Notes

Chapter 1: The Liberal State

[1] For a summary of this case, see A. M. Goldman, K. M. Stratton, and M. D. Brown, "What Actually Happened: An Informed Review of the Linares Incident," Law, Medicine and Health Care 17 (1989): 298-307.

[2] Thomas Nagel, "Moral Conflict and Political Legitimacy," Philosophy and Public Affairs 16 (1987): 215-240.

[3] Webster's New Collegiate Dictionary (Springfield, Mass.: Merriam & Co., 1974).

[4] Isaiah Berlin, Four Essays on Liberty (London: Oxford University Press, 1969).

[5] Ibid., 24.

[6] John Stuart Mill, On Liberty (Northbrook, Ill.: AHM Publishing, 1947), 21.

[7] Ibid., 35.

[8] Charles Fried, Right and Wrong (Cambridge: Harvard University Press, 1978).

[9] Berlin, Four Essays on Liberty, 38.

[10] Robert Nozick, Anarchy, State and Utopia (New York: Basic Books, 1974), 164.

[11] Bertrand de Jouvenal, The Ethics of Redistribution (Indianapolis: Liberty Press, 1990).

[12] Of course, some theorists whom I would call conservatives might see themselves as true liberals, and might refer to my modern liberalism as socialism. For instance, H. Tristram Engelhardt, in developing a theory of bio-ethics, refers to the linchpin of public authority as a matter of peaceable, mutual negotiation. This is a liberal view, but I would understand Engelhardt as a classic liberal or perhaps a conservative. See H. Tristram Engelhardt, The Foundations of Bioethics (New York: Oxford University Press, 1986), 44.

[13] See, for example, C. B. McPherson, "Maximization of Democracy," in Philosophy, Politics, and Society, ed. P. Laslett and W. G. Runciman (New York: Barnes and Noble, 1967).

[14] A. Hellegers and A. Jonsen, "Conceptual Foundations for an Ethic of Medical Care," m Ethics and Health Policy, ed. R. Branson and R. Veatch (Cambridge, Mass.: Ballinger Publishers Company, 1976), 38.

[15] John Rawls, "Justice as Fairness: Political, Not Metaphysical," Philosophy and Public Affairs 14 (1985): 223-251.

[16] See John Rawls, "The Idea of an Overlapping Consensus," Oxford Journal of Legal Studies, 7, no. 1 (1986): 1. Rawls reiterates that the overlapping consensus is not a mere modus vivendi, but substantive and constitutive of morality. Sec also John Rawls, "The Domain of the Political and the Overlapping Consensus," New York University Law Review 64 (May 1989): 233-255.

[17] John Locke, Second Treatise of Government (New York: Dover, 1959), chaps. 9-12. See also Mill, On Liberty.

[18] Hereto I follow closely the arguments made by Ronald Dworkin, in "Liberalism," in Public and Private Morality, cd. S. Hampshire (Cambridge: Cambridge University Press, 1978).

[19] Ibid., 72.

[20] John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971), 54.

[21] T. M. Scanlon, "Contractualism and Utilitarianism," m Utilitarianism and Beyond, ed. A. Sen and B. Williams (New York: Cambridge University Press, 1982), 110. Joel Feinberg has noted that Rawls relies quite heavily on a theory of natural duty and contract theory in order to develop the concept of obedience. Rawls's natural duty theory states, in so many words, that one has a duty to partake in a just institution. One cannot avoid the rules of an institution if that institution is a just one. As J. Feinberg puts it: "That principle [of natural duty] which Rawls argues would be acknowledged in the original position and is in that sense 'derived from reason' requires individuals to 'support and comply with' already existing institutions and help bring about just arrangements. It is this principle which binds people to their political institutions." J. Feinberg, "Rawls and Institutionism," in Reading Rawls, ed. Norman Daniels (Oxford: Blackwell, 1975), 120. Citizens generate the institutions of society from an original set of just principles. In this manner, the justice of these institutions is put beyond question; if this were not so, then the citizens would have to debate the matter until the institutions were finally aligned with the two principles at the heart of justice as fairness. Since the original institutions must be just, the citizens have a duty to participate in just institutions and so they must obey the roles of the institutions.

Rawls's society, then, has strong restrictions on cml disobedience. He agrees with contract theoreticians who garner obedience through consent. Consent, used here as an agreement to fulfill the obligations of citizenship, is implicit in Rawls's society; if one did not consent at the outset, then debate would continue until consent was possible, given the constructive model of reasoning in the original position. As a result, Rawls faces difficulties in defining a viable theory of civil disobedience. He faces much the same problems as those faced by Locke, the ultimate contract theoretician. Neither can show how a person can selectively disobey laws: participation implies consent. See J. A. Simmons, "Tacit Consent and Political Obligation," Philosophy and Public Affairs 5 (1976): 274-291.

[22] Rawls, A Theory of Justice, 54.

[23] Ibid., 83.

[24] Ravels does not, however, simply present these principles. He argues that they would be lexically ordered: the principle concerned with the right to equal liberty would take precedence over the one concerned with the restriction of inequality. Liberty can be limited only for the sake of liberty, not for the sake of equality. Rawls believes then that his citizens would opt for liberty over equality in the original position. From these lexically ordered principles, the citizens in the original position would go on to construct their society and the institutions that order it. In the constructive process, constant references would be made back to the lexically ordered principles that would stand as a basis for a final decision in any debate. As such, the principles would be embedded in the institutions, and the justice that issues from them would prevail. A profoundly liberal state emphasizing the virtues of individualism and liberty, and the importance of impartiality regarding the choice of individual moral principles would be constructed. Yet, there would also be concern for inequality.

[25] R. Dworkin, Laws Empire (Cambridge, Mass.: Belknap Press, 1986).

[26] Ibid., 1.

[27] H. L. A. Hart, Law, Liberty, and Morality (Stanford: Stanford University Press, 1963), 20.

[28] Patrick Devlin, The Enforcement of Morals (London: Oxford University, Press, 1965).

[29] Dworkin develops the notion of law as integrity to contrast with positivism in Laws Empire. See Dworkin, Law's Empire, especially chaps. 1-3.

[30] Ibid., 126.

[31] R. Wollheim, "Crime, Sin and Mr. Justice Devlin," Encounter 13 (1959): 13-24.

Chapter 2: The Medical Enterprise and Medical Ethics

[1] D. Barnlund, "The Mystification of Meaning: Doctor-Patient Encounters," Journal of Medical Education 51 (1976): 716-725.

[2] T. Szasz and J. Hollender, "The Basic Model of the Doctor-Patient Relationship," Archives of Internal Medicine 97 (1956): 85-90.

[3] Robert Burt, Taking Care of Strangers (New York: Free Press, 1979), 103. This excellent monograph analyzes doctor-patient relationships in psychoanalytic terms, and extends Parsons's discussion of transference. As a result, some of Burt's conclusions may be quite different from those that issue from a political-philosophical analysis. These issues are, however, the subject of another essay.

[4] See for example Jay Katz, The Silent World of Doctors and Patients (New York: Free Press, 1984). Szasz and Hollender assert that the participants in the relationship should have "equal power" and should be "mutually independent." These goals are very difficult to accomplish. The physician possesses a great deal of knowledge and information that the patient can barely begin to share without special efforts by the physician. A realistically ethical physician-patient relationship that respects the patient as a person means that the physician proposes something and the patient accepts. The key issue is the extent of the physician's proposal. Given her powerful advantage in knowledge, the proposal might be quite specific. Thus the mere assertion that the doctor and patient should be equal does little to demonstrate how or why the mutual participation model is to be reached.

[5] H. S. Becket, "The Nature of a Profession," in Sociological Work, ed. H. S. Becket (Chicago: Aldine Publishing Co., 1970), 87.

[6] E. Hughes, "Professions," Daedalus 92 (1963): 657-677.

[7] Ibid., 658.

[8] A. Buchanan, "Medical Paternalism," Philosophy and Public Affairs 7 (1976): 370-381.

[9] C. J. Friedrich, "Authority, Reason, and Discretion," in Nomos 1: Authority, ed. C. J. Friedrich (Cambridge: Harvard University Press, 1958).

[10] Hannah Arendt has extended the concept of authority by describing its etymological roots. Hannah Arendt, Between Past and Future; Six Exercises in Political Thought (New York: Viking Press, 1961). The Greek and Latin roots indicate that "authority" originally approximated the meaning of the word "augmented." The person in authority is augmented by a set of ideas extraneous to his own personality or knowledge. These ideas or beliefs allow others to accept his authority.

Arendt's description derives at least partially from Max Weber's insights. Weber conceived of three types of authority: (1) de jure authority, which derives from rules and ordered activity; (2) de facto authority, which derives from one's own specific skills and abilities; and (3) charismatic authority, which results from one's personality and which is outside institutional constraints. Some have pointed out that Weber's authority types represent a spectrum of different sources of authority. Weber's primary point is that a conceptual relationship between a person's activity and a set of ideas or beliefs provides authority. Miriam Siegler and Humphrey Osmond have argued this in the medical context in "Aesculopian Authority," Hastings Center Studies (1973): 41-43, in which a physician has moral, sapiential, and charismatic authority. The latter type of authority has certain priestly or magical qualities.

[11] Talcott Parsons's major works on this subject are The Social System (Glencoe, Ill.: Free Press, 1951) and "Social Change and Medical Organization in the United States: A Sociological Perspective," Annals of the American Academy of Political and Social Science 356 (1963): 21-42.

[12] Talcott Parsons, The Social Structure (Glencoe, Ill.: Free Press, 1964), 43.

[13] My characterization here is quite dependent on analysis by Jeffrey Berlant in Profession and Monopoly: A Study of Medicine in the United States and Great Britain (Berkeley, Los Angeles, London: University of California Press, 1975).

[14] Ibid., 9.

[15] Parsons, The Social Structure, 43.

[16] Ibid., 44-46.

[17] Parsons, "Social Change and Medical Organization," 23.

[18] Ibid., 26.

[19] Eliot Friedson, Doctoring Together (New York: Elsevier, 1975), 45.

[20] Parsons, "Social Change and Medical Organization," 27.

[21] A. Jonsen, "The Rights of Physicians: A Philosophical Essay" (unpublished essay filed with the Kennedy Institute Library, Georgetown University, dated June 1978), 14.

[22] H. Tristram Engelhardt, The Foundations of Bioethics (New York: Oxford University Press, 1986), 23.

[23] Berlant, Profession and Monopoly, chap. 3.

[24] R. Kudlien, "Medical Ethics and Popular Ethics in Greece and Rome," ClinoMedica 5 (1970): 93.

[25] Robert M. Veatch, A Theory of Medical Ethics (New York: Basic Books, 1981), 23.

[26] Ibid., 149.

[27] Ibid., 154.

[28] Tom L. Beauchamp and James F. Childress, Principles of Biomedical Ethics (Oxford: Oxford University Press, 1983).

[29] Berlant, Profession and Monopoly, 69.

[30] Ibid., 70-75. Berlant believes that anticompetition and monopolization are the major reasons for the existence of ethical codes.

[31] See Berlant, Profession and Monopoly, 100.

[32] Ibid., 100.

[33] Ibid., 107.

[34] Ibid., 107.

[35] Ibid., 108.

[36] Veatch, A Theory of Medical Ethics, 5.

[37] Beauchamp and Childress, Principles of Biomedical Ethics, 213.

[38] There are, of course, many different ethical theories or principles that underlie the "patient comes first" value. Beauchamp and Childress, for example, outline a number of completely different principles based on certain ethical theories that justify physician behavior. These principles include, among others, justice, nonmalfeasance, beneficence, and autonomy. For now we will avoid this particular characterization of medical ethics.

[39] Beauchamp and Childress, Principles of Biomedical Ethics, 177.

[40] Paul Ramsey, The Patient As Person (New Haven: Yale University Press, 1970), 2.

[41] Ibid., 5.

[42] Ibid., 6.

[43] Ibid., 6. Others have not shared this view, arguing that doctors' charity-in-relation is more akin to Aristotle's theory of virtue. See Beauchamp and Childress, Principles of Biomedical Ethics, 262.

[44] B. Williams, "The Idea of Equality," in Justice and Equality, ed. Hugo Bedau (Englewood Cliffs, New Jersey: Prentice Hall, 1971), 127.

[45] Immanuel Kant, Groundwork of the Metaphysics of Morals, ed., H. J. Paton (New York: Harper and Row, 1964), 61.

[46] Ibid., 96.

[47] Despite the apparent applicability, of Kantian theory to the doctor-patient relation, medical ethics cannot claim a Kantian basis for one important reason. Kantian moral philosophy is based on universalizability. It applies to all citizens. The categorical imperative requires that each person be treated as an end in himself. Medical ethics is not meant to be universalizable. Rather it refers specifically to the relation between doctors and patients. The altruistic aspects of medical ethics do not reach beyond the doctor-patient encounter.

In this regard, medical ethics can be understood as a matter of role morality. Throughout this discussion I am quite dependent on David Luban's insightful discussion in Lawyers and Justice (Princeton: Princeton University Press, 1988). Role morality concerns those duties that arise out of one's role or "station." A role is a concept of functional anthropology and, as Erving Goffman has put it, "Consists of the activity the incumbent would engage in were he to act solely in terms of the normative demands upon someone in his position." See Erving Goffman, "Role Distance," in Encounters: Two Studies in the Sociology of Interaction (Indianapolis: Bobbs-Merrill, 1961), 85. For example, the lawyer's role morality might require that he act in an especially antagonistic manner when litigating a case on behalf of a client. Similarly, the physician may have to act in an especially benevolent fashion toward her sick and vulnerable patient.

Kantian ethics is more fundamental in that its imperatives apply to all people as people, not as actors within a certain role. Kantian moral agency is fundamental. One can move in and out of roles. The lawyer does not treat everyone as if he or she were his client, nor does he treat everyone as if each were the prosecutor or an adverse witness. Role morality assumes a secondary position when compared with the public morality envisioned by Kant. Thus public morality itself, especially Kantian morality, must be universalizable, whereas role morality is not.

More important for the purposes of my argument is the relationship of role morality to public morality in the liberal state. I would argue that public morality limits role morality in certain ways and yet tolerates role moralities insofar as they express imperatives that are more altruistic than the public morality can require.

The public morality of liberalism is based on equal concern and respect for each individual. This means that each individual must be allowed to pursue her own enterprises and to define her own conception of a good life. However, the liberal state must also ensure that this pursuit is not detrimental to the interests of other members of society. Specifically, the state must guard against inequality. Any role morality must respect these aspects of the public morality, for roles in the state are secondary to membership in the state.

Nonetheless, certain roles can require altruistic or virtuous behavior beyond that expected by the state. For instance, certain religious orders might require that their members earn money in the market and then give all of it away to charity. This is not a requirement for every citizen in the liberal state, but the state accepts these role duties. However, the state will not accept the demands the same religious order might make upon its members to oppose what they regard as murder by attacking abortion clinics. Thus role morality is limited by the public morality, but certain duties arising out of the role are acceptable, and even welcomed by the state. These role duties are not universalizable, however, in the same manner that the public morality is.

In short, medical ethics, which emphasizes the physician's duty to the patient, is not applicable to society at large. In this it differs fundamentally from Kantian moral philosophy. Medical ethics defines a role morality. When physicians care for patients they are held to a set of moral imperatives that are not part of the general set of moral relations between individuals in the liberal state. It is nevertheless important to note that the role morality of medical ethics does apply to all doctor-patient relationships. The patient's role as patient, not as an individual, and the doctor's role as doctor, not as a concerned citizen, define the ethical relationship. In this regard, the class of doctors bears some common responsibilities to the class of patients.

This means that if a physician finds certain aspects of the care of a patient morally repugnant, she must find equally repugnant the fact that these aspects exist for other doctors and patients. For example, a physician working in a small clinic in the inner city may find that many of her patients who carry the human immunodeficiency virus cannot afford to purchase AZT, a drug that can postpone the onset of AIDS. She finds that these financial constraints make it impossible for her to discharge her duties in an appropriate fashion. A physician at a well-heeled clinic might not face the same problem because her patients all have insurance. Nonetheless, the second physician can sympathize with the first and understand the problems with financing. More important, the second physician should find the situation of the inner-city patients as morally repugnant as their own doctor does. The fact that some patients are not being treated with complete respect offends medical ethics, even when the patients are not one's own. The doctor's role responsibilities are thus universalizable to the class of all patients, but they are focused on the particular patient. These are issues we will return to in subsequent chapters.

This raises another point. Kantian moral philosophy is only similar to, rather than being the basis of, medical ethics. Recognition of this fact frees my argument from a potentially serious conflict. I have argued that medical ethics is in many ways illiberal. Kant was in many ways quite liberal. Indeed his moral philosophy and its distinction between noumenon and phenomenon has been used as a critical element in the distinction between classic liberals and modem liberals. See Michael Sandel, Liberalism and the Limits of Justice (Cambridge: Cambridge University Press, 1982), chap. 1. Kant's insistence that all individuals be treated with equal respect and concern is quite compatible with the theory of liberalism developed in the previous chapter. Thus it would be difficult to argue medical ethics is illiberal and yet admit it is based in Kantian moral philosophy.

[48] Hans Jonas, "Philosophical Reflections on Experimenting with Human Subjects," in Contemporary Issues in Bioethics, ed. Tom L. Beauchamp and Leroy Walters (Belmont, Calif.: Wadsworth Publishing Co., 1978), 417.

[49] S. Twiss, "The Problem of Moral Responsibility in Medicine," Journal of Medicine and Philosophy 2 (1977): 338-352.

[50] Ibid., 339.

[51] See Edmund D. Pellegrino and David C. Thomasma, For the Patient's Good (New York: Oxford University Press, 1988).

[52] Ibid., 27.

[53] Ibid., 117.

[54] Berlant, Profession and Monopoly, 204.

[55] Ibid., 88.

[56] Ibid., 225.

[57] N. Davis, History of the American Medical Association from Its Organization Up to 1855 (Philadelphia: Lippincott, Grambo and Co., 1855).

[58] Berlant, Profession and Monopoly, 231.

[59] R. Shyrock, Medical Licensing in America: 1650-1965 (Baltimore: Johns Hopkins Press, 1987).

[60] Paul Starr, The Social Transformation of American Medicine (New York: Basic Books, 1982), 184-185.

[61] J. Duffy, A History of Public Health in New York City, 1946-1966 (New York: Russel Sage Foundation, 1974).

[62] Ibid., 230-245.

[63] Starr, Social Transformation of American Medicine, 201.

[64] G. Rosen, "Contract as Lodge Practice and Its Influence on Medical Attitudes to Health Insurance," American Public Health Annals 67 (1977): 374-378.

[65] I. S. Falk, "Proposals for National Health Insurance in the U.S.A.: Origins and Evolution and Some Perceptions for the Future," Milbank Memorial Fund Quarterly 55 (1977): 161-191.

[66] Shyrock, Medical Licensing in America, 63.

[67] Starr, Social Transformation of American Medicine, 230-232.

[68] One last chance for eliminating such control, or at least for changing its emphases, occurred with the rise of Progressivism. In the years 1910 to 1915, the Progressive Party attempted to resist laissez-faire policies. Some party members drew on developments then occurring in Great Britain and began to campaign for some sort of social insurance, including health insurance. For the first time, physicians began to question the assumption that the government should not be involved in the delivery of health care to the individual.

These developments set the stage for a very critical period in the history of the AMA and the American medical profession. In 1915 and 1916, the AMA was, surprisingly, quite open to the Progressive initiatives on health care.

Articles in the Journal of the American Medical Association and the AMA's directions to its committee on social insurance indicated that the association was certain that compulsory health insurance was in the offing. Thus the AMA seemed prepared to abandon its opposition to government involvement in medical care and accept that health care could best be served by social insurance. This would, of course, demand some changes in the existing fee-for-service system. It might also challenge the institutional arrangements that supported the doctor-patient relationship.

Enthusiasm for these proposals was, however, ephemeral. The profession had begun to divide into two groups. One, of which both Lambert and Rubinow were members, was composed of physicians who had received postgraduate education and had specialized professionally. They were at the leading edge of new developments in medical education and science. The other, larger, group was made up of general practitioners and led by Eden V. Delphy, who had no postgraduate training. Delphy's leadership was based on a fear that some government control of medicine would reduce physician prerogatives and control of therapy, and would change existing economic relationships. Drawing on a wellspring of support, Delphy's group took control of the House of Delegates.

[69] "Minutes of the House of Delegates," Journal of the American Medical Association 74 (January-March 1920): 1319.

[70] Falk, "Proposals for National Health Insurance," 161-191.

[71] Editorial, Journal of the American Medical Association 99 (October-December 1932): 1950.

[72] Starr, Social Transformation of American Medicine, 271.

[73] Ibid., 272.

[74] Ibid., 276.

[75] T. Arnold, "Department of Justice: Statement About Group Health Insurance Cost," Current History, (1938): 49.

[76] Starr, Social Transformation of American Medicine, 305.

[77] Congress definitely was aware of the AMA's success in defeating a California State health plan in 1945-1946. Starr, Social Transformation of American Medicine, 283.

[78] Starr, Social Transformation of American Medicine, 297.

[79] Ibid., 298.

[80] Editorial, Journal of the American Medical Association 102 (April-June 1934): 2200-2201.

[81] Starr, Social Transformation of American Medicine, 300.

[82] The AMA campaign against the Group Health Associates was discussed in D. Hyde, et al., "The American Medical Association: Power, Purpose and Politics in Organized Medicine," Yale Law Journal 63 (1955): 938-978.

[83] Starr, Social Transformation of American Medicine, 309.

[84] Herman M. Somers and Anne R. Somers, Doctors, Patients and Health Insurance: The Organization and Financing of Medical Care (Washington: Brookings Institute, 1961), 300-320.

[85] Starr, Social Transformation of American Medicine, 368.

[86] Handbook of Public Assistance, Supplement D, 680 #D01540 (Washington: Government Printing Office, 1965).

[87] E. Sparer, "The Legal Right to Health Care," Hastings Center Report, 6 (October 1976): 39-47, 43.

[88] Starr, Social Transformation of American Medicine, 375.

[89] Judith Feder, Medicare: The Politics of Federal Hospital Insurance (Lexington, Mass: Lexington Books, 1977).

[90] Friedson, Doctoring Together, 45.

[91] Ibid., 51.

[92] Competition, or lack of it, is the subject of a great many recent essays and articles. See, for example, L. D. Brown, "Competition and Health Cost Containment: Cautions and Conjectures," Milbank Memorial Foundation Quarterly 59 (1981): 145-189; T. Marmor, et al., "Medical Care and Procompetitive Reform," Vanderbilt Law Review 34 (1981): 1010-1040.

[93] R. Gibson, "National Health Expenditures, 1979," Health Care Financing Review 2 (Summer 1980): 29-37.

[94] Clark Havighurst, "Antitrust Enforcement in the Medical Services Industry: What Does It All Mean?" Milbank Memorial Foundation Quarterly 58 (Winter 1980): 89-124, 102.

[95] Kenneth Arrow, "Uncertainty and the Welfare Economics of Medical Care," American Economics Review 53 (1963): 941-949.

[96] R. Auger and D. Goldberg, "Prepaid Health Plans and Moral Hazard," Public Policy 22 (1974): 353-371.

Chapter 3: Medicine in the Liberal State

[1] See Friedson, Doctoring Together, 125.

[2] In subsequent chapters, we will return to more realistic encounters.

[3] Alasdair MacIntyre , After Virtue: A Study in Moral Theory (Notre Dame, Ind.: University of Notre Dame Press, 1981).

[4] G. Dworkin, "Paternalism," in Morality and the Law, ed. R. A. Wasserstrom (Belmont, Calif.: Wadsworth, 1971), 108.

[5] D. W. Brock, "Paternalism and Autonomy," Ethics 98 (1988): 550-566.

[6] James Childress, Who Should Decide? Paternalism in Health Care (New York: Oxford University Press, 1982).

[7] Starr, Social Transformation of American Medicine, 381.

[8] Public Health Service, Health: United States 1981 (Washington: Government Printing Office, 1982).

[9] Berlant, Profession and Monopoly, 70-75.

[10] Ibid., 71.

[11] Ibid., 72.

[12] Congressional Budget Service, Overview of Fiscal Year 1982 for Human Resources Programs (Washington: Government Printing Office, 1982), 26.

[13] New York Times, 29 September 1982, A-1. See also A. R. Somers, "Sounding Board Moderating the Rise in Health Care Costs: A Pragmatic Beginning," New England Journal of Medicine 307 (1982): 944-946.

[14] A. C. Enthoven, "Consumer Choice Health Plan," New England Journal of Medicine 298 (1978): 651-658.

[15] Ibid., 652.

[16] B. Roe, "The UCR Boondoggle: A Death Knell for Private Practice?" New England Journal of Medicine 305 (1981): 41-45.

[17] See chapter 2.

[18] Roe, "UCR Boondoggle," 41.

[19] American Hospital Association, Hospital Regulation: Report of the Special Committee on the Regulatory Process (Chicago: American Hospital Association, 1977).

[20] United States Senate, Committee on Finance, Report 92-1230 (United States Senate, Washington, D.C., 26 September 1972), cited in Friedson, Doctoring Together, 247.

[21] M. Goran, "The PSRO Hospital Review System," Medical Care 13 (1975): 1-33.

[22] Starr, Social Transformation of American Medicine, 402.

[23] Jimmy Carter, State of the Union Address (Washington: 25 January 1978).

[24] B. Mitchell and J. Schwartz, "Strategies for Financing National Health Insurance: Who Wins and Who Loses," New England Journal of Medicine 295 (1976): 866-871.

[25] Ibid., 869.

[26] Ibid., 870.

[27] W. Blackstone, "On Health Care as a Legal Right," Georgia Law Review 10 (1976): 391-423.

[28] Ralph Nader, "Responsibilities of Physicians to Society," Federation Proceedings 31 (1972): 44-54.

[29] Starr, Social Transformation of American Medicine, 414.

[30] See Enthoven, "Consumer Choice Health Plan," 651.

[31] Ibid., 652.

[32] One can expect encouragement of HMOs to be an integral part of any procompetition legislation (see below notes 39-49). For a comprehensive discussion of HMOs see H. Luft, Health Maintenance Organizations: Dimensions of Performance (New York: Wiley Press, 1981); A. C. Enthoven, Health Plan: The Only Practical Solution to the Soaring Cost of Medical Care (Reading, Mass.: Addison-Wesley Publishing Co., 1981).

[33] E. Saward and A. Sorenson, "Competition, Profit, and the HMO," New England Journal of Medicine 306 (1982): 929-931.

[34] John K. Iglehart, "Health Care and American Business," New England Journal of Medicine 306 (1982): 120-124.

[35] John K. Iglehart, "Drawing the Lines for the Debate on Competition," New England Journal of Medicine 305 (1981): 291-296.

[36] Ibid., 295.

[37] R. Geist, "Incentive Bonuses in Prepayment Plans," New England Journal of Medicine 291 (1974): 1306-1308. See also, L. D. Brown, "Competition and Health Cost Containment: Cautions and Conjectures," Milbank Memorial Fund Quarterly 59 (1981): 145-166; T. Marmor, et al., "Medical Care and Procompetitive Reform," Vanderbilt Law Review 4 (1981): 1010-1040.

[38] John K. Iglehart, "The New Era of Prospective Payment for Hospitals," New England Journal of Medicine 307 (1982): 1288-1292.

[39] Robert Fetter, et al., "Case Mix Definition by Diagnosis Related Groups," Medical Care Supplement 18 (1980): 1-24. See also, John Thompson, Robert Fetter, et al., "Case Mix and Resource Use," Inquiry 12 (1975): 300-312.

[40] Donald W. Simborg, "DRG Creep: A New Hospital Acquired Illness," New England Journal of Medicine 304 (1981): 1602-1604.

[41] Thompson and Fetter, "Case Mix and Resource Use," 303.

[42] See Simburg, "DRG Creep," 1603.

[43] Iglehart, "Prospective Payment for Hospitals," 1288.

[44] The Department of Health and Human Services pursued the DRG initiative with vigor, proposing a standard payment schedule and several guidelines for instituting DRGs. The guidelines included: adjustment of rates to fit local variations; prohibition of direct billing for costs not allowed by the plan; and an annual update of payment rates. Iglehart, "Prospective Payment for Hospitals," 1290.

[45] Ibid., 1290.

[46] John K. Iglehart, "Medicare Begins Prospective Payment of Hospitals," New England Journal of Medicine 308 (1983): 1428-1432.

[47] I do not oppose such cost control techniques. I only wish to make clear what I see as their repercussions for doctors and patients.

[48] Somers, "Moderating the Rise in Health Care Costs," 945.

[49] David Kinzer, "Massachusetts and California—Two Kinds of Hospital Cost Control," New England Journal of Medicine 308 (1983): 838-841. D. Blumenthal and B. Caper, "What Price Cost Control? Massachusetts' New Hospital Payment Law," New England Journal of Medicine 308 (1983): 542-544.

[50] Kinzer, "Two Kinds of Hospital Cost Control," 838.

[51] E. P. Melia, L. M. Aucoin, L. J. Duhl, et al., "Competition in the Health Care Marketplace—A Beginning in California," New England Journal of Medicine 308 (1983): 788-792.

[52] Kinzer, "Two Kinds of Hospital Cost Control," 839.

[53] See N. Lurie, D. Ward, M. Shapiro, and R. H. Brook, "Termination from Medi-Cal—Does It Affect Health?" New England Journal of Medicine 311 (1984): 480-484.

[54] U.S. Department of Health and Human Services: Report of the Graduate Medical Education National Advisory Committee to the Secretary, Vol. 1, September 1980: DHHS Pub. No. 81-651 (Washington: General Printing Office, 1981).

[55] D. N. Mendelsohn, W. B. Schwartz, and F. A. Sloan, "Why There Will be Little or No Physician Surplus Between Now and the Year 2000," New England Journal of Medicine 318 (1988): 892-897. Compare with E. Ginzburg, "Physician Supply in the Year 2000," Health Affairs (Summer 1989): 84-90.

[56] See Mendelsohn, et al., "No Physician Surplus," 893.

[57] A. Gittlesohn and J. E. Wennberg, "Variations in Medical Care Among Small Areas," Scientific American 246 (1982): 120-126.

[58] The following is drawn from Alvin Tarlov, "The Shattuck Lecture— the Increasing Supply of Physicians, the Changing Structure of the Health-Services System, and the Future of the Practice of Medicine," New England Journal of Medicine 308 (1983): 1235-1244.

[59] Ibid., 1240.

[60] Ibid., 1241.

[61] Ibid., 1241.

[62] Ibid., 1241.

[63] B. Steinwald, "The Role of the Proprietary Hospital," Law and Contemporary Problems 35 (1970): 817-839. See also, American Hospital Association, Hospital Statistics (Chicago: American Hospital Association, 1980).

[64] See B. Ferber, "An Analysis of Chain Operated For-Profit Hospitals," Health Services Research 6 (1971): 49-60.

[65] See Arnold Relman, "Investor-Owned Hospitals and Health Care Costs," New England Journal of Medicine 309 (1983): 370-372.

[66] See A. I. Levenson, "The Growth of Investor Owned Psychiatric Hospitals," American Journal of Psychiatry 139 (1982): 902-907.

[67] Nearly one-half of the nongovernmental psychiatric beds in this country are privately owned. We will not spend a great deal of time discussing this special case.

[68] See R. M. Cunningham, "Changing Philosophies in Medical Care and the Rise of the Investor Owned Hospital," New England Journal of Medicine 307 (1982): 817-819.

[69] See Edmund D. Pellegrino, "Medical Care Quality and the Public Trust," cited in Cunningham, "Changing Philosophies," 818.

[70] R. Baird, "On Profits and Hospitals," Journal of Economic Issues 5 (1971): 57.

[71] R. Kinkhead, "Humana's Hard Sell Hospitals," Fortune (17 November 1981): 68-81.

[72] See Ferber, "Chain Operated For-Profit Hospitals," 49.

[73] See E. Ginzberg, "The Destabilization of Health Care," New England Journal of Medicine 315 (1986): 757-760.

[74] See Levenson, "Growth of Investor Owned Psychiatry Hospitals," 905.

[75] See Arnold Relman, "The New Medical Industrial Complex," New England Journal of Medicine 303 (1980): 963-970.

[76] Ibid., 967.

[77] See L. Jones, "Side Effect Seen in Ban on Self-Referrals," American Medical News 17 (March 1989).

[78] American Medical Association, Current Opinions of the Judicial Council of the American Medical Association—1982 (Chicago: American Medical Association, 1982), ix.

[79] Ibid., sec. 6.10.

[80] Ibid., sec. 8.07.

[81] M. Siegler, "A Right to Health Care: Ambiguity, Professional Responsibility, and Patient Liberty," Journal of Philosophy and Medicine 4 (1979): 148-157.

[82] The reaction of many physicians has been to embrace the liberal state wholeheartedly and to assert a libertarian ethic for patient care. First and foremost physicians assert the importance of their rights. Some observers, such as W. Ruddick, assert these rights in an effort to help return to the isolated doctor-patient relationship of the past. He argues that the advocacy of such rights can reestablish the mutual trust between patients and physicians. W. Ruddick, "Doctors' Rights and Work," Journal of Medicine and Philosophy 4 (June 1979): 192-203. His choice of the concept of rights is odd in light of the fact that he advocates a duty-based relationship, but this merely demonstrates the manner in which rights language can cause confusion.

[83] R. Sade, "Medical Care as a Right: A Refutation," New England Journal of Medicine 285 (1976): 1288-1292.

[84] R. Sade, "Is Health Care a Right?," Image 7 (1977): 11.

[85] Ibid., 13.

[86] Ibid., 15.

[87] Sade, "Medical Care as a Right," 1289.

[88] Ibid., 1290.

[89] G. Annas, "The Patient Rights Advocate: Why and What and Who: A Joint Discussion Paper," presented at the Boston College Law School, April 1973, 10.

[90] G. Outka, "Social Justice and Equal Access to Health Care," Perspectives in Biology and Medicine 18 (1975): 185-202, 194.

[91] Ibid., 194.

[92] Ibid., 194.

[93] R. Masters, "Is Contract an Adequate Basis for Medical Ethics?" Hastings Center Report 5 (1975): 24-28.

Chapter 4: Just Doctoring: Medical Ethics for the 1990s

[1] Dr. Thomas Duffy has used certain psychoanalytic insights to characterize this change in attitude. Duffy is a hematologist-oncologist and cares for many patients with life-threatening diseases. See Thomas Duffy, "Agamemnon's Fate and the Medical Profession," Western New England Law Review 9 (1987): 21-31.

[2] Michael D. Bayles, Professional Ethics (Belmont, Calif.: Wadsworth Publishing Co., 1981), 11-12.

[3] Robert M. Veatch, A Theory of Medical Ethics (New York: Basic Books, 1987), chapter 4.

[4] See Bayles, "Professional Ethics," 7-13.

[5] See Eliot Friedson, Professional Powers: A Study of the Institutionalization of Formal Knowledge (Chicago: University of Chicago Press, 1988), 110.

[6] In this regard I am in agreement with Veatch. See Veatch, A Theory of Medical Ethics, chapter 4.

[7] See T. A. Brennan, "Ensuring Access to Health Care for All: The Problem of AIDS as an Occupational Disease," Duke Law Journal (1988): 247-283.

[8] M. Abrams and P. Volberding, "Clinical Care and Research in AIDS," Hastings Center Report 15 (1985): 16-18.

[9] See John Rawls, "The Domain of the Political and Overlapping Consensus," New York University Law Review 64 (May 1989): 233-255.

[10] M. Sandel, Liberalism and the Limits of Justice (New York: Cambridge University Press, 1982), 1.

[11] Ibid., 6.

[12] Ibid., 11.

[13] Ibid., 17.

[14] Ibid., 61.

[15] Ibid., 145.

[16] A. Gutman, "Communitarian Critics of Liberalism," Philosophy and Public Affairs 14 (1985): 308-322.

[17] Ibid., 310.

[18] Ibid., 312.

[19] Michael Walzer, Spheres of Justice (New York: Basic Books, 1983).

[20] Ibid., 89.

[21] Veatch, A Theory of Medical Ethics, 149.

[22] Ibid., 87.

[23] Edmund D. Pellegrino and David C. Thomasma, For the Patient's Good (New York: Oxford University Press, 1988).

[24] Ibid., 27.

[25] Ibid., chapter 5.

[26] Jay Katz, The Silent World of Doctors and Patients (New York: Free Press, 1984).

[27] Tom L. Beauchamp and Ruth Faden, A History and Theory of Informed Consent (New York: Oxford University Press, 1986).

[28] Katz, The Silent World of Doctors and Patients, 119.

[29] Ibid., 175.

[30] Ibid., 198.

[31] Pellegrino and Thomasma, For the Patient's Good, 101.

[32] Pellegrino and Thomasma distinguish between the covenant models of Ramsey, May, and Veatch. Their discussion here is quite insightful. Pellegrino and Thomasma, For the Patient's Good, 104.

[33] Ibid., 114.

[34] Ibid., 64.

[35] Veatch, A Theory of Medical Ethics, 285.

Chapter 5: Informed Consent

[1] Some have argued that informed consent suits push the Szasz-Hollender model of informed consent toward mutual participation. In this essay, we will regard mutual participation as the relationship of buyer to seller, both bearing rights that define their liberties. We will not refer to mutual participation as Ramsey-like teamwork between two ends in themselves.

[2] See chapters 1 and 2. This focus helps us to avoid those criticisms of analyses of informed consent that center on the lack of empirical data showing that patients want more information.

[3] See Alan Donagan, "Informed Consent in Theory and Experimentation," Journal of Philosophy and Medicine 2 (1977): 307-327.

[4] Many cases define the limits of informed consent when emergency treatment is necessary. In this situation and in others, the liberal notion of individual liberty, is more complicated and efforts to maintain autonomy more difficult to characterize. As we have seen, Mill was willing to allow such infringements on liberty, in order to prevent harm. These kinds of cases can be separated in a nonarbitrary fashion from the normal doctor-patient relationship, and so need not confuse the following analysis.

[5] It is true that the plaintiff's attorney normally decides what theory of law to bring to a suit. Most attorneys in the past, however, would bring both battery and negligence claims. As we shall see, the ascendance of the latter is due to increasingly favorable judicial decisions on its behalf.

[6] See Slater v. Boken, 95 Eng. Rep. 860 (K.B. 1707). In this case the court held that trespass would occur if an unauthorized surgical procedure took place.

[7] William L. Prosser, Handbook of the Law of Torts, 4th ed. (St. Paul, Minn.: West Publication Co., 1971), 102-106.

[8] Fowler V. Harper and Fleming James, The Law of Tort, 4th ed. (Boston: Little, Brown, 1956), 213.

[9] Jay Katz, "Informed Consent—A Fairy Tale?" University of Pittsburgh Law Review 39 (1977): 137-145. See also, Marcus Plante, "An Analysis of Informed Consent," Fordham Law Review 36 (1968): 639-658.

[10] Prosser, Handbook of the Law of Torts, 165.

[11] Arnold J. Rosoff, Informed Consent: A Guide for Health Care Providers (Rockville, Md.: Aspen Systems, 1981).

[12] Marcus Plante, "The Decline of Informed Consent," Washington & Lee Law Review 35 (1978): 92-133. Compare, A. Meisel, "Exceptions to Informed Consent Doctrine: Striking a Balance Between Competing Issues in Medical Decision-Making," Wisconsin Law Review (1979): 413. (Meisel sees informed consent as reconciliation with individualism in medicine.)

[13] Pratt v. Davis, 118 Ill. App. 161, 79 N.E. 562 (1905).

[14] The details here are quite grisly. It appears that after a minor operation, the patient returned to Pratt's sanatorium. The court notes that "counsel for appellee assert in their brief that she was chloroformed in her bed without her knowledge," and then operated on. Pratt was using the wondering "hyster" theory of epilepsy when he operated—a theory that had long since lost legitimacy, Pratt v. Davis, 118 Ill. App. 165, 79 N.E. 562 (1905).

[15] Pratt v. Davis, 118 Ill. App. 162, 79 N.E. 562 (1905).

[16] Ibid., 162.

[17] Mohr v. Williams, 95 Minn. 261, 104 N.W. 12 (1905).

[18] Ibid., 262.

[19] Ibid., 263.

[20] Schloendorff v. New York Hospital, 211 N.Y. 125, 105 N.E. 92 (1914).

[21] Ibid., 126.

[22] See chapter 3.

[23] Bennan v. Parsonnet, 83 N.J.L. 20, 83 A. 948 (1912).

[24] Ibid., 22.

[25] Ibid., 24.

[26] The court in Bennan v. Parsonnet thus accepts that trust and duty-bound behavior, the tenets of medical ethics, legitimate the doctor's authority in the doctor-patient relationship. (See chapter 3.)

[27] Hunt v. Bradshaw, 242 N.C. 517 88 S.E. 2d 762 (1955).

[28] Ibid., 766.

[29] This is not to say that the plaintiff lost every consent suit that sounded in negligence. In Borg v. Charles T. Miller Hospital, 251 Minn. 427, 88 N.W. 2d 186 (1958), the court ruled that the plaintiff deserved a new trial on the grounds that the physicians acted negligently in failing to advise Borg that his spermatic cords would be cut in a prostatectomy. Nonetheless, Hunt v. Bradshaw appears to be representative of pre-Salgo informed consent suits.

[30] Salgo v. Leland Stanford University Board of Trustees, 154 Cal. App. 2d 56, 317 P. 2d 170 (1957).

[31] Ibid., 180-181.

[32] Ibid., 180-181.

[33] Ibid., 180-181. In this passage, Judge Bray closely followed the amicus curiae brief submitted by the American College of Surgeons. The amalgamation of positions he incorporates into his informed consent proposition is apparent in his cited cases: Hunt v. Bradshaw, (deference to physicians) and Schloendorff v. Society of New York Hospital, (strict battery standard).

[34] Katz, "Informed Consent: A Fairy Tale," 152.

[35] Natanson v. Kline, 186 Kan. 393, 350 P. 2d 1093 (1960).

[36] 350 P. 2d, 1097. Schroeder cites, with approval, the case of Borg v. Charles T. Miller Hospital.

[37] Ibid., 1103.

[38] Ibid., 1104.

[39] Ibid., 1105.

[40] Ibid., 1105.

[41] Katz, "Informed Consent: A Fairy Tale," 150.

[42] Shetter v. Rochelle, 490 P. 2d 74, 78 (1966).

[43] Ibid., 78.

[44] Mason v. Ellsworth, 3 Wash. App. 298, 474 P. 2d 909 (1970).

[45] Katz, "Informed Consent: A Fairy Tale," 154. Another barrier to patient's recovery, in an informed consent action is the issue of causation. The negligence standard not only emphasizes the importance of expert testimony, but it also demands that a patient demonstrate that the failure to inform was the proximate cause of the injury. In other words, the plaintiff must be able to demonstrate that she would not have consented had she been informed fully about the procedure. This requirement led Justice Abe, in stinging dissent to the decision of Nishi v.Hartwell, to state that if "all cases under the doctrine of informed consent shall be tried under the negligence theory, it may amount to nullification of all such claims because it may be almost impossible, if not absolutely impossible in many cases, to prove damages under the generally recognized rule of proximate cause." Nishi v. Hartwell, 52 Hawaii 188, 473 P.2d 116 (1970). Justice Abe's dissent relies heavily on an article by Marcus L. Plante entitled, "An Analysis of informed Consent," Fordham Law Review 36 (1968): 639-658.

In any case, courts continued to employ the negligence standard backed by medical testimony on the extent of a physician's duty. Physicians' autonomy remained unchallenged by the judiciary. A classic example of post- Natanson reasoning is found in Dow v. Kaiser Foundation, 90 Cal. Rptr. 747 (1970). The court states that "in order for a patient to vitiate his voluntary consent to treatment on the basis that the doctor breached his duty of disclosure, it was proved the doctor willfully and without good medical reason, withheld material information." Another innovation is that the patient has a duty to ask for information. See Russel v. Horwick, 116 So. 2d 904 (1964). See also Scott v. Bradford, 606 P. 2d 554 (1979).

It is notable that the negligence standard, which requires the plaintiff to demonstrate that the defendant had a duty to inform, and that the damage was a consequence of the breach of that duty, is a much more complex standard than the battery standard. The latter requires only proof of unconsented touching.

[46] Canterbury v. Spence 150 App. D.C. 263, 464 F. 2d 772 (D.C. Cir. 1972), cert. denied, Spence v. Canterbury, 409 U.S. 1064, 34 L. Ed. 2d 518 (1972).

[47] Ibid., Canterbury v. Spence, 464 F. 2d 772, 778.

[48] Ibid., 784.

[49] Ibid., 786.

[50] Ibid., 785.

[51] Ibid., 786. Judge Robinson recognized that introducing medical expert testimony and therapeutic privilege defenses are procedurally equivalent. See Katz, "Informed Consent: A Fairy Tale," 156.

[52] Canterbury v. Spence 464 F. 2d, 787. Judge Robinson argued that it is primarily up to the physician to determine whether a patient is reasonable or not. "Indeed with knowledge of, or ability to learn, his patient's background and current condition, he is in a position superior to that of most others— attorneys, for example—who are called upon to make judgment on pain of liability in damages for an unreasonable miscalculation." 464 F. 2d, 787.

[53] There is some question whether the facts of Canterbury v. Spence will stand up to the radical explanation offered here. Was Canterbury victimized by the medical profession? It seems that a case can be made that he was. Dr. Spence's cursory explanation of the operation to the plaintiff and his mother was probably in line with standard procedure, but certainly reflected the dehumanization of the patient in medical institutions as well as a disrespect for Canterbury's right to self-determination. Yet, Canterbury lost. Walter Murphy, the defendant's lawyer, cited two reasons for the jury verdict: (1) Canterbury submitted to another laminectomy four years later; and (2) jurors would not want their physicians to detail all the horrors of an operation.

[54] Haven v. Randolph, 342 F. Supp. 538 (D.Ct. D.C. 1972).

[55] Ibid., 539.

[56] Haven v. Randolph, 161 App. D.C. 150, 494 F. 2d 1069 (D.C. Cir. 1974).

[57] Henderson v. Milowsky, 193 App. D.C. 269, 595 F. 2d 654 (D.C. Cir. 1978).

[58] Cobbs v. Grant, 8 Cal. 3d 229, 104 Cal. Rptr. 505, 502 P. 2d 1 (1972).

[59] Ibid., 10.

[60] Ibid., 9. Justice Mosk cites Note, "Physician and Surgery," Harvard Law Review, 75 (1962): 1445-1465 (an early work that discussed many of the same subjects presented here). See also, Donald G. Hagman, "The Medical Patient's Right to Know," University of California at Los Angeles Law Review 17 (1971): 758.

[61] Cobbs v. Grant, 502.

[62] Ibid., 502.

[63] See, for example, Archen v. Galbraith, 18 Wash. App. 369, 567 P. 2d 1155 (1977), in which the doctor failed to tell the patient of various alternatives to surgery in thyroid cancer treatment.

[64] Hernandez v. Smith, 552 F. 2d 142 (5th Cir. 1977) (the hospital and staff failed to warn a pregnant woman that the hospital did not have facilities for Caesarian sections).

[65] Bly v. Rhoades, 216 Va. 645, 222 S.E.2d 783 (1976); see also Wooley v. Henderson, 418 A.2d 1123 (1980), in which a reasonable medical practitioner is the best standard. See also, David E. Seidelson, "Medical Malpractice in Full Disclosure Jurisdictions," Duquense Law Review, 14 (1976): 309-362.

[66] See A. D. Twerski and N. B. Cohen, "Informed Decision-Making and the Law of Torts: The Myth of Justiciable Causation," University of Illinois Law Review (1988): 607-655.

[67] A. Meisel and A. Kabnick, "Informed Consent to Medical Treatment: An Analysis of Recent Legislation," University of Pittsburgh Law Review 41 (1980): 420-462.

[68] Harnish v. Children's Hospital, 387 Mass. 152, 439 N.E.2d 240 (Mass. 1982).

[69] See A. Meisel, "A Dignitary Tort as a Bridge between the Idea of Informed Consent and the Law of Informed Consent," Law, Medicine & Health Care 16 (1988): 210-218.

[70] D. H. Novack, et al., "Physicians' Attitudes Toward Using Deception to Resolve Difficult Ethical Problems," JAMA 261 (1989): 2980-2985.

[71] See S. E. Bedell, "Choices about Cardiopulmonary Resuscitation in the Hospital. When do Physicians Talk with Patients?" New England Journal of Medicine 310 (1984): 1089-1093.

[72] Trogan v. Fruchtman, 58 Wisc.2d 596, 207 N.W.2d 297 (1973).

[73] Ibid., 299.

[74] Ibid., 299.

[75] J. E. Wennberg, "Dealing with Medical Practice Variations: A Proposal for Action," Health Affairs 3 (1984): 6-32.

[76] B. A. Barnes, J. E. Wennberg, and M. Zubkoff, "Professional Uncertainty and the Problem of Supplier-Induced Demand," Social Science and Medicine 16 (1982): 811-824.

[77] D. Hanley, et al., "An Assessment of Prostatectomy for Benign Urinary Tract Obstruction," JAMA 259 (1988): 3027-3030.

[78] Hanley, et al., "An Assessment of Prostatectomy," 3029.

[79] See Wennberg, "Dealing with Medical Practice Variations," 32.

[80] M. R. Chassin, et al., "The Use and Misuse of Upper Gastrointestinal Endoscopy," Annals of Internal Medicine 109 (1988): 664-670.

[81] J. F. Morrissey, "The Problem of the Inappropriate Endoscopy," Annals of Internal Medicine 109 (1988): 605-606.

Chapter 6: Physicians and Quality of Medical Care

[1] This is, of course, only one of several possible explanations for the increase of medical injury litigation. See P. Weiler and T. Brennan, "The Harvard Medical Practice Study" (forthcoming, 1991).

[2] L. Wyszewianski, "Quality of Care: Past Achievements and Future Challenges," Inquiry 25 (1988): 13-22.

[3] R. I. Lee and L. W. Jones, The Fundamentals of Good Medical Care (Chicago: University of Chicago Press, 1933).

[4] A. Donabedian, "Twenty Years of Research on the Quality of Medical Care, 1965-1984," Evaluation and the Health Professions 8 (1985): 243-265.

[5] See L. Wyszewianski, "Quality of Care," 15.

[6] Charles E. Rosenberg, The Care of Strangers (New York: Basic Books, 1987).

[7] J. F. Horty and D. M. Mulholland, "The Legal Status of the Hospital Medical Staff," St. Louis University Law Journal 22 (1978): 485-500.

[8] Timothy J. Jost, "Private Regulation of Health Care," Boston College Law Review 24 (1983): 835-900.

[9] Ibid., 851.

[10]      See Modaber v. Culpepper Memorial Hospital, 674 F.2d 1023 (1982).

[11] 42 U.S.C. Sec. 1395 et seq. (1976).

[12] Charles L. Bosk, Forgive and Remember (Chicago: University of Chicago Press, 1979).

[13] California Medical Association, Report of the Medical Insurance Feasibility Study (San Francisco: Sutter Publishing, 1977).

[14] See K. Steel, P. M. Gertman, C. Crecenzi, and J. Anderson, "Iatrogenic Illness on A General Medical Service at a University Hospital," New England Journal of Medicine 304 (1981): 638-642; N. P. Couch, N. L. Tilney, A. A. Rayner, F. D. Moore, "The High Cost of Low-Frequency Events: The Anatomy and Economics of Surgical Mishaps," New England Journal of Medicine 304 (1981): 634-637.

[15] Oliver Wendell Holmes, The Common Law (Boston: Little, Brown and Co., 1881).

[16] Guido Calabresi, The Costs of Accidents: A Legal and Economic Analysis (New Haven: Yale University Press, 1970). See also, Richard A. Posner, Economic Analysis of Law, 2d ed. (Boston: Little, Brown and Co., 1987).

[17] George Priest, "Understanding the Liability Crisis," in New Directions in Liability Law, Proceedings of the Academy of Political Science, ed. W. Olsen (New York: Academy of Political Science, 1987), 196-211.

[18] George Priest, "The Invention of Enterprise Liability: A Critical History of the Intellectual Foundations of Modern Tort Law," Journal of Legal Studies 14 (1985): 461-527. Priest's is not the only theory. Others have focused on American risk adversity and its sometimes absurd results. See Peter Huber, Liability: The Legal Revolution and its Consequences (New York: Basic Books, 1988).

[19] See Henningsen v. Bloomfield Motors Inc., 32 N.J. 358, 161 A.2d 69 (1960); Greenman v. Yuba Power Products, Inc., 59 Cal. 2d 57, 377 P. 2d 897, 27 Cal. Rptr. 697 (1963).

[20] See generally, Friedrich Kessler, "Contracts of Adhesion—Some Thoughts about Freedom of Contract," Columbia Law Review 43 (1943): 629-652; Friedrich Kessler, "Some Reflections on Types of Thinking about Law and Justice," Tulane Law Review 19 (1944): 32-62.

[21] There is little doubt that malpractice litigation has increased over the past quarter century. Weiler has mustered much of the evidence regarding this increase. See Paul Weiler, Legal Policy for Medical Injuries: The Evidence, the Issues and the Options (Philadelphia: American Law Institute, 1988). He notes that the costs for medical liability insurance have risen from $60 million in 1960 to $7 billion in 1989, an increase that far outstrips the rise in medical care costs or the consumer price index. He also notes that the frequency and the severity (the amount of damages) of suits have risen. The usual measure of the frequency of malpractice litigation is the number of claims per physicians per year. This fraction was around one per 100 physicians annually in 1960, and had risen to eighteen per 100 physicians in 1985. Some subspecialties such as neurosurgery and obstetrics were as high as 50 per 100 physicians per year in selected geographic areas.

With regard to severity, the average jury verdict in malpractice litigation in San Francisco and Chicago increased from $50,000-100,000 in the mid-1960s, to $400,000-600,000 in the mid-1970s, to $1,200,000 in the early 1980s. Settlements of cases out of court increased in a similar manner. In New York and Florida in the mid-1980s, the average settlement was over $100,000.

These increases in severity and frequency of suits fueled the increase in premiums of malpractice insurance. This concern over rising premium costs led both doctors and insurers to assert there was a tort crisis. It is notable that there appear to have been two malpractice tort crises, one in the mid-1970s and the other in the mid- to late-1980s. Both abated when the number and severity of suits dropped off, and premiums came down as a result of cycles in the insurance underwriting business. Kenneth Abraham, Distributing Risk (New Haven: Yale University Press, 1986).

[22] 25 Cal. 2d 486, 154 P. 2d 687 (1944).

[23] Ibid., 488.

[24] See Warren A. Seavy, "Res Ipsa Loquitur: Tabula in Naufragio," Harvard Law Review 63 (1950): 643-667.

[25] 62 Cal. 2d 154, 41 Cal. Rptr. 577, 397 P. 2d 161 (1966).

[26] Indeed, the decision of the majority prompted Justice Tobriner to assert that it was wrong to rely on notions of negligence if patients were to be compensated.

[27] Throughout I have distinguished informed consent cases from malpractice cases.

[28] 519 P. 2d 981 (Washington 1974).

[29] It appears that many ophthalmologists do test for glaucoma in patients under forty years of age. See Jerry Wiley, "The Impact of Judicial Decisions on Professional Conduct: An Empirical Study," Southern California Law Review 55 (1981): 345-382.

[30] 354 Mass. 102, 235 N.E. 2d 793 (1968).

[31] See Allan H. McCoid, "The Care Required of Medical Practitioners," Vanderbilt Law Review 12 (1961): 549-567. See also King v. Williams, 270 S.E.2d 618 (1981).

[32] Darling v. Charleston Memorial Hospital, 33 Ill. 2nd 326, 211 N.E. 2d 253 (1965), cert. denied, 383 U.S. 946 (1966).

[33] See Jackson v. Power, 743 P. 2d 1376 (1987). Diane M. Janulis and Alan D. Hornstein, "Damned If You Do, Damned If You Don't: Hospital Liability for Physician's Malpractice," Nebraska Law Review 64 (1985): 689-720.

[34] See Peter A. Bell, "Legislative Intrusion into the Common Law of Medical Malpractice: Thoughts About the Deterrent Effect of Tort Liability," Syracuse Law Review 35 (1984): 939-982.

[35] See D. Dewees, P. Coyte, and M. Trebilcock, Canadian Medical Malpractice Liability: An Empirical Analysis of Recent Trends (Toronto: University of Toronto, 1989); C. Ham, R. Dingwall, P. Fenn, and D. Harris, Medical Negligence: Compensation and Accountability (Oxford: Center for Sociolegal Studies, 1988), 7-12.

[36] This is not to say that all tort reform is intended to overcome frivolous litigation. Some of it is intended to limit what would be valid tort claims, usually because litigation has curbed socially desirable activities. For instance, the Price-Anderson Act restricts nuclear energy plant liability so as to encourage this source of energy generation.

[37] See, for example, R. H. Palmer and M. C. Reilly, "Individual and Institutional Variables Which May Serve as Indicators of Quality of Medical Care," Medical Care 17 (1979): 693-717; A. Donabedian, Explorations in Quality Assessment and Monitoring, Vol. I: The Definition of Quality and Approaches to Its Assessment (Ann Arbor: Health Administration Press, 1980).

[38] K. B. Johnson, "Beyond Tort Reform," JAMA 257 (1987): 827-828.

[39] American Medical Profession, Professional Liability in the 1980s (Chicago: American Medical Association, 1986).

[40] Harvard Medical Practice Study, Patients, Lawyers and Doctors (Boston: Harvard Medical School, 1990), chap. 9.

[41] See Otis R. Bowen, "Congressional Testimony on Senate Bill S-1804," JAMA 257 (1987): 813-819.

[42] L. R. Tancredi and J. A. Barondess, "The Problem of Defensive Medicine," Science 200 (1978): 879-882.

[43] R. Reynolds, J. A. Rizzo, and M. L. Gonzalez, "The Cost of Medical Professional Liability," JAMA 257 (1987): 2776-2781.

[44] See Johnson, "Beyond Tort Reform," 828. Moreover, given the customary practice standard of liability, there are pressures for physicians to follow the most expensive processes in treatment, leading to huge "defensive medicine" costs.

[45] Nathan Hershey, "The Defensive Practice of Medicine," Milbank Memorial Fund Quarterly 50 (1972): 69-98.

[46] Staff of Duke Law Journal, "Defensive Medicine," Duke Law Journal 1971 (1971): 929-949.

[47] Tancredi and Barondess, "The Problem of Defensive Medicine," 879-882.

[48] S. Williams, et al., "Physicians' Perceptions about Unnecessary Diagnostic Testing," Inquiry 19 (1982): 363-370.

[49] K. K. Shy, E. B. Larson, and D. A. Luthy, "Evaluating a New Technology: the Effectiveness of Electronic Fetal Heart Rate Monitoring," Annual Review of Public Health 8 (1987): 165-190.

[50] Reynolds, Rizzo, and Gonzalez, "The Cost of Medical Professional Liability," 2779.

[51] J. E. Harris, "Defensive Medicine: It Costs, But Docs It Work?" (editorial) JAMA 257 (1987): 2801-2802.

[52] See, for example, "Report of the Special Task Force on Professional Liability and Insurance and the Advisory Panel on Professional Liability," JAMA 257 (1987): 810-820.

[53] Throughout this discussion I am heavily dependent on Randall Bovbjerg, "Legislation on Medical Malpractice: Further Developments and a Preliminary, Report Card," University of California Davis Law Review 22 (1989): 499-556.

[54] See Ind. Code Ann. Sec. 16-9. 5-5-1 (West, 1984).

[55] See Patricia Danzon, "The Frequency and Severity of Medical Malpractice Claims: New Evidence," Law and Contemporary Problems 49 (1986): 57-79.

[56] See John F. Fleming, "The Collateral Source Rule and Loss Allocation in Tort Law," California Law Review 54 (1966): 1459-1478.

[57] See Jones v. State Board of Medicine, 555 P.2d 399 (Idaho, 1976).

[58] Mich. Comp. Laws Ann. Sec 600. 2912 (a) (1985).

[59] See, for example, Ralph Nader, "The Assault on Injured Victims' Rights," Denver University Law Review 64 (1988): 625-640.

[60] David R. Smith, "Battling a Receding Tort Frontier: Constitutional Attacks on Medical Malpractice Laws," Oklahoma Law Review 38 (1985): 195-242.

[61] See, for example, Boyd v. Bulala, 647 F. Supp. 781 (W.D. Va, 1986).

[62] See Justice William J. Brennan, "The Bill of Rights and the States: The Revival of State Constitutions as Guardians of Individual Rights," New York University Law Review 61 (1986): 535-558.

[63] Weiler, "Legal Policy," 65.

[64] H. H. Hiatt, B. A. Barnes, T. A. Brennan, et al., "A Study of Medical Injury and Medical Malpractice: An Overview," New England Journal of Medicine 321 (1989): 480-484.

[65] See W. J. Curran, "Medical Peer Review of Physician Competence and Performance: Legal Immunity and the Antitrust Laws," New England Journal of Medicine 316 (1987): 597-598.

[66] See Note, "Discovery of Peer Review Records," University of Missouri at Kansas City Law Review 53 (1985): 663-689; C. F. Goldberg, "The Peer Review Privilege: A Law in Search of a Valid Policy," American Journal of Law and Medicine 10 (1984): 151-192. Defamation is considered to be a growth industry in tort law. See A. C. Blakley, "Employer-Employee Relations: Employment Torts Come of Age: Increasing Risks of Liability for Employers and Their Insurers," Tort and Insurance Law Journal 24 (2) (1989): 268-282.

[67] Throughout this discussion I am very dependent on an unpublished paper written by Laura Keidan, Harvard Law School 1989, entitled "Physician Discipline: Cure for the Malpractice Crisis?" (on file with author).

[68] See generally, R. J. Feinstein, "The Ethics of Professional Regulation," New England Journal of Medicine 312 (1985): 801-804.

[69] 42 U.S.C.A. 11101-11152 (West Supp. 1988).

[70] Keidan, "Physician Discipline."

[71] Florida Stat. 458.307 (West Supp. 1988); California Business and Professional Code 2001 (West Supp. 1989); New York Public Health Law 230(1) (McKinney Supp. 1989); Texas Review Civ. Stat. Ann. art 4495b et seq.

[72] K. N. Lohr, K. D. Lordy, and S. O. Thier, "Current Issues in the Quality of Care," Health Affairs 7 (1988): 5-18.

[73] See Office of Technology Assessment, The Quality of Medical Care (Washington: United States Government Printing Office, June 1988).

[74] J. H. Eichorn, J. B. Cooper, D. J. Cullen, et al., "Standards for Patient Monitoring During Anesthesia at Harvard Medical School," JAMA 256 (1986): 1017-1020.

[75] Personal Communication with James Holzer, Vice President, Harvard University Risk Management Foundation, July 10, 1989.

[76] See Troyen Brennan, "Practice Guidelines and Malpractice: Collision or Cohesion," Journal of Health Politics, Policy and Law (forthcoming, 1991).

[77] See A. F. Southwick and D. A. Slee, "Quality Assurance in Health Care; Confidentiality of Information and Immunity for Participants," Journal of Legal Medicine 5 (1984): 343-397.

[78] In our study of adverse events in New York, the Department of Health had to exercise a great deal of influence over hospitals selected for our sample in order to gain their participation. They were fearful that our research might encourage lawsuits.

[79] See P. Weiler and T. A. Brennan, "Medical Malpractice," in A Call for Action: Final Report of the Pepper Commission (Washington: Government Printing Office, 1990).

[80] D. A. Hastings, "Legal Issues Raised by Private Review Activities of Medical Peer Review Organizations," Journal of Health Politics, Policy and Law 8 (1983): 293-313.

[81] All of this raises questions about the appropriate role for physicians in quality assurance. Some believe that physicians ought to be regulated by state and local authorities through external controls. Vladeck, for example, argues that external controls, enforced through close surveillance, offer the best hope for improving the quality of care. See B. C. Vladeck, "Quality Assurance Through External Controls," Inquiry 25 (1988): 100-107. Others find such regulation, at least those nascent programs, to be burdensome and inefficacious. See K. E. Raske and D. Eisenman, "Hospitals Under the Regulatory Knife: Directions in Medical Malpractice," New York State Journal of Medicine 86 (July 1986): 356-360. They argue that medicine, as a learned profession, has a long history of self-regulation and can learn to adapt to a new environment requiring more open accountability. See J. A. Sbarbaro and E. Casper, "A Case for Independent Judgment: The Medical Society in Perspective for the 1990s," Denver University Law Review 65 (1989): 259-266.

[82] See D. M. Berwick, "Continuous Improvement as an Ideal in Health Care," New England Journal of Medicine 320 (1989): 53-56.

[83] M. Tribus, Deming's Way (Cambridge, Mass.: Massachusetts Institute of Technology Center for Advanced Engineering Study, 1985).

[84] See generally, Jules Coleman, "Moral Theories of Torts: Their Scope and Limits: Part II," Law and Philosophy 2 (1893): 5-36.

[85] An administrative system may sound farfetched to the hard-bitten among us. It is interesting to note, however, that such a system of no-fault administrative compensation exists today in both Sweden and New Zealand. In these countries, compensation for medical injuries has been split from efforts to deter substandard practice. For a discussion of Sweden's efforts with regard to medical discipline and no-fault compensation, see Marilyn M. Rosenthal, Dealing with Medical Malpractice: The British and Swedish Experience, (Durham, N.C.: Duke University Press, 1986). For an overview of New Zealand, see Walter Gellhorn, "Medical Malpractice Litigation (U.S.)— Medical Mishap Compensation (N.Z.)," Cornell Law Review 73 (1988): 170-

[212] Although there are significant differences between these two countries' approaches, I will discuss them in broad enough strokes so that I will not need to touch on those differences.

Chapter 7: The Challenge of AIDS

[1] Allan H. McCoid, "The Care Required of Medical Practitioners," Vanderbilt Law Review 12 (1959): 549-567.

[2] Arthur F. Southwick, The Law of Hospital and Health Care Administration (Ann Arbor: Health Administration Press, 1978), 97.

[3] Hammonds v. Aetna Casualty and Sur. Co., 237 F. Supp. 96, 98-9 (N.D. Ohio 1965).

[4] Payton v. Weaver, 131 Cal. App. 3d 38, 182 Cal. Rptr. 225, 229 (1982).

[5] McCulpin v. Bessmer, 241 Iowa 727, 43 N.W.2d 121 (1950); Ricks v. Budge, 91 Utah 307, 64 P.2d 208 (1937).

[6] Taunya L. Banks, "The Right to Medical Treatment," in AIDS and the Law, ed. Harlon Dalton and Scott Burris (New Haven: Yale University Press, 1986).

[7] The state of Washington has attempted to address this issue by requiring continuing medical education on HIV disease for all practitioners. This approach has been supported by primary care internists. See D. W. Northfelt, R. A. Hayward, and M. F. Shapiro, "The Acquired Immunodeficiency Syndrome is a Primary Care Disease," Annals of Internal Medicine 109 (1988): 773-775.

[8] George Annas, "Legal Risks and Responsibilities of Physicians in the AIDS Epidemic," Hastings Center Report 18 (1988): 26-32.

[9] Clark Havighurst, "The Changing Locus of Decision-making in the Health Care Sector," Journal of Health Policy, Politics and Law 11 (1986): 697-735.

[10] Manlove v. Wilmington General Hospital 174 A. 2d 135 (Del. 1961); Charles Dougherty, "The Right to Health Care: First Aid in the Emergency Room," Public Law Forum 4 (1984): 101-120; Hiser v. Randolph, 126 Ariz. 608, 617 P.2d 774 (Ct. App. 1980).

[11] . Harper v. Baptist Medical Center, 341 So. 2d 133 (Ala. 1976).

[12] A. Schiff, H. Ansell, R. Schlossen, et al., "Transfers to Public Hospitals: A Prospective Study of 467 Patients," New England Journal of Medicine 314 (1986): 552-554; H. Treiger, "Preventing Patient Dumping: Sharpening the COBRA's Teeth," New York University Law Review 61 (1987): 1186-1206.

[13] Martin Hirsch, "The Rocky Road to Effective Treatment of Human Immunodeficiency Virus (HIV) Infection," Annals of Internal Medicine 110 (1989): 1-3.

[14] P. S. Arno, ct al., "Economic and Policy Implications of Early Intervention in HIV Disease," Journal of the American Medical Association 262 (1989): 1493-1498.

[15] M. E. St. Louis, K. J. Ranch, L. R. Peterson, et al., "Seroprevalence Rates of Human Immunodeficiency Virus Infection at Sentinel Hospitals in the United States," New England Journal of Medicine 323 (1990): 213-218.

[16] J. W. Curran, et al., "Epidemiology of HIV Infection and AIDS in the United States," Science 239 (1988): 610-616.

[17] G. C. Kelen, et al., "Unrecognized Human Immunodeficiency Virus Infection in Emergency Department Patients," New England Journal of Medicine 318 (1988): 1645-1650.

[18] J. W. Jason, et al., "HTLV-III/LAV Antibody and Immune Status of Household Contacts and Sexual Partners of Persons with Hemophilia," Journal of the American Medical Association 255 (1986): 212-215; G. H. Friedland, et al., "Lack of Transmission of HTLV-II/LAV Infection to Household Contacts of Patients with AIDS or AIDS-Related Complex with Oral Candidiasis," New England Journal of Medicine 314 (1986): 344-349.

[19] Update, "Human Immunodeficiency Virus Infections in Health Care Workers Exposed to Blood of Infected Patients," MMWR 36 (1987): 285-289.

[20] J. L. Baker, et al., "Unsuspected Human lmmunodeficiency Virus in Critically Ill Patients," JAMA 257 (1987): 2609-2611.

[21] T. Barker, "Physician Sues Johns Hopkins after Contracting AIDS," American Medical News, June 19, 1987, 20; T. Brennan, "The Acquired Immunodeficiency Syndrome as an Occupational Disease," Annals of Internal Medicine 107 (1987): 581-583.

[22] Prego v. City of New York, 141 Misc. 2d 709 (NY Sup. 1988), aff'd. 147 A.D. 2d 165 (N.Y. A.D. 2d Dept. 1989).

[23] Lynn Peterson, "AIDS: The Ethical Dilemma for Surgeons," Law, Medicine and Health Care, 17 (1989): 139-144.

[24] P. Vaught, "AIDS Clinic Being Weighed by Chicago Dental Society," New York Times 21 July 1987, B-2.

[25] K. Henry, S. Campbell, B. Jackson, et al., "Long Term Follow-Up of Health Care Workers with Work-Site Exposure to Human Immunodeficiency Virus," JAMA 263 (1990): 1765-1760.

[26] J. R. Allen, "Health Care Workers and Risk of HIV Transmission," Hastings Center Report 18 (1988): 2-5. See generally, C. Becker, ed., Occupational HIV Infection: Risks and Risk Reduction (Philadelphia: Hanley & Belfus, 1989).

[27] Carol M. Mangione, Steven R. Cummings, and Julie L. Gerberding, "Occupational Exposure to HIV Infection: Prevalence and Rates of Under-Reporting of Medical Housestaff," American Journal of Medicine. In press.

[28] See Julie Gerberding, et al., "Risk of Transmitting the Human Immunodeficiency Virus, Cytomegalovirus and Hepatitis B Virus to Health Care Workers Exposed to Patients with AIDS and AIDS-Related Conditions," Journal of Infectious Diseases 156 (1987): 1-8.

[29] B. Gerbert, et al., "Why Fear Persists: Health Care Professionals and AIDS," JAMA 260 (1988): 3481-3483.

[30] E. Emanuel, "Do Physicians Have an Obligation to Treat Patients with AIDS?" New England Journal of Medicine 318 (1988): 1686-1688.

[31] A. Zuger and S. H. Miles, "Physicians, AIDS and Occupational Risk: Historic Traditions and Ethical Obligations," JAMA 258 (1987): 1924-1928.

[32] J. D. Arras, "The Fragile Web of Responsibility: AIDS and the Duty to Treat," Hastings Center Report 18 (1988): 11-16.

[33] J. Reed and P. Evans, "The Deprofessionalization of Medicine: Causes, Effects and Responses," JAMA 258 (1987): 3279-3282.

[34] See R. Sade, "Medical Care as a Right: A Refutation," New England Journal of Medicine 285 (1971): 1288-1292.

[35] S. Staver, "Arizona Medical Doctors Can Refuse AIDS Patients," American Medical News (November 1987): 6.

[36] Others have sought alternative bases than beneficence for a duty to treat. See Edmund Pellegrino, "Ethical Obligations and AIDS," JAMA 258 (1987): 1957-1959.

[37] See H. W. Jaffe, et al., "The Acquired Immunodeficiency Syndrome in a Cohort of Homosexual Men. A Six Year Follow-up Study," Annals of Internal Medicine 103 (1985): 210-214.

[38] See A. M. Hardy, et al., "The Economic Impact of the First 10,000 Cases of Acquired Immunodeficiency Syndrome in the United States," JAMA 255 (1986): 209-211.

[39] See Guido Calabresi, The Costs of Accidents (New Haven: Yale University Press, 1970).

[40] Troyen A. Brennan, "Ensuring Access to Care for the Sick: The Challenge of the Acquired Immunodeficiency Syndrome as an Occupational Disease," Duke Law Journal (1988): 29-70.

[41] James Robert Chelius, Workplace Safety and Health: The Role of Workers' Compensation (Washington: American Enterprise Institute, 1977).

[42] Peter S. Barth and H. Allan Hunt, Workers' Compensation and Work-Related Illnesses and Diseases (Cambridge, Mass.: MIT Press, 1980).

[43] Kenneth Abraham, Distributing Risk (Princeton: Princeton University Press, 1986), 227.

[44] See C. E. Becker, J. E. Cone, and J. Gerberding, "Occupational Infection with Human lmmunodeficiency Virus (HIV): Risks and Risk-Reduction," Annals of Internal Medicine 110 (1989): 653-656.

[45] See Carol M. Mangione, et al., "Occupational Exposure to HIV Infection."

[46] See generally, Larry O. Gostin, "Hospitals, Health Care Professionals, and AIDS: The Right to Know the Health Status of Professionals and Patients," Maryland Law Review 48 (1989): 12-42.

[47] See J. M. Steckelberg and F. R. Cockerill, "Serologic Testing for Human Immunodeficiency Virus Antibodies," Mayo Clinic Proceedings 63 (1988): 373-380. AIDS testing usually involves use of two separate tests. There is usually a window period of up to three months after infection before the antibodies to the virus can be detected, although recent evidence suggests that some long-term carriers of the virus may test negative.

[48] See generally Milton C. Weinstein and Harvey Fineberg, Clinical Decision Analysis (Philadelphia: Saunders, 1980), 84-85.

[49] K. B. Meyers and S. G. Pauker, "Screening for HIV: Can We Afford the False Positive Rate?" New England Journal of Medicine 317 (1987): 238-241.

[50] G. D. Kelen, T. DiGiovanna, L. Bissou, et al., "Human Immunodeficiency Virus in Emergency Department Patients: Epidemiology, Clinical Presentations and Risk to Health." JAMA 262 (1989): 516-522.

[51] M. E. St. Louis, K. J. Ranch, L. R. Peterson, et al., "Seroprevalence Rates of Human Immunodeficiencies Virus Infection at Sentinel Hospitals in the United States," New England Journal of Medicine 323 (1990): 213-218.

[52] The emphasis here is on consent. One might support mandatory, testing, but still require that the patient be fully informed of all the risks of the test.

[53] D. Dyer, "Testing for HIV: The Medicolegal View," British Medical Journal 295 (1987): 871-872.

[54] Henry K. Willenbring and K. Crossley, "Human Immunodeficiency Virus Antibody Testing. A Description of Practices and Policies at U.S. Infectious Disease-Teaching Hospitals," JAMA 259 (1988): 1819-1822.

[55] Joel D. Howell, "What is the Difference Between an HIV and a CBC?" Hastings Center Report 18 (1988): 18-20.

[56] L. O. Gostin, "Hospitals, Health Care Professionals, and AIDS: TheRight to Know the Health Status of Professionals and Patients," Maryland Law Review 48 (1989): 12-54.

[57] Martin Hirsch, "The Rocky Road to Effective Treatment of Human Immunodeficiency Virus (HIV) Infection," Annals of Internal Medicine 110 (1989): 1-3.

[58] G. P. Schultz and M. Reuter, "AIDS Legislation in Missouri: An Analysis and a Proposal," Missouri Law Review 53 (1988): 599-621.

[59] Renslow Sherer, "Physicians Use of HIV Antibody Test. The Need for Consent, Counseling, Confidentiality and Caution," JAMA 259 (1988): 264-265.

[60] P. M. Marzuk, et al., "Increased Risk of Suicides in Persons with AIDS," JAMA 259 (1988): 1333-1337.

[61] M. Sherzer, "Insurance" in AIDS and the Law, ed. H. L. Dalton and S. Burris (New Haven: Yale University Press, 1987).

[62] A. S. Leonard, "AIDS in The Workplace," in AIDS and the Law, ed. Dalton and Burris.

[63] Note, "Preserving the Public Health: A Proposal to Quarantine Recalcitrant AIDS Carriers," Boston University Law Review 68 (1988): 415-470; See also E. S. Janus, "AIDS in the Law: Setting and Evaluating Threshold Standards for a Course in Public Health Intervention," William Mitchell Law Review 14 (1988): 504-573.

[64] This is not to say that in other nonliberal states, quarantine and other types of use of the police power might be acceptable. See R. Bayer and C. Helton, "Controlling AIDS in Cuba. The Logic of Quarantine," New EnglandJournal of Medicine 320 (1989): 1022-1024. The privacy rights that are based on interpretations of our Constitution are designed to maintain the individual's right to be free from governmental institution. See Griswold v. Connecticut, 381 U.S. 479 (1965).

[65] Note, "The Constitutional Implications of Mandatory Testing for Acquired Immunodeficiency Syndrome-AIDS," Emory Law Journal 37 (1988): 217-248.

[66] B. Mishu, W. Schaffner, J. M. Horan, et al., "A Surgeon with AIDS. Lack of Evidence of Transmission to Patients," JAMA 264 (1990): 467-470.

[67] Richard Knox, "Dentist Transmits HIV to Patient," Boston Globe, 29 July 1990, 16.

[68] Larry O. Gostin, "HIV Infected Physicians and the Practice of Seriously Invasive Procedures." Hastings Center Report 19 (1989): 32-39.

[69] K. B. Rothenberg and J. J. Potterat, "Strategies for Management of Sex Partners," in Sexually Transmitted Diseases, ed. K. K. Holmes, et al. (New York: McGraw-Hill International Book Company, 1984): 965-972.

[70] G. W. Rutherford and J. M. Woo, "Contact Tracing and the Control of Human Immunodeficiency Virus Infection," JAMA 259 (1988): 3609-3610.

[71] Larry O. Gostin, "Traditional Public Health Strategies," AIDS and the Law, ed. Dalton and Burris, 56.

[72] R. F. Wykoff, et al., "Contact Tracing to Identify Human Immunodeficiency Virus Infection in a Rural Community," JAMA 259 (1988): 3563-3566.

[73] P. E. Munday, et al., "Contact Tracing in Hepatitis B Infection," British Journal of Venereal Diseases 59 (1983): 314-316.

[74] T. A. Brennan, "Research Records, Litigation and Confidentiality: The Case of Research on Toxic Substances," IRB 4 (1983): 6-8.

[75] R. Winslade, "Confidentiality, of Medical Records," Journal of Legal Medicine 3 (1982): 497-533.

[76] Missouri General Statutes Sections 287. 140(5) et seq.

[77] McIntosh v. Milano 168 N.J. Super 466, 403 A.2d 500 (1979).

[78] Watts v. Cumberland County Hospital System, Inc., 330 S.E. 2d 242 (1985).

[79] Davis v. Rodman, 227 S.W. 612 (1921).

[80] 551 P.2d 334, 17 Cal. 3rd 425 (1976).

[81] Note, "Between a Rock and a Hard Place: AIDS and the Conflicting Physician's Duties of Preventing Disease Transmission and Safeguarding Confidentiality," Georgetown Law Journal 76 (1988): 169-202, fn 63.

[82] California Health and Safety Code Sec. 199.21(c) (West Supp., 1988).

[83] Massachusetts Gen. Laws, Chapter Ill, Section 70 F (1986).

[84] Anonymous, "State Health Officials Group Urges Adoption of Guarantees," AIDS Policy & Law 2 (1987): 1.

[85] See Henry T. Greely, "AIDS and the American Health Care Financing System," University of Pittsburgh Law Review 51 (1989): 73-163.

Chapter 8: Limits on Care

[1] My view stands in contrast to V. L. Willman's, "Medical Perspectives in Allocating Resources," Public Law Forum 4 (1984): 51-55.

[2] In 1950, national health expenditures were $12.7 billion, equivalent to $82 per capita. Health care expenditures were 4.4 percent of the Gross National Product (GNP). By 1970, the total expenditures rose to $74.7 billion, which amounted to $358 per capita, or 7.5 percent of the GNP. By 1982, after a flail decade of inflation in the health care market, expenditures were up to $322 billion, amounting to $1,365 per capita, or 10.5 percent of the GNP. Hospital care has constituted a significant part of the increase in health care costs. Expense per inpatient day rose from $41 per day in 1965, to $96 per day in 1972. By 1982, the inpatient day costs were $348 and rose further to $432 in 1984. See J. Phillips and D. Wineberg, "Medicare Prospective Payment: A Quiet Revolution," West Virginia Law Review 87 (1984): 27-61.

[3] Ibid., 27.

[4] M. L. Barer, R. G. Evans, and R. Labelle, "Fee Controls as Cost Controls: Tales from the Frozen North," The Milbank Memorial Quarterly 66 (1988): 1-61.

[5] See Richard Morriss Titmuss, Commitment to Welfare (London: Allen and Unwin, 1968).

[6] See M. Pauly and T. Redisch, "The Not for Profit Hospital as Physicians Cooperatives," American Economic Review 63 (1973): 87-97. See also Robert Clark, "Does the Nonprofit Form Fit the Hospital Industry?" Harvard Law Review 93 (1982): 1416-1490.

[7] See Willard Manning, et al., "Health Insurance and the Demand for Medical Care: Evidence from a Randomized Experiment," American Economic Review 77 (1987): 251-262.

[8] Lawrence Brown, "Common Sense Meets Implementation: Certificate of Need Regulation in the States," Journal of Health Politics, Policy and Law 8 (1983): 480-494.

[9] John M. Eisenberg, et al., "Substituting Diagnostic Services: New Tests Only Partially Replace Older Ones," JAMA 262 (1989): 1196-1200.

[10] T. W. Maloney and D. E. Rogers, "Medical Technology—A Different View of the Contentious Debate over Costs," New England Journal of Medicine 301 (1979): 1413-1419.

[11] See J. K. Iglehart, "Health Policy Report. Another Chance for Technology, Assessment," New England Journal of Medicine 309 (1983): 509-512.

[12] Even in these cases, as a doctor who works in emergency rooms, I find it hard to differentiate between when I am being defensive, and when I am just being cautious, or doing the best for the patient.

[13] See, for example, Robert G. Evans, "Illusions of Necessity: Evading Responsibility for Choice in Health Care," Journal of Health Politics, Policy and Law 10 (1985): 439-467.

[14] Since Medicaid was expanding so quickly, in 1972 Congress developed a capital expenditure review program for states receiving Medicare/Medicaid and other federal funds. See Brown, "Common Sense," 480. As part of this initiative, states were to set up Certificate of Need (CON) programs, designed to review the appropriateness of new capital expenditures by hospitals. See generally, D. Salkever and T. Bice, Hospital Certificate of Need Controls; Impact on Investment Cost and Use (Washington: American Enterprise Institute for Public Policy Research, 1979). In a more direct effort to constrain costs, states set hospital reimbursement rates prospectively, usually constraining the amount a hospital budget could rise on an annual basis. See C. Eby and D. Cohodes, "What Do We Know About Rate-Setting?" Journal of Health Politics, Policy and Law 10 (1985): 299-327.

[15] See Eli Ginzberg, "The Destabilization of Health Care," New England Journal of Medicine 315 (1986): 757-761.

[16] See Paul Starr, Social Transformation, 431-438.

[17] See Randall Bovbjerg, "Competition versus Regulation," Vanderbilt Law Review 34 (1981): 908-943.

[18] The administration was influenced by Enthoven's classic article on consumer's choice of health plans. See A. C. Enthoven, "Consumer-Choice Health Plan," New England Journal of Medicine 298 (1978): 709-720. Health maintenance organizations were thought to provide a great deal of procompetitive effects in any health care market. See H. Luft, S. Maerkis, and J. Trauner, "The Competitive Effects of Health-Maintenance Organizations: Another Look at the Evidence from Hawaii, Rochester and Minneapolis/St. Paul," Journal of Health Politics, Policy and Law, 10 (1986): 625-658. Since the concept of managed care promised lower costs for consumers, other more traditional insurance policies had to adapt. They did so by offering different packages of benefits and also by developing preferred provider organizations (PPOs), through which they could control the resource use of individual providers. In addition, commercial insurers made greater use of utilization review (UR), attempting to police directly health care resources.

[19] The Supreme Court aided this effort by rethinking the role of the McCarran-Ferguson Act vis-à-vis the innovative provision of health services, and by reinterpreting the role of the Employee Retirement Income Security Act (ERISA) in determining the shape of health care packages offered by employers. See generally, S. Law, "Negotiating Physician Fees," New York University Law Review 61 (1988): 1-59. In particular, Law's analysis of the decision of Union Labor Lift Insurance Company v. Pireno, 458 U.S. 119 (1981) is that the Supreme Court has decided that state regulation of insurance must be constrained owing to the value of anti-trust claims in developing a market in medical care.

[20] See David Kinzer, "The Decline and Fall of Deregulation," New England Journal of Medicine 318 (1988): 112-116. We will return to this issue in chapter 9.

[21] Social Security Amendments of 1983, Public Law No. 98-21, 97 Stat. 65. The prospective payment system was based on a classification of diagnosis known as the Diagnosis Related Groups, DRGs. This concept, which had been tested in New Jersey, provided specific reimbursement for a given DRG. Prospective payment meant that the hospital could expect only a certain amount of money for any given DRG.

[22] See J. Phillips and D. Wineberg, "Medicare Prospective Payment: A Quiet Revolution," West Virginia Law Review 87 (1984): 27-61.

[23] J. Feder, J. Hadley, and S. Zuckerman, "How Did Medicare's Prospective Payment System Affect Hospitals?" New England Journal of Medicine 317 (1987): 867-873.

[24] D. A. Dolenc and C. J. Dougherty, "DRG's: The Counterrevolution in Financing Health Care," Hastings Center Report, 15 (1985): 19-29; T. Halper, "DRG's and the Idea of the Just Price," Journal of Medicine and Philosophy 12 (1987): 155-164.

[25] A. Sager, E. Leventhal, and D. Easterling, "The Impact on Medicare's Prospective Payment System on Wisconsin Nursing Homes," JAMA 257 (1987): 1762-1766.

[26] L. M. Fleck, "DRG's: Justice and the Invisible Rationing of Health Care Resources," Journal of Medicine and Philosophy 12 (1987): 165-196.

[27] S. D. Horn and J. E. Backofen, "Ethical Issues in the Use of a Prospective Payment System: The Issue of a Severity, of Illness Adjustment," Journal of Medicine and Philosophy 12 (1987): 145-153.

[28] A. R. Dyer, "Patients, Not Costs, Come First." Hastings Center Report 16 (1986): 5-7.

[29] C. E. Begley, "Prospective Payment and Medical Ethics," Journal of Philosophy and Medicine 12 (1987): 107-122.

[30] 70 N.J. 10 (1976).

[31] E. Emanuel, "A Review of the Ethical and Legal Aspects of Terminating Medical Care," American Journal of Medicine 84 (1988): 291-301.

[32] In re Dinnerstein, 38 N.E. 2nd 134 (1978); In re Spring, 399 N.E. 2nd 493 (1979).

[33] In re Conroy, 98 N.J. 321 (1985); In re Jobes, 108 N.J. 394 (1987).

[34] On refusal of therapy, see Brophy v. New England Sinai Hospital, 398 Mass. 417 (1986); In re Peter, 108 N.J. 365 (1987).

[35] In re Waikewicz, 370 N.E.2d 417 (1977); see also W. Curran, "Law-Medicine Notes: The Saikewicz Decision," New England Journal of Medicine 298 (1978): 499-500; G. Annas, "Reconciling Quinlan and Saikewicz: Decision-making for the Terminally Ill Incompetent," Journal of Law and Medicine 4 (1979): 301-334.

[36] Charles H. Baron, "Medical Paternalism and the Rule of Law: A reply to Dr. Relman," American Journal of Law and Medicine 4 (1979): 337-365; Larry O. Gostin, "A Right to Choose Death: The Judicial Trilogy of Brophy, Bouvia and Conroy," Law, Medicine and Health Care 14 (1986): 198-202.

[37] See, for example, L. J. Schneiderman and R. G. Spragg, "Ethical Decisions in Discontinuing Mechanical Ventilation," New England Journal of Medicine 318 (1988): 984-988.

[38] T. Tomlinson and H. Brody, "Ethics and Communication in Do-Not-Resuscitate Orders," New England Journal of Medicine 318 (1988): 43-46. No Code status means that a person will not undergo cardiopulmonary resuscitation in the event of cardiac arrest. An effort to resuscitate a patient is known as a "code."

[39] L. J. Blackhall, "Must We Always Usc CPR?" New England Journal of Medicine 317 (1987): 1281-1285.

[40] Bernard Lo, et al., "Do Not Resuscitate Decision: A Prospective Study at Three Teaching Hospitals," Archives of Internal Medicine 145 (1985): 1115-1117.

[41] Troyen A. Brennan, "Ethics Committees and Decisions to Limit Care: The Experience at the Massachusetts General Hospital," JAMA 268 (1989): 803-807; Troven A. Brennan, "Incompetent Patients with Limited Care in the Absence of Family Consent: Socioeconomic and Clinical Parameters," Annals of Internal Medicine 109 (1989): 819-820.

[42] S. Braithwaite and D. C. Thomasma, "New Guidelines on Foregoing Life-sustaining Treatment in Incompetent Patients: An Anti-cruelty Policy," Annals of Internal Medicine 104 (1986): 711-715.

[43] A. S. Brett and L. B. McCullough, "When Patients Request Specific Interventions: Defining the Limits of the Physician's Obligation," New England Journal of Medicine 315 (1986): 1347-1351.

[44] B. Lo and A. R. Jonsen, "Clinical Decisions to Limit Treatment," Annals of Internal Medicine 93 (1980): 764-768.

[45] In re Westchester County Medical Center on behalf of O'Connor, 72 N.Y. 2d 517, 531 N.E. 2d 607 (1988).

[46] Cruzan v. Director, Missouri Department of Health, 58 L.W. 4916 (1990). I do not wish to advocate Missouri's approach to the Cruzan case. Indeed, I think that patient autonomy and the biological facts of the persistent vegetative state should argue for a low evidentiary threshold for patient's previous statements about heroic care. Nonetheless, I continue to fear how the substituted judgment principle may be misinterpreted by the medical profession. See Troven A. Brennan, "Silent Decisions: Limits of Consent and Care of the Terminally Ill," Law, Medicine and Health Care 1988 (16): 204-210.

[47] L. L. Emanuel and E. J. Emanuel, "The Medical Directive: A New Comprehensive Advance Care Document," JAMA 261 (1988): 3288-3293.

[48] In effect, I am drawing a distinction between an individual physician's decision to ration, and broader policy decisions to allocate resources that lead to limits on care.

[49] Eli Ginzberg, "The High Cost of Dying," Inquiry 17 (1980): 295-308; J. Lubitz and R. Prihoda, "Use and Cost of Medicare Services in the Last Two Years of Life," Health Care Financing Review 5 (1984): 117-131.

[50] A. S. Detsky, et al., "Prognosis, Survival and the Expenditure of Hospital Resources for Patients in Intensive Care Units," New England Journal of Medicine 305 (1981): 667-672.

[51] J. Henderson, M. J. Goldacre, and M. Griffith, "Hospital Care for the Elderly in the Last Year of Life," BMJ 301 (1990): 17-19.

[52] S. H. Miles, R. Cranford, and A. Schultz, "The Do Not Resuscitate Order in a Teaching Hospital," Annals of Internal Medicine 96 (1982): 660-664.

[53] Katz, The Silent World of Doctors and Patients.

[54] Stuart Younger, "Do-Not-Resuscitate Orders: No Longer Secret, but Still a Problem," Hastings Center Report 17 (1987): 24-33.

[55] Daniel Callahan, Setting Limits: Medical Goals in an Aging Society (New York: Simon and Schuster, 1987).

[56] Anne A. Scitovsky, "Medical Care in the Last Twelve Months of Life: The Relationship Between Age, Functional Status and Medical Care Expenditures," Milbank Memorial Quarterly 66 (1988): 640-659.

[57] Larry Churchill, Rationing Health Care in America: Perceptions and Principles of Justice (Notre Dame, Ind.: University of Notre Dame Press, 1987).

[58] J. F. Kilner, "Age as a Basis for Allocating Lifesaving Medical Resources: An Ethical Analysis," Journal of Health Politics, Policy and Law 13 (1988): 405-432.

[59] For example, the Uniform Anatomical Gift Act that has been adopted by many states was meant to streamline and standardize the provision of organs from those who have died. See James F. Blumstein, "Government's Role in Organ Transplantation Policy," Journal of Health Politics, Policy and Law 14 (1989): 5-40.

[60] Public Law #92-603, section 299i (1972).

[61] Peter H. Schuck, "Government Funding for Organ Transplant," Journal of Health Politics, Policy and Law 14 (1989): 169-190.

[62] Public Law #98-507 (1984).

[63] There is also funding of organ transplantation through private insurers, and especially through Blue Cross programs. Eligibility for Blue Cross funding is quite complex and will not be discussed in this book. See Richard A. Knox, "Heart Transplant, To Pay or Not To Pay," Science 209 (1980): 570-575.

[64] R. C. Fox and J. P. Swazey, The Courage to Fail: The Social View of Organ Transplant and Dialysis (Chicago: University of Chicago Press, 1974).

[65] See Robert W. Evans, "The Heart Transplant Dilemma," Issues in Science and Technology 2 (1986): 91-101.

[66] 51 Fed. Reg. 37, 164 (1986).

[67] Clark Havighurst and Nancy King, "Liver Transplantation in Massachusetts: Public Policy Making as Morality Play," Indiana Law Review 19 (1986): 955-980; R. A. Rettig, "The Politics of Organ Transplantation: A Parable of our Times," Journal of Health Politics, Policy and Law 14 (1989): 191-208.

[68] Henry J. Aaron and William B. Schwartz, The Painful Prescription: Rationing Hospital Care (Washington: The Brookings Institute, 1984), 35.

[69] As in the United States, the physician's control over such decisions may be diminishing in Great Britain. See Richard G. Lee and Frances H. Miller, "The Doctor's Changing Role in Allocating U.S. and British Medical Services." Law, Medicine and Health Care 1990 (18): 69-76.

[70] Churchill, Rationing Health Care, 122.

[71] These issues are discussed in some detail in James F. Childress, "Ethical Criteria for Procuring and Distributing Organs for Transplantation," Journal of Health Politics, Policy and Law 1989 (14): 87-113.

[72] See generally Eugene Braunwald, et al., Harrison's Principles of Internal Medicine (New York: McGraw Hill, 1987).

[73] Ralph M. Crawshaw, et al., "Oregon Health Decisions: An Experiment with Informed Community Consent," JAMA 254 (1985): 3213-3216.

[74] A. L. Otten, "Local Groups Attempt to Shape Policy on Ethics and Economics of Health Issues," Wall Street Journal 25 May 1988, 1. This model has been exported to other states.

[75] See generally chapter 5.

[76] See L. P. Welch, et al., "Cost Effectiveness of Bone Marrow Transplantation in Acute Nonlymphocytic Leukemia," New England Journal of Medicine, 321 (1989): 807-811.

[77] Several other roadblocks remain for the Oregon plan. First, they must obtain a Medicaid waiver from the Federal Health Care Financing Administration. See D. S. Lund, "HCFA Chief Unsure About Oregon's Medicaid Waiver," American Medical News, 15 June 1990, 11. Second, provisions of the Employment Retirement Income Security Act of 1974 may hamper implementation. See D. S. Lund, "Oregon Faces New Hurdle in Access Plan," American Medical News, 27 July 1990, 14.

[78] Blue Cross reimburses hospitals for costs incurred by Blue Cross subscribers. Blue Shield provides reimbursement directly to providers. Most commercial insurers provide cash directly to the insured who in turn pay the health care institutions and providers.

[79] Charles Phelps, Taxing Health Insurance: How Much is Enough? (Santa Monica: The Rand Corporation, 1983); Mark Pauly, "Taxation, Health Insurance and Market Failure," Journal of Economic Literature, 24 (1986): 629-636.

[80] 42 U.S.C. Section 1395c, 1395o (1982) Supp. III 1985.

[81] 42 U.S.C. Section 1395, 1395i, 1395o.

[82] Eleanor D. Kinney, "National Coverage Under the Medicare Program: Problems and Proposals for Change," St. Louis University Law Journal 32 (1988): 872-898.

[83] Maxwell Mehlman, "Health Care Cost Containment and Medical Technology: A Critique of Waste Theory," Case Western Reserve Law Review 36 (1986): 778-886.

[84] Judith Feder, Medicare: The Politics of Federal Hospital Insurance (Lexington, Mass.: Lexington Books, 1977).

[85] Social Security Act, Title XIX, 42 U.C.S. Section 1396 et seq. (1982 and Supp. 1985).

[86] T. Joe, J. Meltzer, and P. Yu, "Arbitrary Access to Care: The Case for Reforming Medicaid," Health Affairs, 10 (1988): 61-79.

[87] Ibid., 62.

[88] See generally, "Health Care Financing Administration," The Medicare and Medicaid Data Book (Washington: HCFA, 1983).

[89] Ibid., 7-10.

[90] Robert Blendon and Thomas Moloney, ed., New Approaches to the Medicaid Crisis (New York: Free Press, 1982).

[91] See A. Torres and A. M. Kenney, "Expanding Medicaid Coverage for Pregnant Women: Estimates of the Impact and Cost," Family Planning Perspectives 21 (1989): 19-23.

[92] Department of Health and Human Services, Better Health for Our Children: A National Strategy, Vol. III (Washington: Government Printing Office, 1983).

[93] National Study Group on State Medicaid Strategies, Restructuring Medicaid, An Agenda For Change (Washington: The Center for the Study of Social Policy, 1984).

[94] John Holahan and Joel W. Cohen, Medicaid: The Tradeoff Between Cost Containment and Access to Care (Washington: Urban Institute Press, 1986).

[95] Congress has paid significant attention to the problems of the uninsured. See in particular, Essential Health Care, Hearing Before the Committee on Labor and Human Resources, United States Senate, S.HRG.100-267 (May 1987); Congressional Research Service (CRS), Insuring the Uninsured: Options and Analysis, Special Committee on Aging of the United States Senate, Serial No. 100-0 (October 1988); Special Committee on Aging of the United States Senate, Health Insurance and the Uninsured: Background Data and Analysis, Serial No. 100-i (May 1988).

[96] CRS, 11.

[97] There are several reasons given for the increase in the population of uninsured from 1979 to 1986. The main reason is that the work force changed with the percent of nonunion employees in the work force increasing, especially in agricultural and service industries. These sectors of the economy are typically near the top in percentage of individuals uninsured. There have also been a number of demographic changes in the population. The percent of the population under eighteen is declining. These individuals were traditionally covered as dependents under their parents' plans. Economic incentives have also changed. Noncash compensation increased throughout the 1970s as high inflation and high tax rates made inflation resistant nontaxable compensation more attractive. With low inflation in the mid 1980s, and a changing tax structure reducing incentives for employees to favor noncash compensation, there is less incentive to provide insurance as a benefit at work.

There is an extensive literature on the uninsured population. See, for example, Gail Wilensky, "Filling the Gaps in Health Insurance: Impact on Competition," Health Affairs 7 (Summer 1988): 133-152; Randall Bovbjerg and Peter Kopit, "Coverage and Care for the Medically Indigent; Public and Private Options," Indiana Lava Review, 19 (1986): 857-910; A. Davis and J. Rowland, "Uninsured and Undeserved: Inequalities in Health Care in the United States," Milbank Memorial Fund Quarterly (1983): 183-205.

[98] M. E. Moyer, "Revised Look at the Number of Uninsured Americans," Health Affairs 8 (Summer 1989): 102.

[99] This is considerably less than the 37 million that were reported in earlier reports. The individuals who conduct federal surveys believe that the reasons for the change were that the health insurance questions were reordered on the most recent survey, that the questions were asked of more adults, and that additional questions were added to the survey on the coverage of children by Medicaid or by private health insurance.

[100] See generally, I. S. Falk, "Proposals for National Health Insurance in the USA: Origins and Evolution, and Some Perceptions for the Future," Milbank Memorial Fund Quarterly 55 (1977): 161-191.

[101] See R. J. Maxwell, "Financing Health Care: Lessons from Abroad," British Medical Journal 296 (1988): 1423-1426.

[102] Massachusetts has recently embarked on an experiment in this regard. See Alan Sager, "Prices of Equitable Access: The New Massachusetts Health Insurance Law," Hastings Center Report 18 (1988): 21-28.

[103] See generally, David U. Himmelstein, et al., "A National Health Program for the United States: A Physician's Proposal," New England Journal of Medicine 320 (1989): 102-108.

[104] For an illuminating discussion of the difference between business-people and academics who propose organizational changes in health care delivery, see J. B. Johnston and U. E. Reinhardt, "Addressing the Health of a Nation: Two Views," Health Affairs 8 (1989): 6-22.

[105] See James F. Blumstein, "Thinking About Government's Role in Medical Care," St. Louis University Law Journal 32 (1988): 853-873.

[106] See Charles Phelps, "Cross-Subsidies and Charge Shifting in American Hospitals," in Uncompensated Health Care: Rights and Responsibilities, ed. Frank Sloan, James Blumstein, and James F. Perrin (Baltimore: Johns Hopkins University Press, 1986).

[107] See generally Bradford H. Gray, ed., For Profit Enterprise in Health Care (Washington: National Academy Press, 1986).

[108] See Theodore R. Marmor and Rudolph Klein, "America's Health Care Dilemma Wrongly Considered," Health Matrix 4 (1986): 19-24.

[109] See Robert G. Evans, "Tension, Compression and Shear: Directions, Stresses and Outcomes of Health Care Cost Control," Journal of Health Politics, Policy and Law 15 (1990): 101-128.

Chapter 9: The Economic and Political Structure of Medical Practice

[1] See Charles E. Rosenberg, The Care of Strangers (New York: Basic Books, 1988).

[2] Internal Revenue Service Code sec. 501 C3 (1985).

[3] Robert Clark, "Does the Non-Profit Form Fit the Hospital Industry?" Harvard Law Review 93 (1981): 1416-1480.

[4] However, profit-seeking institutions can issue stocks to raise capital. See Joseph Newhouse, "Toward a Theory of Non Profit Institutions: An Economic Model of a Hospital," American Economic Review 68 (1970): 64-84.

[5] See Henry Hansmann, "The Role of Non-Profit Enterprise," Yale Law Journal 89 (1980): 835-884.

[6] Rosenberg, The Care of Strangers.

[7] See M. V. Pauly and J. Radisch, "The Not-for-Profit Hospital as a Physician's Cooperative," American Economic Review 63 (1973): 47-57.

[8] See Pauly and Radisch, "Not-for-Profit Hospital."

[9] See Clark, "The Non Profit Form."

[10] See Mark S. Freeland, et al., "Health Spending in the 1980's; Integration of Clinical Practice Management," Health Care Financing and Review 6 (Spring 1984): 1-12; HHS News (12/20/90) 1-4.

[11] See M. Roemer and N. Shain, Hospitalization under Insurance (Chicago: American Hospital Association, 1959).

[12] See Health Planning and Resources Development Act (Public Law 93-641): 1974.

[13] Lawrence D. Brown, "Common Sense Meets Implementation: Certificate of Needs Regulation in the States," Journal of Health Politics, Policy and Law 8 (1983): 480-513.

[14] C. Eby and D. Cohodes, "What Do We Know about Rate Setting?" Journal of Health Politics, Policy, and Law 10 (1985): 299-313.

[15] E. P. Melia, et al., "Competition in the Health Care Marketplace: A Beginning in California," New England Journal of Medicine 308 (1983): 778-782.

[16] Clark Havighurst, "The Changing Locus of Decision Making in the Health Care Sector," Journal of Health Politics, Policy, and Law 11 (1986): 697-728.

[17] See Eli Ginzberg, "The Destabilization of Health Care," New England Journal of Medicine 315 (1986): 749-750.

[18] Arnold Relman, "Dealing with Conflicts of Interest," New England Journal of Medicine 313 (1985): 749-750; Arnold Relman, "Practicing Medicine in the New Business Climate," New England Journal of Medicine 316 (1987): 1150.

[19] Mark V. Pauly, "Is Medical Care Different? Old Questions, New Answers," Journal of Health Politics, Policy, and Law 13 (1988): 227-237.

[20] Alain C. Enthoven, "Effective Management of Competition in the FEHDP," Health Affairs 8 (1989): 33-50.

[21] See R. Mayer and G. G. Mayer, "HMO's: Origin and Development," New England Journal of Medicine 312 (1985): 590-594.

[22] During the Depression, much larger scale models developed. In Oklahoma and in Los Angeles, physicians and employers developed prepaid group practices for the benefit of employees or members of unions. The first urban HMO was the Group Health Association of Washington, D.C., which was organized out of the Homeowners Loan Corporation.

[23] In 1942, Kaiser had approached Garfield to develop a health care program for workers at Kaiser's shipbuilding plant in the San Francisco area. This plan was to take form as the Kaiser-Permanente Health Care Program, which now has over five million members.

[24] See H. S. Luft, S. C. Maerki, and J. B. Trauner, "The Competitive Effects of Health Maintenance Organizations: Another Look at the Evidence from Hawaii, Rochester, and Minneapolis/St. Paul," Journal of Health Politics, Policy, and Law 10 (1986): 625-645.

[25] See Willard G. Manning, et al., "A Controlled Trial of a Prepaid Group Practice on Use of Services," New England Journal of Medicine 310 (1984): 1505-1510; as well as Luft, Maerki, and Trauner, "Competitive Effects of Health Maintenance Organizations."

[26] See G. P. Wilensky and L. F. Rossiter, "Patient's Self-selection in HMO's," Health Affairs 6 (1986): 66-80.

[27] See S. B. Jones, "Can Multiple Choice Be Managed to Constrain Health Care Cost," Health Affairs 8 (1989): 51-60.

[28] See R. Feldman, J. Kralewsky, and B. Dod, "Health Maintenance Organizations: Beginning or the End?" Health Services Research 24 (1989): 191-211.

[29] See H. Scovern, "Hired Help: A Physician's Experience in a For-Profit Staff Model HMO," New England Journal of Medicine 319 (1988): 787-790; see also, Arnold S. Relman, "Salaried Physicians and Economic Incentives," New England Journal of Medicine 319 (1988): 784.

[30] See A. L. Hillman, M. V. Pauly, and J. J. Kerstein, "How Do Financial Incentives Affect Physicians' Clinical Decisions and the Financial Performance of Health Maintenance Organizations?" New England Journal of Medicine 321 1989): 86-92.

[31] Relman, "Dealing with Conflicts of Interest."

[32] See J. K. Iglehart, "Second Thoughts about HMO's for Medicare Patients," New England Journal of Medicine 316 (1987): 1487-1492. Recent data suggest that HMOs for Medicaid and Medicare beneficiaries have functioned rather well. See K. M. Longwell and J. P. Hadley, "Evaluation of Medicare Competition Demonstrations," Health Care Financing Review 1989 (11): 65-80; D. A. Freund, et al., "Evaluation of Medicaid Competition Demonstrations," Health Care Financing Review 1989 (11): 81-97.

[33] See California Business and Professional Code, sec. 650 (West Supplement 1988).

[34] This terminology is somewhat unfortunate as the "referrals" often entail nothing more than a laboratory test, or further examination.

[35] 41 United States Code , sec. 1395 NN (B) (1982).

[36] 42 United States Code, sec. 132A-7A (B) (West Supplement 1988).

[37] See Mark H. Hall, "Institutional Control of Physician Behavior: Legal Barriers to Health Care Cost Containment," University of Pennsylvania Law Review 137 (1988): 431-506.

[38] See T. N. McDowell, "Physicians' Self-Referral Arrangements: Legitimate Business or Unethical Entrepreneurs," American Journal of Law and Medicine 15 (1988): 63-89.

[39] See Office of the Inspector General, Department of Health and Human Services, Financial Arrangements between Physicians and Health Care Businesses (May 1989), cited in McDowell, "Physician Self-Referral Arrangements," 69.

[40] See United States v. Greber, 760 F.2d 68 (3rd Circuit, 1985).

[41] See P. J. Feldstein, T. M. Wickizer, and J. R. C. Wheeler, "Cost Containment: The Effects of the Utilization Review Program on Health Care Use and Expenditures," New England Journal of Medicine 318 (1988): 1310-1314.

[42] Wickline v. State, 228 Cal. 661 (Cal. App. 2 Dist. 1986).

[43] See Troyen A. Brennan, "Ensuring Adequate Health Care for the Sick: The Challenge of the Acquired Immunodeficiency Syndrome as an Occupational Disease," Duke Law Journal 1 (1988): 29-70.

[44] See A. J. McClurg, "Your Money or Your Life: Interpreting the Federal Act against Patient Dumping," Wake Forest Law Review 24 (1989): 173-210.

[45] See Essential Health Care; Hearing before the Committee on Labor and Human Resources , United States Senate, S. HRG. 100-267 (May 1987); Health Insurance and the Uninsured: Background Data and Analysis, Special Committee on Aging in the United States Senate, Serial Number 100-I (May 1988).

[46] Norman Daniels, "Rights to Health Care and Distributive Justice," Journal of Philosophy of Medicine 4 (1979): 180.

[47] Gene Outka, "Social Justice and Equal Access to Health Care," Perspectives in Biology and Medicine 18 (1975): 187-197.

[48] Daniels, "Rights to Health Care," 181.

[49] P. Greene, "Health Care and Justice in Contract Theory Perspective," in Ethics and Health Policy, ed., Robert Veatch and Roy Branson (Cambridge, Mass.: Ballinger Co., 1976).

[50] Daniels, "Rights to Health Care," 185.

[51] Greene, "Health Care and Justice," 48.

[52] Kenneth Arrow, "Some Ordinalist-Utilitarian Notes on Rawls' Theory of Justice," Journal of Philosophy 70 (1973): 245-263.

[53] Outka, "Social Justice and Equal Access," 187.

[54] Greene, "Health Care and Justice," 48.

[55] The existence of right to health care does not mean that right must be constitutionally protected. Indeed, there is little evidence that the federal constitution supports a right to health care. An analysis of cases decided within the past decade (which deal with rights to welfare benefits) demonstrates this point. See Dandridge v. Williams, 397 U.S. 471 (1970); San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973); and Board of Education of the Hendrick Hudson Center School District Board of Education, Westchester County v. Rowley, 102 S.Ct. 3045 (1983).

[56] See James S. Blumstein, "Thinking about Government's Role in Medical Care," St. Louis University Law Journal 32 (1988): 853-867.

[57] See Ronald Bayer, "Ethics, Politics and Access to Health Care: A Critical Analysis of the President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research," Cardozo Law Review 6 (1984): 303-320.

[58] Indeed, while the constitutional law of our liberal state does not provide any basis for a right to health care, common law, the law as integrity, has slowly evolved a limited set of legal obligations for providing health care to the indigent. For instance, while the doctor-patient relationship has long been based on contract law, physicians have been prohibited by the common law from "abandoning" critically ill patients. Allan H. McCoid, "The Care Required of Medical Practitioners," Vanderbilt Law Review 12 (1959): 549-571; see also, Hurley v. Eddingfield, 156 Indiana 416, 59 N.E. 1058 (1901). Moreover, hospitals that offer emergency services cannot refuse to admit and treat individuals who are suffering from emergencies. Troyen A. Brennan, "Ensuring Adequate Health Care for the Sick: The Challenge of the Acquired Immunodeficiency Syndrome as an Occupational Disease," Duke Law Journal 1 (1988): 29-70.

Over the years, this common-law duty to treat emergency patients in emergency rooms has evolved and grown. In particular, courts will no longer require that there be any previous relationship between the treating physician and the patient who seeks the emergent care. See Hiser v. Randolph, 126 Arizona 608, 617 P. 2d 774 (1980). Thus the liberal state does find legal obligations for practitioners to treat persons who are emergently ill, irrespective of their ability to pay.

[59] 701 F.2d 717 (W.D. Mo. 1988).

[60] British Medical Association, Special Report on the Government's White Paper, Working for Patients (London: British Medical Association, 1989).

[61] G. Bevan, W. Holland, and N. Mays, "Working for Which Patient and at Which Cost," Lancet 1 (1989): 947-949; Editorial, T. Smith, "BMA Rejects NHS Review But... Doctors Must Develop a Coherent Alternative," British Medical Journal 298 (1989): 1405-1406.

[62] See, for example, David U. Himmelstein and S. Woolhandler, "A National Health Program for the United States: A Physician's Proposal," New England Journal of Medicine (320) 1989: 102-107; American College of Physicians, "Access to Health Care: Executive Summary and Position Paper," Annals of Internal Medicine 112 (1990): 641-662.

[63] In the following discussion, I rely heavily on the insightful writing of Robert Evans. Sources include, but are not limited to, the following: Robert G. Evans, Strained Mercy: The Economics of Canadian Health Care (Toronto: Butterworths, 1984); Robert G. Evans, "Tension, Compression and Shear: Directions, Stresses and Outcomes of Health Care Cost Control," Journal of Health Care Politics, Policy and Law 15 (1990): 101-128; M. L. Barer, Robert G. Evans, and R. J. Labelle, "Fee Controls as Cost Control: Tales from the Frozen North," Milbank Quarterly 60 (1988): 1-61; R. G. Evans, "Finding the Levers, Find the Courage: Lessons from Cost Containment in North America," Journal of Health Politics, Policy and Law 11 (1988): 585-615.

[64] Office of National Cost Estimates, "National Health Expenditures, 1988," Health Care Financing Review 11 (1990): 1-7.

[65] Although the exact size of this savings is debatable. Compare J. P. Newhouse, G. Anderson, and L. L. Roos, "Hospital Spending in the United States and Canada: A Comparison," Health Affair 7 (1988): 1-11; Robert G. Evans, "Perspectives: Canada," Health Affairs 7 (1988): 12-16.

[66] See Newhouse, et al., "Hospital Spending." The emphasis is on discernible, as these kinds of outcomes are very difficult to measure.

[67] See R. L. Kravitz, L. S. Linn, and M. F. Shapiro, "Physician Satisfaction Under the Ontario Health Insurance Plan," Medical Care 28 (1990): 502-512.

[68] A. Enthoven and R. Kronick, "A Consumer Choice Health Plan for the 1990s: Universal Health Insurance and Assistance Designed to Promote Quality and Economy (2)," New England Journal of Medicine 320 (1989): 100.

[69] A. Enthoven and R. Kronick, "A Consumer Choice Health Plan for the 1990s: Universal Health Insurance and Assistance Designed to Promote Quality and Economy (1)," New England Journal of Medicine 320 (1989): 29-37.

[70] There have been some proposals along these lines in Canada. See Evans, Strained Mercy, 344.

[71] Various states have tried to increase access by requiring employers to provide health care insurance. Massachusetts has recently followed Hawaii's lead and has enacted legislation that requires employers to provide health care insurance for workers. Those who are unemployed will have their health care funded by the state, thus creating universal access to health care within the state. See Alan Sager, "Prices of Equitable Access: The New Massachusetts Health Insurance Law," Hastings Center Report 18 (1988): 21-25. New York has recently followed suit with the Department of Health advocating a universal New York health care system under its administration. See New York State Department of Health, Universal New York Health Care: A Proposal (Albany: Department of Health, 1989).

Broad plans for coverage of the costs of health care are not restricted to state initiatives. In the past three years, Congress has developed several plans to increase access to health care. See E. Richard Brown, "Principles for a National Health Program: Framework for Analysis and Development," Milbank Memorial Fund Quarterly 66 (1988): 573-617. Senator John Chaffee has introduced a bill that would expand Medicaid to cover all citizens who are below the poverty line. Those whose incomes fall between 100 and 250 percent of the poverty line would be able to purchase Medicaid on a sliding scale basis. Senator Edward Kennedy and Representative Henry Waxman have introduced proposals similar to those passed in Massachusetts and considered in New York, requiring all employers to purchase health insurance for employees so that each employee would have at least a comprehensive benefit package. Even more comprehensive is Representative Ronald Dellum's legislation, which envisions a national health service that would be government owned and operated and would be financed by a variety of taxes. All health professionals would be salaried under this system.

An employment-based program was also embraced by the Pepper Commission. See United States Bipartisan Commission on Comprehensive Health Care, A Call for Action: Final Report (Washington: Government Printing Office, 1990).

Chapter 10: Concluding Thoughts: Trust and Antitrust

[1] As discussed by Paul Starr, and more recently by Frank D. Campion in the American Medical Association and US Health Policy Since 1940 (Chicago: Chicago Review Press, 1984).

[2] P. Areeda and D. F. Turner, Anti-trust Law: An Analysis of Anti-trust Principles and Their Application (Boston: Little, Brown and Company, 1978).

[3] Standard Oil Co. v. FTC, 340 U.S. 231, 249 (1951).

[4] Areeda and Turner, Anti-trust Law, 7.

[5] See J. G. Van Cise, W. T. Lifland, and L. T. Sorkin, Understanding the Anti-trust Laws, 9th ed. (New York: New York City Practicing Law Institute, 1986).

[6] 421 U.S. 773 (1975).

[7] See M. Holoweiko, "What Competition Can Do to Peer Review," Medical Economics 41 (19 August 1985): 122-128.

[8] See Patrick v. Burget, 800 F.2d 1498 (9th Cir., 1986).

[9] Patrick v. Burget, 108 S.Ct. 1658 (1988).

[10] See J. R. Bierig and R. M. Portman, "The Health Care Quality Improvement Act of 1986," St. Louis University Law Journal 32 (1988): 977-1014.

[11] James F. Blumstein and Frank Sloan, "Antitrust in Hospital Peer Review," Law and Contemporary Problems 51 (1988): 7-93.

[12] 745 F.2d 786 (3rd Cir., 1984).

[13] See Clark Havighurst, "Doctors and Hospitals: Antitrust Perspective on Traditional Relationships," Duke Law Journal 1 (1984): 1071-1120.