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The Role of the Courts in Shaping Health Policy: An Empirical Analysis

Published online by Cambridge University Press:  01 January 2021

Peter D. Jacobson ,
Elizabeth Selvin  and
Scott D. Pomfret
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Extract

The transformation of health-care delivery from fee-for-service medicine to managed care represents a fundamental philosophical shift away from the prevailing medical ethos that the needs of the individual patient take precedence over competing social values, such as reducing health-care costs. In managed care, financial incentives to reduce health-care utilization may result in denying an individual’s claim for medical services.

Litigation challenging managed care’s resource allocation decisions often presents the need to resolve conflicting social policy goals, such as the tension between an individual patient’s access to health care and a managed care organization’s (MCO’s) need to restrain costs. Conflicts may arise when a patient’s desire for unconstrained health care clashes with a provider’s and an insurer’s cost containment strategies. In turn, cost containment strategies may raise questions about restrictions on physician autonomy and conflicts among stakeholders for control over resource allocation decisions.

Type
Article
Information
Journal of Law, Medicine & Ethics , Volume 29 , Issue 3-4 , Fall Winter 2001 , pp. 278 - 289
Copyright
Copyright © American Society of Law, Medicine and Ethics 2001

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References

The vast majority of cases coded were published. Some, however, had not been published at the time we coded them. We are not aware of whether they were subsequently published.Google Scholar
Havighurst, C.C., Health Care Choices: Private Contract as Instruments of Health Care Reform (Washington, D.C.: The AEI Press, 1995); Hall, M.A. and Anderson, G., “Health Insurers Assessment of Medical Necessity,” University of Pennsylvania Law Review, 140 (1992): 1637-712; Stone, A.A., “Judges as Medical Decision Makers: Is the Cure Worse Than the Disease,” Cleveland State Law Review, 33 (1985): 579-92.Google Scholar
Rodwin, M.A., Medicare, Money & Morals: Physicians' Conflicts of Interest, (New York: Oxford University Press, 1993).Google Scholar
To be sure, not all efforts to constrain costs are per se good or desirable. Some may be entirely appropriate, while others may lead to less than optimal care. Courts have generally resisted making distinctions between acceptable and unacceptable cost containment programs. See, e.g., Pegram v. Herdrich, 530 U.S. 211 (2000).Google Scholar
Hall, M.A., “Institutional Control of Physician Behavior: Legal Barriers to Health Care Cost Containment,” University of Pennsylvania Law Review, 137 (1988): 431–536.CrossRefGoogle Scholar
Anderson, G.F., “Courts and Health Policy: Strengths and Limitations,” Health Affairs, 11, no. 4 (1992): 95–110.CrossRefGoogle Scholar
See, e.g., Ferguson, J.H., Dubinsky, M. and Kirsch, P.J., “Court-Ordered Reimbursement for Unproven Medical Technology,” JAMA, 269, no. 6 (1993): 2116–21.CrossRefGoogle Scholar
Jacobson, P.D., “Legal Challenges to Managed Care Cost Containment Programs: An Initial Assessment,” Health Affairs, 18, no. 4 (1999): 69–85.CrossRefGoogle Scholar
Posner, R.A., “Against Constitutional Theory,” New York University Law Review, 73 (1998): 1–22. See also Heise, M., “The Importance of Being Empirical,” Pepperdine Law Review, 26 (1999): 808-34; Symposium, “Lies, Damn Lies and Statistics: How Empirical Research Shapes Health Law and Policy,” Indiana Law Review, 31 (1998): 1 et seq. For a nuanced, yet largely supportive view, see Sage, W.M., “Judicial Opinions Involving Health Insurance Coverage: Trompe L'Oeil or Window on the World?,” Indiana Law Review, 31 (1998): 49-73. An exception to the general lack of empirical scholarship in legal research is work by several scholars in claiming behavior. As a general proposition, however, such empirical work remains a small portion of legal scholarship.Google Scholar
The following represents a few examples rather than an exhaustive list or analysis.Google Scholar
Henderson, J.A. Jr., “Judicial Reliance on Public Policy: An Empirical Analysis of Products Liability Decisions,” George Washington Law Review, 59 (1991): 1570–613.Google Scholar
See, e.g., Heise, M., “State Constitutional Litigation, Educational Finance, and Legal Impact: An Empirical Analysis,” University of Cincinnati Law Review, 63 (1995): 1735–66.Google Scholar
Sisk, G.C., Heise, M. and Morriss, A.P., “Charting the Influences of the Judicial Mind: An Empirical Study of Judicial Reasoning,” New York University Law Review, 73 (1998): 1377–497.Google Scholar
Hall, M.A. et al.., “Judicial Protection of Managed Care Consumers: An Empirical Study of Insurance Coverage Disputes,” Seton Hall Law Review, 26 (1996): 1055–68. See also Anderson, G.F., Hall, M.A. and Smith, T.R., “When Courts Review Medical Appropriateness,” Medical Care, 36 (1998): 1295-302. The Hall, et al.. regression analysis attributes this result to being in federal court rather than to ERISA. But for a critique of these results, see Sage, supra note 9.Google Scholar
The following search string was used to identify managed care related court cases in the Westlaw “all cases” database: ((PREPAY! PREPAID)/5 (HEALTH PLAN MEDICAL) HMO IPO IPA “PREFERRED PROVIDER” UTILIZATION REVIEW” “UTILIZATION MANAGEMENT” (MANAG! +3 CARE) (PRECERTIF! /10 TREATMENT) % “INTERNAL REVENUE” “WORKERS COMPENSATION”).Google Scholar
This missing data accounts for the discrepancies in the sample sizes reported in Tables 1 and 2.Google Scholar
For an introduction to ERISA, see Jacobson, P.D. and Pomfret, S.D., “ERISA Litigation and Physician Autonomy,” JAMA, 283 (2000): 921–26.CrossRefGoogle Scholar
New York Conference of Blue Cross and Blue Shield Plans v. Travelers Insurance Co., 514 U.S. 645 (1995).Google Scholar
There is considerable debate over whether the Pegram case undermines the post-Travelers line of cases. Some argue that Pegram will erode barriers to suing managed care organizations in state courts, while others suggest that Pegram changes very little of the litigation context. For a discussion, see Bloche, M.G. and Jacobson, P.D., “The Supreme Court and Bedside Rationing,” JAMA, 284 (2000): 2776–79. Courts are also split on Pegram's meaning. See, e.g., Corporate Health Insurance, Inc. v. Texas Department of Insurance, 220 F.3d 641 (5 th Cir. 2000). Pappas v. Asbel, 768 A.2d 1089 (Pa. 2001). We believe that it is too early to determine how the lower courts will interpret Pegram.Google Scholar
In selecting patient autonomy as a policy variable, we anticipated that issues such as patient choice and informed consent would be important considerations in managed care litigation. Similarly, we expected that a major policy dispute in the litigation would be over managed care's attempts to control clinical practice, hence reducing physician autonomy for clinical decisions. Both scenarios, in essence, raise the issue of who makes the clinical decision in managed care.Google Scholar
SAS version 6.1 (SAS Institute, Cary, North Carolina).Google Scholar
Lexis-Nexis is the other major legal database. There is little, if any, discrepancy in the availability of cases from Westlaw and Lexis.Google Scholar
We observed no differences in results when medical professionals, professional organizations, and other individuals were considered separately in our analysis. Thus, we grouped all plaintiffs into a single category.Google Scholar
For purposes of ERISA, a managed care organization is considered to be part of the employee's health benefit plan and, thus, subject to ERISA requirements.Google Scholar
The null hypothesis being that the rulings in both distributions are identical.Google Scholar
A recent comprehensive study on antitrust litigation confirms these results, showing a remarkably similar distribution of rulings. Hammer, P.J.D., Ph.D., Conversation with Jacobson, P.D., March 2001. Hammer and William Sage have compiled an extensive antitrust database that they are now in the process of analyzing. We defer detailed consideration of our antitrust sample to them.Google Scholar
Even though this is the expected result, this is the first time the result has been validated through an empirical analysis.Google Scholar
One possible explanation, as noted by an anonymous reviewer, is that a court might want to bow in the direction of fairness, even if the ruling is for the defendant, to avoid the appearance of not caring about the patient's distress.Google Scholar
See Hall, et al., supra note 14 (a more limited range of cases examined).Google Scholar
See, e.g., Jacobson, supra note 8; Jacobson, P.D. and Pomfret, S.D., “Establishing New Legal Doctrine: A Model of Judicial Response to Industrial Change,” University of Michigan Journal of Law Reform, 32 (1999): 813–61.Google Scholar
See, e.g., Andrews-Clarke v. Travelers Insurance Co., 984 F. Supp. 49 (D. Mass. 1997).Google Scholar
See Pegram, 530 U.S. 211 (2000).Google Scholar
See, e.g., Blue Cross and Blue Shield of Wisconsin v Marshfield Clinic, 65 F.3d 1406 (7th Cir. 1995).Google Scholar
When we break these results down between ERISA and non-ERISA cases, the general pattern still holds, but with different percentages. In ERISA cases, if justice/fairness controlled, plaintiffs won only 60 percent of the time. If cost/efficiency controlled, defendants won 73 percent of the cases. In non-ERISA cases, plaintiffs won 84 percent of the cases if justice/fairness controlled, while defendants won 83 percent of the time when cost/efficiency was paramount.Google Scholar
See Hall, supra note 5.; Hall, and Anderson, supra note 2.Google Scholar
See Jacobson, supra note 8.Google Scholar