Physician deselection: The dynamics of a new threat to the physician- patient relationship

American Journal of Law and Medicine

Volumn 23, Issue 4, 1997, Pages 511-538

  Liner, Richard S ^a,b  

^a TUFTS UNIVERSITY   (United States)

^b BOSTON UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

CONTRACT; DOCTOR PATIENT RELATION; LAW; MANAGED CARE; REVIEW; THREAT;

CONSUMER ADVOCACY; CONTRACT SERVICES; CREDENTIALING; HEALTH CARE SECTOR; HUMANS; MANAGED CARE PROGRAMS; PERSONNEL SELECTION; PHYSICIAN-PATIENT RELATIONS; PROFESSIONAL AUTONOMY; UNITED STATES;

EID: 0031418178     PISSN: 00988588     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (290)

1. Dr. Green is a fictional character designed to illustrate one perspective of the burgeoning problem of physician deselection from managed care organizations (MCOs). For an elucidation of the problem, see generally Texas Medical Ass'n v. Aetna Life Insurance Co., 80 F.3d 153 (5th Cir. 1996) (holding that Texas law does not provide physicians with a private cause of action to enforce preferred provider organizations (PPOs) rules); Aiken v. Business and Industry Health Group, Inc., 886 F. Supp. 1565 (D. Kan. 1995), aff'd mem., 81 F.3d 172 (10th Cir. 1996) (holding that physician termination does not violate public policy or cause a breach of an implied covenant); Delta Dental Plan of Cal. v. Banasky, 33 Cal. Rptr. 2d 381 (1994) (holding that internal company guidelines govern pricing disputes and not private arbitration); Harper v. Healthsource N.H., Inc., 674 A.2d 962 (N.H. 1996) (holding that health maintenance organizations (HMOs) are not state actors in physician due process violation claims); Edward Stephens, Taking the HMO to Court, 40 ACAD. FORUM 7 (1996) (discussing a psychiatrist's claim that many MCO termination policies are unethical and illegal); Ken Terry, When Health Plans Don't Want You Anymore, 71 MED. ECON. 138 (1994) (discussing the ease with which MCOs deselect doctors and the negative effects on the quality of care from such deselections); Provider Networks: Physicians Gaining Some Victories in Fight Against No-Cause Terminations, 5 Health L. Rptr. (BNA) No. 26, at 977 (June 27, 1996) [hereinafter Provider Networks] (discussing the controversy surrounding recent cases that have awarded new remedies to physicians against MCOs for no-cause termination); Yvonne Chiu, Many Watch Appeal of Doctors' Firings, SACRAMENTO BEE, April 30, 1996, at C1 (discussing possible impacts of recent litigation between terminated physicians and health plans). For purposes of this Note, deselection refers to an MCO's unilateral decision either not to renew a physician's contract or to terminate it prematurely without cause.
2. Dr. Green is a fictional character designed to illustrate one perspective of the burgeoning problem of physician deselection from managed care organizations (MCOs). For an elucidation of the problem, see generally Texas Medical Ass'n v. Aetna Life Insurance Co., 80 F.3d 153 (5th Cir. 1996) (holding that Texas law does not provide physicians with a private cause of action to enforce preferred provider organizations (PPOs) rules); Aiken v. Business and Industry Health Group, Inc., 886 F. Supp. 1565 (D. Kan. 1995), aff'd mem., 81 F.3d 172 (10th Cir. 1996) (holding that physician termination does not violate public policy or cause a breach of an implied covenant); Delta Dental Plan of Cal. v. Banasky, 33 Cal. Rptr. 2d 381 (1994) (holding that internal company guidelines govern pricing disputes and not private arbitration); Harper v. Healthsource N.H., Inc., 674 A.2d 962 (N.H. 1996) (holding that health maintenance organizations (HMOs) are not state actors in physician due process violation claims); Edward Stephens, Taking the HMO to Court, 40 ACAD. FORUM 7 (1996) (discussing a psychiatrist's claim that many MCO termination policies are unethical and illegal); Ken Terry, When Health Plans Don't Want You Anymore, 71 MED. ECON. 138 (1994) (discussing the ease with which MCOs deselect doctors and the negative effects on the quality of care from such deselections); Provider Networks: Physicians Gaining Some Victories in Fight Against No-Cause Terminations, 5 Health L. Rptr. (BNA) No. 26, at 977 (June 27, 1996) [hereinafter Provider Networks] (discussing the controversy surrounding recent cases that have awarded new remedies to physicians against MCOs for no-cause termination); Yvonne Chiu, Many Watch Appeal of Doctors' Firings, SACRAMENTO BEE, April 30, 1996, at C1 (discussing possible impacts of recent litigation between terminated physicians and health plans). For purposes of this Note, deselection refers to an MCO's unilateral decision either not to renew a physician's contract or to terminate it prematurely without cause.
3. Dr. Green is a fictional character designed to illustrate one perspective of the burgeoning problem of physician deselection from managed care organizations (MCOs). For an elucidation of the problem, see generally Texas Medical Ass'n v. Aetna Life Insurance Co., 80 F.3d 153 (5th Cir. 1996) (holding that Texas law does not provide physicians with a private cause of action to enforce preferred provider organizations (PPOs) rules); Aiken v. Business and Industry Health Group, Inc., 886 F. Supp. 1565 (D. Kan. 1995), aff'd mem., 81 F.3d 172 (10th Cir. 1996) (holding that physician termination does not violate public policy or cause a breach of an implied covenant); Delta Dental Plan of Cal. v. Banasky, 33 Cal. Rptr. 2d 381 (1994) (holding that internal company guidelines govern pricing disputes and not private arbitration); Harper v. Healthsource N.H., Inc., 674 A.2d 962 (N.H. 1996) (holding that health maintenance organizations (HMOs) are not state actors in physician due process violation claims); Edward Stephens, Taking the HMO to Court, 40 ACAD. FORUM 7 (1996) (discussing a psychiatrist's claim that many MCO termination policies are unethical and illegal); Ken Terry, When Health Plans Don't Want You Anymore, 71 MED. ECON. 138 (1994) (discussing the ease with which MCOs deselect doctors and the negative effects on the quality of care from such deselections); Provider Networks: Physicians Gaining Some Victories in Fight Against No-Cause Terminations, 5 Health L. Rptr. (BNA) No. 26, at 977 (June 27, 1996) [hereinafter Provider Networks] (discussing the controversy surrounding recent cases that have awarded new remedies to physicians against MCOs for no-cause termination); Yvonne Chiu, Many Watch Appeal of Doctors' Firings, SACRAMENTO BEE, April 30, 1996, at C1 (discussing possible impacts of recent litigation between terminated physicians and health plans). For purposes of this Note, deselection refers to an MCO's unilateral decision either not to renew a physician's contract or to terminate it prematurely without cause.
4. Dr. Green is a fictional character designed to illustrate one perspective of the burgeoning problem of physician deselection from managed care organizations (MCOs). For an elucidation of the problem, see generally Texas Medical Ass'n v. Aetna Life Insurance Co., 80 F.3d 153 (5th Cir. 1996) (holding that Texas law does not provide physicians with a private cause of action to enforce preferred provider organizations (PPOs) rules); Aiken v. Business and Industry Health Group, Inc., 886 F. Supp. 1565 (D. Kan. 1995), aff'd mem., 81 F.3d 172 (10th Cir. 1996) (holding that physician termination does not violate public policy or cause a breach of an implied covenant); Delta Dental Plan of Cal. v. Banasky, 33 Cal. Rptr. 2d 381 (1994) (holding that internal company guidelines govern pricing disputes and not private arbitration); Harper v. Healthsource N.H., Inc., 674 A.2d 962 (N.H. 1996) (holding that health maintenance organizations (HMOs) are not state actors in physician due process violation claims); Edward Stephens, Taking the HMO to Court, 40 ACAD. FORUM 7 (1996) (discussing a psychiatrist's claim that many MCO termination policies are unethical and illegal); Ken Terry, When Health Plans Don't Want You Anymore, 71 MED. ECON. 138 (1994) (discussing the ease with which MCOs deselect doctors and the negative effects on the quality of care from such deselections); Provider Networks: Physicians Gaining Some Victories in Fight Against No-Cause Terminations, 5 Health L. Rptr. (BNA) No. 26, at 977 (June 27, 1996) [hereinafter Provider Networks] (discussing the controversy surrounding recent cases that have awarded new remedies to physicians against MCOs for no-cause termination); Yvonne Chiu, Many Watch Appeal of Doctors' Firings, SACRAMENTO BEE, April 30, 1996, at C1 (discussing possible impacts of recent litigation between terminated physicians and health plans). For purposes of this Note, deselection refers to an MCO's unilateral decision either not to renew a physician's contract or to terminate it prematurely without cause.
5. Allcare Health Plan (AHP) is a fictional HMO designed to represent a typical MCO with which a physician may contract.
6. In a fee-for-service (FFS) arrangement, the buyer, an MCO, pays the health care provider, a physician, a specified amount for each procedure. See Alan Somers, What You and Your Physician Client Need to Know About Managed Care Contracts (pt. 2), 42 PRAC. LAW. 15, 21 (1996).
7. See AMERICAN MED. ASS'N, SOURCEBOOK OF STATE MANAGED CARE TRENDS AND FEDERATION INITIATIVES 3 (1995) [hereinafter SOURCEBOOK]; David Warsh, We Gave Up Too Easily, BOSTON GLOBE, July 30, 1995, at 37. Currently, more than 50% of Americans get their health insurance through MCOs. See Denise Smith Amos, Medical Balancing Act: Doctors Weigh Patient Needs Against Insurers' Rules, ST. LOUIS POST-DISPATCH, Apr. 1, 1996 (Business Plus), at 10. By the year 2000, MCOs will provide medical care for up to 80% of Americans. See Robert J. Provan, Care Plan Manages to Limit Patients, AUSTIN AM.-STATESMAN, Feb. 8, 1996, at A15.
8. See AMERICAN MED. ASS'N, SOURCEBOOK OF STATE MANAGED CARE TRENDS AND FEDERATION INITIATIVES 3 (1995) [hereinafter SOURCEBOOK]; David Warsh, We Gave Up Too Easily, BOSTON GLOBE, July 30, 1995, at 37. Currently, more than 50% of Americans get their health insurance through MCOs. See Denise Smith Amos, Medical Balancing Act: Doctors Weigh Patient Needs Against Insurers' Rules, ST. LOUIS POST-DISPATCH, Apr. 1, 1996 (Business Plus), at 10. By the year 2000, MCOs will provide medical care for up to 80% of Americans. See Robert J. Provan, Care Plan Manages to Limit Patients, AUSTIN AM.-STATESMAN, Feb. 8, 1996, at A15.
9. See AMERICAN MED. ASS'N, SOURCEBOOK OF STATE MANAGED CARE TRENDS AND FEDERATION INITIATIVES 3 (1995) [hereinafter SOURCEBOOK]; David Warsh, We Gave Up Too Easily, BOSTON GLOBE, July 30, 1995, at 37. Currently, more than 50% of Americans get their health insurance through MCOs. See Denise Smith Amos, Medical Balancing Act: Doctors Weigh Patient Needs Against Insurers' Rules, ST. LOUIS POST-DISPATCH, Apr. 1, 1996 (Business Plus), at 10. By the year 2000, MCOs will provide medical care for up to 80% of Americans. See Robert J. Provan, Care Plan Manages to Limit Patients, AUSTIN AM.-STATESMAN, Feb. 8, 1996, at A15.
10. See AMERICAN MED. ASS'N, SOURCEBOOK OF STATE MANAGED CARE TRENDS AND FEDERATION INITIATIVES 3 (1995) [hereinafter SOURCEBOOK]; David Warsh, We Gave Up Too Easily, BOSTON GLOBE, July 30, 1995, at 37. Currently, more than 50% of Americans get their health insurance through MCOs. See Denise Smith Amos, Medical Balancing Act: Doctors Weigh Patient Needs Against Insurers' Rules, ST. LOUIS POST-DISPATCH, Apr. 1, 1996 (Business Plus), at 10. By the year 2000, MCOs will provide medical care for up to 80% of Americans. See Robert J. Provan, Care Plan Manages to Limit Patients, AUSTIN AM.-STATESMAN, Feb. 8, 1996, at A15.
11. See. e.g., Brief for Appellees at 4, Texas Med. Ass'n v. Aetna Life Ins. Co., 80 F.3d 153 (5th Cir. 1996) (No. 94-20690). The language in AHP's termination clause is typical of MCO-provider contracts. See Larry A. Maxwell, Healthcare Law, Annual Survey of Texas Law, 48 SMU L. REV. 1303, 1323 (1995). In particular, the language is drawn from a composite of provider contracts from Aetna Life Insurance, Healthsource Inc. and Prucare. See Appellees's Brief at 4, Texas Med. Ass'n, (No. 94-20690); Appendix to Respondent's Brief at 25, Harper v. Healthsource New Hampshire, Inc., 674 A.2d 962 (N.H. 1996) (No. 95-535).
12. See PHYSICIAN PAYMENT REVIEW COMM'N, ANN. REP. TO CONGRESS 219, 225-26 (1995) [hereinafter PPRC].
13. See Provan, supra note 4, at A15. See generally Jerome P. Kassirer, Managed Care and the Morality of the Marketplace, 333 NEW ENG. J. MED. 50 (1995) (discussing market forces affecting managed care).
14. See generally Brad Dallet, Note, Economic Credentialing: Your Money or Your Life, 4 HEALTH MATRIX 325 (1994) (examining the use of economic credentialing in hospital administration). Defined by the American Medical Association (AMA), economic credentialing is "the application of economic criteria unrelated to quality of care or professional competence to decisions concerning appointment, reappointment, or delineation of staff privileges." John D. Blum, The Evolution of Physician Credentialing into Managed Care Selective Contracting, 22 AM. J.L. & MED. 173, 176 (1996).
15. See generally Brad Dallet, Note, Economic Credentialing: Your Money or Your Life, 4 HEALTH MATRIX 325 (1994) (examining the use of economic credentialing in hospital administration). Defined by the American Medical Association (AMA), economic credentialing is "the application of economic criteria unrelated to quality of care or professional competence to decisions concerning appointment, reappointment, or delineation of staff privileges." John D. Blum, The Evolution of Physician Credentialing into Managed Care Selective Contracting, 22 AM. J.L. & MED. 173, 176 (1996).
16. See Kassirer, supra note 7, at 50; Mari Edlin, Deselection is a Matter of Economics for Some MCOs, DERMATOLOGY TIMES, June 1, 1996, at 82, 82.
17. See infra note 54.
18. See infra note 47 and accompanying text.
19. See PPRC, supra note 6, at 225.
20. See Kassirer, supra note 7, at 50.
21. See COUNCIL ON ETHICAL & JUDICIAL AFFAIRS, AM. MED. ASS'N, CODE OF MEDICAL ETHICS 126-27 (1996) [hereinafter CODE OF MEDICAL ETHICS].
22. See Kassirer, supra note 7, at 50; David Mechanic & Mark Schlesinger, The Impact of Managed Care on Patients' Trust in Medical Care and Their Physicians, 275 JAMA 1693, 1695 (1996).
23. See infra notes 38-39 and accompanying text.
24. See infra notes 40-42 and accompanying text.
25. See Kassirer, supra note 7, at 50; infra note 56 and accompanying text.
26. See Kassirer, supra note 7, at 50.
27. See id.; Patient Right to Know Act: Hearings on H.R. 2976 Before the Subcomm. on Health of the House Comm. on Ways and Means, 104th Cong. (1996), available in 1996 WL 10830251 [hereinafter Archer] (statement of Diane Archer, Esq., Executive Director of the Medicare Rights Center).
28. See DAVID VOGEL, AM. MED. ASS'N, THE PHYSICIAN AND MANAGED CARE iv (1993) (stating that health care expenditures rose from 6% of the gross national product in 1965 to 14.4% in 1992).
29. For a more thorough discussion of the origin and development of the managed care system, see Thomas J. Maxwell, Health Reform/Managed Care, 13 DEL. L. 40 (1995).
30. See AM. MED. ASS'N, MANAGED CARE AND THE MARKET 2 (2d ed. 1995) [hereinafter MANAGED CARE AND THE MARKET]; VOGEL, supra note 21, at iv, 9, 19-22.
31. Although there are several types of MCOs, for purposes of this Note, MCOs include only HMOs and PPOs. The AMA defines an HMO as "any organization that, through an organized system of health care, provides or assures the delivery of an agreed upon set of comprehensive health maintenance and treatment services for an enrolled group of persons for a prepaid, fixed premium." MANAGED CARE AND THE MARKET, supra note 23, at 35 n.2. Also, the AMA defines a PPO as an "entit[y] through which employer health benefit plans and health insurance carriers contract to purchase health care services for covered beneficiaries from a selected group of participating providers." Id. at 35 n.3. "In contrast to traditional HMO coverage, PPO coverage permits enrollees to use non-participating providers." Id.
32. See VOGEL, supra note 21, at 9; Provan, supra note 4, at 15.
33. See H.R. REP. No. 104-865, pt. 1, at 3 (1996).
34. See id.; Milt Freudenheim, H.M.O.'s Cope with a Backlash on Cost Cutting, N.Y. TIMES, May 19, 1996, at A1. By insuring the medical care for over 100 million people, MCOs insure two-thirds of the entire working population of the United States. See Amos, supra note 4, at 11.
35. See Health Policy: Managing to Care, ECONOMIST, Sept. 23, 1995, at 70, 70.
36. See Provan, supra note 4, at 15.
37. Somers, supra note 3, at 24; see VOGEL, supra note 21, at 3.
38. See Ethical Issues in Managed Care, 273 JAMA 330, 330 (1995) (stating that MCOs "aggressively use programs of utilization review to detect what they consider medically inappropriate or unnecessarily costly practice patterns"); Amos, supra note 4, at 11. For purposes of the accompanying discussion, the phrase "micromanage" refers to an MCO's management of each individual physician-patient interaction, as opposed to any influence MCOs have over a physician's practice as a whole.
39. See Amos, supra note 4, at 11.
40. See Hippocratic Oath and Patient Protection Act of 1996, H.R. 3222, 104th Cong. § 562 (1996) (statement of Rep. Bernard Sanders). The Department of Health and Human Services (HHS) recently promulgated final rules regulating financial incentive clauses for Medicare and Medicaid in MCO-provider contracts. See Requirements for Physician Incentive Plans, 42 C.F.R. § 417.479 (1996). For a discussion of financial incentive clauses, see Stephen R. Latham, Regulation of Managed Care Incentive Payments to Physicians, 22 AM. J.L. & MED. 399 (1996).
41. See Ethical Issues in Managed Care, supra note 31, at 331; Warsh, supra note 4, at 37. Many MCOs hold back as much as 30% of the physician's fees. See Amos, supra note 4, at 12. The HHS included withholds in its recent final rule regulating financial incentive clauses. See 42 C.F.R. § 417.479.
42. See Contract Issues and Quality Standards for Managed Care: Hearings on H.R. 2976 Before the Subcomm. on Health and Env't of the House Comm. on Commerce, 104th Cong. 66-71 (1996) [hereinafter H.R. 2976 Hearing] (statement of the AMA explaining the detriments of gag clauses to the physician-patient relationship); Paul Gray, Gagging the Doctors: Critics Charge that HMO's Require Physicians to Withhold Vital Information from Their Patients, TIME, Jan. 8, 1996, at 50. For example, a physician may be contractually prohibited from doing the following: discussing treatment options not covered by the health plan, criticizing the plan, discussing the plan's financial incentives or referring patients to nonplan specialists or facilities. See H.R. 2976 Hearing, supra. Recently, gag clauses have come under attack by various medical associations, such as the AMA. See id. These protests have led to an influx of legislation as displayed by the following examples: ALA. CODE § 27-1-20 (1996); H.R. 3222, 104th Cong. §§ 1-3 (1996); H.R. 2976, 104th Cong. §§ 1-2 (1996). For a more thorough discussion of gag clauses in MCO-provider contracts, see Julia A. Martin & Lisa K. Bjerknes, The Legal and Ethical Implications of Gag Clauses in Physician Contracts, 22 AM. J.L. & MED. 433 (1996).
43. See Contract Issues and Quality Standards for Managed Care: Hearings on H.R. 2976 Before the Subcomm. on Health and Env't of the House Comm. on Commerce, 104th Cong. 66-71 (1996) [hereinafter H.R. 2976 Hearing] (statement of the AMA explaining the detriments of gag clauses to the physician-patient relationship); Paul Gray, Gagging the Doctors: Critics Charge that HMO's Require Physicians to Withhold Vital Information from Their Patients, TIME, Jan. 8, 1996, at 50. For example, a physician may be contractually prohibited from doing the following: discussing treatment options not covered by the health plan, criticizing the plan, discussing the plan's financial incentives or referring patients to nonplan specialists or facilities. See H.R. 2976 Hearing, supra. Recently, gag clauses have come under attack by various medical associations, such as the AMA. See id. These protests have led to an influx of legislation as displayed by the following examples: ALA. CODE § 27-1-20 (1996); H.R. 3222, 104th Cong. §§ 1-3 (1996); H.R. 2976, 104th Cong. §§ 1-2 (1996). For a more thorough discussion of gag clauses in MCO-provider contracts, see Julia A. Martin & Lisa K. Bjerknes, The Legal and Ethical Implications of Gag Clauses in Physician Contracts, 22 AM. J.L. & MED. 433 (1996).
44. See Contract Issues and Quality Standards for Managed Care: Hearings on H.R. 2976 Before the Subcomm. on Health and Env't of the House Comm. on Commerce, 104th Cong. 66-71 (1996) [hereinafter H.R. 2976 Hearing] (statement of the AMA explaining the detriments of gag clauses to the physician-patient relationship); Paul Gray, Gagging the Doctors: Critics Charge that HMO's Require Physicians to Withhold Vital Information from Their Patients, TIME, Jan. 8, 1996, at 50. For example, a physician may be contractually prohibited from doing the following: discussing treatment options not covered by the health plan, criticizing the plan, discussing the plan's financial incentives or referring patients to nonplan specialists or facilities. See H.R. 2976 Hearing, supra. Recently, gag clauses have come under attack by various medical associations, such as the AMA. See id. These protests have led to an influx of legislation as displayed by the following examples: ALA. CODE § 27-1-20 (1996); H.R. 3222, 104th Cong. §§ 1-3 (1996); H.R. 2976, 104th Cong. §§ 1-2 (1996). For a more thorough discussion of gag clauses in MCO-provider contracts, see Julia A. Martin & Lisa K. Bjerknes, The Legal and Ethical Implications of Gag Clauses in Physician Contracts, 22 AM. J.L. & MED. 433 (1996).
45. See Kassirer, supra note 7, at 50; Edlin, supra note 9, at 82; Stephen E. Ronai, Managed-Care Credentialing: Limited Access and Limited Rights, CONN. L. TRIB., Sept. 18, 1995, (Health L. Supp.), at 12, 12.
46. See generally Ethical Issues in Managed Care, supra note 31, at 330 (explaining how the influence of managed care harms the physician-patient relationship).
47. See Ronai, supra note 36, at 12. See generally Kassirer, supra note 7, at 50 (lamenting the effects of the market-driven health care system on the physician-patient relationship and on the health care system itself).
48. See PPRC, supra note 6, at 219; SOURCEBOOK, supra note 4, at 2-3; Maxwell, supra note 5, at 1323; Warsh. supra note 4, at 37.
49. See Study Finds Dip in Income of Doctors, N.Y. TIMES, Sept. 3, 1996, at D9 [hereinafter Study Finds Dip].
50. See SOURCEBOOK, supra note 4, at 3.
51. See id.
52. See Kassirer, supra note 7, at 50.
53. Capitation is defined as a system of reimbursement based on flat, lump sum, monthly payments to physicians, covering specified medical services for insured patients. See Somers, supra note 3, at 17. For a more thorough explanation of capitation, see Frances H. Miller, The Promise and Problems of Capitation, 22 AM. J.L. & MED. 167 (1996).
54. See Ezekiel J. Emanuel & Nancy Neveloff Dubler, Preserving the Physician-Patient Relationship in the Era of Managed Care, 273 JAMA 323, 327-28 (1995).
55. See Maxwell, supra note 5, at 1323; Anne Maltz, Managed Care Reform Act, N.Y. L.J., Dec. 12, 1996, at 1, 4.
56. See Kassirer, supra note 7, at 50; Stephen E. Ronai, Physician Deselection: Due-Process Guidance for Doctors Terminated Without Cause, CONN. L. TRIB., Sept. 23, 1996, (Health L. Supp.), at 4; Terry, supra note 1, at 140-41.
57. See Bryan A. Liang, Deselection Under Harper v. Healthsource: A Blow for Maintaining Patient-Physician Relationships in the Era of Managed Care?, 72 NOTRE DAME L. REV. 799, 799-801 (1997); Frank H. Boehm, An Unethical Ploy: We Run Grave Risks When We Let Those Who Aren't Doctors Determine the Care a Patient Receives, TENNESSEAN, Mar. 19, 1996, at 7A; Robert Weinmann, Medical Red-Lining: 'Economic Credentials' for Physicians, S.F. EXAMINER, Jan. 12, 1996, at A19, available in 1996 WL 3701939.
58. See Bryan A. Liang, Deselection Under Harper v. Healthsource: A Blow for Maintaining Patient-Physician Relationships in the Era of Managed Care?, 72 NOTRE DAME L. REV. 799, 799-801 (1997); Frank H. Boehm, An Unethical Ploy: We Run Grave Risks When We Let Those Who Aren't Doctors Determine the Care a Patient Receives, TENNESSEAN, Mar. 19, 1996, at 7A; Robert Weinmann, Medical Red-Lining: 'Economic Credentials' for Physicians, S.F. EXAMINER, Jan. 12, 1996, at A19, available in 1996 WL 3701939.
59. See Bryan A. Liang, Deselection Under Harper v. Healthsource: A Blow for Maintaining Patient-Physician Relationships in the Era of Managed Care?, 72 NOTRE DAME L. REV. 799, 799-801 (1997); Frank H. Boehm, An Unethical Ploy: We Run Grave Risks When We Let Those Who Aren't Doctors Determine the Care a Patient Receives, TENNESSEAN, Mar. 19, 1996, at 7A; Robert Weinmann, Medical Red-Lining: 'Economic Credentials' for Physicians, S.F. EXAMINER, Jan. 12, 1996, at A19, available in 1996 WL 3701939.
60. See Amos, supra note 4, at 11 ; Edlin, supra note 9, at 82; Provan, supra note 4, at A15.
61. See Amos, supra note 4, at 11. MCOs usually place termination-at-will clauses in their provider contracts, allowing either party to terminate the contract without cause by giving the required notice. See Janice Somerville, Decision Gives Doctors New Recourse on HMO Firings, AM. MED. NEWS, May 6, 1996, at 6, 6.
62. See James C. Dechene, Preferred Provider Organization Structures and Agreements, 4 ANNALS HEALTH L. 35, 64 (1995).
63. The MCO only needs to give the provider the specified contractual notice. See Ronai, supra note 47, at 4-5. Typically, contracts demand 90 days notice before termination. See id.
64. See Provider Deselection Contains Traps, Pitfalls, MANAGED CARE L. OUTLOOK, July 9, 1996, available in 1996 WL 10117209 [hereinafter Provider Deselection] (quoting attorney Phillip Stoffan at the National Health Lawyers Association annual seminar on managed care in Washington, D.C.).
65. See Amos, supra note 4, at 11; Edlin, supra note 9, at 82; Ronai, supra note 47, at 5. Cost plays a larger role as MCOs compete with each other for shares of the insurance market. See Kassirer, supra note 7, at 50.
66. See generally Kassirer, supra note 7, at 50 (noting that with termination comes the prospect of being considered "unemployable" by other managed care companies).
67. See Fran M. Lysiak, Doctor Society Leader Seeks to Regain Control for Physicians, NORTHEASTERN PA. Bus. J., Dec. 1996, at 44, 44.
68. See Howard Larkin, You're Fired, AM. MED. NEWS, Feb. 13, 1995, at 11, 12. Created by the Health Care Quality Improvement Act of 1986 (HCQIA), the National Practitioner Data Bank (NPDB) is a central database into which insurers, hospitals and MCOs "must report events related to practitioner competence and professional conduct." Somers, supra note 3, at 22. Examples of such events include: payouts on malpractice claims, limitations and revocations of hospital staff privileges and terminations for cause from MCOs. See Dechene, supra note 51, at 64-65; Somers, supra note 3, at 22. Formal peer review boards are required by the HCQIA to look into the NPDB before granting or renewing privileges. See Somers, supra note 3, at 22.
69. See MANAGED CARE AND THE MARKET, supra note 23, at 28.
70. See Karen A. Jordan, Managed Competition and Limited Choice of Providers: Countering Negative Perceptions Through a Responsibility to Select Quality Network Physicians, 27 ARIZ. ST. L.J. 875, 892 (1995); Edlin, supra note 9, at 82; see also Warsh, supra note 4, at 37 (discussing the "corporate organization" of managed care).
71. See Ronai, supra note 36, at 13. Even though MCOs may use economic factors in credentialing, they are more likely to call the termination a "business decision" or a "network selection." See Edlin, supra note 9, at 82. Credentialing requires MCOs to offer an appeals process to terminated physicians, while network selections do not. See id.
72. See Edlin, supra note 9, at 82; see also Leonard A. Hagen, Comment, Physician Credentialing: Economic Criteria Compete with the Hippocratic Oath, 31 GONZ. L. REV. 427, 467, 470 (1995-1996) (stating that medical staff personnel have no say in credentialing, and suggesting that a more effective economic credentialing plan would disclose the deselection criteria to the health care providers).
73. See Hagen, supra note 61, at 440-41.
74. See Robert Pear, U.S. Issues Rules for H.M.O. 's in an Effort to Protect Patients, N.Y. TIMES, Mar. 27, 1996, at B8. With respect to financial incentives, absolute and final termination of employment presumably provides the strongest motivation for physician compliance. See Amos, supra note 4, at 11.
75. See Wayne J. Guglielmo, How to Avoid Deselection, MED. ECON., Apr. 15, 1996, at 149, 149 (discussing appropriate strategies for physicians attempting to avoid deselection).
76. See. e.g., Harper v. Healthsource N.H., Inc., 674 A.2d 962 (N.H. 1996) (upholding the plaintiffs verdict on the basis that terminations without cause substantially effect patients).
77. See Kassirer, supra note 7, at 50.
78. See Ron Shinkman, CMA Fans the Flames of Debate on Dropping Docs, MOD. HEALTHCARE, Nov. 4, 1996, at 18, 18; see also Amicus Brief of New Hampshire Medical Society for Appellant at 6, Harper v. Healthsource N.H., Inc., 674 A.2d 962 (N.H. 1996) (No. 95-535) (discussing New Hampshire law designed to protect the physician-patient relationship by ensuring the patient's choice of a physician); American Med. Ass'n, Deselection Predilection, MED. STAFF & PHYSICIAN ORG. LEGAL ADVISOR, Mar. 1994 (discussing the "any willing provider" (AWP) laws of several states).
79. See Ron Shinkman, CMA Fans the Flames of Debate on Dropping Docs, MOD. HEALTHCARE, Nov. 4, 1996, at 18, 18; see also Amicus Brief of New Hampshire Medical Society for Appellant at 6, Harper v. Healthsource N.H., Inc., 674 A.2d 962 (N.H. 1996) (No. 95-535) (discussing New Hampshire law designed to protect the physician-patient relationship by ensuring the patient's choice of a physician); American Med. Ass'n, Deselection Predilection, MED. STAFF & PHYSICIAN ORG. LEGAL ADVISOR, Mar. 1994 (discussing the "any willing provider" (AWP) laws of several states).
80. See Ron Shinkman, CMA Fans the Flames of Debate on Dropping Docs, MOD. HEALTHCARE, Nov. 4, 1996, at 18, 18; see also Amicus Brief of New Hampshire Medical Society for Appellant at 6, Harper v. Healthsource N.H., Inc., 674 A.2d 962 (N.H. 1996) (No. 95-535) (discussing New Hampshire law designed to protect the physician-patient relationship by ensuring the patient's choice of a physician); American Med. Ass'n, Deselection Predilection, MED. STAFF & PHYSICIAN ORG. LEGAL ADVISOR, Mar. 1994 (discussing the "any willing provider" (AWP) laws of several states).
81. See S. 2196, 103d Cong. (1994). The bills currently before Congress and the laws in several states do not include regulation on no-cause termination clauses in provider contracts. See, e.g., COLO. REV. STAT. ANN. § 10-16-121(b) (West 1996); GA. CODE ANN. § 31-7-133(b)(3) (1996); 28 TEXAS ADMIN. CODE §§ 3.3705(4), 11.1601(b) (West 1996); H.R. 3222, 104th Cong. (1996); H.R. 2976, 104th Cong. (1996); Deselection: 'Without Cause' Terminations Undergoing Scrutiny in Courts, Legislatures, 5 Health L. Rptr. (BNA) No. 49, at 1845 (Dec. 12, 1996) [hereinafter Deselection]; New Jersey: Bill to Protect Rights of Patients in Managed Care Plans Tabled for Now, 5 Health L. Rptr. (BNA) No. 25, at 959 (June 20, 1996); Oregon's New Group POS Requirement Won't Stymie Federal HMO Act, MANAGED CARE WEEK, July 24, 1995, at *3, available in 1995 WL 2429255.
82. See S. 2196, 103d Cong. (1994). The bills currently before Congress and the laws in several states do not include regulation on no-cause termination clauses in provider contracts. See, e.g., COLO. REV. STAT. ANN. § 10-16-121(b) (West 1996); GA. CODE ANN. § 31-7-133(b)(3) (1996); 28 TEXAS ADMIN. CODE §§ 3.3705(4), 11.1601(b) (West 1996); H.R. 3222, 104th Cong. (1996); H.R. 2976, 104th Cong. (1996); Deselection: 'Without Cause' Terminations Undergoing Scrutiny in Courts, Legislatures, 5 Health L. Rptr. (BNA) No. 49, at 1845 (Dec. 12, 1996) [hereinafter Deselection]; New Jersey: Bill to Protect Rights of Patients in Managed Care Plans Tabled for Now, 5 Health L. Rptr. (BNA) No. 25, at 959 (June 20, 1996); Oregon's New Group POS Requirement Won't Stymie Federal HMO Act, MANAGED CARE WEEK, July 24, 1995, at *3, available in 1995 WL 2429255.
83. See S. 2196, 103d Cong. (1994). The bills currently before Congress and the laws in several states do not include regulation on no-cause termination clauses in provider contracts. See, e.g., COLO. REV. STAT. ANN. § 10-16-121(b) (West 1996); GA. CODE ANN. § 31-7-133(b)(3) (1996); 28 TEXAS ADMIN. CODE §§ 3.3705(4), 11.1601(b) (West 1996); H.R. 3222, 104th Cong. (1996); H.R. 2976, 104th Cong. (1996); Deselection: 'Without Cause' Terminations Undergoing Scrutiny in Courts, Legislatures, 5 Health L. Rptr. (BNA) No. 49, at 1845 (Dec. 12, 1996) [hereinafter Deselection]; New Jersey: Bill to Protect Rights of Patients in Managed Care Plans Tabled for Now, 5 Health L. Rptr. (BNA) No. 25, at 959 (June 20, 1996); Oregon's New Group POS Requirement Won't Stymie Federal HMO Act, MANAGED CARE WEEK, July 24, 1995, at *3, available in 1995 WL 2429255.
84. See Blum, supra note 8, at 200-01. John Blum explains these laws as provisions requiring MCOs to accept any physician willing to abide by the contract terms of the plan. See id.
85. See id. at 201. Often AWP laws cover only pharmacist contracts. See id.
86. See id.
87. See GA. CODE ANN. § 31-7-133(b)(3) (1996); N.Y. PUB. HEALTH LAW § 4406-d (McKinney Supp. 1997); R.I. GEN. LAWS § 23-17.13-3(C)(10) (1996); 28 TEX. ADMIN. CODE §§ 3.3705(4), 11.1601(b) (West 1997); Deselection, supra note 68, at 1845.
88. See N.Y. PUB. HEALTH LAW § 4406-d; Finklestein v. Aetna Health Plans of N.Y., No. 95 CIV. 6631, 1997 WL 419211, at *2 (S.D.N.Y. July 25, 1997); see also Maltz, supra note 46, at 1 (describing the various amendments to the New York Public Health Law contained in the Act).
89. See Finklestein, 1997 WL 419211, at *2. In Finklestein, the physicians contended that the termination-without-cause provision in their provider contract violated antitrust law by stifling competition based on quality of care. See id. The physicians argued that the threat of a no-cause termination impedes independent professional judgment and patient advocacy, reducing the overall quality of patient care. See id. The court ruled their claim moot on the grounds that the defendant, Aetna Health Plans, had amended its provider contracts to comply with New York Public Health Law § 4406 by removing the 'no-cause' termination provision. See id. at *3.
90. N.Y. PUB. HEALTH LAW § 4406-d(2)(a).
91. See id. § 4406-d(4).
92. See id.
93. See id.
94. See id.
95. See id.
96. See id. § 4406-d(5)(a)-(c).
97. See 29 U.S.C. §§ 1001-1461, 1144 (1988). According to the statute, federal law preempts any state law that "relates" to a benefit plan, but it does not relieve "any person from any . . . State laws which regulate insurance." Id. § 1144(a), (b)(2)(A). Recently, the Supreme Court of Connecticut ruled that the Employee Retirement Income Security Act (ERISA) did not preempt a physician's challenge to a termination-without-cause provision. See Napoletano v. CIGNA Healthcare, 680 A.2d 127, 142 (Conn. 1996). The court reasoned that a Connecticut statute requiring HMOs to develop, disclose and adhere to selection criteria does not "relate" to the administration of the plan because it does not attempt to prescribe the "substantive administrative aspects of the plan," such as eligibility, coverage, benefits, or plan regulations. Id. at 142. As with New York's new reform measure, the Connecticut statute does not require a benefit plan to use any particular criteria. See CONN. GEN. STAT. § 19a-647 (1997); Napoletano, 680 A.2d at 142. Thus, the plan may continue to use any criteria it chooses, as long as the HMO administrating the plan discloses and adheres to them. See Napoletano, 680 A.2d at 143. Should New York choose to follow Connecticut's lead, the new amendment to its Public Health Law will survive a preemption challenge on the grounds that, for ERISA purposes, the law does not relate to or change the administration of HMOs. See id.
98. See N.Y. PUB. HEALTH LAW § 4406-d(2)(a).
99. See id. § 4406-d(4).
100. See id. § 4406-d(2)(a); Maltz, supra note 46, at 1.
101. The law states only that health care plans must consult with their physicians when determining methodologies for collecting and analyzing professional profiling data. See N.Y. PUB. HEALTH LAW § 4406-d(4). Additionally, HMOs must inform their physicians of the information they have collected and the criteria on which they will base their evaluations. See id. New York, however, did carve out five physician activities that health plans are prohibited from using as recredentialing criteria. See id. § 4406-d(5)(a)-(e). The five activities are: (1) advocating on behalf of a covered patient; (2) filing a complaint against the plan; (3) appealing a decision of the plan; (4) providing information protected by New York's public health law to a patient; and (5) requesting a hearing or review of a medical decision denied by the plan. See id.
102. For a list of the statute's limitations on available reselection and deselection criteria, see supra note 84. The statute is silent on the use of economic factors in health plan decisions on provider retention. For a discussion relating to an increased risk for preemption were reform legislation to require particular selection criteria for HMOs, see supra note 82.
103. See Blum, supra note 8, at 202-03.
104. See Maltz, supra note 46, at 4.
105. See CODE OF MEDICAL ETHICS, supra note 14, at xiv; Latham, supra note 33, at 412; see also Edlin, supra note 9, at 82 (noting that even though MCOs previously only looked at professional qualifications and economic performance in credentialing physicians, customer satisfaction is now an important element of credentialing).
106. See Maltz, supra note 46, at 1 (stating that the New York law "shifts the status quo dramatically in favor of patients and consumers" by allowing them to make an informed choice about MCOs).
107. See Blum, supra note 8, at 200, 202 (remarking that deselected physicians will seek recourse in the courts, and stating that few states have laws regulating deselection).
108. See Maltz, supra note 46, at 4 (predicting the increased number of hearings as a result of deselection legislation requiring documented reasons for termination).
109. Courts in Texas and Connecticut have touched on the deselection problem, but they have not ruled on the matter. In Texas Medical Ass'n v. Aetna Life Insurance Co., after removal to federal court, the Fifth Circuit ruled on appeal that no private right of action existed under Texas insurance law for a physician deselected from a PPO. See 80 F.3d 153, 158 (5th Cir. 1996). The Supreme Court of Connecticut held that Connecticut law did afford a deselected physician a valid private right of action, but then remanded the case to the lower court for a decision on the merits. See Napoletano v. CIGNA Healthcare of Conn., 680 A.2d 127, 146 (Conn. 1996), cert. denied, 117 S. Ct. 1106 (1996). The Connecticut lower court has not yet decided the case.
110. Patients are not usually participants in the litigation that follows the termination of physicians by MCOs. See, e.g., Ambrosino v. Metropolitan Life Ins. Co., 889 F. Supp. 438, 440 (N.D. Cal. 1995).
111. Appelbaum v. Board of Directors, 163 Cal. Rptr. 831, 836 (1980).
112. See Delta Dental Plan v. Banasky, 33 Cal. Rptr. 2d 381, 385 (Cal. 2d 1994) (quoting Salkin v. California Dental Ass'n., 224 Cal. Rptr. 352, 356-57 (Ct. App. 1986)).
113. See id. at 381-82.
114. See id. at 385.
115. 899 p. Supp. at 445.
116. See id. at 440-41.
117. Id. at 445.
118. 674 A.2d 962 (N.H. 1996).
119. See id. at 963.
120. See id.
121. See id.
122. See id.
123. See id.
124. See id. at 964.
125. See id. at 965. The court reasoned that Dr. Harper was not under the direct control of Healthsource as an employee or as an independent contractor. See id. See generally infra notes 197-200 and accompanying text (explaining the difference between independent contractor physicians and employee physicians). His status ranks as that of a preferred provider, meaning that Healthsource pays him for the services rendered to its enrollees. See Harper, 674 A.2d at 965.
126. See Harper, 674 A.2d at 965.
127. See id. at 966.
128. Id. "Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement." RESTATEMENT (SECOND) OF CONTRACTS § 205 (1979). The court in Harper employed the implied covenant of good faith and fair dealing as a public policy exception to the terminable-at-will doctrine, but it modified the covenant to fit the context of HMO terminations. See 674 A.2d at 966. But see Burk v. K-Mart Corp., 770 P.2d 24, 29 (Okla. 1989) (holding that there is no implied duty of good faith and fair dealing in reference to termination in a terminable-at-will contract, and that an exception exists only to the extent that the employer violates a clear mandate of public policy).
129. See Harper, 674 A.2d at 966.
130. See id.; Liang, supra note 48, at 819, 834.
131. See discussion infra Part III.C.
132. See Harper, 674 A.2d at 967.
133. See id.
134. See id. This issue mainly goes to whether an MCO's acceptance of state Medicaid money and its agreements with state medical facilities qualify the MCO as a state actor. See Brief for the Appellee at 14-18, Harper v. Healthsource N.H., Inc., 674 A.2d 962 (N.H. 1996) (No. 95-535).
135. See Harper, 674 A.2d at 968; Berkeley Rice, Can a Health Plan Deselect You "Without Cause?", MED. ECON., Feb. 24, 1997, at 222, 228.
136. See Harper, 674 A.2d at 966 (stating that MCO terminations must comport with the covenant of good faith and fair dealing, but failing to define the parameters of the desired behavior); see also Ronai, supra note 47, at 4 (suggesting that future litigation will be necessary to define the scope of this developing due process theory).
137. Larkin, supra note 57, at 11-12.
138. See Peter T. Kilborn, Feeling Devalued by Change, Doctors Seek Union Banner, N.Y. TIMES, May 30, 1996, A1. Unfortunately for physicians, because they are independent contractors and not employees, banding together violates antitrust laws against collusion in service and price. See id. One Florida physician union plans to appeal to Congress for antitrust exemption. See id.
139. See Terry, supra note 1, at 141-42. Some physicians disturbed at the prospect of losing their autonomy to an HMO or PPO are choosing to form their own health plans in the form of independent practice associations (IPAs). See id. As organizations comprised of contractually associated physicians, IPAs contract with HMOs to deliver care to HMO enrollees, while also allowing their physicians to continue to see non-HMO patients. See MANAGED CARE AND THE MARKET, supra note 23, at 8-9. The IPA may pay its physicians on a FFS or capitation basis, which allows for more economic autonomy. See id. at 9. The IPA, however, may not be immune to the deselection problem as market forces initiate competition with other IPAs and other types of health care delivery organizations. See Terry, supra note 1, at 139.
140. See Blum, supra note 8, at 175-76; cf. Frances H. Miller, Capitation & Physician Autonomy: Master of the Universe or Just Another Prisoner's Dilemma?, 6 HEALTH MATRIX 89, 90 (1996) (noting capitation's potential to restore physicians' clinical autonomy).
141. See Blum, supra note 8, at 175-76.
142. See Larkin, supra note 57, at 11. Recently, however, a physician terminated from a Texas medical group raised a novel legal claim that has strong public policy implications. See Julie Jacob, Texas Physician Says His HMO Deselection Violates ADA, AM. MED. NEWS, Mar. 24, 1997, at 1, 1; Mary Chris Jaklevic, AMA Fights Doc Ouster, MOD. HEALTHCARE, Apr. 14, 1997, at 24, 24. In his complaint, Dr. Jorge C. Zamora alleges his termination without cause from his provider contract with Health Texas Medical Group violated the Americans with Disabilities Act (ADA). See Jacob, supra, at 24. Dr. Zamora argues that the ADA protects disabled persons as well as those associated with them in places of public accommodation. See id. at 30. The heart of his case is that physicians in the group suffered because of their association with patients with disabilities. See Jaklevic, supra, at 24. Dr. Zamora claims his termination resulted from his ordering too many tests and procedures for his chronically ill patients enrolled in local HMOs. See Jacob, supra, at 24. He further alleges that Health Texas Medical Group repeatedly told him that he ordered too many tests and made too many referrals to specialists. Dr. Zamora also claims that the health group subjected his medical decisions to extraordinary reviews and humiliated him at weekly staff meetings. See Jaklevic, supra, at 24. Dr. Zamora has filed a complaint, but the Texas court has not heard the case yet. See id.
143. See Larkin, supra note 57, at 11. Recently, however, a physician terminated from a Texas medical group raised a novel legal claim that has strong public policy implications. See Julie Jacob, Texas Physician Says His HMO Deselection Violates ADA, AM. MED. NEWS, Mar. 24, 1997, at 1, 1; Mary Chris Jaklevic, AMA Fights Doc Ouster, MOD. HEALTHCARE, Apr. 14, 1997, at 24, 24. In his complaint, Dr. Jorge C. Zamora alleges his termination without cause from his provider contract with Health Texas Medical Group violated the Americans with Disabilities Act (ADA). See Jacob, supra, at 24. Dr. Zamora argues that the ADA protects disabled persons as well as those associated with them in places of public accommodation. See id. at 30. The heart of his case is that physicians in the group suffered because of their association with patients with disabilities. See Jaklevic, supra, at 24. Dr. Zamora claims his termination resulted from his ordering too many tests and procedures for his chronically ill patients enrolled in local HMOs. See Jacob, supra, at 24. He further alleges that Health Texas Medical Group repeatedly told him that he ordered too many tests and made too many referrals to specialists. Dr. Zamora also claims that the health group subjected his medical decisions to extraordinary reviews and humiliated him at weekly staff meetings. See Jaklevic, supra, at 24. Dr. Zamora has filed a complaint, but the Texas court has not heard the case yet. See id.
144. See Provider Networks, supra note 1, at 977.
145. See generally Kassirer, supra note 7 (discussing the effect a physician's lack of job security has on the physician's ability to make medical decisions based solely on the patient's best interests).
146. See Maltz, supra note 46, at 3; see also Amos, supra note 4, at 12 (noting that the increase in appeals would lead to more bureaucracy and would infringe on the health plan's ability to drop bad doctors).
147. See generally Provider Networks, supra note 1 (discussing the impact of Harper and Ambrosino).
148. See 2 MARK A. ROTHSTEIN ET AL., EMPLOYMENT LAW § 9.12, at 276 (1994). The whistle-blowing exception to an employer's right to terminate an employee without cause occurs when the employer fires the employee for reporting illegal or harmful activity. See id.
149. See Harper v. Healthsource N.H., Inc., 674 A.2d 962, 963 (N.H. 1996).
150. See Ambrosino v. Metropolitan Life Ins. Co., 899 F. Supp. 438, 440-41 (N.D. Cal. 1995). In a recent decision, however, the California Court of Appeals stated that regardless of the reasons for the termination, a physician is entitled to a "common law right to fair procedure" despite the physician's prior agreement allowing termination without cause. See Potvin v. Metropolitan Life Ins. Co., 54 Cal. App. 4th 936, 948 (1997).
151. See Ambrosino, 899 F. Supp. at 441; Harper, 674 A.2d at 966.
152. See Ronai, supra note 36, at 12.
153. See Edlin, supra note 9, at 82; Jordan, supra note 59, at 892; Weinmann, supra note 48.
154. See Ronai, supra note 36, at 13.
155. See Edlin, supra note 9, at 82 (interviewing Dr. Linda Ash-Jackson, Vice President and Medical Director of Health Care Operations for Aetna Health Management).
156. See id.
157. See id.; Provan, supra note 4, at A15; Ronai, supra note 47, at 5.
158. See Larkin, supra note 57, at 12.
159. See id.
160. See Health Care Quality Improvement Act of 1986, 42 U.S.C. § 11133 (1986); see also Ronai, supra note 36, at 13 (discussing the impact of the HCQIA on physicians' fair-hearing rights during the deselection process).
161. See Larkin, supra note 57, at 12. This raises another public policy issue. Because MCOs do not always have to enter the names of physicians they deselect into the NPDB, they fail to notify other MCOs and hospitals of the physician's incompetence or malpractice. This failure of notification seems to go against the public's best interests. Cf. Amos, supra note 4, at 12 (noting that "insurers should have to report bad doctors anyway").
162. See Larkin, supra note 57, at 12.
163. See Harper v. Healthsource N.H., Inc., 674 A.2d 962, 967 (N.H. 1996).
164. Id.
165. See id.
166. MCOs use without cause terminations to protect themselves from inquiry into their credentialing criteria, which if revealed may leave a negative impression on physicians and, more important, their enrollees. See Provider Networks, supra note 1, at 978 (noting that a no-cause provision allows MCOs to avoid compliance with the reporting and peer review requirements of the HCQIA); see also Ronai, supra note 47, at 5 (stating that MCOs use without-cause clauses for numerous business or economic reasons generally unrelated to the physician's competence or professional conduct). Furthermore, MCOs use no-cause terminations to avoid the added bureaucracy associated with the disclosure of deselection criteria. See Amos, supra note 4, at 11 see also Provider Networks, supra note 1, at 978 (suggesting that MCOs want to use no-cause terminations to avoid having to draft difficult contracts).
167. See generally Liang, supra note 48, at 819 (stating that Harper did not identify the source of the public policy exception). See also Provider Networks, supra note 1 (discussing the possible increase in litigation after Harper).
168. Rocky Mountain Hosp. and Med. Serv. v. Mariani, 916 P.2d 519, 525 (Colo. 1996) (en banc).
169. See Harper v. Healthsource N.H., Inc., 674 A.2d 962, 966 (N.H. 1996).
170. Humana Med. Plan, Inc. v. Jacobson, 614 So. 2d 520, 522 (Fla. Dist. Ct. App. 1992).
171. See discussion infra Parts IV.A-B.
172. See CODE OF MEDICAL ETHICS, supra note 14, at xiv.
173. See id.
174. See id.
175. See id. §§ 8.05, 8.13; Ethical Issues in Managed Care, supra note 31, at 333.
176. CODE OF MEDICAL ETHICS, supra note 14, at xiv.
177. See generally id. (stating that a physician has a duty to seek changes in the law that will foster patients' best interests).
178. See Marc A. Rodwin, Strains in the Fiduciary Metaphor: Divided Physician Loyalties and Obligations in a Changing Health Care System, 21 AM. J.L. & MED. 241, 250 (1995). AMA membership is completely voluntary and the organization does not have "institutions or sanctions to enforce its rules." Id.
179. See. e.g., Lilly v. Commissioner, 188 F.2d 269, 271 (4th Cir. 1951), rev'd on other grounds, 343 U.S. 90 (1952); Hoemke v. New York Blood Ctr., 720 F. Supp. 45, 47 (S.D.N.Y. 1989); Manion v. N.P.W. Med. Ctr., 676 F. Supp. 585, 588 (M.D. Pa. 1987) (quoting Alexander v. Knight, 177 A.2d 142, 146 (Pa. Super. 1962)); Hammonds v. Aetna Casualty and Surety Co., 237 F. Supp. 96, 102 (N.D. Ohio 1965); Yates v. El Deiry, 513 N.E.2d 519, 522 (Ill. App. Ct. 1987); Warsofosky v. Sherman, 93 N.E.2d 612, 615 (Mass. 1950); Moore v. Webb, 345 S.W.2d 239, 243 (Mo. Ct. App. 1961); Carson v. Fine, 867 P.2d 610, 617 (Wash. 1994) (en banc); State v. Henning, 437 S.E.2d 452, 454 (W. Va. 1993); see also John Petrila, Ethics, Money and the Problem of Coercion in Managed Behavioral Health Care, 40 ST. LOUIS U. L.J. 359, 381 (1996) (discussing court cases that address the impact of financial considerations on physicians' fiduciary duties to their patients). See generally Rodwin, supra note 162, at 242 (analyzing physicians' fiduciary role to patients).
180. See Ethical Issues in Managed Care, supra note 31, at 331; Mechanic & Schlesinger, supra note 15, at 1693; Rodwin, supra note 162, at 245. Some argue that trust actually contributes to the success of the healing process itself. See Ethical Issues in Managed Care, supra note 31, at 331.
181. See Ethical Issues in Managed Care, supra note 31, at 331; Mechanic & Schlesinger, supra note 15, at 1693; Rodwin, supra note 162, at 245. Some argue that trust actually contributes to the success of the healing process itself. See Ethical Issues in Managed Care, supra note 31, at 331.
182. See Rodwin, supra note 162, at 241. The law defines a fiduciary as "a person entrusted with power or property to be used for the benefit of another." Id. at 243. A fiduciary usually has specialized knowledge or expertise that the beneficiary comes to rely, trust and depend on. See id. at 244. Thus, the law holds a fiduciary to a high standard of honesty and confidence and therefore, the fiduciary must carefully guard against conflicts of interests. See id.
183. See id. at 245-46.
184. See id. at 246.
185. See id. at 245.
186. See id. at 246.
187. Id. at 245-46.
188. See id. at 246-48.
189. See id. at 248-49. Marc Rodwin points out that State statutes and common law govern the conduct of trustees and agents. Federal public officials are supervised by the Office of Government Ethics and federal statutes. Lawyers are regulated by extensive court rules and ethical codes. State corporation statutes and common law regulate corporate officers and directors. Financial professionals, like money managers and brokers are regulated by the Securities and Exchange Commission as well as by several federal statutes. There is no equivalent oversight for physicians. Id. at 248.
190. See id. at 247-48.
191. See id. at 248-49.
192. See Kassirer, supra note 7, at 50; see also Ethical Issues in Managed Care, supra note 31, at 333 (noting that an MCO's system of reimbursement may "compromise the physician's duty of loyalty to patient care").
193. See generally Ronai, supra note 47, at 6 (noting that a deselected physician may be "denied access to the evidence that purportedly formed the basis of [the] termination discussion").
194. See Emanuel & Dubler, supra note 45, at 327; Mechanic & Schlesinger, supra note 15, at 1695. Further, some contend that deselection perpetrates a fraud on patients by misleading them into thinking their physician will continue to care for them as long as they are enrolled in the plan. See Chiu, supra note 1, at C1.
195. See, e.g., Murray v. United States, 329 F.2d 270, 272 (4th Cir. 1964); Hammonds v. Aetna Casualty and Surety Co., 237 F. Supp. 96, 98 (N.D. Ohio 1965); Vann v. Harden, 47 S.E.2d 314, 319 (Va. 1948); Rodwin, supra note 162, at 247.
196. See Emanuel & Dubler, supra note 45, at 327. Once an MCO deselects a physician, the patient can no longer visit that physician unless the patient is willing to forgo insurance coverage. See id. This situation forces the patient either to switch plans or to pay the physician's entire fee. See id.
197. See Mechanic & Schlesinger, supra note 15, at 1695.
198. See CMA Calls for Major Health Plans to Stop Terminations Without Cause,
199. See, e.g., Appendix to Respondent's Brief at 26, Harper v. Healthsource N.H., Inc., 674 A.2d 962 (N.H. 1996) (No. 95-535).
200. Id.
201. See VOGEL, supra note 21, at 5-6.
202. See. e.g., Brief for the Appellees at 4, Texas Med. Ass'n v. Aetna Life Ins. Co., 80 F.3d 153 (5th Cir. 1996) (No. 94-20690) (stating that Aetna's provider contract allowed for termination without cause with 90 days notice); Respondent's Brief at 2, Harper, 674 A.2d 962 (No. 95-535) (reproducing § 2.02 of Healthsource's Primary Care Physician Agreement, which requires six months notice for termination without cause).
203. See Eric M. Levine, A New Predicament for Physicians: The Concept of Medical Futility, the Physician 's Obligation to Render Inappropriate Treatment, and the Interplay of the Medical Standard of Care, 9 J.L. & HEALTH 69, 87-88 & n.122 (1994-1995) (citing Katsetos v. Nolan, 368 A.2d 172, 182 (Conn. 1976); Miller v. Greater Southeast Community Hosp., 508 A.2d 927, 929 (D.C. 1986); Capps v. Valk, 369 P.2d 238, 240 (Kan. 1962)).
204. See Liang, supra note 48, at 855-56 & n.320.
205. See Emanuel & Dubler, supra note 45, at 328; Ethical Issues in Managed Care, supra note 31, at 323; Kassirer, supra note 7, at 50; Liang, supra note 48, at 804; Rodwin, supra note 162, at 250-53.
206. See Kassirer, supra note 7, at 50-51; Rodwin, supra note 162, at 250-53; Amos, supra note 4, at 11; Provan, supra note 4, at A15.
207. See Goldinger v. Boron Oil Co., 375 F. Supp. 400, 411 (W.D. Pa. 1974); Rocky Mountain Hosp. and Med. Serv. v. Mariani, 916 P.2d 519, 523 (Colo. 1996) (en bane); Cloutier v. Great Atl. & Pac. Tea Co., 436 A.2d 1140, 1142 (N.H. 1981); Velantzas v. Colgate-Palmolive Co., 536 A.2d 237, 238 (N.J. 1988); Singh v. Cities Serv. Oil Co., 554 P.2d 1367, 1369 (Okla. 1987).
208. See supra text accompanying notes 6-11.
209. See Liang, supra note 48, at 799; cf. Edlin, supra note 9, at 82 (stating that MCOs always maintain an interest in economic factors).
210. See Edlin, supra note 9, at 82.
211. See generally Ambroze v. Aetna Health Plans, No. 95 CIV. 6631, 1996 WL 282069 (S.D.N.Y. 1996), vacated, No. 96-7778, 1997 WL 49018 (2d Cir. 1997) (holding that the plaintiffs failed to state an antitrust claim by alleging that the contract with the MCO undermined their professional judgment and thus, limited their ability to compete with each other); Blum, supra note 8, at 199 (holding that the plaintiffs must show that the MCO's refusal to negotiate harmed consumer choice).
212. As physicians' income and patient base becomes increasingly tied to their participation in managed care plans, the pressure on physicians to sign MCO contracts mounts. See supra note 39.
213. See Blum, supra note 8, at 199. This Note does not focus on the antitrust ramifications of deselection. For a discussion of such particulars, see id. at 199.
214. See MANAGED CARE AND THE MARKET, supra note 23, at 8.
215. See Ware v. United States, 67 F.3d 574, 579 (6th Cir. 1995); Arledge v. Stratmar Systems, Inc., 948 F.2d 845, 848 (2d Cir. 1991); Dorsey v. State Farm Ins. Co., 294 F.2d 678, 680-81 (5th Cir. 1961). An independent contractor is defined as "[a] person who contracts with another to do something for him but who is not controlled by the other nor subject to the other's right to control with respect to his physical conduct in the performance of the undertaking." RESTATEMENT (SECOND) OF AGENCY § 2(3) (1958). An employee, defined as a servant, is an "agent employed by a master to perform service in his affairs whose physical conduct in the performance of the service is controlled or is subject to the right of control by the master." Id. § 2(2). The distinction between an independent contractor and an employee raises an important public policy issue. If the physician was under the direct control of the MCO, as an employee in a "master-servant" context, then the MCO would invite claims against it for the corporate practice of medicine and vicarious negligence liability. See Blum, supra note 8, at 189-90. Currently, the independent contractor status of MCO providers thinly veils the fact that MCOs have a large amount of control and influence over the physician's medical decision-making process. See Peter E. Borkon, Exclusive Contracts: Are Constructively Terminated Incumbent Physicians Entitled to a Fair Hearing?, 17 J. LEGAL MED. 143, 148-49 (1996). Courts have held that the existence of terminable-at-will arrangements implies and maybe evinces the type of control present in the employer-employee relationship. See Goldinger v. Boron Oil Co., 375 F. Supp. 400, 411 (W.D. Pa. 1974); Tapager v. Birmingham, 75 F. Supp. 375, 385 (N.D. Iowa 1948); In re BKU Enterprises, Inc., 513 N.W.2d 382, 388 (N.D. 1994). Although MCOs label their providers as independent contractors, the arrangement appears akin to an employer-employee relationship. See ROTHSTEIN ET AL., supra note 132 § 2.28 (describing what defines an independent contractor). Not only does the terminable-at-will clause suggest the kind of control in a master-servant relationship, but the MCO also has significant control over their providers' practices through treatment approval requirements, financial incentives and deselection. Although the language of provider contracts tries to minimize the MCO's influence, the extent of the MCO's de facto unilateral control over the relationship may cast it in the light of a master-servant relationship. Finally, unlike a typical independent contractor, a physician working for one or more MCO(s) does not necessarily have a large base of nonplan patients. See generally supra note 39 and accompanying text (noting the increasing linkage between physician salary, patient pools and participation in managed care plans). Thus, the doctor's income may be significantly tied to the MCO contract. Cf. General Dynamics Corp. v. Superior Court, 876 P.2d 487, 495 (Cal. 1994) (holding that an in-house attorney was not an independent practitioner because his affiliation with the company denied him a base of multiple clients).
216. See BKU Enterprises, 513 N.W.2d at 388; RESTATEMENT (SECOND) OF AGENCY § 223 cmt. a (1958).
217. See Blum, supra note 8, at 199.
218. See Dallet, supra note 8, at 338.
219. See id.
220. See id. at 351.
221. See id.
222. See id. at 350.
223. See Blum, supra note 8, at 183; Dallet, supra note 8, at 338.
224. See Blum, supra note 8, at 183; Dallet, supra note 8, at 351.
225. See 42 U.S.C. §§ 11101, 11111-11115.
226. Id. § 11151(9); see Dallet, supra note 8, at 360.
227. See 42 U.S.C. § 11112(a)(1).
228. See id. § 11151(9)(E); Dallet, supra note 8, at 360.
229. See 42 U.S.C. § 11112(b); Ronai, supra note 36, at 13.
230. See Dallet, supra note 8, at 335.
231. See Ronai, supra note 36, at 13.
232. See Ronai, supra note 47, at 4-5; see also Blum, supra note 8, at 185 (noting that absent contractual bylaws, managed care credentialing systems currently operate "within a legal vacuum").
233. See supra notes 59-60 and accompanying text.
234. See Edlin, supra note 9, at 82.
235. See Deselection: Managed Care's Game of Musical Chairs, UROLOGY TIMES, Nov. 1, 1996, at 13, 13 [hereinafter Musical Chairs]. This comparison leads to a corollary problem. The managed care system forces providers to compete with one another for managed care contracts not just in terms of quality of care, but also in terms of cost of care. See id. Only a limited number of MCO contracts exist, which, as discussed in Musical Chairs, have great importance to physicians for financial and professional reasons. See id. Furthermore, during the initial phase, MCOs select more physicians than they will actually need. See id. Then, they record and evaluate the physicians on a cost and quality basis, and then the MCOs deselect those physicians who do not meet their criteria. See Id. In theory, this process leaves only the highest quality and most efficient doctors. See id. This selection process may have dangerous consequences for physicians and patients. See id. The danger manifests itself when physician bidding wars result in MCO-provider contracts that pay physicians less than they actually require to meet the professional standard of care. See id. Physician competition to acquire and maintain MCO contracts pits the patient's needs against the physician's need to satisfy undisclosed MCO cost expectations. See Emanuel & Dubler, supra note 45, at 327; Ethical Issues in Managed Care, supra note 31, at 333.
236. See Deselection: Managed Care's Game of Musical Chairs, UROLOGY TIMES, Nov. 1, 1996, at 13, 13 [hereinafter Musical Chairs]. This comparison leads to a corollary problem. The managed care system forces providers to compete with one another for managed care contracts not just in terms of quality of care, but also in terms of cost of care. See id. Only a limited number of MCO contracts exist, which, as discussed in Musical Chairs, have great importance to physicians for financial and professional reasons. See id. Furthermore, during the initial phase, MCOs select more physicians than they will actually need. See id. Then, they record and evaluate the physicians on a cost and quality basis, and then the MCOs deselect those physicians who do not meet their criteria. See Id. In theory, this process leaves only the highest quality and most efficient doctors. See id. This selection process may have dangerous consequences for physicians and patients. See id. The danger manifests itself when physician bidding wars result in MCO-provider contracts that pay physicians less than they actually require to meet the professional standard of care. See id. Physician competition to acquire and maintain MCO contracts pits the patient's needs against the physician's need to satisfy undisclosed MCO cost expectations. See Emanuel & Dubler, supra note 45, at 327; Ethical Issues in Managed Care, supra note 31, at 333.
237. See Edlin, supra note 9, at 82; Musical Chairs, supra note 218, at 13.
238. See Archer, supra note 20.
239. See Harper v. Healthsource N.H., Inc., 674 A.2d 962, 966 (N.H. 1996).
240. See id.
241. See Ambrosino v. Metropolitan Life Ins. Co., 899 F. Supp. 438, 445-46 (N.D. Cal. 1995); Harper, 674 A.2d at 966. See generally Provider Networks, supra note 1 (discussing the public policy implications of no-cause terminations).
242. See Provider Networks, supra note 1, at 977.
243. See Ambrosino, 899 F. Supp. at 440; Harper, 674 A.2d at 963. See generally Provider Networks, supra note 1 (summarizing the grounds for court action in the recent cases).
244. See generally Harper, 674 A.2d at 966 (holding that Dr. Harper has the right to appeal his termination without stating any supporting guidelines for such an appeal).
245. See generally id. (reasoning that even though the fiduciary nature of the physician-patient relationship could bar some instances of termination without cause, HMOs still have the basic contractual right to terminate physicians without cause).
246. See ROTHSTEIN ET AL., supra note 132, § 9.9.
247. See id.
248. See id.
249. See id. §§ 9.11-14.
250. 876 P.2d 487 (Cal. 1994).
251. See id. While blossoming of late, this professional ethics exception has actually existed for many years. In 1980, New Jersey recognized a public policy exception to the terminable-at-will doctrine based on fostering adherence to professional ethics codes. See Pierce v. Ortho Pharm. Corp., 417 A.2d 505, 511-12 (N.J. 1980).
252. see General Dynamics, 876 P.2d at 493-94.
253. See id. at 495.
254. See id. at 496-98.
255. 609 N.E.2d 105 (N.Y. 1992).
256. See id. at 110.
257. See id. at 108. The court also noted that although associates in a firm are employees of the firm, they "remain independent officers of the court responsible in a broader public sense for their professional obligations." Id. This finding narrows the parallel between Wieder and the scenario proposed by deselection.
258. See id. at 109.
259. Id. at 108.
260. See id. at 110.
261. See Harper v. Healthsource N.H., Inc., 674 A.2d 962, 965 (N.H. 1996); Wieder, 609 N.E.2d at 109.
262. See CODE OF MEDICAL ETHICS, supra note 14, § 8.13. See generally CENTER FOR PROF'L RESPONSIBILITY, AM. BAR ASS'N., MODEL RULES OF PROFESSIONAL CONDUCT (1997) (providing a comprehensive review of ethics in the legal profession).
263. See CODE OF MEDICAL ETHICS, supra note 14, § 8.13. See generally CENTER FOR PROF'L RESPONSIBILITY, AM. BAR ASS'N., MODEL RULES OF PROFESSIONAL CONDUCT (1997) (providing a comprehensive review of ethics in the legal profession).
264. See supra text accompanying note 14.
265. See CODE OF MEDICAL ETHICS, supra note 14, § 8.05 and accompanying text.
266. See Rocky Mountain Hosp. and Med. Serv. v. Mariani, 916 P.2d 519, 525 (Colo. 1996).
267. Id. at 519.
268. See id. at 524-25 (holding that the public's interest in an accountant's adherence to his professional ethical code merited an exception to a terminable-at-will clause). Although accountants as employees are distinguishable from both attorneys and physicians, all of these professionals have obligations and responsibilities independent of their employer to their clients or patients and to their professions. See generally id. (stating that professional employees have a responsibility to adhere to their respective ethical codes).
269. See id. at 525.
270. See id.
271. See CODE OF MEDICAL ETHICS, supra note 14, § 8.05 and accompanying text.
272. See id.
273. See Rocky Mountain Hosp. and Med. Serv. v. Mariani, 916 P.2d 519, 525 (Colo. 1996).
274. See CODE OF MEDICAL ETHICS, supra note 14, § 8.132.
275. See Mariani, 916 P.2d at 525.
276. See Provider Networks, supra note 1, at 978 (citing New Jersey Psychological Ass'n v. M.C.C. Behavioral Care, 5 Health L. Rptr. (BNA) No. 23, at 973 (June 6, 1996)).
277. See Provider Networks, supra note 1, at 978 (citing New Jersey Psychological Ass'n v. M.C.C. Behavioral Care, 5 Health L. Rptr. (BNA) No. 23, at 973 (June 6, 1996)).
278. See MANAGED CARE AND THE MARKET, supra note 23, at 28.
279. See Provan, supra note 4, at 15.
280. See MANAGED CARE AND THE MARKET, supra note 23, at 28-29; Study Finds Dip, supra note 40.
281. See MANAGED CARE AND THE MARKET, supra note 23, at 10-11.
282. Certain financial arrangements between providers and MCOs involving Medicare and Medicaid, however, have recently been regulated through HHS. See HMOs, Competitive Medical Plans & Health Care Prepayment Plans, 42 C.F.R. § 417 (1996).
283. See supra note 39 and accompanying text.
284. See supra notes 39-43 and accompanying text.
285. See supra note 56 and accompanying text.
286. See Provan, supra note 4, at A15.
287. See Provider Deselection, supra note 53.
288. See Archer, supra note 20, at 5.
289. See Hippocratic Oath and Patient Protection Act of 1996, H.R. 3222, 104th Cong. § 2 (1996).
290. See Requirements for Physician Incentive Plans, 42 C.F.R. § 417.479 (1996) for regulations promulgated by the HHS limiting the scope of MCO financial incentive clauses.