Managed Care as Regulation: Functional Ethics for a Regulated Environment

See generally Pellegrino Edmund D. , “The Metamorphosis of Medical Ethics: A 30-Year Retrospective”, JAMA, 269 (1993): 1158–62; Rothenberg Karen , “New Perspectives for Teaching and Scholarship: The Role of Gender in Law and Health Care,” Maryland Law Review, 54 (1995): 473–87; and Wolf Susan M. , “Shifting Paradigms in Bioethics and Health Law: The Rise of a New Pragmatism,” American Journal of Law & Medicine, XX (1994): 395–415.

Conroy is an exception to the norm, in the sense that the court established procedures specifically for the nursing home setting; however, the substantive principles developed in the case did not depend on the setting of care. See In re Conroy, 98 N.J. 321, 486 A.2d 1209 (N.J. 1985).

Collopy Bart Boyle Philip Jennings Bruce , “New Directions in Nursing Home Ethics,” Hastings Center Report, 21, no. 2 (1991): S1–15. See also Collopy Bart Dubler Nancy Zuckerman Connie , “The Ethics of Home Care: Autonomy and Accommodation,” Hastings Center Report, 20, no. 2 (1990): S1–16.

See Cruzan by Cruzan v. Harmon, 760 S.W.2d 408, 429 (Mo. 1988).

Collopy Bart , “Autonomy in Long Term Care: Some Crucial Distinctions,” The Gerontologist, 28 (1988): 10–17.

See, for example, Hall Mark A. , “Rationing Health Care at the Bedside,” New York University Law Review, 69 (1994): At 740–44.

See, for example, Goldsmith Seth B. , Long-Term Care Administration Handbook (Gaithersburg: Aspen, 1993): At 124–30. Some administrators have described compliance with government regulations to be “at the core of the administrative function.” See Abramovice B. , Long Term Care Administration (New York: Haworth Press, 1988): At 173.

A growing literature is focusing on the tension inherent in the health care administrator's role, especially when that role is assumed by physicians. See, for example, Kissick William L. , “Bridging the Cultural Gaps,” Physician Executive, 21 (1995): 3–6; and Kindig David A. Kovner Anthony R. , eds., The Role of the Physician Executive (Ann Arbor: Health Administration Press, 1992).

See, for example, McGlinn Daniel , “A Day in the Life of a Physician,” Michigan Bar Journal, 73 (1994): 142–46.

See inter alia Linney Barbara J. , “Changes in the Practice of Medicine,” Physician Executive, 19 (1993): 59–63; and Saxena Virendra , “Putting Out the Flames that Threaten Medicine,” American Medical News, Mar. 22, 1993, at 31. As to nursing home regulations, see, for example, Childress James F. , “If You Let Them, They'd Stay in Bed All Morning: The Tyranny of Regulation in Nursing Home Life,” in Kane Rosalie Caplan Arthur , eds., Everyday Ethics: Resolving Dilemmas in Nursing Home Life (New York: Springer, 1990): 79–89.

See, for example, Jost Timothy S. , “Enforcement of Quality Nursing Home Care in the Legal System,” Law, Medicine & Health Care, 13 (1985): 160–72; and Institute of Medicine, Committee on Nursing Home Regulation, Improving the Quality of Care in Nursing Homes (Washington, D.C.: National Academy Press, 1986).

On the subject of incentives for overtreatment in fee-for-service (FFS) medicine, see Office of Technology Assessment, Defensive Medicine & Medical Malpractice (Washington, D.C.: OTA, OTA 22–23, 104–105, July 1994) (concluding that it was impossible to separate the overtreatment inducements of the medical malpractice system from those of FFS payments).

Bodenheimer Thomas Grumbach Kevin , “The Reconfiguration of U.S. Medicine,” JAMA, 274 (1995): 85–90 (using this phrase to describe the Blue Cross/Blue Shield structure prior to the cost-control drive).

Roberts Holly M.D., as described in Ziegler Jan , “Drive-Through Delivery: Bargain or Blunder?,” Business and Health, Sept. (1995): At 19.

Sanders Paul M.D., as quoted in Baden Patricia Lopez , “Are Short Stays OK After Births?,” Minneapolis Star-Tribune, Aug. 8, 1995, at 1A.

Pisano Marina , “Drive-Through Deliveries,” San Antonio Express-News, Sept. 17, 1995, as cited 1995 WL 9502145.

David Strand as quoted in Baden , supra note 15, at 1A.

See, for example, Hillman Bruce J. , “Physician's Utilization and Charges for Outpatient Diagnostic Imaging in a Medicare Population,” JAMA, 268 (1992): 2050–54; and Mitchell Jean M. Scott Elton , “Physician Ownership of Physical Therapy Services: Effects on Charges, Utilization, Profits and Service Characteristics,” JAMA, 268 (1992): 2055–59. Each report on increased utilization where there is self-referral.

See, for example, Rodwin Marc A. , “Conflicts in Managed Care,” N. Engl. J. Med., 332 (1995): 604–07 (describing such clauses).

For an analysis of the impact of race in managed care, see Randall Vernellia R. , “Racist Health Care: Reforming an Unjust Health Care System to Meet the Needs of African-Americans,” Health Matrix, 3 (1993): 127–94. There may also be an adverse discriminatory impact on physicians serving poor and minority populations. See Note, “The Impact of Managed Care on Doctors Who Serve Poor and Minority Patients,” Harvard Law Review, 108 (1995): 1625–42.

Many significant efforts have been made to guide physicians on that difficult question. See, for example, Council on Ethical and Judicial Affairs, American Medical Association, “Ethical Issues in Managed Care,” JAMA, 273 (1995): 1937–12; Wolf Susan M. , “Health Care Reform and the Future of Physician Ethics,” Hastings Center Report, 24, no. 2 (1994): 28–41; and Emanuel Ezekiel J. Dubler Nancy N. , “Preserving the Physician-Patient Relationship in the Era of Managed Care,” JAMA, 273 (1995): 323–29.

Of course, the physician and the MCO have a legal duty to provide the patient with treatment required under the applicable standard of care. For a complete discussion of the relative legal liability of doctors and managed care, see Furrow Barry R. , Health Law (Minneapolis: West Treatise Series, 1995): Ch. 8.

California has enacted a statute to protect physicians from termination in retaliation for acting as an “advocate for appropriate health care for their patients.” See Cal. Bus. & Prof. Code § 2056. This statute was based on legislation developed by the American Medical Association. Similar legislation was passed by the Texas legislature, but was vetoed by the governor. See Newswire PR , “Statement of the Group Health Association of America on Veto of Texas Physician Protection Legislation,” June 18, 1995.

For background on the regulatory and other legal issues regarding physical restraints, see Kapp Marshall B. , “Nursing Home Restraints and Legal Liability: Merging the Standard of Care and Industry Practice,” Journal of Legal Medicine, 13 (1992): 1–32; and Johnson Sandra H. , “The Fear of Liability and the Use of Restraints in Nursing Homes,” Law, Medicine & Health Care, 18 (1990): 263–73.

For a review of such a situation in another context, see Duggan v. Bowen, 691 F. Supp. 1487 (D.D.C. 1988). In this case, the court reviewed an agency action in which the definition of “part-time or intermittent” home health care was altered, through a transmittal letter to intermediaries, to exclude part-time care if given over more than five days per week. The Department of Health and Human Services routinely denied coverage for more extensive home care services, but routinely granted coverage on appeal to its highest level of appeal.

Evans L. Strumpf N. , “Tying Down the Elderly: A Review of the Literature on Physical Restraint,” Journal of the American Geriatric Society, 37 (1989): 65–74; and Dube Arthur H. Mitchell Erik K. , “Accidental Strangulation from Vest Restraints,” JAMA, 256 (1986): 2725–76.

See, for example, Letter from Vivienne Wisdom, Executive Director of the New Hampshire Health Care Association to Sununu John , Mar. 11, 1991 (describing that the members of the New Hampshire Health Care Association (a nursing home trade association) experienced “profound improvement in the quality of life,” increased staff morale, and more frequent visitors to residents on reduction of restraints).

See, for example, Council on Ethical and Judicial Affairs, supra note 21 (describing a choice between contrast media based on cost and pain); and Faltermayer Edmund , “Will the Cost of Cutting in Health Care Kill You?,” Fortune, 130 (1994): 221–27 (describing how less invasive techniques preferred in managed care can avoid painful outcomes for patients).

See, for example, Rothman David , Strangers at the Bedside: A History of How Law and Bioethics Transformed Medical Decision Making (New York: Basic Books, 1991).

See, for example, Somerville Janice , “Doctors, HMOs Give Peace a Chance: Colorado Providers Negotiate Pact on Physician Contract Protections,” American Medical News, Apr. 3, 1995, at 3.