th care delivery through the
establishment of "managed care" systems.(3) While this movement has
initially reduced costs, it has also restricted consumers' choice and
imposed new administrative procedures.(4)
Physicians, meanwhile, scramble as business managers invade the
previously exclusive domain of medical decision-making.(5) A survey of
office-based physicians shows that sixteen percent of the respondents
had merged their practices, sold them to a hospital or health-care
company, or joined a group practice in 1994. The total jumped to
twenty-one percent the following year.(6) Those still in unaffiliated
solo or group private practice must often justify to third-party payors
the need for procedures which were once routinely reimbursed.(7) Many
others affiliated themselves with health maintenance organizations
(HMOs) where they must adhere to new guidelines prior to ordering tests
and making referrals.(8) While the aim of such guidelines has been to
reduce unnecessary procedures, this fails to explain additional
covenants that the "physician shall agree not to take any action or make
any communication which undermines or could undermine the confidence of
enrollees or the public in [the HMO] or the quality of [its]
coverage."(9) Because the physician's independent duty of care remains
unchanged, traditional malpractice law would find him or her liable
should these economic pressures result in treatment shortcuts.
Gradually, however, courts have begun expanding liability to the managed
Expansion of liability is now becoming problematic. The Clinton plan
attempted to surpass the private sector by establishing national
spending targets, reforming malpractice procedures, and expanding the
rights of patients as consumers. Most importantly, it would have brought
coverage to thirty-nine million uninsured Americans, a number climbing
as managed care's market s...