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

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.

Havighurst C.C. , Health Care Choices: Private Contract as Instruments of Health Care Reform (Washington, D.C.: The AEI Press, 1995);.

Hall M.A. 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.

Rodwin M.A. , Medicare, Money & Morals: Physicians' Conflicts of Interest, (New York: Oxford University Press, 1993).

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).

Hall M.A. , “Institutional Control of Physician Behavior: Legal Barriers to Health Care Cost Containment,” University of Pennsylvania Law Review, 137 (1988): 431–536.

Anderson G.F. , “Courts and Health Policy: Strengths and Limitations,” Health Affairs, 11, no. 4 (1992): 95–110.

See, e.g., Ferguson J.H. Dubinsky M. Kirsch P.J. , “Court-Ordered Reimbursement for Unproven Medical Technology,” JAMA, 269, no. 6 (1993): 2116–21.

Jacobson P.D. , “Legal Challenges to Managed Care Cost Containment Programs: An Initial Assessment,” Health Affairs, 18, no. 4 (1999): 69–85.

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.

The following represents a few examples rather than an exhaustive list or analysis.

Henderson J.A. Jr. , “Judicial Reliance on Public Policy: An Empirical Analysis of Products Liability Decisions,” George Washington Law Review, 59 (1991): 1570–613.

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.

Sisk G.C. Heise M. 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.

Hall M.A. ., “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. Smith T.R. , “When Courts Review Medical Appropriateness,” Medical Care, 36 (1998): 1295–302.

The Hall . 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.

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”).

This missing data accounts for the discrepancies in the sample sizes reported in Tables 1 and 2.

For an introduction to ERISA, see Jacobson P.D. Pomfret S.D. , “ERISA Litigation and Physician Autonomy,” JAMA, 283 (2000): 921–26.

New York Conference of Blue Cross and Blue Shield Plans v. Travelers Insurance Co., 514 U.S. 645 (1995).

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. 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.

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.

SAS version 6.1 (SAS Institute, Cary, North Carolina).

Lexis-Nexis is the other major legal database. There is little, if any, discrepancy in the availability of cases from Westlaw and Lexis.

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.

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.

The null hypothesis being that the rulings in both distributions are identical.

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.

Even though this is the expected result, this is the first time the result has been validated through an empirical analysis.

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.

See Hall , supra note 14 (a more limited range of cases examined).

See, e.g., Jacobson , supra note 8;.

Jacobson P.D. 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.

See, e.g., Andrews-Clarke v. Travelers Insurance Co., 984 F. Supp. 49 (D. Mass. 1997).

See Pegram, 530 U.S. 211 (2000).

See, e.g., Blue Cross and Blue Shield of Wisconsin v Marshfield Clinic, 65 F.3d 1406 (7th Cir. 1995).

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.

See Hall , supra note 5.

Hall Anderson , supra note 2.

See Jacobson , supra note 8.