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Selling Cost Containment

Published online by Cambridge University Press:  24 February 2021

Timothy Stoltzfus Jost  and
Sandra J. Tanenbaum
Timothy Stoltzfus Jost
Affiliation:
Ohio State University
Sandra J. Tanenbaum
Affiliation:
Ohio State University
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Abstract

Health care expenditures in the United States have continued to grow despite efforts to control them. This Article discusses the need for health care reform, outlines the model that reform should follow, and considers why the United States has not progressed toward a workable solution. It introduces a single-payer approach to cost containment and explains how such an approach could be “sold” in the United States. Finally, the Article examines various ways to mobilize support for such health care reform.

Type
Articles
Information
American Journal of Law & Medicine , Volume 19 , Issue 1-2: Implementing U.S. Health Care Reform , 1993 , pp. 95 - 119
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 1993

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References

1 Robert J., Blendon et al., Satisfaction with Health Systems in Ten Nations, Health Aff., Summer 1990, at 185, 188;Google Scholar see also Mark D., Smith et al., Taking the Public's Pulse on Health System Reform, Health Aff., Summer 1992, at 125.Google Scholar

2 Prospective Payment Assessment Commission (ProPac), Medicare and the American Health Care System, Report to Congress 11 (1992) [hereinafter ProPac].

3 Congressional Budget Office, Managed Competition and its Potential to Reduce Health Spending 24 (May 1993).

4 Bureau of the Census, U.S. Dept. of Commerce, Statistical Abstract of the United States 436 (1991).

5 Deborah, Chollet, Building a Private-Public Partnership That Works, 29 Inquiry 116, 116 (1992).Google Scholar

6 George, Schieber et al., U.S. Health Expenditure Performance: An International Comparison and Data Update, Health Care Fin. Rev., Summer 1992, at 1, 5.Google Scholar

7 Id. at 4, 5.

8 Pro Pac, supra note 2, at 11.

9 Sally T., Sonnefeld et al., Projections of National Health Expenditures Through the Year 2000, Health Care Fin. Rev., Fall 1991, at 1, 4.Google Scholar

10 Elizabeth W., Hoy et al., Change and Growth in Managed Care, Health Aff., Winter 1991, at 18, 19.Google Scholar Twenty percent belong to HMOs, 13% to PPOs, five percent to point-of-service plans, and 57% to conventional plans with utilization management. Id.

11 See Victor R., Fuchs, The “Competition Revolution” in Health Care, Health Aff., Summer 1988, at 5;Google Scholar Thomas, Rice, Containing Health Care Costs in the United States, 49 Med. Care Rev. 19, 35–37 (1992);Google Scholar William B., Schwartz & Daniel N., Mendelson, Why Managed Care Cannot Contain Hospital Costs—Without Rationing, Health Aff., Summer 1992, at 100.Google Scholar

12 See Steven A., Schroeder & Joel C., Cantor, On Squeezing Balloons: Cost Control Fails Again, 325 New Eng. J. Med. 1099 (1991).Google Scholar

13 ProPac, supra note 2, at 26-29, 63-68, 113-16; William B., Schwartz & Daniel N., Mendelson, Hospital Cost Containment in the 1980s, 324 New Eng. J. Med. 1037, 1041-42 (1991).Google Scholar

14 ProPac, supra note 2, at 21.

15 See, e.g., Paula A., Braveman et al., Differences in Hospital Resource Allocation Among Sick Newborns According to Insurance Coverage, 266 JAMA 3300, 3300 (1991)Google Scholar (“Uninsured adult patients have consistently been found to receive lower levels of inpatient services than patients with thirdparty coverage, as measured by length of stay, number of tests and procedures, and charges.“); E. Richard, Brown, Access to Health Insurance in the United States, 46 Med. Care Rev. 349, 351-55 (1989);Google Scholar Jack, Hadley et al., Comparison of Uninsured and Privately Insured Hospital Patients, 265 JAMA 374 (1991);Google Scholar Brenda C., Spillman, The Impact of Being Uninsured on Utilization of Basic Health Services, 29 Inquiry 457, 462 (1992);Google Scholar Mark B., Wennecker et al., The Association of Payer with Utilization of Cardiac Procedures in Massachusetts, 264 JAMA 1255 (1990).Google Scholar

16 See generally Katharine R., Levit et al., National Health Expenditures, 1990, Health Care Fin. Rev., Fall 1991, at 29Google Scholar (describing the causes of increased health care expenditures).

17 Id. at 30.

18 Id. at 30-31.

19 See Robert G., Evans, Illusions of Necessity: Evading Responsibility for Choice in Health Care, 10 J. Health Pol., Pol'y & L. 439, 450-52, 455 (1985).Google Scholar

20 Steffie, Woolhandler & David U., Himmelstein, The Deteriorating Administrative Efficiency of the U.S. Health Care System, 324 New Eng. J. Med. 1253, 1255 (1991).Google Scholar Administrative costs in Canada constitute 8% to 11 % of health care spending. Id.

21 John K., Iglehart, The New Law on Medicare's Payments to Physicians, 322 New Eng. J. Med. 1247, 1250 (1990).Google Scholar

22 See Robert J., Blendon, Making the Critical Choices, 267 JAMA 2509, 2517-18 (1992)Google Scholar (summarizing both approaches); see also Alain C., Enthoven, Managed Competition: An Agenda for Action, Health Aff., Summer 1988, at 25, 26–28;Google Scholar Alain, Enthoven & Richard, Kronick, A Consumer-Choice Health Plan for the 1990s, 320 New Eng. J. Med. 29, 94 (1989)Google Scholar (two-part series) (proposing managed competition reforms); E. Richard, Brown, Health USA, 267 JAMA 552 (1992);Google Scholar Kevin, Grumbach et al., Liberal Benefits, Conservative Spending, 265 JAMA 2549 (1991)Google Scholar (discussing singlepayer proposals). There are, of course, other possible ways of structuring health care systems. We limit our discussion to the major, current contestants.

23 Enthoven, supra note 22, at 28.

24 See Richard B., Saltman, Single-Source Financing Systems: A Solution for the United States?, 268 JAMA 774, 775-76 (1992).Google Scholar

25 Examples of such reimbursement schemes include the current Medicare resource-based relative value schedule (“RBRVS“), physician payment and diagnosis-related groups, and prospective hospital payment systems. See John K., Iglehart, The American Health Care System: Medicare, 327 New Eng. J. Med. 1467, 1470-71 (1992).Google Scholar

26 That is, if the volume of services increased, the amount paid per relative value unit would decrease so that total payments would remain the same. This is roughly the German system. William A. Glaser, Health Insurance in Practice 425-27 (1991). See also John K., Iglehart, Germany's Health Care System, 324 New Eng. J. Med. 503, 1750 (1991)Google Scholar (two-part series).

27 Stanley B., Jones, Employer-Based Private Health Insurance Needs Structural Reform, 29 Inquiry 120, 121-23 (1992);Google Scholar Donald W., Light, The Practice and Ethics of Risk-Related Insurance, 267 JAMA 2503 (1992);Google Scholar Rice, supra note 11, at 54; Milt, Freudenheim, Scramble on Health-Care Costs, N.Y. Times, Dec. 7, 1989,Google Scholar at Dl, D4. For a discussion of favorable selection by HMOs, see Kathryn M., Langwell & James P., Hadley, Evaluation of the Medicare Competition Demonstrations, Health Care Fin. Rev., Winter 1989, at 65, 74-76;Google Scholar Howard, Luft & Robert, Miller, Patient Selection in a Competitive Health Care System, Health Aff., Summer 1988, at 97.Google Scholar

28 An example of such regulatory intervention is the standardization of Medigap policies in response to Medicare beneficiaries’ difficulties in comparing Medigap benefits. See Thomas, Rice & Kathleen, Thomas, Evaluating the New Medigap Standardization Regulations, Health Aff., Spring 1992, at 194.Google Scholar

29 A further problem with traditional market proposals is their general reliance on individuals to purchase insurance policies instead of mandating universal coverage by employers or public provision of insurance. The Heritage Foundation proposal, for example, upon which the last Bush Administration proposal heavily relied, suggests that individuals be required to purchase health insurance policies, subsidized through tax credits. Stuart M., Butler, A Tax Reform Strategy to Dealwith the Uninsured, 265 JAMA 2541, 2542 (1991);Google Scholar see also Mark, Pauly et al., A Plan for Responsible National Health Insurance, Health Aff., Spring 1991, at 5.Google Scholar Individual policies are the least efficient means of providing insurance, as marketing and underwriting costs amount to 40% of premium cost. General Accounting Office, Private Health Insurance: Problems Caused by a Segmented Market 12 (1991) [hereinafter GAO Report]. The proposal would be a gold mine for insurance companies, but would massively inflate health care costs. The proposal also fails to address the problem of favorable selection seriously, other than to state that tax credits could be increased to finance high risks. This scheme would effectively make the government the riskbearing insurer without giving it the tools needed to deal with the costs it insures. See Lawrence D., Brown, Policy Reform as Creative Destruction: Political and Administrative Challenges in Preserving the Public-Private Mix, 29 Inquiry 188, 192-94 (1992).Google Scholar

30 As noted above, market reform proposals often supplement this approach by proposing greatly enhanced consumer cost sharing through deductibles and co-payments at the point of service delivery. Such cost-sharing measures enhance consumer sensitivity to price and, thus, limit health care expenditures. Providers favor cost sharing because they stand to gain a large infusion of new funds from patients’ out-of-pocket expenditures. Insurers and employers who pay for insurance, on the other hand, regard cost sharing as an opportunity to limit their share of health care expenditures by increasing the proportion that insureds pay directly. The experience of the Medicare program bears out providers’ hopes: Medicare beneficiaries paid $3,305 on average in 1991, double their real, out-of-pocket expenditures in 1965, when Medicare was established, largely because of Medicare cost-sharing obligations. ProPac, supra note 2, at 7.

Although patients would have to pay for a greater share of the health care services that they receive under cost sharing, they do not differentiate between necessary and “wasteful” services, and purchase both at a decreased level. See John P., Newhouse, Some Interim Results from a Controlled Trial of Cost-Sharing in Health Insurance, 305 New Eng. J. Med. 1501 (1981);Google Scholar Albert L., Siu et al., Inappropriate Use of Hospitals in a Randomized Trial of Health Insurance Plans, 315 New Eng. J. Med. 1259, 1264-65 (1986).Google Scholar In particular, they tend to neglect preventive care. Poor people and persons with certain chronic conditions received disproportionately less care under enhanced cost sharing. See Thomas, Bodenheimer, Underinsurance in America, 327 New Eng. J. Med. 274, 276-77 (1992);Google Scholar David, Mechanic, Changing Our Health Care System, 48 Med. Care Rev. 247, 249 (1991).Google Scholar Moreover, enhanced cost sharing will do little to constrain marginal consumption of health care resources by the 10% of the population who is responsible for 70% of health care costs, and whose cost-sharing obligations would quickly be met at almost any level. Bodenheimer, supra, at 277. Finally, our largest “experiment” with high levels of consumer cost sharing, the Medicare program, has not resulted in dramatically reduced health care expenditures, but rather in the creation of a huge market for supplemental insurance, which now covers 79% of Medicare beneficiaries. PROPa. supra note 2, at 7 (noting Medicare's high marketing and duplicate claims processing costs).

31 Stanley S., Wallack, Managed Care: Practice, Pitfalls, and Potential, Health Care Fin. Rev., Supp. 1991, at 27, 28Google Scholar (“A controlled study found … close to a 40% reduction in hospital days when populations were randomly assigned to a group HMO and a fee-for-service plan with 25% copayments.“).

32 Use of a public system to ration health care resources affords the possibility of doing so publicly and explicitly, rather than privately and implicitly. Nevertheless, for political reasons, this opportunity may be too problematic to pursue. See Norman, Daniels, Why Saying No to Patients in the United States Is So Hard, 314 New Eng. J. Med. 1380, 1381-83 (1986)Google Scholar (arguing that the more explicit rationing required by a public, single-payer system, as in the United Kingdom, is more accountable and more equitable); see also Symposium, The Law and Policy of Health Care Rationing: Models and Accountability, 140 U. Pa. L. Rev. 1505 (1992) (exploring in depth the theory and practice of health care rationing).

33 See Robert G., Evans, Tension, Compression and Shear: Directions, Stresses and Outcomes of Health Care Cost Control, 15 J. Health Pol., Pol'y & L. 101, 102 (1990).Google Scholar

34 Victor, Fuchs, The Health Sector's Share of the Gross National Product, 247 Sci. 534, 535 (1990).Google Scholar In his classic article, Resource Allocation in Health Care: The Allocation of Lifestyles to Providers, Uwe Reinhardt argues that the choice that faces us as a society is not how much health care we can afford to purchase, but how much more of our resources we want to allocate to supporting the lifestyles of health care providers. Uwe E., Reinhardt, Resource Allocation in Health Care: The Allocation of Lifestyles to Providers, 65 Milbank Q. 153, 174 (1987).Google Scholar

35 See GAO Report, supra note 2, at 12 (showing that administrative costs increase for smaller groups, reaching 40% of incurred costs for groups of four or less).

36 Bodenheimer, supra note 30, at 275.

37 See Brian, Abel-Smith, Who Is the Odd Man Out?: The Experience of Western Europe in Containing the Costs of Health Care, 63 Milbank Mem. Fund Q. 1 (1985);Google Scholar General Accounting Office, Health Care Spending Control: The Experience of France, Germany, and Japan 17-19 (1991).

38 Schieber et al., supra note 6, at 24. See Iglehart, supra note 26, at 1752; Bradford L., Kirkman-Liff, Physician Payment and Cost Containment Strategies in West-Germany: Suggestions for Medicare Reform, 15 J. Health Pol., Pol'y & L. 69 (1990).Google Scholar

39 Schieber et al., supra note 6, at 24.

40 Woolhandler & Himmelstein, supra note 20, at 1257.

41 Gregory, Pope & John, Schneider, Trends in Physician Income, Health Aff., Spring 1992, at 181, 188.Google Scholar

42 Greg, Borzo, Doctor Salaries Beat Inflation, Am. Med. News, Dec. 28, 1992, at 7.Google Scholar

43 Iglehart, supra note 26, at 508. Physician fees under the Canadian system are also significantly lower than those in the United States. Victor R., Fuchs & James S., Hahn, How Does Canada Do It?: A Comparison of Expenditures for Physicians’ Services in the United States and Canada, 323 New Eng. J. Med. 884, 886 (1990).Google Scholar

44 See James S., Todd et al., Health Access America—Strengthening the U.S. Health Care System, 265 JAMA 2503, 2504 (1991);Google Scholar Ronald S., Bronow et al., The Physicians Who Care Plan: Preserving Quality and Equitability in American Medicine, 265 JAMA 2511, 2511-15 (1991).Google Scholar A major exception is the position paper recently published by the American College of Physicians, which embraces the concept of a national health care budget. H. Denman, Scott & Howard B., Shapiro, Universal Insurance for American Health Care, 117 Annals Internal Med. 511, 516-18 (1992).Google Scholar

45 See Mark A., Hall, The Political Economics of Health Insurance Market Reform, Health Aff., Summer 1992, at 108, 110-14.Google Scholar

46 Health Insurance Association of America, The Health Insurance Strategy for Containing Health Care Costs 14-15 (1990).

47 Health Insurance Association of America, Vision Statement 6, 9 (1993).

48 See Edward Neuschler, Canadian Health Care: The Implications of Public Health Insurance, Health Insurance Association of America Research Bulletin 67-70 (1990). But see Morris L., Barer et al., Canadian /U.S. Health Care: Reflections on the HIAA 's Analysis, Health Aff., Fall 1991, at 229 (criticizing the HIAA monograph).Google Scholar

49 Vicki Kemper & Viveca Novak, What's Blocking Health Care Reform?, Common Cause Magazine, Jan., Feb., Mar. 1992, available in Lexis, Nexis Library, Omni File.

50 Id.

51 Stephen, Labaton, Health Industry Gives Freely in Election, N.Y. Times, Oct. 13, 1992, at A21.Google Scholar

52 See Ronald, Bronow, A National Health Program: Abyss at the End of the Tunnel—The Position of Physicians Who Care, 263 JAMA 2488 (1990).Google Scholar

53 See, e.g., Eli, Ginzberg, Health Care Reform—Why So Slow?, 322 New Eng. J. Med. 1464, 1465 (1990);Google Scholar John K., Iglehart, The American Health Care System, 326 New Eng. J. Med. 962, 963-64 (1992);Google Scholar James A., Morone, The Bias of American Politics: Rationing Health Care in a Weak State, 140 U. Pa. L. Rev. 1923, 1924-29. (1992).Google Scholar

54 See generally Association of Academic Health Centers, Why Private Health Insurance Cannot Solve our Health Insurance Crisis: An Insurance Primer for Health Professionals (1990) (arguing that the present insurance system has not worked in the past and will not be able to surmount its fundamental limitations in the future).

55 See, e.g., Colleen M., Grogan, Deciding on Access and Levels of Care: A Comparison of Canada, Britain, Germany and the United States, 17 J. Health POL., POL'Y & L. 213, 229-31 (1992);Google Scholar Victor R., Fuchs, National Health Insurance Revisited, Health Aff., Winter 1991, at 7, 14–17;Google Scholar Richard, Kronick, Empowering the Demand Side: From Regulation to Purchasing, 29 Inquiry 213, 221 (1992);Google Scholar Uwe E., Reinhardt, Health Care Woes of American Business: Reinhardt Responds, Health Aff., Spring 1990, at 174, 175;Google Scholar Rice, , supra note 11, at 56–57;Google Scholar Saltman, , supra note 24, at 779.Google Scholar

56 Leighton, Ku & Dena, Fisher, The Attitudes of Physicians toward Health Care Cost Containment Policies, 25 Health Servs. Res. 25, 31 (1990).Google Scholar

57 Paul J., Godt, Confrontation, Consent, and Corporatism: State Strategies and the Medical Profession in France, Great Britain and West Germany, 12 J. Health Pol., Pol'y & L. 459 (1987);Google Scholar see also Kirkman-Liff, , supra note 38;Google Scholar Jonathan, Lomas et al., Paying Physicians in Canada: Minding Our Ps and Qs, Health Aff., Spring 1989, at 80.Google Scholar

58 Arnold S., Relman, Shattuck Lecture—The Health Care Industry: Where Is It Taking Us?, 325 New Eng.J. Med. 854, 854 (1991).Google Scholar

59 Kevin, Grumbach & Thomas, Bodenheimer, Reins or Fences: A Physician's View of Cost Containment, Health Aff., Winter 1990, at 120.Google Scholar

60 Relman, , supra note 58, at 858.Google Scholar

61 John E., Kralewski et al., The Physician Rebellion, 316 New Eng.J. Med. 339, 341 (1987).Google Scholar

62 A recent AM A/Gallup poll found that 69% of physicians think that public and private restriction of their fees is “very likely.” Mary T., Koska, Physician Groups Plan on Being Major Factor in Reform Debate, Hospitals, Aug. 20, 1992, at 30, 32.Google Scholar

63 Brown, supra note 29, at 201.

64 Ku & Fisher, supra note 56, at 36-37.

65 For a physician's view of the potential for constructive negotiation, see H. Gilbert, Welch & Elliott S., Fisher, Let's Make a Deal: Negotiating a Settlement Between Physicians and Society, 327 New Eng.J. Med. 1312 (1992).Google Scholar

66 See Scott & Shapiro, supra note 44, at 516.

67 Grumbach & Bodenheimer, supra note 59, at 121.

68 Philip R., Lee & Lynn, Etheredge, Clinical Freedom: Two Lessons for the UK from US Experience with Privatisation of Health Care, 8632 Lancet 263, 263 (1989);Google Scholar see also Roberta, Berrien, What Future for Primary Care Private Practice?, 316 New Eng. J. Med. 334 (1987);Google Scholar Joel H., Goldberg, The Great Doctor Revolt, Med. Econ., July 3, 1989, at 99;Google Scholar Gerald W., Grumet, Health Care Rationing Through Inconvenience: The Third Party's Secret Weapon, 321 New Eng. J. Med. 607, 611 (1989);Google Scholar Arnold, Relman, Is Rationing Inevitable?, 322 New Eng. J. Med. 1809 (1990);Google Scholar Henry, Scovern, Hired Help: A Physician's Experience in a For-Profit Staff-Model HMO, 319 New Eng. J. Med. 787 (1988);Google Scholar Hilary, Stout, Doctors, Seeing Health-System Faults, Lie Low as Clinton Drafts Plan That Could Curb Incomes, Wall St. J., Mar. 2, 1993, at A20.Google Scholar

69 Grumet, supra note 68, at 611.

70 Thomas H., Boyd, Cost Containment and the Physician's Fiduciary Duty to the Patient, 39 Depaul L. Rev. 131, 135-41, 154-55 (1989);Google Scholar Barry R., Furrow, The Ethics of Cost Containment: Bureaucratic Medicine and the Doctor as Patient Advocate, 3 Notre Dam. J. L. Ethics & Pub. Pol'y 187, 215-17 (1988).Google Scholar

71 Elizabeth, Gardner, Requests Pouring in for AHCPR's New Practice Guidelines, Mod. Healthcare, Aug. 31, 1992, at 33.Google Scholar

72 David M., Eddy, Practice Policies—What Are They? 263 JAMA 877, 880 (1990).Google Scholar

73 Robert H., Brook, Practice Guidelines and Practicing Medicine: Are They Compatible?, 262 JAMA 3027, 3030 (1989).Google Scholar

74 Arnold M., Epstein, The Outcomes Movement—Will It Get Us Where We Want to Go?, 323 New Eng. J. Med. 266 (1990).Google Scholar The outcomes movement is “actively directed at the assessment of outcomes, the analysis of effectiveness, and quality assurance.” Id.

75 Sandra J., Tanenbaum, Knowing and Acting in Medical Practice: The Epistemological Politics of Outcomes Research, 18 J. Health Pol., Pol'y & L. (forthcoming 1993);Google Scholar Lawrence D. Brown, Competition and the New Accountability: From Market Incentives to Medical Outcomes (1991) (unpublished manuscript, on file with author).

76 Eddy, supra note 72, at 880.

77 Henry Aaron, The Need for Reasonable Expectations, in Effectiveness and Outcomes in Health Care: Proceedings of an Invitational Conference by the Institute of Medicine, Division of Health Care Services 215 (Kim A. Heithoff & Kathleen N. Lohr eds., 1990).

78 See Philip, Caper, Solving the Medical Care Dilemma, 318 New Eng. J. Med. 1535 (1988).Google Scholar

79 John E., Wennberg, Outcomes Research, Cost Containment, and the Fear of Health Care Rationing, 323 New Eng. J. Med. 1202, 1204 (1990).Google Scholar

80 Tanenbaum, supra note 75.

81 Id.

82 Grumbach & Bodenheimer, supra note 59, at 124. An example of how this might be done is found in the German system, in which physicians are profiled and reimbursement is reduced for physicians who file an excessive number of claims and who cannot adequately explain the deviation. See Timothy S. Jost, Assuring the Quality of Medical Practice: An International Comparative Study 43-46 (1990).

83 Lee & Etheredge, supra note 68, at 265.

84 Scott & Shapiro, supra note 44, at 517.

85 David, Blumenthal & Arnold M., Epstein, Physician-Payment Reform—Unfinished Business, 326 New Eng. J. Med. 1330, 1330 (1992).Google Scholar

86 Iglehart, supra note 21, at 1251.

87 Blumenthal & Epstein, supra note 85, at 1330. In fact, the Am. supported RBRVS. Id.; see also Iglehart, supra note 21, at 1247.

88 Blumenthal & Epstein, supra note 85, at 1330; Iglehart, supra note 21, at 1247; Morone, supra note 53, at 1936.

89 Godt, supra note 57, at 474.

90 William A., Glaser, The Politics of Paying American Physicians, Health Aff., Fall 1989, at 129.Google Scholar

91 Iglehart, supra note 21, at 1251-52.

92 Glaser, supra note 90, at 142; David U., Himmelstein & Steffie, Woolhandler, A National Health Program for the United States: A Physicians’ Proposal, 320 New Eng. J. Med. 102, 103 (1989).Google Scholar

93 Koska, supra note 62, at 30. The AMA's position is that there needs to be greater diversity in how health care is paid for, delivered, and financed. Id.

94 Himmelstein & Woolhandler, supra note 20, at 103-04.

95 See Lawrence P., Casalino, Balancing Incentives: How Should Physicians Be Reimbursed?, 267 JAMA 403 (1992).Google Scholar

96 A similar list appears in Welch & Fisher, supra note 65, at 1313 (including cost of graduate medical education, administrative cost of private practice, and cost of malpractice insurance).

97 Robert G., Hughes et al., Are We Mortgaging the Medical Profession?, 325 New Eng. J. Med. 404, 404 (1991).Google Scholar

98 Leanne D., John et al., U.S. Medical School Finance, 268 JAMA 1149, 1155 (1992).Google Scholar

99 Anne B., Silberger et al., The Changing Environment of Resident Physicians, Health Aff., Supp. 1988, at 121, 126.Google Scholar

100 Hughes et al., supra note 97, at 405.

101 John et al., supra note 98, at 1155.

102 Silberger et al., supra note 99, at 127.

103 Barbara, Barzansky & Harry S., Jonas, Financial Assistance and Education Programs to Encourage Care to the Underserved, 268 JAMA 1089, 1089 (1992).Google Scholar

104 Hughes et al., supra note 97, at 406.

105 Gloria J., Bazzoli, Medical Education Indebtedness: Does It Affect Physician Specialty Choice?, Health Aff., Summer 1985, at 98.Google Scholar

106 Id. at 404.

107 Henry A. Waxman, Perspectives: A Representative, Health Aff., Supp. 1988, at 47-48.

108 Id. at 47. See also Robert J., Petersdorf, Financing Medical Education: A Universal “Berry Plan “ for Medical Students, 328 New Eng. J. Med. 651, 653 (1993).Google Scholar

109 See Marcia, Angell, Perspectives: A Medical Editor, Health Aff., Supp. 1988, at 58.Google Scholar

110 David, Axelrod, Perspectives: A State Health Commissioner, Health Aff., Supp. 1988, at 54.Google Scholar

111 The Am. estimated that malpractice premiums cost physicians $5.6 billion in 1989, a year in which national health care expenditures totalled $604 billion. Edward B., Hirshfeld, Should Ethical and Legal Standards for Physicians Be Changed to Accommodate Xew Models for Rationing Health Care?, 140 U. Pa. L. Rev. 1809 Google Scholar 1812 n.7, 1822 nn.31-32 (citing Center for Health Policy Research, American Medical Association, The Cost of Medical Professional Liability in the 1980s); see also Levit et al., supra note 16, at 49; Congressional Budget Office, Economic Implications of Rising Health Care Costs 27 (1992) (malpractice is not a major factor in increasing health care costs) [hereinafter Economic Implications].

112 Paul C. Weiler Et al., A Measure of Malpractice: Medical Injury, Malpractice Litigation, and Patient Compensation 124 (1993) (the Harvard Medical Practice Study found physicians greatly overestimate risk of being sued from adverse events or negligent injury); Donald, Songer, Tort Reform in South Carolina: The Effect of Empirical Research on Elite Perceptions Concerning Jury Verdicts, 39 S.C. L. Rev. 585, 596 (1988)Google Scholar (physicians dramatically overestimate the magnitude of malpractice awards).

113 Health Care Liability Reform and Quality of Care Improvement Act, H.R. 3037, 102d Cong., 1st Sess. (1991).

114 White House Fact Sheet on the “Health Care Liability Reform and Quality Care Improvement Act of 1992” Transmitted to the Congress Today by President Bush, Federal News Service, July 2, 1992, available in Lexis, Nexis Library, Fednew file.

155 Id.

116 The AMA, for example, claims that, in 1989, defensive medicine cost $15.1 billion, nearly three times the total amount spent on malpractice insurance in that year. See Hirshfeld, supra note 111, at 1822 nn.31-33.

117 See Sara C., Charles et al., Physician's Self-Reports of Reactions to Malpractice Litigation, 141 Am. J. Psychiatry 563, 564-65 (1984).Google Scholar

118 See British National Government, Dept. of Health, Claims of Medical Negligence Against NHS Hospital and Community Doctors and Dentists, No. HC(FP)(89)22 (Dec. 1989) (on file with the American Journal of Law & Medicine).

119 The AMA's own proposal for medical malpractice reform might be a place to begin in designing such a system. Kirk B., Johnson et al., A Fault-Based Administrative Alternative for Resolving Medical Malpractice Claims, 42 Vand. L. Rev. 1365, 1379-84 (1989).Google Scholar

120 Patricia Danzon, Medical Malpractice: Theory, Evidence and Public Policy 226 (1985).

121 According to the Harvard Medical Practice Study, eight times as many patients suffer negligent injury as sue for malpractice, and 16 times as many are injured as recover. Harvard Medical Practice Study, Patients, Doctors & Lawyers: Medical Injury, Malpractice Litigation, and Patient Compensation in New York 6 (1990).

122 See William B., Schwartz & Daniel N., Mendelson, The Role of Physician-Owned Insurance Companies in the Detection and Deterrence of Negligence, 262 JAMA 1342 (1989).Google Scholar

123 Scott & Shapiro, supra note 44, at 516-18.

124 Levit et al., supra note 16, at 36-37. In contrast, the Medicare program spent 2.\% of its expenditures on administration. Id. at 37.

125 See John D., Rockefeller, The Pepper Commission Report on Comprehensive Health Care, 323 New Eng.J. Med. 1005, 1006 (1990).Google Scholar

126 See Louis W., Sullivan, The Bush Administration's Health Care Plan, 327 New Eng. J. Med. 801, 803-04 (1992);Google Scholar Bill, Clinton, The Clinton Health Care Plan, 327 New Eng. J. Med. 804, 805 (1992).Google Scholar

127 See House Comm. on Ways and means, 102D Cong., 1st Sess., Health Care Coverage and Costs: Major Legislative Proposals (Comm. Print 1991).

128 See Iglehart, supra note 26; Kirkman-LifF, supra note 38. The ACP proposal is another example of this approach. See Scott & Shapiro, supra note 44. Were such a system implemented voluntarily or by state mandate, an amendment to the antitrust laws would be required to permit such collective action. Though the McCarran-Ferguson exception exempts the business of insurance from antitrust scrutiny, it would only apply if collective action were regulated by the state. See 15 U.S.C.A. § 1012(b) (West 1976). Moreover, it is likely that collective action in bargaining with payers would not be regarded as the “business of insurance,” see Group Life & Health Ins. Co. v. Royal Drug Co., 440 U.S. 205, reh'g denied, 441 U.S. 917 (1979), cert, denied, 469 U.S. 1160 (1985), or that it would fall within the boycott exception to the exclusion, 15 U.S.C.A. § 1013(b) (West 1976); see Ballard v. Blue Shield of Southern West Virginia, Inc., 543 F.2d 1075 (4th Cir. 1976), cert, denied, 430 U.S. 922 (1977).

129 Marketing commissions account for over 20% of the administrative costs of group health insurance for firms with between one and four employees, but for a much smaller share of the cost for larger firms. See GAO Report, supra note 29, at 12.

130 Iglehart, supra note 26, at 1754.

131 Woolhandler & Himmelstein, supra note 20, at 1254.

132 See Elliot K. Wicks, Health Insurance Association of America, German Health Care: Financing Administration and Coverage (1992).

133 See Neuschler, supra note 48, at 37-53.

134 For examples of play or pay proposals, see Clinton, supra note 126; Rockefeller, supra note 125; J o h n Holahan, An American Approach to Health System Reform, 265 JAMA 2537 (1991); see also Brown, supra note 29, at 194-98 (evaluating the play o r pay approach).

135 Shelia R., Zedlewski et al., Play-or-Pay Employer Mandates: Potential Effects, Health Aff., Spring 1992, at 62, 69.Google Scholar

136 In 1990, the Medicare program spent 2.1% of total expenditures on administrative costs, compared to 14.2% of premiums for private insurance. Levit et al., supra note 16, at 36, 37.

137 In 1991, 40% of insured employees worked for firms with fully or partially self-insured plans administered by a third-party administrator or HMO. See Cynthia B., Sullivan et al., Data Watch: Employer-Sponsored Health Insurance in 1991, Health Aff., Winter 1992, at 172, 176-78.Google Scholar

138 Cynthia B., Sullivan & Thomas, Rice, The Health Insurance Picture in 1990, Health Aff., Summer 1991, at 104, 112.Google Scholar

139 Melissa, Ahem & H. Virginia, McCoy, Emergency Room Admissions: Changes During the Financial Tightening of the 1980s, 29 Inquiry 67, 69 (1992);Google Scholar see also W. Vickery, Stoughton, Realities vs. Perceptions, Health Mgmt. Q., Third Quarter 1992, at 19Google Scholar (noting that administering a hospital is in many respects easier under the Canadian regulated system than under the American market system).

140 See Cindy, Jajich-Toth & Burns W., Roper, Americans’ Views on Health Care: A Study in Contradictions, Health Aff., Winter 1990, at 149Google Scholar (showing greater popular support for expanding access to private insurance than for public programs to cover the uninsured). More recent polls, however, show stronger support for a government role in cost containment. See Mark D., Smith et al., Taking the Public's Pulse on Health System Reform, Health Aff., Summer 1992, at 125, 127Google Scholar (estimating that 60% of Americans believe the government should have the primary role in providing health insurance and controlling costs).

141 Although 80.3% of top United States executives polled in 1990 favored fundamental changes in the health care system, only 27.6% favored regulation of payment to hospitals and doctors, and only 8.8% favored creation of a public health insurance system. Joel C., Cantor et al., Business Leaders’ Views on American Health Care, Health Aff., Spring 1991, at 98, 100-01.Google Scholar

142 American Hospital Association, National Health Care Reform: Refining and Advancing the Vision 5-8 (1992).

143 This issue accounted for three-quarters of the days lost to strikes in 1989. Louis, Uchitelle, Insurance as a Job Benefit Shows Signs of Overwork, N.Y. Times, May 1, 1991, at Al, D23.Google Scholar

144 Economic Implications, supra note 111, at 46, 47.

145 For the classic statement of this distinction, see Isaiah, Berlin, Two Concepts of Liberty, in Four Essays on Liberty 118 (1969).Google Scholar