Eliminating Conflicts of Interest in Managed Care Organizations through Disclosure and Consent

Angell M. , “The Doctor as Double Agent,” Kennedy Institute of Ethics Journal, 3 (1993): 279–86; Boyd T.H. , “Cost Containment and the Physician's Fiduciary Duty to the Patient,” DePaul Law Review, 39 (1989): At 139; Emanuel E.J. Brett AS , “Managed Competition and the Patient-Physician Relationship,” N. Engl. J. Med., 329 (1993): At 881; Relman A.S. , “Physicians and Business Managers: A Clash of Cultures,” Health Management Quarterly, 16, no. 3 (1994): At 12–13; and Rodwin M. , Medicine, Money and Morals: Physicians' Conflicts of Interest (Oxford: Oxford University Press, 1993): At 135–37.

Hail M.A. , Making Medical Spending Decisions: The Law, Ethics and Economics of Rationing Mechanisms (New York: Oxford University Press, 1997). Previous articles on this issue by Mark Hall include: Hall M.A. , “Physician Rationing and Agency Cost Theory,” in Spece R.G. Jr. Shimm D. S. Buchanan A.E. , eds., Conflicts of Interest in Clinical Practice and Research (New York: Oxford University Press, 1996): 228–50; Hall M.A. , “The Ethics of Health Care Rationing,” Public Affairs Quarterly, 8 (1994): 33–50; and Hall M.A. , “Informed Consent to Rationing Decisions,” Milbank Quarterly, 71 (1993): 645–67. See also Begley C.E. , “Physicians and Cost Control,” in Agich G.J. Begley C.E. , eds., The Price of Health (Boston: D. Reidel, 1986): At 240; Mechanic D. Ettel T. Davis D. , “Choosing Among Health Insurance Options: A Study of New Employees,” Inquiry, 27 (1990): At 22; and Menzel P.T. , Strong Medicine: The Ethical Rationing of Health Care (New York: Oxford University Press, 1990): At 145–46.

See Rodwin , supra note 1, at 213–17.

For an analysis of conflicts of interest almost wholly in terms of roles, see Margolis J. , “Conflict of Interest and Conflicting Interests,” in Beauchamp T.L. Bowie N.E. , eds., Ethical Theory and Business (Englewood Cliffs: Prentice-Hall, 1979): 361–72.

See id. at 361–62. See also Kipnis K. , Legal Ethics (Englewood Cliffs: Prentice-Hall, 1986): At 40–41; and Erde E.L. , “Conflicts of Interest in Medicine: A Philosophical and Ethical Morphology,” in Spece Shimm Buchanan , supra note 2, at 20–21.

See Margolis , supra note 4, at 368 (stating that “the very idea of a conflict of interest entails its avoidability”). See also Davis M. Elliston F.A. , ed., Ethics and the Legal Profession (Buffalo: Prometheus Books: 1986): At 279 (noting with regard to legal conflicts of interest that “conflict of interest can be a very useful term but only if its use is limited to circumstances over which lawyers have some control”). Another possibility would be to hold that all conflicting interests are conflicts of interest and to preserve ethical coherence by distinguishing between good and bad conflicts of interest. See May L. , “Conflict of Interest,” in Wueste D.E. , ed., Professional Ethics and Social Responsibility (Lanham: Rowman and Littlefield, 1994): At 68, 71–75. Although this draws the same distinction I am making, I believe that it is more in accord with ordinary usage to say that conflicts of interest are always normatively negative and ought to be avoided.

Davis M. , “Conflicts of Interest,” Business and Professional Ethics Journal, 1, no. 4 (1982): 17–27 (emphasizing the role of judgment in conflicts of interest in general). For an application of this specifically in the medical context, see May W. , “The Beleaguered Rulers: The Public Obligation of the Professional,” Kennedy Institute of Ethics Journal, 2 (1992): At 37.

Several writers have analyzed conflicts of interest in terms of the duty of the professional to protect the interests of the client or patient. See, for instance, Boatright J.R. , “Conflict of Interest: A Response to Michael Davis,” Business and Professional Ethics Journal, 12, no. 4 (1993): At 43; Leubke N. , “Conflicts of Interest as a Moral Category,” Business and Professional Ethics Journal, 6, no. 1 (1987): At 69; and May , supra note 6, at 67–71. Boatright and Leubke argue against Davis's attempt to analyze conflicts of interest in terms of professional judgment.

See Leubke , supra note 8, at 66–81.

See May , supra note 6, at 74–78.

Davis M. , “Codes of Ethics, Professions, and Conflict of Interest: A Case Study of an Emerging Profession, Clinical Engineering,” Professional Ethics, 1, nos. 1 & 2 (1992): At 184–87 (arguing that having a code of ethics that determines what counts as a conflict of interest is an essential characteristic of a profession).

In a similar vein, Haavi Morreim argues that it is a paternalistic infringement of patient autonomy not to allow patients to consent to treatment by ancillary facilities in which their physicians have an interest. See Morreim E.H. , “Conflicts of Interest for Physician Entrepreneurs,” in Spece Shimm Buchanan , supra note 2, at 257–58.

Hillman A.L. , “How Do Financial Incentives Affect Physicians' Clinical Decisions and the Financial Performance of Health Maintenance Organizations?,” N. Engl. J. Med., 321 (1989): At 90.

See Hall (1997), supra note 2, at 137–38.

See, for example, Franks P. Clancy C.M. Nutting P.A. , “Gatekeeping Revisited—Protecting Patients from Over-treatment,” N. Engl. J. Med., 327 (1992): At 424.

Retchin S.M. Brown B. , “Elderly Patients with Congestive Heart Failure under Prepaid Care,” American Journal of Medicine, 90 (1991): 236–42; Retchin S.M. Brown B. , “Management of Colorectal Cancer in Medicare Health Maintenance Organizations,” Journal of General Internal Medicine, 5 (1990): 110–14; Hillman A.L. , “The Impact of Physician Financial Incentives on High-Risk Populations in Managed Care,” Journal of Acquired Immune Deficiency Syndrome Human Retrovirol, 8, Supp. 1 (1995): S23–S30; Murray J.P. , “Ambulatory Testing for Capitation and Fee-For-Service Patients in the Same Practice Setting: Relationship to Outcomes,” Medical Care, 30 (1992): 252–61; and Udvarhelyi I.S. , “Comparison of the Quality of Ambulatory Care for Fee-For-Service and Prepaid Patients,” Annals of Internal Medicine, 115 (1991): 394–400.

See Hall (1997), supra note 2, at 137.

It has also been argued, though it is controversial, that physician-assisted death should not be tolerated because it undermines the values of the medical profession even if patient consent can be guaranteed. Leon Kass, for example, argues that permitting physician-assisted death would permanently destroy the ethical center of the medical profession which is the devotion to healing and the refusal to kill. See Kass L. , “Is There a Right to Die?,” Hastings Center Report, 23, no. 1 (1993): At 42.

Pellegrino E.D. Thomasma D.C. , The Virtues in Medical Practice (New York: Oxford University Press, 1993): At 66–75.

See Rodwin , supra note 1, at 213.

Id. at 216.

Faden R. Beauchamp T. , A History and Theory of Informed Consent (New York: Oxford University Press, 1986).

See id. at 238–41, 278, 298.

See id. at 276–78.

See id. at 300–04.

See id. at 261, 339.

Feinberg J. , Harm to Self: The Moral Limits of the Criminal Law (New York: Oxford University Press, 1986): At 172–74.

See id. at 117–24.

See id. at 150–53.

See Rodwin , supra note 1, at 215.

For a detailed argument that a person can give legally valid consent to an insurance plan that involves rationing even though he/she is not informed at the time of treatment of some alternatives not covered by the plan, see Hall (1997), supra note 2, at ch. 6.

See id. at 212–14.

For someone who is skeptical about informed consent in its present form in both the context of treatment and the context of choosing health plans, see Katz J. , “Informed Consent to Medical Entrepreneurialism,” in Spece Shimm Buchanan , supra note 2, at 289–92.

Council on Ethical and Judicial Affairs, American Medical Association, “Ethical Issues in Managed Care,” JAMA, 273 (1995): At 335.

See id. at 334; and Wolf S.M. , “Health Care Reform and the Future of Physician Ethics,” Hastings Center Report, 24, no. 2 (1994): At 35.

See Rodwin , supra note 1, at 216–17.

For an argument supporting this point, see Hall (1997), supra note 2, at 143–44.

See id. at 252.

See Faden Beauchamp , supra note 22, at 344–45.

See Feinberg , supra note 27, at 149.

See id.

For a similar view defended in terms of classical liberalism, see Hall (1997), supra note 2, at 250–51.

Hall also emphasizes the need for a variety of choices, although his analysis is not based on the sort of balancing approach described here. See id. at 225, 227.