Reflective choice in health care: Using information technology to present allocation options

American Journal of Law and Medicine

Volumn 25, Issue 2-3, 1999, Pages 387-402

  Rai, Arti K ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

COST BENEFIT ANALYSIS; COST EFFECTIVENESS ANALYSIS; HEALTH CARE; HEALTH CARE FINANCING; HEALTH CARE MANAGEMENT; HEALTH CARE ORGANIZATION; HEALTH INSURANCE; HEALTH SERVICE; HOSPITALIZATION; MANAGED CARE; PATIENT REFERRAL; REVIEW; TREATMENT PLANNING;

AUTONOMY; CONTRACTS; COSTS AND BENEFITS; EVALUATION; GOVERNMENT REGULATION; HEALTH CARE AND PUBLIC HEALTH; INCENTIVES; INFORMATION DISSEMINATION; INTERNET; RESOURCE ALLOCATION; UNITED STATES;

CHOICE BEHAVIOR; CONTRACTS; COST-BENEFIT ANALYSIS; DISCLOSURE; GOVERNMENT REGULATION; HEALTH CARE RATIONING; HEALTH CARE SECTOR; HUMANS; INFORMATION DISSEMINATION; INFORMATION SERVICES; INFORMED CONSENT; INTERNET; MANAGED CARE PROGRAMS; PATIENT SELECTION; PERSONAL AUTONOMY; PRACTICE GUIDELINES; QUALITY ASSURANCE, HEALTH CARE; QUALITY-ADJUSTED LIFE YEARS; RESOURCE ALLOCATION; TREATMENT OUTCOME; UNITED STATES;

EID: 0032798084     PISSN: 00988588     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (47)

1. See generally Joseph Newhouse, An Iconoclastic View of Health Care Cost Containment, HEALTH AFF., Supp. 1993, at 152 (emphasizing new technology as the major reason for health care cost increases).
2. Students of health policy have long observed that cost-benefit tradeoffs are inevitable. See, e.g., David M. Eddy, Health System Reform: Will Controlling Costs Require Rationing Services?, 272 JAMA 324, 326 (1994) (analyzing rationing mechanisms as a means to contain health care costs unavoidably driven up by technological advances); Henry Aaron & William B. Schwartz, Rationing Health Care: The Choice Before Us, 247 SCIENCE 418, 418-19 (1990) (considering the benefits of technological advancements and their costs).
3. Students of health policy have long observed that cost-benefit tradeoffs are inevitable. See, e.g., David M. Eddy, Health System Reform: Will Controlling Costs Require Rationing Services?, 272 JAMA 324, 326 (1994) (analyzing rationing mechanisms as a means to contain health care costs unavoidably driven up by technological advances); Henry Aaron & William B. Schwartz, Rationing Health Care: The Choice Before Us, 247 SCIENCE 418, 418-19 (1990) (considering the benefits of technological advancements and their costs).
4. See Einer Elhauge, Allocating Health Care Morally, 82 CAL. L. REV. 1451, 1459 (1994) (noting that the United States could easily spend 100% of its gross national product on beneficial medical interventions).
5. Managed care refers to organizational structures that integrate health care finance and delivery in a structured way that allows for oversight of the quality and cost of health care services. See KENNETH WING, MICHAEL JACOBS & PATRICIA KUSZLER, THE LAW AND AMERICAN HEALTH CARE 83-84 (1998).
6. See Gail A. Jensen et al., The New Dominance of Managed Care: Insurance Trends in the 1990s, HEALTH AFF., Jan./Feb. 1997, at 125, 134. More than 75% of insured workers are enrolled in managed care plans. See id. at 125.
7. See Gail A. Jensen et al., The New Dominance of Managed Care: Insurance Trends in the 1990s, HEALTH AFF., Jan./Feb. 1997, at 125, 134. More than 75% of insured workers are enrolled in managed care plans. See id. at 125.
8. See generally Marsha Gold et al., Behind the Curve: A Critical Assessment of How Little is Known About Arrangements Between Managed Care Plans and Physicians, 52 MED. CARE RES. & REV. 307 (1995) (discussing the range of financial arrangements between physicians and health plans).
9. See WING, JACOBS & KUSZLER, supra note 4, at 84.
10. See Mark Hall, A Theory of Economic Informed Consent, 31 GA. L. REV. 511, 517 (1997). Six states have enacted laws that require managed care organizations (MCOs) to disclose their financial incentive plans. See id. at 517 n. 16 (ARIZ. REV. STAT. ANN. § 20-1076 (West Supp. 1993); GA. CODE ANN. § 33-20A-6 (Supp. 1996); ME. REV. STAT. ANN. tit. 24-A, § 4302 (1998); R.I. GEN. LAWS § 23-17.13-3 (1998); VT. STAT. ANN. tit. 18, § 9414 (1998); WYO. STAT. ANN. § 26-34-109 (Michie 1995)). In addition, the U.S. Court of Appeals for the Eighth Circuit has held that administrators of health plans governed by the Employee Retirement Income Security Act (ERISA) have a fiduciary duty to disclose financial incentives imposed on physicians. See Shea v. Esenten, 107 F.3d 625, 628-29 (8th Cir. 1997). Other courts have declined to follow the lead of the Eighth Circuit. See, e.g., Weiss v. Cigna Healthcare, Inc., 972 F. Supp. 748 (S.D.N.Y. 1997) (rejecting the contention that ERISA's general fiduciary obligations require disclosure of financial incentives by the health maintenance organization (HMO)).
11. See Mark Hall, A Theory of Economic Informed Consent, 31 GA. L. REV. 511, 517 (1997). Six states have enacted laws that require managed care organizations (MCOs) to disclose their financial incentive plans. See id. at 517 n. 16 (ARIZ. REV. STAT. ANN. § 20-1076 (West Supp. 1993); GA. CODE ANN. § 33-20A-6 (Supp. 1996); ME. REV. STAT. ANN. tit. 24-A, § 4302 (1998); R.I. GEN. LAWS § 23-17.13-3 (1998); VT. STAT. ANN. tit. 18, § 9414 (1998); WYO. STAT. ANN. § 26-34-109 (Michie 1995)). In addition, the U.S. Court of Appeals for the Eighth Circuit has held that administrators of health plans governed by the Employee Retirement Income Security Act (ERISA) have a fiduciary duty to disclose financial incentives imposed on physicians. See Shea v. Esenten, 107 F.3d 625, 628-29 (8th Cir. 1997). Other courts have declined to follow the lead of the Eighth Circuit. See, e.g., Weiss v. Cigna Healthcare, Inc., 972 F. Supp. 748 (S.D.N.Y. 1997) (rejecting the contention that ERISA's general fiduciary obligations require disclosure of financial incentives by the health maintenance organization (HMO)).
12. See Mark Hall, A Theory of Economic Informed Consent, 31 GA. L. REV. 511, 517 (1997). Six states have enacted laws that require managed care organizations (MCOs) to disclose their financial incentive plans. See id. at 517 n. 16 (ARIZ. REV. STAT. ANN. § 20-1076 (West Supp. 1993); GA. CODE ANN. § 33-20A-6 (Supp. 1996); ME. REV. STAT. ANN. tit. 24-A, § 4302 (1998); R.I. GEN. LAWS § 23-17.13-3 (1998); VT. STAT. ANN. tit. 18, § 9414 (1998); WYO. STAT. ANN. § 26-34-109 (Michie 1995)). In addition, the U.S. Court of Appeals for the Eighth Circuit has held that administrators of health plans governed by the Employee Retirement Income Security Act (ERISA) have a fiduciary duty to disclose financial incentives imposed on physicians. See Shea v. Esenten, 107 F.3d 625, 628-29 (8th Cir. 1997). Other courts have declined to follow the lead of the Eighth Circuit. See, e.g., Weiss v. Cigna Healthcare, Inc., 972 F. Supp. 748 (S.D.N.Y. 1997) (rejecting the contention that ERISA's general fiduciary obligations require disclosure of financial incentives by the health maintenance organization (HMO)).
13. See Mark Hall, A Theory of Economic Informed Consent, 31 GA. L. REV. 511, 517 (1997). Six states have enacted laws that require managed care organizations (MCOs) to disclose their financial incentive plans. See id. at 517 n. 16 (ARIZ. REV. STAT. ANN. § 20-1076 (West Supp. 1993); GA. CODE ANN. § 33-20A-6 (Supp. 1996); ME. REV. STAT. ANN. tit. 24-A, § 4302 (1998); R.I. GEN. LAWS § 23-17.13-3 (1998); VT. STAT. ANN. tit. 18, § 9414 (1998); WYO. STAT. ANN. § 26-34-109 (Michie 1995)). In addition, the U.S. Court of Appeals for the Eighth Circuit has held that administrators of health plans governed by the Employee Retirement Income Security Act (ERISA) have a fiduciary duty to disclose financial incentives imposed on physicians. See Shea v. Esenten, 107 F.3d 625, 628-29 (8th Cir. 1997). Other courts have declined to follow the lead of the Eighth Circuit. See, e.g., Weiss v. Cigna Healthcare, Inc., 972 F. Supp. 748 (S.D.N.Y. 1997) (rejecting the contention that ERISA's general fiduciary obligations require disclosure of financial incentives by the health maintenance organization (HMO)).
14. See Mark Hall, A Theory of Economic Informed Consent, 31 GA. L. REV. 511, 517 (1997). Six states have enacted laws that require managed care organizations (MCOs) to disclose their financial incentive plans. See id. at 517 n. 16 (ARIZ. REV. STAT. ANN. § 20-1076 (West Supp. 1993); GA. CODE ANN. § 33-20A-6 (Supp. 1996); ME. REV. STAT. ANN. tit. 24-A, § 4302 (1998); R.I. GEN. LAWS § 23-17.13-3 (1998); VT. STAT. ANN. tit. 18, § 9414 (1998); WYO. STAT. ANN. § 26-34-109 (Michie 1995)). In addition, the U.S. Court of Appeals for the Eighth Circuit has held that administrators of health plans governed by the Employee Retirement Income Security Act (ERISA) have a fiduciary duty to disclose financial incentives imposed on physicians. See Shea v. Esenten, 107 F.3d 625, 628-29 (8th Cir. 1997). Other courts have declined to follow the lead of the Eighth Circuit. See, e.g., Weiss v. Cigna Healthcare, Inc., 972 F. Supp. 748 (S.D.N.Y. 1997) (rejecting the contention that ERISA's general fiduciary obligations require disclosure of financial incentives by the health maintenance organization (HMO)).
15. See Mark Hall, A Theory of Economic Informed Consent, 31 GA. L. REV. 511, 517 (1997). Six states have enacted laws that require managed care organizations (MCOs) to disclose their financial incentive plans. See id. at 517 n. 16 (ARIZ. REV. STAT. ANN. § 20-1076 (West Supp. 1993); GA. CODE ANN. § 33-20A-6 (Supp. 1996); ME. REV. STAT. ANN. tit. 24-A, § 4302 (1998); R.I. GEN. LAWS § 23-17.13-3 (1998); VT. STAT. ANN. tit. 18, § 9414 (1998); WYO. STAT. ANN. § 26-34-109 (Michie 1995)). In addition, the U.S. Court of Appeals for the Eighth Circuit has held that administrators of health plans governed by the Employee Retirement Income Security Act (ERISA) have a fiduciary duty to disclose financial incentives imposed on physicians. See Shea v. Esenten, 107 F.3d 625, 628-29 (8th Cir. 1997). Other courts have declined to follow the lead of the Eighth Circuit. See, e.g., Weiss v. Cigna Healthcare, Inc., 972 F. Supp. 748 (S.D.N.Y. 1997) (rejecting the contention that ERISA's general fiduciary obligations require disclosure of financial incentives by the health maintenance organization (HMO)).
16. See Mark Hall, A Theory of Economic Informed Consent, 31 GA. L. REV. 511, 517 (1997). Six states have enacted laws that require managed care organizations (MCOs) to disclose their financial incentive plans. See id. at 517 n. 16 (ARIZ. REV. STAT. ANN. § 20-1076 (West Supp. 1993); GA. CODE ANN. § 33-20A-6 (Supp. 1996); ME. REV. STAT. ANN. tit. 24-A, § 4302 (1998); R.I. GEN. LAWS § 23-17.13-3 (1998); VT. STAT. ANN. tit. 18, § 9414 (1998); WYO. STAT. ANN. § 26-34-109 (Michie 1995)). In addition, the U.S. Court of Appeals for the Eighth Circuit has held that administrators of health plans governed by the Employee Retirement Income Security Act (ERISA) have a fiduciary duty to disclose financial incentives imposed on physicians. See Shea v. Esenten, 107 F.3d 625, 628-29 (8th Cir. 1997). Other courts have declined to follow the lead of the Eighth Circuit. See, e.g., Weiss v. Cigna Healthcare, Inc., 972 F. Supp. 748 (S.D.N.Y. 1997) (rejecting the contention that ERISA's general fiduciary obligations require disclosure of financial incentives by the health maintenance organization (HMO)).
17. See Mark Hall, A Theory of Economic Informed Consent, 31 GA. L. REV. 511, 517 (1997). Six states have enacted laws that require managed care organizations (MCOs) to disclose their financial incentive plans. See id. at 517 n. 16 (ARIZ. REV. STAT. ANN. § 20-1076 (West Supp. 1993); GA. CODE ANN. § 33-20A-6 (Supp. 1996); ME. REV. STAT. ANN. tit. 24-A, § 4302 (1998); R.I. GEN. LAWS § 23-17.13-3 (1998); VT. STAT. ANN. tit. 18, § 9414 (1998); WYO. STAT. ANN. § 26-34-109 (Michie 1995)). In addition, the U.S. Court of Appeals for the Eighth Circuit has held that administrators of health plans governed by the Employee Retirement Income Security Act (ERISA) have a fiduciary duty to disclose financial incentives imposed on physicians. See Shea v. Esenten, 107 F.3d 625, 628-29 (8th Cir. 1997). Other courts have declined to follow the lead of the Eighth Circuit. See, e.g., Weiss v. Cigna Healthcare, Inc., 972 F. Supp. 748 (S.D.N.Y. 1997) (rejecting the contention that ERISA's general fiduciary obligations require disclosure of financial incentives by the health maintenance organization (HMO)).
18. See Gail Agrawal, Chicago Hope Meets the Chicago School, 96 MICH. L. REV. 1793, 1816-17 (1998) (arguing that a "knowledgeable consumer of health care services searches in vain in the promotional materials for any statements conveying to the unsuspecting that the coverage or the medical care will be less than optimal.").
19. Significantly, the relevant comparison must be between tradeoffs that the enrollee would have made ex ante (i.e., at enrollment) and those made by the physician and/or third-party utilization reviewer. If cost containment is the goal, the ex post preferences of insured individuals cannot be used. If an individual is fully insured, she has little incentive to consider costs.
20. This Article uses the term rationing to encompass cost-benefit tradeoffs generally, not simply cost-based denials of beneficial care by administrative bodies. See, e.g., MARK A. HALL, MAKING MEDICAL SPENDING DECISIONS 6 (1997) (using the terms rationing and allocation interchangeably to denote the "implicit or explicit denial of marginally beneficial treatment out of consideration for its cost"). But see Clark C. Havighurst, Prospective Self-Denial: Can Consumers Contract Today to Accept Health Care Rationing Tomorrow?, 140 U. PA. L. REV. 1755, 1762-64 (1992) (arguing that the term rationing applies only to government decisions that limit the amount of beneficial health care individuals can purchase in the private market).
21. This Article uses the term rationing to encompass cost-benefit tradeoffs generally, not simply cost-based denials of beneficial care by administrative bodies. See, e.g., MARK A. HALL, MAKING MEDICAL SPENDING DECISIONS 6 (1997) (using the terms rationing and allocation interchangeably to denote the "implicit or explicit denial of marginally beneficial treatment out of consideration for its cost"). But see Clark C. Havighurst, Prospective Self-Denial: Can Consumers Contract Today to Accept Health Care Rationing Tomorrow?, 140 U. PA. L. REV. 1755, 1762-64 (1992) (arguing that the term rationing applies only to government decisions that limit the amount of beneficial health care individuals can purchase in the private market).
22. See discussion infra Part II. An issue that arises in discussions of explicit rationing concerns whether disclosures regarding such rationing need to be made only at the time of enrollment or should be made both at enrollment and when a specific, cost-based decision not to recommend certain services is made. Compare HALL, supra note 11, at 202-12 (arguing that disclosure and consent at enrollment represents consent to future cost-saving medical spending decisions) with Agrawal, supra note 9, at 1809-21 (arguing that disclosure is needed both at enrollment and at the time of the specific clinical decision). Because this Article addresses only the question of informed choice at enrollment, it does not focus on this issue.
23. See discussion infra Part II. An issue that arises in discussions of explicit rationing concerns whether disclosures regarding such rationing need to be made only at the time of enrollment or should be made both at enrollment and when a specific, cost-based decision not to recommend certain services is made. Compare HALL, supra note 11, at 202-12 (arguing that disclosure and consent at enrollment represents consent to future cost-saving medical spending decisions) with Agrawal, supra note 9, at 1809-21 (arguing that disclosure is needed both at enrollment and at the time of the specific clinical decision). Because this Article addresses only the question of informed choice at enrollment, it does not focus on this issue.
24. For further discussion of this argument, see infra notes 57-58, 60-63 and accompanying text.
25. See David Charny, Hypothetical Bargains: The Normative Structure of Contract Interpretation, 89 MICH. L. REV. 1815, 1854-55 (1991) (noting that the application of the contra proferentum (against the proffering party) rule by courts is rooted in concerns about the nonproffering party's lack of meaningful choice or lack of information in accepting the bargain in question). For a discussion of various cases in which courts have construed exclusionary clauses in health insurance contracts extremely narrowly, see Mark Hall & Gerard Anderson, Health Insurers' Assessment of Medical Necessity, 140 U. PA. L. REV. 1637, 1645-47 (1992).
26. See David Charny, Hypothetical Bargains: The Normative Structure of Contract Interpretation, 89 MICH. L. REV. 1815, 1854-55 (1991) (noting that the application of the contra proferentum (against the proffering party) rule by courts is rooted in concerns about the nonproffering party's lack of meaningful choice or lack of information in accepting the bargain in question). For a discussion of various cases in which courts have construed exclusionary clauses in health insurance contracts extremely narrowly, see Mark Hall & Gerard Anderson, Health Insurers' Assessment of Medical Necessity, 140 U. PA. L. REV. 1637, 1645-47 (1992).
27. See HAVIGHURST, supra note 21, at 21-22. Another argument that could be made against choice is that, because of the collective nature of health insurance, it is unlikely that individuals would be able to find a rationing scheme that precisely reflected their every preference. Nonetheless, the limitations on individual preferences imposed by a choice-based framework would be less substantial than those imposed by a single, centrally administered rationing scheme.
28. See. e.g., Judith H. Hibbard et al., Informing Consumer Decisions in Health Care: Implications From Decision-making Research, 75 MILBANK Q. 395, 400 (1997) (noting that a "person in good health cannot always foresee what his or her needs or values might be during an illness"). For discussions of the analogous problem of adequate reflection in ex ante decisions regarding advance directives, see Joan M. Teno et al., Do Advance Directives Provide Instructions That Direct Care?, 45 J. AM. GERIATRICS SOC'Y 508, 511 (1997); Susan Wolf et al., Sources of Concern about the Patient Self-Determination Act, 325 NEW ENG. J. MED. 1666, 1668 (1991); Allen Buchanan, Advance Directives and the Personal Identity, 17 PHIL. & PUB. AFF. 277, 277-79 (1988). For a general discussion of problems with ex ante choices that bind for a long period of time, see DEREK PARFIT, REASONS AND PERSONS 326-29 (1984).
29. See. e.g., Judith H. Hibbard et al., Informing Consumer Decisions in Health Care: Implications From Decision-making Research, 75 MILBANK Q. 395, 400 (1997) (noting that a "person in good health cannot always foresee what his or her needs or values might be during an illness"). For discussions of the analogous problem of adequate reflection in ex ante decisions regarding advance directives, see Joan M. Teno et al., Do Advance Directives Provide Instructions That Direct Care?, 45 J. AM. GERIATRICS SOC'Y 508, 511 (1997); Susan Wolf et al., Sources of Concern about the Patient Self-Determination Act, 325 NEW ENG. J. MED. 1666, 1668 (1991); Allen Buchanan, Advance Directives and the Personal Identity, 17 PHIL. & PUB. AFF. 277, 277-79 (1988). For a general discussion of problems with ex ante choices that bind for a long period of time, see DEREK PARFIT, REASONS AND PERSONS 326-29 (1984).
30. See. e.g., Judith H. Hibbard et al., Informing Consumer Decisions in Health Care: Implications From Decision-making Research, 75 MILBANK Q. 395, 400 (1997) (noting that a "person in good health cannot always foresee what his or her needs or values might be during an illness"). For discussions of the analogous problem of adequate reflection in ex ante decisions regarding advance directives, see Joan M. Teno et al., Do Advance Directives Provide Instructions That Direct Care?, 45 J. AM. GERIATRICS SOC'Y 508, 511 (1997); Susan Wolf et al., Sources of Concern about the Patient Self-Determination Act, 325 NEW ENG. J. MED. 1666, 1668 (1991); Allen Buchanan, Advance Directives and the Personal Identity, 17 PHIL. & PUB. AFF. 277, 277-79 (1988). For a general discussion of problems with ex ante choices that bind for a long period of time, see DEREK PARFIT, REASONS AND PERSONS 326-29 (1984).
31. See. e.g., Judith H. Hibbard et al., Informing Consumer Decisions in Health Care: Implications From Decision-making Research, 75 MILBANK Q. 395, 400 (1997) (noting that a "person in good health cannot always foresee what his or her needs or values might be during an illness"). For discussions of the analogous problem of adequate reflection in ex ante decisions regarding advance directives, see Joan M. Teno et al., Do Advance Directives Provide Instructions That Direct Care?, 45 J. AM. GERIATRICS SOC'Y 508, 511 (1997); Susan Wolf et al., Sources of Concern about the Patient Self-Determination Act, 325 NEW ENG. J. MED. 1666, 1668 (1991); Allen Buchanan, Advance Directives and the Personal Identity, 17 PHIL. & PUB. AFF. 277, 277-79 (1988). For a general discussion of problems with ex ante choices that bind for a long period of time, see DEREK PARFIT, REASONS AND PERSONS 326-29 (1984).
32. See. e.g., Judith H. Hibbard et al., Informing Consumer Decisions in Health Care: Implications From Decision-making Research, 75 MILBANK Q. 395, 400 (1997) (noting that a "person in good health cannot always foresee what his or her needs or values might be during an illness"). For discussions of the analogous problem of adequate reflection in ex ante decisions regarding advance directives, see Joan M. Teno et al., Do Advance Directives Provide Instructions That Direct Care?, 45 J. AM. GERIATRICS SOC'Y 508, 511 (1997); Susan Wolf et al., Sources of Concern about the Patient Self-Determination Act, 325 NEW ENG. J. MED. 1666, 1668 (1991); Allen Buchanan, Advance Directives and the Personal Identity, 17 PHIL. & PUB. AFF. 277, 277-79 (1988). For a general discussion of problems with ex ante choices that bind for a long period of time, see DEREK PARFIT, REASONS AND PERSONS 326-29 (1984).
33. See Norman Weinstein, Optimistic Biases About Personal Risks, 246 SCIENCE 1232-33 (1989); see also Amos Tversky & Daniel Kahneman, Judgment Under Uncertainty: Heuristics and Biases, 185 SCIENCE 1124, 1128-30 (1974) (noting that public reliance on common, generally reasonable, heuristics can lead to faulty predictions regarding uncertain events).
34. See Norman Weinstein, Optimistic Biases About Personal Risks, 246 SCIENCE 1232-33 (1989); see also Amos Tversky & Daniel Kahneman, Judgment Under Uncertainty: Heuristics and Biases, 185 SCIENCE 1124, 1128-30 (1974) (noting that public reliance on common, generally reasonable, heuristics can lead to faulty predictions regarding uncertain events).
35. See Hibbard et al., supra note 60, at 398-99. Individuals are particularly confused by information about quality variables. See id. For example, with respect to a quality variable, such as a managed care plan's rate of mammography in women, individuals may fail to understand the concept of a rate, may erroneously believe that breast cancer is largely found in men or may erroneously believe that screening programs are not efficacious. See Jacquelyn Jewett & Judith Hibbard, Comprehension of Quality Care Indicators: Differences Among Privately Insured, Publicly Insured, and Uninsured, HEALTH CARE FIN. REV., Fall 1996, at 75, 83.
36. See Hibbard et al., supra note 60, at 398-99. Individuals are particularly confused by information about quality variables. See id. For example, with respect to a quality variable, such as a managed care plan's rate of mammography in women, individuals may fail to understand the concept of a rate, may erroneously believe that breast cancer is largely found in men or may erroneously believe that screening programs are not efficacious. See Jacquelyn Jewett & Judith Hibbard, Comprehension of Quality Care Indicators: Differences Among Privately Insured, Publicly Insured, and Uninsured, HEALTH CARE FIN. REV., Fall 1996, at 75, 83.
37. See Hibbard et al., supra note 60, at 398-99. Individuals are particularly confused by information about quality variables. See id. For example, with respect to a quality variable, such as a managed care plan's rate of mammography in women, individuals may fail to understand the concept of a rate, may erroneously believe that breast cancer is largely found in men or may erroneously believe that screening programs are not efficacious. See Jacquelyn Jewett & Judith Hibbard, Comprehension of Quality Care Indicators: Differences Among Privately Insured, Publicly Insured, and Uninsured, HEALTH CARE FIN. REV., Fall 1996, at 75, 83.
38. See Hibbard et al., supra note 60, at 396-400 (discussing the effect of too much information on decision making).
39. See generally Leonard M. Fleck, Just Health Care Rationing: A Democratic Decision-making
40. See Jewett & Hibbard, supra note 62, at 91.
41. In the somewhat analogous context of ex ante decision making regarding advance directives, see supra note 60, tools to help patients think about future medical decisions have been developed. See Wolf et al., supra note 60, at 1668. These tools provide valuable general information on how to assist individuals in thinking about health values.
42. Albert Hirschman coined the terms "voice option" and "exit option" several decades ago. See ALBERT HIRSCHMAN, EXIT, VOICE, AND LOYALTY: RESPONSES TO DECLINES IN FIRMS, ORGANIZATIONS, AND STATES 4 (1970). More recently, Ezekiel and Linda Emanuel have argued that although the voice model views health care as a community good, the exit model views it as a market good. See Emanuel & Emanuel, supra note 57, at 147.
43. Albert Hirschman coined the terms "voice option" and "exit option" several decades ago. See ALBERT HIRSCHMAN, EXIT, VOICE, AND LOYALTY: RESPONSES TO DECLINES IN FIRMS, ORGANIZATIONS, AND STATES 4 (1970). More recently, Ezekiel and Linda Emanuel have argued that although the voice model views health care as a community good, the exit model views it as a market good. See Emanuel & Emanuel, supra note 57, at 147.
44. Cf. Suzanna Sherry, Responsible Republicanism: Educating for Citizenship, 62 U. CHI. L. REV. 131, 202 (1995) (arguing, in the context of school choice, that the very act of choosing a school could be educational). Of course, because of advanced age or other considerations, some individuals may prefer not to play an active role in determining their health care priorities ex ante. These individuals could choose among various default options: one obvious default option would be the allocation scheme chosen by the largest number of individuals.
45. See Frances H. Miller, Health Care Information and Informed Consent: Computers and the Doctor-Patient Relationship, 31 IND. L. REV. 1019, 1021 (1998). In response to this explosive growth of information, much of it intended for direct consumption by patients and potential patients, there has been much discussion about mechanisms for rating the quality of Internet health care information. See Alejandro R. Jadad & Anna Gagliardi, Rating Health Care Information on the Internet: Navigating to Knowledge or to Babel?, 279 JAMA 611, 611 (1998) (identifying ratings of health care information on the Internet and evaluating their rating criteria).
46. See Frances H. Miller, Health Care Information and Informed Consent: Computers and the Doctor-Patient Relationship, 31 IND. L. REV. 1019, 1021 (1998). In response to this explosive growth of information, much of it intended for direct consumption by patients and potential patients, there has been much discussion about mechanisms for rating the quality of Internet health care information. See Alejandro R. Jadad & Anna Gagliardi, Rating Health Care Information on the Internet: Navigating to Knowledge or to Babel?, 279 JAMA 611, 611 (1998) (identifying ratings of health care information on the Internet and evaluating their rating criteria).
47. See Miller, supra note 84, at 1021 n. 19.