Hostname: page-component-586b7cd67f-rdxmf Total loading time: 0 Render date: 2024-11-27T19:52:49.069Z Has data issue: false hasContentIssue false
  • English
  • Français

The Legal Subtext of the Managed Care Environment: A Practitioner's Perspective

Published online by Cambridge University Press:  01 January 2021

Alice G. Gosfield
Get access Rights & Permissions [Opens in a new window]

Extract

For a health lawyer in private practice, the substance of any discussion of managed care turns on the developments in the health care marketplace. Without a doubt, the industry is rapidly moving from one frame of reference to a radically different one. It is no surprise then, that, in consulting me, my clients want to know what is and what will be, not what should be. They want at least to survive, if not be successful, in the whirlwind of restructuring that offers no clear choices, no clear outcomes, and significant legal liabilities if they do not perform effectively.

What I want to address in this article is how the consolidation of medical practices and the integration of delivery structures has outpaced the legal system's ability to regulate or guide the emerging health care market. This gap leaves physicians without proper legal guidance on how to balance their duties to their patients and their contractual obligations to managed care organizations (MCOs). A brief review of the case law to date highlights some of the legal and ethical issues that arise for physicians who practice in this environment.

Type
Article
Information
Journal of Law, Medicine & Ethics , Volume 23 , Issue 3 , Fall 1995 , pp. 230 - 235
Copyright
Copyright © American Society of Law, Medicine and Ethics 1995

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

See Harvard Medical Practice Study to the State of New York, “Patients, Doctors and Lawyers: Medical Malpractice Litigation and Patient Compensation in New York” (1990).Google Scholar
For a consideration of the ethical issues in managed care, see Biblo, J.D. et al., Ethical Issues in Managed Care Guidelines for Clinicians and Recommendations to Accrediting Organizations (Kansas City: Midwest Bioethics Center, 1995).Google Scholar
Wickline v. California, 228 Cal. Rptr. 661, appeal granted, 231 Cal. Rptr. 560, 727 P.2d 753 (1986).Google Scholar
Bush v. Dake, No. 86–25656 (Mich. Cir. Ct. Apr. 27, 1989).Google Scholar
Boyd v. Einstein, 547 A.2d 1229 (Pa. Super. 1988).Google Scholar
Hand v. Tavera, No. 04-92-00618CV (4th Cir. Sept. 22, 1993).Google Scholar
See, for example, Corcoran v. United Healthcare Inc., 965 F.2d 1321 (5th Cir. 1992).Google Scholar
42 U.S.C. § 1395dd (1993).Google Scholar
See Hand, No. 04-92-00618CV at 5.Google Scholar
See Rolph, E., ed., Health Care Delivery and Tort: Systems on a Collision Course? (Santa Monica: Institute for Civil Justice, RAND Corp., 1992).Google Scholar
For a discussion of the data and performance measurement initiatives underway today, see Gosfield, A.G., “Measuring Performance and Quality: The State of the Art and Legal Concerns,” in Gosfield, A.G., ed., 1995 Health Law Handbook (New York: Clark Boardman Callaghan, 1995): 31–68.Google Scholar
Id. at 33–34.Google Scholar
For a consideration of Medicare issues, see Gosfield, A.G., “Value Purchasing in Medicare Law: Precursor to Health Reform,” American journal of Law & Medicine, XX (1994): 169–86.CrossRefGoogle Scholar
National Committee for Quality Assurance, Healthplan Employer Data and Information Set and User's Manual 2.0 (Washington, D.C.: National Committee for Quality Assurance, 1993).Google Scholar
Teti v. U.S. Health Care, No. 88–9808 (E.D. Pa. 1988).Google Scholar
Institute of Medicine, Gray, B. Field, M.J., eds., Controlling Costs and Changing Patient Care? The Role of Utilization Management (Washington, D.C.: National Academy Press, 1989): At 154.Google Scholar
But see Biblo, et al., supra note 2, at 13 for an ethical consideration of this issue.Google Scholar
See National Committee for Quality Assurance, supra note 14.Google Scholar
I suppose the determination of “effectiveness of selection” implied here is itself an ethical dilemma, in the sense that the bases for choice are so different that employers and other consumer surrogates simply cannot make this decision for their beneficiaries. This conundrum would have been eliminated in the Clinton proposal, which put the burden of selection on the consumer.Google Scholar
For a full consideration of the issues regarding guidelines, see Gosfield, A.G., “Clinical Practice Guidelines and the Law: Applications and Implications”, in Gosfield, A.G., ed., 1994 Health Law Handbook (New York: Clark Boardman Callaghan, 1994): 65–99.Google Scholar
See Institute of Medicine, Field, M.J. Lohr, K.N., eds., Clinical Practice Guidelines: Directions for a New Program (Washington, D.C.: National Academy Press, 1990); and Institute of Medicine, Field, M.J. Lohr, K.N., eds., Guidelines for Clinical Practice From Development to Use (Washington, D.C.: National Academy Press, 1992).CrossRefGoogle Scholar
See Gosfield, A.G., “Value Purchasing and Effectiveness: Legal Implications”, in Gosfield, A.G., ed., 1991 Health Law Handbook (New York: Clark Boardman, 1991): At 194–99; and Gosfield, A.G., “Utilization Management, Quality Assurance and Practice Guidelines,” in National Health Lawyers Association, 1994 Health Law Practice Guide (New York: Clark Boardman Callaghan, Vol. 2, 1994): At 25–1 to 25–98.Google Scholar
See Corcoran v. United HealthCare Inc., 965 F.2d 1321 (5th Cir. 1992).Google Scholar
See Rothschild, I., “The Health Care Quality Improvement Act and the National Practice Forum Data Bank: Current Issues and Emerging Legal and Operational Trends,” in Gosfield, A.G., ed., 1993 Health Law Handbook (New York: Clark Boardman Callaghan, 1993): 313–62.Google Scholar
42 U.S.C. § 1395nn (Supp. 1994) and 42 U.S.C. § 1320a-7 (1988).Google Scholar