New surgical devices and ethical challenges
Panel discussion
Moderated by Roy K. Greenberg, MD
SHOULD INNOVATORS BE BARRED FROM USE OF THEIR INVENTIONS?
Dr. Roy Greenberg: Let us begin this roundtable portion of the session with any comments that our one additional panelist, earlier keynote speaker Dr. Thomas Fogarty, may have. Dr. Fogarty?
Dr. Thomas Fogarty: I agree with most of what was said, but one problem I have with the AAMC report that Dr. Murray refers to7 is the implication that those who develop a technology cannot treat patients with it. If a physician knows more than anybody else about a device, and a patient is referred to that physician, he or she is obliged to take care of that patient. The patient cannot be referred to somebody else who doesn’t know anything about the technology—they haven’t done the bench testing or the animal testing or the cadaver testing. Sending a patient to someone with no experience in the technology needed for treatment is a gross violation of the Hippocratic oath.
Dr. Thomas Murray: As I understand the AAMC report, what you just described would not be prohibited at all. In fact, under the proper circumstances, the innovator could be involved in testing and further development of the device. I am not familiar with the details of any policies related to this at Stanford, where you are affiliated.
Dr. Fogarty: Perhaps the restriction that I described is particular to Stanford, where it is still imposed. In any case, I think that type of restriction is improper.
INNOVATION VS REGULATION: HOW DOES AMERICA STACK UP GLOBALLY?
Dr. Greenberg: I would like to explore innovation in the United States compared with the rest of the world. On one hand, the United States has the reputation among scientists and companies abroad of having the most robust and respected studies, with the best follow-up and the most trusted results. On the other hand, we have an almost paralyzing regulatory system in which to get a study done. So devices become available in Europe, Australia, and elsewhere long before they come to the United States, and American patients complain that they should not have to go to Europe to obtain a device. At the same time, some devices that are available elsewhere should probably never be used in patients. What are the panelists’ thoughts on innovation and regulation in the United States in relation to the rest of the world?
Dr. Daniel Schultz: We probably are somewhere in the middle. The European system is much more lais-sez-faire than ours, especially with regard to devices. They primarily have third-party inspecting facilities, and if they show that the facility is safe and that the company has a manufacturing plan, most devices can go to market without any significant requirement for clinical efficacy. They may require some safety data, but in my mind it is difficult to establish safety if you do not know something about effectiveness. In contrast, many consider the Japanese system far more rigorous and in some ways more inefficient than ours.
The FDA and its counterparts in other countries are trying to harmonize regulatory approaches around the world, recognizing that diseases—and companies—do not have borders. But value systems and public expectations differ a lot between different countries, so I doubt we will ever have a perfectly harmonized system.
Dr. Mary McGrath: As a longtime member of the FDA’s General and Plastic Surgery Devices Panel, I have seen a lot of FDA applications that are not ready for prime time. Studies may be incomplete, the data may not reach statistical significance, or the manufacturers may have overlooked important consequences of the data. Some of the critics of the slowness of the FDA review process seem to assume that the minute an application reaches the agency, it is ready for analysis and a determination. In reality, applications often must be sent back for further work, which slows the process considerably.
With regard to other countries, I think it is decreasingly the case that our standards are much more stringent than those of the European Union, which has made great strides in trying to catch up with the US regulatory environment. I know of several devices in plastic surgery, including breast implants, on which the European Union would not rule until they had learned how the FDA ruled, and then they based their decision on what they heard from our country because they had confidence in our process.
Dr. Murray: Although I do not have a comprehensive viewpoint on this question, I served on an FDA panel—the Cellular, Tissue, and Gene Therapies Advisory Committee—and found the FDA professionals and the members of the panel to be incredibly serious about the work they were undertaking to provide good feedback to the applicants. Although most of the applications in this cutting-edge area were not ready for prime time, the applicants needed good scientific advice about how to proceed, and I think they got some valuable feedback.
We need to recognize, however, that we can never achieve a perfect system. We will always have a tension between the values of swiftness, safety, and smartness. All three cannot be maximized at the same time. We have to keep adjusting and looking for the appropriate balance. A forum such as this one—where innovators, companies, ethicists, legal experts, and clinicians are present—is the right way to examine these issues, and we need to encourage more forums like this.
Dr. Fogarty: My experience with the FDA goes back to the initial device legislation; I was at the National Institutes of Health when we were asked by the FDA to help categorize devices in terms of risk. I have found that people in the upper levels of the FDA, especially those who have been practicing physicians, understand issues of safety and efficacy very well.
One challenging issue, however, is the goal of the “least burdensome means” in negotiating the regulatory process. Who determines the least burdensome means? It should not be an individual FDA reviewer. Input from patients and doctors is essential, since a reviewer may have a very different perception of burden than a patient or a treating physician does.
I agree that slowdowns often occur at the FDA because of inadequate preparation on the part of physicians or institutions. Applicants should not be going to the agency with inadequate data. But sometimes reviewers change, and one reviewer may emphasize different end points than his predecessor did, which makes the process less predictable. There should be a guarantee that nobody is going to change a study requirement midstream; often that leads to starting over, which can be very expensive, especially if randomized, double-blind, prospective trials are involved. If a midstream study change is required for a product that serves only a small population, the developers will not pursue it further.
I think all of the issues I have mentioned can be resolved with frank, open conversations between the FDA and the physicians, institutions, and companies that it deals with. Beyond those issues, the FDA also can be subject to political influence, which is a different matter and which should not be the case.
WHERE DOES THE IRB FIT IN?
Question from audience: Could you clarify what the role of institutional review boards (IRBs) is in relation to the role of the FDA in approving and implementing studies of new devices in human subjects?
Dr. Schultz: For medical devices, the FDA has a process called an investigational device exemption that allows a clinical study to be performed for the collection of safety and effectiveness data, provided that certain requirements are met. These requirements include appropriate premarket or preclinical testing, evidence that the product is biocompatible and is manufactured appropriately, and other evidence that the product generally reaches a level where we think testing in patients is appropriate. At that point there are essentially two pathways: “significant risk studies” and “nonsignificant risk studies.” For products requiring significant risk studies, the study protocol must be reviewed and approved by both the FDA and the relevant IRB before a trial can be initiated in humans, amounting to a sort of dual oversight. For nonsignificant risk studies, the protocol is approved solely by the IRB, which the FDA essentially uses as a surrogate for oversight in these less risky settings. Regardless of the type of study, the review of data resulting from the clinical study is done by the FDA, not the IRB.
WHO SHOULD MAKE CALLS ABOUT COST-EFFECTIVENESS?
Comment from audience: I found it interesting that when Dr. Schultz discussed the total artificial heart, no information was presented on cost. In the previous session, Dr. Peter Ubel asserted that we should be considering cost as an important feature of product assessment and that the FDA does not do so and in fact is not is not legally allowed to. I would like Dr. Murray to comment on the ethics of that.
Dr. Murray: If you want to see what I think about how to take costs into consideration in a general sense, take a look at an article I just published in the Hastings Center Report.8
To address your specific request, I agree with Dr. Ubel: to have a health care system that delivers the optimum care to people, you have to be mindful of the costs of care, the trade-offs, and the opportunity costs being incurred. But that does not preclude innovation; innovation can actually lower costs. Innovation can lead to delivering more care to more people at a lower price—look at what has happened in the semiconductor industry. You always have to be mindful of the policy choices, and cost is an inescapable factor.
Dr. Greenberg: I think Dr. Ubel used the term “psychological quirks” when he described the values that people bring to bear when they look at health care costs. Really, the most cost-effective way to deal with someone who needs an artificial heart is to let him die. For a lot of diseases, that is actually the most cost-effective way, but we have to somehow ascribe some value to what we are doing.
Dr. Murray: That may be the cheapest way, but it might not be the most cost-effective way. As an ethicist—not an economist, mind you—I think we must recognize that with the health care system we have in the United States, which is the most expensive in the world and gets middling results at best, we need to encourage innovation but we also need to think about effectiveness.
Prior commenter from audience: I do not dispute that we need to think about cost-effectiveness. But individual physicians at the bedside should not be the ones who do that. We need a more sophisticated approach.
Dr. Murray: I absolutely agree; after all, doctors are not economists. We want them to focus on providing for patients the best they can. Decisions about cost-effectiveness need to be reached at a policy level and incorporated into medical training.
