Standards of Care and
Standard
Form
Contracts
Page 1 of 61 - Exhibit 2
Articles
Standards of Care and Standard Form Contracts:
Distinguishing Patient
Rights and Consumer Rights in Managed Care
Wendy K. Mariner
Introduction
There is hardly a legislature in the country that is not
currently debating
the issue of patient rights in managed care. Not surprisingly,
legislators,
as well as reporters covering the debate, have called upon George J.
Annas,
Edward R. Utley Professor of Health Law and Chair of the Health Law
Department
at Boston University, for information and advice. Professor Annas has
earned
the title of "father of patient rights" for his decades of
research,
writing, and advocacy on behalf of individuals who need health care and
deserve justice.1
Today, however, one might ask whether patient
rights are compatible
with managed care.2
After all, much of the
impetus for managed care was to counter the rising demand for, and cost
of, medical care. Much of the managed care industry's success in
lowering
health insurance premium costs may be attributed to limiting patient
choices
and treatments, especially in regard to the length of hospital stays.3
Indeed, the managed care industry does not speak of the rights of
"patients."
Instead, it describes the rights and
responsibilities of members or consumers. 4
Professor Annas critiqued "managed care's attempt
to transform the patient
into a consumer" because it portends the potential loss of important
rights
for everyone.5
The change in language both
reflects and encourages conceptualizing health care as a market
commodity.6While
doctors and hospitals have patients, markets have consumers. Annas
argues
that if patients metamorphose into consumers, the law must continue to
protect individuals as patients. Just as he developed a model bill of
patient
rights in
1975,7
Annas now proposes a national bill
of patient rights for the new era in which managed care plays a
prominent
role.8
Annas has been the trailblazer in patient rights,
mapping new ground
in law with succinct and pungent writing that captures the essence of a
patient's
place in medicine. He has left little for the rest of us to do but fill
in the details. This article follows in that tradition by developing
the
distinction between patient rights and consumer rights and examining
what
the contours of law that protects both might look like. The first
section
of this article describes the difference between rights ascribed to
patients
and consumers respectively, and the general nature of laws that have
traditionally
protected each. Patient rights focus on the relationship between
patients,
physicians or other "providers" regarding the type and quality of care
provided. Consumer rights focus on purchasing decisions before forming
a provider relationship or agreeing to a contract. The second section
differentiates
the health care delivery and insurance functions of managed care that
affect
patient rights and consumer rights, respectively, noting that some
elements
have mixed effects. These differences are developed in the third
section,
which argues that current efforts to regulate managed care conflate
patients
with consumers, and that the resulting reliance on consumer choice to
protect
patient rights is misplaced. Section four outlines the problems with
conceptualizing
managed care issues solely within the consumer model. The choice of a
health
plan is but one of many rights today's patients deem important.
However,
an increasing number of Americans retain little, if any, meaningful
choice
of health plans. Consumer rights are necessary to help people choose a
health plan, but they are not sufficient to protect patients when they
need medical care. Moreover, consumer choice encourages a perception
that
managed care plans can be understood as simple contracts between
willing
buyers and sellers, with the contract defining all the parties' rights
and duties. This raises the question whether contracts should supersede
tort obligations in providing patient care. Section five argues that
managed
care issues cannot always be resolved satisfactorily by applying
traditional
contract principles exclusive of tort principles. Finally, section six
suggests viewing managed care plans as a hybrid incorporating elements
of standard form insurance contracts, far removed from the idealized
contract
model, as well as elements of professional service agreements for
personal
medical care traditionally governed by tort standards. While some
contract
doctrines may serve to protect consumers in their financial dealings,
the
law should protect patients as well as consumers in the complex reality
of managed care relationships. Thus, there is a need for
extra-contractual
tort standards to protect the rights of patients, whether or not they
are
members of a managed care plan.
1. Differences Between Consumers and
Patients
A. Consumers
Consumers are buyers of goods and services. In the ideal
competitive
marketplace, buyers and sellers have equal bargaining power, so that
their
decisions to buy and sell are made freely, without coercion or undue
advantage.9
Of course, the perfectly competitive market of economic theory has yet
to exist. There are multiple imbalances between buyers and sellers, in
both information and ability to make choices and purchases. In some
circumstances,
the law has intervened to help make the buyer's bargaining position
more
equal to that of the seller.l0
Buyers may be disadvantaged in two ways. They may
be unable, wittingly
or unwittingly, to make a voluntary choice, or they
may be unable
to make a desired purchase. Constraints on choice
include lack of
information or incorrect information about products. Buyers may not be
aware of material facts about a product that might dissuade them from
buying
it. Also, advertising influences some buyers' judgments in ways they
may
not recognize or desire. These informational constraints make it
difficult
for consumers to make informed choices about whether to buy a certain
product.
As to the second point, some consumers cannot buy what they would
choose
because they cannot afford it or it is not available where they are
located.
Others may have such an immediate need for a product that
they must buy whatever is immediately at hand.
Consumer
protection laws are intended to protect consumers' freedom
to make voluntary choices, not purchases. The law
does not concern
itself with consumers' inability to pay for a desired product or
service.
The notion of consumer as buyer implies the ability to pay, but not the
capacity to afford whatever one might choose given unlimited financial
resources. One does not assume consumers as a class are equal in
resources
or ability to pay. Nevertheless, the law justified intervention to
redress
other imbalances in bargaining power.
The major
tool of consumer protection laws is information disclosure.
Where consumers are likely to lack information that is relevant to
deciding
whether to buy something, legislation requires sellers (or
manufacturers)
to disclose that information. For example, banks are required to inform
borrowers of the effective annual percentage rate (APR) of interest
charged
on a loan.11
Product liability law requires
manufacturers and sellers to disclose product risks that would not be
expected
by the average prudent consumer.12
The goal
is to redress the imbalance in information between buyer and seller,
thus
moving toward the market ideal that consumers should have perfect
information
to make reasonably informed choices.13Consumer
protection laws also prohibit deceptive marketing and advertising
practices.14
A second, less often used tool of consumer
protection is product standards.15
The law rarely requires sellers to offer any particular product.
However,
both state and federal consumer protection legislation occasionally
require
that products meet certain safety standards. Both state and federal law
prohibit provisions in banking, securities, residential lease, and
consumer
product sales contracts that are unfair or in violation of public
policy.
For example, banks are often prohibited from foreclosing on delinquent
loans without giving the debtor an opportunity to pay the amount owed.
Such statutory limitations typically apply to contracts of adhesion
where
individual consumers are seldom in positions of bargaining equality
with
sellers like banks and large corporations.16
Finally, consumer protection laws also serve the
larger goal of promoting
market efficiency. In this, they resemble antitrust laws, whose purpose
is to foster free and competitive markets, where no seller is able to
obtain
monopoly power, to achieve the most desirable array of goods and
services
of the quality and at the lowest prices valued by the population.17
B. Patients
Everyone is, or will be, a patient, whether
or not one has health insurance.
The rights of patients developed outside the context of commercial
markets,
independently of health insurance, and without regard to the existence
or source of payment for health care. 18
Although
patients historically purchased their health care, patients were not
considered
consumers until very recently. This is because the concept of
"patient"
denotes a recipient of health care services. Whether, or how, health
care
might be paid for is irrelevant to the status of patient. One becomes a
patient when one is ill, injured or in need of medical care.
Ordinarily,
a patient is in a relationship with a physician, nurse or other health
care professional. The law governing patient rights developed
hand-in-hand
with the medical profession's increasing capacity to cure disease.
Historically, patients never were in an "equal
bargaining
relationship"
with their physicians. It was assumed that physicians have special
knowledge
and skills that patients do not possess.19
This is why patients seek the advice and care of physicians. This
inherent
imbalance in knowledge and skill is a defining characteristic of the
physician-patient
relationship. Moreover, patients are usually sick and not able to
function
at their own normal capacity. Thus, while consumers are in a position
of
equal bargaining power with sellers, patients are in a position of
inequality
with physicians and other health professionals.
Unlike
consumer protection law, the law of patient rights does not seek
to give patients and physicians equal medical knowledge. Instead, the
law
accepts the inequality in knowledge and skill and protects patients by
imposing on physicians a fiduciary duty to use their skills only in the
patient's best interest and to provide medical services that meet
professionally
accepted standards.20
In contrast businesses
do not have fiduciary obligations to their customers.21
They are in an arm's length relationship. In
general, businesses
are not legally bound to meet professional standards of care in their
relationships
with customers. Businesses may be liable for negligence, strict
liability
in the manufacture of their products, or misrepresentation. However,
customer
service does not include a legal duty to protect the customer's best
interest
or well being.23
This is not to suggest that patients lack equal
respect as persons under
law. On the contrary, the doctrine of informed consent grants explicit
recognition to patient autonomy and self-determination.24
It is precisely because the patient is more knowledgeable than the
physician
about the patient's life and wishes, that courts have recognized the
patient's
common law right to decide what, if any, medical care he or she will
receive.25
The
patient's right to decide what medical care to accept is somewhat
analogous
to a consumer's choice of what to buy. However, because medical care
requires
specialized knowledge that patients lack, courts have imposed on
physicians
the common law duty to provide patients with sufficient information to
enable them to make decisions about what care to accept.26
Thus, patient rights to make medical decisions require the correlative
duty of physicians to provide information.27
This contrasts with the consumer-seller
relationship, in which there
is no presumption of specialized knowledge and no general obligation to
provide consumers with the information that consumers deem material to
deciding to buy a product. Common law principles governing product
liability
require manufacturers and sellers to offer consumers warnings of risks
that would not be expected by the ordinary. 28
However, warnings about medical devices and drugs that are available to
patients only through physicians by prescription need only be given to
physicians.29
This is because their use requires
specialized medical knowledge. The physician should act as a "learned
intermediary"
between the manufacturer and the patient by weighing the risks and
benefits
of a particular product and by determining whether to recommend it to a
patient. Of course, the patient still has the right to reject the
recommendation.
But it is the physician, not the manufacturer or seller, that has the
obligation
to provide information to the patient.
Since
the patient rights movement of the 1970s, patients have consistently
received more protection than consumers. While consumers may have
access
to some of their credit information, patients are entitled to all the
information
in their medical records because the information belongs to them. Some
patients' rights have no analogy in the marketplace. For example, the
right
to privacy during the course of medical treatment is based on the need
for openness and trust in the physician patient relationship, and the
fact
that the patient often must expose his body to the physician.30
Of special importance is the recognition of
patients' rights to emergency
care, beginning with court decisions in the 1960s31
and culminating in state and federal legislation requiring hospitals
with
emergency departments to provide care to patients with emergency
medical
conditions regardless of insurance coverage or the ability to pay.32
This is the only right to medical care enjoyed by all Americans.33
The right to emergency care is an entitlement unique in the common law
and it is justified entirely by patient need. Not even
housing or
education assumes equal importance in the law.34
Courts have recognized patient rights primarily to
protect patients
against the possibility of physicians' misuse of expertise. It is
little
wonder why courts are willing to protect patients where they would not
protect consumers. In addition to the difference in circumstances, lack
of protection in matters of health care can result in serious
disability
or death. Moreover, patients do not choose their own medical treatment
in the same way that consumers choose to buy services. For the most
part,
providers must first determine what is appropriate for the patient, and
the patient may only accept or refuse what is offered by providers.35
Courts have consistently viewed physician
responsibilities to patients
as a matter of tort law governing standards of conduct to prevent
personal
harm.36
The law imposes legal duties on physicians
regardless of their consent.37
In contrast,
consumer rights are based primarily in contract law, where the defining
characteristic is the voluntary consent of both parties to the contract
terms. Courts have not permitted physicians to contractually alter
their
fiduciary duties.38
II.
Patient Rights and Consumer Rights in Managed Care
Table I of this paper offers a possible
classification separating managed
care issues into predominantly consumer concerns and predominantly
patient
concerns. For the purposes of this classification, consumer concerns
are
defined as issues that are relevant to decisions to purchase and/or
join
a managed care plan. Patient concerns are defined as issues that are
primarily
relevant to personal health care, independent of payment. There are, of
course, issues that concern both consumers and patients. Included in a
third category of mixed issues, shown in Table II, are those issues
with
the strongest claim to both concerns. This classification does not
purport
to be either exhaustive or immutable. It is intended primarily to
demonstrate
that there are important differences between protecting consumers and
protecting
patients.
companies so that companies will be
able to make promised payments to
claimants.39
A managed care plan is, in part,
an insurance policy. Thus, consumer issues in managed care include a
managed
care organization's financial solvency and investments. Furthermore,
management
capacities are relevant because managed care organizations promise to
deliver
not money payments but health care services to those insured. This
requires
sufficient expertise and organization to maintain relationships with
and
pay providers for the duration of the service period. In addition, the
providers must be sufficient in number to provide the services promised
to the consumer in the future. Indeed, this assurance is the basic
product
the consumer seeks. Because medical services are to be provided in the
future, and not at the time of the signing of the contract, consumers
are
justifiably concerned with a managed care organization's ability to
provide
care at a later date. A reasonable consumer would not be likely to
enter
into a contract with an organization that offered no assurance of being
able to fulfill its promises.
Many consumer
concerns are information-related because consumers are
presumed to base purchasing decisions on information about the
products.
As noted earlier, the law rarely concerns itself with the nature of
products
on the market. The managed care industry argues that government should
not impose content requirements for managed care plans because
organizations
should be free to offer a variety of insurance products, and regulation
would stifle innovation.40
Instead, the emphasis
is on facilitating consumer choice by offering information that
describes
various plan "products."41
Thus, consumer
concerns include disclosure of information about the benefits covered
and
excluded by a managed care plan, limitations on benefits, and
procedures
that must be followed to obtain care or coverage. Their concerns also
include
disclosure of information about physicians and other health
professionals,
such as licensure, specialty certification, years of experience,
malpractice
claims, location, and whether they are accepting patients. Consumers
are
also concerned with obtaining similar information about health care
facilities.
Disclosure requirements do not impose any specific substantive
requirements
on the care provided. However, they help consumers learn what kinds of
care may be expected, where, from whom, and under what conditions.
B.
Patient Concerns
The quality of care is a uniquely patient-oriented
concern,
independent
of payment.42
Quality includes the competence
of providers in diagnosing, preventing, and treating illness and
injury.
Concerns about the quality of care arise primarily when one becomes a
patient
and seeks diagnosis, prevention, or treatment. The law of professional
negligence, of course, imposes on physicians and other providers a duty
of care to patients, without regard to payment.43
The duty arises out of the provider's special knowledge and skill in
the
treatment of human beings, and the exclusive authority to use that
knowledge
as conferred by state licensure. Physicians are directly and personally
accountable to patients for injuries caused by their failure to conform
to the professional standard of care.44
Physicians
cannot require patients to accept a lower standard of care or waive the
right to sue for malpractice.45
Other concerns traditionally associated with
receiving medical care
include privacy and confidentiality of personal medical information.
Patients
have come to expect their physicians to keep their personal information
confidential and not to disclose it without the patient's approval.
Courts
justify a physician's obligations to keep patient confidences in order
to encourage patients to tell their physicians anything that might
facilitate
diagnosing and treating medical conditions.46
Arguably, a person ceases being a consumer and
becomes a patient upon
enrollment in a managed care plan. This is because the individual's
relationship
with the organization and its health care professionals is no longer
that
of buyer to seller. When the person begins to use the plan's services,
he or she is a patient. Moreover, as a practical matter, since almost
all
managed care plans are in effect for a fixed term, typically one year,
the consumer is not able to leave the plan, rescind the contract, or
return
the product until the end of the term. Thus, the person cannot act like
a consumer again until the term expires and he or she can choose to
remain
in the plan or buy a different product.
C. Mixed Concerns
Several components of managed care are
relevant to individuals both
as consumers and as patients. Although the package of benefits covered
by an insurance policy traditionally was considered part of the
consumer
contract, individuals are also concerned about the type of treatment
they
will receive as patients in the event of illness or injury. This is why
the so-called bills of patient rights before many legislatures
typically
include a few specific benefits. The most widely accepted mandated
benefit
is coverage of emergency care when an individual reasonably believes
that
serious illness or death could result from an injury or acute medical
condition.47
Both patients and consumers also have interests in
the providers who
will take care of them in a managed care plan. Patients and consumers
have
concerns about access to qualified physicians and other health
professionals
who are capable of properly diagnosing and treating their medical
conditions.
Managed care plans that have a closed panel of physicians place
contractual
restraints on the patient's freedom to consult any licensed physician.
The managed care industry often considers the number and specialty of
physicians
and hospitals in a plan's network as one component of the benefit
package
specified by the insurance contract.48
The
available pool of providers is also a critical element of the quality
of
care for patients. Thus, basic requirements such as professional or
facility
licensure, certification, and accreditation are relevant to both
patient
concerns about the quality of care they receive, and consumer concerns
about the qualifications of the providers to whom they have access
through
a health plan.
Other factors influencing provider
competence and the quality of care
can be relevant to both patients and consumers. For example, consumers
as well as patients have an interest in ensuring that decisions about
their
care will not be influenced by conflicts of interest. Thus, statutory
prohibitions
against referral arrangements, such as those barred by the Medicare
Anti-Kickback
Statute49
and Stark Amendments50,
so serve both consumers and patients. The same is true of statutory
prohibitions
against gag clauses that bar physicians from telling their patients
about
how they are financially compensated by a managed care plan.51
Both patients and consumers also have legitimate
interests in holding
a managed care plan accountable for intentional or negligent errors.
Ordinarily,
consumer interests lie in enforcing fair contract provisions, including
promised benefits, while patients are concerned about the quality of
care
they receive.52
In addition, both consumers
and patients have an interest in non-discriminatory treatment and
access
to plan services. In all instances, consumers and patients expect the
plan
to be accountable for its promises and obligations. Thus, the plan's
legal
responsibility for its acts and omissions is of critical concern, as
are
the means to enforce that responsibility, the remedies, and the damages
available. Although the substance of particular disputes may vary
between
consumers and patients, managed care plans often provide the same
internal
remedy, grievance or appeal procedures, for both groups. Thus, one must
address the fairness of mechanisms to hold managed care plans
accountable
simultaneously for both patient and consumer concerns.
III. Conflating Consumers with Patients
The call for regulation of managed care stems
from recognition that
patients need protection against managed care abuses. 53
However, most proposals for patient rights recently debated in Congress
and state legislatures focus on protecting consumer concerns.54
Such bills included provisions requiring managed care organizations to
give their members information about health
plan benefits and limitations, physicians in the network, treatment
preauthorization rules, and grievance procedures.55
This is consistent with the assumption that, like consumer protection
laws,
the legislation's goal is to permit consumers to make a knowledgeable
choice
of health plans, not to prescribe what the products should
be.
Some legislation requires that
health plans cover emergency care and
other mandated benefits, such as requiring health plans to pay for a
minimum
post-delivery hospital stay for women and their newborns.56
Some require health plans to permit standing referrals to specialists
for
certain medical conditions,57
while still
others prohibit "gag clauses" in contracts with physicians.58
So far, sixteen states require external review of some or all denials
of
benefits.59
In addition, Medicare and Medicaid
regulations limit the financial incentive arrangements that
participating
managed care organizations may use to compensate their physicians.60
These specific statutes resemble consumer protection laws that impose
individual
product safety standards or bar particular practices in response to
consumer
complaints about specific dangers or deceptions. Laws requiring minimum
post-delivery hospital stays, for example, were prompted by outrage
from
women who felt that they were being denied necessary medical care
promised
under their health plan.
There has been little
pressure, however, for laws that would regulate
corporate governance, for-profit or nonprofit status, overall health
plan
benefit structures, operating expenditures, "medical loss ratios,"
utilization
review standards, or other larger issues. The result is legislation
that
tells consumers more about what health plan "products" are on the
market,
but does little to make the product "safe." Moreover, many state laws
are
not enforceable against managed care plans offered by employers and
unions
that are governed by the federal Employee Retirement Income Security
Act
(ERISA).61
Federal legislation could produce a true national
bill of patient rights
that Professor Annas proposes. This is because federal legislation
could
apply to all patients, regardless of their insurance status.62
By and large, however, federal efforts to regulate managed care mimic
state
law proposals and suffer from the same narrow focus on consumer
concerns.
Therefore, federal legislation preempting state law may result in
patients
having fewer rights than they have now. State managed care legislation
at least has the virtue of leaving patient rights under state law
undisturbed.
The legislative emphasis on
consumer, as opposed to patient, rights
can be illustrated by the recommendations of the President's Advisory
Commission.63
One would expect any bill of rights to include the right to informed
consent.
The Commission's surprisingly worded recommendation says that
"consumers
have the right and responsibility to fully participate in all decisions
related to their health care."64What
counts
as participation is not clear. Although the commentary includes a good
list of information subject to disclosure, it does not indicate whether
its conception of this right includes the well-established right to
refuse
treatment for any reason.65
Similarly, the Commission's statement of a right to
confidentiality
of health information is less protective than existing law.66
The Advisory Commission also recommended that
consumers should have
"a right to a choice of health care providers sufficient to ensure
access
to appropriate high-quality health care."67
This does not mean that consumers are entitled to choose their health
plan
or their physicians. The Commission rejected any requirement that
consumers
be offered any particular choices. 68
As the
commentary makes clear, it amounts to a duty on the part of managed
care
plans to contract with a minimum number of providers to provide covered
benefits for plan members.69
The Commission
argued that this "right" is justified because it benefits the
marketplace
to have
consumers choose among competing "products." The Commission described
consumer choice as the "hallmark of a healthy marketplace," enhancing
consumer
satisfaction and confidence in their caregivers. This may be true, but
it is thin justification for a legal right. If, in the future, consumer
choice turned out to hinder a "healthy marketplace," would that mean
that
the consumer's right to choose should be revoked? There was no mention
of the value of having the market provide products that consumers need.
In essence, it was assumed that because the market is the best way to
meet
the needs of consumers, patient rights should be limited to those
things
that promote the efficient functioning of a market. This turns the role
of patient rights on its head.
IV. Problems with the Consumer Model
The debate over patient rights in managed
care and the proposed protective
legislation are based on an idealized consumer model. Proponents of a
competitive
health insurance market argue that consumer choice will force managed
care
organizations to compete by improving quality and service, as well as
lowering
prices, to meet consumer demand.70
Hence,
the emphasis is on improving consumers' ability to choose among plans
by
providing accurate and unbiased information. But there are both
empirical
and
conceptual problems with this approach. As a practical matter,
consumers
are not free to exercise the choices on which a competitive market
depends.
Furthermore, it is unlikely that they can, or will, make choices about
their medical care that will solve the problems of quality or price. In
addition, if contract law is the dominant legal paradigm for consumer
rights,
contract obligations that ignore important concerns of patient care may
displace important patient rights now governed by tort law.
Characterizing members of managed care plans as
consumers is
both inaccurate
and misleading. It assumes that individuals select and negotiate their
own individual contracts with health plans and insurance companies. The
emphasis is on the consumer's freedom to choose. But only a tiny
proportion
of managed care members buy their membership individually from a
managed
care organization. This portion includes people who are self-employed
and
employees of businesses that do not offer group health insurance.71
Most people obtain their health insurance through their employer or
union's
group health plan.72
The employer's
benefit manager or financial officer typically selects the health plans
that the company offers to its employees. Some employers negotiate the
terms of the insurance contract but many simply choose among standard
plans
offered by the managed care organizations and insurers.73
Employees must choose from one or more plans in final form on a take it
or leave it basis.74
The employee cannot
renegotiate the terms of the plan. If the employee is displeased with
the
plan's offer, his only option is not to enroll. Of course, many
employees
do not even have that option because their employer only offers one
plan.75
Furthermore, some plans charge such high premiums that employees cannot
afford them, so that choice is illusory.76
Critics of employer-provided group insurance argue
that most employers
base their choice of plans almost exclusively on price, preferring
plans
with low premiums, with little attention to quality.77
The Health Plan and Employer Data and Information Set (HEDIS),78
developed by large employers with the National Committee for Quality
Assurance,
is a welcome attempt to evaluate the quality of care provided by health
plans. Unfortunately, the information's utility is limited. It relies
primarily
on counting the number of members who receive relatively simple
procedures
like mammograms and immunizations. Patients are more likely to want
information
about how plans treat diabetes, different forms of cancer, and other
complicated
conditions. However, it is difficult to measure quality in such cases
because
of the differences in standards of practice in different locations, and
the fact that therapeutic standards are often a moving target. Thus,
employers
who want to assure their employees of good quality health care find it
hard to obtain useful comparative information.
Thus,
managed care contracts do not fit the idealized competitive market
model of a voluntary negotiated agreement between two individuals of
equal
bargaining power for mutually beneficial trade; the contract is not
necessarily
voluntary, nor does the individual negotiate it. Indeed, in group
health
plans, the contract is not between individuals at all, but between
companies.
The individual has no bargaining power and little awareness of the
bargaining
process. The result is often "membership" in an off-the-shelf standard
form plan about which the individual knows little more than the price
and
rudimentary information about benefits and exclusions. Under
these circumstances, it is unlikely that consumer choice can, or will,
play the role expected of it in managed care.
V. Problems with the
Contract Model
Managed
care brought together elements of health insurance and patient
care that traditionally have been handled separately by the law. Most
courts
that have reviewed disputes between patients and managed care
organizations
have felt constrained to categorize the issues for decision as either
wholly
contract issues or wholly tort issues.79
This
has proved particularly problematic in cases involving benefit
decisions
that influence the nature of patient care, because benefit decisions
are
typically governed by contract, while patient care decisions are
typically
governed by tort law.
In Kuhl v.
Lincoln National Health Plan of Kansas City, Inc.80 the
Eighth Circuit faced the question of whether the choice of a particular
hospital should be considered a decision about covered benefits under a
health plan contract or a decision about the quality of care to be
provided.81
In April 1989, Buddy Kuhl had a heart attack. All the physicians who
examined
him agreed that he should have surgery at Barnes Hospital in St. Louis
because the hospitals in Kansas City did not have adequate equipment
for
the surgery. 82
Kuhl's health plan, however,
was located in Kansas City, and would not authorize the surgery to be
performed
at Barnes because Barnes hospital was not in its network of
participating
providers.83
In July, the plan reversed its
decision, but the Bames surgical team was not available until September.84
By then, Kuhl's heart deteriorated to the point where surgery was no
longer
possible, and his physicians recommended a heart transplant to save his
life.85
Pre-certification for a transplant
at Barnes was also denied, and Kuhl died in December before his request
for reconsideration was decided.86
Kuhl's
wife sued the plan for medical malpractice, claiming that the plan
wrongfully
delayed heart surgery.87
The court of appeals
found that there was no valid malpractice claim because the plan did
not
make a medical decision. Instead, it characterized the suit as a claim
for denial of benefits or improperly processing a claim for benefits
defined
by the group health plan. 88
The court's decision is unsatisfying because it
fails to recognize the
medical treatment choices imbedded in the plan's actions. Both the
patient's
medical condition and the recommended surgery were concededly covered
as
part of the plan's benefits. Thus, the plan did not deny the benefit
itself.
The plan's objection was not to the surgery, but who performed it and
where.
A responsible plan would undoubtedly consider the quality of care in
selecting
a hosptal to provide surgery for its members. Thus, the plan's choice
of
hospital entails a representation that it will provide good care for
a patient. At the very least, the plan's decision has elements of
medical
judgment for a covered benefit. Like the Lincoln National Health Plan,
many health plans limit the providers who care for their patients in
order
to control both the cost and quality of care. Decisions about how
to provide care may share some procedures with decisions about whether
a condition or treatment is a covered benefit, but they are also
decisions
about the quality of care. Medical decisions are often so entangled
with
benefit decisions that any distinction between the two appears
artificial.
The mixed nature of many managed care
decisions blurs the boundary between
medical and benefit decisions that courts use to classify legal claims.
By and large, benefit decisions have been judged according to contract
law, while tort law governed medical decisions. But just as it is
difficult
to distinguish benefit decisions from medical decisions in managed
care,
it is often impossible to neatly separate contractual issues from tort
issues in managed care disputes. An insurer's obligation to decide
claims
in good faith, for example, is an extra-contractual duty enforceable by
a tort cause of action on the part of an insured. These duties,
however,
are limited to the insurer's actions in deciding whether a claim
qualifies
as a covered benefit.
Managed care goes further.
It has imported into its contracts service
obligations and standards of professional conduct ordinarily governed
by
tort law. Managed care plans sometimes offer services directly to their
members, such as advice and assistance in selecting particular
physicians,
hospitals, and treatment. They may encourage members to use the plan's
preventive care services and exercise club activities. In addition and
monitor physicians, hospitals, and other service providers that their
members
use.89 They
may also specify a drug formula
to be used by providers. The methods used to pay providers may create
incentives
to recommend particular treatments and not others.90
Paradoxically, then, contractual provisions affect the type and quality
of care provided to patients, and tort standards govern the services
provided
as insurance benefits. It is becoming impossible to characterize
components
of managed care as wholly contractual or wholly tort, which makes it
quite
difficult to determine which body of law governs.
If
all managed care decisions are benefit decisions governed by contract,
then it is impossible to hold the health plan accountable for its
influence
on the quality of care provided to the patient. For example, suppose
that
a managed care plan covers services provided only by physicians that it
has selected to be in its network. For several years, a patient with a
recurrent cough is seen by a network physician who negligently fails to
diagnose lung cancer until the patient is terminally ill. Under the
benefit/quality-of-care
distinction, the plan satisfied its obligations to the patient to
provide
covered benefits by paying for visits to its participating physician.
Although
the patient's estate may have a cause of action for negligence against
the physician, it will have no case against the health care plan even
though
the patient's choice of physician was influenced by the fact that the
plan
selects and pays for that physician's services. The patient might have
made the effort to see another physician outside the network, but that
option would have appeared unnecessary because treatment was a covered
benefit. The patient's right to obtain medical care that meets
acceptable
medical standards was affected by the plan's selection of a limited
network
of physicians to provide covered benefits. A plan has a responsibility
to ensure that its physicians are competent and provide acceptable
medical
care for covered medical conditions.91
This
is a tort obligation, but it arises out of the plan's contractual
obligations
to the patient.
Several commentators argue that
individuals should be free to agree
to a lower standard of care in return for paying a lower premium or
fee.
This, in effect, waives their right to bring a negligence suit for
substandard 92
Arguments against permitting such contracts include the patient's
relative
lack of bargaining power and the difficulty of appreciating what a
lower
or different standard of care might mean. But such proposals raise the
broader question of whether contract provisions should supersede any
and
all patient rights grounded in tort.
For example,
suppose that a patient refuses a recommended amputation
to stop a gangrenous infection, and therefore requires a lengthy
hospitalization.93
Could the patient's health plan refuse to cover the hospitalization on
the ground that it is not medically necessary and therefore not a
covered
benefit? The patient might have avoided hospitalization had he agreed
to
amputation, and the plan would have avoided the resulting expense. But
the insurance contract should not override the patient's right to
refuse
treatment. If the plan properly upholds the patient's refusal, can it
still
deny coverage of the hospitalization? What if the contract provides it
will pay only for treatment that it has pre-authorized as medically
appropriate,
and that other forms of treatment will not be covered? As long as the
treatment
options are medically acceptable, patients who exercise their right to
refuse treatment should not be penalized by forfeiting their benefit
coverage.
There are many examples of the ways
that tort-based patient rights and
contract-based health plan rights can interact and conflict in managed
care. Patient rights to confidentiality of their medical information
are
often affected by insurance contracts. Employers may obtain patient
records
to monitor health plan costs for their employees.94
But disclosure of personal medical information violates a patient's
right
to confidentiality. Contract provisions requiring patient consent to
disclosure
effectively vitiate this right.
For many years,
courts insisted that buyers have an obligation to read
the terms of their contracts and are bound by them whether they read
them
or not.95
During the 1960s and 1970s, many
courts and commentators found that classical contract law theory failed
to capture the reality of agreements or their performance, and, as a
result,
the courts fashioned more flexible standards for interpreting
contractual
obligations.96
Many courts have claimed to
interpret provisions in light of the parties' expectations.97
Others allowed the parties' deeds or oral representations to modify
contractual
obligations on the ground that the actions spoke louder than written
words.98
However, there has been little judicial challenge to the premise that
the
goal is to interpret the contract itself, not to require the contract
to
conform to any broader goals of social policy. Moreover, the past
decade
reveals evidence that courts may be returning to a more classical
approach
to deciding contract cases.99
This includes
perpetuating the untenable assumption that people know and understand
all
the terms and conditions of a written agreement, and therefore, have
agreed
to them and should be bound by them.
Several
scholars used classical contract theory to argue that patients
should be bound by exclusions and limitations in their health insurance
contracts.100 The
argument is usually part
of a strategy to reduce health care costs by reducing the demand for
health
care covered by insurance. It is assumed that when patients get sick,
they
often want medical care that is not covered by their health insurance
contract
and that courts often grant coverage in spite of contract exclusions. 101
The remedy is better enforcement of contractual limitations. This is
sometimes
justified as upholding the individual patient's "freedom" to choose a
cheaper
health plan with fewer benefits. 102
Insurers
would then be justified in refusing care that is not covered because
the
limitations were freely and rationally agreed to by both parties to the
contract.
This argument carries an eerie echo of Lochner
v. State of New York 103
in which "freedom of contract" was used to justify enforcing contracts
of adhesion against employees.104
Long
ago, Professor Freidrich Kessler warned of the dangers of such freedom:
• Society, when granting freedom of contract, does not
guarantee that
all
members of the community will be able to make use of it to
the
same
extent. On the contrary, the law, by protecting the unequal
distribution
of property, does nothing to prevent freedom of contract
from
becoming a one-sided privilege. Society, by proclaiming
freedom
of
contract, guarantees that it will not interfere with the
exercise
of power
by contract. Freedom of contract enables enterprisers to
legislate
by
contract and, what is even more important, to legislate in a
substantially
authoritarian manner without using the appearance of
authoritarian
forms. Standard contracts in particular could thus become
effective
instruments in the hands of powerful industrial and
commercial
overlords enabling them to impose a new feudal order of
their
own
making upon a vast host of vassals. 105
Fears of such overreaching may motivate public backlash against managed
care. Even if such fears have no foundation, they undergird strong
resistance
to blind enforcement of contracts. Where courts declined to enforce
contract
limitations, they sometimes resorted to unpersuasive textual
interpretations,
finding ambiguity where there was none, or questionable applications of
consumer expectation theories to avoid serious harm or expense to
patients.
Such interpretations only highlight the lack of fit between contract
doctrines
and managed care problems. Too often, patient concerns have little to
do
with how to interpret the contract. Rather, they arise from contract
provisions
of which patients were not aware and, when discovered, find unfair.
Consumer
protection laws provided some counterweight to the theory of freedom of
contract's potential for private authoritarianism. However, legislation
designed to remedy contract issues alone did not address the concerns
of
patients in managed care. Future law governing managed care, therefore,
cannot be limited exclusively to contract.
At the same time,
patients cannot expect managed care plans to provide
whatever a patient might want, without regard to quality,
effectiveness,
or cost. Unlimited health care is not a realistic option. Patients may
expect more care than can or should reasonably be provided in some
circumstances.106
After years of public debate over health care costs, the public may be
beginning to appreciate the cost of unlimited care. Nevertheless,
individuals
are likely to perceive a virtually unlimited need for care when they or
their loved ones are sick. 107
Even if they
decide to forgo some kinds of care, they may rightly expect to have the
choice. This means that they are likely to expect that their insurance
covers the care that their physician recommends and they accept. When
people
are sick, they act
like patients, not consumers, and they may not be willing to hear that
a health plan contract excludes the care. 108
Although patient rights do not include rights to
unlimited care, they
simply do not address financial or resource issues. Tort law deals with
standards of care, not the cost of care. Tort law recognized patient
rights
to make decisions about their own care and Americans cherish this right
as part of their autonomy. Annas correctly points out that to
argue
against individual self-determination is to argue against the most
fundamental
value of the American political system. 109
Arguments based in contract alone are not
likely
to be persuasive.
This suggests that, by itself,
neither contract nor tort offers a sufficient
or satisfactory basis for defining the array of legal rights and
obligations
arising out of managed care plans. Moreover, the interaction
of tort
and contract issues in managed care argues against picking one or the
other
to control a mixed issue. Managed care creates both contract
and
tort relationships with consumers who become patients.
Contracts
are a useful way to regulate financial transactions. Tort law
is
better suited to defining rights and obligations in personal and
professional
relationships. Yet, the line dividing contract and tort in
managed
care is as permeable as the line dividing decisions about benefits and
the quality of care. Standards for judging managed care must
acount
for its insurance and financial performance as well as it provision of
services. This will require a new synthesis of the law
applicable
to managed care decisions.
FOOTNOTES:
1.Professor Annas literally wrote
the book on patient rights: George J. Annas. The Rights of Patients (2d
ed. 1989) [hereinafter The Rights of Patients]. Other books by George
Annas
dealing with patient rights issues include Some Choice: Law, Medicine,
and the Market (1998) [hereinafter Some Choice]. Standard of Care: The
Law of American Bioethics(1993) [hereinafter Standard of Care];and
Judging
Medicine (1988) [hereinafter Judging Medicine]. Professor Annas has
also
written extensively on the rights of research subjects, who may or may
not also be patients. See, e.g., The Nazi Doctors
and the Nuremberg
Code: Human Rights in Human Experimentation (George J. Annas &
Michael
A. Grodon eds., 1992). George J. Annas et al., The Subject's Dilemma
(1977).
Top
2. The term "managed care"
is used in its broadest
sense to mean any health insurance plan that. in exchange for a fixed
premium,
finances and arranges for medical care for a group of individuals, with
varying degrees of management of the medical care provided to those
individuals
or the mechanisms for delivering such care. The National Conference of
State Legislatures has defined managed care as:
a term that describes health care systems
that
integrate the
financing and delivery of appropriate health services to covered
individuals
by arrangements with selected providers to furnish a comprehensive set
of health services, explicit standards for selection of health care
providers,
formal programs for ongoing quality assurance and utilization review,
and
significant financial incentives for members to use providers and
procedures
associated with the plan.
Kenneth R. Wing et al.. The Law and American Health Care 83 (1998)
(quoting The "National Conference of State Legislatures). Insurance
companies,
hospital and medical service companies, and employers offer managed
care
plans in a wide variety of structures, from closed panel health
maintenance
organizations (HMOs), to preferred provider organizations (PPOs), to
networks
of insurers and groups of physicians and hospitals. For a reasonably
comprehensive
description of the types of managed care organizations, see Health Law
Center, Aspen Publications, Managed Care Organizations, Affiliated
Entities,
and Integrated Delivery Systems, Managed Care Law Manual 1-9 (1997).
For
descriptions of the recent growth and variety of managed care
organizations,
see generally Jon Gabel,
Ten Way's HMOs
Have Changed During the 1990s, 16 Health Aff.
134 (1997); Alice G.Gosfield. The New Playing Field,
41 St.
Louis L.J. 869 (1997). Top
3. .See Wendy
K. Mariner, Business V. Medical Ethics:
Conflicting Standards for Managed Care, 23 Am. J.L. Med.
& Ethics
236 (1995). Managed care organizations have recently begun to raise
premiums,
prompting renewed fears that the cost reductions achieved to date were
one time only savings, and that, given a growing elderly population and
more advances in medical technology, higher premiums are necessary to
cover
new costs. See Ian Fisher, H.M.O.
Premiums Rising Sharp/y, Stoking
Debate on Managed Care, N.Y. Times, Jan. 11, 1998, at
A23. A
Health Care Financing Administration report predicts that national
health
expenditures will double to $2.1 trillion in 2007. See
Robert Pear,
Sharp Rise Predicted in Health-Care Spending in the Next Decade,
N.Y.
Times, Sept. 15, 1998, at A21. for seminal accounts of the
inevitability
of such increases. see Henry Aaron & William B. Schwartz, Rationing
Health Care: The Choice Before Us, 247 Science 41 8 (1990);
William
B. Schwartz, The Inevitable Failure qf Current
Cost-Containment Strategies:
Why They Provide Only Temporary Relief, 257 JAMA 220 (1987). Top
4. See, e.g..
National Comm'n for Quality Assurance,
Standards for Accreditation of Managed Care Organizations, 49-53
(1996):
President's Advisory Comm'n on Consumer Protection and Quality in the
Health
Care Indus., Consumer Rights and Responsibilities, Report to the
President
(Nov. 1997) [hereinafter. President's Advisory Comm'n]; Principles for
Consumer Prolection ( 1997) (a joint statement of Kaiser Permanente,
Group
Health of Puget Sound, Health Insurance Plan (HIP), and Families USA).
Health plan contracts typically refer to individual members as members
or enrollees.Top
5. See Geo J. Annas, A
National Bill of Patient
Rights, 338 New Eng. J. Med. 695, 696 (1998)
[hereinafter A
National Bill]Top
6. This follows a general
shift from medical terminology
to market terminology, in which physicians, nurses, dentists,
hospitals,
home health agencies, other professionals and facilities are all called
"providers" or, sometimes "vendors." and the proportion of premium
revenues
spent on patient care is the "medical loss ratio." Insurers have also
called
their insureds "covered lives," which does not include people without
insurance. See
Some Choice, supra note 1, at 44-51 (arguing that
the market metaphors
used in health care have transformed not only the way people think
about
medicine, but also misrepresent reality); see also generally
Edmund
D. Pellegrino, Words Can Hurt You: Some Reflections on the
Metaphors
of Managed Care, 7 J. Am. Bd.of Fam. Prac. 505 (1994) (noting
how the
use of certain terms changes the general perception of health care).Top
7. See George J. Annas, The Rights of
Hospital Patients
(1975). Top
8. See A National Bll, supra
note 5, at 697-99.
Annas proposes that the following categories of patient rights be
protected
by national legislation applicable to all Americans, whether
or not
they are covered by health insurance or managed care: The right to
treatment
information; the right to privacy and dignity; the right to refuse
treatment;
the right to emergency care; and the right to an advocate. In addition,
he proposes that consumers with health insurance should be entitled to
information about the health plan and financial incentives for
physicians
to limit care, payment for emergency care. a reasonable choice of
primary
care physicians, reasonable access to specialists, timely access to an
independent appeals mechanism for denial of benefits, and free
communication
with one's physician without health plan interference. See id Top
9. See generally Mark
A. Hall, Medical Spending
Decisions: The Law, Ethics, and Economics of Rationing Mechanisms
(1997);
Richard A. Epstein, Mortal Peril: Our Inalienable Right to Health Care?
( 1997). Top
10. See generally
Mark A.Rodwin, Consumer
Protection and Managed Care Issues: Reform Proposals, and Trade-Offs,
32 Hous. L. Rev. 1319 (1996) (providing a comprehensive analysis of
consumer
protection issues in managed care). Top
11. See,
e.g., Consumer Credit Protection Act,15
U.S.C. §§ 1601-1694 (1997 & Supp.); Real
Estate Settlement
Procedures Act, 15 U.S.C. §§ 2601-2617
(1994). Top
12. See
Restatement (Second) of Torts §
402A cmts.j, k (1965); Restatement (Third) of Torts: Product liability
§ 2 cmt. i, § 10 (1998). Top
13. Disclosure of product
information is not a panacea,
however. Even assuming, contrary to much evidence, that relevant
information
can be collected and distributed in a useful form, consumers are often
unable to understand it or act on it. See Marc A.
Rodwin, Physicians
Conflicts of interest: The Limitations of Disclosure,
321
New Eng. J. Med 1405, 1406 (1989); see also Marc
A.Rodwin, Medicine,
Money & Morals: Physicians' Conflicts of Interest216-17 (1993)
(noting
that laypeople are significantly less familiar with medical matters
than
with market and financial matters, so that obtaining and understanding
medical infomiation is especially difficult for patients): Susan
Edgman-Levitan
&. Paul D. Cleary, What Information Do Consumers Want
and Need?.Health
Aff.,Winter, 1996, at 42, 44; John E. Ware, What Information
Do Consumers
Want and How Do They Use It?, 33 Med. Care JS25 (J.Supp 1995). Top
14. See
Morgan v. Cincinnati Ins. Co., 307 N.W.2d
53, 54 (Mich. 1981) ("Recognizing the disparity in the bargaining
positions
of the companies which write insurance and the consumers who buy the
policies,
both the statutory law and Judicial decisions have aimed at making
certain
that the interests of every insured are protected."). Top
15. lf managed
care organizations considered their
insurance policies or health plans to be "products" then arguably, such
products could carry an implied warranty of merchantability or fitness
for use, which includes at least minimum standards of quality in the
care
actually provided. For an argument that managed care plans
should
be subject to an implied warranty of quality, see generally William
S.Brewbaker
III. Medical Malpractice and Managed Care Organizations: The
Imp!ied
Warranty of Quality,. 60L & Contemp. Probs. 117
(1997). Top
16. For the seminal exposition of
contracts of adhesion,
see generally Friedrich Kessler, Contracts of Adhesion --
Some Thoughts
about Freedom of 'Contract, 43 Colum. L. Rev. 629 (1943). Top
17. The U.S. Supreme Court's often
cited
statement
on the purpose of antitrust laws appeared in Northen Pacific Railway
Co.
v. United States, 356 U.S. 1, 3 (1958).
There, the Court stated:
The Shenman Act was designed
to be a comprehensive charter
of economic liberty aimed at preserving free and unfettered competition
as the rule of trade. It rests on the premise that the unrestrained
interaction
of competitive forces will yield the best allocation of our economic
resources,
the lowest prices, the highest quality and the greatest material
progress,
while at the same time providing an environment conducive to the
preservation
of our democratic political and social institutions. But even if that
premise
were open to question, the policy unequivocally laid down by the Act is
competition. Top
18. See
A National Bill, supra note
5, at 697. Top
19. See Jay Katz, The Silent World of
Doctor and Patient
1-29 (1984). Top
20. See generally Robert
Burt, Taking Care
of Srangers: The Rule of Law in Doctor-Patient Relationships (1979).
Physicians
and many other health professionals such as nurses, dentists or
optometrists
must be licensed under state law intended to set minimum (some would
say
minimal) requirements for specialized knowledge and skill. See George
J.
Annas el al American Health Law 668-74 (1990). Top
21. For-profit
corporations have a (financial) fiduciary
obligation to their investors. See Mariner, supra
note 3,
at 238. Top
22. See A National Bill, supra
note 5,
at 695. Top
23. For a thoughtful discussion of the
nature of the
fiduciary status of physicians, see
generally Marc A. Rodwin,
Strains in the Fiduciary Metaphor: Divided Physician Loyalties and
Obligations
in a Changing Health Care System, 21 Am. J.L. &.
Med. 241 (1995). Top
24. See
generally The Rights of Patients, supra
note 1; Judging Medicine, supra note 1, at 27-35;
Ruth Faden &
Tom Beauchamp, A History and Theory of Informed Consent
(1986); President's
Comm'n for the Study of Ethical Problems in Medicine and Biomedical and
Behavioral Research, Making Health Care Decisions: The Ethical and
Legal
Implications of informed Consent in the Patient-Practitioner
Relationship
(1982). Top
25. .See Canterbury v.Spence, 464 F.2d
772 (D.C.App,1972).Cobb
sv.Grant, 502 P.2d 1 (1972). Top
26. See
cases cited supra note 25. Top
27. See
generally ''Drummond Rennie, Informed
Consent by "Well-Nigh Abject" Adults, 32 New. Eng.
J. Med. 971
(1980). To date, courts have recognized the duty to provide information
only for physicians. If other health professionals are responsible for
making medical recommendations to patients, then they may also be
become
bound by a similar duty. Top
28. See
Restatement (Second) of Torts §§
388-389; Restatement (Third) of Torts ' 2 (1998). Top
29. See
Margaret Gilhooley, Learned Intermediaries,
Prescription Drugs.and Patient Information, 30 St. Louis U.
L.J. 633,
699 (1986), Nancy K. Plant, The Learned Intermediary
Doctrine: Some
New Medicine for on Old Ailment, 81 Iowa L. Rev.
1007,1007 (1996). Top
30. See also
Roe v. Wade, 410 U.S. 113, 153
(1973) (recognizing a different constitutional right to privacy,
encompassing
a woman's right to decide to terminate her pregnancy, but emphasizing
that
the decision was a medical decision to be made in the privacy of the
physician-patient
relationship). See generally Privacy Protection
Study Comm'n, Personal
Privacy in an Information Society 1977), George J. Annas, et
al. The
Right of Privacy Protects the Doctor-Patient Relationship,
263 New
Engl. J. Med. 858 (1991). See, e.g., Estate of
Berthiaume v. Pratt,
365 A.2d 792, 797 (Me. 1976) (discussing privacy during treatment);
Horne
v. Patton, 287 So.2d 824 (Ala. 1974) (discussing confidentiality);
Hague
v. Williams, 181 A.2d 345, 349 (N.J. 1962) (discussing
confidentiality). Top
31. See
Manlove v.Wilmington Gen. Hosp 174
A.2d l35 (1961) recognizing a state common law obligation for
private
hospitals oflering emergency services to provide care in an emergency);
Karen Rothenberg, Who Cares?The Evolution of the Legal Duty
to Provide
Emergency Care, 26 Hous. L. Rev. 21, 33-50 (1989). Top
32. Texas was the first state to adopt
such legislation. See
Tex. Health & Safely Code Ann. § 4438(a)
(superceded
by
Tex. Health & Safety Code §§ 311.021-311.022
(West 1992)).
The federal law applies to all hospitals with emergency departments
that
participate in Medicare or Medicaid, although the obligation to provide
emergency care applies to all patients with an emergency medical
condition
or women in active labor. See Emergency Medical
Treatment and Active
Labor Act, 42 U.S.C. §1395dd (1994). Top
33. States
have an obligation to attend to the serious
medical needs of prisoners and pretrial detainees incarcerated in
correctional
institutions under the U.S. Supreme Court's interpretation of the
Eighth
Amendment because they are unable to obtain medical care without the
state's
permission and assistance. See Estelle v. Gamble,
429 U.S. 97 (1976)
(finding that the state's "deliberate indifference" to the serious
medical
needs of prisoners can violate the Eighth Amendment's prohibition
against
cruel and unusual treatment). Top
34. See,
e.g., City of Clebimie v. Cleburne
Living Ctr., Inc.. 473 U.S. 432 (1985). Top
35. See Adam
Yarmolinsky, Supporting the Patient,
332 New. Eng. J. Med. 602, 602 (1995) ("Patients may be the only
consumers
who have to seek permission from someone else in order to obtain
services") Top
36. Legislation has supplemented or
modified some common
law principles with respect to the confidentiality of medical records
and
the patient's right to gain access to, and copies of, such records. See
The
Rights of Patients, supra note 1, at 160-74. Top
37. Indeed, the obligation to provide
information as
required by the doctrine of informed consent was strenuously resisted
by
many in the medical profession for many years. See generally
Katz, supra
note 19. Top
38. There have been several proposals
to
allow providers
and patients to contractually alter the standard of care in return for
lower charges, either to reduce health care costs in general or to
reduce
the frequency or cost of malpractice claims. See generally.
e.g.,
Richard A. Epstein, Medical Malpractice: The Case for
Contract, 1976
Am. Bar Found. Res. J. 87 (1976); see also Clark C. Havighurst, Private
Reform of Tort Law Dogma: Market Opportunities and Legal Obstacles,
49 Law & Contemp. Probs. 143 1986). See e.g.,
Clark C. Havighurst, Making
Health Plans Accountable for the Quality of Care, 31 Ga. L.
Rev. 587,
589 (1997) (proposing enterprise liability as an exclusive remedy for
patients,
with opportunities to reduce liability by voluntary contractual
waivers).
For arguments against contractual limitations on the standard of care,
see generally P. S. Atiyah, Medical Malpractice and The
Contract/Tort
Boundary. 49 Law & Contemp. Probs. 287 (1986), Sylvia
A. Law, Medical
Malpractice: Can the Private SectorFind Relief?-Perspectives on the
Reform
Agenda. 49 Law & Contemp. Probs. 305-20 (1986),
Randall Bjovberg,
Medical Malpractice: Problems & Reforms (1995). Top
39. See Henry T.Greely, The
Regulation of Private
Insurance, in Health Care Corporate Law: Formation and
Regulation §
8.13.1 (Mark Hall ed., 1997). Top
40. Examples
of testimony before legislative committees
and white papers can be found at the web sites of trade associations,
such
as the American Association of Health Plans (AAHP) and the Health
Insurance
Association of America. Some non-profit health plans favor some types
of
government regulation. See generally Steve Zatkin, A
Health Plan's
View of Government Regulation, Health Aff.,
Nov./Dec., 1997,
at 33. Top
41. Alain C. Enthoven's early advocacy
of prepaid group
health plans argued that consumers would force plans to improve quality
and reduce premiums prices by choosing and joining only the best plans.
See
generally Alain C. Enthoven. Health Plan: The Only Practical
Solution
to the Soaring Cost of Medical Care (1980). Current proponents of
leaving
health insurance, including managed care, to a more or less unregulated
market use the same or similar arguments. See. e.g., Regina
Hertzlinger,
Market Driven Health Care (1997). Epstein, supra
note 9; Alain C.
Enthoven & Sara J. Singer, Markets and Collective
Action in Regulating
Managed Care, Health Aff.., Nov./Dec. 1997, at 26. Top
42. This is not to suggest that
measuring quality is
a simple matter. See generally Robert H. Miller
&. Harold S.
Luft, Does Managed Care Lead to Better or
Worse Quality of Care?, Health Aff., Sept/Oct 1997, at 7
(1997). Report to the Chairman, Committee
on Labor and Human Resources, Health Care Reform: "Report Cards" Are
Useful
but Significant Issues Need to be Addressed (1994);
Symposium, The
Limited Regulatory Potential of Medical Technology Assessment,
82 Va.
L. Rev. 1525 (1996): Arnold Epstein, Performance Reports on
Quality
Prototypes, Problems and Prospects, 333 New Eng, J. Med. 57
(1995):
Wendy K. Mariner, Outcomes Assessment in Health Care Reform:
Promise
and Limitations. 20 Am. J.L. &. Med. 37 (1994):
Jerome P. Kassirer, The
Quality of Care and the Quality of Measuring It, 329 New Eng.
J. Med.
1293 Top
43. Payment may serve as evidence that
a
physician-patient
relationship exists in order to determine whether a physician owes a
duty
of care to the patient. Nonetheless, the law applies to the
relationship,
however created, not because of any payment made. See
generally.
Wing et al, supra note 2, at 606-12. Top
44. Even state laws governing
incorporation generally
prohibit physicians (and other professionals) from insulating
themselves
against personal liability for negligence in the performance of their
professional
services. See generally. The Rights of Patients, supra
note
1. Top
45.See Emory Univ. v. Proubianski, 282
S.E.2d 903 (Ga.
l981); Tunkl v.Regents of Unv.of Cal., 383 P.2d 441 (Cal. 1963)
(holding
that release of liability for free medical care generally unenforceable
as against public policy). Top
46. See cases
cited supra note 30. Top
47. See,
e.g., discussion supra note
32. Top
48. It is undoubtedly for this reason
that the National
Association of Insurance Commissioners' Managed Care Plan Network
Adequacy
Model Act contains provisions on network adequacy which require that a
health plan have arrangements with a sufficient number and types of
providers
to meet the anticipated medical needs of its entire membership. See
National Ass'n of Insurance. Comm'rs, Managed Care Plan Network
Adequacy
Model Act, NAID Model Laws, Regulations and Guidelines 74-1 -74-13
(1996).
The President's Advisory Commission recommended a similar requirement
based
on the NAIC language. Top
49. 42 U.S.C. §
1320a-7b(b) (1994). Top
50. 42 U.S.C.
§1395nn
(1994). Top
51. Most statutory prohibitions against
gag clauses
ensure that physicians are free to tell patients about treatment
options,
including those not covered by the patient's health plan. They do not
typically
require disclosure of other types of information, such as physician
compensation.
The Massachusetts' statute does not require any disclosure by
physicians.
It merely prohibits health plans from refusing to contract with or pay
physicians who tell patients about treatment options. See Mass.
Gen. Laws ch. 175. §§ 108. 110 (1998). Gag clauses
that restrict
individual patient care recommendations are most closely related to
patient
concerns. Federal legislation prohibiting gag clauses has not yet been
enacted. See, e.g., The Patient Right to Know Act,
S. 449, 105th
Cong. §§ 1-4(1997) Top
52. Quality concerns
include not only the quality
of care that is provided, but also a failure to provide care, as in
missed
diagnoses, misdiagnoses, and failures to provide treatment in
accordance
with the appropriate standard of care. Top
53. The word
''abuses'' is used to emphasize that the
practices complained of are not inherent in managed care. For examples
of such complaints, see generally George Anders, Health Against Wealth:
HMOs and the Breakdown of Medical Trust Care and (1996); Thomas
Bodenheimer, The
HMO Backlash Righteous or Reactionary?, 335 New Eng. J. Med.
1601 (1996);
Jerome P. Kassirer. Managing Managed Care's Tarnished Image,
337
New Eng. J.Med. 338 (1997); David S. Hilzenrath, Backlash
Builds Over
Managed Care; Frustrated Consumers Push for Tougher Laws,
Wash. Post,
June 30, 1997, at A1. Many media reports about managed care emphasize
problems
or perceived abuses. See Paul M. Ellwood & George D. Lundberg, Managed
Care: A Work in Progress, 276 JAMA 1083, 1084 (1996); see
generally
Karen lgnagni, Covering a Breaking Revolution: The Media and
Managed
Care, Health Aff., Jan/Feb. 1997, at 26 (1998). Top
54. ln l998.Congress failed to pass any
of the bills
introduced to regulate managed care or protect consumers. The House of
Representatives passed the Republican leadership's bill in July 1998.
The
Patient Protection Act of 1998, H.R. 4250, sponsored by Rep. Newt
Gingrich
(D-Ga.) and others, which later died in the Senate along with the
competing
bills, such as The Patients' Bill of Rights Act of 1998, S. 1890,
sponsored
by Sen. Tom Daschle and others. See S. 1890, 105th
Cong. (1998), Top
55. For analyses of earlier state
legislation adopted
by the states, see Geraldine Dallek et al.. 1 Consumer Protection in
State
HMO Laws, Analysis and Recommendations (1995); Patricia Butler
& K.
Polzer, Private-Sector Health Coverage: Variations in Consumer
Protections
under ERISA and State Law (1996). Top
56. Maryland
was the first state to adopt such a law,
quickly followed by New Jersey, Massachusetts, and other states. See
George
Annas, Women and Children First, 333 New Eng. J.
Med. 1647, 1648
(1995). However, the Employee Retirement Income Security Act (ERISA),
precludes
enforcement of such mandated benefits against self-funded ERISA plans. See
Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724 (1985). For
overviews
of the effect of ERISA on state legislation to regulate managed care,
see
Wendy K. Mariner, State Regulation of Managed Care and the Employee
Retirement
Income Security Act, 335 New Engl. J. Med. 1986 (1996). Congress
adopted
the Mothers and Newborns Protection Act, 29 U.S.C. § 1185
(1997),
which amended ERISA to imposed minimum standards on all plans offering
childbirth benefits. See id. Top
57. See Fred
J. Hellinger. The Expanding Scope of
State Legislation. 276 JAMA 1065,1066 (1996). Top
58. For a critical view of gag
clauses, see generally
Steffie Woolhandler & David U. Himmelstein, Extreme
Risk - The New
Corporate Proposition for Physicians, 333 New Eng. J. Med.
1706 (1995). Top
59. See U.S. General
Accounting Office, HMO
Complaints and Appeals: Most Key Procedures in Place, but Others Valued
by Consumers Largely Absent, GAO/HEHS-98-119 (May 1998). See
generally
George J. Annas, Patients Rights in Managed Care - Exit.
Voice and Choice
337 New Eng. J. Med. 210 (1997). Top
60. See
Requirements for Physician Incentive Plans,
42 C.F.R. § 417.479 (1997). Top
61. See generally
Mariner. supra note
56 at 1986; Mary Ann Chirba-Martin & Troyen A. Brennan, The
Critical
Role of ERISA in State Health Reform, 13 Health Aff. 142-
(1994) Top
62. See A National Bill, supra
note
5, at 697. Top
63. It is significant that the
Comission
did not recommend
that the "rights" be enacted into law to ensure that they would be
legally
enforceable. Top
64. President's Advisory Comm'n, supra
note
4, at ch. 4. The Commentary notes that open communication promotes
positive
outcomes, compliance and consumer satisfaction. In
particular, the
justification of this right is the "asymmetry of information between
consumer
and heathh care provider." Id.
This supports the physician's
legal duty to provide information to patients. But that duty
is premised
on the individual patient's right to autonomy and self-determination,
which
the commission fails to mention. Top
65. The
information should include treatment options,
their benefits, the risks, and the consequences, the use of advance
directives,
methods of physician compensation, and other financial interests that
could
influence treatment decisions. See id. Top
66. The Commission states that "the
quality of the
health care system also depends on the regular exchange of information
between providers, employers, plans, public health authorities,
researchers,
and other users." Id., at ch. 6. With such a wide
exchange, it is
hard to imagine who does not have access to one's confidential medical
information. The Commission notes that individually identifiable
information
should not be disclosed without written consent except "in very limited
circumstances where there is a clear legal basis for doing so." Id.
These
reasons include "medical or health care research for which an
institutional
review board has determined anonymous records will not suffice,
investigation
of health care fraud, and public health reporting." Id.
This evidence's
either poor drafting or a misunderstanding of the law governing
federally
funded research with human subjects, which precludes the use of
identifiable
information for research without written consent. Top
67. Id at ch.2. The language
tracks that of
the National Association of lnsurance Commissioners' Model Act. This is
certainly a necessary element of a plan, since no plan should be
considered
competent to offer services if it does not have the professional
resources
to provide care. Top
68. The Commission decided
that it was "unacceptable"
to recommend that people be given more choice because it would cost
more
and employers might reduce or drop coverage. See id.
However, the
percentage of employees covered by employer-provided plans steadily
declined
during the past decade while premium costs remained relatively stable.
See U.S. General Accounting Office, Employment-Based Health
Insurance:
Costs Increase and Family Coverage Decreases (Feb.1997). Top
69. The Commission rejected any
requirement that plans
contract with all qualified providers or that plans allow members to
see
providers outside the plan's network. Plans are permitted to have
closed
panels of providers as long as the pool itself is adequately large. See
President's Advisory Comm'n, supra note 4, at ch.
2. Top
70. See generally Hall, supra
note 9. Epstein, supra
note 9; Enthoven supra note 41. Top
71. About 150
miillion people are insured under group
health insurance plans offered by private employers and trade unions.
About
ten million people are enrolled in managed care plans under individual
policies. See Employee Benefit Research Institute, EBRI Databook OD
Employee
Benefits (1995). Top
72. Because employers
outnumber unions that offer health
benefits, for simplicity, this article uses the term "employer" rather
than employers, unions, and multiemployer groups. See
Thomas Bodenheimer
& Kip Sullivan, How Large Employers Are Shaping the
Health Care
Marketplace, 338 New Eng. J. Med. 1084, I086 (1998). Nor do
individuals
that get their benefits from government
programs like Medicare and Medicaid negotiate a health plan contract
because a federal statute defines the benefits and regulations.
Theoretically,
beneficiaries could peruse the law to determine their specific
entitlements,
although few do and it is unclear how many, including attorneys,
understand
what the law covers. Both Medicare and Medicaid issued summaries for
beneficiaries,
which may or may not be more informative than the summaries issued by
private
plans. At the same time, there is no pretense that beneficiaries
negotiate
the terms of their coverage. Courts consistently find such programs to
be voluntarily offered by government, which defines the benefits. See
Harris
v. McRae, 448 U.S. 297,299 (1980). Beneficiaries are not denied
benefits
on the theory that they have agreed to limitations. Top
73. Havighurst
argues that employees are well served
by having relatively sophisticated employers negotiate health insurance
contracts on their behalf. See dark C. Havighurst, Prospective
Self-Denial:
Can Consumers Contract Today to Accept Health Care Rationing Tomorrow".
140 U. Pa. L. Rev. 1755, U67n.27 (1992). Top
74. See Maxwell J. Mehiman, Fiduciary
Contracting:
Limitations on Bargaining Between Patients and Health Care Providers 5I
U.Pitt.L. Rev. 365, 370 (1990). In fact, employees typically receive
only
a summary of benefits, not the plan itself. Top
75. About 48%
of moderate and large employers reported
offering only one plan in the 1995 KPMG Peat Marwick Health Benefits
Survey.
Thirty-five percent of moderate and large employers offered three or
more
plans. Small employers are less likely to offer a choice of plans,
although
many still offer indemnity insurance instead of managed care plans.
.See
Lynn Etheredge et al., What is Driving
Health Standards of Care
and Standard Form Contracts System Change?, Health Aff.,
Winter 1996,
at 93, 94. See also Atul A.
Gawande et al., Does Dissatisfaction
With Health Plans Stem From Having No Choice?, Health Aff.,
Sept./Oct.
1998 , at l84,187 (noting that 42% of those insured through either
their
employer or spouse have no choice of health plans). Top
76. See
generally Jon R. Gabel et al., Small
Employers and Their Health Benefits.1988-!996: An
Awkward Adolescence,
Health Aff., Sept./Oct. 1997,at l03 (analyzing KPMG Peat Marwick survey
on small employer utilization of health care plans): see also generally
John R. Gabel et al., When Employers Choose Health Plans, Do
NCQA Acceditation
and HEDIS Data Count? Sept 1998) <http://www.cmwf.org/programs/health_care/gabel_ncqa_293.asp>
(noting that only five percent of employers reported HEDIS data as
"very
important" in selecting an HMO for their employees; only one percent of
employers provided any HEDIS data to their employees). Top
77. See Mehlman, supra
note 74, at 376. Top
78. For a full description
of HEDIS, see National
Commitee for Quality Asurance (visited Dec. 2, 1998) <http://www.ncqa.org>
.Top
79. See.e.g., Corcoran v.United Health
Care, Inc.,
965 F.2d l321,1331 (5thCir. 1992). Top
80. 999 F.2d
298 (8th Cir. 1993). Top
81. See id at
302. The primary legal issue was
whether Kuhl's wife's malpractice claim was preempted by ERISA, but
resolution
of that issue required determining whether the health plan made a
medical
decision; which would be judged according to negligence standards in
state
court, or merely denied a claim for benefits under an employee group
contract,
which would be governed by ERISA. See id. at 304. Top
82. See id. at 300.
Kuhl's plan physicians found
that Kuhl was at risk for sudden death from ventricular tachycardia and
recommended bypass surgery together with electrophysiologically guided
left ventricular aneurysm resection and subendocardial resection, all
needed
within a few weeks. See id. The health plan's
participating cardiologists
and cardiac surgeon agreed that their hospitals did not have the
necessary
equipment and that no physician in Kansas City had as much experience
or
success with this type of surgery as the Barnes physicians. See
id.Top
83. See id. Top
84. See id. Top
85. See id. Top
86. See
id. Top
87. See Kuhl, 999
F.2d at 300. Top
88. See id. at 303.
The effect of that decision
was to dismiss any state law claim for malpractice. Kuhl's family could
bring a claim for nonpayment of benefits under ERISA. However, even if
successful, the remedy would be limited to the cost of the
benefit
itself and exclude any damages for personal injury. For a discussion of
the effect of ERISA on negligence claims against managed care plans,
see
generally Wendy K. Mariner, Liability for Managed Care
Decisions: The
Employee Retirement Income Security Act (ERISA) and the
Uneven Playing
Field, 86 Am. J. Pub. Health 863 (1996). Top
89. See
generally John D. Blum, The Evolution
of Physician Credentialing into Managed Care Selective Contracting, 22
Am. J.L. & Med. 173 (1996); Mark A. Kadzielski et al., Credentialing
for Managed Care Providers: Risks and Opportunities, 18
Whittier L.
Rev. 87 (1996). Top
90. For a description of
the types of incentive compensation
methods in use, see generally Marsha R. Gold et al., A
National Survey
of the Arrangements Managed-Care Plans Make with Physicians,
333 New
Eng. J. Med. 1678 (1995). For a summary of concerns about the effect of
financial incentives on physician behavior, see generally Barry R.
Furrow, Incentivizing
Medical Practice: What (If Anything) Happens to Professionalism,
1
Widener. L. Symp. J. 1 (1996). Top
91. If a plan
acts with reasonable diligence and the
physician is indeed competent, but makes a negligent error, the plan
would
have no liability to the patient, unless the physician were the plan's
employee or agent. See generally Barry R. Furrow, Managed
Care
Organizations and Patient Injury: Rethinking Liability, 31
Ga. L. Rev.
419 (1997). For the early development of corporate liability in managed
care, see generally John D. Blum, An Analysis of Legal
Liability; in
Health CareUtilization Review and Case Management, 26 House.
L.Rv 191
(1989). Top
92. See
discussion supra note 38. Top
93. See
Lane v. Candura, 376 N.E.2d 1232. 1233
(Mass. App. Ct. 1978). Top
94. See Doe
v.Southeastern Penn. Trans.Auth.,
72 F.3d 1133 (3rd Cir.l995). Top
95. Meyerson
criticizes such decisions on the ground
that '' [c]ourts should not presume something they know is untrue."
Michael
I. Meyerson, The Reunification of Contract Law: The Objective
Theory
of Consumer Form Contracts, 47 U. Miami L. Rev. 1263, 1326
n.40 (1993).
As to the resulting law, he notes, "[i]f it is both unreasonable and
undesirable
to have consumers read these [standard] terms, courts should not
fashion
legal rules in a futile attempt to force consumers to read these terms
or to punish those who do not." Id. at 1270. Top
96. Not coincidentally, many of the
first consumer
protection laws were adopted during the same period. See Rodwin, supra
note 10, at 1333. Top
97. Professor Keeton may
have been the first to suggest
that one of the unifying principles underlying seemingly inconsistent
court
decisions was that the reasonable expectations of the parties to an
insurance
contract would be enforced even where the policy language dictated a
different
result. See Robert E. Keeton. Insurance Law at
Variance with Policy
Provisions, 83 Harv. L. Rev. 961, 967 (1970). Top
98. Such
exceptions to the parole evidence rule, however,
have been somewhat limited in application. Top
99. See Ralph
James Mooney, The New Conceptualism
in Contract Law, 74 Or. L. Rev. 1131, 1189 (1995) (arguing
that courts
have resurrected much of classical contract law's abstract and formal
rides,
emphasizing "freedom of contract" and market place economics, and that
such roles have tended to favor large economically powerful entities,
including
banks, employers, and insurance companies). For earlier predictions of
the same trend, see E. Allan Farnsworth, Developments in
Contract Law
During the 1980's: The Top Ten, 41 Case
W. Res. L. Rev. 203,
216 (1990); Kerry L. Macintosh, Gilmore Spoke Too Soon:
Contract Rise
from the Ashes of the Bad Faith Tort, 27 Loy. L.A. L. Rev.
483, 534
(1994). A similar retrenchment can be seen in tort law. See
Thoedore
Eisenberg & James A. Henderson, Inside the Quiet
Revolution in Products
Liability, 39 UCLA L. Rev. 731, 788 (1992). Top
100. See
Mark.A.Hall & Gerald F.Anderson, Health
Insurers' Assessment of Medical Necessity, 140 U. Pa. L.Rev.
1637,
1647 (1992); Havighurst, supra note 73,at 1764. Top
101. The degree to which courts
actually favor insured
plaintiffs in benefit disputes is a matter of some controversy.
Although
both insured individuals and insurers can point to specific horror
stories,
the court decisions do not demonstrate any uniform bias. Hall studied
203
published decisions on medical necessity issued from 1960 to 1994 and
found
patients won in thirty-nine percent of federal appeals and 62% of state
appeals. The results varied based on the type of insurance, with
plaintiffs
winning 54% of all private insurance cases. 70% of public benefit
program
court decisions, and 31% of government employee health insurance cases.
Insurer discretion to interpret the contract produced marked
differences,
with plaintiffs winning 80% of cases in which the insurer did not
reserve
the discretion to interpret the contract, and 37 % of cases in which
the
insurer did reserve discretion. See Mark A. Hall el al.. Judicial
Protection
of Managed Care Consumers: An Empirical Study of Insurance Coverage
Disputes,
26 Seton Hall L.Rev. 1055, 1064 (1996); see also Willy
E.Rice, Judicial
Bias, The Insurance Industry and Consumer Protection: An Empirical
Analysis
of State Supreme Courts' Bad-Faith, Breach-of-Contract,
Breach-of-Covenant-of-Good-Faithand
Excess-Judgment Decisions, 41 Cath. U. L. Rev. 325, 377
(1992) (finding
different results in courts in different parts of the country). Top
102. Havighurst has argued that health
plans "should
therefore be alert for opportunities to assist consumers in economizing
by surrendering legal rights that systematically induce or excuse
excessive
spending by physicians." Havighurst, supra note 73,
at 1794. Top
103. 198 U.S.
45, 64 (1905) (holding that the
limitation of employment in bakeries to 60 hours a week and 10 hours a
day is an arbitrary interference with the freedom to contract
guaranteed
by the U.S. Constitution). Top
104. See id. Top
105. Kessier, supra note
16, at 640. Top
106. Annas cautions that patients
caanot be condemned
for expecting and demanding more and better medical care. For decades,
physicians and hospitals fostered the notion that their services were
necessary
and valuable, and the more technologically advanced, and expensive, the
better. Traditional indemnity insurance did little to counter such
impressions
until relatively recently. In many respects, the health care system
reaped
what it sowed. At the same time, patients do not always demand more
care.
A recurrent theme in the patient rights arena was the resistance some
patients
and their families meet when they refused care. See Standard of Care, supra
note 1, at 215. Top
107. No one disputes the American
romance with medical
care, or the tendency to demand whatever is possible to treat an
illness,
especially a potentially fatal illness. There is a wealth of literature
debating the causes of, and possible solutions to, increasing demand
for
medical care. For a comprehensive discussion, see Daniel Callahan, Whal
Kind of Life: The Limits of Medical Progress (1990).
For an social and psychological analysis of Americans' focus on health,
see Arthur J. Barsky, Worried Sick Our Troubled Quest for Wellness
(1988). Top
108. Annas
noted that "there is no possibility of
containing costs (and thus making quality medical care available to all
Americans) unless we can come to grips with our mortality." Standard of
Care, supra note 1, at 214-15. Top
109. See id. Top
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