined as “private gain from public office.” A public servant dispenses public services, but these services do not belong to him; they belong to the public. They belong to the public because they were paid for by public funds raised using the sovereign’s power of compulsion, and because they were designated for public use based on various legal criteria. Accepting payment to show favoritism is really a kind of theft; the public servant is in effect “fencing” services that he has purloined.
The term is sometimes extended to a different and less serious kind of wrongdoing, known as “commercial bribery.” We could define this as “private gain from someone else’s private office.”
A common example is a buyer for a company who takes bribes to recommend a particular supplier.
This could also be defined as a kind of theft, but from the point of view of the law, it is much less serious.
Traditionally this has not been defined as a crime at all, because it is considered the responsibility of the employer to supervise and police its workers, and this kind of judgment doesn’t have to occupy the limited resources of the police, the prosecutors and the courts. Lately some jurisdictions have begun to make commercial bribery a crime, usually a minor one punishable by` a fine.
What Fieger was convicted of could best be defined as getting private gain from his own good offices. He is considered a gifted physician, and many people are interested in his services.
He decided he would give them to the highest bidder.
The court took a dim view of this, accusing Fieger of “unrestrained greed.” But it is worth pointing out that this is how most professionals act all the time. Lawyers, accountants and consultants all sell their services to the highest bidder; many of them get considerably more money than Fieger is accused of obtaining, and their services are in many cases worth quite a bit less.
I will reveal my own dirty secret: Only through payment are people able to get my attention and good graces, too. Yet I never thought of my speaker’s or consulting fees as “bribery,” nor did I think that selling my services to the highest bidder makes me guilty of “unrestrained greed.”
That doesn’t mean there is no wrongdoing in the acts attributed to Fieger. Physicians have contracts with insurers and with the hospitals or clinics they work for, and they have legal obligations, including those of the Public Health Law.
Taking payment beyond that sanctioned by law and agreement is unquestionably misconduct. It justifies disciplinary action on the part of the employer, the insurer and perhaps even the medical establishment, possibly extending to dismissal or a temporary suspension of the right to practice.
Given the vital nature of maintaining the public health system, which does a good job of providing universal health care at a respectable level, there may even be a case for civil claims or heavy fines for this kind of misconduct. But it is not bribery.
It is true that “doctors are different.” They are professionals, but they are also providers of essential personal care, and that carries special ethical obligations.
Charging extra for accepting patients in the normal course of business – as opposed to the policy of the sick funds, the hospitals, clinics and the Public Health Law – is certainly misconduct and needs to be sanctioned. But these deviations are not bribery and do not generally justify criminal sanctions – certainly not jail time for respected physicians.
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Asher Meir is research director at the Business Ethics Center of Jerusalem, an independent institute in the Jerusalem College of Technology (Machon Lev).