Managed health care has recently generated a great deal of distrust, even anger, in the public mind. To be sure, much of this public reaction is based on anecdotal evidence and one-dimensional thinking. But many unbiased experts observing managed care today are themselves unhappy with the health care industry's performance. While these observers find little justification for the current political backlash against managed care, they are also disappointed that today's health plans have not made a more positive difference. Indeed, informed observers commonly regret that the new arrangements for the financing and delivery of care have done so little to get physicians to adopt truly efficient practices, achieving not only cost reductions but also substantial improvements in health status and patient outcomes— that is, in the quality of care. Although managed care has not demonstrably harmed the overall quality of health care in the United States, it has done little to improve it.

Consumer concerns about their health care have attracted intense attention as more Americans get care through prepaid managed care plans. A recent poll sponsored by the Kaiser Family Foundation reported that over half of Americans believe that managed care has decreased the quality of their health care. Journalistic reports and widely publicized court decisions involving coverage denials for gravely ill people have fueled consumer concerns as well. Consumer protection and access to high quality health care is an issue that resonates deeply with the American public, and reforms are in order.

In December 1998, Iceland's Parliament, the Althing, passed the Act on a Health Sector Database (the Database Act or Act), a highly controversial law authorizing the development of a Health Sector Database (the Database) to collect genetic and medical information already contained in various locations around Iceland as part of Iceland's national health system. As a result of the Database Act, Iceland is the only country in the world with laws authorizing collection and storage of the genetic heritage of an entire population by a private biotechnology corporation with rights to exploit the data as a commercial commodity. Many databases now exist in Iceland as individual and segregated entities that contain detailed medical information about every Icelandic person, both living and dead, dating back to 1915 when the recording commenced.

In March of 1998, a Connecticut jury awarded $400,000 under a claim for Negligent Infliction of Emotional Distress (“N.I.E.D”) to an employee who had only lost his job. The employee had been subject to unnecessary internal investigation, and his employment was terminated as a result of this investigation. In December of 1992, a North Carolina jury awarded only $100,000 for N.I.E.D. damages to parents who had lost their nine month-old infant. The parents actually witnessed the death of their infant, who died from swelling of the brain caused by improper administration of intravenous fluids. Both of these awards were meant to compensate plaintiffs for the mental distress caused by the defendants' negligent conduct. Yet considering the circumstances of these two cases, one wonders whether the jurors were really able to evaluate the nature and extent of the plaintiffs' mental distress and, more importantly, what kind of evidence the jurors considered to make their determination.

When Austin Powers, ace British secret agent, is thawed out after thirty years of suspended animation, he is greeted by his old boss, accompanied by a Russian general. Powers is alarmed by the presence of the Russian general, and complains about the breach of security. Powers' boss tells him “a lot's happened since you were frozen. The Cold War is over.” Powers thinks for a moment, and then responds, “finally those capitalist pigs will pay for their crimes eh, eh comrades, eh?“ His boss gently interrupts, and informs Powers that “we won.” Powers clumsily responds, “Oh groovy, smashing, yeah capitalism,” his tactlessness prefiguring his behavior through the rest of the movie. Despite Powers' noteworthy skills as a secret agent, he has foolishly disregarded the first rule of forecasting the future: don't be around when your predictions are assessed for accuracy and completeness.

In 1990, approximately 43 million Americans suffered from mental or physical disabilities. There is no question that disabled Americans face discrimination in their daily lives. However, prior to 1990, disabled individuals were only able to obtain legal redress from discrimination they experienced in the federal arena. As such, many were left with no legal course of action whatsoever. To address this previously unpunished discrimination against disabled persons, President George H. Bush signed the Americans with Disabilities Act (“ADA” or “the Act”) into law on July 26, 1990. With the purpose of setting forth a “clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities,” the Act placed able-bodied status among other statutorily protected categories such as race, national origin, gender and age. As with legislation protecting other groups victimized by discrimination, Congress, in enacting the ADA, recognized the need for equal treatment of disabled persons in the realm of employment.

The cost containment innovations offered by managed care have been needed corrections to the excesses of the fee-for-service health care system. Yet, implementing these innovations raises inevitable questions about conflicts of interest regarding the allocation of resources under managed care. The inherent conflict faced by physicians and health plan administrators between the health care needs of individual patients and the need to preserve scarce resources for patient populations is at issue in the managed care era. The sources of the conflict are the economic incentives that underlie the managed care revolution, such as capitated funding arrangements, limitations on referrals to specialists, bonuses and withholds. In making individual clinical decisions, physicians and administrators potentially infuse their own economic interests into the process.

Suppose that a managed care enrollee visited his plan doctor for treatment of an injury. Next, suppose that either: (1) the doctor, through her own negligence, failed to render the appropriate standard of care, or (2) although the doctor desired to treat the injury consistent with what she believed to be professionally recognized standards of health care, the managed care organization (MCO) administrators denied coverage. Consequently, the doctor failed to render adequate treatment. In both cases, under traditional jurisprudence, the enrollee might have a medical malpractice action against his doctor. He also might try to hold the health plan liable under a variety of agency and direct liability theories. However, under the same facts, if a federal program such as Medicare paid for the enrollee's care, he might act as a whistleblower (or “relator“) against the doctor and the organization, conceivably recruiting the federal government to foot the litigation and investigation bills and increasing his recovery.

Public concern over the perceived failure of managed care has led many to call for the increased accountability of managed care organizations (MCOs). In response, during his January 1998, State of the Union address, President Clinton outlined a Patients’ Bill of Rights that would guarantee patients certain protections against abuses by their health plans. Since January 1998, the Patients’ Bill of Rights has been entrenched in partisan politics. Consequently, the 105th Congress failed to enact a Patients’ Bill of Rights and the 106th Congress has passed two opposing versions of the Bill. At the time of publication, the two bills sat in a joint House Senate conference committee awaiting reconciliation.

Although both sides support legislation increasing patient protections, Democrats and Republicans are divided over the issue of remedies for patients who have had their rights violated.

If any trend can be confidently predicted for the next millennium (or, more modestly, for our lifetimes) it is the globalization of health law. We live in an age of global markets and global communications. While care of the individual patient has remained largely local, national borders are quite porous to health care professionals. The cross-border flow of patients is a significant factor in some regions, and the development of telemedicine and internet pharmacies is radically expanding the possibility of cross-border medical practice.

In 1997, Judi Selig, a secretary for a South Carolina machinery firm, probably did not anticipate her employer's extreme reaction to her medical history. When her employer discovered that Ms. Selig had been exposed to hepatitis several years before, it demanded that she undergo a blood test and sign a medical release form so that the doctors in the employer's health plan could access her records. When Ms. Selig consented to the test but refused to sign the release form, her employer punished her by suspending her for a week without pay. Ms. Selig quit the company mainly because it threatened her privacy.

My experience and reflections concerning tobacco litigation stem from representing the American Cancer Society in November of 1998,' when the State of Oregon asked Judge Anna Brown of the Circuit Court of Multnomah County in Portland to approve the settlement agreement reached between Oregon and the major tobacco manufacturers. The American Cancer Society inteivened in opposition. The agreement was a part of a multi-state settlement reached by forty-six state Attorneys Generals and the tobacco industry proposed to state courts during that same week and the ensuing weeks around the country. By October of 1999, the Master-Settlement Agreement (MSA) was approved by enough states that it was effectuated. Distributions pursuant to the agreement will begin in 2000 or 2001. Total disbursements over twenty years will exceed $240 billion, a huge amount of money by anyone's standards.

For at least seven decades the issue of financing health care has been debated in this country. While the intensity of the battle has varied greatly, the underlying drive for reform has been well identified and remarkably consistent. Theodore Marmor's The Politics of Medicare is an exceptional book which documents this period.

In its most general description the era has experienced persistent and growing support for financing reform that would have, at least, characteristics of universality, comprehensive coverage and delivery by a system capable of serving many diverse constituencies. Nothing in these attributes is novel, and each can be identified as present, to varying degrees, in health care financing systems operating throughout the industrial world. Broad goals always attract advocates of every stripe, but the scene changes rapidly when the process of definition commences. Even the most obvious component, universality, precipitates a conflict when the details of exactly who will be included in the covered population start to be hammered out. Endless examples of intense controversy exist over access to federal, state and local programs by the many different categories of individuals who live within this country.

In 1999, the United States Census Bureau reported that 16.3% of Americans did not have health insurance in 1998, up from 16.1% in 1997 and 13% in 1990. The increased lack of health insurance is particularly troubling because the unemployment rate is down and the economy is vibrant. The Census Bureau also reported that Hawafi led the Nation in providing health insurance, with only 8.8% of the population uninsured. This fact alone makes Hawai'i a model for the U.S. Hawaii's success goes beyond providing health insurance coverage. “Coverage is not care.” The state is also a model in terms of providing care through community health centers. Broad insurance coverage, and access to care through community based primary care centers, help to make the people of Hawai'i healthy. Further, Hawai'i's health care costs are lower than costs in the rest of the nation.

Perhaps no single policy topic better illustrates the tensions within American politics at the beginning of a new millennium than does Medicare, the nation's thirty-five year commitment to ensuring senior citizens' financial protection against the costs of acute medical care. Our politics seems nearly overwhelmed by conflicting promises to balance the budget and pay down the national debt, enact tax cuts and protect broadly popular “entitlements.” Medicare, one of the largest of such entitlement programs, has become a lightning rod for conflicts over how to resolve these competing goals. As a result, the nation finds itself in the midst of a bewildering mix of crisis talk, fact throwing and ideological name calling, with all the confusion and distortion one would expect from such a mix.