Articles
Expanding the Circle of Membership by Reconstructing the “Alien”: Lessons from Social Psychology and the “Promise Enforcement” Cases
Victor C. Romero
go to abstractThe New American Caste System: The Supreme Court and Discrimination Among Civil Rights Plaintiffs
Melissa L. Koehn
go to abstractFirst, Do No Harm: The Use of Covert Video Surveillance to Detect Munchausen Syndrome By Proxy – An Unethical Means of “Preventing” Child Abuse
Michael T. Flannery
go to abstractNote
A Call for Reform of Recent Immigration Legislation
Jason H. Ehrenberg
go to abstract
Introduction
Jury Reform at the End of the Century: Real Agreement, Real Changes
Phoebe C. Ellsworth
go to abstractArticles
The Role of “Stories” in Civil Jury Judgments
Reid Hastie
go to abstractJury Trials in the Heartland
Stephen E. Chappelear
go to abstractCreating a Seamless Transition from Jury Box to Jury Room for More Effective Decision Making
Annie King Phillips
go to abstract
The Interplay of Race and False Claims of Jury Nullification
Nancy S. Marder
go to abstractThe Rise and Fall of Affirmative Action in Jury Selection
Avern Cohn
David R. Sherwood
go to abstractJury Trial Techniques in Complex Civil Litigation
Ronald S. Longhofer
go to abstractThe Arizona Jury Reform Permitting Civil Jury Trial Discussions: The Views of Trial Participants, Judges, and Jurors
Valerie P. Hans
Paula L. Hannaford
G. Thomas Munsterman
go to abstractNote
A Commerce Clause Challenge to New York’s Tax Deduction for Investment
in Its Own Tuition Savings Program
Amy Remus Scott
go to abstract
Articles
On Recovery in Tort for Pure Economic Loss
Eileen Silverstein
go to abstractThe Constitutional Right of Poor People to Appeal Without Payment of Fees: Convergence of Due Process and Equal Protection in M.L.B. v. S.L.J.
Lloyd Anderson
go to abstractIs There an Obligation to Listen?
Leslie Gielow Jacobs
go to abstractNote
Keeping Clean Waters Clean: Making The Clean Water Act’s Antidegradation Policy Work
John A. Chilson
go to abstract
Introduction
Managed Care – The First Chapter Comes to a Close
Sallyanne PaytonArticles
Ethical Issues in Managed Care: Can the Traditional Physician-Patient Relationship be Preserved in the Era of Managed Care or Should It Be Replaced by a Group Ethic?
Dr. Eugene Grochowski
go to abstractHow NOT TO THINK About “Managed Care”
Theodore R. Marmor
Jacob S. Hacker
go to abstractThe Competitive Impact of Small Group Health Insurance Reform Laws
Mark A. Hall
go to abstractQuestioning Traditional Antitrust Presumptions: Price and Non-price Competition in Hospital Markets
Peter Hammer
go to abstractAccountable Managed Care: Should We Be Careful What We Wish For?
David Hyman
go to abstract
Establishing New Legal Doctrine in Managed Care: A Model of Judicial Response to Industrial Change
Peter Jacobson
Scott D. Pomfret
go to abstract
Managed Care Regulation: Can We Learn From Others? The Chilean Experience
Timothy Stoltzfus Jost
go to abstract
Clearing the Way for an Effective Federal-State Partnership in Health Reform
Eleanor D. Kinney
go to abstract
Playing Doctor: Corporate Medical Practice and Medical Malpractice
E. Haavi Morreim
go to abstractExit and Voice in American Healthcare
Marc A. Rodwin
go to abstract
Competing on Quality of Care: Developing a Competition Policy for Health Care Markets
Peter J. Hammer
William M. Sage
go to abstractNote
Moving Toward a Clearer Definition of Insider Trading: Why Adoption of the Possession Standard Protects Investors
Lacey S. Calhoun
Expanding the Circle of Membership by Reconstructing
the “Alien”: Lessons from Social Psychology and the “Promise
Enforcement” Cases
Victor C. Romero
Recent legal scholarship suggests that the Supreme Court’s decisions on immigrants’ rights favor conceptions of membership over personhood. Federal courts are often reluctant to recognize the personal rights claims of noncitizens because they are not members of the United States. Professor Michael Scaperlanda argues that because the courts have left the protection of noncitizens' rights in the hands of Congress and, therefore, its constituents, U.S. citizens must engage in a serious dialogue regarding membership in this polity while considering the importance of constitutional principles of personhood. This Article takes up Scaperlanda's challenge. Borrowing from recent research in social psychology, this Article contends that “We the People” can better inform our ideas of polity membership by resisting existing invidious stereotypes of the noncitizen as the “alien” and by embracing instead the notion of equal personhood. This Article also urges citizens to demand the repeal of the “court-stripping” provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. These provisions encourage the federal government to renege on promises not to deport noncitizen defendants in exchange for assistance in criminal prosecutions. Without fear of judicial review, the government is free to enter into cooperation agreements with noncitizen defendants and then breach those agreements with impunity so as to achieve its dual goals of criminal prosecution and deportation. The federal government should not be allowed to break its promises, especially when the goal of the agreement with the noncitizen is to facilitate a criminal prosecution, not to impact immigration law.
The New American Caste System: The Supreme
Court and Discrimination Among Civil Rights Plaintiffs
Melissa L. Koehn
Fifteen percent of the decisions issued by the Supreme Court during its 1996-97 Term centered around section 1983. Section 1983 provides civil rights plaintiffs with a procedural mechanism for vindicating their federally protected rights, including those enshrined in the Constitution. The Court's decisions from its 1996-97 Term reflect a continuation of the alarming trend that has permeated section 1983 for the last two decades — a movement to decrease the scope of section 1983, regardless of the impact on constitutional rights. The Supreme Court appears to be creating a hierarchy both of constitutional rights and of plaintiffs: free speech and takings claims are favored at the top of the heap, while prisoner civil rights actions and suits against police officers are disfavored at the bottom of the heap. In this Article, Professor Koehn explores the section 1983 decisions from the 1996-97 Term and concludes that they raise a troubling concern that, whether intentionally or unintentionally, the Supreme Court is creating a system in which prisoners, Indians, and persons suing police departments are not entitled to full constitutional protection.
First, Do No Harm: The Use of Covert
Video Surveillance to Detect Munchausen Syndrome by Proxy–An Unethical Means
of “Preventing” Child Abuse
Michael T. Flannery
Since it was first identified in 1977, Munchausen Syndrome by Proxy has uniquely affected the way in which the medical and legal communities deal with the issue of child abuse. Inherent in the medical response to the disease are issues of suspicion, investigation, identification, confrontation, and, of course, the health of an innocent child. Given the deceptive dynamics of the disease, however, denial and disbelief naturally overshadow every action taken by medical professionals in pursuing these issues. Fortunately, as medical knowledge about the dynamics of the disease continues to develop, medical professionals become more willing and better able to identify the disease and focus their responses on the safety of the child. The greatest problem in prosecuting Munchausen Syndrome by Proxy is that judges and juries remain unwilling to accept the reality of the disease. Consequently, in an effort to confirm medical suspicions and quell legal doubts, the medical community has resorted to covert video surveillance of the abuse while it is being perpetrated in the hospital. In this Article, Flannery argues that this response is an unnecessary and unethical, means of preventing Munchausen Syndrome by Proxy and protecting the child.
A Call For Reform of Recent Immigration
Legislation
Jason H. Ehrenberg
The Antiterrorism and Effective Death Penalty Act of 1996 and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 dramatically limit the procedural rights of aliens who have been convicted of serious crimes. Consequently, aliens who have immigrated to the United States to escape persecution in their homelands are deported without adequate hearing or appeal. This Note argues that the laws violate international obligations and Constitutional law. It advocates amending the laws to give the Attorney General discretion over deportation decisions, eliminating retroactive application of deportation for aggravated felons, and reinstating judicial review of deportation or exclusion decisions.
Jury Reform at the End of the Century: Real Agreement, Real
Changes
Phoebe C. Ellsworth
Complaints about the jury system and calls for its reform are nothing new—they have probably existed as long as the jury system itself. Warren Burger called for the reform of the civil jury in 1971; in 1905 William Howard Taft decried the contemporary tendency “to exalt the jury’s power beyond anything which is wise or prudent . . . .” Judges complain to judges, lawyers complain to lawyers, legal academics write articles about the jury for other legal academics, social scientists report their research on juries to other social scientists, and the jurors themselves go home and express their exasperation to their families. Any of them may try to tell their stories to the public, and journalists fan the flames of discontent.
The University of Michigan Journal of Law Reform Symposium, “Jury Reform: Making Juries Work,” was unusual and particularly valuable in that it brought together these disparate students and critics—judges, lawyers, legal academics, social scientists, and even an experienced and thoughtful juror—to share their knowledge and concerns, thus managing to achieve that diversity of perspectives that many believe is one of the major advantages of the jury itself.
A second unusual and valuable feature of the Symposium was
a shift in emphasis from a concern with documenting, analyzing, and bewailing
the failures of the American jury to a concern with devising, implementing,
and testing solutions. More remarkable yet, there was a heartening convergence
in the views of participants whose intellectual backgrounds and practical experience
were very different. Although there was some disagreement about the particular
nature of the problems in the jury system and their seriousness, similar suggestions
for reform were proposed by judges, lawyers, scholars, and jurors. And many
of the reforms were not merely empty wishes; the Symposium also included preliminary
reports of attempts to implement these suggestions.
The Role of “Stories” in Civil
Jury Judgments
Reid Hastie
A brief review of psychological theories of juror decision
making is followed by an introduction to “explanation-based” theories
of judgment. Prior empirical studies of explanation-based processes in juror
decision making are then reviewed. An original empirical study of jurors’
judgments concerning liability for punitive damages is presented to illustrate
the explanation-based approach to civil decisions.
Jury Trials in the Heartland
Stephen E. Chappelear
In this Article, Stephen Chappelear draws on his study of civil jury trials in the Franklin County Court of Common Pleas in Columbus, Ohio. He concludes that trial by jury results in justice. Despite the popular belief that juries are modern day Robin Hoods, empirical data suggests that their verdicts are lower than commonly believed.
Creating a Seamless Transition from
Jury Box to Jury Room for More Effective Decision Making
Annie King Phillips
Why am I writing here? I am not a judge or lawyer, and I may never be. I don’t even play one on TV. In searching for an answer to this question, it came to mind that at sometime in everyone’s life, there is a need to enter the court system—as a victim, offender, witness, court staff or juror. The interactions among these persons impact the effective administration of justice in our court system. Every two years for the past eighteen years (like the tick of a clock), I am summoned to jury duty at either the District of Columbia Superior Court or the District Court for the District of Columbia. Both court systems use the same jury wheel. Presently only two source lists are used—voter registrations and driver license records—but a juror can serve no more frequently than every two years. I have been an active juror on six to nine trials that I remember well; these trials lasted from a few hours to about ten days. These experiences have prompted me to spend the time and energy required to reform and improve the jury system.
Until recently, very little was
known about what goes on behind the closed door of the jury room. It is in the
jury room that twelve people must come to a decision that impacts the property,
life or liberty of one or more persons. How do these twelve persons proceed?
How can the public be more confident that they make as fair a decision as possible?
Reaching a verdict should be the result of a seamless transition from the jury
box to the jury room. Several proposals are being made for reform toward that
end.
The Interplay of Race and False Claims
of Jury Nullification
Nancy S. Marder
After the verdicts in the O.J. Simpson and Stacey Koon/Laurence
Powell cases, many in the press explained the juries’ acquittals as instances
of jury nullification. However these were unlikely to have been instances of
nullification, particularly because the jurors explained that their verdicts
were based on reasonable doubt. One motivation for these false claims of jury
nullification was the homogeneity of the juries—a largely African-American
jury in the case of Simpson and a largely white jury in the case of Koon/Powell.
Nullification became the term by which press and public attempted to discredit
verdicts rendered by juries they distrusted. A false claim of nullification
could also be used, as with the Simpson case, to perpetuate racial stereotypes.
One step toward reducing false claims of nullification and their concomitant
harms is to encourage diverse juries.
The Rise and Fall of Affirmative Action
in Jury Selection
Avern Cohn
David R. Sherwood
The U.S. District Court for the
Eastern District of Michigan has historically experienced difficulty in achieving
jury compositions that truly represented the surrounding community. In response,
the Authors share their insight as to how the court instituted a “balancing”
program. By reducing the number of white names in the jury wheel, the balancing
program successfully incorporated more minorities into the jury system. The
Authors further discuss the Sixth Circuit decision, United States v.
Ovalle, which marked the end of the balancing program.
Jury Trial Techniques in Complex Civil
Litigation
Ronald S. Longhofer
Ronald Longhofer, an experienced litigator, discusses the challenges
inherent in trying a complex civil case to a jury. He explores aspects of complex
litigation that often impede jurors from effectively hearing such cases. In
conclusion, he suggests litigation techniques which have proved successful in
overcoming such obstacles and effectively translating complex evidence to jurors.
The Arizona Jury Reform Permitting Civil
Jury Trial Discussions: The Views of Trial Participants, Judges, and Jurors
Valerie P. Hans
Paula L. Hannaford
G. Thomas Munsterman
In 1995, the Arizona Supreme Court reformed the jury trial process by allowing civil jurors to discuss the evidence presented during trial prior to their formal deliberations. This Article examines and evaluates the theoretical, legal, and policy issues raised by this reform and presents the early results of a field experiment that tested the impact of trial discussions. Jurors, judges, attorneys, and litigants in civil jury trials in Arizona were questioned regarding their observations, experiences, and reactions during trial as well as what they perceived to be the benefits and drawback of juror discussions. The data revealed that the majority of judges and jurors support juror discussions during trial while attorneys and litigants are divided in their views of this reform. The study also revealed that experience with the reform appears to increase support for it. Although the impact of the reform on the jury decision making processes remains unclear, these early findings provide some insight into the effects of reforming the juror deliberation process.
A Commerce Clause Challenge to New York’s
Tax Deduction for Investment in Its Own Tuition Savings Program
Amy Remus Scott
The Internal Revenue Code provides guidelines for states to create and maintain college tuition savings programs which offer federal tax benefits to investors. Several states have enacted tuition savings plans in accordance with these guidelines. In addition to the federal tax benefits allowed, New York offers a state tax deduction to New York residents who invest in its plan, the New York College Choice Tuition Savings Program. New York does not offer the deduction, however, to residents who invest in comparable programs offered by other states. The tax deduction thus creates an incentive for residents to invest in the instate program and discriminates against interstate investment in the tuition programs offered by other states. This Note argues that the incentive created by the New York tax deduction violates the United States Constitution by discriminating against interstate commerce.
On Recovery in Tort for Pure Economic Loss
Eileen Silverstein
Pure economic loss is not considered a recoverable harm in tort law. Professor Silverstein asks, “Why not?”
The Constitutional Right of Poor People
to Appeal Without Payment of Fees: Convergence of Due Process and Equal Protection
in M.L.B. v. S.L.J.
Lloyd C. Anderson
In this Article, Professor Lloyd Anderson examines the recent decision M.L.B. v. S.L.J., in which the United States Supreme Court held that due process and equal protection converge to require that states cannot require indigent parents who seek to appeal decisions terminating their parental rights to pay court costs they cannot afford. Noting that this decision expands the constitutional right of cost-free appeal from criminal to civil cases for the first time, Professor Anderson discusses the characteristics a civil case should have in order to qualify for such a right. Professor Anderson proposes a number of other civil cases, primarily those in which a fundamental right is at stake, in which poor people should also have a constitutional right to appeal without payment of court costs.
Is There an Obligation to Listen?
Leslie Gielow Jacobs
This Article thoroughly considers the question whether the constitutional guarantee of “freedom of speech” includes an obligation to listen. It first reviews the scopes of the right to speak, the right to listen, and the right to be left alone from things other than unwanted speech, and the relevance to each of physical location. It concludes that, consistent with constitutional doctrine and the Court’s articulations, the government’s ability to protect individuals from unwanted speech should not vary according to the listener’s location. After noting that the actual protection of unwilling listeners may differ because of the different physical realities of the home as opposed to public places, this Article nevertheless proposes an ideal scope of the obligation to listen, which, when met, should allow the government to protect individually targeted listeners from unwanted speech regardless of their physical locations.
Keeping Clean Waters Clean: Making the
Clean Water Act’s Antidegradation Policy Work
John A. Chilson
This Note stresses the importance of making the Clean Water Act’s antidegradation policy work in order to avoid a system of national waters of equally mediocre quality. The Nation’s highest quality and most important waters are not receiving appropriate protection under the Act because the antidegradation policy contains vague definitions, the states fail to review water quality standards every three years and to entertain citizens’ petitions, and the Environmental Protection Agency has not taken an active role in ensuring compliance with federal standards. This Note examines the schemes of the Great Lakes States and Florida and hypothesizes that similar provisions might improve the Clean Water Act’s effectiveness by bolstering the currently stagnant federal antidegradation policy.
Ethical Issues in Managed Care: Can
the Traditional Physician-Patient Relationship Be Preserved in the Era of Managed
Care or Should it Be Replaced by a Group Ethic?
Dr. Eugene Grochowski
Over the last decade managed care has become the dominant form of health care delivery, because it has reduced the cost of health care; however, it has also created serious conflicts of interest for physicians and has threatened the integrity of the traditional physician-patient relationship. In this article, Dr. Grochowski argues that the efficiencies created by managed care are one time savings and will not in the long run reduce the rate of rise of health care expenditures without a concomitant plan to ration health care. He explores the traditional physician-patient relationship and concludes:
a.) that while rationing of health care is inevitable, physicians
must not ration care at the bedside
b.) that physicians must be advocates for their patients
c.) that physicians must avoid conflicts of interest whenever possible
d.) that physicians must put the needs of the patient before their own self-interests
e.) that physicians must act in ways to promote trust in their relationships
with patients
The Competitive Impact of Small Group Health
Insurance Reform Laws
Mark Hall
This Article reports on findings from an extensive study of small group health insurance market reforms in seven states, enacted during the early 1990s. After summarizing the content and purpose of these reforms, this evaluation focuses on the impact these reforms have had on the nature and degree of market competition. The principal findings are: (1) small group health insurance markets are highly competitive, both in price and in product innovation and diversity; (2) although some insurers have left some or all of these states in part because of these reforms, an ample number of active competitors remain, even in heavily regulated states; (3) in some of the more heavily regulated states, competition is very thin in less populated areas, especially for indemnity insurance; (4) the rapid growth in managed care in the small group market may have been precipitated by these reforms; (5) standardized benefit plans have not achieved their objectives; and (6) competitive forces still focus to a considerable extent on risk selection techniques and hardly at all on the quality of care.
Questioning Traditional Antitrust Presumptions:
Price and Non-price Competition
in Hospital Markets
Peter Hammer
Hospital mergers challenge basic assumptions about the effects of market power in the health care industry. Antitrust courts have struggled with claims that hospital mergers may in fact reduce costs and lower prices. This Article assesses the validity of these economic claims in the context of an industry that has undergone radical transformations in recent years. The Article also explores how such arguments should be treated as a matter of antitrust doctrine in an area of the law that relies heavily on market share presumptions and rule-based decision making. The Article contends that courts should employ a total welfare standard of merger review and attempt to directly assess the value of non-price competition. The Article further argues that courts should avoid focusing exclusively on consumer surplus and should reject hospital overtures to entertain a variety of non-economic justifications for merger.
Competing on Quality of Care: Developing
a Competition Policy for Health Care Markets
Peter Hammer
William Sage
As American health care moves from a professionally dominated to a market-dominated model, concerns have been voiced that competition, once unleashed, will focus on price to the detriment of quality. Although quality has been extensively analyzed in health services research, the role of quality in competition policy has not been elucidated. While economists may theorize about non-price competition, courts in antitrust cases often follow simpler models of competition based on price and output, either ignoring quality as a competitive dimension or assuming that it will occur in tandem with price competition. This unsystematic approach is inadequate for the formulation of policy in the health care industry, where quality is a central concern of both consumers and society. Instead, courts need a framework with which to analyze the implications for quality of various market structures and to understand the welfare implications of proposed market changes. A competition policy would seek to evaluate the potential for private markets to protect and improve quality in the health care system. This Article describes the present role of antitrust law in medical markets, explores the issues that would be confronted in developing a competition policy and outlines a research agenda that would begin to accomplish that task.
Accountable Managed Care: Should We Be
Careful What We Wish For?
David Hyman
Managed care is exceedingly unpopular of late. Many people believe that the problem is managed care organizations (MCOs) are unaccountable. Indeed, for many people, the creation of tort-based accountability for MCOs is the touchstone for assessing legislative “reform.” The case for tort-based accountability is actually quite complex, and the merits of tort-based accountability cannot be resolved with sound bites and bad anecdotes. Tort-based accountability has both costs and benefits, and little attention has been paid to the extent to which alternatives to tort-based accountability are found in existing institutional arrangements.
This Article systematically considers the extent to which alternatives to the tort system have become widely accepted parts of the commercial landscape, and the tradeoffs associated with the use of the tort system to deliver accountability. The Article concludes with ten suggestions for regulating managed care if the goal is actually to improve the care provided.
Establishing New Legal Doctrine in Managed
Care: A Model of Judicial Response to Industrial Change
Peter Jacobson
Scott D. Pomfret
In this article, we examine how courts react to new industries or radical transformations to existing industries in the context of health care. We explore two historical antecedents to the transformation in the health care industry, the emergence of railroads in the 19th century and mass production in the 20th century.
In doing so, we offer a model of how courts confront issues of developing legal doctrine, especially regarding liability, associated with nascent or dramatically transformed industries. Our model of doctrinal change includes five steps. The first step is the emergence of a nascent or transformed industry. In the second step, courts attempt to apply old doctrine to the nascent industry, resulting in a doctrinal mismatch with the realities of the new industry. When faced with this dilemma, the third step is that courts tend—implicitly or explicitly—to establish new legal doctrine that favors the industry. Then, in the fourth step, a backlash against the industry sets in while courts reassess rules favoring the industry. The last step is the emergence of a new doctrinal method of holding the nascent industry more fully accountable for its operations.
After setting forth the model and its limitations, we discuss the implications for how courts have responded to the advent of managed care. Our historical analysis suggests that courts are reluctant to interfere with emerging market arrangements, such as managed care’s cost containment practices. Eventually, courts tend to find new ways to achieve greater accountability, largely arising from tort law concepts.
Managed Care Regulation: Can We Learn from
Others? The Chilean Experience
Timothy Jost
Because the United States relies on private insurance for financing health care to a much greater degree than do other nations, and because managed care as a form of private insurance is further developed in the United States than elsewhere, it is arguable that we have little to learn from other nations about managed care regulation. This Article tests this hypothesis with respect to Chile, a country where private insurance is widespread and managed care is emerging. It concludes that by studying the experience of other nations we might gain a larger perspective on the context of our concerns in regulating managed care, in particular appraising more soberly the difficulties we face in regulating private health insurance markets; understand more fully the importance of attempting the difficult task of regulation; and appreciate more completely our responsibility for sharing with the rest of the world our insights into managed care regulation. We may even find regulatory tools that others have created that might help us with our tasks.
Clearing the Way for an Effective Federal-State
Partnership in Health Reform
Eleanor Kinney
At century’s end, states have assumed a very different role in the design, implementation, and operation of health service programs than they did twenty-five years ago. In the current volatile political atmosphere particularly at the federal level, states have taken up the mantel of healthcare reform in the final years of the 1990s. Yet there remain problems and difficulties with the current federal-state relationship in health reform. The critical question is whether states can successfully accomplish genuine reform given its politically charged, complex and costly nature. This question takes on particular significance for the most important reform-expanding coverage to the uninsured poor.
This article explores the contours of a federal-state partnership that will move toward the societal goal of universal health coverage, and especially coverage of the uninsured poor. The article suggests several legislative and regulatory changes. The most practical and immediate steps that Congress could take are to reform the Employment Retirement Income Security Act of 1973 (ERISA) and provide matching funds for state health insurance programs for the uninsured that allow states great flexibility in designing programs that really reach the uninsured within their boundaries.
How NOT TO THINK About “Managed Care”
Theodore R. Marmor
Jacob S. Hacker
The premise of this article is that the concept “managed care,” like many concepts now prominent in commentary about medical care finance and delivery, is incoherent and thus a barrier to useful analysis. “Managed care,” we argue, is a confused assemblage of market sloganeering, aspirational rhetoric, and business school jargon. It presupposes answers to central questions about changes in modern medicine rather than helping to address those questions. To demonstrate this, we first discuss the context in which managed-care claims have arisen and outline the diverse trends to which the category is regularly and confusingly applied. We then suggest an alternative approach to characterizing recent changes in medical care and show how such an approach alters and deepens our understanding of recent economic and political developments. We conclude by arguing for more neutral categories to make sense of past or projected developments in methods of reimbursement, techniques of management, and organizational structures.
Playing Doctor: Corporate Medical Practice
and Medical Malpractice
Haavi Morreim
Although health plans once existed mainly to ensure that patients could pay for care, in recent years managed care organizations (MCOs) have attempted to limit expenditures by exercising significant influence over the kinds and levels of care provided. Some commentators argue that such influence constitutes the practice of medicine, and should subject MCOs to the same medical malpractice torts traditionally brought against physicians. Others hold that MCOs engage only in contract interpretation, and do not literally practice medicine.
This Article begins by arguing that traditional common law doctrines governing corporate practice of medicine do not precisely apply to the current situation because, whereas the traditional focus is on whether the corporation employs the physician, in the current setting corporations use many devices, not just employment, to influence medical care. Because an employment relationship is not the central question in determining whether an MCO is practicing medicine, a better definition is needed of what it is for a corporation (or a physician) to practice medicine. This definition will show that MCOs can and sometimes must practice medicine, thus opening the need to explore what sort of liability they should incur when they practice negligently.
Toward answering that question, the Article argues that the proper scope of medical malpractice and other tort liability for MCOs can only be discerned after it is determined what duty of care MCOs owe their subscribers. This question, in turn, should be guided by a focus on how to deliver good health care rather than by deciding, ex ante, whom we wish to hold liable when care has gone badly. In the quest to discern which tasks are best done by MCOs and which are best done by physicians, a reasonable division of labor between MCOs and physicians will be proposed. This division of labor acknowledges that MCOs must sometimes practice medicine, but will also show that MCOs currently practice medicine more than they should, primarily because contractual reliance on the concept of “medical necessity” requires them to practice medicine virtually every time they make a benefits determination. For a variety of reasons, the concept of “medical necessity” should be dropped entirely from health plan contracts. Finally, where MCOs do practice medicine, they should be subject to classic medical malpractice liability of the same sort to which physicians are subject. Applying these reforms in the context of corporate practice, however, requires some special analysis.
Exit and Voice in American Healthcare
Marc A. Rodwin
Until the 1960s, the main way for patients to affect health care institutions was by choosing their doctors or hospitals or leaving those with which they were dissatisfied. They had few avenues to exert their voice to bring about change through complaints, politics, or other means. The balance between exit and voice shifted in the 1960s, as the women's health and disability rights movements brought about change by increased use of political voice and, to a lesser degree, by exit. With the growth of managed care since the 1980s, enrolled individuals have had fewer opportunities for exit and greater potential to exercise voice to influence managed care organizations. However, that potential has not yet been adequately realized. Current debates about consumer rights focus on appeals of decisions by managed care organizations to deny services. They generally ignore the role of members in organizational policy or governance. This Article explores the relation between exit and voice in American health care and its prospects for the future.