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Denial of Health Care and Informed Consent in English and American Law

Published online by Cambridge University Press:  24 February 2021

Frances H. Miller
Frances H. Miller*
Affiliation:
Boston University School of Law and Professor of Public Health, Boston University School of Medicine
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Abstract

Health care rationing has gained greater visibility in the United States and the United Kingdom, for quite different reasons. As patients in both countries become more aware that potentially beneficial medical services can be denied them on economic — as opposed to purely medical — grounds, they are beginning to seek help from the judiciary. This Article contends that as rationing becomes more explicit, the doctrine of informed consent will come under increased pressure. The Article suggests that courts and legislatures consider imposing a legal obligation on physicians to inform their patients when potentially effective treatment is to be withheld for economic or other non-clinical reasons.

Type
Articles
Information
American Journal of Law & Medicine , Volume 18 , Issue 1-2: Rationing Health Care: Social, Political and Legal Perspectives , 1992 , pp. 37 - 71
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 1992

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Footnotes

Research in Great Britain for this Article was supported in part by a Fulbright Scholar grant and the research hospitality of Wolfson College, Cambridge University and the King's Fund Institute, London. George Annas, Troyen Brennan, Andrew Grubb, Rudolf Klein, Bob Lee and Derek Morris made valuable comments on an earlier draft.

References

1 See Howard, Davies & Hugh, Powell, How to Ration Health Care — and be Re-elected: The U.K. Experiences, 3 STAN. L. & POL'Y REV. 138 (1991)Google Scholar; Rand E., Rosenblatt, Rationing “Normal” Health Care: The Hidden Legal Issues, 59 TEX. L. REV. 1401, 1403-05 (1981).Google Scholar Cf. ALBERT O., HIRSCHMAN, EXIT, VOICE AND LOYALTY (1970)Google Scholar (on the use of voice to effectuate change).

2 The term “rationing,” in its popular — as opposed to its literal — sense, often is used to describe withholding (for economic as opposed to clinical reasons) medical treatment that might benefit patients. However defined, rationing is inevitable in health care. See VICTOR, FUCHS, WHO SHALL LIVE? HEALTH, ECONOMICS, AND SOCIAL CHOICE 17–29 (1974)Google Scholar; Daniel, Callahan, Symbols, Rationality, and Justice: Rationing Health Care, 18 AMJ. L. & MED. 1, 2 (1992).Google Scholar

3 Cf. Leslie, Francis, Consumer Expectations and Access to Health Care, 140 U. PA. L. REV. (forthcoming 1992).Google Scholar

4 Medicare is the federal two-tiered health insurance for the aged and the disabled. 42 U.S.C.A. §§ 1395-1395zz (West 1992).

5 54 Fed. Reg. 4317 (1991) (to be codified at 42 C.F.R. § 405.380(b)(3)).

6 Medicaid is the federal-state cost sharing health insurance for the indigent or medically indigent. 42 U.S.C.A. §§ 1396a-1396u (West 1992).

7 Oregon's plan consists of six separate legislative acts. Act effective July 1, 1989. ch. 836, 1989 OR. LAWS 836 (codified as amended at OR. REV. STAT. §§ 414.025, 414.036, 414.042 (1989)) (health services); Act effective July 1, 1989, ch. 838, 1989 OR. LAWS 838 (codified as amended at OR. REV. STAT. §§ 735.605-735.650 (1989)) (Oregon Medical Insurance Pool); Act effective Oct. 3, 1989, ch. 381, 1989 OR. LAWS 381 (codified as amended at OR. REV. STAT. §§ 316.096, 317.113, 353.725, 353.765, 353.775 (1989)) (health care); Act effective Jan. 1, 1992, ch. 916, 1991 OR. LAWS 916 (codified as amended in scattered subsections of OR. REV. STAT. §§ 316, 317, 414, 743, 750 (1991)) (health benefit plans); Act effective June 30, 1991, ch. 470, 1991 OR. LAWS 470 (codified as amended in scattered subsections of OR. REV. STAT. §§ 127, 244, 422, 753 (1991) (health care cost containment); Act effective Aug. 5, 1991, ch. 753, 1991 OR. LAWS 753 (codified as amended in scattered subsections of OR. REV. STAT. § 414 (1991)) (health care). See also Jennifer, Dixon & H. Gilbert, Welch, Priority Setting: Lessons from Oregon, 337 LANCET 891, 891 (1991)Google Scholar (describing Oregon's unique method of setting priorities for health services).

8 Oregon seeks to procure 11 waivers from federal Medicaid requirements before going ahead with its rationing proposal. See OFFICE OF MEDICAL ASSISTANCE PROGRAMS, OREGON DEP't OF HUMAN RESOURCES, OREGON MEDICAID WAIVER APPLICATION 7.1-7.5 (1991).

9 See generally Peter P., Budetti, Medicaid Rationing in Oregon: Political Wolf in a Philosopher's Sheepskin, 1 HEALTH MATRIX 205 (1991)Google Scholar; Sara, Rosenbaum, Mothers and Children Last: The Oregon Medicaid Experiment, 18 AM. J.L. & MED. 97 (1992).Google Scholar

10 Medical specialists are called consultants in the United Kingdom.

11 See Patricia, Day & Rudolf, Klein, Britain's Health Care Experiment, HEALTH AFF., Fall 1991, at 39.Google Scholar

12 These markets are labeled “internal” because they function primarily within the system of socialized medicine rather than in the more traditional competitive market of privately capitalized participants. In other words, they create competition within the government owned and operated health system, and also between that system and private medicine. See generally Richard B., Saltman & Casten von, Otter, Public Competition versus Mixed Markets: An Analytical Comparison, 11 HEALTH POL'Y 43 (1989).Google Scholar

13 See generally ALAIN C., ENTHOVEN, REFLECTIONS ON THE MANAGEMENT OF THE NATIONAL HEALTH SERVICE (1985).Google Scholar

14 Health maintenance organizations (HMOs) provide comprehensive health services in exchange for an all-inclusive capitation fee. See GEORGE J., ANNAS ET AL., AMERICAN HEALTH LAW 774-75 (1990).Google Scholar

15 Since the reforms went into effect, the North East Thames Regional Health Authority has eliminated treatment for varicose veins, wisdom teeth, infertility, tattoos and “lumps and bumps.” Malcolm Dean, The Oregon Train Reaches Britain, 338 LANCET 1133, 1133 (1991).

A member of a DHA in the west of England who wishes to remain anonymous stated, “[W]e deliberately purchase only 80% of the dialysis services we know the patients in our district need.” Personal conversation, Apr. 27, 1991 (notes on file with the author). The United Kingdom has less than half as many dialysis places, per million population, as does the United States. Colin, Hughes, Decision to Stop Treating Kidney Patient Taken On Medical Grounds, THE TIMES (London), Jan. 9, 1985, at 3.Google Scholar

16 See, e.g., Rudolf, Klein, From Status to Contract: The Transformation of the British Medical Profession, in HEALTH CARE PROVISION UNDER FINANCIAL CONSTRAINT: A DECADE OF CHANGE 127 (Hugh, L'Etang ed., 1990)Google Scholar; Murray, Cochrane et al., Rationing: At the Cutting Edge, 303 BRIT. MED. J. 1039 (1991)Google Scholar; Editorial, Doctoring the Targets, THE TIMES (London), Apr. 26, 1991, at 23Google Scholar; Editorial, Health and Hard Choices, THE TIMES (London), Apr. 2, 1991, at 11.Google Scholar

17 Both the United States and the United Kingdom are also toying with the use of quality adjusted life years (QALYs) in making health resource allocation decisions. The QALY is a year of life expectancy adjusted for the level of distress and disability at which it will be lived. It is combined with cost estimates for various medical procedures, and then used in comparative cost-effectiveness analyses. See generally PAUL T., MENZEL, STRONG MEDICINE: THE ETHICAL RATIONING OF HEATH CARE 78–96 (1990).Google Scholar

18 For cases in England, see R. v. Secretary of State for Social Services, the West Midlands Regional Health Authority and the Birmingham Area Health Authority, ex parte Hincks, Court of Appeal, Mar. 18, 1980, in JOHN, FINCH, HEALTH SERVICES LAW 37 (1981)Google Scholar [hereinafter HEALTH SERVICES LAW]; R. v. Central Birmingham Authority, ex parte Collier, Court of Appeal, Jan. 6, 1988 (LEXIS, Intlaw library, UKCase file); R. v. Central Birmingham Health Auth., ex parte Walker, Queens Bench, Nov. 24, 1987 (LEXIS, Intlaw library, UKCase file).

For cases in the United States, see Wilson v. Blue Cross, 271 Cal. Rptr. 876 (Cal. Ct. App.), petition for review denied, 1990 Cal. LEXIS 4594 (Oct. 11, 1990); Wickline v. State, 228 Cal. Rptr. 661 (Cal. Ct. App.), petition for review granted, 727 P.2d 753 (Cal. 1986); Bush v. Dake, No. 86-25767-NM (Mich. Cir. Ct., Saginaw Cty., Apr. 27, 1989) (subsequently dismissed without opinion).

19 See Bull & Another v. Devon Area Health Authority, Court of Appeal, Feb. 2, 1989 (LEXIS, Intlaw library, UKCase file). See infra text accompanying notes 123-130.

20 E. Haavi, Mooreim, Commentary: Stratified Scarcity and Unfair Liability, 36 CASE W. RES. L. REV. 1033, 1055-56 (1986).Google Scholar

21 See Donald N., Dewees et al., The Medical Malpractice Crisis: A Comparative Empirical Perspective, LAW & CONTEMP. PROBS., Winter 1991, at 217, 218Google Scholar; Marjorie M., Schultz, From Informed Consent to Patient Choice: A New Protected Interest, 95 YALE LJ. 219, 276 (1985).Google Scholar On the shift away from paternalistic to a more participatory form of physician-patient interaction, see generally TROYEN A., BRENNAN, JUST DOCTORING (1991)Google Scholar; J., KATZ, THE SILENT WORLD OF DOCTOR AND PATIENT (1984)Google Scholar; DAVID J., ROTHMAN, STRANGERS ATTHE BEDSIDE: A HISTORY OF HOW LAW AND BIOETHICS TRANSFORMED MEDICAL DECISION MAKING (1991).Google Scholar Attempts to ensure accountability in the use of health resources also have recently gained importance. See Diane, Longley, Diagnostic Dilemmas: Accountability in the National Health Service, 1990 PUB. L. 527Google Scholar; see also Access to Health Records Act 1990, § 3 (granting British patients access to certain medical records).

22 For a study of the historical development of informed consent law, see RUTH R., FADEN & TOM L., BEAUCHAMP, A HISTORY AND THEORY OF INFORMED CONSENT (1986).Google Scholar

23 Health insurance continues to dominate United States proposals for health sector reform. See generally Symposium: Caring for the Uninsured and Underinsured, 265 JAMA 2451 (1991).

24 See infra text accompanying note 82.

25 GEORGE J. ANNAS ET AL., supra note 14, at 51.

26 See infra text accompanyng note 84.

27 See Emily, Friedman, The Uninsured: From Dilemma to Crisis, 265 JAMA 2491, 2495 (1991)Google Scholar (“Most of [the uninsured] do receive care, at least, when their lives are at stake or when they're having babies.“).

28 See generally George J., Schieber & Jean-Pierre, Poullier, International Health Spending: Issues and Trends, HEALTH AFF., Spring 1991, at 106.Google Scholar

29 See STATISTICAL ABSTRACT OF THE UNITED STATES 834-35 (1991) [hereinafter STATISTICAL ABSTRACT].

30 United States doctors have powerful incentives to deliver “excess” medical care. These incentives include the threat of malpractice liability inducing them to practice defensive medicine and the technological imperative luring them to practice in a more sophisticated style than their patients require under fee-for-service medicine. Also, physicians’ incomes increase with each additional service that they provide. See generally Clark, Havighurst & James, Blumstein, Coping with Quality/Cost Tradeoffs in Medical Care: The Role of PSROs, 70 Nw. U. L. REV. 6 (1975).Google Scholar

31 JOSEPH M., JACOB, DOCTORS AND RULES 17 (1988).Google Scholar

32 See infra text accompanying notes 82-91.

33 Approximately 35 million people — about 14% of the United States population — have no health insurance coverage at all. See generally Randall R., Bovbjerg & William G., Kopit, Coverage and Care for the Medically Indigent: Public and Private Options, 19 IND. L. REV. 857 (1986)Google Scholar (suggesting that varied mechanisms will have to be used together to solve the problem of the uninsured population). Since this group finds it difficult to buy its way into the most expensive health care system in the world, dependent primarily on external payment for medical services, it has been effectively precluded from meaningful access to almost anything but emergency care. Hospitals that hold themselves out as offering emergency services are prohibited under common law principles from refusing to deliver them (regardless of a patient's ability to pay). Manlove v. Wilmington Gen. Hosp., 174 A.2d 135, 140 (Del. 1961). The Federal Emergency Care Act of 1986, 42 U.S.C.A. § 1395dd (West 1992), prohibits Medicareparticipating hospitals from “dumping” emergency patients and women in active labor. The uninsured are predominantly white and employed, but at the low end of the wage scale. See GEORGE J. ANNAS ET AL., supra note 14, at 51. As America moves even further into a nonunionized, small-business, service economy in which health care coverage is less likely to be provided as an employment benefit, and as health insurance premiums continue their dramatic escalation in cost, this group finds it increasingly difficult to afford private health insurance. See Alan C., Monheit et al., The Employed Uninsured and the Role of Public Policy, 22 INQUIRY: J. HEALTH CARE ORG. & FIN. 348, 348 (1985).Google Scholar These people are not poor enough, however, to qualify for the Medicaid coverage that state governments provide on a federal/state costsharing basis for those without means to pay for their medical care. 42 U.S.C.A. § 1396a(a)(17) (West 1992).

34 See supra text accompanying note 28.

35 In 1990, the latest year for which expenditures have been tabulated, the United States spent more than $666.2 billion. Katherine R., Levit et al., National Health Expenditures, 1990, HEALTH CARE FINANCING REV., Fall 1991, at 29.Google Scholar

36 See STATISTICAL ABSTRACT, supra note 29, at 839.

37 The government funds insurance programs like Medicare, the federally-subsidized health insurance program for social security recipients over the age of 65, and certain others, 42 U.S.C.A. §§ 1395-1395zz (West 1992), and Medicaid, the federal-state cost sharing health insurance program for poor people, 42 U.S.C.A. §§ 1396a-1396u (West 1992). It also provides benefits directly, ranging from comprehensive military and veterans’ health services to mental health care for institutionalized patients.

38 The government has relied on such regulatory devices as certificate of need, rate-regulation and mandatory peer review. See generally PAUL L., JOSKOW, CONTROLLING HOSPITAL COSTS: THE ROLE OF GOVERNMENT REGULATION 100-37 (1981)Google Scholar; COST, QUALITY AND ACCESS IN HEALTH CARE: NEW ROLES FOR HEALTH PLANNING IN A COMPETITIVE ENVIRONMENT (Frank A. Sloan et al. eds., 1988); See generally Alice Gosfield, PROs: A Case Study in Utilization Management and Quality Assurance, in 1989 HEALTH LAW HANDBOOK (Alice Gosfield ed., 1989).

39 Employer-sponsored group health insurance covers almost 75% of United States workers. EMPLOYEE BENEFIT RESEARCH INSTITUTE, FUNDAMENTALS OF EMPLOYEE BENEFIT PROGRAMS 177 (4th ed. 1990).

40 “Managed” care employs mandatory cost-containment devices such as second opinion requirements, utilization review, hospital length-of-stay restrictions and lump-sum payments for specific diagnoses. See generally Frances H., Miller, Vertical Restraints and Powerful Health Insurers: Exclusionary Conduct Masquerading as Managed Caret, LAW & CONTEMP. PROBS., Spring 1988, at 195, 199.Google Scholar

41 See generally Harold E., Freeman et al., Americans Report on Their Access to Health Care, HEALTH AFF., Spring 1987, at 6.Google Scholar

42 See generally The Oregon Plan: A Symposium, 1 HEALTH MATRIX 135 (1991).

43 See generally Jennifer, Dixon & H. Gilbert, Welch, supra note 7, at 891Google Scholar; Michael, Garland, Setting Health Care Priorities in Oregon, 1 HEALTH MATRIX 139 (1991).Google Scholar

44 Jennifer, Dixon & H. Gilbert, Welch, supra note 7, at 892.Google Scholar

45 The Oregon legislature voted to fund 587 of the 709 ranked services on the list. Paige R., Sipes-Metzler, Oregon Update, HASTINGS CENTER REP., Sept.-Oct. 1991, at 13.CrossRefGoogle Scholar

46 See infra text accompanying notes 61-75. Patients also have sued health insurers for refusing to pay for experimental or allegedly unnecessary treatment, which as a consequence foreclosed their ability to obtain it. See, e.g., Rollo v. Blue Cross/Blue Shield, No. 90-597, 1990 U.S. Dist. LEXIS 5376 (D.N.J. Mar. 22, 1990). Such cases concern denial of care, but do not raise the rationing issue per se.

47 Joseph H., King, In Search of A Standard of Care for the Medical Profession: The “Accepted Practice” Formula, 28 VAND. L. REV. 1213 (1975).Google Scholar

48 See William A., Chittenden, Malpractice Liability and Managed Health Care: History and Prognosis, 26 TORT & INS. L.J. 451, 476 (1991).Google Scholar See generally Alan L., Hillman, Financial Incentives for Physicians in HMOs: Is There A Conflict of Interest?, 317 NEW ENG. J. MED. 1743 (1987).Google Scholar

49 Greater Wash. D.C. Area Council of Senior Citizens v. District of Columbia Gov't, 406 F. Supp. 768 (D.D.C. 1975).

50 Id. at 768.

51 Id. at 769.

52 Id. at 775.

53 Id. See also Doe v. General Hosp., 434 F.2d 427, 433 (D.C. Cir. 1970) (“The hospital may be unable to fulfill its obligation to provide medical care to indigents without affirmative action by the legislative or the executive branch, appropriating or reallocating funds for the purpose. But that is no reason for the court to refrain from declaring that the obligation exists ….“).

54 Boone v. Tate, Civil No. 713 (C.P. Phila. Co., Apr. 30, 1970), appeal dismissed as moot, 286 A.2d 26, 28 (1972), reprinted in GEORGE J., ANNAS ET AL., supra note 14, at 415-17.Google Scholar

55 Id. (emphasis added).

56 Iatrogenic injury is treatment-caused injury. See INTERNATIONAL DICTIONARY OF MEDICINE AND BIOLOGY 1394 (1986).

57 Dallas Gay Alliance v. Parkland Memorial Hosp., No. 88-6346-A (4th Dist. Dallas Co., May 20, 1988), reprinted in GEORGE J., ANNAS ET AL., supra note 14, at 313-14.Google Scholar

58 Id.

59 Wilson v. Blue Cross, 271 Cal. Rptr. 876 (Cal. Ct. App.), petition for review denied, 1990 Cal. LEXIS 4954 (Oct. 11, 1990); Wickline v. State of California, 228 Cal. Rptr. 661 (Cal. Ct. App. 1986), petition for review granted, 727 P.2d 753 (Cal. 1986).

60 Wilson, 271 Cal. Rptr. at 876; Wickline, 228 Cal. Rptr. at 661.

61 Wickline, 228 Cal. Rptr. at 661.

62 Medi-Cal is California's Medicaid system. CAL. WELF. & INST. CODE § 14000 (West 1991).

63 Wickline, 228 Cal. Rptr. at 665, 667.

64 Id. at 662.

65 Id. at 670.

66 According to the opinion, the defendant “felt that Medi-Cal had the power to tell him, as a treating doctor, when a patient must be discharged from the hospital.” Id. at 667.

67 Id. at 670.

68 Id. at 667 (emphasis added).

69 John E., Wennberg, Dealing with Medical Practice Variations: A Proposal for Action, HEALTH AFF., Summer 1984, at 6Google Scholar (noting that the ambiguous norms of medical practice allow for a wide range of discretion).

70 Wickline, 228 Cal. Rptr. at 671.

71 Wilson v. Blue Cross, 271 Cal. Rptr. 876 (Cal. Ct. App.), petition for review denied, 1990 Cal. LEXIS 4954 (Oct. 11, 1990).

72 Id. at 885.

73 Id. at 884.

74 For example, there was a contractual question about whether the decedent's health insurance contract permitted concurrent claims review at all. Id. at 880. In addition, whether the decedent's doctor's failure to appeal the claims reviewer's decision interrupted the chain of causation had not been examined. Id. at 884.

75 The Employee Retirement Income Security Act, Pub. L. No. 93-406, § 514, 88 Stat. 897 (codified as amended at 29 U.S.C. § 1144(a) (1982)), may, however, preempt state law tort remedies that apply in this area. See Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41 (1987); Holmes v. Pacific Mut. Life Ins. Co., 706 F. Supp. 733 (CD. Cal. 1989); Rollo v. Maxicare, 695 F. Supp. 245 (E.D. La. 1988). But see Independence HMO v. Smith, 733 F. Supp. 983 (E.D. Pa. 1990); Haywood v. Russell Corp., 854 So. 2d 1291 (Ala. 1991); DeGenova v. Ansel, 555 A.2d 147 (Pa. Super. Ct. 1988). See generally John O., Blum, An Analysis of Legal Liability in Health Care Utilization Review and Case Management, 26 HOUSTON L. REV. 191 (1989).Google Scholar

76 Bush v. Dake, No. 86-25767-NM (Mich. Cir. Ct., Saginaw Cty., Apr. 27, 1989) (subsequently dismissed without opinion).

77 Id.

78 Id.

79 Id. See also Hughes v. Blue Cross, 263 Cal. Rptr. 850 (Cal. Ct. App. 1989) (upholding award of compensatory and punitive damages for breach of implied covenant of good faith and fair dealing in implementation of utilization review plan). But see Teti v. U.S. Health Care, Inc., Nos. 88-9808, 88-9822, 1989 U.S. Dist. LEXIS 15644 (E.D. Pa. Nov. 20, 1990), aff'd, 904 F.2d 694 (3d Cir. 1990) (no RICO claim stated for failure to disclose physician financial incentive plan to reduce specialist and hospital care); Pulvers v. Kaiser Found. Health Plan, 160 Cal. Rptr. 329 (Cal. Ct. App. 1979) (HMO's financial incentive plan not fraudulent).

80 Perhaps also the doctor-patient relationships were close enough to convince the physicians to provide expert evidence for their patients in litigation against insurers.

81 Mark A., Hall, The Malpractice Standard Under Health Care Cost Containment, 17 LAW, MED. & HEALTH CARE 347, 352 (1989)Google Scholar. See also E. Haavi, Morreim, Stratified Scarcity: Redefining the Standard of Care, 17 LAW, MED. & HEALTH CARE 356, 359 (1989)Google Scholar; E. Haavi, Morreim, Cost Containment and the Standard of Medical Care, 75 CAL. L. REV. 1719, 1723-25 (1987).Google Scholar

82 Frances H., Miller & Graham, Miller, The Painful Prescription: A Procrustean Perspective!', 314 NEW ENG. J. MED. 1383, 1384 (1986).Google Scholar

83 See STATISTICAL ABSTRACT, supra note 29, at 834-35.

84 See HENRY J., AARON & WILLIAM, SCHWARTZ, THE PAINFUL PRESCRIPTION: RATIONINC HOSPITAL CARE 88 (1984).Google Scholar

85 See IAN KENNEDY, UNMASKING MEDICINE (rev. ed. 1983).

86 GENERAL MEDICAL COUNCIL, PROFESSIONAL CONDUCT AND DISCIPLINE: FITNESS TO PRACTISE 22 (1991). Significantly, this “ethical” principle is often not considered binding when consultant physicians treat private patients.

87 See Rudolf, Klein, Rationing Health Care, 289 BRIT. MED. J. 143, 144 (1985)Google Scholar: Britain is an original sin society in which illness and debility are seen as part of the natural order of things and patients tend to be deferential. America is a perfectibility of man society in which illness and debility are seen as challenges to action and patients tend to be demanding consumers.

88 DHAs also function similarly to HMOs in that they are allocated lump sums, based on the number of patients in the district who do not use fundholders as their GPs, with which they contract for those patients’ specialist and non-urgent hospital care. See National Health Service and Community Care Act, 1990, ch. 19, § 15 (Eng.).

89 See Patricia, Day & Rudolf, Klein, Britain's Health Care Experiment, HEALTH AFF., Fall 1991, at 39, 52–55.Google Scholar

90 Id. at 47.

91 Celia, Hall, Doctors Threaten to Boycott Heart Unit Over “Queue-Jumping”, THE INDEPENDENT, May 16, 1991 (LEXIS, NEXIS library, Indpnt file).Google Scholar

92 See Frances H., Miller, Medical Malpractice Litigation: Do the British Have a Belter Remedy?, 11 AM. J.L. & MED. 433, 436-38 (1986).Google Scholar

93 See id. at 438-46.

94 See Patients’ Rights, 338 LANCET 1199, 1199 (1991).

95 R. v. Secretary of State for Social Services, the West Midlands Regional Health Auth. and the Birmingham Area Health Auth. ex parte Hincks, Court of Appeal, Mar. 18, 1980, in HEALTH SERVICES LAW, supra note 18, at 37. See also Diane Longley, supra note 21 at 540.

96 Ex parte Hincks, in HEALTH SERVICES LAW, supra note 18, at 37 (citing National Health Service Act, 1977, § 3(1) (Eng.)).

97 Id. (citing National Health Service Act, 1977, § 3(1) (Eng.)).

98 Diane Longley, supra note 21, at 540.

99 Id.

100 R. v. Central Birmingham Health Auth. ex parte Walker, Queen's Bench, Nov. 24, 1987 (LEXIS, Intlaw library, UKCase file).

101 R. v. Central Birmingham Health Auth. ex parte Collier, Court of Appeal, Jan. 6, 1988 (LEXIS, Intlaw library, UKCase file).

102 Ex parte Walker, LEXIS transcript at 44.

103 Id. See Associated Provincial Picture House v. Wednesbury Corp., [1948] 1 K.B. 223 (setting forth the test of arbitrariness forjudging exercise of public law discretion).

104 Ex parte Collier, LEXIS transcript at 1.

105 Id. at 5.

106 Id. at 4.

107 The review — from which the medical profession was deliberately excluded — is said to have been precipitated by a warning from the Presidents of the Royal Colleges, which aroused Prime Minister Thatcher's fury. They alleged that the NHS was “facing ruin” because it was inadequately financed. See generally Albert, Weale, Social Policy, in 3 DEVELOPMENTS IN BRITISH POLITICS 197, 210-17 (Andrew, Gamble et al. eds., 1990)Google Scholar; Patricia, Day & Rudolf, Klein, supra note 11, at 39Google Scholar; Edwin Griggs, The Politics of Health Care Reform in Britain, Paper delivered at Political Studies Association Annual Conference (Apr. 10-12 1990).

108 Rudolf Klein, supra note 16, at 127.

109 See supra text accompanying notes 10-16.

110 See generally HENRY J. AARON & WILLIAM B. SCHWARTZ, supra note 84 (study drawing lessons from the British system of health care rationing). See also Resource Allocation and Reduction of Services to Patients, in BRITISH MEDICAL ASS'N, PHILOSOPHY & PRACTICE OF MEDICAL ETHICS (1988).

111 S., Challah et al., Negative Selection of Patients for Dialysis and Transplantation in the United Kingdom, 288 BRIT. MED. J. 1119, 1121 (1984).Google Scholar

112 Notwithstanding the medical profession's concern about potential vulnerability to medical malpractice litigation, in reality the profession little to fear. See generally Frances H. Miller, supra note 92.

113 Sir George, Godber, Striking the Balance: Therapy, Prevention and Social Support, 3 WORLD HEALTH FORUM 258, 258 (1982).Google Scholar

114 According to one influential health economist, physicians should not flinch from cost/benefit analysis when determining health service availability. “[Otherwise,] if one person stands to benefit [by gaining access to medical care where expense grossly outweighs any expected benefit] then there is no limit to the sacrifices that others may properly be called upon to bear as a consequence.” Alan, Williams, Medical Ethics, Health Service Efficiency and Clinical Freedom, NUFFIELD/YORK PORTFOLIOS 1, 8 (1984).Google Scholar

115 See, e.g., Bolam v. Friern Hosp. Management Comm., [1957] 1 W.L.R. 582.

116 See Frances H. Miller, supra note 92, at 446-54 (discussing the reasons why medical malpractice litigation is substantially less common in England than in the United States).

117 Wilsher v. Essex Area Health Auth., [1987] 1 Q.B. 730, rev'd on other grounds, [1988] 2 W.L.R. 557.

118 Id. at 736.

119 See generally id. at 557. It is not altogether clear whether health authorities can be directly, as opposed to vicariously, liable for negligence to their patients in Great Britain. See IAN, KENNEDY & ANDREW, GRUBB, MEDICAL LAW TEXT AND MATERIALS 373-91 (1989).Google Scholar

120 Wilsher, [1987] 1 Q..B. 730, 778.

121 Cassidy v. Ministry of Health, [1951] 2 K.B. 343, 365:

[T]he hospital authorities accepted the plaintiff as a patient for treatment, and it was their duty to treat him with reasonable care …. If those surgeons and nurses did not treat him with proper care and skill, then the hospital authorities must answer for it, for it means that they themselves did not perform their duty to him.

See also Gold v. Essex County Council, [1942] 2 K.B. 293.

122 The House of Lords reversed Wilsher on the causation issue, [1988] 2 W.L.R. 557, but failed to comment on the prickly issue of the way that limited resources could affect a health authority's duty to patients in hospitals under its control.

123 Bull & Another v. Devon Area Health Auth., Court of Appeal, Feb. 2, 1989 (LEXIS, Intlaw library, UKCase file).

124 See R. v. Central Birmingham Health Auth. ex parte Walker, Queen's Bench, Nov. 24, 1987 (LEXIS, Intlaw library, UKCase file).

125 There was some indication that the hemorrhage may have been occasioned when a nurse or student midwife pulled at the umbilical cord after the first baby had been born, but the Court of Appeal opinion proceeded as though this had not occurred. Bull, LEXIS transcript at 17.

126 In England, physicians in specialty training are called registrars.

127 Bull, LEXIS transcript at 30-31. Lord Justice Dillon concurred in result, holding that “the failure to provide for Mrs. Bull the prompt attendance she needed was attributable to the negligence of the defendants in implementing an unreliable and essentially unsatisfactory system for calling the registrar.” Id. at 36.

128 Id. at 43.

129 Id.

130 Id. The same point was made in Knight v. Home Office, [1991] 3 All E.R. 237, involving the standard of care in a prison hospital where an inmate committed suicide. Justice Pill said, “It is for the court to say what standard of care is appropriate …. It is not a complete defence for a government department any more than it would be for a private individual or organisation to say that no funds are available for additional safety measures.” Id. at 243.

131 See John R., Walz & Thomas W., Scheuneman, Informed Consent to Therapy, 62 Nw. U. L. REV. 628, 643-46 (1970).Google Scholar

132 See Frances H., Miller, Informed Consent for the Man on the Clapham Omnibus: An English Cure for “The American Disease'!, 9 W. NEW ENG. L. REV. 169, 186 (1987).Google Scholar

133 See, e.g., Sidaway v. Board of Governors of the Bethlem Royal Hosp., [1985] 2 W.L.R. 480, 499 (“[T]he doctrine of'informed consent’ … has [not been a part of] English law. The relevant form of action has been based in negligence ….“); Hills v. Potter, [1984] 1 W.L.R. 641, 652 (Justice Hirst's speech).

134 For the earliest example of a case holding that consent to medical treatment must consist of something more meaningful than the kind of permission that would foreclose a recovery for technical battery, see Slater v. Baker & Stapleton, 95 Eng. Rep. 860 (K.B. 1767). For the view that recovery in battery still may be possible notwithstanding some (but inadequate) understanding of the proposed intervention, see Marcus, Plante, An Analysis of Informed Consent, 36 FORDHAM L. REV. 639 (1968).Google Scholar

For more recent important cases, see Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972); Sidaway, [1985] 2 W.L.R. at 480.

For an analysis comparing the battery with the negligence aspects of a claim for failure to obtain consent to medical treatment, see GILBERT, SHARPE & GLENN, SAWYER, DOCTORS AND THE LAW 31–38 (1978).Google Scholar

135 But see JOSEPH M.JACOB, supra note 31, at 1-27 (contending that patient self-determination is, and ought to be, less central in British medical culture than in that of the United States).

136 See generally Gerald, Dworkin, Autonomy and Informed Consent, in 3 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 63 (1982)Google Scholar [hereinafter PRESIDENT's COMM'N REPORT].

137 See generally PAUL S., APPELBAUM ET AL., INFORMED CONSENT: LEGAL THEORY AND CLINICAL PRACTICE 35–65 (1987)Google Scholar; JAY, KATZ, THE SILENT WORLD OF DOCTOR AND PATIENT passim (1984)Google Scholar; IAN, KENNEDY & ANDREW, GRUBB, supra note 119, at 215-85.Google Scholar

138 See, e.g., Natanson v. Kline, 350 P.2d 1093, 1106 (Kan. 1960) (“The duty of the physician to disclose … is limited to those disclosures which a reasonable medical practitioner would make under the same or similar circumstances.“); Bly v. Rhoads, 222 S.E.2d 783, 788 (Va. 1976) (“prevailing medical practice requires disclosure of certain information“) (emphasis added); Sidaway, [1985] 2 W.L.R., at 500 (speech of Lord Diplock):

To decide what risks the existence of which a patient should be voluntarily warned and the terms in which such warning, if any, should be given, having regard to the effect that the warning may have, is as much an exercise of professional skill and judgment as any other part of the doctor's comprehensive duty of care to the individual patient[.]

139 In neither country, however, are doctors the sole arbiters of what patients must be told. The judiciary retains the right to trump the professional standard of disclosure in egregious cases of non-communication. See Natanson, 350 P.2d at 1106 (describing what general kinds of information the physician should disclose, and requiring that it be disclosed in “language as simple as necessary” for the particular patient to understand); Sidaway, [1985] 2 W.L.R. at 508 (“It is for the court to decide … whether the doctor has in fact been guilty of a breach of duty with regard to information.“).

140 In England, the test for medical malpractice was stated in Bolam v. Friern Hosp. Management Comm., [1957] 1 W.L.R. 582, as follows: “The test is the standard of the ordinary skilled man exercising and professing to have that special skill …. [I]t is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.” Id. at 586.

In the United States, “[a physician is] under a duty to use that degree of care and skill which is expected of a reasonably competent practitioner in the same class to which he belongs, acting in the same or similar circumstances.” Blair v. Eblen, 461 S.W.2d 370, 373 (Ky. 1970).

141 See, e.g., Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972); Cobbs v. Grant, 502 P.2d 1 (Cal. 1972). For a somewhat dated state-by-state analysis of the law of informed consent, see The Law of Informed Consent, in PRESIDENT's COMM'N REPORT, supra note 136, at 206- 45.

142 For example, if people with end-stage renal disease are not told that dialysis or kidney transplantation would be medical options for them but for economic constraints, they are condemned to death without their knowledge. They are foreclosed from the possibility of self-help by their lack of information.

143 According to one scholar, “American culture is organized around the attempt at active mastery rather than passive acceptance.” ROBIN M., WILLIAMS, JR., AMERICAN SOCIETY: A SOCIOLOGICAL INTERPRETATION 469 (2d ed. 1966).Google Scholar “Specification of the consequences of inaction is thus only an implicit component of informed consent. “ Robert A., Hahn, Culture and Informed Consent: An Anthropological Perspective, in PRESIDENT's COMM'N REPORT, supra note 136, at 37, 46.Google Scholar

144 Truman v. Thomas, 611 P.2d 902 (Cal. 1980).

145 Id. at 904-05.

146 Id. at 906.

147 Id.. at 910. See Cobbs v. Grant, 502 P.2d 1 (Cal. 1972).

148 Cobbs, 502 P.2d at 10.

149 Id. (emphasis added).

150 Moore v. Regents of the University of Cal., 249 Cal. Rptr. 494 (1988), rev'd, 793 P.2d 479 (Cal. 1990). For a more comprehensive discussion of the Moore case, see Helen R., Bergman, Comment, Moore v. Regents of the University of California, 18 AM. J.L. & MED. 127 (1992).Google Scholar

151 Moore, 793 P.2d at 481.

152 Id.

153 See George J., Annas, Outrageous Fortune: Selling Other People's Cells, HASTINGS CENTER REP., Nov.-Dec. 1990, at 36–37.Google Scholar

154 Moore, 793 P.2d at 483.

155 The Medicare program recently has promulgated fraud and abuse regulations prohibiting Medicare physicians from engaging altogether in certain transactions generating conflicts of interest. 42 C.F.R. §§ 1001.951-1001.953 (1991).

156 Excess treatment may “cost” the hospital in relation to its DRG reimbursement under the Prospective Payment System. See Mary T., Koska, Physician Practices Go Under the Microscope, J. AM. HOSP. ASS'N, Feb. 20, 1990, at 32.Google Scholar See also John, Blum, Study Examines Role of Hospital Boards in Physician Evaluation: Economic Credentialing May Raise Legal, Political Issues, MOD. HEALTH CARE, Jan. 22, 1990, at 30.Google Scholar

157 As a decision of the California Supreme Court, Moore of course is not binding in Oregon. Its rationale is, however, persuasive.

158 Oregon has a statutory enactment outlining the procedure for doctors to follow in obtaining informed consent, but its terms relate specifically to treatment or procedures to be performed on patients. OR. REV. STAT. § 677.097 (1989). The statute does not address informed consent in the context of denial of care.

159 Moore, 793 P.2d at 483.

160 Sidaway v. Board of Governors of Bethlem Royal Hosp., [1985] 2 W.L.R. 480.

161 Id. at 483.

162 Bolam v. Friern Hosp. Management Comm., [1957] 1 W.L.R. 582, 586. Bolam was approved by the House of Lords in Whitehouse v. Jordan, [1981] 1 W.L.R. 246, 258, and in Maynard v. West Midlands Regional Health Auth., [1984] 1 W.L.R. 634, 638.

163 Sidaway, [1985] 2 W.L.R. at 486.

164 Bolam, [1957] 1 W.L.R. at 587.

165 Sidaway, [1985] 2 W.L.R. at 495.

166 See Harvey, Teff, Consent to Medical Procedures: Paternalism, Self-Determination or Therapeutic Alliance?, 101 LAW Q. REV. 432, 432 (1985)Google Scholar.

167 Sidaway, [1985] 2 W.L.R. at 505 (emphasis added).

168 Id. at 509.

169 Id. at 500 (emphasis added):

When it comes to warning about risks, the kind of training and experience that a judge will have undergone at the Bar makes it natural for him to say (correctly) it is my right to decide whether any particular thing is done to my body, and I want to be fully informed of any risks … so that I may form my own judgment as to whether to refuse the advised treatment or not.

170 Id. at 495.

171 See Gold v. Haringey Health Auth., [1987] 2 All E.R. 888 (no distinction in consent theory between advice given in therapeutic or non-therapeutic context).

172 The chief executive of the NHS Management Executive has acknowledged to the Health Service Commissioner that

there is no general duty on a health authority to provide inpatient medical or nursing care to every person who needs it … in any particular case the provision of such care may be deferred so that cases may be dealt with, in order of clinical priority, within the resources available … and consideration of clinical priority may mean that a particular patient may never be provided with inpatient nursing care.

HEALTH SERV. COMM'R, SECOND REPORT FOR SESSION 1990-91 85 (1991).

173 BRITISH MEDICAL ASS'N, HANDBOOK OF MEDICAL ETHICS H 10.44 (1988) (emphasis added).

174 Robert, Schwartz & Andrew, Grubb, Why Britain Can't Afford Informed Consent, HASTINGS CENTER REP., Aug. 1985, at 19, 23.Google Scholar

175 SECRETARY OF STATE FOR HEALTH, WORKING FOR PATIENTS 4-6 (1989).

176 BRITISH MEDICAL ASS'N, supra note 110, at 8.

177 Id. at 73.

178 Id.

179 Id. at 72.

180 Among the rights enumerated in the Charter are the rights to detailed information on health services and to admission for hospital treatment within two years of being placed on a waiting list. Patients’ Rights, supra note 94, at 1199.

181 Becker v. Janinski, 15 N.Y.S. 675, 677 (N.Y. Com. PI. 1891) (“Whether the patient be a pauper or a millionaire, whether he be treated gratuitously or for reward, the physician owes him precisely the same measure of duty, and the same degree of skill and care.“). See also Laura Athens, Mellas, Adapting the Judicial Approach to Medical Malpractice Claims Against Physicians to Reflect Medicare Cost Containment Measures, 62 U. COLO. L. REV. 287, 303 (1991)Google Scholar; John, Siliciano, Wealth, Equity, and the Unitary Medical Malpractice Standard, 77 VA. L. REV. 439, 441 (1991)Google Scholar; Note, Rethinking Medical Malpractice Law in Light of Medicare Cast-Cutting, 98 HARV. L. REV. 1004, 1010 (1985).Google Scholar

182 GEORGE J. ANNAS ET AL., supra note 14, at 402.

183 The prioritization list ranks early-stage AIDS at 158 and end-stage AIDS at 702. Sara Rosenbaum, supra note 9, at 108.

184 Ricks v. Budge, 64 P.2d 208 (Utah 1937).

185 See supra note 181.

186 OR. REV. STAT. § 414.745 (1991).

187 Id. §414.725(5) (1991).

188 BRITISH MED. ASS'N, supra note 110, at 71-73. See also supra text accompanying notes 82-91.