The second revolution in informed consent: Comparing physicians to each other

Northwestern University Law Review

Volumn 94, Issue 1, 1999, Pages 1-43

  Twerski, Aaron D ^a   Cohen, Neil B ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

ANGIOPLASTY; ARTICLE; CLINICAL PRACTICE; CORONARY ARTERY BYPASS GRAFT; EMPIRICAL APPROACH; HEALTH INSURANCE; HOSPITAL; HUMAN; INFORMED CONSENT; INTERPERSONAL COMMUNICATION; LEGAL APPROACH; LEGAL ASPECT; LEGAL LIABILITY; MALPRACTICE; MORTALITY; PENSION; PROFESSIONAL PATIENT RELATIONSHIP; RISK; STATISTICS; SURGERY; UNITED STATES;

EMPIRICAL APPROACH; LEGAL APPROACH; PROFESSIONAL PATIENT RELATIONSHIP;

ANGIOPLASTY; CORONARY ARTERY BYPASS; DISCLOSURE; EMPLOYEE RETIREMENT INCOME SECURITY ACT; HOSPITALS; HUMANS; INFORMED CONSENT; LIABILITY, LEGAL; MALPRACTICE; MANAGED CARE PROGRAMS; NEW YORK; PHYSICIAN'S PRACTICE PATTERNS; RISK; SURGICAL PROCEDURES, OPERATIVE; UNITED STATES;

EID: 0033183788     PISSN: 00293571     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (246)

1. The first serious scholarly discussion clearly advocating an informed consent cause of action is Allan H. McCoid, A Reappraisal of Liability for Unauthorized Medical Treatment, 41 MINN. L. REV. 381, 426-30 (1957). Prior to the McCoid article there was no mention of informed consent in any of the major tort treatises. A California appellate court first coined the term "informed consent" in Salgo v. Leland Stanford Jr. Univ. Bd. of Trustees, 317 P.2d 170, 181 (Cal. Dist Ct. App. 1957). Much of the debate surrounds the standards that should govern the determinations regarding, first, which information should be provided and, second, whether the failure to provide this information caused the patient harm. As to the first point, in the early years of the informed consent doctrine, courts almost exclusively used the traditional tort medical malpractice standard - the "reasonable doctor" test - as the measure for appropriate disclosure. The case credited with giving birth to the informed consent doctrine, Salgo, 317 P.2d at 181, was vague as to the standard of disclosure. The court said that the physician has a duty to disclose "any facts which are necessary to form the basis of an intelligent consent by the patient to the proposed treatment." Id. The court went on, however, to grant the physician "a certain amount of discretion" with regard to the facts to be disclosed. Beginning with Natanson v. Kline, 350 P.2d 1093 (Kan. 1960), many courts held that the standard for medical disclosure was that which a reasonable medical doctor would provide under the circumstances. See, e.g., Rush v. Miller, 648 F.2d 1075, 1076 (6th Cir. 1981); Shetter v. Rochelle, 409 P.2d 74, 86 (Ariz. Ct. App. 1965), modified, 411 P.2d 45 (Ariz. Ct. App. 1966); Fuller v. Starnes, 597 S.W.2d 88, 89 (Ark. 1980); Ditlow v. Kaplan, 181 So. 2d 226, 228 (FIa. Dist. Ct. App. 1965); Laurent B. Frantz, Annotation, Modern Status of Views as to General Measure of Physician's Duty to Inform Patient of Risks of Proposed Treatment, 88 A.L.R. 3d 1008 (1978). This test almost invariably requires medical expert testimony as to what a prudent doctor would tell a similarly situated patient. See, e.g., Riedisser v. Nelson, 534 P.2d 1052, 1055 (Ariz. 1975); Nishi v. Hartwell, 473 P.2d 116, 121 (Haw. 1970); Casey v. Penn, 360 N.E.2d 93, 101 (Ill. App. Ct. 1977); Bly v. Rhoads, 222 S.E.2d 783, 787-88 (Va. 1976). But see Leyson v. Steuermann, 705 P.2d 37 (Haw. Ct. App. 1985). See generally Daniel E. Feld, Annotation, Necessity and Sufficiency of Expert Evidence to Establish Existence and Extent of Physician's Duty to Inform Patient of Risks of Proposed Treatment, 52 A.L.R. 3d 1084 (1973). Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972), changed the contours of the physician's duty to disclose material risks to the patient Canterbury defined a risk as material if a "reasonable person" in the patient's position would wish to know about it prior to making a decision. A patient's right to information was no longer dictated by the medical profession's assessment of which risks and alternatives to treatment are worthy of consideration. Id. at 785; see also Cobbs v. Grant, 502 P.2d 1 (Cal. 1972); Wilkinson v. Vesey, 295 A.2d 676 (R.I. 1972); Miller v. Kennedy, 522 P.2d 852 (Wash. Ct. App. 1974), aff'd per curiam, 530 P.2d 334 (Wash. 1975). For a review of authority adopting the "reasonable patient" standard for disclosure, see Armand Arabian, Informed Consent: From the Ambivalence of Arato to the Thunder of Thor, 10 ISSUES IN L. & MED. 261, 263-64 n.11 (1994). As to causation, a small minority of courts have adopted a subjective causation standard (i.e., what would this patient have decided if provided with adequate information?). See, e.g., Scott v. Bradford, 606 P.2d 554 (Okla. 1979); Arena v. Gingrich, 733 P.2d 75 (Or. Ct. App. 1987); Wilkinson, 295 A.2d at 690. Most courts have opted for an objective standard (i.e., what would a reasonable patient in the patient's position have decided?). See, e.g., Canterbury, 464 F.2d at 790-91; Cobbs, 502 P.2d at 11-12; Reikes v. Martin, 471 So. 2d 385, 392-93 (Miss. 1985).
2. The first serious scholarly discussion clearly advocating an informed consent cause of action is Allan H. McCoid, A Reappraisal of Liability for Unauthorized Medical Treatment, 41 MINN. L. REV. 381, 426-30 (1957). Prior to the McCoid article there was no mention of informed consent in any of the major tort treatises. A California appellate court first coined the term "informed consent" in Salgo v. Leland Stanford Jr. Univ. Bd. of Trustees, 317 P.2d 170, 181 (Cal. Dist Ct. App. 1957). Much of the debate surrounds the standards that should govern the determinations regarding, first, which information should be provided and, second, whether the failure to provide this information caused the patient harm. As to the first point, in the early years of the informed consent doctrine, courts almost exclusively used the traditional tort medical malpractice standard - the "reasonable doctor" test - as the measure for appropriate disclosure. The case credited with giving birth to the informed consent doctrine, Salgo, 317 P.2d at 181, was vague as to the standard of disclosure. The court said that the physician has a duty to disclose "any facts which are necessary to form the basis of an intelligent consent by the patient to the proposed treatment." Id. The court went on, however, to grant the physician "a certain amount of discretion" with regard to the facts to be disclosed. Beginning with Natanson v. Kline, 350 P.2d 1093 (Kan. 1960), many courts held that the standard for medical disclosure was that which a reasonable medical doctor would provide under the circumstances. See, e.g., Rush v. Miller, 648 F.2d 1075, 1076 (6th Cir. 1981); Shetter v. Rochelle, 409 P.2d 74, 86 (Ariz. Ct. App. 1965), modified, 411 P.2d 45 (Ariz. Ct. App. 1966); Fuller v. Starnes, 597 S.W.2d 88, 89 (Ark. 1980); Ditlow v. Kaplan, 181 So. 2d 226, 228 (FIa. Dist. Ct. App. 1965); Laurent B. Frantz, Annotation, Modern Status of Views as to General Measure of Physician's Duty to Inform Patient of Risks of Proposed Treatment, 88 A.L.R. 3d 1008 (1978). This test almost invariably requires medical expert testimony as to what a prudent doctor would tell a similarly situated patient. See, e.g., Riedisser v. Nelson, 534 P.2d 1052, 1055 (Ariz. 1975); Nishi v. Hartwell, 473 P.2d 116, 121 (Haw. 1970); Casey v. Penn, 360 N.E.2d 93, 101 (Ill. App. Ct. 1977); Bly v. Rhoads, 222 S.E.2d 783, 787-88 (Va. 1976). But see Leyson v. Steuermann, 705 P.2d 37 (Haw. Ct. App. 1985). See generally Daniel E. Feld, Annotation, Necessity and Sufficiency of Expert Evidence to Establish Existence and Extent of Physician's Duty to Inform Patient of Risks of Proposed Treatment, 52 A.L.R. 3d 1084 (1973). Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972), changed the contours of the physician's duty to disclose material risks to the patient Canterbury defined a risk as material if a "reasonable person" in the patient's position would wish to know about it prior to making a decision. A patient's right to information was no longer dictated by the medical profession's assessment of which risks and alternatives to treatment are worthy of consideration. Id. at 785; see also Cobbs v. Grant, 502 P.2d 1 (Cal. 1972); Wilkinson v. Vesey, 295 A.2d 676 (R.I. 1972); Miller v. Kennedy, 522 P.2d 852 (Wash. Ct. App. 1974), aff'd per curiam, 530 P.2d 334 (Wash. 1975). For a review of authority adopting the "reasonable patient" standard for disclosure, see Armand Arabian, Informed Consent: From the Ambivalence of Arato to the Thunder of Thor, 10 ISSUES IN L. & MED. 261, 263-64 n.11 (1994). As to causation, a small minority of courts have adopted a subjective causation standard (i.e., what would this patient have decided if provided with adequate information?). See, e.g., Scott v. Bradford, 606 P.2d 554 (Okla. 1979); Arena v. Gingrich, 733 P.2d 75 (Or. Ct. App. 1987); Wilkinson, 295 A.2d at 690. Most courts have opted for an objective standard (i.e., what would a reasonable patient in the patient's position have decided?). See, e.g., Canterbury, 464 F.2d at 790-91; Cobbs, 502 P.2d at 11-12; Reikes v. Martin, 471 So. 2d 385, 392-93 (Miss. 1985).
3. Much of the debate surrounds the standards that should govern the determinations regarding, first, which information should be provided and, second, whether the failure to provide this information caused the patient harm. As to the first point, in the early years of the informed consent doctrine, courts almost exclusively used the traditional tort medical malpractice standard - the "reasonable doctor" test - as the measure for appropriate disclosure. The case credited with giving birth to the informed consent doctrine, Salgo, 317 P.2d at 181, was vague as to the standard of disclosure. The court said that the physician has a duty to disclose "any facts which are necessary to form the basis of an intelligent consent by the patient to the proposed treatment." Id. The court went on, however, to grant the physician "a certain amount of discretion" with regard to the facts to be disclosed. Beginning with Natanson v. Kline, 350 P.2d 1093 (Kan. 1960), many courts held that the standard for medical disclosure was that which a reasonable medical doctor would provide under the circumstances.
4. Much of the debate surrounds the standards that should govern the determinations regarding, first, which information should be provided and, second, whether the failure to provide this information caused the patient harm. As to the first point, in the early years of the informed consent doctrine, courts almost exclusively used the traditional tort medical malpractice standard - the "reasonable doctor" test - as the measure for appropriate disclosure. The case credited with giving birth to the informed consent doctrine, Salgo, 317 P.2d at 181, was vague as to the standard of disclosure. The court said that the physician has a duty to disclose "any facts which are necessary to form the basis of an intelligent consent by the patient to the proposed treatment." Id. The court went on, however, to grant the physician "a certain amount of discretion" with regard to the facts to be disclosed. Beginning with Natanson v. Kline, 350 P.2d 1093 (Kan. 1960), many courts held that the standard for medical disclosure was that which a reasonable medical doctor would provide under the circumstances. See, e.g., Rush v. Miller, 648 F.2d 1075, 1076 (6th Cir. 1981); Shetter v. Rochelle, 409 P.2d 74, 86 (Ariz. Ct. App. 1965), modified, 411 P.2d 45 (Ariz. Ct. App. 1966); Fuller v. Starnes, 597 S.W.2d 88, 89 (Ark. 1980); Ditlow v. Kaplan, 181 So. 2d 226, 228 (FIa. Dist. Ct. App. 1965); Laurent B. Frantz, Annotation, Modern Status of Views as to General Measure of Physician's Duty to Inform Patient of Risks of Proposed Treatment, 88 A.L.R. 3d 1008 (1978). This test almost invariably requires medical expert testimony as to what a prudent doctor would tell a similarly situated patient. See, e.g., Riedisser v. Nelson, 534 P.2d 1052, 1055 (Ariz. 1975); Nishi v. Hartwell, 473 P.2d 116, 121 (Haw. 1970); Casey v. Penn, 360 N.E.2d 93, 101 (Ill. App. Ct. 1977); Bly v. Rhoads, 222 S.E.2d 783, 787-88 (Va. 1976). But see Leyson v. Steuermann, 705 P.2d 37 (Haw. Ct. App. 1985). See generally Daniel E. Feld, Annotation, Necessity and Sufficiency of Expert Evidence to Establish Existence and Extent of Physician's Duty to Inform Patient of Risks of Proposed Treatment, 52 A.L.R. 3d 1084 (1973). Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972), changed the contours of the physician's duty to disclose material risks to the patient Canterbury defined a risk as material if a "reasonable person" in the patient's position would wish to know about it prior to making a decision. A patient's right to information was no longer dictated by the medical profession's assessment of which risks and alternatives to treatment are worthy of consideration. Id. at 785; see also Cobbs v. Grant, 502 P.2d 1 (Cal. 1972); Wilkinson v. Vesey, 295 A.2d 676 (R.I. 1972); Miller v. Kennedy, 522 P.2d 852 (Wash. Ct. App. 1974), aff'd per curiam, 530 P.2d 334 (Wash. 1975). For a review of authority adopting the "reasonable patient" standard for disclosure, see Armand Arabian, Informed Consent: From the Ambivalence of Arato to the Thunder of Thor, 10 ISSUES IN L. & MED. 261, 263-64 n.11 (1994). As to causation, a small minority of courts have adopted a subjective causation standard (i.e., what would this patient have decided if provided with adequate information?). See, e.g., Scott v. Bradford, 606 P.2d 554 (Okla. 1979); Arena v. Gingrich, 733 P.2d 75 (Or. Ct. App. 1987); Wilkinson, 295 A.2d at 690. Most courts have opted for an objective standard (i.e., what would a reasonable patient in the patient's position have decided?). See, e.g., Canterbury, 464 F.2d at 790-91; Cobbs, 502 P.2d at 11-12; Reikes v. Martin, 471 So. 2d 385, 392-93 (Miss. 1985).
5. Much of the debate surrounds the standards that should govern the determinations regarding, first, which information should be provided and, second, whether the failure to provide this information caused the patient harm. As to the first point, in the early years of the informed consent doctrine, courts almost exclusively used the traditional tort medical malpractice standard - the "reasonable doctor" test - as the measure for appropriate disclosure. The case credited with giving birth to the informed consent doctrine, Salgo, 317 P.2d at 181, was vague as to the standard of disclosure. The court said that the physician has a duty to disclose "any facts which are necessary to form the basis of an intelligent consent by the patient to the proposed treatment." Id. The court went on, however, to grant the physician "a certain amount of discretion" with regard to the facts to be disclosed. Beginning with Natanson v. Kline, 350 P.2d 1093 (Kan. 1960), many courts held that the standard for medical disclosure was that which a reasonable medical doctor would provide under the circumstances. See, e.g., Rush v. Miller, 648 F.2d 1075, 1076 (6th Cir. 1981); Shetter v. Rochelle, 409 P.2d 74, 86 (Ariz. Ct. App. 1965), modified, 411 P.2d 45 (Ariz. Ct. App. 1966); Fuller v. Starnes, 597 S.W.2d 88, 89 (Ark. 1980); Ditlow v. Kaplan, 181 So. 2d 226, 228 (FIa. Dist. Ct. App. 1965); Laurent B. Frantz, Annotation, Modern Status of Views as to General Measure of Physician's Duty to Inform Patient of Risks of Proposed Treatment, 88 A.L.R. 3d 1008 (1978). This test almost invariably requires medical expert testimony as to what a prudent doctor would tell a similarly situated patient. See, e.g., Riedisser v. Nelson, 534 P.2d 1052, 1055 (Ariz. 1975); Nishi v. Hartwell, 473 P.2d 116, 121 (Haw. 1970); Casey v. Penn, 360 N.E.2d 93, 101 (Ill. App. Ct. 1977); Bly v. Rhoads, 222 S.E.2d 783, 787-88 (Va. 1976). But see Leyson v. Steuermann, 705 P.2d 37 (Haw. Ct. App. 1985). See generally Daniel E. Feld, Annotation, Necessity and Sufficiency of Expert Evidence to Establish Existence and Extent of Physician's Duty to Inform Patient of Risks of Proposed Treatment, 52 A.L.R. 3d 1084 (1973). Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972), changed the contours of the physician's duty to disclose material risks to the patient Canterbury defined a risk as material if a "reasonable person" in the patient's position would wish to know about it prior to making a decision. A patient's right to information was no longer dictated by the medical profession's assessment of which risks and alternatives to treatment are worthy of consideration. Id. at 785; see also Cobbs v. Grant, 502 P.2d 1 (Cal. 1972); Wilkinson v. Vesey, 295 A.2d 676 (R.I. 1972); Miller v. Kennedy, 522 P.2d 852 (Wash. Ct. App. 1974), aff'd per curiam, 530 P.2d 334 (Wash. 1975). For a review of authority adopting the "reasonable patient" standard for disclosure, see Armand Arabian, Informed Consent: From the Ambivalence of Arato to the Thunder of Thor, 10 ISSUES IN L. & MED. 261, 263-64 n.11 (1994). As to causation, a small minority of courts have adopted a subjective causation standard (i.e., what would this patient have decided if provided with adequate information?). See, e.g., Scott v. Bradford, 606 P.2d 554 (Okla. 1979); Arena v. Gingrich, 733 P.2d 75 (Or. Ct. App. 1987); Wilkinson, 295 A.2d at 690. Most courts have opted for an objective standard (i.e., what would a reasonable patient in the patient's position have decided?). See, e.g., Canterbury, 464 F.2d at 790-91; Cobbs, 502 P.2d at 11-12; Reikes v. Martin, 471 So. 2d 385, 392-93 (Miss. 1985).
6. Much of the debate surrounds the standards that should govern the determinations regarding, first, which information should be provided and, second, whether the failure to provide this information caused the patient harm. As to the first point, in the early years of the informed consent doctrine, courts almost exclusively used the traditional tort medical malpractice standard - the "reasonable doctor" test - as the measure for appropriate disclosure. The case credited with giving birth to the informed consent doctrine, Salgo, 317 P.2d at 181, was vague as to the standard of disclosure. The court said that the physician has a duty to disclose "any facts which are necessary to form the basis of an intelligent consent by the patient to the proposed treatment." Id. The court went on, however, to grant the physician "a certain amount of discretion" with regard to the facts to be disclosed. Beginning with Natanson v. Kline, 350 P.2d 1093 (Kan. 1960), many courts held that the standard for medical disclosure was that which a reasonable medical doctor would provide under the circumstances. See, e.g., Rush v. Miller, 648 F.2d 1075, 1076 (6th Cir. 1981); Shetter v. Rochelle, 409 P.2d 74, 86 (Ariz. Ct. App. 1965), modified, 411 P.2d 45 (Ariz. Ct. App. 1966); Fuller v. Starnes, 597 S.W.2d 88, 89 (Ark. 1980); Ditlow v. Kaplan, 181 So. 2d 226, 228 (FIa. Dist. Ct. App. 1965); Laurent B. Frantz, Annotation, Modern Status of Views as to General Measure of Physician's Duty to Inform Patient of Risks of Proposed Treatment, 88 A.L.R. 3d 1008 (1978). This test almost invariably requires medical expert testimony as to what a prudent doctor would tell a similarly situated patient. See, e.g., Riedisser v. Nelson, 534 P.2d 1052, 1055 (Ariz. 1975); Nishi v. Hartwell, 473 P.2d 116, 121 (Haw. 1970); Casey v. Penn, 360 N.E.2d 93, 101 (Ill. App. Ct. 1977); Bly v. Rhoads, 222 S.E.2d 783, 787-88 (Va. 1976). But see Leyson v. Steuermann, 705 P.2d 37 (Haw. Ct. App. 1985). See generally Daniel E. Feld, Annotation, Necessity and Sufficiency of Expert Evidence to Establish Existence and Extent of Physician's Duty to Inform Patient of Risks of Proposed Treatment, 52 A.L.R. 3d 1084 (1973). Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972), changed the contours of the physician's duty to disclose material risks to the patient Canterbury defined a risk as material if a "reasonable person" in the patient's position would wish to know about it prior to making a decision. A patient's right to information was no longer dictated by the medical profession's assessment of which risks and alternatives to treatment are worthy of consideration. Id. at 785; see also Cobbs v. Grant, 502 P.2d 1 (Cal. 1972); Wilkinson v. Vesey, 295 A.2d 676 (R.I. 1972); Miller v. Kennedy, 522 P.2d 852 (Wash. Ct. App. 1974), aff'd per curiam, 530 P.2d 334 (Wash. 1975). For a review of authority adopting the "reasonable patient" standard for disclosure, see Armand Arabian, Informed Consent: From the Ambivalence of Arato to the Thunder of Thor, 10 ISSUES IN L. & MED. 261, 263-64 n.11 (1994). As to causation, a small minority of courts have adopted a subjective causation standard (i.e., what would this patient have decided if provided with adequate information?). See, e.g., Scott v. Bradford, 606 P.2d 554 (Okla. 1979); Arena v. Gingrich, 733 P.2d 75 (Or. Ct. App. 1987); Wilkinson, 295 A.2d at 690. Most courts have opted for an objective standard (i.e., what would a reasonable patient in the patient's position have decided?). See, e.g., Canterbury, 464 F.2d at 790-91; Cobbs, 502 P.2d at 11-12; Reikes v. Martin, 471 So. 2d 385, 392-93 (Miss. 1985).
7. Much of the debate surrounds the standards that should govern the determinations regarding, first, which information should be provided and, second, whether the failure to provide this information caused the patient harm. As to the first point, in the early years of the informed consent doctrine, courts almost exclusively used the traditional tort medical malpractice standard - the "reasonable doctor" test - as the measure for appropriate disclosure. The case credited with giving birth to the informed consent doctrine, Salgo, 317 P.2d at 181, was vague as to the standard of disclosure. The court said that the physician has a duty to disclose "any facts which are necessary to form the basis of an intelligent consent by the patient to the proposed treatment." Id. The court went on, however, to grant the physician "a certain amount of discretion" with regard to the facts to be disclosed. Beginning with Natanson v. Kline, 350 P.2d 1093 (Kan. 1960), many courts held that the standard for medical disclosure was that which a reasonable medical doctor would provide under the circumstances. See, e.g., Rush v. Miller, 648 F.2d 1075, 1076 (6th Cir. 1981); Shetter v. Rochelle, 409 P.2d 74, 86 (Ariz. Ct. App. 1965), modified, 411 P.2d 45 (Ariz. Ct. App. 1966); Fuller v. Starnes, 597 S.W.2d 88, 89 (Ark. 1980); Ditlow v. Kaplan, 181 So. 2d 226, 228 (FIa. Dist. Ct. App. 1965); Laurent B. Frantz, Annotation, Modern Status of Views as to General Measure of Physician's Duty to Inform Patient of Risks of Proposed Treatment, 88 A.L.R. 3d 1008 (1978). This test almost invariably requires medical expert testimony as to what a prudent doctor would tell a similarly situated patient. See, e.g., Riedisser v. Nelson, 534 P.2d 1052, 1055 (Ariz. 1975); Nishi v. Hartwell, 473 P.2d 116, 121 (Haw. 1970); Casey v. Penn, 360 N.E.2d 93, 101 (Ill. App. Ct. 1977); Bly v. Rhoads, 222 S.E.2d 783, 787-88 (Va. 1976). But see Leyson v. Steuermann, 705 P.2d 37 (Haw. Ct. App. 1985). See generally Daniel E. Feld, Annotation, Necessity and Sufficiency of Expert Evidence to Establish Existence and Extent of Physician's Duty to Inform Patient of Risks of Proposed Treatment, 52 A.L.R. 3d 1084 (1973). Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972), changed the contours of the physician's duty to disclose material risks to the patient Canterbury defined a risk as material if a "reasonable person" in the patient's position would wish to know about it prior to making a decision. A patient's right to information was no longer dictated by the medical profession's assessment of which risks and alternatives to treatment are worthy of consideration. Id. at 785; see also Cobbs v. Grant, 502 P.2d 1 (Cal. 1972); Wilkinson v. Vesey, 295 A.2d 676 (R.I. 1972); Miller v. Kennedy, 522 P.2d 852 (Wash. Ct. App. 1974), aff'd per curiam, 530 P.2d 334 (Wash. 1975). For a review of authority adopting the "reasonable patient" standard for disclosure, see Armand Arabian, Informed Consent: From the Ambivalence of Arato to the Thunder of Thor, 10 ISSUES IN L. & MED. 261, 263-64 n.11 (1994). As to causation, a small minority of courts have adopted a subjective causation standard (i.e., what would this patient have decided if provided with adequate information?). See, e.g., Scott v. Bradford, 606 P.2d 554 (Okla. 1979); Arena v. Gingrich, 733 P.2d 75 (Or. Ct. App. 1987); Wilkinson, 295 A.2d at 690. Most courts have opted for an objective standard (i.e., what would a reasonable patient in the patient's position have decided?). See, e.g., Canterbury, 464 F.2d at 790-91; Cobbs, 502 P.2d at 11-12; Reikes v. Martin, 471 So. 2d 385, 392-93 (Miss. 1985).
8. Much of the debate surrounds the standards that should govern the determinations regarding, first, which information should be provided and, second, whether the failure to provide this information caused the patient harm. As to the first point, in the early years of the informed consent doctrine, courts almost exclusively used the traditional tort medical malpractice standard - the "reasonable doctor" test - as the measure for appropriate disclosure. The case credited with giving birth to the informed consent doctrine, Salgo, 317 P.2d at 181, was vague as to the standard of disclosure. The court said that the physician has a duty to disclose "any facts which are necessary to form the basis of an intelligent consent by the patient to the proposed treatment." Id. The court went on, however, to grant the physician "a certain amount of discretion" with regard to the facts to be disclosed. Beginning with Natanson v. Kline, 350 P.2d 1093 (Kan. 1960), many courts held that the standard for medical disclosure was that which a reasonable medical doctor would provide under the circumstances. See, e.g., Rush v. Miller, 648 F.2d 1075, 1076 (6th Cir. 1981); Shetter v. Rochelle, 409 P.2d 74, 86 (Ariz. Ct. App. 1965), modified, 411 P.2d 45 (Ariz. Ct. App. 1966); Fuller v. Starnes, 597 S.W.2d 88, 89 (Ark. 1980); Ditlow v. Kaplan, 181 So. 2d 226, 228 (FIa. Dist. Ct. App. 1965); Laurent B. Frantz, Annotation, Modern Status of Views as to General Measure of Physician's Duty to Inform Patient of Risks of Proposed Treatment, 88 A.L.R. 3d 1008 (1978). This test almost invariably requires medical expert testimony as to what a prudent doctor would tell a similarly situated patient. See, e.g., Riedisser v. Nelson, 534 P.2d 1052, 1055 (Ariz. 1975); Nishi v. Hartwell, 473 P.2d 116, 121 (Haw. 1970); Casey v. Penn, 360 N.E.2d 93, 101 (Ill. App. Ct. 1977); Bly v. Rhoads, 222 S.E.2d 783, 787-88 (Va. 1976). But see Leyson v. Steuermann, 705 P.2d 37 (Haw. Ct. App. 1985). See generally Daniel E. Feld, Annotation, Necessity and Sufficiency of Expert Evidence to Establish Existence and Extent of Physician's Duty to Inform Patient of Risks of Proposed Treatment, 52 A.L.R. 3d 1084 (1973). Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972), changed the contours of the physician's duty to disclose material risks to the patient Canterbury defined a risk as material if a "reasonable person" in the patient's position would wish to know about it prior to making a decision. A patient's right to information was no longer dictated by the medical profession's assessment of which risks and alternatives to treatment are worthy of consideration. Id. at 785; see also Cobbs v. Grant, 502 P.2d 1 (Cal. 1972); Wilkinson v. Vesey, 295 A.2d 676 (R.I. 1972); Miller v. Kennedy, 522 P.2d 852 (Wash. Ct. App. 1974), aff'd per curiam, 530 P.2d 334 (Wash. 1975). For a review of authority adopting the "reasonable patient" standard for disclosure, see Armand Arabian, Informed Consent: From the Ambivalence of Arato to the Thunder of Thor, 10 ISSUES IN L. & MED. 261, 263-64 n.11 (1994). As to causation, a small minority of courts have adopted a subjective causation standard (i.e., what would this patient have decided if provided with adequate information?). See, e.g., Scott v. Bradford, 606 P.2d 554 (Okla. 1979); Arena v. Gingrich, 733 P.2d 75 (Or. Ct. App. 1987); Wilkinson, 295 A.2d at 690. Most courts have opted for an objective standard (i.e., what would a reasonable patient in the patient's position have decided?). See, e.g., Canterbury, 464 F.2d at 790-91; Cobbs, 502 P.2d at 11-12; Reikes v. Martin, 471 So. 2d 385, 392-93 (Miss. 1985).
9. Much of the debate surrounds the standards that should govern the determinations regarding, first, which information should be provided and, second, whether the failure to provide this information caused the patient harm. As to the first point, in the early years of the informed consent doctrine, courts almost exclusively used the traditional tort medical malpractice standard - the "reasonable doctor" test - as the measure for appropriate disclosure. The case credited with giving birth to the informed consent doctrine, Salgo, 317 P.2d at 181, was vague as to the standard of disclosure. The court said that the physician has a duty to disclose "any facts which are necessary to form the basis of an intelligent consent by the patient to the proposed treatment." Id. The court went on, however, to grant the physician "a certain amount of discretion" with regard to the facts to be disclosed. Beginning with Natanson v. Kline, 350 P.2d 1093 (Kan. 1960), many courts held that the standard for medical disclosure was that which a reasonable medical doctor would provide under the circumstances. See, e.g., Rush v. Miller, 648 F.2d 1075, 1076 (6th Cir. 1981); Shetter v. Rochelle, 409 P.2d 74, 86 (Ariz. Ct. App. 1965), modified, 411 P.2d 45 (Ariz. Ct. App. 1966); Fuller v. Starnes, 597 S.W.2d 88, 89 (Ark. 1980); Ditlow v. Kaplan, 181 So. 2d 226, 228 (FIa. Dist. Ct. App. 1965); Laurent B. Frantz, Annotation, Modern Status of Views as to General Measure of Physician's Duty to Inform Patient of Risks of Proposed Treatment, 88 A.L.R. 3d 1008 (1978). This test almost invariably requires medical expert testimony as to what a prudent doctor would tell a similarly situated patient. See, e.g., Riedisser v. Nelson, 534 P.2d 1052, 1055 (Ariz. 1975); Nishi v. Hartwell, 473 P.2d 116, 121 (Haw. 1970); Casey v. Penn, 360 N.E.2d 93, 101 (Ill. App. Ct. 1977); Bly v. Rhoads, 222 S.E.2d 783, 787-88 (Va. 1976). But see Leyson v. Steuermann, 705 P.2d 37 (Haw. Ct. App. 1985). See generally Daniel E. Feld, Annotation, Necessity and Sufficiency of Expert Evidence to Establish Existence and Extent of Physician's Duty to Inform Patient of Risks of Proposed Treatment, 52 A.L.R. 3d 1084 (1973). Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972), changed the contours of the physician's duty to disclose material risks to the patient Canterbury defined a risk as material if a "reasonable person" in the patient's position would wish to know about it prior to making a decision. A patient's right to information was no longer dictated by the medical profession's assessment of which risks and alternatives to treatment are worthy of consideration. Id. at 785; see also Cobbs v. Grant, 502 P.2d 1 (Cal. 1972); Wilkinson v. Vesey, 295 A.2d 676 (R.I. 1972); Miller v. Kennedy, 522 P.2d 852 (Wash. Ct. App. 1974), aff'd per curiam, 530 P.2d 334 (Wash. 1975). For a review of authority adopting the "reasonable patient" standard for disclosure, see Armand Arabian, Informed Consent: From the Ambivalence of Arato to the Thunder of Thor, 10 ISSUES IN L. & MED. 261, 263-64 n.11 (1994). As to causation, a small minority of courts have adopted a subjective causation standard (i.e., what would this patient have decided if provided with adequate information?). See, e.g., Scott v. Bradford, 606 P.2d 554 (Okla. 1979); Arena v. Gingrich, 733 P.2d 75 (Or. Ct. App. 1987); Wilkinson, 295 A.2d at 690. Most courts have opted for an objective standard (i.e., what would a reasonable patient in the patient's position have decided?). See, e.g., Canterbury, 464 F.2d at 790-91; Cobbs, 502 P.2d at 11-12; Reikes v. Martin, 471 So. 2d 385, 392-93 (Miss. 1985).
10. Much of the debate surrounds the standards that should govern the determinations regarding, first, which information should be provided and, second, whether the failure to provide this information caused the patient harm. As to the first point, in the early years of the informed consent doctrine, courts almost exclusively used the traditional tort medical malpractice standard - the "reasonable doctor" test - as the measure for appropriate disclosure. The case credited with giving birth to the informed consent doctrine, Salgo, 317 P.2d at 181, was vague as to the standard of disclosure. The court said that the physician has a duty to disclose "any facts which are necessary to form the basis of an intelligent consent by the patient to the proposed treatment." Id. The court went on, however, to grant the physician "a certain amount of discretion" with regard to the facts to be disclosed. Beginning with Natanson v. Kline, 350 P.2d 1093 (Kan. 1960), many courts held that the standard for medical disclosure was that which a reasonable medical doctor would provide under the circumstances. See, e.g., Rush v. Miller, 648 F.2d 1075, 1076 (6th Cir. 1981); Shetter v. Rochelle, 409 P.2d 74, 86 (Ariz. Ct. App. 1965), modified, 411 P.2d 45 (Ariz. Ct. App. 1966); Fuller v. Starnes, 597 S.W.2d 88, 89 (Ark. 1980); Ditlow v. Kaplan, 181 So. 2d 226, 228 (FIa. Dist. Ct. App. 1965); Laurent B. Frantz, Annotation, Modern Status of Views as to General Measure of Physician's Duty to Inform Patient of Risks of Proposed Treatment, 88 A.L.R. 3d 1008 (1978). This test almost invariably requires medical expert testimony as to what a prudent doctor would tell a similarly situated patient. See, e.g., Riedisser v. Nelson, 534 P.2d 1052, 1055 (Ariz. 1975); Nishi v. Hartwell, 473 P.2d 116, 121 (Haw. 1970); Casey v. Penn, 360 N.E.2d 93, 101 (Ill. App. Ct. 1977); Bly v. Rhoads, 222 S.E.2d 783, 787-88 (Va. 1976). But see Leyson v. Steuermann, 705 P.2d 37 (Haw. Ct. App. 1985). See generally Daniel E. Feld, Annotation, Necessity and Sufficiency of Expert Evidence to Establish Existence and Extent of Physician's Duty to Inform Patient of Risks of Proposed Treatment, 52 A.L.R. 3d 1084 (1973). Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972), changed the contours of the physician's duty to disclose material risks to the patient Canterbury defined a risk as material if a "reasonable person" in the patient's position would wish to know about it prior to making a decision. A patient's right to information was no longer dictated by the medical profession's assessment of which risks and alternatives to treatment are worthy of consideration. Id. at 785; see also Cobbs v. Grant, 502 P.2d 1 (Cal. 1972); Wilkinson v. Vesey, 295 A.2d 676 (R.I. 1972); Miller v. Kennedy, 522 P.2d 852 (Wash. Ct. App. 1974), aff'd per curiam, 530 P.2d 334 (Wash. 1975). For a review of authority adopting the "reasonable patient" standard for disclosure, see Armand Arabian, Informed Consent: From the Ambivalence of Arato to the Thunder of Thor, 10 ISSUES IN L. & MED. 261, 263-64 n.11 (1994). As to causation, a small minority of courts have adopted a subjective causation standard (i.e., what would this patient have decided if provided with adequate information?). See, e.g., Scott v. Bradford, 606 P.2d 554 (Okla. 1979); Arena v. Gingrich, 733 P.2d 75 (Or. Ct. App. 1987); Wilkinson, 295 A.2d at 690. Most courts have opted for an objective standard (i.e., what would a reasonable patient in the patient's position have decided?). See, e.g., Canterbury, 464 F.2d at 790-91; Cobbs, 502 P.2d at 11-12; Reikes v. Martin, 471 So. 2d 385, 392-93 (Miss. 1985).
11. Much of the debate surrounds the standards that should govern the determinations regarding, first, which information should be provided and, second, whether the failure to provide this information caused the patient harm. As to the first point, in the early years of the informed consent doctrine, courts almost exclusively used the traditional tort medical malpractice standard - the "reasonable doctor" test - as the measure for appropriate disclosure. The case credited with giving birth to the informed consent doctrine, Salgo, 317 P.2d at 181, was vague as to the standard of disclosure. The court said that the physician has a duty to disclose "any facts which are necessary to form the basis of an intelligent consent by the patient to the proposed treatment." Id. The court went on, however, to grant the physician "a certain amount of discretion" with regard to the facts to be disclosed. Beginning with Natanson v. Kline, 350 P.2d 1093 (Kan. 1960), many courts held that the standard for medical disclosure was that which a reasonable medical doctor would provide under the circumstances. See, e.g., Rush v. Miller, 648 F.2d 1075, 1076 (6th Cir. 1981); Shetter v. Rochelle, 409 P.2d 74, 86 (Ariz. Ct. App. 1965), modified, 411 P.2d 45 (Ariz. Ct. App. 1966); Fuller v. Starnes, 597 S.W.2d 88, 89 (Ark. 1980); Ditlow v. Kaplan, 181 So. 2d 226, 228 (FIa. Dist. Ct. App. 1965); Laurent B. Frantz, Annotation, Modern Status of Views as to General Measure of Physician's Duty to Inform Patient of Risks of Proposed Treatment, 88 A.L.R. 3d 1008 (1978). This test almost invariably requires medical expert testimony as to what a prudent doctor would tell a similarly situated patient. See, e.g., Riedisser v. Nelson, 534 P.2d 1052, 1055 (Ariz. 1975); Nishi v. Hartwell, 473 P.2d 116, 121 (Haw. 1970); Casey v. Penn, 360 N.E.2d 93, 101 (Ill. App. Ct. 1977); Bly v. Rhoads, 222 S.E.2d 783, 787-88 (Va. 1976). But see Leyson v. Steuermann, 705 P.2d 37 (Haw. Ct. App. 1985). See generally Daniel E. Feld, Annotation, Necessity and Sufficiency of Expert Evidence to Establish Existence and Extent of Physician's Duty to Inform Patient of Risks of Proposed Treatment, 52 A.L.R. 3d 1084 (1973). Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972), changed the contours of the physician's duty to disclose material risks to the patient Canterbury defined a risk as material if a "reasonable person" in the patient's position would wish to know about it prior to making a decision. A patient's right to information was no longer dictated by the medical profession's assessment of which risks and alternatives to treatment are worthy of consideration. Id. at 785; see also Cobbs v. Grant, 502 P.2d 1 (Cal. 1972); Wilkinson v. Vesey, 295 A.2d 676 (R.I. 1972); Miller v. Kennedy, 522 P.2d 852 (Wash. Ct. App. 1974), aff'd per curiam, 530 P.2d 334 (Wash. 1975). For a review of authority adopting the "reasonable patient" standard for disclosure, see Armand Arabian, Informed Consent: From the Ambivalence of Arato to the Thunder of Thor, 10 ISSUES IN L. & MED. 261, 263-64 n.11 (1994). As to causation, a small minority of courts have adopted a subjective causation standard (i.e., what would this patient have decided if provided with adequate information?). See, e.g., Scott v. Bradford, 606 P.2d 554 (Okla. 1979); Arena v. Gingrich, 733 P.2d 75 (Or. Ct. App. 1987); Wilkinson, 295 A.2d at 690. Most courts have opted for an objective standard (i.e., what would a reasonable patient in the patient's position have decided?). See, e.g., Canterbury, 464 F.2d at 790-91; Cobbs, 502 P.2d at 11-12; Reikes v. Martin, 471 So. 2d 385, 392-93 (Miss. 1985).
12. The overwhelming preference for the reasonable patient standard in determining causation has substantially limited the practical effect of the substantive right created by the disclosure standard. This view is almost unanimously shared by the commentators. See, e.g., PAUL S. APPELBAUM ET AL., INFORMED CONSENT: LEGAL THEORY AND CLINICAL PRACTICE 122 (1987) ("By conditioning the availability of compensation on the congruence between the patient's own decision and what a so-called reasonable person would have decided, the objective test undercuts a patient's right of self-determination."). Other commentators have voiced similar criticism. See, e.g., JAY KATZ, THE SILENT WORLD OF DOCTOR AND PATIENT 79-80 (1984); Richard A. Epstein, Medical Malpractice: The Case for Contract, 1976 AM. B. FOUND. RES. J. 87, 121 n.72 (1976) [hereinafter Medical Malpractice]; Joseph Goldstein, For Harold Lasswell: Some Reflections on Human Dignity, Entrapment, Informed Consent, and the Plea Bargain, 84 YALE L.J. 683, 691 (1975) [hereinafter Reflections on Human Dignity]; Leonard L. Riskin, Informed Consent: Looking for the Action, 1975 U. ILL. L. FORUM 580, 589-90 (1975) [hereinafter Looking for the Action]; David E. Seidelson, Lack of Informed Consent in Medical Malpractice and Product Liability Cases: The Burden of Presenting Evidence, 14 HOFSTRA L. REV. 621, 623-24 (1986); Marjorie Maguire Shultz, From Informed Consent to Patient Choice: A New Protected Interest, 95 YALE L.J. 219, 249-251 (1985) [hereinafter From Informed Consent to Patient Choice]; Eve R. Green Koopersmith, Informed Consent: The Problem of Causation, 3 MED. & L. 231 (1984). The authors of this Article have gone beyond the traditional criticism of causation doctrine and have argued that even the subjective test for causation is illusory. See Aaron D. Twerski & Neil B. Cohen, Informed Decision Making and the Law of Torts: The Myth of Justiciable Causation, 1988 U. ILL. L. REV. 607 (1988) [hereinafter The Myth of Justiciable Causation].
13. The overwhelming preference for the reasonable patient standard in determining causation has substantially limited the practical effect of the substantive right created by the disclosure standard. This view is almost unanimously shared by the commentators. See, e.g., PAUL S. APPELBAUM ET AL., INFORMED CONSENT: LEGAL THEORY AND CLINICAL PRACTICE 122 (1987) ("By conditioning the availability of compensation on the congruence between the patient's own decision and what a so-called reasonable person would have decided, the objective test undercuts a patient's right of self-determination."). Other commentators have voiced similar criticism. See, e.g., JAY KATZ, THE SILENT WORLD OF DOCTOR AND PATIENT 79-80 (1984); Richard A. Epstein, Medical Malpractice: The Case for Contract, 1976 AM. B. FOUND. RES. J. 87, 121 n.72 (1976) [hereinafter Medical Malpractice]; Joseph Goldstein, For Harold Lasswell: Some Reflections on Human Dignity, Entrapment, Informed Consent, and the Plea Bargain, 84 YALE L.J. 683, 691 (1975) [hereinafter Reflections on Human Dignity]; Leonard L. Riskin, Informed Consent: Looking for the Action, 1975 U. ILL. L. FORUM 580, 589-90 (1975) [hereinafter Looking for the Action]; David E. Seidelson, Lack of Informed Consent in Medical Malpractice and Product Liability Cases: The Burden of Presenting Evidence, 14 HOFSTRA L. REV. 621, 623-24 (1986); Marjorie Maguire Shultz, From Informed Consent to Patient Choice: A New Protected Interest, 95 YALE L.J. 219, 249-251 (1985) [hereinafter From Informed Consent to Patient Choice]; Eve R. Green Koopersmith, Informed Consent: The Problem of Causation, 3 MED. & L. 231 (1984). The authors of this Article have gone beyond the traditional criticism of causation doctrine and have argued that even the subjective test for causation is illusory. See Aaron D. Twerski & Neil B. Cohen, Informed Decision Making and the Law of Torts: The Myth of Justiciable Causation, 1988 U. ILL. L. REV. 607 (1988) [hereinafter The Myth of Justiciable Causation].
14. The overwhelming preference for the reasonable patient standard in determining causation has substantially limited the practical effect of the substantive right created by the disclosure standard. This view is almost unanimously shared by the commentators. See, e.g., PAUL S. APPELBAUM ET AL., INFORMED CONSENT: LEGAL THEORY AND CLINICAL PRACTICE 122 (1987) ("By conditioning the availability of compensation on the congruence between the patient's own decision and what a so-called reasonable person would have decided, the objective test undercuts a patient's right of self-determination."). Other commentators have voiced similar criticism. See, e.g., JAY KATZ, THE SILENT WORLD OF DOCTOR AND PATIENT 79-80 (1984); Richard A. Epstein, Medical Malpractice: The Case for Contract, 1976 AM. B. FOUND. RES. J. 87, 121 n.72 (1976) [hereinafter Medical Malpractice]; Joseph Goldstein, For Harold Lasswell: Some Reflections on Human Dignity, Entrapment, Informed Consent, and the Plea Bargain, 84 YALE L.J. 683, 691 (1975) [hereinafter Reflections on Human Dignity]; Leonard L. Riskin, Informed Consent: Looking for the Action, 1975 U. ILL. L. FORUM 580, 589-90 (1975) [hereinafter Looking for the Action]; David E. Seidelson, Lack of Informed Consent in Medical Malpractice and Product Liability Cases: The Burden of Presenting Evidence, 14 HOFSTRA L. REV. 621, 623-24 (1986); Marjorie Maguire Shultz, From Informed Consent to Patient Choice: A New Protected Interest, 95 YALE L.J. 219, 249-251 (1985) [hereinafter From Informed Consent to Patient Choice]; Eve R. Green Koopersmith, Informed Consent: The Problem of Causation, 3 MED. & L. 231 (1984). The authors of this Article have gone beyond the traditional criticism of causation doctrine and have argued that even the subjective test for causation is illusory. See Aaron D. Twerski & Neil B. Cohen, Informed Decision Making and the Law of Torts: The Myth of Justiciable Causation, 1988 U. ILL. L. REV. 607 (1988) [hereinafter The Myth of Justiciable Causation].
15. The overwhelming preference for the reasonable patient standard in determining causation has substantially limited the practical effect of the substantive right created by the disclosure standard. This view is almost unanimously shared by the commentators. See, e.g., PAUL S. APPELBAUM ET AL., INFORMED CONSENT: LEGAL THEORY AND CLINICAL PRACTICE 122 (1987) ("By conditioning the availability of compensation on the congruence between the patient's own decision and what a so-called reasonable person would have decided, the objective test undercuts a patient's right of self-determination."). Other commentators have voiced similar criticism. See, e.g., JAY KATZ, THE SILENT WORLD OF DOCTOR AND PATIENT 79-80 (1984); Richard A. Epstein, Medical Malpractice: The Case for Contract, 1976 AM. B. FOUND. RES. J. 87, 121 n.72 (1976) [hereinafter Medical Malpractice]; Joseph Goldstein, For Harold Lasswell: Some Reflections on Human Dignity, Entrapment, Informed Consent, and the Plea Bargain, 84 YALE L.J. 683, 691 (1975) [hereinafter Reflections on Human Dignity]; Leonard L. Riskin, Informed Consent: Looking for the Action, 1975 U. ILL. L. FORUM 580, 589-90 (1975) [hereinafter Looking for the Action]; David E. Seidelson, Lack of Informed Consent in Medical Malpractice and Product Liability Cases: The Burden of Presenting Evidence, 14 HOFSTRA L. REV. 621, 623-24 (1986); Marjorie Maguire Shultz, From Informed Consent to Patient Choice: A New Protected Interest, 95 YALE L.J. 219, 249-251 (1985) [hereinafter From Informed Consent to Patient Choice]; Eve R. Green Koopersmith, Informed Consent: The Problem of Causation, 3 MED. & L. 231 (1984). The authors of this Article have gone beyond the traditional criticism of causation doctrine and have argued that even the subjective test for causation is illusory. See Aaron D. Twerski & Neil B. Cohen, Informed Decision Making and the Law of Torts: The Myth of Justiciable Causation, 1988 U. ILL. L. REV. 607 (1988) [hereinafter The Myth of Justiciable Causation].
16. The overwhelming preference for the reasonable patient standard in determining causation has substantially limited the practical effect of the substantive right created by the disclosure standard. This view is almost unanimously shared by the commentators. See, e.g., PAUL S. APPELBAUM ET AL., INFORMED CONSENT: LEGAL THEORY AND CLINICAL PRACTICE 122 (1987) ("By conditioning the availability of compensation on the congruence between the patient's own decision and what a so-called reasonable person would have decided, the objective test undercuts a patient's right of self-determination."). Other commentators have voiced similar criticism. See, e.g., JAY KATZ, THE SILENT WORLD OF DOCTOR AND PATIENT 79-80 (1984); Richard A. Epstein, Medical Malpractice: The Case for Contract, 1976 AM. B. FOUND. RES. J. 87, 121 n.72 (1976) [hereinafter Medical Malpractice]; Joseph Goldstein, For Harold Lasswell: Some Reflections on Human Dignity, Entrapment, Informed Consent, and the Plea Bargain, 84 YALE L.J. 683, 691 (1975) [hereinafter Reflections on Human Dignity]; Leonard L. Riskin, Informed Consent: Looking for the Action, 1975 U. ILL. L. FORUM 580, 589-90 (1975) [hereinafter Looking for the Action]; David E. Seidelson, Lack of Informed Consent in Medical Malpractice and Product Liability Cases: The Burden of Presenting Evidence, 14 HOFSTRA L. REV. 621, 623-24 (1986); Marjorie Maguire Shultz, From Informed Consent to Patient Choice: A New Protected Interest, 95 YALE L.J. 219, 249-251 (1985) [hereinafter From Informed Consent to Patient Choice]; Eve R. Green Koopersmith, Informed Consent: The Problem of Causation, 3 MED. & L. 231 (1984). The authors of this Article have gone beyond the traditional criticism of causation doctrine and have argued that even the subjective test for causation is illusory. See Aaron D. Twerski & Neil B. Cohen, Informed Decision Making and the Law of Torts: The Myth of Justiciable Causation, 1988 U. ILL. L. REV. 607 (1988) [hereinafter The Myth of Justiciable Causation].
17. The overwhelming preference for the reasonable patient standard in determining causation has substantially limited the practical effect of the substantive right created by the disclosure standard. This view is almost unanimously shared by the commentators. See, e.g., PAUL S. APPELBAUM ET AL., INFORMED CONSENT: LEGAL THEORY AND CLINICAL PRACTICE 122 (1987) ("By conditioning the availability of compensation on the congruence between the patient's own decision and what a so-called reasonable person would have decided, the objective test undercuts a patient's right of self-determination."). Other commentators have voiced similar criticism. See, e.g., JAY KATZ, THE SILENT WORLD OF DOCTOR AND PATIENT 79-80 (1984); Richard A. Epstein, Medical Malpractice: The Case for Contract, 1976 AM. B. FOUND. RES. J. 87, 121 n.72 (1976) [hereinafter Medical Malpractice]; Joseph Goldstein, For Harold Lasswell: Some Reflections on Human Dignity, Entrapment, Informed Consent, and the Plea Bargain, 84 YALE L.J. 683, 691 (1975) [hereinafter Reflections on Human Dignity]; Leonard L. Riskin, Informed Consent: Looking for the Action, 1975 U. ILL. L. FORUM 580, 589-90 (1975) [hereinafter Looking for the Action]; David E. Seidelson, Lack of Informed Consent in Medical Malpractice and Product Liability Cases: The Burden of Presenting Evidence, 14 HOFSTRA L. REV. 621, 623-24 (1986); Marjorie Maguire Shultz, From Informed Consent to Patient Choice: A New Protected Interest, 95 YALE L.J. 219, 249-251 (1985) [hereinafter From Informed Consent to Patient Choice]; Eve R. Green Koopersmith, Informed Consent: The Problem of Causation, 3 MED. & L. 231 (1984). The authors of this Article have gone beyond the traditional criticism of causation doctrine and have argued that even the subjective test for causation is illusory. See Aaron D. Twerski & Neil B. Cohen, Informed Decision Making and the Law of Torts: The Myth of Justiciable Causation, 1988 U. ILL. L. REV. 607 (1988) [hereinafter The Myth of Justiciable Causation].
18. The overwhelming preference for the reasonable patient standard in determining causation has substantially limited the practical effect of the substantive right created by the disclosure standard. This view is almost unanimously shared by the commentators. See, e.g., PAUL S. APPELBAUM ET AL., INFORMED CONSENT: LEGAL THEORY AND CLINICAL PRACTICE 122 (1987) ("By conditioning the availability of compensation on the congruence between the patient's own decision and what a so-called reasonable person would have decided, the objective test undercuts a patient's right of self-determination."). Other commentators have voiced similar criticism. See, e.g., JAY KATZ, THE SILENT WORLD OF DOCTOR AND PATIENT 79-80 (1984); Richard A. Epstein, Medical Malpractice: The Case for Contract, 1976 AM. B. FOUND. RES. J. 87, 121 n.72 (1976) [hereinafter Medical Malpractice]; Joseph Goldstein, For Harold Lasswell: Some Reflections on Human Dignity, Entrapment, Informed Consent, and the Plea Bargain, 84 YALE L.J. 683, 691 (1975) [hereinafter Reflections on Human Dignity]; Leonard L. Riskin, Informed Consent: Looking for the Action, 1975 U. ILL. L. FORUM 580, 589-90 (1975) [hereinafter Looking for the Action]; David E. Seidelson, Lack of Informed Consent in Medical Malpractice and Product Liability Cases: The Burden of Presenting Evidence, 14 HOFSTRA L. REV. 621, 623-24 (1986); Marjorie Maguire Shultz, From Informed Consent to Patient Choice: A New Protected Interest, 95 YALE L.J. 219, 249-251 (1985) [hereinafter From Informed Consent to Patient Choice]; Eve R. Green Koopersmith, Informed Consent: The Problem of Causation, 3 MED. & L. 231 (1984). The authors of this Article have gone beyond the traditional criticism of causation doctrine and have argued that even the subjective test for causation is illusory. See Aaron D. Twerski & Neil B. Cohen, Informed Decision Making and the Law of Torts: The Myth of Justiciable Causation, 1988 U. ILL. L. REV. 607 (1988) [hereinafter The Myth of Justiciable Causation].
19. The overwhelming preference for the reasonable patient standard in determining causation has substantially limited the practical effect of the substantive right created by the disclosure standard. This view is almost unanimously shared by the commentators. See, e.g., PAUL S. APPELBAUM ET AL., INFORMED CONSENT: LEGAL THEORY AND CLINICAL PRACTICE 122 (1987) ("By conditioning the availability of compensation on the congruence between the patient's own decision and what a so-called reasonable person would have decided, the objective test undercuts a patient's right of self-determination."). Other commentators have voiced similar criticism. See, e.g., JAY KATZ, THE SILENT WORLD OF DOCTOR AND PATIENT 79-80 (1984); Richard A. Epstein, Medical Malpractice: The Case for Contract, 1976 AM. B. FOUND. RES. J. 87, 121 n.72 (1976) [hereinafter Medical Malpractice]; Joseph Goldstein, For Harold Lasswell: Some Reflections on Human Dignity, Entrapment, Informed Consent, and the Plea Bargain, 84 YALE L.J. 683, 691 (1975) [hereinafter Reflections on Human Dignity]; Leonard L. Riskin, Informed Consent: Looking for the Action, 1975 U. ILL. L. FORUM 580, 589-90 (1975) [hereinafter Looking for the Action]; David E. Seidelson, Lack of Informed Consent in Medical Malpractice and Product Liability Cases: The Burden of Presenting Evidence, 14 HOFSTRA L. REV. 621, 623-24 (1986); Marjorie Maguire Shultz, From Informed Consent to Patient Choice: A New Protected Interest, 95 YALE L.J. 219, 249-251 (1985) [hereinafter From Informed Consent to Patient Choice]; Eve R. Green Koopersmith, Informed Consent: The Problem of Causation, 3 MED. & L. 231 (1984). The authors of this Article have gone beyond the traditional criticism of causation doctrine and have argued that even the subjective test for causation is illusory. See Aaron D. Twerski & Neil B. Cohen, Informed Decision Making and the Law of Torts: The Myth of Justiciable Causation, 1988 U. ILL. L. REV. 607 (1988) [hereinafter The Myth of Justiciable Causation].
20. The overwhelming preference for the reasonable patient standard in determining causation has substantially limited the practical effect of the substantive right created by the disclosure standard. This view is almost unanimously shared by the commentators. See, e.g., PAUL S. APPELBAUM ET AL., INFORMED CONSENT: LEGAL THEORY AND CLINICAL PRACTICE 122 (1987) ("By conditioning the availability of compensation on the congruence between the patient's own decision and what a so-called reasonable person would have decided, the objective test undercuts a patient's right of self-determination."). Other commentators have voiced similar criticism. See, e.g., JAY KATZ, THE SILENT WORLD OF DOCTOR AND PATIENT 79-80 (1984); Richard A. Epstein, Medical Malpractice: The Case for Contract, 1976 AM. B. FOUND. RES. J. 87, 121 n.72 (1976) [hereinafter Medical Malpractice]; Joseph Goldstein, For Harold Lasswell: Some Reflections on Human Dignity, Entrapment, Informed Consent, and the Plea Bargain, 84 YALE L.J. 683, 691 (1975) [hereinafter Reflections on Human Dignity]; Leonard L. Riskin, Informed Consent: Looking for the Action, 1975 U. ILL. L. FORUM 580, 589-90 (1975) [hereinafter Looking for the Action]; David E. Seidelson, Lack of Informed Consent in Medical Malpractice and Product Liability Cases: The Burden of Presenting Evidence, 14 HOFSTRA L. REV. 621, 623-24 (1986); Marjorie Maguire Shultz, From Informed Consent to Patient Choice: A New Protected Interest, 95 YALE L.J. 219, 249-251 (1985) [hereinafter From Informed Consent to Patient Choice]; Eve R. Green Koopersmith, Informed Consent: The Problem of Causation, 3 MED. & L. 231 (1984). The authors of this Article have gone beyond the traditional criticism of causation doctrine and have argued that even the subjective test for causation is illusory. See Aaron D. Twerski & Neil B. Cohen, Informed Decision Making and the Law of Torts: The Myth of Justiciable Causation, 1988 U. ILL. L. REV. 607 (1988) [hereinafter The Myth of Justiciable Causation].
21. See The Myth of Justiciable Causation, supra note 3, at 648-64. The extent of those gains is arguable, however. Standardized written consent forms and risk statements for procedures and treatments are used prevalently by all types of medical providers despite widespread concern for their comprehensibility and thus for their effectiveness in eliciting truly "informed" consent See, e.g., T. M. Grundner, On the Readability of Surgical Consent Forms. 302 NEW ENG. J. MED. 900 (1980) (studying five "representativesurgical consent forms for readability, finding all five approximately equivalent to material intended for upper-division undergraduate or graduate students, and concluding that "thousands of persons may be undergoing surgery each year on the basis of inadequate consent"); Kenneth D. Hopper et al., The Readability of Currently Used Surgical/Procedure Consent Forms in the United States, 123 SURGERY 4% (1998) (finding that while "surgical consent forms are universally used by hospitals throughout the United States before surgery or invasive procedures," the majority of these forms "are not easily understood" and "do not list specific benefits or potential complications of the planned surgery/procedure"); Ian N. Olver et al., Impact of an Information and Consent Form on Patients Having Chemotherapy, 162 MED. J. AUSTL. 82 (1995) (studying 100 cytoxic chemotherapy patients' understanding of a "plain language" information/consent form and reporting that the requirements for informed consent may be too difficult to satisfy with forms written in "plain language").
22. See The Myth of Justiciable Causation, supra note 3, at 648-64. The extent of those gains is arguable, however. Standardized written consent forms and risk statements for procedures and treatments are used prevalently by all types of medical providers despite widespread concern for their comprehensibility and thus for their effectiveness in eliciting truly "informed" consent See, e.g., T. M. Grundner, On the Readability of Surgical Consent Forms. 302 NEW ENG. J. MED. 900 (1980) (studying five "representativesurgical consent forms for readability, finding all five approximately equivalent to material intended for upper-division undergraduate or graduate students, and concluding that "thousands of persons may be undergoing surgery each year on the basis of inadequate consent"); Kenneth D. Hopper et al., The Readability of Currently Used Surgical/Procedure Consent Forms in the United States, 123 SURGERY 4% (1998) (finding that while "surgical consent forms are universally used by hospitals throughout the United States before surgery or invasive procedures," the majority of these forms "are not easily understood" and "do not list specific benefits or potential complications of the planned surgery/procedure"); Ian N. Olver et al., Impact of an Information and Consent Form on Patients Having Chemotherapy, 162 MED. J. AUSTL. 82 (1995) (studying 100 cytoxic chemotherapy patients' understanding of a "plain language" information/consent form and reporting that the requirements for informed consent may be too difficult to satisfy with forms written in "plain language").
23. See The Myth of Justiciable Causation, supra note 3, at 648-64. The extent of those gains is arguable, however. Standardized written consent forms and risk statements for procedures and treatments are used prevalently by all types of medical providers despite widespread concern for their comprehensibility and thus for their effectiveness in eliciting truly "informed" consent See, e.g., T. M. Grundner, On the Readability of Surgical Consent Forms. 302 NEW ENG. J. MED. 900 (1980) (studying five
24. See The Myth of Justiciable Causation, supra note 3, at 648-64. The extent of those gains is arguable, however. Standardized written consent forms and risk statements for procedures and treatments are used prevalently by all types of medical providers despite widespread concern for their comprehensibility and thus for their effectiveness in eliciting truly "informed" consent See, e.g., T. M. Grundner, On the Readability of Surgical Consent Forms. 302 NEW ENG. J. MED. 900 (1980) (studying five "representativesurgical consent forms for readability, finding all five approximately equivalent to material intended for upper-division undergraduate or graduate students, and concluding that "thousands of persons may be undergoing surgery each year on the basis of inadequate consent"); Kenneth D. Hopper et al., The Readability of Currently Used Surgical/Procedure Consent Forms in the United States, 123 SURGERY 4% (1998) (finding that while "surgical consent forms are universally used by hospitals throughout the United States before surgery or invasive procedures," the majority of these forms "are not easily understood" and "do not list specific benefits or potential complications of the planned surgery/procedure"); Ian N. Olver et al., Impact of an Information and Consent Form on Patients Having Chemotherapy, 162 MED. J. AUSTL. 82 (1995) (studying 100 cytoxic chemotherapy patients' understanding of a "plain language" information/consent form and reporting that the requirements for informed consent may be too difficult to satisfy with forms written in "plain language").
25. Aaron D. Twerski & Neil B. Cohen, Comparing Medical Providers: A First Look at the New Era of Medical Statistics, 58 BROOK. L. REV. 5 (1992) [hereinafter Comparing Medical Providers].
26. See Edward L. Hannan et. al., Adult Open Heart Surgery in New York State: An Analysis of Risk Factors and Hospital Mortality Rates, 264 JAMA 2768 (1990). Statistics were also collected by the New York State Department of Health comparing the performance of heart surgeons throughout the state. These statistics were published in Newsday. David Zinman, Heart Surgeons Rated: State Reveals Patient Mortality Records, NEWSDAY, Dec. 18, 1991, at 3. For a more recent risk-adjusted study of one particular type of open heart surgery for hospitals, see CORONARY ARTERY BYPASS SURGERY IN NEW YORK STATE (Oct. 1998), reprinted infra Appendix A. That study also contains risk-adjusted statistics comparing the outcomes of surgeons who performed coronary bypass surgery. See infra Appendix C. The risk factors for the studies of both hospital and surgeon performance in the 1990 study included the following: age, gender, ejection fraction, previous myocardial infarction, number of open heart operations in previous admissions, diabetes requiring medication, dialysis dependence, disasters (acute structural defect, renal failure, cardiogenic shock, gunshot), unstable angina, intractable congestive heart failure, left main trunk narrowed more than 90%, and type of operation performed. Over the years other risk factors have been determined to be significant and are taken into account in assessing both hospital and surgeon performance. See infra Appendix A at 7.
27. See Edward L. Hannan et. al., Adult Open Heart Surgery in New York State: An Analysis of Risk Factors and Hospital Mortality Rates, 264 JAMA 2768 (1990). Statistics were also collected by the New York State Department of Health comparing the performance of heart surgeons throughout the state. These statistics were published in Newsday. David Zinman, Heart Surgeons Rated: State Reveals Patient Mortality Records, NEWSDAY, Dec. 18, 1991, at 3. For a more recent risk-adjusted study of one particular type of open heart surgery for hospitals, see CORONARY ARTERY BYPASS SURGERY IN NEW YORK STATE (Oct. 1998), reprinted infra Appendix A. That study also contains risk-adjusted statistics comparing the outcomes of surgeons who performed coronary bypass surgery. See infra Appendix C. The risk factors for the studies of both hospital and surgeon performance in the 1990 study included the following: age, gender, ejection fraction, previous myocardial infarction, number of open heart operations in previous admissions, diabetes requiring medication, dialysis dependence, disasters (acute structural defect, renal failure, cardiogenic shock, gunshot), unstable angina, intractable congestive heart failure, left main trunk narrowed more than 90%, and type of operation performed. Over the years other risk factors have been determined to be significant and are taken into account in assessing both hospital and surgeon performance. See infra Appendix A at 7.
28. See Edward L. Hannan et. al., Adult Open Heart Surgery in New York State: An Analysis of Risk Factors and Hospital Mortality Rates, 264 JAMA 2768 (1990). Statistics were also collected by the New York State Department of Health comparing the performance of heart surgeons throughout the state. These statistics were published in Newsday. David Zinman, Heart Surgeons Rated: State Reveals Patient Mortality Records, NEWSDAY, Dec. 18, 1991, at 3. For a more recent risk-adjusted study of one particular type of open heart surgery for hospitals, see CORONARY ARTERY BYPASS SURGERY IN NEW YORK STATE (Oct. 1998), reprinted infra Appendix A. That study also contains risk-adjusted statistics comparing the outcomes of surgeons who performed coronary bypass surgery. See infra Appendix C. The risk factors for the studies of both hospital and surgeon performance in the 1990 study included the following: age, gender, ejection fraction, previous myocardial infarction, number of open heart operations in previous admissions, diabetes requiring medication, dialysis dependence, disasters (acute structural defect, renal failure, cardiogenic shock, gunshot), unstable angina, intractable congestive heart failure, left main trunk narrowed more than 90%, and type of operation performed. Over the years other risk factors have been determined to be significant and are taken into account in assessing both hospital and surgeon performance. See infra Appendix A at 7.
29. The following procedures have been used for comparison purposes in studies identified here: coronary artery bypass graft (CABG) surgery, angioplasty, valve repair, coronary artery catheterization, hip replacement, knee replacement, back surgery, colorectal resection, Cesarean-section (C-section), vaginal birth after C-section, solid organ transplants, carotid endarterectomy, hepatic resection, abdominal hysterectomy, and gastrointestinal operations. The following patient diagnostic categories have been used for comparison purposes in identified studies: nonsurgical heart cases (angina, heart failure and shock, myocardial infarction), cerebrovascular accident, congestive heart failure, pneumonia, obstructive airway disease, stroke, and gastrointestinal bleeding. For citations to studies that include these procedures and diagnostic categories, see infra notes 8, 9. The New York State Health Department is considering expanding current studies to include more procedures, for example, brain surgery and childbirth procedures. See Esther B. Fein, Surgery Survey by New York Expanded, N.Y. TIMES, Nov. 8, 1997, at B1.
30. A large number of risk-adjusted studies comparing hospital performance for medical procedures have been published. See, e.g., HEALTH CARE FINANCING ADMIN., MEDICARE HOSPITAL MORTALITY RATES (1991) (annual hardcopy report compiling Health Care Financing Administration (HCFA) data for all registered United States Medicare facilities, published annually 1987-91); MICHIGAN HEALTH & HOSPITAL ASS'N, MICHIGAN HOSPITAL REPORT (May 1998) (compiling data from 1994-96 on coronary bypass, valve repair, C-section, vaginal birth after C-section, nonsurgical heart care, hip replacement, knee replacement, and groups of selected medical and surgical cases for all Michigan hospitals); NEW YORK STATE DEP'T OF HEALTH, ANGIOPLASTY IN NEW YORK STATE 1995 (Oct. 1997) (expanding on the original New York bypass studies; the first study of angioplasty in 32 hospitals was released in 1997) [hereinafter NEW YORK STATE ANGIOPLASTY]; NEW YORK STATE DEP'T OF HEALTH, CORONARY ARTERY BYPASS SURGERY IN NEW YORK STATE 1994-1996 (1998) (this annual study of 31 hospitals originated in 1989) [hereinafter NEW YORK STATE REPORT]; PENNSYLVANIA HEALTH CARE COST CONTAINMENT COUNCIL, PENNSYLVANIA HEALTH CARE COST CONTAINMENT COUNCIL, CESAREAN SECTION DELIVERIES IN PENNSYLVANIA, 1995 (1997); PENNSYLVANIA'S GUIDE TO CORONARY ARTERY BYPASS GRAFT SURGERY (May 1997) (annual study of 43 hospitals modeled on New York's program began in 1992) [hereinafter PENNSYLVANIA CONTAINMENT COUNCIL]; Jennifer Daley et al., Risk Adjustment of the Postoperative Morbidity Rate for the Comparative Assessment of the Quality of Surgical Care: Results of the National Veterans Affairs Surgical Risk Study, 185 J. AM. C. SURGEONS 328 (1997) (comparing outcomes of 87,078 major noncardiac operations at 44 Veterans Affairs facilities identified by number); Ciaran S. Phibbs et al., The Effects of Patient Volume and Level of Care at the Hospital of Birth on Neonatal Mortality, 276 JAMA 1054 (1996) (comparing neonatal mortality rates for births at nonfederal California hospitals in 1990 and reporting mortality and birth weight outcomes for subgroups of hospitals which provide "Level I," "Level II," or "Level III" neonatal care); Michael Pine et al., Predictions of Hospital Mortality Rates: A Comparison of Data Sources, 126 ANNALS INTERNAL MED. 347 (1997) (comparing use of risk-adjusted administrative outcome data versus clinical data at 30 acute care hospitals for the following four diagnostic categories: myocardial infarction, cerebrovascular accident, congestive heart failure, or pneumonia); Leslie L. Roos et al., Postsurgical Mortality in Manitoba and New England, 263 JAMA 2453 (1990) (comparing outcome data for 11 procedures, including bypass and hip replacement, at New England Medicare hospitals and Manitoba hospitals, and reporting 30-day and 60-day mortality rate by hospital region); Gary E. Rosenthal et al., Severity-Adjusted Mortality and Length of Stay in Teaching and Nonteaching Hospitals: Results of a Regional Study, 278 JAMA 485 (1997) (comparing outcome data for six diagnostic categories, including stroke, heart attack, congestive heart failure, pneumonia, gastrointestinal bleeding, and obstructive airway disease, for 30 hospitals in northeast Ohio); J. H. Siber et al., The Relationship Between Choice of Outcome Measure and Hospital Rank in General Surgical Procedures: Implications for Quality Assessment, 9 INT'L. J. QUALITY HEALTH CARE 193 (1997) (comparing three types of outcome measure rankings, including "case-mix" and severity-adjusted mortality rate ranking, complication rate ranking, and "failure-to-rescue" rankings for 142 hospitals based on 74,647 patients who underwent general surgical procedures); Gastrointestinal Surgery Safer at Major Hospitals (visited May 27, 1998) 〈http://nytsyn.com/imds〉 (reporting on study comparing outcome data for gastrointestinal operations at 51 Maryland hospitals from 1990-94).
31. A large number of risk-adjusted studies comparing hospital performance for medical procedures have been published. See, e.g., HEALTH CARE FINANCING ADMIN., MEDICARE HOSPITAL MORTALITY RATES (1991) (annual hardcopy report compiling Health Care Financing Administration (HCFA) data for all registered United States Medicare facilities, published annually 1987-91); MICHIGAN HEALTH & HOSPITAL ASS'N, MICHIGAN HOSPITAL REPORT (May 1998) (compiling data from 1994-96 on coronary bypass, valve repair, C-section, vaginal birth after C-section, nonsurgical heart care, hip replacement, knee replacement, and groups of selected medical and surgical cases for all Michigan hospitals); NEW YORK STATE DEP'T OF HEALTH, ANGIOPLASTY IN NEW YORK STATE 1995 (Oct. 1997) (expanding on the original New York bypass studies; the first study of angioplasty in 32 hospitals was released in 1997) [hereinafter NEW YORK STATE ANGIOPLASTY]; NEW YORK STATE DEP'T OF HEALTH, CORONARY ARTERY BYPASS SURGERY IN NEW YORK STATE 1994-1996 (1998) (this annual study of 31 hospitals originated in 1989) [hereinafter NEW YORK STATE REPORT]; PENNSYLVANIA HEALTH CARE COST CONTAINMENT COUNCIL, PENNSYLVANIA HEALTH CARE COST CONTAINMENT COUNCIL, CESAREAN SECTION DELIVERIES IN PENNSYLVANIA, 1995 (1997); PENNSYLVANIA'S GUIDE TO CORONARY ARTERY BYPASS GRAFT SURGERY (May 1997) (annual study of 43 hospitals modeled on New York's program began in 1992) [hereinafter PENNSYLVANIA CONTAINMENT COUNCIL]; Jennifer Daley et al., Risk Adjustment of the Postoperative Morbidity Rate for the Comparative Assessment of the Quality of Surgical Care: Results of the National Veterans Affairs Surgical Risk Study, 185 J. AM. C. SURGEONS 328 (1997) (comparing outcomes of 87,078 major noncardiac operations at 44 Veterans Affairs facilities identified by number); Ciaran S. Phibbs et al., The Effects of Patient Volume and Level of Care at the Hospital of Birth on Neonatal Mortality, 276 JAMA 1054 (1996) (comparing neonatal mortality rates for births at nonfederal California hospitals in 1990 and reporting mortality and birth weight outcomes for subgroups of hospitals which provide "Level I," "Level II," or "Level III" neonatal care); Michael Pine et al., Predictions of Hospital Mortality Rates: A Comparison of Data Sources, 126 ANNALS INTERNAL MED. 347 (1997) (comparing use of risk-adjusted administrative outcome data versus clinical data at 30 acute care hospitals for the following four diagnostic categories: myocardial infarction, cerebrovascular accident, congestive heart failure, or pneumonia); Leslie L. Roos et al., Postsurgical Mortality in Manitoba and New England, 263 JAMA 2453 (1990) (comparing outcome data for 11 procedures, including bypass and hip replacement, at New England Medicare hospitals and Manitoba hospitals, and reporting 30-day and 60-day mortality rate by hospital region); Gary E. Rosenthal et al., Severity-Adjusted Mortality and Length of Stay in Teaching and Nonteaching Hospitals: Results of a Regional Study, 278 JAMA 485 (1997) (comparing outcome data for six diagnostic categories, including stroke, heart attack, congestive heart failure, pneumonia, gastrointestinal bleeding, and obstructive airway disease, for 30 hospitals in northeast Ohio); J. H. Siber et al., The Relationship Between Choice of Outcome Measure and Hospital Rank in General Surgical Procedures: Implications for Quality Assessment, 9 INT'L. J. QUALITY HEALTH CARE 193 (1997) (comparing three types of outcome measure rankings, including "case-mix" and severity-adjusted mortality rate ranking, complication rate ranking, and "failure-to-rescue" rankings for 142 hospitals based on 74,647 patients who underwent general surgical procedures); Gastrointestinal Surgery Safer at Major Hospitals (visited May 27, 1998) 〈http://nytsyn.com/imds〉 (reporting on study comparing outcome data for gastrointestinal operations at 51 Maryland hospitals from 1990-94).
32. A large number of risk-adjusted studies comparing hospital performance for medical procedures have been published. See, e.g., HEALTH CARE FINANCING ADMIN., MEDICARE HOSPITAL MORTALITY RATES (1991) (annual hardcopy report compiling Health Care Financing Administration (HCFA) data for all registered United States Medicare facilities, published annually 1987-91); MICHIGAN HEALTH & HOSPITAL ASS'N, MICHIGAN HOSPITAL REPORT (May 1998) (compiling data from 1994-96 on coronary bypass, valve repair, C-section, vaginal birth after C-section, nonsurgical heart care, hip replacement, knee replacement, and groups of selected medical and surgical cases for all Michigan hospitals); NEW YORK STATE DEP'T OF HEALTH, ANGIOPLASTY IN NEW YORK STATE 1995 (Oct. 1997) (expanding on the original New York bypass studies; the first study of angioplasty in 32 hospitals was released in 1997) [hereinafter NEW YORK STATE ANGIOPLASTY]; NEW YORK STATE DEP'T OF HEALTH, CORONARY ARTERY BYPASS SURGERY IN NEW YORK STATE 1994-1996 (1998) (this annual study of 31 hospitals originated in 1989) [hereinafter NEW YORK STATE REPORT]; PENNSYLVANIA HEALTH CARE COST CONTAINMENT COUNCIL, PENNSYLVANIA HEALTH CARE COST CONTAINMENT COUNCIL, CESAREAN SECTION DELIVERIES IN PENNSYLVANIA, 1995 (1997); PENNSYLVANIA'S GUIDE TO CORONARY ARTERY BYPASS GRAFT SURGERY (May 1997) (annual study of 43 hospitals modeled on New York's program began in 1992) [hereinafter PENNSYLVANIA CONTAINMENT COUNCIL]; Jennifer Daley et al., Risk Adjustment of the Postoperative Morbidity Rate for the Comparative Assessment of the Quality of Surgical Care: Results of the National Veterans Affairs Surgical Risk Study, 185 J. AM. C. SURGEONS 328 (1997) (comparing outcomes of 87,078 major noncardiac operations at 44 Veterans Affairs facilities identified by number); Ciaran S. Phibbs et al., The Effects of Patient Volume and Level of Care at the Hospital of Birth on Neonatal Mortality, 276 JAMA 1054 (1996) (comparing neonatal mortality rates for births at nonfederal California hospitals in 1990 and reporting mortality and birth weight outcomes for subgroups of hospitals which provide "Level I," "Level II," or "Level III" neonatal care); Michael Pine et al., Predictions of Hospital Mortality Rates: A Comparison of Data Sources, 126 ANNALS INTERNAL MED. 347 (1997) (comparing use of risk-adjusted administrative outcome data versus clinical data at 30 acute care hospitals for the following four diagnostic categories: myocardial infarction, cerebrovascular accident, congestive heart failure, or pneumonia); Leslie L. Roos et al., Postsurgical Mortality in Manitoba and New England, 263 JAMA 2453 (1990) (comparing outcome data for 11 procedures, including bypass and hip replacement, at New England Medicare hospitals and Manitoba hospitals, and reporting 30-day and 60-day mortality rate by hospital region); Gary E. Rosenthal et al., Severity-Adjusted Mortality and Length of Stay in Teaching and Nonteaching Hospitals: Results of a Regional Study, 278 JAMA 485 (1997) (comparing outcome data for six diagnostic categories, including stroke, heart attack, congestive heart failure, pneumonia, gastrointestinal bleeding, and obstructive airway disease, for 30 hospitals in northeast Ohio); J. H. Siber et al., The Relationship Between Choice of Outcome Measure and Hospital Rank in General Surgical Procedures: Implications for Quality Assessment, 9 INT'L. J. QUALITY HEALTH CARE 193 (1997) (comparing three types of outcome measure rankings, including "case-mix" and severity-adjusted mortality rate ranking, complication rate ranking, and "failure-to-rescue" rankings for 142 hospitals based on 74,647 patients who underwent general surgical procedures); Gastrointestinal Surgery Safer at Major Hospitals (visited May 27, 1998) 〈http://nytsyn.com/imds〉 (reporting on study comparing outcome data for gastrointestinal operations at 51 Maryland hospitals from 1990-94).
33. A large number of risk-adjusted studies comparing hospital performance for medical procedures have been published. See, e.g., HEALTH CARE FINANCING ADMIN., MEDICARE HOSPITAL MORTALITY RATES (1991) (annual hardcopy report compiling Health Care Financing Administration (HCFA) data for all registered United States Medicare facilities, published annually 1987-91); MICHIGAN HEALTH & HOSPITAL ASS'N, MICHIGAN HOSPITAL REPORT (May 1998) (compiling data from 1994-96 on coronary bypass, valve repair, C-section, vaginal birth after C-section, nonsurgical heart care, hip replacement, knee replacement, and groups of selected medical and surgical cases for all Michigan hospitals); NEW YORK STATE DEP'T OF HEALTH, ANGIOPLASTY IN NEW YORK STATE 1995 (Oct. 1997) (expanding on the original New York bypass studies; the first study of angioplasty in 32 hospitals was released in 1997) [hereinafter NEW YORK STATE ANGIOPLASTY]; NEW YORK STATE DEP'T OF HEALTH, CORONARY ARTERY BYPASS SURGERY IN NEW YORK STATE 1994-1996 (1998) (this annual study of 31 hospitals originated in 1989) [hereinafter NEW YORK STATE REPORT]; PENNSYLVANIA HEALTH CARE COST CONTAINMENT COUNCIL, PENNSYLVANIA HEALTH CARE COST CONTAINMENT COUNCIL, CESAREAN SECTION DELIVERIES IN PENNSYLVANIA, 1995 (1997); PENNSYLVANIA'S GUIDE TO CORONARY ARTERY BYPASS GRAFT SURGERY (May 1997) (annual study of 43 hospitals modeled on New York's program began in 1992) [hereinafter PENNSYLVANIA CONTAINMENT COUNCIL]; Jennifer Daley et al., Risk Adjustment of the Postoperative Morbidity Rate for the Comparative Assessment of the Quality of Surgical Care: Results of the National Veterans Affairs Surgical Risk Study, 185 J. AM. C. SURGEONS 328 (1997) (comparing outcomes of 87,078 major noncardiac operations at 44 Veterans Affairs facilities identified by number); Ciaran S. Phibbs et al., The Effects of Patient Volume and Level of Care at the Hospital of Birth on Neonatal Mortality, 276 JAMA 1054 (1996) (comparing neonatal mortality rates for births at nonfederal California hospitals in 1990 and reporting mortality and birth weight outcomes for subgroups of hospitals which provide "Level I," "Level II," or "Level III" neonatal care); Michael Pine et al., Predictions of Hospital Mortality Rates: A Comparison of Data Sources, 126 ANNALS INTERNAL MED. 347 (1997) (comparing use of risk-adjusted administrative outcome data versus clinical data at 30 acute care hospitals for the following four diagnostic categories: myocardial infarction, cerebrovascular accident, congestive heart failure, or pneumonia); Leslie L. Roos et al., Postsurgical Mortality in Manitoba and New England, 263 JAMA 2453 (1990) (comparing outcome data for 11 procedures, including bypass and hip replacement, at New England Medicare hospitals and Manitoba hospitals, and reporting 30-day and 60-day mortality rate by hospital region); Gary E. Rosenthal et al., Severity-Adjusted Mortality and Length of Stay in Teaching and Nonteaching Hospitals: Results of a Regional Study, 278 JAMA 485 (1997) (comparing outcome data for six diagnostic categories, including stroke, heart attack, congestive heart failure, pneumonia, gastrointestinal bleeding, and obstructive airway disease, for 30 hospitals in northeast Ohio); J. H. Siber et al., The Relationship Between Choice of Outcome Measure and Hospital Rank in General Surgical Procedures: Implications for Quality Assessment, 9 INT'L. J. QUALITY HEALTH CARE 193 (1997) (comparing three types of outcome measure rankings, including "case-mix" and severity-adjusted mortality rate ranking, complication rate ranking, and "failure-to-rescue" rankings for 142 hospitals based on 74,647 patients who underwent general surgical procedures); Gastrointestinal Surgery Safer at Major Hospitals (visited May 27, 1998) 〈http://nytsyn.com/imds〉 (reporting on study comparing outcome data for gastrointestinal operations at 51 Maryland hospitals from 1990-94).
34. A large number of risk-adjusted studies comparing hospital performance for medical procedures have been published. See, e.g., HEALTH CARE FINANCING ADMIN., MEDICARE HOSPITAL MORTALITY RATES (1991) (annual hardcopy report compiling Health Care Financing Administration (HCFA) data for all registered United States Medicare facilities, published annually 1987-91); MICHIGAN HEALTH & HOSPITAL ASS'N, MICHIGAN HOSPITAL REPORT (May 1998) (compiling data from 1994-96 on coronary bypass, valve repair, C-section, vaginal birth after C-section, nonsurgical heart care, hip replacement, knee replacement, and groups of selected medical and surgical cases for all Michigan hospitals); NEW YORK STATE DEP'T OF HEALTH, ANGIOPLASTY IN NEW YORK STATE 1995 (Oct. 1997) (expanding on the original New York bypass studies; the first study of angioplasty in 32 hospitals was released in 1997) [hereinafter NEW YORK STATE ANGIOPLASTY]; NEW YORK STATE DEP'T OF HEALTH, CORONARY ARTERY BYPASS SURGERY IN NEW YORK STATE 1994-1996 (1998) (this annual study of 31 hospitals originated in 1989) [hereinafter NEW YORK STATE REPORT]; PENNSYLVANIA HEALTH CARE COST CONTAINMENT COUNCIL, PENNSYLVANIA HEALTH CARE COST CONTAINMENT COUNCIL, CESAREAN SECTION DELIVERIES IN PENNSYLVANIA, 1995 (1997); PENNSYLVANIA'S GUIDE TO CORONARY ARTERY BYPASS GRAFT SURGERY (May 1997) (annual study of 43 hospitals modeled on New York's program began in 1992) [hereinafter PENNSYLVANIA CONTAINMENT COUNCIL]; Jennifer Daley et al., Risk Adjustment of the Postoperative Morbidity Rate for the Comparative Assessment of the Quality of Surgical Care: Results of the National Veterans Affairs Surgical Risk Study, 185 J. AM. C. SURGEONS 328 (1997) (comparing outcomes of 87,078 major noncardiac operations at 44 Veterans Affairs facilities identified by number); Ciaran S. Phibbs et al., The Effects of Patient Volume and Level of Care at the Hospital of Birth on Neonatal Mortality, 276 JAMA 1054 (1996) (comparing neonatal mortality rates for births at nonfederal California hospitals in 1990 and reporting mortality and birth weight outcomes for subgroups of hospitals which provide "Level I," "Level II," or "Level III" neonatal care); Michael Pine et al., Predictions of Hospital Mortality Rates: A Comparison of Data Sources, 126 ANNALS INTERNAL MED. 347 (1997) (comparing use of risk-adjusted administrative outcome data versus clinical data at 30 acute care hospitals for the following four diagnostic categories: myocardial infarction, cerebrovascular accident, congestive heart failure, or pneumonia); Leslie L. Roos et al., Postsurgical Mortality in Manitoba and New England, 263 JAMA 2453 (1990) (comparing outcome data for 11 procedures, including bypass and hip replacement, at New England Medicare hospitals and Manitoba hospitals, and reporting 30-day and 60-day mortality rate by hospital region); Gary E. Rosenthal et al., Severity-Adjusted Mortality and Length of Stay in Teaching and Nonteaching Hospitals: Results of a Regional Study, 278 JAMA 485 (1997) (comparing outcome data for six diagnostic categories, including stroke, heart attack, congestive heart failure, pneumonia, gastrointestinal bleeding, and obstructive airway disease, for 30 hospitals in northeast Ohio); J. H. Siber et al., The Relationship Between Choice of Outcome Measure and Hospital Rank in General Surgical Procedures: Implications for Quality Assessment, 9 INT'L. J. QUALITY HEALTH CARE 193 (1997) (comparing three types of outcome measure rankings, including "case-mix" and severity-adjusted mortality rate ranking, complication rate ranking, and "failure-to-rescue" rankings for 142 hospitals based on 74,647 patients who underwent general surgical procedures); Gastrointestinal Surgery Safer at Major Hospitals (visited May 27, 1998) 〈http://nytsyn.com/imds〉 (reporting on study comparing outcome data for gastrointestinal operations at 51 Maryland hospitals from 1990-94).
35. A large number of risk-adjusted studies comparing hospital performance for medical procedures have been published. See, e.g., HEALTH CARE FINANCING ADMIN., MEDICARE HOSPITAL MORTALITY RATES (1991) (annual hardcopy report compiling Health Care Financing Administration (HCFA) data for all registered United States Medicare facilities, published annually 1987-91); MICHIGAN HEALTH & HOSPITAL ASS'N, MICHIGAN HOSPITAL REPORT (May 1998) (compiling data from 1994-96 on coronary bypass, valve repair, C-section, vaginal birth after C-section, nonsurgical heart care, hip replacement, knee replacement, and groups of selected medical and surgical cases for all Michigan hospitals); NEW YORK STATE DEP'T OF HEALTH, ANGIOPLASTY IN NEW YORK STATE 1995 (Oct. 1997) (expanding on the original New York bypass studies; the first study of angioplasty in 32 hospitals was released in 1997) [hereinafter NEW YORK STATE ANGIOPLASTY]; NEW YORK STATE DEP'T OF HEALTH, CORONARY ARTERY BYPASS SURGERY IN NEW YORK STATE 1994-1996 (1998) (this annual study of 31 hospitals originated in 1989) [hereinafter NEW YORK STATE REPORT]; PENNSYLVANIA HEALTH CARE COST CONTAINMENT COUNCIL, PENNSYLVANIA HEALTH CARE COST CONTAINMENT COUNCIL, CESAREAN SECTION DELIVERIES IN PENNSYLVANIA, 1995 (1997); PENNSYLVANIA'S GUIDE TO CORONARY ARTERY BYPASS GRAFT SURGERY (May 1997) (annual study of 43 hospitals modeled on New York's program began in 1992) [hereinafter PENNSYLVANIA CONTAINMENT COUNCIL]; Jennifer Daley et al., Risk Adjustment of the Postoperative Morbidity Rate for the Comparative Assessment of the Quality of Surgical Care: Results of the National Veterans Affairs Surgical Risk Study, 185 J. AM. C. SURGEONS 328 (1997) (comparing outcomes of 87,078 major noncardiac operations at 44 Veterans Affairs facilities identified by number); Ciaran S. Phibbs et al., The Effects of Patient Volume and Level of Care at the Hospital of Birth on Neonatal Mortality, 276 JAMA 1054 (1996) (comparing neonatal mortality rates for births at nonfederal California hospitals in 1990 and reporting mortality and birth weight outcomes for subgroups of hospitals which provide "Level I," "Level II," or "Level III" neonatal care); Michael Pine et al., Predictions of Hospital Mortality Rates: A Comparison of Data Sources, 126 ANNALS INTERNAL MED. 347 (1997) (comparing use of risk-adjusted administrative outcome data versus clinical data at 30 acute care hospitals for the following four diagnostic categories: myocardial infarction, cerebrovascular accident, congestive heart failure, or pneumonia); Leslie L. Roos et al., Postsurgical Mortality in Manitoba and New England, 263 JAMA 2453 (1990) (comparing outcome data for 11 procedures, including bypass and hip replacement, at New England Medicare hospitals and Manitoba hospitals, and reporting 30-day and 60-day mortality rate by hospital region); Gary E. Rosenthal et al., Severity-Adjusted Mortality and Length of Stay in Teaching and Nonteaching Hospitals: Results of a Regional Study, 278 JAMA 485 (1997) (comparing outcome data for six diagnostic categories, including stroke, heart attack, congestive heart failure, pneumonia, gastrointestinal bleeding, and obstructive airway disease, for 30 hospitals in northeast Ohio); J. H. Siber et al., The Relationship Between Choice of Outcome Measure and Hospital Rank in General Surgical Procedures: Implications for Quality Assessment, 9 INT'L. J. QUALITY HEALTH CARE 193 (1997) (comparing three types of outcome measure rankings, including "case-mix" and severity-adjusted mortality rate ranking, complication rate ranking, and "failure-to-rescue" rankings for 142 hospitals based on 74,647 patients who underwent general surgical procedures); Gastrointestinal Surgery Safer at Major Hospitals (visited May 27, 1998) 〈http://nytsyn.com/imds〉 (reporting on study comparing outcome data for gastrointestinal operations at 51 Maryland hospitals from 1990-94).
36. A large number of risk-adjusted studies comparing hospital performance for medical procedures have been published. See, e.g., HEALTH CARE FINANCING ADMIN., MEDICARE HOSPITAL MORTALITY RATES (1991) (annual hardcopy report compiling Health Care Financing Administration (HCFA) data for all registered United States Medicare facilities, published annually 1987-91); MICHIGAN HEALTH & HOSPITAL ASS'N, MICHIGAN HOSPITAL REPORT (May 1998) (compiling data from 1994-96 on coronary bypass, valve repair, C-section, vaginal birth after C-section, nonsurgical heart care, hip replacement, knee replacement, and groups of selected medical and surgical cases for all Michigan hospitals); NEW YORK STATE DEP'T OF HEALTH, ANGIOPLASTY IN NEW YORK STATE 1995 (Oct. 1997) (expanding on the original New York bypass studies; the first study of angioplasty in 32 hospitals was released in 1997) [hereinafter NEW YORK STATE ANGIOPLASTY]; NEW YORK STATE DEP'T OF HEALTH, CORONARY ARTERY BYPASS SURGERY IN NEW YORK STATE 1994-1996 (1998) (this annual study of 31 hospitals originated in 1989) [hereinafter NEW YORK STATE REPORT]; PENNSYLVANIA HEALTH CARE COST CONTAINMENT COUNCIL, PENNSYLVANIA HEALTH CARE COST CONTAINMENT COUNCIL, CESAREAN SECTION DELIVERIES IN PENNSYLVANIA, 1995 (1997); PENNSYLVANIA'S GUIDE TO CORONARY ARTERY BYPASS GRAFT SURGERY (May 1997) (annual study of 43 hospitals modeled on New York's program began in 1992) [hereinafter PENNSYLVANIA CONTAINMENT COUNCIL]; Jennifer Daley et al., Risk Adjustment of the Postoperative Morbidity Rate for the Comparative Assessment of the Quality of Surgical Care: Results of the National Veterans Affairs Surgical Risk Study, 185 J. AM. C. SURGEONS 328 (1997) (comparing outcomes of 87,078 major noncardiac operations at 44 Veterans Affairs facilities identified by number); Ciaran S. Phibbs et al., The Effects of Patient Volume and Level of Care at the Hospital of Birth on Neonatal Mortality, 276 JAMA 1054 (1996) (comparing neonatal mortality rates for births at nonfederal California hospitals in 1990 and reporting mortality and birth weight outcomes for subgroups of hospitals which provide "Level I," "Level II," or "Level III" neonatal care); Michael Pine et al., Predictions of Hospital Mortality Rates: A Comparison of Data Sources, 126 ANNALS INTERNAL MED. 347 (1997) (comparing use of risk-adjusted administrative outcome data versus clinical data at 30 acute care hospitals for the following four diagnostic categories: myocardial infarction, cerebrovascular accident, congestive heart failure, or pneumonia); Leslie L. Roos et al., Postsurgical Mortality in Manitoba and New England, 263 JAMA 2453 (1990) (comparing outcome data for 11 procedures, including bypass and hip replacement, at New England Medicare hospitals and Manitoba hospitals, and reporting 30-day and 60-day mortality rate by hospital region); Gary E. Rosenthal et al., Severity-Adjusted Mortality and Length of Stay in Teaching and Nonteaching Hospitals: Results of a Regional Study, 278 JAMA 485 (1997) (comparing outcome data for six diagnostic categories, including stroke, heart attack, congestive heart failure, pneumonia, gastrointestinal bleeding, and obstructive airway disease, for 30 hospitals in northeast Ohio); J. H. Siber et al., The Relationship Between Choice of Outcome Measure and Hospital Rank in General Surgical Procedures: Implications for Quality Assessment, 9 INT'L. J. QUALITY HEALTH CARE 193 (1997) (comparing three types of outcome measure rankings, including "case-mix" and severity-adjusted mortality rate ranking, complication rate ranking, and "failure-to-rescue" rankings for 142 hospitals based on 74,647 patients who underwent general surgical procedures); Gastrointestinal Surgery Safer at Major Hospitals (visited May 27, 1998) 〈http://nytsyn.com/imds〉 (reporting on study comparing outcome data for gastrointestinal operations at 51 Maryland hospitals from 1990-94).
37. A large number of risk-adjusted studies comparing hospital performance for medical procedures have been published. See, e.g., HEALTH CARE FINANCING ADMIN., MEDICARE HOSPITAL MORTALITY RATES (1991) (annual hardcopy report compiling Health Care Financing Administration (HCFA) data for all registered United States Medicare facilities, published annually 1987-91); MICHIGAN HEALTH & HOSPITAL ASS'N, MICHIGAN HOSPITAL REPORT (May 1998) (compiling data from 1994-96 on coronary bypass, valve repair, C-section, vaginal birth after C-section, nonsurgical heart care, hip replacement, knee replacement, and groups of selected medical and surgical cases for all Michigan hospitals); NEW YORK STATE DEP'T OF HEALTH, ANGIOPLASTY IN NEW YORK STATE 1995 (Oct. 1997) (expanding on the original New York bypass studies; the first study of angioplasty in 32 hospitals was released in 1997) [hereinafter NEW YORK STATE ANGIOPLASTY]; NEW YORK STATE DEP'T OF HEALTH, CORONARY ARTERY BYPASS SURGERY IN NEW YORK STATE 1994-1996 (1998) (this annual study of 31 hospitals originated in 1989) [hereinafter NEW YORK STATE REPORT]; PENNSYLVANIA HEALTH CARE COST CONTAINMENT COUNCIL, PENNSYLVANIA HEALTH CARE COST CONTAINMENT COUNCIL, CESAREAN SECTION DELIVERIES IN PENNSYLVANIA, 1995 (1997); PENNSYLVANIA'S GUIDE TO CORONARY ARTERY BYPASS GRAFT SURGERY (May 1997) (annual study of 43 hospitals modeled on New York's program began in 1992) [hereinafter PENNSYLVANIA CONTAINMENT COUNCIL]; Jennifer Daley et al., Risk Adjustment of the Postoperative Morbidity Rate for the Comparative Assessment of the Quality of Surgical Care: Results of the National Veterans Affairs Surgical Risk Study, 185 J. AM. C. SURGEONS 328 (1997) (comparing outcomes of 87,078 major noncardiac operations at 44 Veterans Affairs facilities identified by number); Ciaran S. Phibbs et al., The Effects of Patient Volume and Level of Care at the Hospital of Birth on Neonatal Mortality, 276 JAMA 1054 (1996) (comparing neonatal mortality rates for births at nonfederal California hospitals in 1990 and reporting mortality and birth weight outcomes for subgroups of hospitals which provide "Level I," "Level II," or "Level III" neonatal care); Michael Pine et al., Predictions of Hospital Mortality Rates: A Comparison of Data Sources, 126 ANNALS INTERNAL MED. 347 (1997) (comparing use of risk-adjusted administrative outcome data versus clinical data at 30 acute care hospitals for the following four diagnostic categories: myocardial infarction, cerebrovascular accident, congestive heart failure, or pneumonia); Leslie L. Roos et al., Postsurgical Mortality in Manitoba and New England, 263 JAMA 2453 (1990) (comparing outcome data for 11 procedures, including bypass and hip replacement, at New England Medicare hospitals and Manitoba hospitals, and reporting 30-day and 60-day mortality rate by hospital region); Gary E. Rosenthal et al., Severity-Adjusted Mortality and Length of Stay in Teaching and Nonteaching Hospitals: Results of a Regional Study, 278 JAMA 485 (1997) (comparing outcome data for six diagnostic categories, including stroke, heart attack, congestive heart failure, pneumonia, gastrointestinal bleeding, and obstructive airway disease, for 30 hospitals in northeast Ohio); J. H. Siber et al., The Relationship Between Choice of Outcome Measure and Hospital Rank in General Surgical Procedures: Implications for Quality Assessment, 9 INT'L. J. QUALITY HEALTH CARE 193 (1997) (comparing three types of outcome measure rankings, including "case-mix" and severity-adjusted mortality rate ranking, complication rate ranking, and "failure-to-rescue" rankings for 142 hospitals based on 74,647 patients who underwent general surgical procedures); Gastrointestinal Surgery Safer at Major Hospitals (visited May 27, 1998) 〈http://nytsyn.com/imds〉 (reporting on study comparing outcome data for gastrointestinal operations at 51 Maryland hospitals from 1990-94).
38. A large number of risk-adjusted studies comparing hospital performance for medical procedures have been published. See, e.g., HEALTH CARE FINANCING ADMIN., MEDICARE HOSPITAL MORTALITY RATES (1991) (annual hardcopy report compiling Health Care Financing Administration (HCFA) data for all registered United States Medicare facilities, published annually 1987-91); MICHIGAN HEALTH & HOSPITAL ASS'N, MICHIGAN HOSPITAL REPORT (May 1998) (compiling data from 1994-96 on coronary bypass, valve repair, C-section, vaginal birth after C-section, nonsurgical heart care, hip replacement, knee replacement, and groups of selected medical and surgical cases for all Michigan hospitals); NEW YORK STATE DEP'T OF HEALTH, ANGIOPLASTY IN NEW YORK STATE 1995 (Oct. 1997) (expanding on the original New York bypass studies; the first study of angioplasty in 32 hospitals was released in 1997) [hereinafter NEW YORK STATE ANGIOPLASTY]; NEW YORK STATE DEP'T OF HEALTH, CORONARY ARTERY BYPASS SURGERY IN NEW YORK STATE 1994-1996 (1998) (this annual study of 31 hospitals originated in 1989) [hereinafter NEW YORK STATE REPORT]; PENNSYLVANIA HEALTH CARE COST CONTAINMENT COUNCIL, PENNSYLVANIA HEALTH CARE COST CONTAINMENT COUNCIL, CESAREAN SECTION DELIVERIES IN PENNSYLVANIA, 1995 (1997); PENNSYLVANIA'S GUIDE TO CORONARY ARTERY BYPASS GRAFT SURGERY (May 1997) (annual study of 43 hospitals modeled on New York's program began in 1992) [hereinafter PENNSYLVANIA CONTAINMENT COUNCIL]; Jennifer Daley et al., Risk Adjustment of the Postoperative Morbidity Rate for the Comparative Assessment of the Quality of Surgical Care: Results of the National Veterans Affairs Surgical Risk Study, 185 J. AM. C. SURGEONS 328 (1997) (comparing outcomes of 87,078 major noncardiac operations at 44 Veterans Affairs facilities identified by number); Ciaran S. Phibbs et al., The Effects of Patient Volume and Level of Care at the Hospital of Birth on Neonatal Mortality, 276 JAMA 1054 (1996) (comparing neonatal mortality rates for births at nonfederal California hospitals in 1990 and reporting mortality and birth weight outcomes for subgroups of hospitals which provide "Level I," "Level II," or "Level III" neonatal care); Michael Pine et al., Predictions of Hospital Mortality Rates: A Comparison of Data Sources, 126 ANNALS INTERNAL MED. 347 (1997) (comparing use of risk-adjusted administrative outcome data versus clinical data at 30 acute care hospitals for the following four diagnostic categories: myocardial infarction, cerebrovascular accident, congestive heart failure, or pneumonia); Leslie L. Roos et al., Postsurgical Mortality in Manitoba and New England, 263 JAMA 2453 (1990) (comparing outcome data for 11 procedures, including bypass and hip replacement, at New England Medicare hospitals and Manitoba hospitals, and reporting 30-day and 60-day mortality rate by hospital region); Gary E. Rosenthal et al., Severity-Adjusted Mortality and Length of Stay in Teaching and Nonteaching Hospitals: Results of a Regional Study, 278 JAMA 485 (1997) (comparing outcome data for six diagnostic categories, including stroke, heart attack, congestive heart failure, pneumonia, gastrointestinal bleeding, and obstructive airway disease, for 30 hospitals in northeast Ohio); J. H. Siber et al., The Relationship Between Choice of Outcome Measure and Hospital Rank in General Surgical Procedures: Implications for Quality Assessment, 9 INT'L. J. QUALITY HEALTH CARE 193 (1997) (comparing three types of outcome measure rankings, including "case-mix" and severity-adjusted mortality rate ranking, complication rate ranking, and "failure-to-rescue" rankings for 142 hospitals based on 74,647 patients who underwent general surgical procedures); Gastrointestinal Surgery Safer at Major Hospitals (visited May 27, 1998) 〈http://nytsyn.com/imds〉 (reporting on study comparing outcome data for gastrointestinal operations at 51 Maryland hospitals from 1990-94).
39. A large number of risk-adjusted studies comparing hospital performance for medical procedures have been published. See, e.g., HEALTH CARE FINANCING ADMIN., MEDICARE HOSPITAL MORTALITY RATES (1991) (annual hardcopy report compiling Health Care Financing Administration (HCFA) data for all registered United States Medicare facilities, published annually 1987-91); MICHIGAN HEALTH & HOSPITAL ASS'N, MICHIGAN HOSPITAL REPORT (May 1998) (compiling data from 1994-96 on coronary bypass, valve repair, C-section, vaginal birth after C-section, nonsurgical heart care, hip replacement, knee replacement, and groups of selected medical and surgical cases for all Michigan hospitals); NEW YORK STATE DEP'T OF HEALTH, ANGIOPLASTY IN NEW YORK STATE 1995 (Oct. 1997) (expanding on the original New York bypass studies; the first study of angioplasty in 32 hospitals was released in 1997) [hereinafter NEW YORK STATE ANGIOPLASTY]; NEW YORK STATE DEP'T OF HEALTH, CORONARY ARTERY BYPASS SURGERY IN NEW YORK STATE 1994-1996 (1998) (this annual study of 31 hospitals originated in 1989) [hereinafter NEW YORK STATE REPORT]; PENNSYLVANIA HEALTH CARE COST CONTAINMENT COUNCIL, PENNSYLVANIA HEALTH CARE COST CONTAINMENT COUNCIL, CESAREAN SECTION DELIVERIES IN PENNSYLVANIA, 1995 (1997); PENNSYLVANIA'S GUIDE TO CORONARY ARTERY BYPASS GRAFT SURGERY (May 1997) (annual study of 43 hospitals modeled on New York's program began in 1992) [hereinafter PENNSYLVANIA CONTAINMENT COUNCIL]; Jennifer Daley et al., Risk Adjustment of the Postoperative Morbidity Rate for the Comparative Assessment of the Quality of Surgical Care: Results of the National Veterans Affairs Surgical Risk Study, 185 J. AM. C. SURGEONS 328 (1997) (comparing outcomes of 87,078 major noncardiac operations at 44 Veterans Affairs facilities identified by number); Ciaran S. Phibbs et al., The Effects of Patient Volume and Level of Care at the Hospital of Birth on Neonatal Mortality, 276 JAMA 1054 (1996) (comparing neonatal mortality rates for births at nonfederal California hospitals in 1990 and reporting mortality and birth weight outcomes for subgroups of hospitals which provide "Level I," "Level II," or "Level III" neonatal care); Michael Pine et al., Predictions of Hospital Mortality Rates: A Comparison of Data Sources, 126 ANNALS INTERNAL MED. 347 (1997) (comparing use of risk-adjusted administrative outcome data versus clinical data at 30 acute care hospitals for the following four diagnostic categories: myocardial infarction, cerebrovascular accident, congestive heart failure, or pneumonia); Leslie L. Roos et al., Postsurgical Mortality in Manitoba and New England, 263 JAMA 2453 (1990) (comparing outcome data for 11 procedures, including bypass and hip replacement, at New England Medicare hospitals and Manitoba hospitals, and reporting 30-day and 60-day mortality rate by hospital region); Gary E. Rosenthal et al., Severity-Adjusted Mortality and Length of Stay in Teaching and Nonteaching Hospitals: Results of a Regional Study, 278 JAMA 485 (1997) (comparing outcome data for six diagnostic categories, including stroke, heart attack, congestive heart failure, pneumonia, gastrointestinal bleeding, and obstructive airway disease, for 30 hospitals in northeast Ohio); J. H. Siber et al., The Relationship Between Choice of Outcome Measure and Hospital Rank in General Surgical Procedures: Implications for Quality Assessment, 9 INT'L. J. QUALITY HEALTH CARE 193 (1997) (comparing three types of outcome measure rankings, including "case-mix" and severity-adjusted mortality rate ranking, complication rate ranking, and "failure-to-rescue" rankings for 142 hospitals based on 74,647 patients who underwent general surgical procedures); Gastrointestinal Surgery Safer at Major Hospitals (visited May 27, 1998) 〈http://nytsyn.com/imds〉 (reporting on study comparing outcome data for gastrointestinal operations at 51 Maryland hospitals from 1990-94).
40. A large number of risk-adjusted studies comparing hospital performance for medical procedures have been published. See, e.g., HEALTH CARE FINANCING ADMIN., MEDICARE HOSPITAL MORTALITY RATES (1991) (annual hardcopy report compiling Health Care Financing Administration (HCFA) data for all registered United States Medicare facilities, published annually 1987-91); MICHIGAN HEALTH & HOSPITAL ASS'N, MICHIGAN HOSPITAL REPORT (May 1998) (compiling data from 1994-96 on coronary bypass, valve repair, C-section, vaginal birth after C-section, nonsurgical heart care, hip replacement, knee replacement, and groups of selected medical and surgical cases for all Michigan hospitals); NEW YORK STATE DEP'T OF HEALTH, ANGIOPLASTY IN NEW YORK STATE 1995 (Oct. 1997) (expanding on the original New York bypass studies; the first study of angioplasty in 32 hospitals was released in 1997) [hereinafter NEW YORK STATE ANGIOPLASTY]; NEW YORK STATE DEP'T OF HEALTH, CORONARY ARTERY BYPASS SURGERY IN NEW YORK STATE 1994-1996 (1998) (this annual study of 31 hospitals originated in 1989) [hereinafter NEW YORK STATE REPORT]; PENNSYLVANIA HEALTH CARE COST CONTAINMENT COUNCIL, PENNSYLVANIA HEALTH CARE COST CONTAINMENT COUNCIL, CESAREAN SECTION DELIVERIES IN PENNSYLVANIA, 1995 (1997); PENNSYLVANIA'S GUIDE TO CORONARY ARTERY BYPASS GRAFT SURGERY (May 1997) (annual study of 43 hospitals modeled on New York's program began in 1992) [hereinafter PENNSYLVANIA CONTAINMENT COUNCIL]; Jennifer Daley et al., Risk Adjustment of the Postoperative Morbidity Rate for the Comparative Assessment of the Quality of Surgical Care: Results of the National Veterans Affairs Surgical Risk Study, 185 J. AM. C. SURGEONS 328 (1997) (comparing outcomes of 87,078 major noncardiac operations at 44 Veterans Affairs facilities identified by number); Ciaran S. Phibbs et al., The Effects of Patient Volume and Level of Care at the Hospital of Birth on Neonatal Mortality, 276 JAMA 1054 (1996) (comparing neonatal mortality rates for births at nonfederal California hospitals in 1990 and reporting mortality and birth weight outcomes for subgroups of hospitals which provide "Level I," "Level II," or "Level III" neonatal care); Michael Pine et al., Predictions of Hospital Mortality Rates: A Comparison of Data Sources, 126 ANNALS INTERNAL MED. 347 (1997) (comparing use of risk-adjusted administrative outcome data versus clinical data at 30 acute care hospitals for the following four diagnostic categories: myocardial infarction, cerebrovascular accident, congestive heart failure, or pneumonia); Leslie L. Roos et al., Postsurgical Mortality in Manitoba and New England, 263 JAMA 2453 (1990) (comparing outcome data for 11 procedures, including bypass and hip replacement, at New England Medicare hospitals and Manitoba hospitals, and reporting 30-day and 60-day mortality rate by hospital region); Gary E. Rosenthal et al., Severity-Adjusted Mortality and Length of Stay in Teaching and Nonteaching Hospitals: Results of a Regional Study, 278 JAMA 485 (1997) (comparing outcome data for six diagnostic categories, including stroke, heart attack, congestive heart failure, pneumonia, gastrointestinal bleeding, and obstructive airway disease, for 30 hospitals in northeast Ohio); J. H. Siber et al., The Relationship Between Choice of Outcome Measure and Hospital Rank in General Surgical Procedures: Implications for Quality Assessment, 9 INT'L. J. QUALITY HEALTH CARE 193 (1997) (comparing three types of outcome measure rankings, including "case-mix" and severity-adjusted mortality rate ranking, complication rate ranking, and "failure-to-rescue" rankings for 142 hospitals based on 74,647 patients who underwent general surgical procedures); Gastrointestinal Surgery Safer at Major Hospitals (visited May 27, 1998) 〈http://nytsyn.com/imds〉 (reporting on study comparing outcome data for gastrointestinal operations at 51 Maryland hospitals from 1990-94).
41. A large number of risk-adjusted studies comparing hospital performance for medical procedures have been published. See, e.g., HEALTH CARE FINANCING ADMIN., MEDICARE HOSPITAL MORTALITY RATES (1991) (annual hardcopy report compiling Health Care Financing Administration (HCFA) data for all registered United States Medicare facilities, published annually 1987-91); MICHIGAN HEALTH & HOSPITAL ASS'N, MICHIGAN HOSPITAL REPORT (May 1998) (compiling data from 1994-96 on coronary bypass, valve repair, C-section, vaginal birth after C-section, nonsurgical heart care, hip replacement, knee replacement, and groups of selected medical and surgical cases for all Michigan hospitals); NEW YORK STATE DEP'T OF HEALTH, ANGIOPLASTY IN NEW YORK STATE 1995 (Oct. 1997) (expanding on the original New York bypass studies; the first study of angioplasty in 32 hospitals was released in 1997) [hereinafter NEW YORK STATE ANGIOPLASTY]; NEW YORK STATE DEP'T OF HEALTH, CORONARY ARTERY BYPASS SURGERY IN NEW YORK STATE 1994-1996 (1998) (this annual study of 31 hospitals originated in 1989) [hereinafter NEW YORK STATE REPORT]; PENNSYLVANIA HEALTH CARE COST CONTAINMENT COUNCIL, PENNSYLVANIA HEALTH CARE COST CONTAINMENT COUNCIL, CESAREAN SECTION DELIVERIES IN PENNSYLVANIA, 1995 (1997); PENNSYLVANIA'S GUIDE TO CORONARY ARTERY BYPASS GRAFT SURGERY (May 1997) (annual study of 43 hospitals modeled on New York's program began in 1992) [hereinafter PENNSYLVANIA CONTAINMENT COUNCIL]; Jennifer Daley et al., Risk Adjustment of the Postoperative Morbidity Rate for the Comparative Assessment of the Quality of Surgical Care: Results of the National Veterans Affairs Surgical Risk Study, 185 J. AM. C. SURGEONS 328 (1997) (comparing outcomes of 87,078 major noncardiac operations at 44 Veterans Affairs facilities identified by number); Ciaran S. Phibbs et al., The Effects of Patient Volume and Level of Care at the Hospital of Birth on Neonatal Mortality, 276 JAMA 1054 (1996) (comparing neonatal mortality rates for births at nonfederal California hospitals in 1990 and reporting mortality and birth weight outcomes for subgroups of hospitals which provide "Level I," "Level II," or "Level III" neonatal care); Michael Pine et al., Predictions of Hospital Mortality Rates: A Comparison of Data Sources, 126 ANNALS INTERNAL MED. 347 (1997) (comparing use of risk-adjusted administrative outcome data versus clinical data at 30 acute care hospitals for the following four diagnostic categories: myocardial infarction, cerebrovascular accident, congestive heart failure, or pneumonia); Leslie L. Roos et al., Postsurgical Mortality in Manitoba and New England, 263 JAMA 2453 (1990) (comparing outcome data for 11 procedures, including bypass and hip replacement, at New England Medicare hospitals and Manitoba hospitals, and reporting 30-day and 60-day mortality rate by hospital region); Gary E. Rosenthal et al., Severity-Adjusted Mortality and Length of Stay in Teaching and Nonteaching Hospitals: Results of a Regional Study, 278 JAMA 485 (1997) (comparing outcome data for six diagnostic categories, including stroke, heart attack, congestive heart failure, pneumonia, gastrointestinal bleeding, and obstructive airway disease, for 30 hospitals in northeast Ohio); J. H. Siber et al., The Relationship Between Choice of Outcome Measure and Hospital Rank in General Surgical Procedures: Implications for Quality Assessment, 9 INT'L. J. QUALITY HEALTH CARE 193 (1997) (comparing three types of outcome measure rankings, including "case-mix" and severity-adjusted mortality rate ranking, complication rate ranking, and "failure-to-rescue" rankings for 142 hospitals based on 74,647 patients who underwent general surgical procedures); Gastrointestinal Surgery Safer at Major Hospitals (visited May 27, 1998) 〈http://nytsyn.com/imds〉 (reporting on study comparing outcome data for gastrointestinal operations at 51 Maryland hospitals from 1990-94).
42. A large number of risk-adjusted studies comparing hospital performance for medical procedures have been published. See, e.g., HEALTH CARE FINANCING ADMIN., MEDICARE HOSPITAL MORTALITY RATES (1991) (annual hardcopy report compiling Health Care Financing Administration (HCFA) data for all registered United States Medicare facilities, published annually 1987-91); MICHIGAN HEALTH & HOSPITAL ASS'N, MICHIGAN HOSPITAL REPORT (May 1998) (compiling data from 1994-96 on coronary bypass, valve repair, C-section, vaginal birth after C-section, nonsurgical heart care, hip replacement, knee replacement, and groups of selected medical and surgical cases for all Michigan hospitals); NEW YORK STATE DEP'T OF HEALTH, ANGIOPLASTY IN NEW YORK STATE 1995 (Oct. 1997) (expanding on the original New York bypass studies; the first study of angioplasty in 32 hospitals was released in 1997) [hereinafter NEW YORK STATE ANGIOPLASTY]; NEW YORK STATE DEP'T OF HEALTH, CORONARY ARTERY BYPASS SURGERY IN NEW YORK STATE 1994-1996 (1998) (this annual study of 31 hospitals originated in 1989) [hereinafter NEW YORK STATE REPORT]; PENNSYLVANIA HEALTH CARE COST CONTAINMENT COUNCIL, PENNSYLVANIA HEALTH CARE COST CONTAINMENT COUNCIL, CESAREAN SECTION DELIVERIES IN PENNSYLVANIA, 1995 (1997); PENNSYLVANIA'S GUIDE TO CORONARY ARTERY BYPASS GRAFT SURGERY (May 1997) (annual study of 43 hospitals modeled on New York's program began in 1992) [hereinafter PENNSYLVANIA CONTAINMENT COUNCIL]; Jennifer Daley et al., Risk Adjustment of the Postoperative Morbidity Rate for the Comparative Assessment of the Quality of Surgical Care: Results of the National Veterans Affairs Surgical Risk Study, 185 J. AM. C. SURGEONS 328 (1997) (comparing outcomes of 87,078 major noncardiac operations at 44 Veterans Affairs facilities identified by number); Ciaran S. Phibbs et al., The Effects of Patient Volume and Level of Care at the Hospital of Birth on Neonatal Mortality, 276 JAMA 1054 (1996) (comparing neonatal mortality rates for births at nonfederal California hospitals in 1990 and reporting mortality and birth weight outcomes for subgroups of hospitals which provide "Level I," "Level II," or "Level III" neonatal care); Michael Pine et al., Predictions of Hospital Mortality Rates: A Comparison of Data Sources, 126 ANNALS INTERNAL MED. 347 (1997) (comparing use of risk-adjusted administrative outcome data versus clinical data at 30 acute care hospitals for the following four diagnostic categories: myocardial infarction, cerebrovascular accident, congestive heart failure, or pneumonia); Leslie L. Roos et al., Postsurgical Mortality in Manitoba and New England, 263 JAMA 2453 (1990) (comparing outcome data for 11 procedures, including bypass and hip replacement, at New England Medicare hospitals and Manitoba hospitals, and reporting 30-day and 60-day mortality rate by hospital region); Gary E. Rosenthal et al., Severity-Adjusted Mortality and Length of Stay in Teaching and Nonteaching Hospitals: Results of a Regional Study, 278 JAMA 485 (1997) (comparing outcome data for six diagnostic categories, including stroke, heart attack, congestive heart failure, pneumonia, gastrointestinal bleeding, and obstructive airway disease, for 30 hospitals in northeast Ohio); J. H. Siber et al., The Relationship Between Choice of Outcome Measure and Hospital Rank in General Surgical Procedures: Implications for Quality Assessment, 9 INT'L. J. QUALITY HEALTH CARE 193 (1997) (comparing three types of outcome measure rankings, including "case-mix" and severity-adjusted mortality rate ranking, complication rate ranking, and
43. See, e.g., NEW JERSEY DEP'T OF HEALTH AND SENIOR SERVICES, CORONARY ARTERY BYPASS GRAFT SURGERY IN NEW JERSEY 1994-1995 (Nov. 1997) (reporting mortality rate data for bypass surgeries by name); NEW YORK STATE REPORT, supra note 8 (reporting mortality rate data for surgeons by name since the studies began in 1989); NEW YORK STATE ANGIOPLASTY, supra note 8; PENNSYLVANIA CONTAINMENT COUNCIL, supra note 8 (reporting mortality rate data for bypass surgeons by name); G.P. Copeland et al., Risk-Adjusted Analysis of Surgeon Performance: A 1-Year Study, 82 BRIT. J. SURGERY 408 (1995) (reporting mortality rates as compared to expected mortality rates for each surgeon, identified by code letters, performing "non-day-case general surgery" at a single English hospital); J. Donald Eastern & David G. Sherman, Stroke and Mortality Rate in Carotid Endarterectomy: 228 Consecutive Operations, 8 STROKE 565 (1977) (comparing stroke and mortality rates for 228 carotid endarterectomies by 11 surgeons at two Illinois hospitals); Peter M. Sagar et al., Comparison of individual Surgeon's Performance: Risk-Adjusted Analysis With POSSUM Scoring System, 39 DIS. COLON & RECTUM 654 (1996) (comparing morbidity and mortality rates for 438 colorectal resections by each of five surgeons identified by code letters).
44. See, e.g., NEW JERSEY DEP'T OF HEALTH AND SENIOR SERVICES, CORONARY ARTERY BYPASS GRAFT SURGERY IN NEW JERSEY 1994-1995 (Nov. 1997) (reporting mortality rate data for bypass surgeries by name); NEW YORK STATE REPORT, supra note 8 (reporting mortality rate data for surgeons by name since the studies began in 1989); NEW YORK STATE ANGIOPLASTY, supra note 8; PENNSYLVANIA CONTAINMENT COUNCIL, supra note 8 (reporting mortality rate data for bypass surgeons by name); G.P. Copeland et al., Risk-Adjusted Analysis of Surgeon Performance: A 1-Year Study, 82 BRIT. J. SURGERY 408 (1995) (reporting mortality rates as compared to expected mortality rates for each surgeon, identified by code letters, performing "non-day-case general surgery" at a single English hospital); J. Donald Eastern & David G. Sherman, Stroke and Mortality Rate in Carotid Endarterectomy: 228 Consecutive Operations, 8 STROKE 565 (1977) (comparing stroke and mortality rates for 228 carotid endarterectomies by 11 surgeons at two Illinois hospitals); Peter M. Sagar et al., Comparison of individual Surgeon's Performance: Risk-Adjusted Analysis With POSSUM Scoring System, 39 DIS. COLON & RECTUM 654 (1996) (comparing morbidity and mortality rates for 438 colorectal resections by each of five surgeons identified by code letters).
45. See, e.g., NEW JERSEY DEP'T OF HEALTH AND SENIOR SERVICES, CORONARY ARTERY BYPASS GRAFT SURGERY IN NEW JERSEY 1994-1995 (Nov. 1997) (reporting mortality rate data for bypass surgeries by name); NEW YORK STATE REPORT, supra note 8 (reporting mortality rate data for surgeons by name since the studies began in 1989); NEW YORK STATE ANGIOPLASTY, supra note 8; PENNSYLVANIA CONTAINMENT COUNCIL, supra note 8 (reporting mortality rate data for bypass surgeons by name); G.P. Copeland et al., Risk-Adjusted Analysis of Surgeon Performance: A 1-Year Study, 82 BRIT. J. SURGERY 408 (1995) (reporting mortality rates as compared to expected mortality rates for each surgeon, identified by code letters, performing "non-day-case general surgery" at a single English hospital); J. Donald Eastern & David G. Sherman, Stroke and Mortality Rate in Carotid Endarterectomy: 228 Consecutive Operations, 8 STROKE 565 (1977) (comparing stroke and mortality rates for 228 carotid endarterectomies by 11 surgeons at two Illinois hospitals); Peter M. Sagar et al., Comparison of individual Surgeon's Performance: Risk-Adjusted Analysis With POSSUM Scoring System, 39 DIS. COLON & RECTUM 654 (1996) (comparing morbidity and mortality rates for 438 colorectal resections by each of five surgeons identified by code letters).
46. See, e.g., NEW JERSEY DEP'T OF HEALTH AND SENIOR SERVICES, CORONARY ARTERY BYPASS GRAFT SURGERY IN NEW JERSEY 1994-1995 (Nov. 1997) (reporting mortality rate data for bypass surgeries by name); NEW YORK STATE REPORT, supra note 8 (reporting mortality rate data for surgeons by name since the studies began in 1989); NEW YORK STATE ANGIOPLASTY, supra note 8; PENNSYLVANIA CONTAINMENT COUNCIL, supra note 8 (reporting mortality rate data for bypass surgeons by name); G.P. Copeland et al., Risk-Adjusted Analysis of Surgeon Performance: A 1-Year Study, 82 BRIT. J. SURGERY 408 (1995) (reporting mortality rates as compared to expected mortality rates for each surgeon, identified by code letters, performing "non-day-case general surgery" at a single English hospital); J. Donald Eastern & David G. Sherman, Stroke and Mortality Rate in Carotid Endarterectomy: 228 Consecutive Operations, 8 STROKE 565 (1977) (comparing stroke and mortality rates for 228 carotid endarterectomies by 11 surgeons at two Illinois hospitals); Peter M. Sagar et al., Comparison of individual Surgeon's Performance: Risk-Adjusted Analysis With POSSUM Scoring System, 39 DIS. COLON & RECTUM 654 (1996) (comparing morbidity and mortality rates for 438 colorectal resections by each of five surgeons identified by code letters).
47. See, e.g., NEW JERSEY DEP'T OF HEALTH AND SENIOR SERVICES, CORONARY ARTERY BYPASS GRAFT SURGERY IN NEW JERSEY 1994-1995 (Nov. 1997) (reporting mortality rate data for bypass surgeries by name); NEW YORK STATE REPORT, supra note 8 (reporting mortality rate data for surgeons by name since the studies began in 1989); NEW YORK STATE ANGIOPLASTY, supra note 8; PENNSYLVANIA CONTAINMENT COUNCIL, supra note 8 (reporting mortality rate data for bypass surgeons by name); G.P. Copeland et al., Risk-Adjusted Analysis of Surgeon Performance: A 1-Year Study, 82 BRIT. J. SURGERY 408 (1995) (reporting mortality rates as compared to expected mortality rates for each surgeon, identified by code letters, performing "non-day-case general surgery" at a single English hospital); J. Donald Eastern & David G. Sherman, Stroke and Mortality Rate in Carotid Endarterectomy: 228 Consecutive Operations, 8 STROKE 565 (1977) (comparing stroke and mortality rates for 228 carotid endarterectomies by 11 surgeons at two Illinois hospitals); Peter M. Sagar et al., Comparison of individual Surgeon's Performance: Risk-Adjusted Analysis With POSSUM Scoring System, 39 DIS. COLON & RECTUM 654 (1996) (comparing morbidity and mortality rates for 438 colorectal resections by each of five surgeons identified by code letters).
48. See, e.g., NEW JERSEY DEP'T OF HEALTH AND SENIOR SERVICES, CORONARY ARTERY BYPASS GRAFT SURGERY IN NEW JERSEY 1994-1995 (Nov. 1997) (reporting mortality rate data for bypass surgeries by name); NEW YORK STATE REPORT, supra note 8 (reporting mortality rate data for surgeons by name since the studies began in 1989); NEW YORK STATE ANGIOPLASTY, supra note 8; PENNSYLVANIA CONTAINMENT COUNCIL, supra note 8 (reporting mortality rate data for bypass surgeons by name); G.P. Copeland et al., Risk-Adjusted Analysis of Surgeon Performance: A 1-Year Study, 82 BRIT. J. SURGERY 408 (1995) (reporting mortality rates as compared to expected mortality rates for each surgeon, identified by code letters, performing "non-day-case general surgery" at a single English hospital); J. Donald Eastern & David G. Sherman, Stroke and Mortality Rate in Carotid Endarterectomy: 228 Consecutive Operations, 8 STROKE 565 (1977) (comparing stroke and mortality rates for 228 carotid endarterectomies by 11 surgeons at two Illinois hospitals); Peter M. Sagar et al., Comparison of individual Surgeon's Performance: Risk-Adjusted Analysis With POSSUM Scoring System, 39 DIS. COLON & RECTUM 654 (1996) (comparing morbidity and mortality rates for 438 colorectal resections by each of five surgeons identified by code letters).
49. See, e.g., NEW JERSEY DEP'T OF HEALTH AND SENIOR SERVICES, CORONARY ARTERY BYPASS GRAFT SURGERY IN NEW JERSEY 1994-1995 (Nov. 1997) (reporting mortality rate data for bypass surgeries by name); NEW YORK STATE REPORT, supra note 8 (reporting mortality rate data for surgeons by name since the studies began in 1989); NEW YORK STATE ANGIOPLASTY, supra note 8; PENNSYLVANIA CONTAINMENT COUNCIL, supra note 8 (reporting mortality rate data for bypass surgeons by name); G.P. Copeland et al., Risk-Adjusted Analysis of Surgeon Performance: A 1-Year Study, 82 BRIT. J. SURGERY 408 (1995) (reporting mortality rates as compared to expected mortality rates for each surgeon, identified by code letters, performing "non-day-case general surgery" at a single English hospital); J. Donald Eastern & David G. Sherman, Stroke and Mortality Rate in Carotid Endarterectomy: 228 Consecutive Operations, 8 STROKE 565 (1977) (comparing stroke and mortality rates for 228 carotid endarterectomies by 11 surgeons at two Illinois hospitals); Peter M. Sagar et al., Comparison of individual Surgeon's Performance: Risk-Adjusted Analysis With POSSUM Scoring System, 39 DIS. COLON & RECTUM 654 (1996) (comparing morbidity and mortality rates for 438 colorectal resections by each of five surgeons identified by code letters).
50. Private organizations are increasingly joining the cottage industry growing out of medical provider statistics. Privately compiled studies geared toward the consumer market are published, often on the Internet, by these organizations for direct profit or as marketing tools for a particular provider's services. See, e.g., Center for the Study of Services, Consumer Hospital Guide (visited June 18, 1998) 〈http://www.checkbook.org〉 (providing website database where, for a subscription fee, consumers can search for provider/outcome data, including risk-adjusted mortality and complication rates for nine different procedures and patient diagnostic categories for U.S. acute care facilities); Cleveland Clinic Foundation, How to Choose a Doctor and Hospital (visited June 20, 1998) 〈http://www.ccf.org〉 (publishing provider statistics for Cleveland Clinic centers on cardiac catheterization angioplasty, CABG, and retropubic prostatectomy and providing references for studies on outcome rates for similar procedures at other facilities for consumer comparison purposes); Mediqual Systems, Inc., e-Book (visited July 5, 1998) 〈http://www.mediqual.com〉 (website report providing mortality and complication rate data for heart attack patients, hip replacement surgery, knee replacement surgery, and stroke patients at all registered Medicare acute care facilities); Report From the Field: Cardiology Networks Using Mortality Rates as Marketing Device, 18 MED. OUTCOMES & GUIDELINES ALERT, Sept. 16, 1993, available in WL 3091644, (database reporting that two not-for-profit national networks of cardiologists and cardiovascular surgeons have banded together to sell their services on the strength of members' demonstrated low mortality rates and high performance volume for heart surgeries, including CABG and angioplasty; one service, the National Cardiovascular Network, claimed 700 physician members from 40 facilities).
51. Private organizations are increasingly joining the cottage industry growing out of medical provider statistics. Privately compiled studies geared toward the consumer market are published, often on the Internet, by these organizations for direct profit or as marketing tools for a particular provider's services. See, e.g., Center for the Study of Services, Consumer Hospital Guide (visited June 18, 1998) 〈http://www.checkbook.org〉 (providing website database where, for a subscription fee, consumers can search for provider/outcome data, including risk-adjusted mortality and complication rates for nine different procedures and patient diagnostic categories for U.S. acute care facilities); Cleveland Clinic Foundation, How to Choose a Doctor and Hospital (visited June 20, 1998) 〈http://www.ccf.org〉 (publishing provider statistics for Cleveland Clinic centers on cardiac catheterization angioplasty, CABG, and retropubic prostatectomy and providing references for studies on outcome rates for similar procedures at other facilities for consumer comparison purposes); Mediqual Systems, Inc., e-Book (visited July 5, 1998) 〈http://www.mediqual.com〉 (website report providing mortality and complication rate data for heart attack patients, hip replacement surgery, knee replacement surgery, and stroke patients at all registered Medicare acute care facilities); Report From the Field: Cardiology Networks Using Mortality Rates as Marketing Device, 18 MED. OUTCOMES & GUIDELINES ALERT, Sept. 16, 1993, available in WL 3091644, (database reporting that two not-for-profit national networks of cardiologists and cardiovascular surgeons have banded together to sell their services on the strength of members' demonstrated low mortality rates and high performance volume for heart surgeries, including CABG and angioplasty; one service, the National Cardiovascular Network, claimed 700 physician members from 40 facilities).
52. Private organizations are increasingly joining the cottage industry growing out of medical provider statistics. Privately compiled studies geared toward the consumer market are published, often on the Internet, by these organizations for direct profit or as marketing tools for a particular provider's services. See, e.g., Center for the Study of Services, Consumer Hospital Guide (visited June 18, 1998) 〈http://www.checkbook.org〉 (providing website database where, for a subscription fee, consumers can search for provider/outcome data, including risk-adjusted mortality and complication rates for nine different procedures and patient diagnostic categories for U.S. acute care facilities); Cleveland Clinic Foundation, How to Choose a Doctor and Hospital (visited June 20, 1998) 〈http://www.ccf.org〉 (publishing provider statistics for Cleveland Clinic centers on cardiac catheterization angioplasty, CABG, and retropubic prostatectomy and providing references for studies on outcome rates for similar procedures at other facilities for consumer comparison purposes); Mediqual Systems, Inc., e-Book (visited July 5, 1998) 〈http://www.mediqual.com〉 (website report providing mortality and complication rate data for heart attack patients, hip replacement surgery, knee replacement surgery, and stroke patients at all registered Medicare acute care facilities); Report From the Field: Cardiology Networks Using Mortality Rates as Marketing Device, 18 MED. OUTCOMES & GUIDELINES ALERT, Sept. 16, 1993, available in WL 3091644, (database reporting that two not-for-profit national networks of cardiologists and cardiovascular surgeons have banded together to sell their services on the strength of members' demonstrated low mortality rates and high performance volume for heart surgeries, including CABG and angioplasty; one service, the National Cardiovascular Network, claimed 700 physician members from 40 facilities).
53. Private organizations are increasingly joining the cottage industry growing out of medical provider statistics. Privately compiled studies geared toward the consumer market are published, often on the Internet, by these organizations for direct profit or as marketing tools for a particular provider's services. See, e.g., Center for the Study of Services, Consumer Hospital Guide (visited June 18, 1998) 〈http://www.checkbook.org〉 (providing website database where, for a subscription fee, consumers can search for provider/outcome data, including risk-adjusted mortality and complication rates for nine different procedures and patient diagnostic categories for U.S. acute care facilities); Cleveland Clinic Foundation, How to Choose a Doctor and Hospital (visited June 20, 1998) 〈http://www.ccf.org〉 (publishing provider statistics for Cleveland Clinic centers on cardiac catheterization angioplasty, CABG, and retropubic prostatectomy and providing references for studies on outcome rates for similar procedures at other facilities for consumer comparison purposes); Mediqual Systems, Inc., e-Book (visited July 5, 1998) 〈http://www.mediqual.com〉 (website report providing mortality and complication rate data for heart attack patients, hip replacement surgery, knee replacement surgery, and stroke patients at all registered Medicare acute care facilities); Report From the Field: Cardiology Networks Using Mortality Rates as Marketing Device, 18 MED. OUTCOMES & GUIDELINES ALERT, Sept. 16, 1993, available in WL 3091644, (database reporting that two not-for-profit national networks of cardiologists and cardiovascular surgeons have banded together to sell their services on the strength of members' demonstrated low mortality rates and high performance volume for heart surgeries, including CABG and angioplasty; one service, the National Cardiovascular Network, claimed 700 physician members from 40 facilities).
54. 545 N.W.2d 495 (Wis. 1996). For an interesting discussion of Kokemoor, see Richard A. Heinemann, Note, Pushing the Limits of Informed Consent: Johnson v. Kokemoor and Physician-Specified Disclosure, 1997 WIS. L. REV. 1079 (1997).
55. The decision by plaintiff's counsel not to bring an action for negligent performance of the surgery served to blunt the defendant's argument that the plaintiff sought to transform a duty to reasonably inform the patient into a duty to reasonably perform the surgery even though no proof that the surgery was actually negligently performed had been presented. See Kokemoor, 545 N.W.2d at 504. The Court rejected the defendant's argument, noting that "while a jury might confuse negligent failure to disclose with negligent treatment, the likelihood of confusion is nonexistent or de minimis in this case. The plaintiff dismissed her negligent treatment claim before trial." Id. at 506.
56. Id. at 499.
57. See supra note 12.
58. Kokemoor, 545 N.W.2d at 507. In Duttry v. Lewis Patterson, M.D., 1999 WL 787656, *2 (Pa. Super. Ct.), the court relied on Kokemoor to find that a physician who had overstated his experience in performing esophageal surgery could be held liable for failing to obtain informed consent. The court noted that the patient had inquired about the physician's experience and limited its holding to cases where a direct inquiry was made of the physician.
59. Id. at 509.
60. Id. at 509-10.
61. The defendant's argument that the identical injury could have occurred at the hands of a master surgeon goes to the issue of "injury causation." See infra text accompanying note 23. The instruction that the court approved went to the issue of "decision causation." See infra text accompanying notes 20-22. Nonetheless, the court was aware that the defendant's argument was directed toward "injury causation." In Kokemoor, 545 N.W.2d at 509 n.36, the court referred to the discussion of this very issue that appears in Comparing Medical Providers, supra note 5, at 32.
62. The defendant's argument that the identical injury could have occurred at the hands of a master surgeon goes to the issue of "injury causation." See infra text accompanying note 23. The instruction that the court approved went to the issue of "decision causation." See infra text accompanying notes 20-22. Nonetheless, the court was aware that the defendant's argument was directed toward "injury causation." In Kokemoor, 545 N.W.2d at 509 n.36, the court referred to the discussion of this very issue that appears in Comparing Medical Providers, supra note 5, at 32.
63. See Kokemoor, 545 N.W.2d at 510.
64. See sources cited supra note 2.
65. See Looking for the Action, supra note 3, at 589-90; From Informed Consent to Patient Choice, supra note 3, at 249-50.
66. See Looking for the Action, supra note 3, at 589-90; From Informed Consent to Patient Choice, supra note 3, at 249-50.
67. See sources cited supra note 3. See also The Myth of Justiciable Causation, supra note 3, where the authors observe: In the pre-Canterbury era, courts established a narrower objective test for materiality ("reasonable doctor") and a broad-based test for causation ("subjective patient"). Canterbury appears to be a mirror image of the older case law. It created a broad test for materiality ("reasonable patient") and a narrower objective test for causation (what a "reasonable patient" would have chosen). Since the causation test is tied to the choice of a "reasonable patient" and such patients are usually heavily influenced by medical recommendations, the causation test is very much governed by a professional standard. Id. at 615 n. 3.
68. See Medical Malpractice, supra note 3, at 121-25; From Informed Consent to Patient Choice, supra note 3, at 288-91. Even with regard to decision causation, the problem of communicating risk in comparative terms is difficult. See Peter H. Schuck, Rethinking Informed Consent, 103 YALE, L.J. 899, 948-51 (1994) [hereinafter Rethinking Informed Consent]. Schuck's discussion focuses on unidimensional risk comparison. He argues: To make risk information more meaningful to patients, physicians need not transform their self-conceptions or roles, nor incur new time or other costs; they need only to change how they describe risk to patients. Suppose that physicians were to characterize risks to patients not in one of the absolute, more or less quantitative forms mentioned above but rather (or in addition) in explicitly comparative terms - that is, in terms that encourage the patient to assess the medical risk in light of other risks that are more familiar to her, risks that she has some basis for, and experience in, evaluating. For example, the physician might compare the medical risk to the risk of certain types of common accidents or other adverse outcomes (e.g., collisions from driving at night, lung cancer from smoking, complications from drinking alcohol while pregnant) about which patients are more accustomed to appraising and making explicit or implicit choices. Id. at 949. The next step in decision causation is to provide patients with comparative-risk assessment between different medical procedures. Only after decision causation has been decided favorably for a plaintiff does a court confront the problem of assessing damages for the differential between the risk of the procedure recommended by the physician and chosen by the patient and the risk presented by the alternative procedure that the patient would have chosen.
69. See Medical Malpractice, supra note 3, at 121-25; From Informed Consent to Patient Choice, supra note 3, at 288-91. Even with regard to decision causation, the problem of communicating risk in comparative terms is difficult. See Peter H. Schuck, Rethinking Informed Consent, 103 YALE, L.J. 899, 948-51 (1994) [hereinafter Rethinking Informed Consent]. Schuck's discussion focuses on unidimensional risk comparison. He argues: To make risk information more meaningful to patients, physicians need not transform their self-conceptions or roles, nor incur new time or other costs; they need only to change how they describe risk to patients. Suppose that physicians were to characterize risks to patients not in one of the absolute, more or less quantitative forms mentioned above but rather (or in addition) in explicitly comparative terms - that is, in terms that encourage the patient to assess the medical risk in light of other risks that are more familiar to her, risks that she has some basis for, and experience in, evaluating. For example, the physician might compare the medical risk to the risk of certain types of common accidents or other adverse outcomes (e.g., collisions from driving at night, lung cancer from smoking, complications from drinking alcohol while pregnant) about which patients are more accustomed to appraising and making explicit or implicit choices. Id. at 949. The next step in decision causation is to provide patients with comparative-risk assessment between different medical procedures. Only after decision causation has been decided favorably for a plaintiff does a court confront the problem of assessing damages for the differential between the risk of the procedure recommended by the physician and chosen by the patient and the risk presented by the alternative procedure that the patient would have chosen.
70. See Medical Malpractice, supra note 3, at 121-25; From Informed Consent to Patient Choice, supra note 3, at 288-91. Even with regard to decision causation, the problem of communicating risk in comparative terms is difficult. See Peter H. Schuck, Rethinking Informed Consent, 103 YALE, L.J. 899, 948-51 (1994) [hereinafter Rethinking Informed Consent]. Schuck's discussion focuses on unidimensional risk comparison. He argues: To make risk information more meaningful to patients, physicians need not transform their self-conceptions or roles, nor incur new time or other costs; they need only to change how they describe risk to patients. Suppose that physicians were to characterize risks to patients not in one of the absolute, more or less quantitative forms mentioned above but rather (or in addition) in explicitly comparative terms - that is, in terms that encourage the patient to assess the medical risk in light of other risks that are more familiar to her, risks that she has some basis for, and experience in, evaluating. For example, the physician might compare the medical risk to the risk of certain types of common accidents or other adverse outcomes (e.g., collisions from driving at night, lung cancer from smoking, complications from drinking alcohol while pregnant) about which patients are more accustomed to appraising and making explicit or implicit choices. Id. at 949. The next step in decision causation is to provide patients with comparative-risk assessment between different medical procedures. Only after decision causation has been decided favorably for a plaintiff does a court confront the problem of assessing damages for the differential between the risk of the procedure recommended by the physician and chosen by the patient and the risk presented by the alternative procedure that the patient would have chosen.
71. Tort damages generally measure the differential or add on caused by the tortious conduct as compared with nontortious conduct. Valuing the differential requires a risk assessment of the alternative that the patient would have chosen. For the most part, such assessments are either unknown or unknowable. Placing a monetary value on the differential is simply not feasible. The analogy to "increased harm" arising out of products liability "crashworthiness" litigation is compelling. To successfully prosecute a crashworthiness case, plaintiff must establish that she suffered damages beyond that which would have resulted had the product been free from defect. See RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 16(a)-(b) (1998). For extensive case law supporting this rule, see id., Reporters' Note at 241-54. Where proof supports the amount of increased harm caused by the product defect, damages are limited to that amount When plaintiff is only able to demonstrate that the defect was a substantial factor in causing increased harm but cannot quantify the differential, the majority of cases impose damages for all the harm suffered by plaintiff on the product seller. With reference to injury causation hi informed consent cases, there is no case law addressing the increased harm question. Scholars have addressed the problem. See, e.g., Jon R. Waltz & Thomas W. Scheuneman, Informed Consent to Therapy, 64 NW. U. L. REV. 628, 646-49 (1969). According to Waltz and Scheuneman, the proper damages are reflected by "the difference between . . . [the patient's] condition with no treatment and his condition after the undisclosed risk materialized." Id. at 649. Professor Richard Epstein concurs. He argues: The second causal question raised in informed consent cases concerns what might have happened to the patient if appropriate disclosures had led him to refuse the proposed treatment. While it might be tempting to hold the physician responsible for the harm caused by the treatment, that position is quite unsound if it does not take into account the harm that would have occurred in any event. In tort actions for harm caused to strangers, the plaintiff's pre-existing condition is usually not an issue, since such plaintiff is normally of sound mind and body. In those cases where he is not, the accepted view, whenever apportionment is possible, is to allow recovery only for the additional harm that was caused by the tortfeasor's conduct and not for the total amount of harm experienced thereafter. For those patients (doubtless a significant proportion) who were not healthy at the outset of treatment, their precarious condition carries with it the substantial risk of further harm if prompt corrective steps are not taken. We are not talking of remote or speculative possibilities. In the medical context the possible reduction in damages required by the application of the rule is likely to be substantial in many cases and total in others. Medical Malpractice, supra note 3, at 121-22 (footnotes omitted). One might draw an analogy to the crashworthiness cases and allow a plaintiff who has proved some increased harm to recover full damages unless the defendant introduces credible evidence to specify the increased harm. See RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 16(c) (1998). However, a plaintiff would still be required to prove that the harm actually suffered is greater than the harm that would have taken place if the alternative therapy had been chosen. Furthermore, a defendant would be free to introduce evidence that the risks of the alternative therapy were significant and should be considered in reducing the damages.
72. Tort damages generally measure the differential or add on caused by the tortious conduct as compared with nontortious conduct. Valuing the differential requires a risk assessment of the alternative that the patient would have chosen. For the most part, such assessments are either unknown or unknowable. Placing a monetary value on the differential is simply not feasible. The analogy to "increased harm" arising out of products liability "crashworthiness" litigation is compelling. To successfully prosecute a crashworthiness case, plaintiff must establish that she suffered damages beyond that which would have resulted had the product been free from defect. See RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 16(a)-(b) (1998). For extensive case law supporting this rule, see id., Reporters' Note at 241-54. Where proof supports the amount of increased harm caused by the product defect, damages are limited to that amount When plaintiff is only able to demonstrate that the defect was a substantial factor in causing increased harm but cannot quantify the differential, the majority of cases impose damages for all the harm suffered by plaintiff on the product seller. With reference to injury causation hi informed consent cases, there is no case law addressing the increased harm question. Scholars have addressed the problem. See, e.g., Jon R. Waltz & Thomas W. Scheuneman, Informed Consent to Therapy, 64 NW. U. L. REV. 628, 646-49 (1969). According to Waltz and Scheuneman, the proper damages are reflected by "the difference between . . . [the patient's] condition with no treatment and his condition after the undisclosed risk materialized." Id. at 649. Professor Richard Epstein concurs. He argues: The second causal question raised in informed consent cases concerns what might have happened to the patient if appropriate disclosures had led him to refuse the proposed treatment. While it might be tempting to hold the physician responsible for the harm caused by the treatment, that position is quite unsound if it does not take into account the harm that would have occurred in any event. In tort actions for harm caused to strangers, the plaintiff's pre-existing condition is usually not an issue, since such plaintiff is normally of sound mind and body. In those cases where he is not, the accepted view, whenever apportionment is possible, is to allow recovery only for the additional harm that was caused by the tortfeasor's conduct and not for the total amount of harm experienced thereafter. For those patients (doubtless a significant proportion) who were not healthy at the outset of treatment, their precarious condition carries with it the substantial risk of further harm if prompt corrective steps are not taken. We are not talking of remote or speculative possibilities. In the medical context the possible reduction in damages required by the application of the rule is likely to be substantial in many cases and total in others. Medical Malpractice, supra note 3, at 121-22 (footnotes omitted). One might draw an analogy to the crashworthiness cases and allow a plaintiff who has proved some increased harm to recover full damages unless the defendant introduces credible evidence to specify the increased harm. See RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 16(c) (1998). However, a plaintiff would still be required to prove that the harm actually suffered is greater than the harm that would have taken place if the alternative therapy had been chosen. Furthermore, a defendant would be free to introduce evidence that the risks of the alternative therapy were significant and should be considered in reducing the damages.
73. Tort damages generally measure the differential or add on caused by the tortious conduct as compared with nontortious conduct. Valuing the differential requires a risk assessment of the alternative that the patient would have chosen. For the most part, such assessments are either unknown or unknowable. Placing a monetary value on the differential is simply not feasible. The analogy to "increased harm" arising out of products liability "crashworthiness" litigation is compelling. To successfully prosecute a crashworthiness case, plaintiff must establish that she suffered damages beyond that which would have resulted had the product been free from defect. See RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 16(a)-(b) (1998). For extensive case law supporting this rule, see id., Reporters' Note at 241-54. Where proof supports the amount of increased harm caused by the product defect, damages are limited to that amount When plaintiff is only able to demonstrate that the defect was a substantial factor in causing increased harm but cannot quantify the differential, the majority of cases impose damages for all the harm suffered by plaintiff on the product seller. With reference to injury causation hi informed consent cases, there is no case law addressing the increased harm question. Scholars have addressed the problem. See, e.g., Jon R. Waltz & Thomas W. Scheuneman, Informed Consent to Therapy, 64 NW. U. L. REV. 628, 646-49 (1969). According to Waltz and Scheuneman, the proper damages are reflected by "the difference between . . . [the patient's] condition with no treatment and his condition after the undisclosed risk materialized." Id. at 649. Professor Richard Epstein concurs. He argues: The second causal question raised in informed consent cases concerns what might have happened to the patient if appropriate disclosures had led him to refuse the proposed treatment. While it might be tempting to hold the physician responsible for the harm caused by the treatment, that position is quite unsound if it does not take into account the harm that would have occurred in any event. In tort actions for harm caused to strangers, the plaintiff's pre-existing condition is usually not an issue, since such plaintiff is normally of sound mind and body. In those cases where he is not, the accepted view, whenever apportionment is possible, is to allow recovery only for the additional harm that was caused by the tortfeasor's conduct and not for the total amount of harm experienced thereafter. For those patients (doubtless a significant proportion) who were not healthy at the outset of treatment, their precarious condition carries with it the substantial risk of further harm if prompt corrective steps are not taken. We are not talking of remote or speculative possibilities. In the medical context the possible reduction in damages required by the application of the rule is likely to be substantial in many cases and total in others. Medical Malpractice, supra note 3, at 121-22 (footnotes omitted). One might draw an analogy to the crashworthiness cases and allow a plaintiff who has proved some increased harm to recover full damages unless the defendant introduces credible evidence to specify the increased harm. See RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 16(c) (1998). However, a plaintiff would still be required to prove that the harm actually suffered is greater than the harm that would have taken place if the alternative therapy had been chosen. Furthermore, a defendant would be free to introduce evidence that the risks of the alternative therapy were significant and should be considered in reducing the damages.
74. Tort damages generally measure the differential or add on caused by the tortious conduct as compared with nontortious conduct. Valuing the differential requires a risk assessment of the alternative that the patient would have chosen. For the most part, such assessments are either unknown or unknowable. Placing a monetary value on the differential is simply not feasible. The analogy to "increased harm" arising out of products liability "crashworthiness" litigation is compelling. To successfully prosecute a crashworthiness case, plaintiff must establish that she suffered damages beyond that which would have resulted had the product been free from defect. See RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 16(a)-(b) (1998). For extensive case law supporting this rule, see id., Reporters' Note at 241-54. Where proof supports the amount of increased harm caused by the product defect, damages are limited to that amount When plaintiff is only able to demonstrate that the defect was a substantial factor in causing increased harm but cannot quantify the differential, the majority of cases impose damages for all the harm suffered by plaintiff on the product seller. With reference to injury causation hi informed consent cases, there is no case law addressing the increased harm question. Scholars have addressed the problem. See, e.g., Jon R. Waltz & Thomas W. Scheuneman, Informed Consent to Therapy, 64 NW. U. L. REV. 628, 646-49 (1969). According to Waltz and Scheuneman, the proper damages are reflected by "the difference between . . . [the patient's] condition with no treatment and his condition after the undisclosed risk materialized." Id. at 649. Professor Richard Epstein concurs. He argues: The second causal question raised in informed consent cases concerns what might have happened to the patient if appropriate disclosures had led him to refuse the proposed treatment. While it might be tempting to hold the physician responsible for the harm caused by the treatment, that position is quite unsound if it does not take into account the harm that would have occurred in any event. In tort actions for harm caused to strangers, the plaintiff's pre-existing condition is usually not an issue, since such plaintiff is normally of sound mind and body. In those cases where he is not, the accepted view, whenever apportionment is possible, is to allow recovery only for the additional harm that was caused by the tortfeasor's conduct and not for the total amount of harm experienced thereafter. For those patients (doubtless a significant proportion) who were not healthy at the outset of treatment, their precarious condition carries with it the substantial risk of further harm if prompt corrective steps are not taken. We are not talking of remote or speculative possibilities. In the medical context the possible reduction in damages required by the application of the rule is likely to be substantial in many cases and total in others. Medical Malpractice, supra note 3, at 121-22 (footnotes omitted). One might draw an analogy to the crashworthiness cases and allow a plaintiff who has proved some increased harm to recover full damages unless the defendant introduces credible evidence to specify the increased harm. See RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 16(c) (1998). However, a plaintiff would still be required to prove that the harm actually suffered is greater than the harm that would have taken place if the alternative therapy had been chosen. Furthermore, a defendant would be free to introduce evidence that the risks of the alternative therapy were significant and should be considered in reducing the damages.
75. For a full discussion of this issue, see The Myth of Justiciable Causation, supra note 3, at 620-21.
76. See id. at 648-49. It should be noted that under any theory of informed consent, a patient is free to exercise her autonomy and refuse information that a physician would otherwise be obligated to provide. Thus, a physician would have a duty to disclose to a patient that comparative provider risk information is available and that the physician is willing to provide it to the patient As with risks associated with procedures, if a patient indicates to the physician that she does not want to know about the comparative provider risk information, the physician would have no duty to insist that the patient listen to the information. See N.Y. PUB. HEALTH LAW § 2805-d(4)(b) (McKinney 1993).
77. Recommending a procedure that is unreasonable under the circumstances is itself malpractice, without regard to disclosure of risks.
78. In the case of a procedure that has such low risk that no reasonable patient would decline it because of that risk, failure to disclose that risk violates no duty and, in any event, would not have influenced the patient's decision. See supra note 2.
79. But see Mary Arme Bobinski, Autonomy & Privacy: Protecting Patients from Their Physicians, 55 U. PITT. L. REV. 291, 343 (1994) [hereinafter Autonomy & Privacy]. The author notes that in an informed consent case, a plaintiff must first establish whether a risk is material and should have been communicated to the patient. Id. The jurisdictions are split as to whether the test for materiality is the "reasonable doctor" or reasonable patient test. See discussion supra note 2. Bobinski argues that in states adhering to the "reasonable doctor" standard, it will be more difficult to establish that reasonable physicians would have revealed "provider-associated" risks. However, she acknowledges that even in states following this more conservative approach, the barrier to recovery is not insuperable. See Autonomy & Privacy, at 343-44 n.188.
80. But see Mary Arme Bobinski, Autonomy & Privacy: Protecting Patients from Their Physicians, 55 U. PITT. L. REV. 291, 343 (1994) [hereinafter Autonomy & Privacy]. The author notes that in an informed consent case, a plaintiff must first establish whether a risk is material and should have been communicated to the patient. Id. The jurisdictions are split as to whether the test for materiality is the "reasonable doctor" or reasonable patient test. See discussion supra note 2. Bobinski argues that in states adhering to the "reasonable doctor" standard, it will be more difficult to establish that reasonable physicians would have revealed "provider-associated" risks. However, she acknowledges that even in states following this more conservative approach, the barrier to recovery is not insuperable. See Autonomy & Privacy, at 343-44 n.188.
81. Studies consistently show an inverse relation between volume of procedures performed per provider (or of patients treated in a single diagnostic category) and adverse outcome rates (as measured by risk-adjusted mortality or complication rates), no matter what procedure is studied, and thus suggest that "practice makes proficiency." Don Colbum, Practice Makes Proficiency in Bypass Surgery, Study Says, WASH. POST, Nov. 18, 1997, at WH-5 (describing study of 274 cardiac surgeons in New York, Pennsylvania, and Wisconsin that reveals significantly lower mortality rates for cardiac surgeons performing higher numbers of bypass surgeries). See also Autonomy & Privacy, supra note 29, at 296 n.9 (reporting that "studies regularly indicate that success rates for heart transplants are better at institutions where more transplants have been performed"). Studies showing such risk-adjusted inverse volume/adverse outcome rates for hospital providers are numerous. See, e.g., Edward L. Hannan et al., Coronary Angioplasty Volume-Outcome Relationships for Hospitals and Cardiologists, 277 JAMA 892 (1997) (finding that in percutaneous transluminal coronary angioplasties (PTCA) performed in the state of New York, both hospital volume and cardiologist volume are significantly inversely related to risk-adjusted mortality rates); Robert G. Hughes et al., Hospital Volume and Patient Outcomes: The Case of Hip Fracture Patients, 26 MED. CARE 1057 (1988) (finding that hip fracture patients achieve better mortality and complication rate outcomes at those hospitals, out of the 704 U.S. hospitals studied that treat larger numbers of such patients); Hans J. Kreder et al., Relationship Between the Volume of Total Hip Replacements Performed by Providers and the Rates of Postoperative Complications in the State of Washington, 79-A J. BONE & JOINT SURGERY 485 (1997) (finding a significant relationship between surgeons averaging fewer than two hip replacements annually and higher adverse outcome, as measured by rates of mortality, infection, revision surgery, and complications); Stephen E. Kimmel et al., The Relationship Between Coronary Angioplasty Procedure Volume and Major Complications, 274 JAMA 1137 (1995) (finding significant decrease in complication and mortality rates with increasing volume of percutaneous transluminal coronary angioplasty procedures performed at 48 provider centers and stating that "an inverse association between the number of CABG surgeries performed at a hospital and subsequent mortality rates has been well described . . ."); Mark A. Mattos et al., Evolution of Carotid Endarterectomy in Two Community Hospitals: Springfield Revisited - Seventeen Years and 2243 Operations Later, 21 J. VASCULAR SURGERY 719, 722 (1995) (reporting that "operative stroke rate of [31] surgeons who performed more than 12 CEAs per year was significantly lower than [rates of those surgeons who performed less than one CEA per month]" and that mortality rates were similar); Ciaran S. Phibbs et al., The Effects of Patient Volume and Level of Care at the Hospital of Birth on Neonatal Mortality, 276 JAMA 1054 (1996) (finding correlation between volume of high-risk neonatal cases treated at all nonfederal California hospitals in 1990 and risk-adjusted mortality rates).
82. Studies consistently show an inverse relation between volume of procedures performed per provider (or of patients treated in a single diagnostic category) and adverse outcome rates (as measured by risk-adjusted mortality or complication rates), no matter what procedure is studied, and thus suggest that "practice makes proficiency." Don Colbum, Practice Makes Proficiency in Bypass Surgery, Study Says, WASH. POST, Nov. 18, 1997, at WH-5 (describing study of 274 cardiac surgeons in New York, Pennsylvania, and Wisconsin that reveals significantly lower mortality rates for cardiac surgeons performing higher numbers of bypass surgeries). See also Autonomy & Privacy, supra note 29, at 296 n.9 (reporting that "studies regularly indicate that success rates for heart transplants are better at institutions where more transplants have been performed"). Studies showing such risk-adjusted inverse volume/adverse outcome rates for hospital providers are numerous. See, e.g., Edward L. Hannan et al., Coronary Angioplasty Volume-Outcome Relationships for Hospitals and Cardiologists, 277 JAMA 892 (1997) (finding that in percutaneous transluminal coronary angioplasties (PTCA) performed in the state of New York, both hospital volume and cardiologist volume are significantly inversely related to risk-adjusted mortality rates); Robert G. Hughes et al., Hospital Volume and Patient Outcomes: The Case of Hip Fracture Patients, 26 MED. CARE 1057 (1988) (finding that hip fracture patients achieve better mortality and complication rate outcomes at those hospitals, out of the 704 U.S. hospitals studied that treat larger numbers of such patients); Hans J. Kreder et al., Relationship Between the Volume of Total Hip Replacements Performed by Providers and the Rates of Postoperative Complications in the State of Washington, 79-A J. BONE & JOINT SURGERY 485 (1997) (finding a significant relationship between surgeons averaging fewer than two hip replacements annually and higher adverse outcome, as measured by rates of mortality, infection, revision surgery, and complications); Stephen E. Kimmel et al., The Relationship Between Coronary Angioplasty Procedure Volume and Major Complications, 274 JAMA 1137 (1995) (finding significant decrease in complication and mortality rates with increasing volume of percutaneous transluminal coronary angioplasty procedures performed at 48 provider centers and stating that "an inverse association between the number of CABG surgeries performed at a hospital and subsequent mortality rates has been well described . . ."); Mark A. Mattos et al., Evolution of Carotid Endarterectomy in Two Community Hospitals: Springfield Revisited - Seventeen Years and 2243 Operations Later, 21 J. VASCULAR SURGERY 719, 722 (1995) (reporting that "operative stroke rate of [31] surgeons who performed more than 12 CEAs per year was significantly lower than [rates of those surgeons who performed less than one CEA per month]" and that mortality rates were similar); Ciaran S. Phibbs et al., The Effects of Patient Volume and Level of Care at the Hospital of Birth on Neonatal Mortality, 276 JAMA 1054 (1996) (finding correlation between volume of high-risk neonatal cases treated at all nonfederal California hospitals in 1990 and risk-adjusted mortality rates).
83. Studies consistently show an inverse relation between volume of procedures performed per provider (or of patients treated in a single diagnostic category) and adverse outcome rates (as measured by risk-adjusted mortality or complication rates), no matter what procedure is studied, and thus suggest that "practice makes proficiency." Don Colbum, Practice Makes Proficiency in Bypass Surgery, Study Says, WASH. POST, Nov. 18, 1997, at WH-5 (describing study of 274 cardiac surgeons in New York, Pennsylvania, and Wisconsin that reveals significantly lower mortality rates for cardiac surgeons performing higher numbers of bypass surgeries). See also Autonomy & Privacy, supra note 29, at 296 n.9 (reporting that "studies regularly indicate that success rates for heart transplants are better at institutions where more transplants have been performed"). Studies showing such risk-adjusted inverse volume/adverse outcome rates for hospital providers are numerous. See, e.g., Edward L. Hannan et al., Coronary Angioplasty Volume-Outcome Relationships for Hospitals and Cardiologists, 277 JAMA 892 (1997) (finding that in percutaneous transluminal coronary angioplasties (PTCA) performed in the state of New York, both hospital volume and cardiologist volume are significantly inversely related to risk-adjusted mortality rates); Robert G. Hughes et al., Hospital Volume and Patient Outcomes: The Case of Hip Fracture Patients, 26 MED. CARE 1057 (1988) (finding that hip fracture patients achieve better mortality and complication rate outcomes at those hospitals, out of the 704 U.S. hospitals studied that treat larger numbers of such patients); Hans J. Kreder et al., Relationship Between the Volume of Total Hip Replacements Performed by Providers and the Rates of Postoperative Complications in the State of Washington, 79-A J. BONE & JOINT SURGERY 485 (1997) (finding a significant relationship between surgeons averaging fewer than two hip replacements annually and higher adverse outcome, as measured by rates of mortality, infection, revision surgery, and complications); Stephen E. Kimmel et al., The Relationship Between Coronary Angioplasty Procedure Volume and Major Complications, 274 JAMA 1137 (1995) (finding significant decrease in complication and mortality rates with increasing volume of percutaneous transluminal coronary angioplasty procedures performed at 48 provider centers and stating that "an inverse association between the number of CABG surgeries performed at a hospital and subsequent mortality rates has been well described . . ."); Mark A. Mattos et al., Evolution of Carotid Endarterectomy in Two Community Hospitals: Springfield Revisited - Seventeen Years and 2243 Operations Later, 21 J. VASCULAR SURGERY 719, 722 (1995) (reporting that "operative stroke rate of [31] surgeons who performed more than 12 CEAs per year was significantly lower than [rates of those surgeons who performed less than one CEA per month]" and that mortality rates were similar); Ciaran S. Phibbs et al., The Effects of Patient Volume and Level of Care at the Hospital of Birth on Neonatal Mortality, 276 JAMA 1054 (1996) (finding correlation between volume of high-risk neonatal cases treated at all nonfederal California hospitals in 1990 and risk-adjusted mortality rates).
84. Studies consistently show an inverse relation between volume of procedures performed per provider (or of patients treated in a single diagnostic category) and adverse outcome rates (as measured by risk-adjusted mortality or complication rates), no matter what procedure is studied, and thus suggest that "practice makes proficiency." Don Colbum, Practice Makes Proficiency in Bypass Surgery, Study Says, WASH. POST, Nov. 18, 1997, at WH-5 (describing study of 274 cardiac surgeons in New York, Pennsylvania, and Wisconsin that reveals significantly lower mortality rates for cardiac surgeons performing higher numbers of bypass surgeries). See also Autonomy & Privacy, supra note 29, at 296 n.9 (reporting that "studies regularly indicate that success rates for heart transplants are better at institutions where more transplants have been performed"). Studies showing such risk-adjusted inverse volume/adverse outcome rates for hospital providers are numerous. See, e.g., Edward L. Hannan et al., Coronary Angioplasty Volume-Outcome Relationships for Hospitals and Cardiologists, 277 JAMA 892 (1997) (finding that in percutaneous transluminal coronary angioplasties (PTCA) performed in the state of New York,
85. Studies consistently show an inverse relation between volume of procedures performed per provider (or of patients treated in a single diagnostic category) and adverse outcome rates (as measured by risk-adjusted mortality or complication rates), no matter what procedure is studied, and thus suggest that "practice makes proficiency." Don Colbum, Practice Makes Proficiency in Bypass Surgery, Study Says, WASH. POST, Nov. 18, 1997, at WH-5 (describing study of 274 cardiac surgeons in New York, Pennsylvania, and Wisconsin that reveals significantly lower mortality rates for cardiac surgeons performing higher numbers of bypass surgeries). See also Autonomy & Privacy, supra note 29, at 296 n.9 (reporting that "studies regularly indicate that success rates for heart transplants are better at institutions where more transplants have been performed"). Studies showing such risk-adjusted inverse volume/adverse outcome rates for hospital providers are numerous. See, e.g., Edward L. Hannan et al., Coronary Angioplasty Volume-Outcome Relationships for Hospitals and Cardiologists, 277 JAMA 892 (1997) (finding that in percutaneous transluminal coronary angioplasties (PTCA) performed in the state of New York, both hospital volume and cardiologist volume are significantly inversely related to risk-adjusted mortality rates); Robert G. Hughes et al., Hospital Volume and Patient Outcomes: The Case of Hip Fracture Patients, 26 MED. CARE 1057 (1988) (finding that hip fracture patients achieve better mortality and complication rate outcomes at those hospitals, out of the 704 U.S. hospitals studied that treat larger numbers of such patients); Hans J. Kreder et al., Relationship Between the Volume of Total Hip Replacements Performed by Providers and the Rates of Postoperative Complications in the State of Washington, 79-A J. BONE & JOINT SURGERY 485 (1997) (finding a significant relationship between surgeons averaging fewer than two hip replacements annually and higher adverse outcome, as measured by rates of mortality, infection, revision surgery, and complications); Stephen E. Kimmel et al., The Relationship Between Coronary Angioplasty Procedure Volume and Major Complications, 274 JAMA 1137 (1995) (finding significant decrease in complication and mortality rates with increasing volume of percutaneous transluminal coronary angioplasty procedures performed at 48 provider centers and stating that "an inverse association between the number of CABG surgeries performed at a hospital and subsequent mortality rates has been well described . . ."); Mark A. Mattos et al., Evolution of Carotid Endarterectomy in Two Community Hospitals: Springfield Revisited - Seventeen Years and 2243 Operations Later, 21 J. VASCULAR SURGERY 719, 722 (1995) (reporting that "operative stroke rate of [31] surgeons who performed more than 12 CEAs per year was significantly lower than [rates of those surgeons who performed less than one CEA per month]" and that mortality rates were similar); Ciaran S. Phibbs et al., The Effects of Patient Volume and Level of Care at the Hospital of Birth on Neonatal Mortality, 276 JAMA 1054 (1996) (finding correlation between volume of high-risk neonatal cases treated at all nonfederal California hospitals in 1990 and risk-adjusted mortality rates).
86. Studies consistently show an inverse relation between volume of procedures performed per provider (or of patients treated in a single diagnostic category) and adverse outcome rates (as measured by risk-adjusted mortality or complication rates), no matter what procedure is studied, and thus suggest that "practice makes proficiency." Don Colbum, Practice Makes Proficiency in Bypass Surgery, Study Says, WASH. POST, Nov. 18, 1997, at WH-5 (describing study of 274 cardiac surgeons in New York, Pennsylvania, and Wisconsin that reveals significantly lower mortality rates for cardiac surgeons performing higher numbers of bypass surgeries). See also Autonomy & Privacy, supra note 29, at 296 n.9 (reporting that "studies regularly indicate that success rates for heart transplants are better at institutions where more transplants have been performed"). Studies showing such risk-adjusted inverse volume/adverse outcome rates for hospital providers are numerous. See, e.g., Edward L. Hannan et al., Coronary Angioplasty Volume-Outcome Relationships for Hospitals and Cardiologists, 277 JAMA 892 (1997) (finding that in percutaneous transluminal coronary angioplasties (PTCA) performed in the state of New York, both hospital volume and cardiologist volume are significantly inversely related to risk-adjusted mortality rates); Robert G. Hughes et al., Hospital Volume and Patient Outcomes: The Case of Hip Fracture Patients, 26 MED. CARE 1057 (1988) (finding that hip fracture patients achieve better mortality and complication rate outcomes at those hospitals, out of the 704 U.S. hospitals studied that treat larger numbers of such patients); Hans J. Kreder et al., Relationship Between the Volume of Total Hip Replacements Performed by Providers and the Rates of Postoperative Complications in the State of Washington, 79-A J. BONE & JOINT SURGERY 485 (1997) (finding a significant relationship between surgeons averaging fewer than two hip replacements annually and higher adverse outcome, as measured by rates of mortality, infection, revision surgery, and complications); Stephen E. Kimmel et al., The Relationship Between Coronary Angioplasty Procedure Volume and Major Complications, 274 JAMA 1137 (1995) (finding significant decrease in complication and mortality rates with increasing volume of percutaneous transluminal coronary angioplasty procedures performed at 48 provider centers and stating that "an inverse association between the number of CABG surgeries performed at a hospital and subsequent mortality rates has been well described . . ."); Mark A. Mattos et al., Evolution of Carotid Endarterectomy in Two Community Hospitals: Springfield Revisited - Seventeen Years and 2243 Operations Later, 21 J. VASCULAR SURGERY 719, 722 (1995) (reporting that "operative stroke rate of [31] surgeons who performed more than 12 CEAs per year was significantly lower than [rates of those surgeons who performed less than one CEA per month]" and that mortality rates were similar); Ciaran S. Phibbs et al., The Effects of Patient Volume and Level of Care at the Hospital of Birth on Neonatal Mortality, 276 JAMA 1054 (1996) (finding correlation between volume of high-risk neonatal cases treated at all nonfederal California hospitals in 1990 and risk-adjusted mortality rates).
87. Studies consistently show an inverse relation between volume of procedures performed per provider (or of patients treated in a single diagnostic category) and adverse outcome rates (as measured by risk-adjusted mortality or complication rates), no matter what procedure is studied, and thus suggest that "practice makes proficiency." Don Colbum, Practice Makes Proficiency in Bypass Surgery, Study Says, WASH. POST, Nov. 18, 1997, at WH-5 (describing study of 274 cardiac surgeons in New York, Pennsylvania, and Wisconsin that reveals significantly lower mortality rates for cardiac surgeons performing higher numbers of bypass surgeries). See also Autonomy & Privacy, supra note 29, at 296 n.9 (reporting that "studies regularly indicate that success rates for heart transplants are better at institutions where more transplants have been performed"). Studies showing such risk-adjusted inverse volume/adverse outcome rates for hospital providers are numerous. See, e.g., Edward L. Hannan et al., Coronary Angioplasty Volume-Outcome Relationships for Hospitals and Cardiologists, 277 JAMA 892 (1997) (finding that in percutaneous transluminal coronary angioplasties (PTCA) performed in the state of New York, both hospital volume and cardiologist volume are significantly inversely related to risk-adjusted mortality rates); Robert G. Hughes et al., Hospital Volume and Patient Outcomes: The Case of Hip Fracture Patients, 26 MED. CARE 1057 (1988) (finding that hip fracture patients achieve better mortality and complication rate outcomes at those hospitals, out of the 704 U.S. hospitals studied that treat larger numbers of such patients); Hans J. Kreder et al., Relationship Between the Volume of Total Hip Replacements Performed by Providers and the Rates of Postoperative Complications in the State of Washington, 79-A J. BONE & JOINT SURGERY 485 (1997) (finding a significant relationship between surgeons averaging fewer than two hip replacements annually and higher adverse outcome, as measured by rates of mortality, infection, revision surgery, and complications); Stephen E. Kimmel et al., The Relationship Between Coronary Angioplasty Procedure Volume and Major Complications, 274 JAMA 1137 (1995) (finding significant decrease in complication and mortality rates with increasing volume of percutaneous transluminal coronary angioplasty procedures performed at 48 provider centers and stating that "an inverse association between the number of CABG surgeries performed at a hospital and subsequent mortality rates has been well described . . ."); Mark A. Mattos et al., Evolution of Carotid Endarterectomy in Two Community Hospitals: Springfield Revisited - Seventeen Years and 2243 Operations Later, 21 J. VASCULAR SURGERY 719, 722 (1995) (reporting that "operative stroke rate of [31] surgeons who performed more than 12 CEAs per year was significantly lower than [rates of those surgeons who performed less than one CEA per month]" and that mortality rates were similar); Ciaran S. Phibbs et al., The Effects of Patient Volume and Level of Care at the Hospital of Birth on Neonatal Mortality, 276 JAMA 1054 (1996) (finding correlation between volume of high-risk neonatal cases treated at all nonfederal California hospitals in 1990 and risk-adjusted mortality rates).
88. Studies consistently show an inverse relation between volume of procedures performed per provider (or of patients treated in a single diagnostic category) and adverse outcome rates (as measured by risk-adjusted mortality or complication rates), no matter what procedure is studied, and thus suggest that "practice makes proficiency." Don Colbum, Practice Makes Proficiency in Bypass Surgery, Study Says, WASH. POST, Nov. 18, 1997, at WH-5 (describing study of 274 cardiac surgeons in New York, Pennsylvania, and Wisconsin that reveals significantly lower mortality rates for cardiac surgeons performing higher numbers of bypass surgeries). See also Autonomy & Privacy, supra note 29, at 296 n.9 (reporting that "studies regularly indicate that success rates for heart transplants are better at institutions where more transplants have been performed"). Studies showing such risk-adjusted inverse volume/adverse outcome rates for hospital providers are numerous. See, e.g., Edward L. Hannan et al., Coronary Angioplasty Volume-Outcome Relationships for Hospitals and Cardiologists, 277 JAMA 892 (1997) (finding that in percutaneous transluminal coronary angioplasties (PTCA) performed in the state of New York, both hospital volume and cardiologist volume are significantly inversely related to risk-adjusted mortality rates); Robert G. Hughes et al., Hospital Volume and Patient Outcomes: The Case of Hip Fracture Patients, 26 MED. CARE 1057 (1988) (finding that hip fracture patients achieve better mortality and complication rate outcomes at those hospitals, out of the 704 U.S. hospitals studied that treat larger numbers of such patients); Hans J. Kreder et al., Relationship Between the Volume of Total Hip Replacements Performed by Providers and the Rates of Postoperative Complications in the State of Washington, 79-A J. BONE & JOINT SURGERY 485 (1997) (finding a significant relationship between surgeons averaging fewer than two hip replacements annually and higher adverse outcome, as measured by rates of mortality, infection, revision surgery, and complications); Stephen E. Kimmel et al., The Relationship Between Coronary Angioplasty Procedure Volume and Major Complications, 274 JAMA 1137 (1995) (finding significant decrease in complication and mortality rates with increasing volume of percutaneous transluminal coronary angioplasty procedures performed at 48 provider centers and stating that "an inverse association between the number of CABG surgeries performed at a hospital and subsequent mortality rates has been well described . . ."); Mark A. Mattos et al., Evolution of Carotid Endarterectomy in Two Community Hospitals: Springfield Revisited - Seventeen Years and 2243 Operations Later, 21 J. VASCULAR SURGERY 719, 722 (1995) (reporting that "operative stroke rate of [31] surgeons who performed more than 12 CEAs per year was significantly lower than [rates of those surgeons who performed less than one CEA per month]" and that mortality rates were similar); Ciaran S. Phibbs et al., The Effects of Patient Volume and Level of Care at the Hospital of Birth on Neonatal Mortality, 276 JAMA 1054 (1996) (finding correlation between volume of high-risk neonatal cases treated at all nonfederal California hospitals in 1990 and risk-adjusted mortality rates).
89. In the case where the disparity between providers is very great, one might bring an action for negligence against the provider for having undertaken to perform the procedure at all. This possibility is explored in Comparing Medical Providers, supra note 5, at 13-26. If negligence were established, a plaintiff would face the problem of proving that the negligence of the provider did, in fact, cause her harm. Since adverse results occur even in the hands of more skilled providers, the plaintiff would have to establish that the negligence of the physician in undertaking to perform the surgery was the actual cause of her injury. It would probably be necessary to resort to proportional causation to credibly assess damages. It is clear, however, that the informed consent cause of action is the preferred route for a plaintiff in prosecuting a comparative-provider cause of action. It is more difficult to establish that a provider who is licensed, and often board-certified, is negligent for undertaking to perform surgery within the physician's formal expertise. Furthermore, a plaintiff making a "negligent undertaking" argument would be faced with the argument of the defendant in Kokemoor that a jury will confuse "negligent undertaking" with "negligent performance." That argument was blunted in Kokemoor because the plaintiff did not prosecute a negligence claim and instead pursued only her cause of action for informed consent See supra notes 12-15 and accompanying text.
90. Of course, if lower risks are associated with many providers other than the defendant, we must determine which such provider is the "alternate provider." The answer is the provider that the patient, armed with adequate information, would have chosen. Whether this provider is the least risky provider might well depend on factors other than the risk identified in the decision causation analysis. See supra text accompanying note 30.
91. For the purpose of this portion of the discussion, we are assuming that only a patient who has suffered an adverse outcome will bring an informed consent action based on provider-specific information. An argument can be made that even a patient who does not suffer an adverse outcome nonetheless suffers a dignitary harm when a provider does not provide the appropriate information in obtaining the patient's consent to treatment. See generally The Myth of Justiciable Causation, supra note 3.
92. Strictly speaking, the plaintiff's entire factual claim, not merely each element of it, must be demonstrated at this more-likely-than-not standard. See, e.g., The Myth of Justiciable Causation, supra note 3, at 644; Medical Malpractice, supra note 3, at 125-26. For simplicity of calculation and exposition, however, this Article assumes that the injury causation element of the plaintiff's claim is satisfied if that element is demonstrated at the more-likely-than-not level. The analysis can easily be adjusted to account for this slight simplification. As to probability theory and burdens of persuasion generally, see, e.g., Neil B. Cohen, Confidence in Probability: Burdens of Persuasion in a World of Imperfect Knowledge, 60 N.Y.U L. REV. 385 (1985) [hereinafter Confidence in Probability].
93. Strictly speaking, the plaintiff's entire factual claim, not merely each element of it, must be demonstrated at this more-likely-than-not standard. See, e.g., The Myth of Justiciable Causation, supra note 3, at 644; Medical Malpractice, supra note 3, at 125-26. For simplicity of calculation and exposition, however, this Article assumes that the injury causation element of the plaintiff's claim is satisfied if that element is demonstrated at the more-likely-than-not level. The analysis can easily be adjusted to account for this slight simplification. As to probability theory and burdens of persuasion generally, see, e.g., Neil B. Cohen, Confidence in Probability: Burdens of Persuasion in a World of Imperfect Knowledge, 60 N.Y.U L. REV. 385 (1985) [hereinafter Confidence in Probability].
94. Strictly speaking, the plaintiff's entire factual claim, not merely each element of it, must be demonstrated at this more-likely-than-not standard. See, e.g., The Myth of Justiciable Causation, supra note 3, at 644; Medical Malpractice, supra note 3, at 125-26. For simplicity of calculation and exposition, however, this Article assumes that the injury causation element of the plaintiff's claim is satisfied if that element is demonstrated at the more-likely-than-not level. The analysis can easily be adjusted to account for this slight simplification. As to probability theory and burdens of persuasion generally, see, e.g., Neil B. Cohen, Confidence in Probability: Burdens of Persuasion in a World of Imperfect Knowledge, 60 N.Y.U L. REV. 385 (1985) [hereinafter Confidence in Probability].
95. For purposes of this example, it is assumed that this difference would have been enough to cause the plaintiff, had the relative risk information been disclosed, to choose the alternative provider. This assumption might not be true for a procedure with respect to which the adverse outcome is relatively minor, but certainly could be true if the adverse outcome is quite serious (as it was in Kokemoor, where the patient had been rendered an incomplete paraplegic).
96. Wollen v. DePaul Health Ctr., 828 S.W.2d 681, 684 (Mo. 1992).
97. This assumes that only patients who have suffered an adverse outcome will bring lawsuits. For more on this point, see discussion supra note 33.
98. See authorities cited infra notes 46-49.
99. See, e.g., Weymers v. Khera, 563 N.W.2d 647, 652 (Mich. 1997) ("[T]he antithesis of proximate cause is the doctrine of lost opportunity. The . . . doctrine allows a plaintiff to recover when the defendant's negligence possibly, i.e., a probability of fifty percent or less, caused the plaintiff's injury.").
100. 664 P.2d 474 (Wash. 1983).
101. Id. at 479.
102. Id. at 487 (Pearson, J., concurring). See also Shelly E. Smith, Comment, Lost Chance of Survival in Illinois: The Need for Guidance from the Illinois Supreme Court, 23 LOY. U. CHI. L.J. 155, 159(1991).
103. Joseph H. King, Jr., Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90 YALE L.J. 1353 (1981).
104. See, e.g., United States v. Cumberbatch, 647 A.2d 1098 (Del. 1994) (refusing to recognize loss of chance recovery in a wrongful death action); Gooding v. University Hosp. Bldg., Inc., 445 So. 2d 1015, 1020 (Fla. 1984) (finding that expert testimony did not establish that decedent had a better than even chance to survive in the absence of negligence); Manning v. Twin Falls Clinic & Hosp., Inc., 830 P.2d 1185, 1189-90 (Idaho 1992) (rejecting explicitly the doctrines of lost chance and increased risk of harm); Fennell v. Southern Md. Hosp. Ctr. Inc., 58 A.2d 206, 214 (Md. 1990) (declining to recognize either a pure loss of chance doctrine or a loss of chance approach to damages); Fabio v. Bellomo, 504 N.W.2d 758, 762 (Minn. 1993) (declining to recognize loss of chance in a medical malpractice action); Clayton v. Thompson, 475 So. 2d 439, 445 (Miss. 1985) ("Mississippi law does not permit recovery of damages because of mere diminishment of the 'chance of recovery.'"); Pillsbury-Flood v. Portsmouth Hosp., 512 A.2d 1126, 1130 (N.H. 1986) (concluding that relaxation of causation requirements is "ill-advised"); Sherer v. James, 351 S.E.2d 148, 151 (S.C. 1986) ("A defendant physician is entitled to put the medical malpractice plaintiff to proof equally as stringent as that required of plaintiffs in other negligence actions."); Jones v. Owings, 456 S.E.2d 371, 374 (S.C. 1995) (reaffirming Sherer and refusing to allow recovery for loss of chance); Kilpatrick v. Bryant, 868 S.W.2d 594 (Tenn. 1993); Volz v. Ledes, 895 S.W.2d 677, 679 (Tenn. 1995) (reaffirming Kilpatrick and unwilling to recognize a new cause of action for loss of chance); Kramer v. Lewisville Mem'l Hosp., 858 S.W.2d 397, 400 (Tex. 1993) (holding that "where preexisting illnesses or injuries have made a patient's chance of avoiding the ultimate harm improbable" - 50% or less - recovery is totally barred).
105. For a review of the various rationales offered by the courts, see Darrell L. Keith, Loss of Chance: A Modern Proportional Approach to Damages in Texas, 44 BAYLOR L. REV. 759, 790-92 (1992). See also Patricia L. Andel, Medical Malpractice: The Right to Recover for the Loss of a Chance of Survival, 12 PEPP. L. REV. 973, 976-977 (1985) (calling the "all-or-nothing" approach "harsh" and reporting that it has been widely criticized as "result[ing] in oscillation between overlavishness and niggardliness"); Leon L. Wolfstone & Thomas J. Wolfstone, Recovery of Damages For the Loss of a Chance, 28 MED. TRIAL TECH. Q. 121, 139 (1982) ("Most of the cases on loss of a chance . . . have held that compensation should be allowed on an all or nothing basis . . . ."); Jeffrey L. Benson, Comment, The Dilemma of Chance in Medical Malpractice: Should Illinois Recognize a New Cause of Action for "Lost Chance" of Survivability, 9 N. ILL. U. L. REV. 575, 586 (1989) ("Since the majority of jurisdictions award compensation on an 'all or nothing' basis, a defendant may be held liable for the full wrongful death damages even in cases where he only caused a portion of the loss."); Stephen F. Brennwald, Comment, Proving Causation in "Loss of a Chance" Cases: A Proportional Approach, 34 CATH. U. L. REV. 747, 781 (1985) ("The 'all-or-nothing rule' throws wrongful payments either entirely on defendants or entirely on plaintiffs.").
106. For a review of the various rationales offered by the courts, see Darrell L. Keith, Loss of Chance: A Modern Proportional Approach to Damages in Texas, 44 BAYLOR L. REV. 759, 790-92 (1992). See also Patricia L. Andel, Medical Malpractice: The Right to Recover a Chance of Survival, 12 PEPP. L. REV. 973, 976-977 (1985) (calling the "all-or-nothing" approach "harsh" and reporting that it has been widely criticized as "result[ing] in oscillation between overlavishness and niggardliness"); Leon L. Wolfstone & Thomas J. Wolfstone, Recovery of Damages For the Loss of a Chance, 28 MED. TRIAL TECH. Q. 121, 139 (1982) ("Most of the cases on loss of a chance . . . have held that compensation should be allowed on an all or nothing basis . . . ."); Jeffrey L. Benson, Comment, The Dilemma of Chance in Medical Malpractice: Should Illinois Recognize a New Cause of Action for "Lost Chance" of Survivability, 9 N. ILL. U. L. REV. 575, 586 (1989) ("Since the majority of jurisdictions award compensation on an 'all or nothing' basis, a defendant may be held liable for the full wrongful death damages even in cases where he only caused a portion of the loss."); Stephen F. Brennwald, Comment, Proving Causation in "Loss of a Chance" Cases: A Proportional Approach, 34 CATH. U. L. REV. 747, 781 (1985) ("The 'all-or-nothing rule' throws wrongful payments either entirely on defendants or entirely on plaintiffs.").
107. For a review of the various rationales offered by the courts, see Darrell L. Keith, Loss of Chance: A Modern Proportional Approach to Damages in Texas, 44 BAYLOR L. REV. 759, 790-92 (1992). See also Patricia L. Andel, Medical Malpractice: The Right to Recover for the Loss of a Chance of Survival, 12 PEPP. L. REV. 973, 976-977 (1985) (calling the "all-or-nothing" approach "harsh" and reporting that it has been widely criticized as "result[ing] in oscillation between overlavishness and niggardliness"); Leon L. Wolfstone & Thomas J. Wolfstone, Recovery of Damages For the Loss of a Chance, 28 MED. TRIAL TECH. Q. 121, 139 (1982) ("Most of the cases on loss of a chance . . . have held that compensation should be allowed on an all or nothing basis . . . ."); Jeffrey L. Benson, Comment, The Dilemma of Chance in Medical Malpractice: Should Illinois Recognize a New Cause of Action for "Lost Chance" of Survivability, 9 N. ILL. U. L. REV. 575, 586 (1989) ("Since the majority of jurisdictions award compensation on an 'all or nothing' basis, a defendant may be held liable for the full wrongful death damages even in cases where he only caused a portion of the loss."); Stephen F. Brennwald, Comment, Proving Causation in "Loss of a Chance" Cases: A Proportional Approach, 34 CATH. U. L. REV. 747, 781 (1985) ("The 'all-or-nothing rule' throws wrongful payments either entirely on defendants or entirely on plaintiffs.").
108. For a review of the various rationales offered by the courts, see Darrell L. Keith, Loss of Chance: A Modern Proportional Approach to Damages in Texas, 44 BAYLOR L. REV. 759, 790-92 (1992). See also Patricia L. Andel, Medical Malpractice: The Right to Recover for the Loss of a Chance of Survival, 12 PEPP. L. REV. 973, 976-977 (1985) (calling the "all-or-nothing" approach "harsh" and reporting that it has been widely criticized as "result[ing] in oscillation between overlavishness and niggardliness"); Leon L. Wolfstone & Thomas J. Wolfstone, Recovery of Damages For the Loss of a Chance, 28 MED. TRIAL TECH. Q. 121, 139 (1982) ("Most of the cases on loss of a chance . . . have held that compensation should be allowed on an all or nothing basis . . . ."); Jeffrey L. Benson, Comment, The Dilemma of Chance in Medical Malpractice: Should Illinois Recognize a New Cause of Action for "Lost Chance" of Survivability, 9 N. ILL. U. L. REV. 575, 586 (1989) ("Since the majority of jurisdictions award compensation on an 'all or nothing' basis, a defendant may be held liable for the full wrongful death damages even in cases where he only caused a portion of the loss."); Stephen F. Brennwald, Comment, Proving Causation in "Loss of a Chance" Cases: A Proportional Approach, 34 CATH. U. L. REV. 747, 781 (1985) ("The 'all-or-nothing rule' throws wrongful payments either entirely on defendants or entirely on plaintiffs.").
109. For a review of the various rationales offered by the courts, see Darrell L. Keith, Loss of Chance: A Modern Proportional Approach to Damages in Texas, 44 BAYLOR L. REV. 759, 790-92 (1992). See also Patricia L. Andel, Medical Malpractice: The Right to Recover for the Loss of a Chance of Survival, 12 PEPP. L. REV. 973, 976-977 (1985) (calling the "all-or-nothing" approach "harsh" and reporting that it has been widely criticized as "result[ing] in oscillation between overlavishness and niggardliness"); Leon L. Wolfstone & Thomas J. Wolfstone, Recovery of Damages For the Loss of a Chance, 28 MED. TRIAL TECH. Q. 121, 139 (1982) ("Most of the cases on loss of a chance . . . have held that compensation should be allowed on an all or nothing basis . . . ."); Jeffrey L. Benson, Comment, The Dilemma of Chance in Medical Malpractice: Should Illinois Recognize a New Cause of Action for "Lost Chance" of Survivability, 9 N. ILL. U. L. REV. 575, 586 (1989) ("Since the majority of jurisdictions award compensation on an 'all or nothing' basis, a defendant may be held liable for the full wrongful death damages even in cases where he only caused a portion of the loss."); Stephen F. Brennwald, Comment, Proving Causation in "Loss of a Chance" Cases: A Proportional Approach, 34 CATH. U. L. REV. 747, 781 (1985) ("The 'all-or-nothing rule' throws wrongful payments either entirely on defendants or entirely on plaintiffs.").
110. See, e.g., Thompson v. Sun City Community Hosp., Inc., 688 P.2d 605, 615 (Ariz. 1984); Hastings v. Baton Rouge Gen. Hosp., 498 So. 2d 713, 720 (La. 1986); Aasheim v. Humberger, 695 P.2d 824, 828 (Mont. 1985); Herskovits v. Group Health Coop., 664 P.2d 474, 479 (Wash. 1983); Ehlinger v. Sipes, 454 N.W.2d 754, 763 (Wis. 1990). See also Andel, supra note 45, at 982, 993 ("A minority of courts . . . have allowed a relaxed standard of proof of causation where the patient shows that the physician's negligent conduct in any way increased the risk of harm to the patient or deprived him of some chance of recovery," and that such recoveries have "received increasing approval by various courts over the years.'); Francis Wayne Thurman, Note, Loss of Chance in Medical Malpractice Cases: A Contra View With an Examination of Tennessee's Current Position, 20 MEMPHIS ST. U. L. REV. 81, 91 (1989) ("The loss of chance doctrine, as applied to medical malpractice, allows the plaintiff to recover for the loss of a less than even chance of survival or recovery or for an increased risk of harm.").
111. See, e.g., Thompson v. Sun City Community Hosp., Inc., 688 P.2d 605, 615 (Ariz. 1984); Hastings v. Baton Rouge Gen. Hosp., 498 So. 2d 713, 720 (La. 1986); Aasheim v. Humberger, 695 P.2d 824, 828 (Mont. 1985); Herskovits v. Group Health Coop., 664 P.2d 474, 479 (Wash. 1983); Ehlinger v. Sipes, 454 N.W.2d 754, 763 (Wis. 1990). See also Andel, supra note 45, at 982, 993 ("A minority of courts . . . have allowed a relaxed standard of proof of causation where the patient shows that the physician's negligent conduct in any way increased the risk of harm to the patient or deprived him of some chance of recovery," and that such recoveries have "received increasing approval by various courts over the years.'); Francis Wayne Thurman, Note, Loss of Chance in Medical Malpractice Cases: A Contra View With an Examination of Tennessee's Current Position, 20 MEMPHIS ST. U. L. REV. 81, 91 (1989) ("The loss of chance doctrine, as applied to medical malpractice, allows the plaintiff to recover for the loss of a less than even chance of survival or recovery or for an increased risk of harm.").
112. See, e.g., Sun City Community Hosp., 688 P.2d at 615 ("This formulation, of course, merely recognizes that juries often discount damages according to the statistical evidence in order to accurately evaluate the true loss."); Ehlinger, 454 N.W.2d at 763 ("If the defendant's negligence is found to have been a substantial factor in causing the harm, the trier of fact may also consider evidence of the likelihood of success of proper treatment in determining the amount of damages to be awarded."). See also Robert A. Reisig, Jr., The Loss of a Chance Theory in Medical Malpractice Cases: An Overview, 13 AM. J. TRIAL ADVOC. 1163, 1183 (1990) (reporting that one of the disadvantages of allowing the trier of fact to determine damages "without providing any real guidelines" is that "it is incompatible with one of the major goals of recognizing the loss of a chance theory - a more accurate loss allocation"); Brennwald, supra note 45, at 798-99 (describing the jury valuation approach as the simplest to apply and adequate where very little statistical medical evidence as to the lost chance exists but, where medical evidence is available, as running counter to the lost chance doctrine's goal of allocating damages more correctly). But see Smith, supra note 42, at 177 (reporting that this jury valuation approach gives "more leeway" than a straight percentage approach and that a possible benefit to this approach, despite considerable variation in expert testimony as to rates of survival, is that "the figure that a jury of twelve arrives at will be the result of a more complex valuation process" that includes an assessment of more factors than would be considered with a straight percentage approach).
113. See, e.g., Sun City Community Hosp., 688 P.2d at 615 ("This formulation, of course, merely recognizes that juries often discount damages according to the statistical evidence in order to accurately evaluate the true loss."); Ehlinger, 454 N.W.2d at 763 ("If the defendant's negligence is found to have been a substantial factor in causing the harm, the trier of fact may also consider evidence of the likelihood of success of proper treatment in determining the amount of damages to be awarded."). See also Robert A. Reisig, Jr., The Loss of a Chance Theory in Medical Malpractice Cases: An Overview, 13 AM. J. TRIAL ADVOC. 1163, 1183 (1990) (reporting that one of the disadvantages of allowing the trier of fact to determine damages "without providing any real guidelines" is that "it is incompatible with one of the major goals of recognizing the loss of a chance theory - a more accurate loss allocation"); Brennwald, supra note 45, at 798-99 (describing the jury valuation approach as the simplest to apply and adequate where very little statistical medical evidence as to the lost chance exists but, where medical evidence is available, as running counter to the lost chance doctrine's goal of allocating damages more correctly). But see Smith, supra note 42, at 177 (reporting that this jury valuation approach gives "more leeway" than a straight percentage approach and that a possible benefit to this approach, despite considerable variation in expert testimony as to rates of survival, is that "the figure that a jury of twelve arrives at will be the result of a more complex valuation process" that includes an assessment of more factors than would be considered with a straight percentage approach).
114. See, e.g., Sun City Community Hosp., 688 P.2d at 615 ("This formulation, of course, merely recognizes that juries often discount damages according to the statistical evidence in order to accurately evaluate the true loss."); Ehlinger, 454 N.W.2d at 763 ("If the defendant's negligence is found to have been a substantial factor in causing the harm, the trier of fact may also consider evidence of the likelihood of success of proper treatment in determining the amount of damages to be awarded."). See also Robert A. Reisig, Jr., The Loss of a Chance Theory in Medical Malpractice Cases: An Overview, 13 AM. J. TRIAL ADVOC. 1163, 1183 (1990) (reporting that one of the disadvantages of allowing the trier of fact to determine damages "without providing any real guidelines" is that "it is incompatible with one of the major goals of recognizing the loss of a chance theory - a more accurate loss allocation"); Brennwald, supra note 45, at 798-99 (describing the jury valuation approach as the simplest to apply and adequate where very little statistical medical evidence as to the lost chance exists but, where medical evidence is available, as running counter to the lost chance doctrine's goal of allocating damages more correctly). But see Smith, supra note 42, at 177 (reporting that this jury valuation approach gives "more leeway" than a straight percentage approach and that a possible benefit to this approach, despite considerable variation in expert testimony as to rates of survival, is that "the figure that a jury of twelve arrives at will be the result of a more complex valuation process" that includes an assessment of more factors than would be considered with a straight percentage approach).
115. See, e.g., Sun City Community Hosp., 688 P.2d at 615 ("This formulation, of course, merely recognizes that juries often discount damages according to the statistical evidence in order to accurately evaluate the true loss."); Ehlinger, 454 N.W.2d at 763 ("If the defendant's negligence is found to have been a substantial factor in causing the harm, the trier of fact may also consider evidence of the likelihood of success of proper treatment in determining the amount of damages to be awarded."). See also Robert A. Reisig, Jr., The Loss of a Chance Theory in Medical Malpractice Cases: An Overview, 13 AM. J. TRIAL ADVOC. 1163, 1183 (1990) (reporting that one of the disadvantages of allowing the trier of fact to determine damages "without providing any real guidelines" is that "it is incompatible with one of the major goals of recognizing the loss of a chance theory - a more accurate loss allocation"); Brennwald, supra note 45, at 798-99 (describing the jury valuation approach as the simplest to apply and adequate where very little statistical medical evidence as to the lost chance exists but, where medical evidence is available, as running counter to the lost chance doctrine's goal of allocating damages more correctly). But see Smith, supra note 42, at 177 (reporting that this jury valuation approach gives "more leeway" than a straight percentage approach and that a possible benefit to this approach, despite considerable variation in expert testimony as to rates of survival, is that "the figure that a jury of twelve arrives at will be the result of a more complex valuation process" that includes an assessment of more factors than would be considered with a straight percentage approach).
116. See, e.g., Sun City Community Hosp., 688 P.2d at 615 ("This formulation, of course, merely recognizes that juries often discount damages according to the statistical evidence in order to accurately evaluate the true loss."); Ehlinger, 454 N.W.2d at 763 ("If the defendant's negligence is found to have been a substantial factor in causing the harm, the trier of fact may also consider evidence of the likelihood of success of proper treatment in determining the amount of damages to be awarded."). See also Robert A. Reisig, Jr., The Loss of a Chance Theory in Medical Malpractice Cases: An Overview, 13 AM. J. TRIAL ADVOC. 1163, 1183 (1990) (reporting that one of the disadvantages of allowing the trier of fact to determine damages "without providing any real guidelines" is that "it is incompatible with one of the major goals of recognizing the loss of a chance theory - a more accurate loss allocation"); Brennwald, supra note 45, at 798-99 (describing the jury valuation approach as the simplest to apply and adequate where very little statistical medical evidence as to the lost chance exists but, where medical evidence is available, as running counter to the lost chance doctrine's goal of allocating damages more correctly). But see Smith, supra note 42, at 177 (reporting that this jury valuation approach gives "more leeway" than a straight percentage approach and that a possible benefit to this approach, despite considerable variation in expert testimony as to rates of survival, is that "the figure that a jury of twelve arrives at will be the result of a more complex valuation process" that includes an assessment of more factors than would be considered with a straight percentage approach).
117. Almost all the cases in this category rely on the landmark article by Joseph H. King, Jr., supra note 43. See, e.g., Mays v. United States, 608 F. Supp. 1476, 1483 (D. Colo. 1985); DeBurkarte v. Louvar, 393 N.W.2d 131, 135-37 (Iowa 1986); Delaney v. Cade, 873 P.2d 175, 186-187 (Kan. 1994); Falcon v. Memorial Hosp., 462 N.W.2d 44, 50 n.20, 52-53 nn.26-27 (Mich. 1990); Wollen v. DePaul Health Ctr., 828 S.W.2d 681, 683-84 (Mo. 1992); Perez v. Las Vegas Med. Ctr., 805 P.2d 589, 591 (Nev. 1991); Scafidi v. Seiler, 574 A.2d 398, 407-08 (N.J. 1990); Roberts v. Ohio Permanente Med. Group, Inc., 668 N.E.2d 480, 483-84 (Ohio 1996); McKellips v. Saint Francis Hosp., Inc., 741 P.2d 467, 476 (Okla. 1990). See also Reisig, supra note 47, at 1185 (reporting that most courts that have addressed the issue of how loss of chance damages should be valued have "used variations of King's single outcome approach"); Smith, supra note 42, at 176-77 (reporting that this method of valuing damages by the percentage of lost chance "has been widely accepted, in large part due to the influence of Professor King's article"). It should be noted that in toxic tort cases where the toxic agent caused an increased risk to persons exposed over and above the background risk indigenous to society at large, courts have suggested utilizing proportional causation to assess damage to "indeterminate plaintiffs." In these cases, it is impossible to determine whether a plaintiff's disease emanated from the background risk or was caused by the toxic agent. See, e.g., In re "Agent Orange" Products Liability Litig., 597 F. Supp. 740, 837-38 (E.D.N.Y. 1984). See also, PETER H. SCHUCK, AGENT ORANGE ON TRIAL: MASS TOXIC DISASTERS IN THE COURTS, 187-88 (1987).
118. Almost all the cases in this category rely on the landmark article by Joseph H. King, Jr., supra note 43. See, e.g., Mays v. United States, 608 F. Supp. 1476, 1483 (D. Colo. 1985); DeBurkarte v. Louvar, 393 N.W.2d 131, 135-37 (Iowa 1986); Delaney v. Cade, 873 P.2d 175, 186-187 (Kan. 1994); Falcon v. Memorial Hosp., 462 N.W.2d 44, 50 n.20, 52-53 nn.26-27 (Mich. 1990); Wollen v. DePaul Health Ctr., 828 S.W.2d 681, 683-84 (Mo. 1992); Perez v. Las Vegas Med. Ctr., 805 P.2d 589, 591 (Nev. 1991); Scafidi v. Seiler, 574 A.2d 398, 407-08 (N.J. 1990); Roberts v. Ohio Permanente Med. Group, Inc., 668 N.E.2d 480, 483-84 (Ohio 1996); McKellips v. Saint Francis Hosp., Inc., 741 P.2d 467, 476 (Okla. 1990). See also Reisig, supra note 47, at 1185 (reporting that most courts that have addressed the issue of how loss of chance damages should be valued have "used variations of King's single outcome approach"); Smith, supra note 42, at 176-77 (reporting that this method of valuing damages by the percentage of lost chance "has been widely accepted, in large part due to the influence of Professor King's article"). It should be noted that in toxic tort cases where the toxic agent caused an increased risk to persons exposed over and above the background risk indigenous to society at large, courts have suggested utilizing proportional causation to assess damage to "indeterminate plaintiffs." In these cases, it is impossible to determine whether a plaintiff's disease emanated from the background risk or was caused by the toxic agent. See, e.g., In re "Agent Orange" Products Liability Litig., 597 F. Supp. 740, 837-38 (E.D.N.Y. 1984). See also, PETER H. SCHUCK, AGENT ORANGE ON TRIAL: MASS TOXIC DISASTERS IN THE COURTS, 187-88 (1987).
119. Almost all the cases in this category rely on the landmark article by Joseph H. King, Jr., supra note 43. See, e.g., Mays v. United States, 608 F. Supp. 1476, 1483 (D. Colo. 1985); DeBurkarte v. Louvar, 393 N.W.2d 131, 135-37 (Iowa 1986); Delaney v. Cade, 873 P.2d 175, 186-187 (Kan. 1994); Falcon v. Memorial Hosp., 462 N.W.2d 44, 50 n.20, 52-53 nn.26-27 (Mich. 1990); Wollen v. DePaul Health Ctr., 828 S.W.2d 681, 683-84 (Mo. 1992); Perez v. Las Vegas Med. Ctr., 805 P.2d 589, 591 (Nev. 1991); Scafidi v. Seiler, 574 A.2d 398, 407-08 (N.J. 1990); Roberts v. Ohio Permanente Med. Group, Inc., 668 N.E.2d 480, 483-84 (Ohio 1996); McKellips v. Saint Francis Hosp., Inc., 741 P.2d 467, 476 (Okla. 1990). See also Reisig, supra note 47, at 1185 (reporting that most courts that have addressed the issue of how loss of chance damages should be valued have "used variations of King's single outcome approach"); Smith, supra note 42, at 176-77 (reporting that this method of valuing damages by the percentage of lost chance "has been widely accepted, in large part due to the influence of Professor King's article"). It should be noted that in toxic tort cases where the toxic agent caused an increased risk to persons exposed over and above the background risk indigenous to society at large, courts have suggested utilizing proportional causation to assess damage to "indeterminate plaintiffs." In these cases, it is impossible to determine whether a plaintiff's disease emanated from the background risk or was caused by the toxic agent. See, e.g., In re "Agent Orange" Products Liability Litig., 597 F. Supp. 740, 837-38 (E.D.N.Y. 1984). See also, PETER H. SCHUCK, AGENT ORANGE ON TRIAL: MASS TOXIC DISASTERS IN THE COURTS, 187-88 (1987).
120. Almost all the cases in this category rely on the landmark article by Joseph H. King, Jr., supra note 43. See, e.g., Mays v. United States, 608 F. Supp. 1476, 1483 (D. Colo. 1985); DeBurkarte v. Louvar, 393 N.W.2d 131, 135-37 (Iowa 1986); Delaney v. Cade, 873 P.2d 175, 186-187 (Kan. 1994); Falcon v. Memorial Hosp., 462 N.W.2d 44, 50 n.20, 52-53 nn.26-27 (Mich. 1990); Wollen v. DePaul Health Ctr., 828 S.W.2d 681, 683-84 (Mo. 1992); Perez v. Las Vegas Med. Ctr., 805 P.2d 589, 591 (Nev. 1991); Scafidi v. Seiler, 574 A.2d 398, 407-08 (N.J. 1990); Roberts v. Ohio Permanente Med. Group, Inc., 668 N.E.2d 480, 483-84 (Ohio 1996); McKellips v. Saint Francis Hosp., Inc., 741 P.2d 467, 476 (Okla. 1990). See also Reisig, supra note 47, at 1185 (reporting that most courts that have addressed the issue of how loss of chance damages should be valued have "used variations of King's single outcome approach"); Smith, supra note 42, at 176-77 (reporting that this method of valuing damages by the percentage of lost chance "has been widely accepted, in large part due to the influence of Professor King's article"). It should be noted that in toxic tort cases where the toxic agent caused an increased risk to persons exposed over and above the background risk indigenous to society at large, courts have suggested utilizing proportional causation to assess damage to "indeterminate plaintiffs." In these cases, it is impossible to determine whether a plaintiff's disease emanated from the background risk or was caused by the toxic agent. See, e.g., In re "Agent Orange" Products Liability Litig., 597 F. Supp. 740, 837-38 (E.D.N.Y. 1984). See also, PETER H. SCHUCK, AGENT ORANGE ON TRIAL: MASS TOXIC DISASTERS IN THE COURTS, 187-88 (1987).
121. Almost all the cases in this category rely on the landmark article by Joseph H. King, Jr., supra note 43. See, e.g., Mays v. United States, 608 F. Supp. 1476, 1483 (D. Colo. 1985); DeBurkarte v. Louvar, 393 N.W.2d 131, 135-37 (Iowa 1986); Delaney v. Cade, 873 P.2d 175, 186-187 (Kan. 1994); Falcon v. Memorial Hosp., 462 N.W.2d 44, 50 n.20, 52-53 nn.26-27 (Mich. 1990); Wollen v. DePaul Health Ctr., 828 S.W.2d 681, 683-84 (Mo. 1992); Perez v. Las Vegas Med. Ctr., 805 P.2d 589, 591 (Nev. 1991); Scafidi v. Seiler, 574 A.2d 398, 407-08 (N.J. 1990); Roberts v. Ohio Permanente Med. Group, Inc., 668 N.E.2d 480, 483-84 (Ohio 1996); McKellips v. Saint Francis Hosp., Inc., 741 P.2d 467, 476 (Okla. 1990). See also Reisig, supra note 47, at 1185 (reporting that most courts that have addressed the issue of how loss of chance damages should be valued have "used variations of King's single outcome approach"); Smith, supra note 42, at 176-77 (reporting that this method of valuing damages by the percentage of lost chance "has been widely accepted, in large part due to the influence of Professor King's article"). It should be noted that in toxic tort cases where the toxic agent caused an increased risk to persons exposed over and above the background risk indigenous to society at large, courts have suggested utilizing proportional causation to assess damage to "indeterminate plaintiffs." In these cases, it is impossible to determine whether a plaintiff's disease emanated from the background risk or was caused by the toxic agent. See, e.g., In re "Agent Orange" Products Liability Litig., 597 F. Supp. 740, 837-38 (E.D.N.Y. 1984). See also, PETER H. SCHUCK, AGENT ORANGE ON TRIAL: MASS TOXIC DISASTERS IN THE COURTS, 187-88 (1987).
122. See, e.g., Delaney, 873 P.2d at 186 ("[E]vidence must show that the patient had a 'substantial' chance of survival or of a better recovery . . . "); Perez, 805 P.2d at 592 (expressing doubt that a "ten percent chance of survival . . . would be actionable"); McKellips, 741 P.2d at 474 (lost chance applies "where a health care provider deprives a patient of a significant chance for recovery . . . "); Falcon, 462 N.W.2d at 56 ("loss of a substantial opportunity"). See also Andel, supra note 45, at 988 ("[T]hese courts have added an additional complicating element - the 'substantial factor' test, under which the patient must still prove that the physician's negligence was a substantial factor in causing his injury."); Smith, supra note 42, at 178 (arguing that if the Illinois Supreme Court would limit lost chance recovery to those cases where the loss is "substantial," it would limit recovery to only "truly meritorious cases.").
123. While courts that allow the jury free reign to evaluate lost chance damages (thus potentially allowing a jury to assess the full value of the claim against a physician who has deprived a plaintiff of a chance of recovery) might wish to impose a substantiality requirement to assure that such onerous damages are not extracted from a defendant without proof that the lost chance was not trivial, courts that allow only for proportional recovery have no good reason for imposing such a requirement. If the statistics supporting the lost chance are reliable, a plaintiff should not be denied recovery simply because the lost chance reduction is not "substantial." In many cases small reductions are not likely to result in significant damages. However, in the case of a young person who was deprived, for example, of a five percent chance of fifty years of survival, the damages could be meaningful even though the reduction was not substantial. In the comparative provider setting, one could argue that the substantiality requirement is necessary to assure that the risk is material and is one that a reasonable physician would have provided or a reasonable patient would have desired before submitting to the procedure. Materiality must be established as an element of an informed consent action. The substantiality of the risk reduction is, however, a poor substitute for a straightforward evaluation of the materiality requirement. When, for example, the risk reduction is small but the consequence of a failed procedure is great, the information concerning provider performance may well be considered material to either a reasonable doctor or a reasonable patient. It is possible that the differential, though statistically significant, may be so small that a finder of fact would determine that neither reasonable doctors nor reasonable patients would consider the differential sufficiently important to take into account. It is likely that the materiality question will be resolved differently depending on whether a jurisdiction utilizes the reasonable doctor or reasonable patient standard. See discussion supra notes 2, 29. Laypersons may attach far greater significance to provider statistics than physicians. In any event, it would be unwise to utilize the substantiality of the reduction of risk as a substitute for a rigorous examination of the issue of materiality.
124. In this context, we use "reliability of the statistics" to refer to a variety of potential problems associated with the proffered information - including inaccurate data, incomplete data, and faulty analysis of the data. For an interesting discussion of such problems, see SCHUCK, supra note 48, at 272.
125. Choice of a level of statistical significance reflects important policy determinations as to the relative costs of wrongfully imposing liability and wrongfully denying it. See Confidence in Probability, supra note 34, at 410-17; Neil B. Cohen, Conceptualizing Proof and Calculating Probabilities: A Response to Professor Kaye, 73 CORNELL L. REV. 78, 94 (1987).
126. Choice of a level of statistical significance reflects important policy determinations as to the relative costs of wrongfully imposing liability and wrongfully denying it. See Confidence in Probability, supra note 34, at 410-17; Neil B. Cohen, Conceptualizing Proof and Calculating Probabilities: A Response to Professor Kaye, 73 CORNELL L. REV. 78, 94 (1987).
127. See, e.g., Sherer v. James, 351 S.E.2d 148, 151 (S.C. 1986) ("A defendant physician is entitled to put the medical malpractice plaintiff to proof equally as stringent as that required of plaintiffs in other negligence actions."); Kramer v. Lewisville Mem'l Hosp., 858 S.W.2d 397, 406 (Tex. 1993) ("[I]t is doubtful that there is any principled way we could prevent its application to similar actions involving other professions."). But see Richard Delgado, Beyond Sindell: Relaxation of Cause-In-Fact Rules for Indeterminate Plaintiffs, 70 CAL. L. REV. 881, 889 (1982) (arguing that "destruction of a chance" cases, including medical malpractice, seem superficially similar to toxic substance exposure cases, but that the lost chance rubric will fail to solve such cases because "unlike the surgical
128. See, e.g., Sherer v. James, 351 S.E.2d 148, 151 (S.C. 1986) ("A defendant physician is entitled to put the medical malpractice plaintiff to proof equally as stringent as that required of plaintiffs in other negligence actions."); Kramer v. Lewisville Mem'l Hosp., 858 S.W.2d 397, 406 (Tex. 1993) ("[I]t is doubtful that there is any principled way we could prevent its application to similar actions involving other professions."). But see Richard Delgado, Beyond Sindell: Relaxation of Cause-In-Fact Rules for Indeterminate Plaintiffs, 70 CAL. L. REV. 881, 889 (1982) (arguing that "destruction of a chance" cases, including medical malpractice, seem superficially similar to toxic substance exposure cases, but that the lost chance rubric will fail to solve such cases because "unlike the surgical victim, the [exposure victim] do[es] not know that human causes are responsible, even in part, for their injury; they merely suspect it," and thus recovery in such cases would require "major extension of notions of standing and legal rights . . .").
129. See, e.g., Sherer v. James, 351 S.E.2d 148, 151 (S.C. 1986) ("A defendant physician is entitled to put the medical malpractice plaintiff to proof equally as stringent as that required of plaintiffs in other negligence actions."); Kramer v. Lewisville Mem'l Hosp., 858 S.W.2d 397, 406 (Tex. 1993) ("[I]t is doubtful that there is any principled way we could prevent its application to similar actions involving other professions."). But see Richard Delgado, Beyond Sindell: Relaxation of Cause-In-Fact Rules for Indeterminate Plaintiffs, 70 CAL. L. REV. 881, 889 (1982) (arguing that "destruction of a chance" cases, including medical malpractice, seem superficially similar to toxic substance exposure cases, but that the lost chance rubric will fail to solve such cases because "unlike the surgical victim, the [exposure victim] do[es] not know that human causes are responsible, even in part, for their injury; they merely suspect it," and thus recovery in such cases would require "major extension of notions of standing and legal rights . . .").
130. Reynolds v. Texas & Pac. Ry. Co., 37 La. Ann. 694 (La. 1885).
131. Midwestern V.W. Corp. v. Ringley, 503 S.W.2d 745 (Ky. Ct. App. 1973).
132. Almost all courts treat informed consent cases as actions for negligently failing to provide the requisite information to the patient. See APPLEBAUM ET. AL., supra note 3, at 118 ("The dispute over whether a lawsuit alleging lack of informed consent ought to be treated as a battery or as professional negligence has slowly withered away. By the mid-1970s, almost all states that had considered the question had concluded that inadequate disclosure is actionable only as professional negligence, not battery."). See. e.g., Cobbs v. Grant, 502 P.2d 1, 8 (Cal. 1972); Scott v. Bradford, 606 P.2d 554, 557 (Okla. 1979); Trogun v. Fruchtman, 207 N.W.2d 297, 312 (Wis. 1973). Occasionally, courts lapse into battery language. See, e.g., Congrove v. Holmes, 308 N.E.2d 765, 770-71 (Ohio 1973); Cardwell v. Bechtol, 724 S.W.2d 739, 750 (Tenn. 1987) ("[W]hile determining whether the Defendant failed to obtain informed consent is dependent upon the standard of care of the profession . . . , [the absence of informed consent] is not negligence but battery . . ."). Nonetheless, almost all commentators have noted that the law of negligence does not provide an adequate framework when the true issue is the protection of a patient's autonomous right to make an informed decision. See generally APPLEBAUM ET. AL., supra note 3, at 122; Jay Katz, Informed Consent - A Fairy Tale? Law's Vision, 39 U. PITT. L. REV. 137 (1977); Reflections on Human Dignity, supra note 3, at 690-98; Looking for the Action, supra note 3; From Informed Consent to Patient Choice, supra note 3.
133. Almost all courts treat informed consent cases as actions for negligently failing to provide the requisite information to the patient. See APPLEBAUM ET. AL., supra note 3, at 118 ("The dispute over whether a lawsuit alleging lack of informed consent ought to be treated as a battery or as professional negligence has slowly withered away. By the mid-1970s, almost all states that had considered the question had concluded that inadequate disclosure is actionable only as professional negligence, not battery."). See. e.g., Cobbs v. Grant, 502 P.2d 1, 8 (Cal. 1972); Scott v. Bradford, 606 P.2d 554, 557 (Okla. 1979); Trogun v. Fruchtman, 207 N.W.2d 297, 312 (Wis. 1973). Occasionally, courts lapse into battery language. See, e.g., Congrove v. Holmes, 308 N.E.2d 765, 770-71 (Ohio 1973); Cardwell v. Bechtol, 724 S.W.2d 739, 750 (Tenn. 1987) ("[W]hile determining whether the Defendant failed to obtain informed consent is dependent upon the standard of care of the profession . . . , [the absence of informed consent] is not negligence but battery . . ."). Nonetheless, almost all commentators have noted that the law of negligence does not provide an adequate framework when the true issue is the protection of a patient's autonomous right to make an informed decision. See generally APPLEBAUM ET. AL., supra note 3, at 122; Jay Katz, Informed Consent - A Fairy Tale? Law's Vision, 39 U. PITT. L. REV. 137 (1977); Reflections on Human Dignity, supra note 3, at 690-98; Looking for the Action, supra note 3; From Informed Consent to Patient Choice, supra note 3.
134. Almost all courts treat informed consent cases as actions for negligently failing to provide the requisite information to the patient. See APPLEBAUM ET. AL., supra note 3, at 118 ("The dispute over whether a lawsuit alleging lack of informed consent ought to be treated as a battery or as professional negligence has slowly withered away. By the mid-1970s, almost all states that had considered the question had concluded that inadequate disclosure is actionable only as professional negligence, not battery."). See. e.g., Cobbs v. Grant, 502 P.2d 1, 8 (Cal. 1972); Scott v. Bradford, 606 P.2d 554, 557 (Okla. 1979); Trogun v. Fruchtman, 207 N.W.2d 297, 312 (Wis. 1973). Occasionally, courts lapse into battery language. See, e.g., Congrove v. Holmes, 308 N.E.2d 765, 770-71 (Ohio 1973); Cardwell v. Bechtol, 724 S.W.2d 739, 750 (Tenn. 1987) ("[W]hile determining whether the Defendant failed to obtain informed consent is dependent upon the standard of care of the profession . . . , [the absence of informed consent] is not negligence but battery . . ."). Nonetheless, almost all commentators have noted that the law of negligence does not provide an adequate framework when the true issue is the protection of a patient's autonomous right to make an informed decision. See generally APPLEBAUM ET. AL., supra note 3, at 122; Jay Katz, Informed Consent - A Fairy Tale? Law's Vision, 39 U. PITT. L. REV. 137 (1977); Reflections on Human Dignity, supra note 3, at 690-98; Looking for the Action, supra note 3; From Informed Consent to Patient Choice, supra note 3.
135. Almost all courts treat informed consent cases as actions for negligently failing to provide the requisite information to the patient. See APPLEBAUM ET. AL., supra note 3, at 118 ("The dispute over whether a lawsuit alleging lack of informed consent ought to be treated as a battery or as professional negligence has slowly withered away. By the mid-1970s, almost all states that had considered the question had concluded that inadequate disclosure is actionable only as professional negligence, not battery."). See. e.g., Cobbs v. Grant, 502 P.2d 1, 8 (Cal. 1972); Scott v. Bradford, 606 P.2d 554, 557 (Okla. 1979); Trogun v. Fruchtman, 207 N.W.2d 297, 312 (Wis. 1973). Occasionally, courts lapse into battery language. See, e.g., Congrove v. Holmes, 308 N.E.2d 765, 770-71 (Ohio 1973); Cardwell v. Bechtol, 724 S.W.2d 739, 750 (Tenn. 1987) ("[W]hile determining whether the Defendant failed to obtain informed consent is dependent upon the standard of care of the profession . . . , [the absence of informed consent] is not negligence but battery . . ."). Nonetheless, almost all commentators have noted that the law of negligence does not provide an adequate framework when the true issue is the protection of a patient's autonomous right to make an informed decision. See generally APPLEBAUM ET. AL., supra note 3, at 122; Jay Katz, Informed Consent - A Fairy Tale? Law's Vision, 39 U. PITT. L. REV. 137 (1977); Reflections on Human Dignity, supra note 3, at 690-98; Looking for the Action, supra note 3; From Informed Consent to Patient Choice, supra note 3.
136. Almost all courts treat informed consent cases as actions for negligently failing to provide the requisite information to the patient. See APPLEBAUM ET. AL., supra note 3, at 118 ("The dispute over whether a lawsuit alleging lack of informed consent ought to be treated as a battery or as professional negligence has slowly withered away. By the mid-1970s, almost all states that had considered the question had concluded that inadequate disclosure is actionable only as professional negligence, not battery."). See. e.g., Cobbs v. Grant, 502 P.2d 1, 8 (Cal. 1972); Scott v. Bradford, 606 P.2d 554, 557 (Okla. 1979); Trogun v. Fruchtman, 207 N.W.2d 297, 312 (Wis. 1973). Occasionally, courts lapse into battery language. See, e.g., Congrove v. Holmes, 308 N.E.2d 765, 770-71 (Ohio 1973); Cardwell v. Bechtol, 724 S.W.2d 739, 750 (Tenn. 1987) ("[W]hile determining whether the Defendant failed to obtain informed consent is dependent upon the standard of care of the profession . . . , [the absence of informed consent] is not negligence but battery . . ."). Nonetheless, almost all commentators have noted that the law of negligence does not provide an adequate framework when the true issue is the protection of a patient's autonomous right to make an informed decision. See generally APPLEBAUM ET. AL., supra note 3, at 122; Jay Katz, Informed Consent - A Fairy Tale? Law's Vision, 39 U. PITT. L. REV. 137 (1977); Reflections on Human Dignity, supra note 3, at 690-98; Looking for the Action, supra note 3; From Informed Consent to Patient Choice, supra note 3.
137. Almost all courts treat informed consent cases as actions for negligently failing to provide the requisite information to the patient. See APPLEBAUM ET. AL., supra note 3, at 118 ("The dispute over whether a lawsuit alleging lack of informed consent ought to be treated as a battery or as professional negligence has slowly withered away. By the mid-1970s, almost all states that had considered the question had concluded that inadequate disclosure is actionable only as professional negligence, not battery."). See. e.g., Cobbs v. Grant, 502 P.2d 1, 8 (Cal. 1972); Scott v. Bradford, 606 P.2d 554, 557 (Okla. 1979); Trogun v. Fruchtman, 207 N.W.2d 297, 312 (Wis. 1973). Occasionally, courts lapse into battery language. See, e.g., Congrove v. Holmes, 308 N.E.2d 765, 770-71 (Ohio 1973); Cardwell v. Bechtol, 724 S.W.2d 739, 750 (Tenn. 1987) ("[W]hile determining whether the Defendant failed to obtain informed consent is dependent upon the standard of care of the profession . . . , [the absence of informed consent] is not negligence but battery . . ."). Nonetheless, almost all commentators have noted that the law of negligence does not provide an adequate framework when the true issue is the protection of a patient's autonomous right to make an informed decision. See generally APPLEBAUM ET. AL., supra note 3, at 122; Jay Katz, Informed Consent - A Fairy Tale? Law's Vision, 39 U. PITT. L. REV. 137 (1977); Reflections on Human Dignity, supra note 3, at 690-98; Looking for the Action, supra note 3; From Informed Consent to Patient Choice, supra note 3.
138. Almost all courts treat informed consent cases as actions for negligently failing to provide the requisite information to the patient. See APPLEBAUM ET. AL., supra note 3, at 118 ("The dispute over whether a lawsuit alleging lack of informed consent ought to be treated as a battery or as professional negligence has slowly withered away. By the mid-1970s, almost all states that had considered the question had concluded that inadequate disclosure is actionable only as professional negligence, not battery."). See. e.g., Cobbs v. Grant, 502 P.2d 1, 8 (Cal. 1972); Scott v. Bradford, 606 P.2d 554, 557 (Okla. 1979); Trogun v. Fruchtman, 207 N.W.2d 297, 312 (Wis. 1973). Occasionally, courts lapse into battery language. See, e.g., Congrove v. Holmes, 308 N.E.2d 765, 770-71 (Ohio 1973); Cardwell v. Bechtol, 724 S.W.2d 739, 750 (Tenn. 1987) ("[W]hile determining whether the Defendant failed to obtain informed consent is dependent upon the standard of care of the profession . . . , [the absence of informed consent] is not negligence but battery . . ."). Nonetheless, almost all commentators have noted that the law of negligence does not provide an adequate framework when the true issue is the protection of a patient's autonomous right to make an informed decision. See generally APPLEBAUM ET. AL., supra note 3, at 122; Jay Katz, Informed Consent - A Fairy Tale? Law's Vision, 39 U. PITT. L. REV. 137 (1977); Reflections on Human Dignity, supra note 3, at 690-98; Looking for the Action, supra note 3; From Informed Consent to Patient Choice, supra note 3.
139. Almost all courts treat informed consent cases as actions for negligently failing to provide the requisite information to the patient. See APPLEBAUM ET. AL., supra note 3, at 118 ("The dispute over whether a lawsuit alleging lack of informed consent ought to be treated as a battery or as professional negligence has slowly withered away. By the mid-1970s, almost all states that had considered the question had concluded that inadequate disclosure is actionable only as professional negligence, not battery."). See. e.g., Cobbs v. Grant, 502 P.2d 1, 8 (Cal. 1972); Scott v. Bradford, 606 P.2d 554, 557 (Okla. 1979); Trogun v. Fruchtman, 207 N.W.2d 297, 312 (Wis. 1973). Occasionally, courts lapse into battery language. See, e.g., Congrove v. Holmes, 308 N.E.2d 765, 770-71 (Ohio 1973); Cardwell v. Bechtol, 724 S.W.2d 739, 750 (Tenn. 1987) ("[W]hile determining whether the Defendant failed to obtain informed consent is dependent upon the standard of care of the profession . . . , [the absence of informed consent] is not negligence but battery . . ."). Nonetheless, almost all commentators have noted that the law of negligence does not provide an adequate framework when the true issue is the protection of a patient's autonomous right to make an informed decision. See generally APPLEBAUM ET. AL., supra note 3, at 122; Jay Katz, Informed Consent - A Fairy Tale? Law's Vision, 39 U. PITT. L. REV. 137 (1977); Reflections on Human Dignity, supra note 3, at 690-98; Looking for the Action, supra note 3; From Informed Consent to Patient Choice, supra note 3.
140. See Marcus L. Pante, An Analysis of "Informed Consent," 36 FORDHAM L. Rev. 639, 666-667 (1968); Looking for the Action, supra note 3, at 584-85; From Informed Consent to Patient Choice, supra note 3, at 225, 232.
141. See Marcus L. Pante, An Analysis of "Informed Consent," 36 FORDHAM L. Rev. 639, 666-667 (1968); Looking for the Action, supra note 3, at 584-85; From Informed Consent to Patient Choice, supra note 3, at 225, 232.
142. See Marcus L. Pante, An Analysis of "Informed Consent," 36 FORDHAM L. Rev. 639, 666-667 (1968); Looking for the Action, supra note 3, at 584-85; From Informed Consent to Patient Choice, supra note 3, at 225, 232.
143. See sources cited supra notes 35-38 and accompanying text.
144. Consider, for example, the situation in which the defendant's success rate for the procedure in question is 20%, while the success rate of the alternate provider is 30%, and the defendant performed the procedure on 100 patients. If each of the 80 patients who suffered the adverse outcome were awarded full recovery, there would be 80 full recoveries even though 70 of those 80 patients would have suffered the same adverse outcome from the alternate provider. See also Brennwald, supra note 45, at 777 (arguing that courts which fail to limit compensation proportionally "expose tortfeasors to liability greatly in excess of culpability").
145. For these purposes, we are using the term "success rate" for the percentage of cases in which the procedure, as performed by the provider in question, will yield a successful result, and the term "failure rate" for the percentage of cases in which the procedure, as performed by the provider in question, will yield an unsuccessful result. For simplicity, we assume a binomial distribution - i.e., all outcomes are either "successes" or "failures."
146. Of course, in the real world of imperfect data collection and methodological disputes about risk adjusting, it is likely that defendants will challenge any asserted success or failure rates as inaccurate or imperfect and thus not capable of supporting a cause of action. Yet, such a challenge is inappropriate for decision causation purposes. The point is not whether the withheld information is perfect; no information is perfect. Rather, the question is whether reasonable patients would have relied on that information, however imperfect, in choosing a provider. Such reliance need not be based on concepts of statistical significance at traditional thresholds, such as the p ≤ 0.05 level (equivalent to a 95% confidence level) typically used in epidemiological and social science research. The choice of such a rigorous standard is based on an implicit value judgment that it is very important to avoid ≤Type I≤ (i.e., false positive) error and that the risk of ≤Type II≤ (i.e., false negative) error is of less concern. In this context, it would reflect a value judgment that it is very important to avoid concluding incorrectly on the basis of the available data that a provider with the higher observed failure rate actually has a higher risk of failure, but of less concern that this might result in failing to reach that conclusion when it is, in fact, true. A patient's choice, though, is not between reaching or not reaching a conclusion as to the relative risk associated with two providers - it is between choosing one provider or the other provider. Making no choice is not an option. To illustrate the difference, consider a pre-election presidential poll that showed the Democratic candidate with 54% of the vote and the Republican candidate with 46% of the vote. The pollsters have noted that at the 95% confidence level (p ≤ 0.05), those figures are plus or minus 6%. If one were asked, "Can you confidently predict who will win the election?" the answer would likely be "no." If, on the other hand, circumstances forced one to make a prediction as to which candidate was most likely to win, the answer would be easy - the Democrat. A patient's choice as to which provider to utilize is more like the second scenario than the first; making no choice is not an option. Accordingly, a rational patient would be likely to utilize differences in success or failure rates for alternative providers in her decision process even if those differences would not lead an epidemiologist to conclude at the 95% confidence level that the differences are significant. See generally Cohen, Confidence in Probability, supra note 34, at 385.
147. See Twerski & Cohen, The Myth of Justiciable Causation, supra note 3, at 655-64.
148. See id. at 661-63.
149. See NEW YORK STATE, ANGIOPLASTY, supra note 8. A chart prepared by the New York State Department of Health summarizing its findings appears in Appendix B. For purposes of the illustrative paradigms in this article, we have assumed the methodological and statistical validity of the risk-adjusted mortality rates. For a more extensive analysis of that issue, see Jesse Green, Problems in the Use of Outcome Statistics to Compare Health Care Providers, 58 BROOK. L. REV. 55 (1992).
150. See NEW YORK STATE, ANGIOPLASTY, supra note 8. A chart prepared by the New York State Department of Health summarizing its findings appears in Appendix B. For purposes of the illustrative paradigms in this article, we have assumed the methodological and statistical validity of the risk-adjusted mortality rates. For a more extensive analysis of that issue, see Jesse Green, Problems in the Use of Outcome Statistics to Compare Health Care Providers, 58 BROOK. L. REV. 55 (1992).
151. The hospitals noted as One, Two, and Three in the text do not follow the order of the hospitals as set forth in the New York study. They were chosen among the hospitals in the study to document how lost chance calculations can be made as between different providers in a real-world setting.
152. This assumes, of course, that all providers are normalized to the same risk level of patients in accordance with the RAMR methodology.
153. This illustration provides a good example of a case in which the absolute difference between the numbers in question (1.31 and 0.40) is small, but, if one assumes the validity of the data, the probabilistic effect is quite meaningful.
154. The discussion in McKellips v. Saint Francis Hosp., Inc., 741 P.2d 467, 477 (Okla. 1990), sets forth the calculation utilized by the courts for proportional recovery: To illustrate the method in a case where the jury determines from the statistical findings combined with the specific facts relevant to the patient that the patient originally had a 40% chance of cure and the physician's negligence reduced the chance of cure to 25%, 15% (40%-25%) represents the patient's loss of survival. If the total amount of damages proved by the evidence is $500,000, the damages caused by defendant is 15% × $500,000 or $75,000. Under this formula, however, for every 100 patients treated by the negligent physician, 75 would have adverse outcomes. Sixty patients would have died even if an alternate provider had performed the procedure; 15 extra deaths are, therefore, attributable to the negligent physician. In our view, the patient is thus entitled to 15/75, or 20%, of full damages rather than the 15% suggested by the court in McKellips. The basic formula for this miscalculation of damages was set forth in Joseph H. King's article, supra note 43, at 1382: "A better method of valuation would measure a compensable chance as the percentage probability by which the defendant's tortious conduct diminished the likelihood of achieving some more favorable outcome." This miscalculation was repeated first in the concurring opinion in Herskovits v. Group Health Co-op., 664 P.2d 474, 486 (Wash. 1983) (Pearson, J. concurring); and subsequently in McKellips, 741 P.2d at 476 n.25 (citing the concurring opinion of Herskovits and quoting King's illustration of the formula, King, supra at 1382: To illustrate, consider a patient who suffers a heart attack and dies as a result. Assume that the defendant-physician negligently misdiagnosed the patient's condition, but that the patient would have had only a 40% chance of survival even with a timely diagnosis and proper care. Regardless of whether it could be said that the defendant caused the decedent's death, he caused the loss of chance and that chance-interest should be completely redressed in its own right. Under the proposed rule, the plaintiff's compensation for the loss of the victim's surviving the heart attack would be 40% of the compensation value of the victim's life had he survived (including what his earning capacity would otherwise have been in the years following death) . . . .). The miscalculation has been repeated by courts with some frequency. See, e.g., Mays v. United States, 608 F. Supp. 1476, 1482-83 (D. Colo. 1985) (holding that where the court measured the reduction by negligent medical care of patient's chance as 25%, a 40% chance reduced to a 15% chance, and where damages were governed by state statutory "pecuniary loss" measurement, plaintiffs were entitled to 25% of the net pecuniary loss measurement in damages); Delaney v. Cade, 873 P.2d 175, 187 (Kan. 1994) (recommending King's approach to damage valuation as the "most logical," citing McKellips, 741 P.2d at 467, and reporting that the same formula was employed by the federal district court in Boody v. United States, 706 F. Supp. 1458 (D. Kan. 1989), which concluded that the "proportional damage method was the most reasonable approach . . ."); Falcon v. Memorial Hosp., 462 N.W.2d 44, 49, 57 (Mich. 1990) ("By not inserting the intravenous line, the physician deprived [plaintiff-decedent] of a 37.5% opportunity of surviving the embolism . . . 37.5% times the damages recoverable for wrongful death would be an appropriate measure of damages."); Scafidi v. Seiler, 574 A.2d 398, 408 (N.J. 1990) (instructing a lower court to "mold [its] verdict" to limit defendant's liability to the value of lost chance; reaffirming its acknowledgment in an earlier New Jersey Supreme Court decision, Evers v. Dollinger, 471 A.2d 405 (N.J. 1988), of Professor King's analysis as the appropriate method of resolving such cases; and citing King's illustration of the formula); Roberts v. Ohio Permanente Med. Group, Inc., 668 N.E.2d 480, 484-85 (Ohio 1996) (citing King's approach as the "most rational" one and instructing a lower court to compute damages using that approach by "ascertain[ing] the percentage of the patient's lost chance of survival or recovery; and . . . multiply[ing] that percentage by the total amount of [wrongful death] damages").
155. The discussion in McKellips v. Saint Francis Hosp., Inc., 741 P.2d 467, 477 (Okla. 1990), sets forth the calculation utilized by the courts for proportional recovery: To illustrate the method in a case where the jury determines from the statistical findings combined with the specific facts relevant to the patient that the patient originally had a 40% chance of cure and the physician's negligence reduced the chance of cure to 25%, 15% (40%-25%) represents the patient's loss of survival. If the total amount of damages proved by the evidence is $500,000, the damages caused by defendant is 15% × $500,000 or $75,000. Under this formula, however, for every 100 patients treated by the negligent physician, 75 would have adverse outcomes. Sixty patients would have died even if an alternate provider had performed the procedure; 15 extra deaths are, therefore, attributable to the negligent physician. In our view, the patient is thus entitled to 15/75, or 20%, of full damages rather than the 15% suggested by the court in McKellips. The basic formula for this miscalculation of damages was set forth in Joseph H. King's article, supra note 43, at 1382: "A better method of valuation would measure a compensable chance as the percentage probability by which the defendant's tortious conduct diminished the likelihood of achieving some more favorable outcome." This miscalculation was repeated first in the concurring opinion in Herskovits v. Group Health Co-op., 664 P.2d 474, 486 (Wash. 1983) (Pearson, J. concurring); and subsequently in McKellips, 741 P.2d at 476 n.25 (citing the concurring opinion of Herskovits and quoting King's illustration of the formula, King, supra at 1382: To illustrate, consider a patient who suffers a heart attack and dies as a result. Assume that the defendant-physician negligently misdiagnosed the patient's condition, but that the patient would have had only a 40% chance of survival even with a timely diagnosis and proper care. Regardless of whether it could be said that the defendant caused the decedent's death, he caused the loss of chance and that chance-interest should be completely redressed in its own right. Under the proposed rule, the plaintiff's compensation for the loss of the victim's surviving the heart attack would be 40% of the compensation value of the victim's life had he survived (including what his earning capacity would otherwise have been in the years following death) . . . .). The miscalculation has been repeated by courts with some frequency. See, e.g., Mays v. United States, 608 F. Supp. 1476, 1482-83 (D. Colo. 1985) (holding that where the court measured the reduction by negligent medical care of patient's chance as 25%, a 40% chance reduced to a 15% chance, and where damages were governed by state statutory "pecuniary loss" measurement, plaintiffs were entitled to 25% of the net pecuniary loss measurement in damages); Delaney v. Cade, 873 P.2d 175, 187 (Kan. 1994) (recommending King's approach to damage valuation as the "most logical," citing McKellips, 741 P.2d at 467, and reporting that the same formula was employed by the federal district court in Boody v. United States, 706 F. Supp. 1458 (D. Kan. 1989), which concluded that the "proportional damage method was the most reasonable approach . . ."); Falcon v. Memorial Hosp., 462 N.W.2d 44, 49, 57 (Mich. 1990) ("By not inserting the intravenous line, the physician deprived [plaintiff-decedent] of a 37.5% opportunity of surviving the embolism . . . 37.5% times the damages recoverable for wrongful death would be an appropriate measure of damages."); Scafidi v. Seiler, 574 A.2d 398, 408 (N.J. 1990) (instructing a lower court to "mold [its] verdict" to limit defendant's liability to the value of lost chance; reaffirming its acknowledgment in an earlier New Jersey Supreme Court decision, Evers v. Dollinger, 471 A.2d 405 (N.J. 1988), of Professor King's analysis as the appropriate method of resolving such cases; and citing King's illustration of the formula); Roberts v. Ohio Permanente Med. Group, Inc., 668 N.E.2d 480, 484-85 (Ohio 1996) (citing King's approach as the "most rational" one and instructing a lower court to compute damages using that approach by "ascertain[ing] the percentage of the patient's lost chance of survival or recovery; and . . . multiply[ing] that percentage by the total amount of [wrongful death] damages").
156. The discussion in McKellips v. Saint Francis Hosp., Inc., 741 P.2d 467, 477 (Okla. 1990), sets forth the calculation utilized by the courts for proportional recovery: To illustrate the method in a case where the jury determines from the statistical findings combined with the specific facts relevant to the patient that the patient originally had a 40% chance of cure and the physician's negligence reduced the chance of cure to 25%, 15% (40%-25%) represents the patient's loss of survival. If the total amount of damages proved by the evidence is $500,000, the damages caused by defendant is 15% × $500,000 or $75,000. Under this formula, however, for every 100 patients treated by the negligent physician, 75 would have adverse outcomes. Sixty patients would have died even if an alternate provider had performed the procedure; 15 extra deaths are, therefore, attributable to the negligent physician. In our view, the patient is thus entitled to 15/75, or 20%, of full damages rather than the 15% suggested by the court in McKellips. The basic formula for this miscalculation of damages was set forth in Joseph H. King's article, supra note 43, at 1382: "A better method of valuation would measure a compensable chance as the percentage probability by which the defendant's tortious conduct diminished the likelihood of achieving some more favorable outcome." This miscalculation was repeated first in the concurring opinion in Herskovits v. Group Health Co-op., 664 P.2d 474, 486 (Wash. 1983) (Pearson, J. concurring); and subsequently in McKellips, 741 P.2d at 476 n.25 (citing the concurring opinion of Herskovits and quoting King's illustration of the formula, King, supra at 1382: To illustrate, consider a patient who suffers a heart attack and dies as a result. Assume that the defendant-physician negligently misdiagnosed the patient's condition, but that the patient would have had only a 40% chance of survival even with a timely diagnosis and proper care. Regardless of whether it could be said that the defendant caused the decedent's death, he caused the loss of chance and that chance-interest should be completely redressed in its own right. Under the proposed rule, the plaintiff's compensation for the loss of the victim's surviving the heart attack would be 40% of the compensation value of the victim's life had he survived (including what his earning capacity would otherwise have been in the years following death) . . . .). The miscalculation has been repeated by courts with some frequency. See, e.g., Mays v. United States, 608 F. Supp. 1476, 1482-83 (D. Colo. 1985) (holding that where the court measured the reduction by negligent medical care of patient's chance as 25%, a 40% chance reduced to a 15% chance, and where damages were governed by state statutory "pecuniary loss" measurement, plaintiffs were entitled to 25% of the net pecuniary loss measurement in damages); Delaney v. Cade, 873 P.2d 175, 187 (Kan. 1994) (recommending King's approach to damage valuation as the "most logical," citing McKellips, 741 P.2d at 467, and reporting that the same formula was employed by the federal district court in Boody v. United States, 706 F. Supp. 1458 (D. Kan. 1989), which concluded that the "proportional damage method was the most reasonable approach . . ."); Falcon v. Memorial Hosp., 462 N.W.2d 44, 49, 57 (Mich. 1990) ("By not inserting the intravenous line, the physician deprived [plaintiff-decedent] of a 37.5% opportunity of surviving the embolism . . . 37.5% times the damages recoverable for wrongful death would be an appropriate measure of damages."); Scafidi v. Seiler, 574 A.2d 398, 408 (N.J. 1990) (instructing a lower court to "mold [its] verdict" to limit defendant's liability to the value of lost chance; reaffirming its acknowledgment in an earlier New Jersey Supreme Court decision, Evers v. Dollinger, 471 A.2d 405 (N.J. 1988), of Professor King's analysis as the appropriate method of resolving such cases; and citing King's illustration of the formula); Roberts v. Ohio Permanente Med. Group, Inc., 668 N.E.2d 480, 484-85 (Ohio 1996) (citing King's approach as the "most rational" one and instructing a lower court to compute damages using that approach by "ascertain[ing] the percentage of the patient's lost chance of survival or recovery; and . . . multiply[ing] that percentage by the total amount of [wrongful death] damages").
157. The discussion in McKellips v. Saint Francis Hosp., Inc., 741 P.2d 467, 477 (Okla. 1990), sets forth the calculation utilized by the courts for proportional recovery: To illustrate the method in a case where the jury determines from the statistical findings combined with the specific facts relevant to the patient that the patient originally had a 40% chance of cure and the physician's negligence reduced the chance of cure to 25%, 15% (40%-25%) represents the patient's loss of survival. If the total amount of damages proved by the evidence is $500,000, the damages caused by defendant is 15% × $500,000 or $75,000. Under this formula, however, for every 100 patients treated by the negligent physician, 75 would have adverse outcomes. Sixty patients would have died even if an alternate provider had performed the procedure; 15 extra deaths are, therefore, attributable to the negligent physician. In our view, the patient is thus entitled to 15/75, or 20%, of full damages rather than the 15% suggested by the court in McKellips. The basic formula for this miscalculation of damages was set forth in Joseph H. King's article, supra note 43, at 1382: "A better method of valuation would measure a compensable chance as the percentage probability by which the defendant's tortious conduct diminished the likelihood of achieving some more favorable outcome." This miscalculation was repeated first in the concurring opinion in Herskovits v. Group Health Co-op., 664 P.2d 474, 486 (Wash. 1983) (Pearson, J. concurring); and subsequently in McKellips, 741 P.2d at 476 n.25 (citing the concurring opinion of Herskovits and quoting King's illustration of the formula, King, supra at 1382: To illustrate, consider a patient who suffers a heart attack and dies as a result. Assume that the defendant-physician negligently misdiagnosed the patient's condition, but that the patient would have had only a 40% chance of survival even with a timely diagnosis and proper care. Regardless of whether it could be said that the defendant caused the decedent's death, he caused the loss of chance and that chance-interest should be completely redressed in its own right. Under the proposed rule, the plaintiff's compensation for the loss of the victim's surviving the heart attack would be 40% of the compensation value of the victim's life had he survived (including what his earning capacity would otherwise have been in the years following death) . . . .). The miscalculation has been repeated by courts with some frequency. See, e.g., Mays v. United States, 608 F. Supp. 1476, 1482-83 (D. Colo. 1985) (holding that where the court measured the reduction by negligent medical care of patient's chance as 25%, a 40% chance reduced to a 15% chance, and where damages were governed by state statutory "pecuniary loss" measurement, plaintiffs were entitled to 25% of the net pecuniary loss measurement in damages); Delaney v. Cade, 873 P.2d 175, 187 (Kan. 1994) (recommending King's approach to damage valuation as the "most logical," citing McKellips, 741 P.2d at 467, and reporting that the same formula was employed by the federal district court in Boody v. United States, 706 F. Supp. 1458 (D. Kan. 1989), which concluded that the "proportional damage method was the most reasonable approach . . ."); Falcon v. Memorial Hosp., 462 N.W.2d 44, 49, 57 (Mich. 1990) ("By not inserting the intravenous line, the physician deprived [plaintiff-decedent] of a 37.5% opportunity of surviving the embolism . . . 37.5% times the damages recoverable for wrongful death would be an appropriate measure of damages."); Scafidi v. Seiler, 574 A.2d 398, 408 (N.J. 1990) (instructing a lower court to "mold [its] verdict" to limit defendant's liability to the value of lost chance; reaffirming its acknowledgment in an earlier New Jersey Supreme Court decision, Evers v. Dollinger, 471 A.2d 405 (N.J. 1988), of Professor King's analysis as the appropriate method of resolving such cases; and citing King's illustration of the formula); Roberts v. Ohio Permanente Med. Group, Inc., 668 N.E.2d 480, 484-85 (Ohio 1996) (citing King's approach as the "most rational" one and instructing a lower court to compute damages using that approach by "ascertain[ing] the percentage of the patient's lost chance of survival or recovery; and . . . multiply[ing] that percentage by the total amount of [wrongful death] damages").
158. The discussion in McKellips v. Saint Francis Hosp., Inc., 741 P.2d 467, 477 (Okla. 1990), sets forth the calculation utilized by the courts for proportional recovery: To illustrate the method in a case where the jury determines from the statistical findings combined with the specific facts relevant to the patient that the patient originally had a 40% chance of cure and the physician's negligence reduced the chance of cure to 25%, 15% (40%-25%) represents the patient's loss of survival. If the total amount of damages proved by the evidence is $500,000, the damages caused by defendant is 15% × $500,000 or $75,000. Under this formula, however, for every 100 patients treated by the negligent physician, 75 would have adverse outcomes. Sixty patients would have died even if an alternate provider had performed the procedure; 15 extra deaths are, therefore, attributable to the negligent physician. In our view, the patient is thus entitled to 15/75, or 20%, of full damages rather than the 15% suggested by the court in McKellips. The basic formula for this miscalculation of damages was set forth in Joseph H. King's article, supra note 43, at 1382: "A better method of valuation would measure a compensable chance as the percentage probability by which the defendant's tortious conduct diminished the likelihood of achieving some more favorable outcome." This miscalculation was repeated first in the concurring opinion in Herskovits v. Group Health Co-op., 664 P.2d 474, 486 (Wash. 1983) (Pearson, J. concurring); and subsequently in McKellips, 741 P.2d at 476 n.25 (citing the concurring opinion of Herskovits and quoting King's illustration of the formula, King, supra at 1382: To illustrate, consider a patient who suffers a heart attack and dies as a result. Assume that the defendant-physician negligently misdiagnosed the patient's condition, but that the patient would have had only a 40% chance of survival even with a timely diagnosis and proper care. Regardless of whether it could be said that the defendant caused the decedent's death, he caused the loss of chance and that chance-interest should be completely redressed in its own right. Under the proposed rule, the plaintiff's compensation for the loss of the victim's surviving the heart attack would be 40% of the compensation value of the victim's life had he survived (including what his earning capacity would otherwise have been in the years following death) . . . .). The miscalculation has been repeated by courts with some frequency. See, e.g., Mays v. United States, 608 F. Supp. 1476, 1482-83 (D. Colo. 1985) (holding that where the court measured the reduction by negligent medical care of patient's chance as 25%, a 40% chance reduced to a 15% chance, and where damages were governed by state statutory "pecuniary loss" measurement, plaintiffs were entitled to 25% of the net pecuniary loss measurement in damages); Delaney v. Cade, 873 P.2d 175, 187 (Kan. 1994) (recommending King's approach to damage valuation as the "most logical," citing McKellips, 741 P.2d at 467, and reporting that the same formula was employed by the federal district court in Boody v. United States, 706 F. Supp. 1458 (D. Kan. 1989), which concluded that the "proportional damage method was the most reasonable approach . . ."); Falcon v. Memorial Hosp., 462 N.W.2d 44, 49, 57 (Mich. 1990) ("By not inserting the intravenous line, the physician deprived [plaintiff-decedent] of a 37.5% opportunity of surviving the embolism . . . 37.5% times the damages recoverable for wrongful death would be an appropriate measure of damages."); Scafidi v. Seiler, 574 A.2d 398, 408 (N.J. 1990) (instructing a lower court to "mold [its] verdict" to limit defendant's liability to the value of lost chance; reaffirming its acknowledgment in an earlier New Jersey Supreme Court decision, Evers v. Dollinger, 471 A.2d 405 (N.J. 1988), of Professor King's analysis as the appropriate method of resolving such cases; and citing King's illustration of the formula); Roberts v. Ohio Permanente Med. Group, Inc., 668 N.E.2d 480, 484-85 (Ohio 1996) (citing King's approach as the "most rational" one and instructing a lower court to compute damages using that approach by "ascertain[ing] the percentage of the patient's lost chance of survival or recovery; and . . . multiply[ing] that percentage by the total amount of [wrongful death] damages").
159. The discussion in McKellips v. Saint Francis Hosp., Inc., 741 P.2d 467, 477 (Okla. 1990), sets forth the calculation utilized by the courts for proportional recovery: To illustrate the method in a case where the jury determines from the statistical findings combined with the specific facts relevant to the patient that the patient originally had a 40% chance of cure and the physician's negligence reduced the chance of cure to 25%, 15% (40%-25%) represents the patient's loss of survival. If the total amount of damages proved by the evidence is $500,000, the damages caused by defendant is 15% × $500,000 or $75,000. Under this formula, however, for every 100 patients treated by the negligent physician, 75 would have adverse outcomes. Sixty patients would have died even if an alternate provider had performed the procedure; 15 extra deaths are, therefore, attributable to the negligent physician. In our view, the patient is thus entitled to 15/75, or 20%, of full damages rather than the 15% suggested by the court in McKellips. The basic formula for this miscalculation of damages was set forth in Joseph H. King's article, supra note 43, at 1382: "A better method of valuation would measure a compensable chance as the percentage probability by which the defendant's tortious conduct diminished the likelihood of achieving some more favorable outcome." This miscalculation was repeated first in the concurring opinion in Herskovits v. Group Health Co-op., 664 P.2d 474, 486 (Wash. 1983) (Pearson, J. concurring); and subsequently in McKellips, 741 P.2d at 476 n.25 (citing the concurring opinion of Herskovits and quoting King's illustration of the formula, King, supra at 1382: To illustrate, consider a patient who suffers a heart attack and dies as a result. Assume that the defendant-physician negligently misdiagnosed the patient's condition, but that the patient would have had only a 40% chance of survival even with a timely diagnosis and proper care. Regardless of whether it could be said that the defendant caused the decedent's death, he caused the loss of chance and that chance-interest should be completely redressed in its own right. Under the proposed rule, the plaintiff's compensation for the loss of the victim's surviving the heart attack would be 40% of the compensation value of the victim's life had he survived (including what his earning capacity would otherwise have been in the years following death) . . . .). The miscalculation has been repeated by courts with some frequency. See, e.g., Mays v. United States, 608 F. Supp. 1476, 1482-83 (D. Colo. 1985) (holding that where the court measured the reduction by negligent medical care of patient's chance as 25%, a 40% chance reduced to a 15% chance, and where damages were governed by state statutory "pecuniary loss" measurement, plaintiffs were entitled to 25% of the net pecuniary loss measurement in damages); Delaney v. Cade, 873 P.2d 175, 187 (Kan. 1994) (recommending King's approach to damage valuation as the "most logical," citing McKellips, 741 P.2d at 467, and reporting that the same formula was employed by the federal district court in Boody v. United States, 706 F. Supp. 1458 (D. Kan. 1989), which concluded that the "proportional damage method was the most reasonable approach . . ."); Falcon v. Memorial Hosp., 462 N.W.2d 44, 49, 57 (Mich. 1990) ("By not inserting the intravenous line, the physician deprived [plaintiff-decedent] of a 37.5% opportunity of surviving the embolism . . . 37.5% times the damages recoverable for wrongful death would be an appropriate measure of damages."); Scafidi v. Seiler, 574 A.2d 398, 408 (N.J. 1990) (instructing a lower court to "mold [its] verdict" to limit defendant's liability to the value of lost chance; reaffirming its acknowledgment in an earlier New Jersey Supreme Court decision, Evers v. Dollinger, 471 A.2d 405 (N.J. 1988), of Professor King's analysis as the appropriate method of resolving such cases; and citing King's illustration of the formula); Roberts v. Ohio Permanente Med. Group, Inc., 668 N.E.2d 480, 484-85 (Ohio 1996) (citing King's approach as the "most rational" one and instructing a lower court to compute damages using that approach by "ascertain[ing] the percentage of the patient's lost chance of survival or recovery; and . . . multiply[ing] that percentage by the total amount of [wrongful death] damages").
160. The discussion in McKellips v. Saint Francis Hosp., Inc., 741 P.2d 467, 477 (Okla. 1990), sets forth the calculation utilized by the courts for proportional recovery: To illustrate the method in a case where the jury determines from the statistical findings combined with the specific facts relevant to the patient that the patient originally had a 40% chance of cure and the physician's negligence reduced the chance of cure to 25%, 15% (40%-25%) represents the patient's loss of survival. If the total amount of damages proved by the evidence is $500,000, the damages caused by defendant is 15% × $500,000 or $75,000. Under this formula, however, for every 100 patients treated by the negligent physician, 75 would have adverse outcomes. Sixty patients would have died even if an alternate provider had performed the procedure; 15 extra deaths are, therefore, attributable to the negligent physician. In our view, the patient is thus entitled to 15/75, or 20%, of full damages rather than the 15% suggested by the court in McKellips. The basic formula for this miscalculation of damages was set forth in Joseph H. King's article, supra note 43, at 1382: "A better method of valuation would measure a compensable chance as the percentage probability by which the defendant's tortious conduct diminished the likelihood of achieving some more favorable outcome." This miscalculation was repeated first in the concurring opinion in Herskovits v. Group Health Co-op., 664 P.2d 474, 486 (Wash. 1983) (Pearson, J. concurring); and subsequently in McKellips, 741 P.2d at 476 n.25 (citing the concurring opinion of Herskovits and quoting King's illustration of the formula, King, supra at 1382: To illustrate, consider a patient who suffers a heart attack and dies as a result. Assume that the defendant-physician negligently misdiagnosed the patient's condition, but that the patient would have had only a 40% chance of survival even with a timely diagnosis and proper care. Regardless of whether it could be said that the defendant caused the decedent's death, he caused the loss of chance and that chance-interest should be completely redressed in its own right. Under the proposed rule, the plaintiff's compensation for the loss of the victim's surviving the heart attack would be 40% of the compensation value of the victim's life had he survived (including what his earning capacity would otherwise have been in the years following death) . . . .). The miscalculation has been repeated by courts with some frequency. See, e.g., Mays v. United States, 608 F. Supp. 1476, 1482-83 (D. Colo. 1985) (holding that where the court measured the reduction by negligent medical care of patient's chance as 25%, a 40% chance reduced to a 15% chance, and where damages were governed by state statutory "pecuniary loss" measurement, plaintiffs were entitled to 25% of the net pecuniary loss measurement in damages); Delaney v. Cade, 873 P.2d 175, 187 (Kan. 1994) (recommending King's approach to damage valuation as the "most logical," citing McKellips, 741 P.2d at 467, and reporting that the same formula was employed by the federal district court in Boody v. United States, 706 F. Supp. 1458 (D. Kan. 1989), which concluded that the "proportional damage method was the most reasonable approach . . ."); Falcon v. Memorial Hosp., 462 N.W.2d 44, 49, 57 (Mich. 1990) ("By not inserting the intravenous line, the physician deprived [plaintiff-decedent] of a 37.5% opportunity of surviving the embolism . . . 37.5% times the damages recoverable for wrongful death would be an appropriate measure of damages."); Scafidi v. Seiler, 574 A.2d 398, 408 (N.J. 1990) (instructing a lower court to "mold [its] verdict" to limit defendant's liability to the value of lost chance; reaffirming its acknowledgment in an earlier New Jersey Supreme Court decision, Evers v. Dollinger, 471 A.2d 405 (N.J. 1988), of Professor King's analysis as the appropriate method of resolving such cases; and citing King's illustration of the formula); Roberts v. Ohio Permanente Med. Group, Inc., 668 N.E.2d 480, 484-85 (Ohio 1996) (citing King's approach as the "most rational" one and instructing a lower court to compute damages using that approach by "ascertain[ing] the percentage of the patient's lost chance of survival or recovery; and . . . multiply[ing] that percentage by the total amount of [wrongful death] damages").
161. The discussion in McKellips v. Saint Francis Hosp., Inc., 741 P.2d 467, 477 (Okla. 1990), sets forth the calculation utilized by the courts for proportional recovery: To illustrate the method in a case where the jury determines from the statistical findings combined with the specific facts relevant to the patient that the patient originally had a 40% chance of cure and the physician's negligence reduced the chance of cure to 25%, 15% (40%-25%) represents the patient's loss of survival. If the total amount of damages proved by the evidence is $500,000, the damages caused by defendant is 15% × $500,000 or $75,000. Under this formula, however, for every 100 patients treated by the negligent physician, 75 would have adverse outcomes. Sixty patients would have died even if an alternate provider had performed the procedure; 15 extra deaths are, therefore, attributable to the negligent physician. In our view, the patient is thus entitled to 15/75, or 20%, of full damages rather than the 15% suggested by the court in McKellips. The basic formula for this miscalculation of damages was set forth in Joseph H. King's article, supra note 43, at 1382: "A better method of valuation would measure a compensable chance as the percentage probability by which the defendant's tortious conduct diminished the likelihood of achieving some more favorable outcome." This miscalculation was repeated first in the concurring opinion in Herskovits v. Group Health Co-op., 664 P.2d 474, 486 (Wash. 1983) (Pearson, J. concurring); and subsequently in McKellips, 741 P.2d at 476 n.25 (citing the concurring opinion of Herskovits and quoting King's illustration of the formula, King, supra at 1382: To illustrate, consider a patient who suffers a heart attack and dies as a result. Assume that the defendant-physician negligently misdiagnosed the patient's condition, but that the patient would have had only a 40% chance of survival even with a timely diagnosis and proper care. Regardless of whether it could be said that the defendant caused the decedent's death, he caused the loss of chance and that chance-interest should be completely redressed in its own right. Under the proposed rule, the plaintiff's compensation for the loss of the victim's surviving the heart attack would be 40% of the compensation value of the victim's life had he survived (including what his earning capacity would otherwise have been in the years following death) . . . .). The miscalculation has been repeated by courts with some frequency. See, e.g., Mays v. United States, 608 F. Supp. 1476, 1482-83 (D. Colo. 1985) (holding that where the court measured the reduction by negligent medical care of patient's chance as 25%, a 40% chance reduced to a 15% chance, and where damages were governed by state statutory "pecuniary loss" measurement, plaintiffs were entitled to 25% of the net pecuniary loss measurement in damages); Delaney v. Cade, 873 P.2d 175, 187 (Kan. 1994) (recommending King's approach to damage valuation as the "most logical," citing McKellips, 741 P.2d at 467, and reporting that the same formula was employed by the federal district court in Boody v. United States, 706 F. Supp. 1458 (D. Kan. 1989), which concluded that the "proportional damage method was the most reasonable approach . . ."); Falcon v. Memorial Hosp., 462 N.W.2d 44, 49, 57 (Mich. 1990) ("By not inserting the intravenous line, the physician deprived [plaintiff-decedent] of a 37.5% opportunity of surviving the embolism . . . 37.5% times the damages recoverable for wrongful death would be an appropriate measure of damages."); Scafidi v. Seiler, 574 A.2d 398, 408 (N.J. 1990) (instructing a lower court to "mold [its] verdict" to limit defendant's liability to the value of lost chance; reaffirming its acknowledgment in an earlier New Jersey Supreme Court decision, Evers v. Dollinger, 471 A.2d 405 (N.J. 1988), of Professor King's analysis as the appropriate method of resolving such cases; and citing King's illustration of the formula); Roberts v. Ohio Permanente Med. Group, Inc., 668 N.E.2d 480, 484-85 (Ohio 1996) (citing King's approach as the "most rational" one and instructing a lower court to compute damages using that approach by "ascertain[ing] the percentage of the patient's lost chance of survival or recovery; and . . . multiply[ing] that percentage by the total amount of [wrongful death] damages").
162. The discussion in McKellips v. Saint Francis Hosp., Inc., 741 P.2d 467, 477 (Okla. 1990), sets forth the calculation utilized by the courts for proportional recovery: To illustrate the method in a case where the jury determines from the statistical findings combined with the specific facts relevant to the patient that the patient originally had a 40% chance of cure and the physician's negligence reduced the chance of cure to 25%, 15% (40%-25%) represents the patient's loss of survival. If the total amount of damages proved by the evidence is $500,000, the damages caused by defendant is 15% × $500,000 or $75,000. Under this formula, however, for every 100 patients treated by the negligent physician, 75 would have adverse outcomes. Sixty patients would have died even if an alternate provider had performed the procedure; 15 extra deaths are, therefore, attributable to the negligent physician. In our view, the patient is thus entitled to 15/75, or 20%, of full damages rather than the 15% suggested by the court in McKellips. The basic formula for this miscalculation of damages was set forth in Joseph H. King's article, supra note 43, at 1382: "A better method of valuation would measure a compensable chance as the percentage probability by which the defendant's tortious conduct diminished the likelihood of achieving some more favorable outcome." This miscalculation was repeated first in the concurring opinion in Herskovits v. Group Health Co-op., 664 P.2d 474, 486 (Wash. 1983) (Pearson, J. concurring); and subsequently in McKellips, 741 P.2d at 476 n.25 (citing the concurring opinion of Herskovits and quoting King's illustration of the formula, King, supra at 1382: To illustrate, consider a patient who suffers a heart attack and dies as a result. Assume that the defendant-physician negligently misdiagnosed the patient's condition, but that the patient would have had only a 40% chance of survival even with a timely diagnosis and proper care. Regardless of whether it could be said that the defendant caused the decedent's death, he caused the loss of chance and that chance-interest should be completely redressed in its own right. Under the proposed rule, the plaintiff's compensation for the loss of the victim's surviving the heart attack would be 40% of the compensation value of the victim's life had he survived (including what his earning capacity would otherwise have been in the years following death) . . . .). The miscalculation has been repeated by courts with some frequency. See, e.g., Mays v. United States, 608 F. Supp. 1476, 1482-83 (D. Colo. 1985) (holding that where the court measured the reduction by negligent medical care of patient's chance as 25%, a 40% chance reduced to a 15% chance, and where damages were governed by state statutory "pecuniary loss" measurement, plaintiffs were entitled to 25% of the net pecuniary loss measurement in damages); Delaney v. Cade, 873 P.2d 175, 187 (Kan. 1994) (recommending King's approach to damage valuation as the "most logical," citing McKellips, 741 P.2d at 467, and reporting that
163. The discussion in McKellips v. Saint Francis Hosp., Inc., 741 P.2d 467, 477 (Okla. 1990), sets forth the calculation utilized by the courts for proportional recovery: To illustrate the method in a case where the jury determines from the statistical findings combined with the specific facts relevant to the patient that the patient originally had a 40% chance of cure and the physician's negligence reduced the chance of cure to 25%, 15% (40%-25%) represents the patient's loss of survival. If the total amount of damages proved by the evidence is $500,000, the damages caused by defendant is 15% × $500,000 or $75,000. Under this formula, however, for every 100 patients treated by the negligent physician, 75 would have adverse outcomes. Sixty patients would have died even if an alternate provider had performed the procedure; 15 extra deaths are, therefore, attributable to the negligent physician. In our view, the patient is thus entitled to 15/75, or 20%, of full damages rather than the 15% suggested by the court in McKellips. The basic formula for this miscalculation of damages was set forth in Joseph H. King's article, supra note 43, at 1382: "A better method of valuation would measure a compensable chance as the percentage probability by which the defendant's tortious conduct diminished the likelihood of achieving some more favorable outcome." This miscalculation was repeated first in the concurring opinion in Herskovits v. Group Health Co-op., 664 P.2d 474, 486 (Wash. 1983) (Pearson, J. concurring); and subsequently in McKellips, 741 P.2d at 476 n.25 (citing the concurring opinion of Herskovits and quoting King's illustration of the formula, King, supra at 1382: To illustrate, consider a patient who suffers a heart attack and dies as a result. Assume that the defendant-physician negligently misdiagnosed the patient's condition, but that the patient would have had only a 40% chance of survival even with a timely diagnosis and proper care. Regardless of whether it could be said that the defendant caused the decedent's death, he caused the loss of chance and that chance-interest should be completely redressed in its own right. Under the proposed rule, the plaintiff's compensation for the loss of the victim's surviving the heart attack would be 40% of the compensation value of the victim's life had he survived (including what his earning capacity would otherwise have been in the years following death) . . . .). The miscalculation has been repeated by courts with some frequency. See, e.g., Mays v. United States, 608 F. Supp. 1476, 1482-83 (D. Colo. 1985) (holding that where the court measured the reduction by negligent medical care of patient's chance as 25%, a 40% chance reduced to a 15% chance, and where damages were governed by state statutory "pecuniary loss" measurement, plaintiffs were entitled to 25% of the net pecuniary loss measurement in damages); Delaney v. Cade, 873 P.2d 175, 187 (Kan. 1994) (recommending King's approach to damage valuation as the "most logical," citing McKellips, 741 P.2d at 467, and reporting that the same formula was employed by the federal district court in Boody v. United States, 706 F. Supp. 1458 (D. Kan. 1989), which concluded that the "proportional damage method was the most reasonable approach . . ."); Falcon v. Memorial Hosp., 462 N.W.2d 44, 49, 57 (Mich. 1990) ("By not inserting the intravenous line, the physician deprived [plaintiff-decedent] of a 37.5% opportunity of surviving the embolism . . . 37.5% times the damages recoverable for wrongful death would be an appropriate measure of damages."); Scafidi v. Seiler, 574 A.2d 398, 408 (N.J. 1990) (instructing a lower court to "mold [its] verdict" to limit defendant's liability to the value of lost chance; reaffirming its acknowledgment in an earlier New Jersey Supreme Court decision, Evers v. Dollinger, 471 A.2d 405 (N.J. 1988), of Professor King's analysis as the appropriate method of resolving such cases; and citing King's illustration of the formula); Roberts v. Ohio Permanente Med. Group, Inc., 668 N.E.2d 480, 484-85 (Ohio 1996) (citing King's approach as the "most rational" one and instructing a lower court to compute damages using that approach by "ascertain[ing] the percentage of the patient's lost chance of survival or recovery; and . . . multiply[ing] that percentage by the total amount of [wrongful death] damages").
164. The discussion in McKellips v. Saint Francis Hosp., Inc., 741 P.2d 467, 477 (Okla. 1990), sets forth the calculation utilized by the courts for proportional recovery: To illustrate the method in a case where the jury determines from the statistical findings combined with the specific facts relevant to the patient that the patient originally had a 40% chance of cure and the physician's negligence reduced the chance of cure to 25%, 15% (40%-25%) represents the patient's loss of survival. If the total amount of damages proved by the evidence is $500,000, the damages caused by defendant is 15% × $500,000 or $75,000. Under this formula, however, for every 100 patients treated by the negligent physician, 75 would have adverse outcomes. Sixty patients would have died even if an alternate provider had performed the procedure; 15 extra deaths are, therefore, attributable to the negligent physician. In our view, the patient is thus entitled to 15/75, or 20%, of full damages rather than the 15% suggested by the court in McKellips. The basic formula for this miscalculation of damages was set forth in Joseph H. King's article, supra note 43, at 1382: "A better method of valuation would measure a compensable chance as the percentage probability by which the defendant's tortious conduct diminished the likelihood of achieving some more favorable outcome." This miscalculation was repeated first in the concurring opinion in Herskovits v. Group Health Co-op., 664 P.2d 474, 486 (Wash. 1983) (Pearson, J. concurring); and subsequently in McKellips, 741 P.2d at 476 n.25 (citing the concurring opinion of Herskovits and quoting King's illustration of the formula, King, supra at 1382: To illustrate, consider a patient who suffers a heart attack and dies as a result. Assume that the defendant-physician negligently misdiagnosed the patient's condition, but that the patient would have had only a 40% chance of survival even with a timely diagnosis and proper care. Regardless of whether it could be said that the defendant caused the decedent's death, he caused the loss of chance and that chance-interest should be completely redressed in its own right. Under the proposed rule, the plaintiff's compensation for the loss of the victim's surviving the heart attack would be 40% of the compensation value of the victim's life had he survived (including what his earning capacity would otherwise have been in the years following death) . . . .). The miscalculation has been repeated by courts with some frequency. See, e.g., Mays v. United States, 608 F. Supp. 1476, 1482-83 (D. Colo. 1985) (holding that where the court measured the reduction by negligent medical care of patient's chance as 25%, a 40% chance reduced to a 15% chance, and where damages were governed by state statutory "pecuniary loss" measurement, plaintiffs were entitled to 25% of the net pecuniary loss measurement in damages); Delaney v. Cade, 873 P.2d 175, 187 (Kan. 1994) (recommending King's approach to damage valuation as the "most logical," citing McKellips, 741 P.2d at 467, and reporting that the same formula was employed by the federal district court in Boody v. United States, 706 F. Supp. 1458 (D. Kan. 1989), which concluded that the "proportional damage method was the most reasonable approach . . ."); Falcon v. Memorial Hosp., 462 N.W.2d 44, 49, 57 (Mich. 1990) ("By not inserting the intravenous line, the physician deprived [plaintiff-decedent] of a 37.5% opportunity of surviving the embolism . . . 37.5% times the damages recoverable for wrongful death would be an appropriate measure of damages."); Scafidi v. Seiler, 574 A.2d 398, 408 (N.J. 1990) (instructing a lower court to "mold [its] verdict" to limit defendant's liability to the value of lost chance; reaffirming its acknowledgment in an earlier New Jersey Supreme Court decision, Evers v. Dollinger, 471 A.2d 405 (N.J. 1988), of Professor King's analysis as the appropriate method of resolving such cases; and citing King's illustration of the formula); Roberts v. Ohio Permanente Med. Group, Inc., 668 N.E.2d 480, 484-85 (Ohio 1996) (citing King's approach as the "most rational" one and instructing a lower court to compute damages using that approach by "ascertain[ing] the percentage of the patient's lost chance of survival or recovery; and . . . multiply[ing] that percentage by the total amount of [wrongful death] damages").
165. The discussion in McKellips v. Saint Francis Hosp., Inc., 741 P.2d 467, 477 (Okla. 1990), sets forth the calculation utilized by the courts for proportional recovery: To illustrate the method in a case where the jury determines from the statistical findings combined with the specific facts relevant to the patient that the patient originally had a 40% chance of cure and the physician's negligence reduced the chance of cure to 25%, 15% (40%-25%) represents the patient's loss of survival. If the total amount of damages proved by the evidence is $500,000, the damages caused by defendant is 15% × $500,000 or $75,000. Under this formula, however, for every 100 patients treated by the negligent physician, 75 would have adverse outcomes. Sixty patients would have died even if an alternate provider had performed the procedure; 15 extra deaths are, therefore, attributable to the negligent physician. In our view, the patient is thus entitled to 15/75, or 20%, of full damages rather than the 15% suggested by the court in McKellips. The basic formula for this miscalculation of damages was set forth in Joseph H. King's article, supra note 43, at 1382: "A better method of valuation would measure a compensable chance as the percentage probability by which the defendant's tortious conduct diminished the likelihood of achieving some more favorable outcome." This miscalculation was repeated first in the concurring opinion in Herskovits v. Group Health Co-op., 664 P.2d 474, 486 (Wash. 1983) (Pearson, J. concurring); and subsequently in McKellips, 741 P.2d at 476 n.25 (citing the concurring opinion of Herskovits and quoting King's illustration of the formula, King, supra at 1382: To illustrate, consider a patient who suffers a heart attack and dies as a result. Assume that the defendant-physician negligently misdiagnosed the patient's condition, but that the patient would have had only a 40% chance of survival even with a timely diagnosis and proper care. Regardless of whether it could be said that the defendant caused the decedent's death, he caused the loss of chance and that chance-interest should be completely redressed in its own right. Under the proposed rule, the plaintiff's compensation for the loss of the victim's surviving the heart attack would be 40% of the compensation value of the victim's life had he survived (including what his earning capacity would otherwise have been in the years following death) . . . .). The miscalculation has been repeated by courts with some frequency. See, e.g., Mays v. United States, 608 F. Supp. 1476, 1482-83 (D. Colo. 1985) (holding that where the court measured the reduction by negligent medical care of patient's chance as 25%, a 40% chance reduced to a 15% chance, and where damages were governed by state statutory "pecuniary loss" measurement, plaintiffs were entitled to 25% of the net pecuniary loss measurement in damages); Delaney v. Cade, 873 P.2d 175, 187 (Kan. 1994) (recommending King's approach to damage valuation as the "most logical," citing McKellips, 741 P.2d at 467, and reporting that the same formula was employed by the federal district court in Boody v. United States, 706 F. Supp. 1458 (D. Kan. 1989), which concluded that the "proportional damage method was the most reasonable approach . . ."); Falcon v. Memorial Hosp., 462 N.W.2d 44, 49, 57 (Mich. 1990) ("By not inserting the intravenous line, the physician deprived [plaintiff-decedent] of a 37.5% opportunity of surviving the embolism . . . 37.5% times the damages recoverable for wrongful death would be an appropriate measure of damages."); Scafidi v. Seiler, 574 A.2d 398, 408 (N.J. 1990) (instructing a lower court to "mold [its] verdict" to limit defendant's liability to the value of lost chance; reaffirming its acknowledgment in an earlier New Jersey Supreme Court decision, Evers v. Dollinger, 471 A.2d 405 (N.J. 1988), of Professor King's analysis as the appropriate method of resolving such cases; and citing King's illustration of the formula); Roberts v. Ohio Permanente Med. Group, Inc., 668 N.E.2d 480, 484-85 (Ohio 1996) (citing King's approach as the "most rational" one and instructing a lower court to compute damages using that approach by "ascertain[ing] the percentage of the patient's lost chance of survival or recovery; and . . . multiply[ing] that percentage by the total amount of [wrongful death] damages").
166. The discussion in McKellips v. Saint Francis Hosp., Inc., 741 P.2d 467, 477 (Okla. 1990), sets forth the calculation utilized by the courts for proportional recovery: To illustrate the method in a case where the jury determines from the statistical findings combined with the specific facts relevant to the patient that the patient originally had a 40% chance of cure and the physician's negligence reduced the chance of cure to 25%, 15% (40%-25%) represents the patient's loss of survival. If the total amount of damages proved by the evidence is $500,000, the damages caused by defendant is 15% × $500,000 or $75,000. Under this formula, however, for every 100 patients treated by the negligent physician, 75 would have adverse outcomes. Sixty patients would have died even if an alternate provider had performed the procedure; 15 extra deaths are, therefore, attributable to the negligent physician. In our view, the patient is thus entitled to 15/75, or 20%, of full damages rather than the 15% suggested by the court in McKellips. The basic formula for this miscalculation of damages was set forth in Joseph H. King's article, supra note 43, at 1382: "A better method of valuation would measure a compensable chance as the percentage probability by which the defendant's tortious conduct diminished the likelihood of achieving some more favorable outcome." This miscalculation was repeated first in the concurring opinion in Herskovits v. Group Health Co-op., 664 P.2d 474, 486 (Wash. 1983) (Pearson, J. concurring); and subsequently in McKellips, 741 P.2d at 476 n.25 (citing the concurring opinion of Herskovits and quoting King's illustration of the formula, King, supra at 1382: To illustrate, consider a patient who suffers a heart attack and dies as a result. Assume that the defendant-physician negligently misdiagnosed the patient's condition, but that the patient would have had only a 40% chance of survival even with a timely diagnosis and proper care. Regardless of whether it could be said that the defendant caused the decedent's death, he caused the loss of chance and that chance-interest should be completely redressed in its own right. Under the proposed rule, the plaintiff's compensation for the loss of the victim's surviving the heart attack would be 40% of the compensation value of the victim's life had he survived (including what his earning capacity would otherwise have been in the years following death) . . . .). The miscalculation has been repeated by courts with some frequency. See, e.g., Mays v. United States, 608 F. Supp. 1476, 1482-83 (D. Colo. 1985) (holding that where the court measured the reduction by negligent medical care of patient's chance as 25%, a 40% chance reduced to a 15% chance, and where damages were governed by state statutory "pecuniary loss" measurement, plaintiffs were entitled to 25% of the net pecuniary loss measurement in damages); Delaney v. Cade, 873 P.2d 175, 187 (Kan. 1994) (recommending King's approach to damage valuation as the "most logical," citing McKellips, 741 P.2d at 467, and reporting that the same formula was employed by the federal district court in Boody v. United States, 706 F. Supp. 1458 (D. Kan. 1989), which concluded that the "proportional damage method was the most reasonable approach . . ."); Falcon v. Memorial Hosp., 462 N.W.2d 44, 49, 57 (Mich. 1990) ("By not inserting the intravenous line, the physician deprived [plaintiff-decedent] of a 37.5% opportunity of surviving the embolism . . . 37.5% times the damages recoverable for wrongful death would be an appropriate measure of damages."); Scafidi v. Seiler, 574 A.2d 398, 408 (N.J. 1990) (instructing a lower court to "mold [its] verdict" to limit defendant's liability to the value of lost chance; reaffirming its acknowledgment in an earlier New Jersey Supreme Court decision, Evers v. Dollinger, 471 A.2d 405 (N.J. 1988), of Professor King's analysis as the appropriate method of resolving such cases; and citing King's illustration of the formula); Roberts v. Ohio Permanente Med. Group, Inc., 668 N.E.2d 480, 484-85 (Ohio 1996) (citing King's approach as the "most rational" one and instructing a lower court to compute damages using that approach by "ascertain[ing] the percentage of the patient's lost chance of survival or recovery; and . . . multiply[ing] that percentage by the total amount of [wrongful death] damages").
167. The discussion in McKellips v. Saint Francis Hosp., Inc., 741 P.2d 467, 477 (Okla. 1990), sets forth the calculation utilized by the courts for proportional recovery: To illustrate the method in a case where the jury determines from the statistical findings combined with the specific facts relevant to the patient that the patient originally had a 40% chance of cure and the physician's negligence reduced the chance of cure to 25%, 15% (40%-25%) represents the patient's loss of survival. If the total amount of damages proved by the evidence is $500,000, the damages caused by defendant is 15% × $500,000 or $75,000. Under this formula, however, for every 100 patients treated by the negligent physician, 75 would have adverse outcomes. Sixty patients would have died even if an alternate provider had performed the procedure; 15 extra deaths are, therefore, attributable to the negligent physician. In our view, the patient is thus entitled to 15/75, or 20%, of full damages rather than the 15% suggested by the court in McKellips. The basic formula for this miscalculation of damages was set forth in Joseph H. King's article, supra note 43, at 1382: "A better method of valuation would measure a compensable chance as the percentage probability by which the defendant's tortious conduct diminished the likelihood of achieving some more favorable outcome." This miscalculation was repeated first in the concurring opinion in Herskovits v. Group Health Co-op., 664 P.2d 474, 486 (Wash. 1983) (Pearson, J. concurring); and subsequently in McKellips, 741 P.2d at 476 n.25 (citing the concurring opinion of Herskovits and quoting King's illustration of the formula, King, supra at 1382: To illustrate, consider a patient who suffers a heart attack and dies as a result. Assume that the defendant-physician negligently misdiagnosed the patient's condition, but that the patient would have had only a 40% chance of survival even with a timely diagnosis and proper care. Regardless of whether it could be said that the defendant caused the decedent's death, he caused the loss of chance and that chance-interest should be completely redressed in its own right. Under the proposed rule, the plaintiff's compensation for the loss of the victim's surviving the heart attack would be 40% of the compensation value of the victim's life had he survived (including what his earning capacity would otherwise have been in the years following death) . . . .). The miscalculation has been repeated by courts with some frequency. See, e.g., Mays v. United States, 608 F. Supp. 1476, 1482-83 (D. Colo. 1985) (holding that where the court measured the reduction by negligent medical care of patient's chance as 25%, a 40% chance reduced to a 15% chance, and where damages were governed by state statutory "pecuniary loss" measurement, plaintiffs were entitled to 25% of the net pecuniary loss measurement in damages); Delaney v. Cade, 873 P.2d 175, 187 (Kan. 1994) (recommending King's approach to damage valuation as the "most logical," citing McKellips, 741 P.2d at 467, and reporting that the same formula was employed by the federal district court in Boody v. United States, 706 F. Supp. 1458 (D. Kan. 1989), which concluded that the "proportional damage method was the most reasonable approach . . ."); Falcon v. Memorial Hosp., 462 N.W.2d 44, 49, 57 (Mich. 1990) ("By not inserting the intravenous line, the physician deprived [plaintiff-decedent] of a 37.5% opportunity of surviving the embolism . . . 37.5% times the damages recoverable for wrongful death would be an appropriate measure of damages."); Scafidi v. Seiler, 574 A.2d 398, 408 (N.J. 1990) (instructing a lower court to "mold [its] verdict" to limit defendant's liability to the value of lost chance; reaffirming its acknowledgment in an earlier New Jersey Supreme Court decision, Evers v. Dollinger, 471 A.2d 405 (N.J. 1988), of Professor King's analysis as the appropriate method of resolving such cases; and citing King's illustration of the formula); Roberts v. Ohio Permanente Med. Group, Inc., 668 N.E.2d 480, 484-85 (Ohio 1996) (citing King's approach as the "most rational" one and instructing a lower court to compute damages using that approach by "ascertain[ing] the percentage of the patient's lost chance of survival or recovery; and . . . multiply[ing] that percentage by the total amount of [wrongful death] damages").
168. See supra note 61 with respect to reliability data.
169. See infra App. B.
170. See supra text accompanying note 40.
171. Our rule can be reduced to a formula. Each patient of Provider A who suffers an adverse outcome should receive damages equal to his or her full loss multiplied by a fraction the numerator of which is the failure rate of Provider A minus the failure rate of Provider B and the denominator of which is the failure rate of Provider A. Symbolically: D = L * (FA - FB)/FA where D = damages assessed L = plaintiff's loss FA = failure rate of Provider A FB = failure rate of Provider B.
172. Although MCOs are not yet routinely self-reporting comparative provider specific data to the public, reports suggest that collection and internal use of such data is widespread. See Edward Doyle, New Breed of Re-port Cards Turn Up the Heat on Doctors, ACP OBSERVER (visited June 18, 1998) 〈http://www.acponline.org/ journals/news/jan95/reptcard.htm〉 (reporting that one HMO, United Healthcare, has been amassing vast amounts of unreleased data on individual physician performance rates and is not alone in such practice). In the first such statewide disclosure, Pennsylvania's Health Care Cost Containment Council included mortality rates for each of 34 health plan providers in addition to more ordinary per physician mortality rates in its annual study of heart surgery provider outcomes. PENNSYLVANIA HEALTH CARE COST CONTAINMENT COUNCIL, supra note 8. See also Anita J. Slomski, How the Clinton Plan Would Judge Your Performance, 71 MED. ECON. 83 (1994) (describing a bill proposed by the Clinton administration that would require all health plans and HMOs to collect and publish a variety of provider-specific performance and quality data, including RAMR, noting that the administration's proposals for such data collection were modeled on programs already in place at HMOs such as Kaiser Permanente, United Healthcare, and U.S. Healthcare). Evidence that MCOs are collecting such provider-performance data abounds. For example, the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) is an organization which accredits approximately 18,000 healthcare organizations, including some 40 "health plans," which are defined as including HMOs, PIAs, MCOs, PPOs, PHOs, and PSNs. See JCAHO (visited Sept. 14, 1998) 〈http:/www.jcaho.org/acr_orgs/h_hlthpl.htm〉 [herein-after JCAHO]. See also Telephone Interview by Kim Houghton with Julie Roberts, Communications Division, JCAHO, Oakbrook Terrace, Ill. (Sept. 24, 25, 1998) (discussing the inclusion of MCO and HMO health plans among accredited organizations that will be required to comply with JCAHO's ORYX measurement and reporting initiative in the near future). The JCAHO has instituted an ORYX initiative which will require over time that all of its accredited health care organizations, including MCOs, comply by selecting and maintaining some form of "performance measurement system." See id. See also Iameter Inc. (visited Sept. 15, 1998) 〈http:/iameter.com/html/JCAHO&ORYX.html〉 (website of software company marketing provider performance measurement software system that provides "reliable risk-adjusted physician profiling" to JCAHO par" ticipating organizations; website explains compliance with JCAHO's initiative); JCAHO, supra. To comply with ORYX, the health care organizations are allowed to choose at least two from an approved list of performance measures that their system must maintain. This list includes measures such as risk-adjusted mortality outcomes. See JCAHO, supra, at 〈http://www.jcaho.org/perfmeas/oryx/lpmseval/html〉. Further, vendors of commercially available software performance measurement systems designed for MCOs, hospitals, and physician groups advertise MCOs as clients of their performance data collection programs on their commercial websites. See, e.g., QuadraMed Corp. (visited Sept. 4, 1998) 〈http:/www.quadramed.com.html. hra_clients.html〉 (website advertising company's healthcare management software lines, which includes capabilities for collecting risk-adjusted outcomes measures, and listing clients of its software, including "provider networks" and "integrated delivery systems"); Apache Medical Systems (visited Sept. 15, 1998) 〈http://www. apache-msi.com/pepremier.htm〉 (website advertising software program, which includes risk-adjusted outcomes measurement, and identifying clients, including MCOs).
173. Although MCOs are not yet routinely self-reporting comparative provider specific data to the public, reports suggest that collection and internal use of such data is widespread. See Edward Doyle, New Breed of Re-port Cards Turn Up the Heat on Doctors, ACP OBSERVER (visited June 18, 1998) 〈http://www.acponline.org/ journals/news/jan95/reptcard.htm〉 (reporting that one HMO, United Healthcare, has been amassing vast amounts of unreleased data on individual physician performance rates and is not alone in such practice). In the first such statewide disclosure, Pennsylvania's Health Care Cost Containment Council included mortality rates for each of 34 health plan providers in addition to more ordinary per physician mortality rates in its annual study of heart surgery provider outcomes. PENNSYLVANIA HEALTH CARE COST CONTAINMENT COUNCIL, supra note 8. See also Anita J. Slomski, How the Clinton Plan Would Judge Your Performance, 71 MED. ECON. 83 (1994) (describing a bill proposed by the Clinton administration that would require all health plans and HMOs to collect and publish a variety of provider-specific performance and quality data, including RAMR, noting that the administration's proposals for such data collection were modeled on programs already in place at HMOs such as Kaiser Permanente, United Healthcare, and U.S. Healthcare). Evidence that MCOs are collecting such provider-performance data abounds. For example, the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) is an organization which accredits approximately 18,000 healthcare organizations, including some 40 "health plans," which are defined as including HMOs, PIAs, MCOs, PPOs, PHOs, and PSNs. See JCAHO (visited Sept. 14, 1998) 〈http:/www.jcaho.org/acr_orgs/h_hlthpl.htm〉 [herein-after JCAHO]. See also Telephone Interview by Kim Houghton with Julie Roberts, Communications Division, JCAHO, Oakbrook Terrace, Ill. (Sept. 24, 25, 1998) (discussing the inclusion of MCO and HMO health plans among accredited organizations that will be required to comply with JCAHO's ORYX measurement and reporting initiative in the near future). The JCAHO has instituted an ORYX initiative which will require over time that all of its accredited health care organizations, including MCOs, comply by selecting and maintaining some form of "performance measurement system." See id. See also Iameter Inc. (visited Sept. 15, 1998) 〈http:/iameter.com/html/JCAHO&ORYX.html〉 (website of software company marketing provider performance measurement software system that provides "reliable risk-adjusted physician profiling" to JCAHO par" ticipating organizations; website explains compliance with JCAHO's initiative); JCAHO, supra. To comply with ORYX, the health care organizations are allowed to choose at least two from an approved list of performance measures that their system must maintain. This list includes measures such as risk-adjusted mortality outcomes. See JCAHO, supra, at 〈http://www.jcaho.org/perfmeas/oryx/lpmseval/html〉. Further, vendors of commercially available software performance measurement systems designed for MCOs, hospitals, and physician groups advertise MCOs as clients of their performance data collection programs on their commercial websites. See, e.g., QuadraMed Corp. (visited Sept. 4, 1998) 〈http:/www.quadramed.com.html. hra_clients.html〉 (website advertising company's healthcare management software lines, which includes capabilities for collecting risk-adjusted outcomes measures, and listing clients of its software, including "provider networks" and "integrated delivery systems"); Apache Medical Systems (visited Sept. 15, 1998) 〈http://www. apache-msi.com/pepremier.htm〉 (website advertising software program, which includes risk-adjusted outcomes measurement, and identifying clients, including MCOs).
174. Although MCOs are not yet routinely self-reporting comparative provider specific data to the public, reports suggest that collection and internal use of such data is widespread. See Edward Doyle, New Breed of Re-port Cards Turn Up the Heat on Doctors, ACP OBSERVER (visited June 18, 1998) 〈http://www.acponline.org/ journals/news/jan95/reptcard.htm〉 (reporting that one HMO, United Healthcare, has been amassing vast amounts of unreleased data on individual physician performance rates and is not alone in such practice). In the first such statewide disclosure, Pennsylvania's Health Care Cost Containment Council included mortality rates for each of 34 health plan providers in addition to more ordinary per physician mortality rates in its annual study of heart surgery provider outcomes. PENNSYLVANIA HEALTH CARE COST CONTAINMENT COUNCIL, supra note 8. See also Anita J. Slomski, How the Clinton Plan Would Judge Your Performance, 71 MED. ECON. 83 (1994) (describing a bill proposed by the Clinton administration that would require all health plans and HMOs to collect and publish a variety of provider-specific performance and quality data, including RAMR, noting that the administration's proposals for such data collection were modeled on programs already in place at HMOs such as Kaiser Permanente, United Healthcare, and U.S. Healthcare). Evidence that MCOs are collecting such provider-performance data abounds. For example, the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) is an organization which accredits approximately 18,000 healthcare organizations, including some 40 "health plans," which are defined as including HMOs, PIAs, MCOs, PPOs, PHOs, and PSNs. See JCAHO (visited Sept. 14, 1998) 〈http:/www.jcaho.org/acr_orgs/h_hlthpl.htm〉 [herein-after JCAHO]. See also Telephone Interview by Kim Houghton with Julie Roberts, Communications Division, JCAHO, Oakbrook Terrace, Ill. (Sept. 24, 25, 1998) (discussing the inclusion of MCO and HMO health plans among accredited organizations that will be required to comply with JCAHO's ORYX measurement and reporting initiative in the near future). The JCAHO has instituted an ORYX initiative which will require over time that all of its accredited health care organizations, including MCOs, comply by selecting and maintaining some form of "performance measurement system." See id. See also Iameter Inc. (visited Sept. 15, 1998) 〈http:/iameter.com/html/JCAHO&ORYX.html〉 (website of software company marketing provider performance measurement software system that provides "reliable risk-adjusted physician profiling" to JCAHO par" ticipating organizations; website explains compliance with JCAHO's initiative); JCAHO, supra. To comply with ORYX, the health care organizations are allowed to choose at least two from an approved list of performance measures that their system must maintain. This list includes measures such as risk-adjusted mortality outcomes. See JCAHO, supra, at 〈http://www.jcaho.org/perfmeas/oryx/lpmseval/html〉. Further, vendors of commercially available software performance measurement systems designed for MCOs, hospitals, and physician groups advertise MCOs as clients of their performance data collection programs on their commercial websites. See, e.g., QuadraMed Corp. (visited Sept. 4, 1998) 〈http:/www.quadramed.com.html. hra_clients.html〉 (website advertising company's healthcare management software lines, which includes capabilities for collecting risk-adjusted outcomes measures, and listing clients of its software, including "provider networks" and "integrated delivery systems"); Apache Medical Systems (visited Sept. 15, 1998) 〈http://www. apache-msi.com/pepremier.htm〉 (website advertising software program, which includes risk-adjusted outcomes measurement, and identifying clients, including MCOs).
175. Although MCOs are not yet routinely self-reporting comparative provider specific data to the public, reports suggest that collection and internal use of such data is widespread. See Edward Doyle, New Breed of Re-port Cards Turn Up the Heat on Doctors, ACP OBSERVER (visited June 18, 1998) 〈http://www.acponline.org/ journals/news/jan95/reptcard.htm〉 (reporting that one HMO, United Healthcare, has been amassing vast amounts of unreleased data on individual physician performance rates and is not alone in such practice). In the first such statewide disclosure, Pennsylvania's Health Care Cost Containment Council included mortality rates for each of 34 health plan providers in addition to more ordinary per physician mortality rates in its annual study of heart surgery provider outcomes. PENNSYLVANIA HEALTH CARE COST CONTAINMENT COUNCIL, supra note 8. See also Anita J. Slomski, How the Clinton Plan Would Judge Your Performance, 71 MED. ECON. 83 (1994) (describing a bill proposed by the Clinton administration that would require all health plans and HMOs to collect and publish a variety of provider-specific performance and quality data, including RAMR, noting that the administration's proposals for such data collection were modeled on programs already in place at HMOs such as Kaiser Permanente, United Healthcare, and U.S. Healthcare). Evidence that MCOs are collecting such provider-performance data abounds. For example, the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) is an organization which accredits approximately 18,000 healthcare organizations, including some 40 "health plans," which are defined as including HMOs, PIAs, MCOs, PPOs, PHOs, and PSNs. See JCAHO (visited Sept. 14, 1998) 〈http:/www.jcaho.org/acr_orgs/h_hlthpl.htm〉 [herein-after JCAHO]. See also Telephone Interview by Kim Houghton with Julie Roberts, Communications Division, JCAHO, Oakbrook Terrace, Ill. (Sept. 24, 25, 1998) (discussing the inclusion of MCO and HMO health plans among accredited organizations that will be required to comply with JCAHO's ORYX measurement and reporting initiative in the near future). The JCAHO has instituted an ORYX initiative which will require over time that all of its accredited health care organizations, including MCOs, comply by selecting and maintaining some form of "performance measurement system." See id. See also Iameter Inc. (visited Sept. 15, 1998) 〈http:/iameter.com/html/JCAHO&ORYX.html〉 (website of software company marketing provider performance measurement software system that provides "reliable risk-adjusted physician profiling" to JCAHO par" ticipating organizations; website explains compliance with JCAHO's initiative); JCAHO, supra. To comply with ORYX, the health care organizations are allowed to choose at least two from an approved list of performance measures that their system must maintain. This list includes measures such as risk-adjusted mortality outcomes. See JCAHO, supra, at 〈http://www.jcaho.org/perfmeas/oryx/lpmseval/html〉. Further, vendors of commercially available software performance measurement systems designed for MCOs, hospitals, and physician groups advertise MCOs as clients of their performance data collection programs on their commercial websites. See, e.g., QuadraMed Corp. (visited Sept. 4, 1998) 〈http:/www.quadramed.com.html. hra_clients.html〉 (website advertising company's healthcare management software lines, which includes capabilities for collecting risk-adjusted outcomes measures, and listing clients of its software, including "provider networks" and "integrated delivery systems"); Apache Medical Systems (visited Sept. 15, 1998) 〈http://www. apache-msi.com/pepremier.htm〉 (website advertising software program, which includes risk-adjusted outcomes measurement, and identifying clients, including MCOs).
176. Although MCOs are not yet routinely self-reporting comparative provider specific data to the public, reports suggest that collection and internal use of such data is widespread. See Edward Doyle, New Breed of Re-port Cards Turn Up the Heat on Doctors, ACP OBSERVER (visited June 18, 1998) 〈http://www.acponline.org/ journals/news/jan95/reptcard.htm〉 (reporting that one HMO, United Healthcare, has been amassing vast amounts of unreleased data on individual physician performance rates and is not alone in such practice). In the first such statewide disclosure, Pennsylvania's Health Care Cost Containment Council included mortality rates for each of 34 health plan providers in addition to more ordinary per physician mortality rates in its annual study of heart surgery provider outcomes. PENNSYLVANIA HEALTH CARE COST CONTAINMENT COUNCIL, supra note 8. See also Anita J. Slomski, How the Clinton Plan Would Judge Your Performance, 71 MED. ECON. 83 (1994) (describing a bill proposed by the Clinton administration that would require all health plans and HMOs to collect and publish a variety of provider-specific performance and quality data, including RAMR, noting that the administration's proposals for such data collection were modeled on programs already in place at HMOs such as Kaiser Permanente, United Healthcare, and U.S. Healthcare). Evidence that MCOs are collecting such provider-performance data abounds. For example, the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) is an organization which accredits approximately 18,000 healthcare organizations, including some 40 "health plans," which are defined as including HMOs, PIAs, MCOs, PPOs, PHOs, and PSNs. See JCAHO (visited Sept. 14, 1998) 〈http:/www.jcaho.org/acr_orgs/h_hlthpl.htm〉 [herein-after JCAHO]. See also Telephone Interview by Kim Houghton with Julie Roberts, Communications Division, JCAHO, Oakbrook Terrace, Ill. (Sept. 24, 25, 1998) (discussing the inclusion of MCO and HMO health plans among accredited organizations that will be required to comply with JCAHO's ORYX measurement and reporting initiative in the near future). The JCAHO has instituted an ORYX initiative which will require over time that all of its accredited health care organizations, including MCOs, comply by selecting and maintaining some form of "performance measurement system." See id. See also Iameter Inc. (visited Sept. 15, 1998) 〈http:/iameter.com/html/JCAHO&ORYX.html〉 (website of software company marketing provider performance measurement software system that provides "reliable risk-adjusted physician profiling" to JCAHO par" ticipating organizations; website explains compliance with JCAHO's initiative); JCAHO, supra. To comply with ORYX, the health care organizations are allowed to choose at least two from an approved list of performance measures that their system must maintain. This list includes measures such as risk-adjusted mortality outcomes. See JCAHO, supra, at 〈http://www.jcaho.org/perfmeas/oryx/lpmseval/html〉. Further, vendors of commercially available software performance measurement systems designed for MCOs, hospitals, and physician groups advertise MCOs as clients of their performance data collection programs on their commercial websites. See, e.g., QuadraMed Corp. (visited Sept. 4, 1998) 〈http:/www.quadramed.com.html. hra_clients.html〉 (website advertising company's healthcare management software lines, which includes capabilities for collecting risk-adjusted outcomes measures, and listing clients of its software, including "provider networks" and "integrated delivery systems"); Apache Medical Systems (visited Sept. 15, 1998) 〈http://www. apache-msi.com/pepremier.htm〉 (website advertising software program, which includes risk-adjusted outcomes measurement, and identifying clients, including MCOs).
177. Although MCOs are not yet routinely self-reporting comparative provider specific data to the public, reports suggest that collection and internal use of such data is widespread. See Edward Doyle, New Breed of Re-port Cards Turn Up the Heat on Doctors, ACP OBSERVER (visited June 18, 1998) 〈http://www.acponline.org/ journals/news/jan95/reptcard.htm〉 (reporting that one HMO, United Healthcare, has been amassing vast amounts of unreleased data on individual physician performance rates and is not alone in such practice). In the first such statewide disclosure, Pennsylvania's Health Care Cost Containment Council included mortality rates for each of 34 health plan providers in addition to more ordinary per physician mortality rates in its annual study of heart surgery provider outcomes. PENNSYLVANIA HEALTH CARE COST CONTAINMENT COUNCIL, supra note 8. See also Anita J. Slomski, How the Clinton Plan Would Judge Your Performance, 71 MED. ECON. 83 (1994) (describing a bill proposed by the Clinton administration that would require all health plans and HMOs to collect and publish a variety of provider-specific performance and quality data, including RAMR, noting that the administration's proposals for such data collection were modeled on programs already in place at HMOs such as Kaiser Permanente, United Healthcare, and U.S. Healthcare). Evidence that MCOs are collecting such provider-performance data abounds. For example, the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) is an organization which accredits approximately 18,000 healthcare organizations, including some 40 "health plans," which are defined as including HMOs, PIAs, MCOs, PPOs, PHOs, and PSNs. See JCAHO (visited Sept. 14, 1998) 〈http:/www.jcaho.org/acr_orgs/h_hlthpl.htm〉 [herein-after JCAHO]. See also Telephone Interview by Kim Houghton with Julie Roberts, Communications Division, JCAHO, Oakbrook Terrace, Ill. (Sept. 24, 25, 1998) (discussing the inclusion of MCO and HMO health plans among accredited organizations that will be required to comply with JCAHO's ORYX measurement and reporting initiative in the near future). The JCAHO has instituted an ORYX initiative which will require over time that all of its accredited health care organizations, including MCOs, comply by selecting and maintaining some form of "performance measurement system." See id. See also Iameter Inc. (visited Sept. 15, 1998) 〈http:/iameter.com/html/JCAHO&ORYX.html〉 (website of software company marketing provider performance measurement software system that provides "reliable risk-adjusted physician profiling" to JCAHO par" ticipating organizations; website explains compliance with JCAHO's initiative); JCAHO, supra. To comply with ORYX, the health care organizations are allowed to choose at least two from an approved list of performance measures that their system must maintain. This list includes measures such as risk-adjusted mortality outcomes. See JCAHO, supra, at 〈http://www.jcaho.org/perfmeas/oryx/lpmseval/html〉. Further, vendors of commercially available software performance measurement systems designed for MCOs, hospitals, and physician groups advertise MCOs as clients of their performance data collection programs on their commercial websites. See, e.g., QuadraMed Corp. (visited Sept. 4, 1998) 〈http:/www.quadramed.com.html. hra_clients.html〉 (website advertising company's healthcare management software lines, which includes capabilities for collecting risk-adjusted outcomes measures, and listing clients of its software, including "provider networks" and "integrated delivery systems"); Apache Medical Systems (visited Sept. 15, 1998) 〈http://www. apache-msi.com/pepremier.htm〉 (website advertising software program, which includes risk-adjusted outcomes measurement, and identifying clients, including MCOs).
178. Although MCOs are not yet routinely self-reporting comparative provider specific data to the public, reports suggest that collection and internal use of such data is widespread. See Edward Doyle, New Breed of Re-port Cards Turn Up the Heat on Doctors, ACP OBSERVER (visited June 18, 1998) 〈http://www.acponline.org/ journals/news/jan95/reptcard.htm〉 (reporting that one HMO, United Healthcare, has been amassing vast amounts of unreleased data on individual physician performance rates and is not alone in such practice). In the first such statewide disclosure, Pennsylvania's Health Care Cost Containment Council included mortality rates for each of 34 health plan providers in addition to more ordinary per physician mortality rates in its annual study of heart surgery provider outcomes. PENNSYLVANIA HEALTH CARE COST CONTAINMENT COUNCIL, supra note 8. See also Anita J. Slomski, How the Clinton Plan Would Judge Your Performance, 71 MED. ECON. 83 (1994) (describing a bill proposed by the Clinton administration that would require all health plans and HMOs to collect and publish a variety of provider-specific performance and quality data, including RAMR, noting that the administration's proposals for such data collection were modeled on programs already in place at HMOs such as Kaiser Permanente, United Healthcare, and U.S. Healthcare). Evidence that MCOs are collecting such provider-performance data abounds. For example, the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) is an organization which accredits approximately 18,000 healthcare organizations, including some 40 "health plans," which are defined as including HMOs, PIAs, MCOs, PPOs, PHOs, and PSNs. See JCAHO (visited Sept. 14, 1998) 〈http:/www.jcaho.org/acr_orgs/h_hlthpl.htm〉 [herein-after JCAHO]. See also Telephone Interview by Kim Houghton with Julie Roberts, Communications Division, JCAHO, Oakbrook Terrace, Ill. (Sept. 24, 25, 1998) (discussing the inclusion of MCO and HMO health plans among accredited organizations that will be required to comply with JCAHO's ORYX measurement and reporting initiative in the near future). The JCAHO has instituted an ORYX initiative which will require over time that all of its accredited health care organizations, including MCOs, comply by selecting and maintaining some form of "performance measurement system." See id. See also Iameter Inc. (visited Sept. 15, 1998) 〈http:/iameter.com/html/JCAHO&ORYX.html〉 (website of software company marketing provider performance measurement software system that provides "reliable risk-adjusted physician profiling" to JCAHO par" ticipating organizations; website explains compliance with JCAHO's initiative); JCAHO, supra. To comply with ORYX, the health care organizations are allowed to choose at least two from an approved list of performance measures that their system must maintain. This list includes measures such as risk-adjusted mortality outcomes. See JCAHO, supra, at 〈http://www.jcaho.org/perfmeas/oryx/lpmseval/html〉. Further, vendors of commercially available software performance measurement systems designed for MCOs, hospitals, and physician groups advertise MCOs as clients of their performance data collection programs on their commercial websites. See, e.g., QuadraMed Corp. (visited Sept. 4, 1998) 〈http:/www.quadramed.com.html. hra_clients.html〉 (website advertising company's healthcare management software lines, which includes capabilities for collecting risk-adjusted outcomes measures, and listing clients of its software, including "provider networks" and "integrated delivery systems"); Apache Medical Systems (visited Sept. 15, 1998) 〈http://www. apache-msi.com/pepremier.htm〉 (website advertising software program, which includes risk-adjusted outcomes measurement, and identifying clients, including MCOs).
179. Although MCOs are not yet routinely self-reporting comparative provider specific data to the public, reports suggest that collection and internal use of such data is widespread. See Edward Doyle, New Breed of Re-port Cards Turn Up the Heat on Doctors, ACP OBSERVER (visited June 18, 1998) 〈http://www.acponline.org/ journals/news/jan95/reptcard.htm〉 (reporting that one HMO, United Healthcare, has been amassing vast amounts of unreleased data on individual physician performance rates and is not alone in such practice). In the first such statewide disclosure, Pennsylvania's Health Care Cost Containment Council included mortality rates for each of 34 health plan providers in addition to more ordinary per physician mortality rates in its annual study of heart surgery provider outcomes. PENNSYLVANIA HEALTH CARE COST CONTAINMENT COUNCIL, supra note 8. See also Anita J. Slomski, How the Clinton Plan Would Judge Your Performance, 71 MED. ECON. 83 (1994) (describing a bill proposed by the Clinton administration that would require all health plans and HMOs to collect and publish a variety of provider-specific performance and quality data, including RAMR, noting that the administration's proposals for such data collection were modeled on programs already in place at HMOs such as Kaiser Permanente, United Healthcare, and U.S. Healthcare). Evidence that MCOs are collecting such provider-performance data abounds. For example, the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) is an organization which accredits approximately 18,000 healthcare organizations, including some 40 "health plans," which are defined as including HMOs, PIAs, MCOs, PPOs, PHOs, and PSNs. See JCAHO (visited Sept. 14, 1998) 〈http:/www.jcaho.org/acr_orgs/h_hlthpl.htm〉 [herein-after JCAHO]. See also Telephone Interview by Kim Houghton with Julie Roberts, Communications Division, JCAHO, Oakbrook Terrace, Ill. (Sept. 24, 25, 1998) (discussing the inclusion of MCO and HMO health plans among accredited organizations that will be required to comply with JCAHO's ORYX measurement and reporting initiative in the near future). The JCAHO has instituted an ORYX initiative which will require over time that all of its accredited health care organizations, including MCOs, comply by selecting and maintaining some form of "performance measurement system." See id. See also Iameter Inc. (visited Sept. 15, 1998) 〈http:/iameter.com/html/JCAHO&ORYX.html〉 (website of software company marketing provider performance measurement software system that provides "reliable risk-adjusted physician profiling" to JCAHO par" ticipating organizations; website explains compliance with JCAHO's initiative); JCAHO, supra. To comply with ORYX, the health care organizations are allowed to choose at least two from an approved list of performance measures that their system must maintain. This list includes measures such as risk-adjusted mortality outcomes. See JCAHO, supra, at 〈http://www.jcaho.org/perfmeas/oryx/lpmseval/html〉. Further, vendors of commercially available software performance measurement systems designed for MCOs, hospitals, and physician groups advertise MCOs as clients of their performance data collection programs on their commercial websites. See, e.g., QuadraMed Corp. (visited Sept. 4, 1998) 〈http:/www.quadramed.com.html. hra_clients.html〉 (website advertising company's healthcare management software lines, which includes capabilities for collecting risk-adjusted outcomes measures, and listing clients of its software, including "provider networks" and "integrated delivery systems"); Apache Medical Systems (visited Sept. 15, 1998) 〈http://www. apache-msi.com/pepremier.htm〉 (website advertising software program, which includes risk-adjusted outcomes measurement, and identifying clients, including MCOs).
180. Although MCOs are not yet routinely self-reporting comparative provider specific data to the public, reports suggest that collection and internal use of such data is widespread. See Edward Doyle, New Breed of Re-port Cards Turn Up the Heat on Doctors, ACP OBSERVER (visited June 18, 1998) 〈http://www.acponline.org/ journals/news/jan95/reptcard.htm〉 (reporting that one HMO, United Healthcare, has been amassing vast amounts of unreleased data on individual physician performance rates and is not alone in such practice). In the first such statewide disclosure, Pennsylvania's Health Care Cost Containment Council included mortality rates for each of 34 health plan providers in addition to more ordinary per physician mortality rates in its annual study of heart surgery provider outcomes. PENNSYLVANIA HEALTH CARE COST CONTAINMENT COUNCIL, supra note 8. See also Anita J. Slomski, How the Clinton Plan Would Judge Your Performance, 71 MED. ECON. 83 (1994) (describing a bill proposed by the Clinton administration that would require all health plans and HMOs to collect and publish a variety of provider-specific performance and quality data, including RAMR, noting that the administration's proposals for such data collection were modeled on programs already in place at HMOs such as Kaiser Permanente, United Healthcare, and U.S. Healthcare). Evidence that MCOs are collecting such provider-performance data abounds. For example, the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) is an organization which accredits approximately 18,000 healthcare organizations, including some 40 "health plans," which are defined as including HMOs, PIAs, MCOs, PPOs, PHOs, and PSNs. See JCAHO (visited Sept. 14, 1998) 〈http:/www.jcaho.org/acr_orgs/h_hlthpl.htm〉 [herein-after JCAHO]. See also Telephone Interview by Kim Houghton with Julie Roberts, Communications Division, JCAHO, Oakbrook Terrace, Ill. (Sept. 24, 25, 1998) (discussing the inclusion of MCO and HMO health plans among accredited organizations that will be required to comply with JCAHO's ORYX measurement and reporting initiative in the near future). The JCAHO has instituted an ORYX initiative which will require over time that all of its accredited health care organizations, including MCOs, comply by selecting and maintaining some form of "performance measurement system." See id. See also Iameter Inc. (visited Sept. 15, 1998) 〈http:/iameter.com/html/JCAHO&ORYX.html〉 (website of software company marketing provider performance measurement software system that provides "reliable risk-adjusted physician profiling" to JCAHO par" ticipating organizations; website explains compliance with JCAHO's initiative); JCAHO, supra. To comply with ORYX, the health care organizations are allowed to choose at least two from an approved list of performance measures that their system must maintain. This list includes measures such as risk-adjusted mortality outcomes. See JCAHO, supra, at 〈http://www.jcaho.org/perfmeas/oryx/lpmseval/html〉. Further, vendors of commercially available software performance measurement systems designed for MCOs, hospitals, and physician groups advertise MCOs as clients of their performance data collection programs on their commercial websites. See, e.g., QuadraMed Corp. (visited Sept. 4, 1998) 〈http:/www.quadramed.com.html. hra_clients.html〉 (website advertising company's healthcare management software lines, which includes capabilities for collecting risk-adjusted outcomes measures, and listing clients of its software, including "provider networks" and "integrated delivery systems"); Apache Medical Systems (visited Sept. 15, 1998) 〈http://www. apache-msi.com/pepremier.htm〉 (website advertising software program, which includes risk-adjusted outcomes measurement, and identifying clients, including MCOs).
181. Commentators have recently questioned the premises of traditional informed consent law in the environment of managed care. See, e.g., PAUL T. MENZEL, STRONG MEDICTNE: THE ETHICAL RATIONING OF HEALTH CARE 145 (1990) (physician should be required to provide information that could realistically be acted on by patient); E. HAAVI MORREIM, BALANCING ACT: THE NEW MEDICAL ETHICS OF MEDICINE'S NEW ECONOMICS 115 (1991) (disclosure required if there is a realistic possibility that patient could arrange for alternate treatment); Rethinking Informed Consent, supra note 23, at 941 ("[P]olicymakers . . . may view as an insupportable extravagance a doctrine requiring physicians to spend more time engaging in more extensive dialogues with patients about alternatives that are no longer practically available to them . . . ."). Comparative provider statistics, especially if made available to choose between providers that are within a given managed care network, would allow a patient a choice between
182. Commentators have recently questioned the premises of traditional informed consent law in the environment of managed care. See, e.g., PAUL T. MENZEL, STRONG MEDICTNE: THE ETHICAL RATIONING OF HEALTH CARE 145 (1990) (physician should be required to provide information that could realistically be acted on by patient); E. HAAVI MORREIM, BALANCING ACT: THE NEW MEDICAL ETHICS OF MEDICINE'S NEW ECONOMICS 115 (1991) (disclosure required if there is a realistic possibility that patient could arrange for alternate treatment); Rethinking Informed Consent, supra note 23, at 941 ("[P]olicymakers . . . may view as an insupportable extravagance a doctrine requiring physicians to spend more time engaging in more extensive dialogues with patients about alternatives that are no longer practically available to them . . . ."). Comparative provider statistics, especially if made available to choose between providers that are within a given managed care network, would allow a patient a choice between physicians and hospitals that could be highly significant. Such comparative statistics would also respond to Professor Schuck's suggestion that informed consent include presenting comparative risk information to patients. See Shuck, Rethinking Informed Consent, supra note 23, at 948-51. Even the harshest critic of an individual-autonomy-based theory of informed consent would likely agree that comparative provider statistics should be revealed to patients about to undergo a procedure. See Roger B. Dworkin, Medical Law and Ethics in the Post-Autonomy Age, 68 IND. L.J. 727, 741 (1993).
183. Commentators have recently questioned the premises of traditional informed consent law in the environment of managed care. See, e.g., PAUL T. MENZEL, STRONG MEDICTNE: THE ETHICAL RATIONING OF HEALTH CARE 145 (1990) (physician should be required to provide information that could realistically be acted on by patient); E. HAAVI MORREIM, BALANCING ACT: THE NEW MEDICAL ETHICS OF MEDICINE'S NEW ECONOMICS 115 (1991) (disclosure required if there is a realistic possibility that patient could arrange for alternate treatment); Rethinking Informed Consent, supra note 23, at 941 ("[P]olicymakers . . . may view as an insupportable extravagance a doctrine requiring physicians to spend more time engaging in more extensive dialogues with patients about alternatives that are no longer practically available to them . . . ."). Comparative provider statistics, especially if made available to choose between providers that are within a given managed care network, would allow a patient a choice between physicians and hospitals that could be highly significant. Such comparative statistics would also respond to Professor Schuck's suggestion that informed consent include presenting comparative risk information to patients. See Shuck, Rethinking Informed Consent, supra note 23, at 948-51. Even the harshest critic of an individual-autonomy-based theory of informed consent would likely agree that comparative provider statistics should be revealed to patients about to undergo a procedure. See Roger B. Dworkin, Medical Law and Ethics in the Post-Autonomy Age, 68 IND. L.J. 727, 741 (1993).
184. Commentators have recently questioned the premises of traditional informed consent law in the environment of managed care. See, e.g., PAUL T. MENZEL, STRONG MEDICTNE: THE ETHICAL RATIONING OF HEALTH CARE 145 (1990) (physician should be required to provide information that could realistically be acted on by patient); E. HAAVI MORREIM, BALANCING ACT: THE NEW MEDICAL ETHICS OF MEDICINE'S NEW ECONOMICS 115 (1991) (disclosure required if there is a realistic possibility that patient could arrange for alternate treatment); Rethinking Informed Consent, supra note 23, at 941 ("[P]olicymakers . . . may view as an insupportable extravagance a doctrine requiring physicians to spend more time engaging in more extensive dialogues with patients about alternatives that are no longer practically available to them . . . ."). Comparative provider statistics, especially if made available to choose between providers that are within a given managed care network, would allow a patient a choice between physicians and hospitals that could be highly significant. Such comparative statistics would also respond to Professor Schuck's suggestion that informed consent include presenting comparative risk information to patients. See Shuck, Rethinking Informed Consent, supra note 23, at 948-51. Even the harshest critic of an individual-autonomy-based theory of informed consent would likely agree that comparative provider statistics should be revealed to patients about to undergo a procedure. See Roger B. Dworkin, Medical Law and Ethics in the Post-Autonomy Age, 68 IND. L.J. 727, 741 (1993).
185. Commentators have recently questioned the premises of traditional informed consent law in the environment of managed care. See, e.g., PAUL T. MENZEL, STRONG MEDICTNE: THE ETHICAL RATIONING OF HEALTH CARE 145 (1990) (physician should be required to provide information that could realistically be acted on by patient); E. HAAVI MORREIM, BALANCING ACT: THE NEW MEDICAL ETHICS OF MEDICINE'S NEW ECONOMICS 115 (1991) (disclosure required if there is a realistic possibility that patient could arrange for alternate treatment); Rethinking Informed Consent, supra note 23, at 941 ("[P]olicymakers . . . may view as an insupportable extravagance a doctrine requiring physicians to spend more time engaging in more extensive dialogues with patients about alternatives that are no longer practically available to them . . . ."). Comparative provider statistics, especially if made available to choose between providers that are within a given managed care network, would allow a patient a choice between physicians and hospitals that could be highly significant. Such comparative statistics would also respond to Professor Schuck's suggestion that informed consent include presenting comparative risk information to patients. See Shuck, Rethinking Informed Consent, supra note 23, at 948-51. Even the harshest critic of an individual-autonomy-based theory of informed consent would likely agree that comparative provider statistics should be revealed to patients about to undergo a procedure. See Roger B. Dworkin, Medical Law and Ethics in the Post-Autonomy Age, 68 IND. L.J. 727, 741 (1993).
186. 29 U.S.C. §§ 1001-1461 (1994). See infra text accompanying notes 92-107.
187. See CHARLES G. BENDA & FAY A. ROSOVSKY, MANAGED CARE AND THE LAW § 1.3, at 1-7, § 2.4.1, at 2-11 (1997) (describing both a "closed staff" model HMO, which limits "the participation of physicians, and consequently the choice of members, to physicians who are employees of the HMO or members of a specified contract group," and an "open staff" model HMO, which "opens physician participation, and member choice, by contracting with an array of individual physicians in a community either directly or through an individual practice association (IPA)").
188. See U.C.C. § 1-201(27) (1998) (stating that notice to an organization is effective from the time it would have been communicated to the person conducting the transaction for the organization if the organization exercised due diligence, i.e., the maintenance of reasonable routines for communicating significant information to the person conducting the transaction). Cf. Fisher v. Philadelphia Elec. Co., 994 F.2d 130, 135 (3d Cir. 1993) (employers should identify to employees which persons are authorized to communicate important information about employee benefits plans and plan changes, and "[employer] obligations cannot be circumvented by building a 'Chinese wall' around those employees on whom the plan participants reasonably rely for important information and guidance about retirement. . . "). See also John M. Vine, The Supreme Court's Downsizing Decisions: How To Do It and How Not To Do It, 548 PLI/LIT 589, 609 (1996) (citing Bixler v. Central Pa. Teamsters Health & Welfare Fund, 12 F.3d 1292, 1300 (3d Cir. 1993) (employees have an "affirmative duty to inform when fiduciary knows that silence might be harmful")).
189. See U.C.C. § 1-201(27) (1998) (stating that notice to an organization is effective from the time it would have been communicated to the person conducting the transaction for the organization if the organization exercised due diligence, i.e., the maintenance of reasonable routines for communicating significant information to the person conducting the transaction). Cf. Fisher v. Philadelphia Elec. Co., 994 F.2d 130, 135 (3d Cir. 1993) (employers should identify to employees which persons are authorized to communicate important information about employee benefits plans and plan changes, and "[employer] obligations cannot be circumvented by building a 'Chinese wall' around those employees on whom the plan participants reasonably rely for important information and guidance about retirement. . . "). See also John M. Vine, The Supreme Court's Downsizing Decisions: How To Do It and How Not To Do It, 548 PLI/LIT 589, 609 (1996) (citing Bixler v. Central Pa. Teamsters Health & Welfare Fund, 12 F.3d 1292, 1300 (3d Cir. 1993) (employees have an "affirmative duty to inform when fiduciary knows that silence might be harmful")).
190. See U.C.C. § 1-201(27) (1998) (stating that notice to an organization is effective from the time it would have been communicated to the person conducting the transaction for the organization if the organization exercised due diligence, i.e., the maintenance of reasonable routines for communicating significant information to the person conducting the transaction). Cf. Fisher v. Philadelphia Elec. Co., 994 F.2d 130, 135 (3d Cir. 1993) (employers should identify to employees which persons are authorized to communicate important information about employee benefits plans and plan changes, and "[employer] obligations cannot be circumvented by building a 'Chinese wall' around those employees on whom the plan participants reasonably rely for important information and guidance about retirement. . . "). See also John M. Vine, The Supreme Court's Downsizing Decisions: How To Do It and How Not To Do It, 548 PLI/LIT 589, 609 (1996) (citing Bixler v. Central Pa. Teamsters Health & Welfare Fund, 12 F.3d 1292, 1300 (3d Cir. 1993) (employees have an "affirmative duty to inform when fiduciary knows that silence might be harmful")).
191. See BENDA, supra note 76, § 2.4.1, at 2-11 ("The group model HMO contracts with a physician group that can provide all of the physician services required by the enrolled members . . . . The physicians are employees of the group practice, not the HMO . . . [T]he HMO and the physician group may be independent entities, [or] the HMO may have created the group, or the group may have established (and own) the HMO.").
192. See id. at 2-11, 2-12 ("[T]he network model HMO contracts with multiple group practices to pro" vide the services required by enrolled members . . . . It operates very similar to the group model HMO.").
193. See id. § 2.4.2, at 2-12, 2-13 ("PPOs are organizations of providers contracted by an insurer, employer, or administrator to deliver care for individuals covered by a participating health plan . . . . Plan members are not prohibited from using other providers as they are under HMOs, although there are usually financial incentives to discourage this.").
194. See id. § 2.4.3, at 2-14 ("POS plans involve a basic HMO or PPO approach with the option to receive care from providers who are not part of the HMO or PPO network of providers . . . . Members typically have a choice of using nonparticipating providers or obtaining unauthorized services but are required to pay much higher deductibles and copayments . . . the [POS] typically has higher monthly [premium] rates for members than do the [HMO or PPO] plans.").
195. Apparent authority is defined as "the power to affect the legal relations of another person by transactions with third persons, professedly as agent for the other," and as resulting from "a manifestation by a person that another is his agent, the manifestation being made to a third person . . . ." RESTATEMENT (SECOND) OF AGENCY §8 (1958). Further, liability for the lack of skill or care of an apparent agent may be imposed on those who represent to others that the apparent agent is their servant or other agent, thereby causing justifiable reliance by a third person on the care or skill of that apparent agent. See id. §267. For courts' reasoning in imposing liability on HMOs based on these principles, see, for example, Petrovich v. Share Health Plan, 696 N.E.2d 356, 364 (Ill. App. Ct. 1998) (plaintiff was precluded from sufficient discovery of HMO defendant's "advertising materials" which would "go to the [ostensible agency] elements of 'holding out' and justifiable reliance," and thus grant of summary judgment in favor of defendant HMO was "premature"). See also Decker v. Saini, No. 88-361768, 1991 WL 277590, at *3 (Mich. Cir. Ct. Sept. 17, 1991) ((i) refusing to grant summary judgment to defendant HMO on ostensible agency claim; (ii) concluding that plaintiff had provided sufficient evidence of HMO holding itself out as health care provider, of plaintiff's reliance on that representation, and of plaintiff's reasonable belief that doctor who failed to timely diagnose a tumor resulting in partial arm amputation was acting as agent of the HMO; and (iii) noting that "lack of precedent does not preclude [the court] from imposing liability on [an HMO] under a theory of ostensible agency if the facts so warrant"); McClellan v. Health Maintenance Org., 604 A.2d 1053, 1058 (Pa. Super. Ct. 1992) (following Boyd and reinstating claim of liability against HMO based on ostensible agency theory where primary care physician who allegedly failed to timely diagnose a fatal melanoma was "held out as agent of [HMO]," and where the "[HMO] represented that their primary care physicians were carefully screened and fully qualified physicians who would render competent medical care to HMO members . . ."); Boyd v. Albert Einstein Med. Ctr., 547 A.2d 1229, 1235 (Pa. Super. Ct. 1988) (citing to RESTATEMENT (SECOND) OF AGENCY § 267 in reversing summary judgment of lower court that had refused to recognize liability of HMO based on "ostensible agency" theory and thus allowing trial to resolve material issue of fact as to liability based on agency theory). See also Jim M. Perdue & Stephen R. Baxley, Cutting Costs - Cutting Care: Can Texas Managed Health Care Systems and HMOs Be Liable for the Medical Malpractice of Physicians?, 27 ST. MARY'S L.J. 23, 34 (1995) ("[A]pparent agency liability should arise when a patient receives treatment in an HMO clinic and reasonably believes that the attending physician is an employee or agent of the facility. In addition, if the facility, rather than the patient, selects the physician, courts should find that an apparent agency relationship exits. Finally, courts should consider the billing method in applying the concept of apparent agency."); Mark G. Cooper, Comment, A "New" Approach to Medical Malpractice: The Liability of HMOs for Member Physician Negligence, 1994 DET. C.L. REV. 1263, 1288-90 (1994) (outlining factors that courts analyze when considering HMO liability under agency theories, including appearance conveyed to the enrollee by the HMO; indications that the HMO exercises a "significant" level of control over the member physician; HMO contract language indicating that all care must be "provided, arranged or authorized" by an HMO physician, which conveys that HMO is responsible for delivery of the care; and method by which HMO pays the physician, especially if it includes "capitation" disincentives for additional testing).
196. Apparent authority is defined as "the power to affect the legal relations of another person by transactions with third persons, professedly as agent for the other," and as resulting from "a manifestation by a person that another is his agent, the manifestation being made to a third person . . . ." RESTATEMENT (SECOND) OF AGENCY §8 (1958). Further, liability for the lack of skill or care of an apparent agent may be imposed on those who represent to others that the apparent agent is their servant or other agent, thereby causing justifiable reliance by a third person on the care or skill of that apparent agent. See id. §267. For courts' reasoning in imposing liability on HMOs based on these principles, see, for example, Petrovich v. Share Health Plan, 696 N.E.2d 356, 364 (Ill. App. Ct. 1998) (plaintiff was precluded from sufficient discovery of HMO defendant's "advertising materials" which would "go to the [ostensible agency] elements of 'holding out' and justifiable reliance," and thus grant of summary judgment in favor of defendant HMO was "premature"). See also Decker v. Saini, No. 88-361768, 1991 WL 277590, at *3 (Mich. Cir. Ct. Sept. 17, 1991) ((i) refusing to grant summary judgment to defendant HMO on ostensible agency claim; (ii) concluding that plaintiff had provided sufficient evidence of HMO holding itself out as health care provider, of plaintiff's reliance on that representation, and of plaintiff's reasonable belief that doctor who failed to timely diagnose a tumor resulting in partial arm amputation was acting as agent of the HMO; and (iii) noting that "lack of precedent does not preclude [the court] from imposing liability on [an HMO] under a theory of ostensible agency if the facts so warrant"); McClellan v. Health Maintenance Org., 604 A.2d 1053, 1058 (Pa. Super. Ct. 1992) (following Boyd and reinstating claim of liability against HMO based on ostensible agency theory where primary care physician who allegedly failed to timely diagnose a fatal melanoma was "held out as agent of [HMO]," and where the "[HMO] represented that their primary care physicians were carefully screened and fully qualified physicians who would render competent medical care to HMO members . . ."); Boyd v. Albert Einstein Med. Ctr., 547 A.2d 1229, 1235 (Pa. Super. Ct. 1988) (citing to RESTATEMENT (SECOND) OF AGENCY § 267 in reversing summary judgment of lower court that had refused to recognize liability of HMO based on "ostensible agency" theory and thus allowing trial to resolve material issue of fact as to liability based on agency theory). See also Jim M. Perdue & Stephen R. Baxley, Cutting Costs - Cutting Care: Can Texas Managed Health Care Systems and HMOs Be Liable for the Medical Malpractice of Physicians?, 27 ST. MARY'S L.J. 23, 34 (1995) ("[A]pparent agency liability should arise when a patient receives treatment in an HMO clinic and reasonably believes that the attending physician is an employee or agent of the facility. In addition, if the facility, rather than the patient, selects the physician, courts should find that an apparent agency relationship exits. Finally, courts should consider the billing method in applying the concept of apparent agency."); Mark G. Cooper, Comment, A "New" Approach to Medical Malpractice: The Liability of HMOs for Member Physician Negligence, 1994 DET. C.L. REV. 1263, 1288-90 (1994) (outlining factors that courts analyze when considering HMO liability under agency theories, including appearance conveyed to the enrollee by the HMO; indications that the HMO exercises a "significant" level of control over the member physician; HMO contract language indicating that all care must be "provided, arranged or authorized" by an HMO physician, which conveys that HMO is responsible for delivery of the care; and method by which HMO pays the physician, especially if it includes "capitation" disincentives for additional testing).
197. Apparent authority is defined as "the power to affect the legal relations of another person by transactions with third persons, professedly as agent for the other," and as resulting from "a manifestation by a person that another is his agent, the manifestation being made to a third person . . . ." RESTATEMENT (SECOND) OF AGENCY §8 (1958). Further, liability for the lack of skill or care of an apparent agent may be imposed on those who represent to others that the apparent agent is their servant or other agent, thereby causing justifiable reliance by a third person on the care or skill of that apparent agent. See id. §267. For courts' reasoning in imposing liability on HMOs based on these principles, see, for example, Petrovich v. Share Health Plan, 696 N.E.2d 356, 364 (Ill. App. Ct. 1998) (plaintiff was precluded from sufficient discovery of HMO defendant's "advertising materials" which would "go to the [ostensible agency] elements of 'holding out' and justifiable reliance," and thus grant of summary judgment in favor of defendant HMO was "premature"). See also Decker v. Saini, No. 88-361768, 1991 WL 277590, at *3 (Mich. Cir. Ct. Sept. 17, 1991) ((i) refusing to grant summary judgment to defendant HMO on ostensible agency claim; (ii) concluding that plaintiff had provided sufficient evidence of HMO holding itself out as health care provider, of plaintiff's reliance on that representation, and of plaintiff's reasonable belief that doctor who failed to timely diagnose a tumor resulting in partial arm amputation was acting as agent of the HMO; and (iii) noting that "lack of precedent does not preclude [the court] from imposing liability on [an HMO] under a theory of ostensible agency if the facts so warrant"); McClellan v. Health Maintenance Org., 604 A.2d 1053, 1058 (Pa. Super. Ct. 1992) (following Boyd and reinstating claim of liability against HMO based on ostensible agency theory where primary care physician who allegedly failed to timely diagnose a fatal melanoma was "held out as agent of [HMO]," and where the "[HMO] represented that their primary care physicians were carefully screened and fully qualified physicians who would render competent medical care to HMO members . . ."); Boyd v. Albert Einstein Med. Ctr., 547 A.2d 1229, 1235 (Pa. Super. Ct. 1988) (citing to RESTATEMENT (SECOND) OF AGENCY § 267 in reversing summary judgment of lower court that had refused to recognize liability of HMO based on "ostensible agency" theory and thus allowing trial to resolve material issue of fact as to liability based on agency theory). See also Jim M. Perdue & Stephen R. Baxley, Cutting Costs - Cutting Care: Can Texas Managed Health Care Systems and HMOs Be Liable for the Medical Malpractice of Physicians?, 27 ST. MARY'S L.J. 23, 34 (1995) ("[A]pparent agency liability should arise when a patient receives treatment in an HMO clinic and reasonably believes that the attending physician is an employee or agent of the facility. In addition, if the facility, rather than the patient, selects the physician, courts should find that an apparent agency relationship exits. Finally, courts should consider the billing method in applying the concept of apparent agency."); Mark G. Cooper, Comment, A "New" Approach to Medical Malpractice: The Liability of HMOs for Member Physician Negligence, 1994 DET. C.L. REV. 1263, 1288-90 (1994) (outlining factors that courts analyze when considering HMO liability under agency theories, including appearance conveyed to the enrollee by the HMO; indications that the HMO exercises a "significant" level of control over the member physician; HMO contract language indicating that all care must be "provided, arranged or authorized" by an HMO physician, which conveys that HMO is responsible for delivery of the care; and method by which HMO pays the physician, especially if it includes "capitation" disincentives for additional testing).
198. Apparent authority is defined as "the power to affect the legal relations of another person by transactions with third persons, professedly as agent for the other," and as resulting from "a manifestation by a person that another is his agent, the manifestation being made to a third person . . . ." RESTATEMENT (SECOND) OF AGENCY §8 (1958). Further, liability for the lack of skill or care of an apparent agent may be imposed on those who represent to others that the apparent agent is their servant or other agent, thereby causing justifiable reliance by a third person on the care or skill of that apparent agent. See id. §267. For courts' reasoning in imposing liability on HMOs based on these principles, see, for example, Petrovich v. Share Health Plan, 696 N.E.2d 356, 364 (Ill. App. Ct. 1998) (plaintiff was precluded from sufficient discovery of HMO defendant's "advertising materials" which would "go to the [ostensible agency] elements of 'holding out' and justifiable reliance," and thus grant of summary judgment in favor of defendant HMO was "premature"). See also Decker v. Saini, No. 88-361768, 1991 WL 277590, at *3 (Mich. Cir. Ct. Sept. 17, 1991) ((i) refusing to grant summary judgment to defendant HMO on ostensible agency claim; (ii) concluding that plaintiff had provided sufficient evidence of HMO holding itself out as health care provider, of plaintiff's reliance on that representation, and of plaintiff's reasonable belief that doctor who failed to timely diagnose a tumor resulting in partial arm amputation was acting as agent of the HMO; and (iii) noting that "lack of precedent does not preclude [the court] from imposing liability on [an HMO] under a theory of ostensible agency if the facts so warrant"); McClellan v. Health Maintenance Org., 604 A.2d 1053, 1058 (Pa. Super. Ct. 1992) (following Boyd and reinstating claim of liability against HMO based on ostensible agency theory where primary care physician who allegedly failed to timely diagnose a fatal melanoma was "held out as agent of [HMO]," and where the "[HMO] represented that their primary care physicians were carefully screened and fully qualified physicians who would render competent medical care to HMO members . . ."); Boyd v. Albert Einstein Med. Ctr., 547 A.2d 1229, 1235 (Pa. Super. Ct. 1988) (citing to RESTATEMENT (SECOND) OF AGENCY § 267 in reversing summary judgment of lower court that had refused to recognize liability of HMO based on "ostensible agency" theory and thus allowing trial to resolve material issue of fact as to liability based on agency theory). See also Jim M. Perdue & Stephen R. Baxley, Cutting Costs - Cutting Care: Can Texas Managed Health Care Systems and HMOs Be Liable for the Medical Malpractice of Physicians?, 27 ST. MARY'S L.J. 23, 34 (1995) ("[A]pparent agency liability should arise when a patient receives treatment in an HMO clinic and reasonably believes that the attending physician is an employee or agent of the facility. In addition, if the facility, rather than the patient, selects the physician, courts should find that an apparent agency relationship exits. Finally, courts should consider the billing method in applying the concept of apparent agency."); Mark G. Cooper, Comment, A "New" Approach to Medical Malpractice: The Liability of HMOs for Member Physician Negligence, 1994 DET. C.L. REV. 1263, 1288-90 (1994) (outlining factors that courts analyze when considering HMO liability under agency theories, including appearance conveyed to the enrollee by the HMO; indications that the HMO exercises a "significant" level of control over the member physician; HMO contract language indicating that all care must be "provided, arranged or authorized" by an HMO physician, which conveys that HMO is responsible for delivery of the care; and method by which HMO pays the physician, especially if it includes "capitation" disincentives for additional testing).
199. Apparent authority is defined as "the power to affect the legal relations of another person by transactions with third persons, professedly as agent for the other," and as resulting from "a manifestation by a person that another is his agent, the manifestation being made to a third person . . . ." RESTATEMENT (SECOND) OF AGENCY §8 (1958). Further, liability for the lack of skill or care of an apparent agent may be imposed on those who represent to others that the apparent agent is their servant or other agent, thereby causing justifiable reliance by a third person on the care or skill of that apparent agent. See id. §267. For courts' reasoning in imposing liability on HMOs based on these principles, see, for example, Petrovich v. Share Health Plan, 696 N.E.2d 356, 364 (Ill. App. Ct. 1998) (plaintiff was precluded from sufficient discovery of HMO defendant's "advertising materials" which would "go to the [ostensible agency] elements of 'holding out' and justifiable reliance," and thus grant of summary judgment in favor of defendant HMO was "premature"). See also Decker v. Saini, No. 88-361768, 1991 WL 277590, at *3 (Mich. Cir. Ct. Sept. 17, 1991) ((i) refusing to grant summary judgment to defendant HMO on ostensible agency claim; (ii) concluding that plaintiff had provided sufficient evidence of HMO holding itself out as health care provider, of plaintiff's reliance on that representation, and of plaintiff's reasonable belief that doctor who failed to timely diagnose a tumor resulting in partial arm amputation was acting as agent of the HMO; and (iii) noting that "lack of precedent does not preclude [the court] from imposing liability on [an HMO] under a theory of ostensible agency if the facts so warrant"); McClellan v. Health Maintenance Org., 604 A.2d 1053, 1058 (Pa. Super. Ct. 1992) (following Boyd and reinstating claim of liability against HMO based on ostensible agency theory where primary care physician who allegedly failed to timely diagnose a fatal melanoma was "held out as agent of [HMO]," and where the "[HMO] represented that their primary care physicians were carefully screened and fully qualified physicians who would render competent medical care to HMO members . . ."); Boyd v. Albert Einstein Med. Ctr., 547 A.2d 1229, 1235 (Pa. Super. Ct. 1988) (citing to RESTATEMENT (SECOND) OF AGENCY § 267 in reversing summary judgment of lower court that had refused to recognize liability of HMO based on "ostensible agency" theory and thus allowing trial to resolve material issue of fact as to liability based on agency theory). See also Jim M. Perdue & Stephen R. Baxley, Cutting Costs - Cutting Care: Can Texas Managed Health Care Systems and HMOs Be Liable for the Medical Malpractice of Physicians?, 27 ST. MARY'S L.J. 23, 34 (1995) ("[A]pparent agency liability should arise when a patient receives treatment in an HMO clinic and reasonably believes that the attending physician is an employee or agent of the facility. In addition, if the facility, rather than the patient, selects the physician, courts should find that an apparent agency relationship exits. Finally, courts should consider the billing method in applying the concept of apparent agency."); Mark G. Cooper, Comment, A "New" Approach to Medical Malpractice: The Liability of HMOs for Member Physician Negligence, 1994 DET. C.L. REV. 1263, 1288-90 (1994) (outlining factors that courts analyze when considering HMO liability under agency theories, including appearance conveyed to the enrollee by the HMO; indications that the HMO exercises a "significant" level of control over the member physician; HMO contract language indicating that all care must be "provided, arranged or authorized" by an HMO physician, which conveys that HMO is responsible for delivery of the care; and method by which HMO pays the physician, especially if it includes "capitation" disincentives for additional testing).
200. Apparent authority is defined as "the power to affect the legal relations of another person by transactions with third persons, professedly as agent for the other," and as resulting from "a manifestation by a person that another is his agent, the manifestation being made to a third person . . . ." RESTATEMENT (SECOND) OF AGENCY §8 (1958). Further, liability for the lack of skill or care of an apparent agent may be imposed on those who represent to others that the apparent agent is their servant or other agent, thereby causing justifiable reliance by a third person on the care or skill of that apparent agent. See id. §267. For courts' reasoning in imposing liability on HMOs based on these principles, see, for example, Petrovich v. Share Health Plan, 696 N.E.2d 356, 364 (Ill. App. Ct. 1998) (plaintiff was precluded from sufficient discovery of HMO defendant's "advertising materials" which would "go to the [ostensible agency] elements of 'holding out' and justifiable reliance," and thus grant of summary judgment in favor of defendant HMO was "premature"). See also Decker v. Saini, No. 88-361768, 1991 WL 277590, at *3 (Mich. Cir. Ct. Sept. 17, 1991) ((i) refusing to grant summary judgment to defendant HMO on ostensible agency claim; (ii) concluding that plaintiff had provided sufficient evidence of HMO holding itself out as health care provider, of plaintiff's reliance on that representation, and of plaintiff's reasonable belief that doctor who failed to timely diagnose a tumor resulting in partial arm amputation was acting as agent of the HMO; and (iii) noting that "lack of precedent does not preclude [the court] from imposing liability on [an HMO] under a theory of ostensible agency if the facts so warrant"); McClellan v. Health Maintenance Org., 604 A.2d 1053, 1058 (Pa. Super. Ct. 1992) (following Boyd and reinstating claim of liability against HMO based on ostensible agency theory where primary care physician who allegedly failed to timely diagnose a fatal melanoma was "held out as agent of [HMO]," and where the "[HMO] represented that their primary care physicians were carefully screened and fully qualified physicians who would render competent medical care to HMO members . . ."); Boyd v. Albert Einstein Med. Ctr., 547 A.2d 1229, 1235 (Pa. Super. Ct. 1988) (citing to RESTATEMENT (SECOND) OF AGENCY § 267 in reversing summary judgment of lower court that had refused to recognize liability of HMO based on "ostensible agency" theory and thus allowing trial to resolve material issue of fact as to liability based on agency theory). See also Jim M. Perdue & Stephen R. Baxley, Cutting Costs - Cutting Care: Can Texas Managed Health Care Systems and HMOs Be Liable for the Medical Malpractice of Physicians?, 27 ST. MARY'S L.J. 23, 34 (1995) ("[A]pparent agency liability should arise when a patient receives treatment in an HMO clinic and reasonably believes that the attending physician is an employee or agent of the facility. In addition, if the facility, rather than the patient, selects the physician, courts should find that an apparent agency relationship exits. Finally, courts should consider the billing method in applying the concept of apparent agency."); Mark G. Cooper, Comment, A "New" Approach to Medical Malpractice: The Liability of HMOs for Member Physician Negligence, 1994 DET. C.L. REV. 1263, 1288-90 (1994) (outlining factors that courts analyze when considering HMO liability under agency theories, including appearance conveyed to the enrollee by the HMO; indications that the HMO exercises a "significant" level of control over the member physician; HMO contract language indicating that all care must be "provided, arranged or authorized" by an HMO physician, which conveys that HMO is responsible for delivery of the care; and method by which HMO pays the physician, especially if it includes "capitation" disincentives for additional testing).
201. See, e.g., Pomeroy v. Johns Hopkins Med. Servs., 868 F. Supp. 110, 116 (D. Md. 1994) (holding claims against HMO, including one based on "ostensible agency," preempted by ERISA and recognizing that such holding leaves plaintiff with no claim against defendant and possibly without any adequate remedy at all); Raglin v. HMO Ill., Inc., 595 N.E.2d 153, 155 (Ill. App. Ct. 1992) (affirming summary judgment in favor of HMO defendant in claim based on apparent authority by finding that HMO did not hold itself out as exerting control over its physicians in a manner that would lead a third person to conclude that physicians were employees of HMO, and that there was no evidence plaintiff relied on HMO's representation in selecting physician just because plaintiff was required to, and did, choose from list of physicians); Gugino v. Harvard Community Health Plan, 403 N.E.2d 1166 (Mass. 1980); Chase v. Independent Practice Ass'n, 583 N.E.2d 251, 255 (Mass. App. Ct. 1991) (holding plaintiff's statement that she was not made aware that her doctors were not employees of the HMO was insufficient to support her claim of ostensible agency because plaintiff failed to establish that she believed doctors were employees of the HMO); Williams v. Good Health Plus, Inc.-Health Amer. Corp., 743 S.W.2d 373, 378-79 (Tex. Ct. App. 1987) (granting HMO's motion for summary judgment on claim of ostensible agency, saying that HMO exercised no right of control over physicians that treated plaintiff). See also Dominick C. DiCicco, Jr., HMO Liability for the Medical Negligence of Member Physicians, 43 VILL. L. REV. 499, 511-13 (1998) (noting Williams as the first case in which a court considered imposing liability on an HMO for malpractice under ostensible agency theory).
202. See, e.g., Pomeroy v. Johns Hopkins Med. Servs., 868 F. Supp. 110, 116 (D. Md. 1994) (holding claims against HMO, including one based on "ostensible agency," preempted by ERISA and recognizing that such holding leaves plaintiff with no claim against defendant and possibly without any adequate remedy at all); Raglin v. HMO Ill., Inc., 595 N.E.2d 153, 155 (Ill. App. Ct. 1992) (affirming summary judgment in favor of HMO defendant in claim based on apparent authority by finding that HMO did not hold itself out as exerting control over its physicians in a manner that would lead a third person to conclude that physicians were employees of HMO, and that there was no evidence plaintiff relied on HMO's representation in selecting physician just because plaintiff was required to, and did, choose from list of physicians); Gugino v. Harvard Community Health Plan, 403 N.E.2d 1166 (Mass. 1980); Chase v. Independent Practice Ass'n, 583 N.E.2d 251, 255 (Mass. App. Ct. 1991) (holding plaintiff's statement that she was not made aware that her doctors were not employees of the HMO was insufficient to support her claim of ostensible agency because plaintiff failed to establish that she believed doctors were employees of the HMO); Williams v. Good Health Plus, Inc.-Health Amer. Corp., 743 S.W.2d 373, 378-79 (Tex. Ct. App. 1987) (granting HMO's motion for summary judgment on claim of ostensible agency, saying that HMO exercised no right of control over physicians that treated plaintiff). See also Dominick C. DiCicco, Jr., HMO Liability for the Medical Negligence of Member Physicians, 43 VILL. L. REV. 499, 511-13 (1998) (noting Williams as the first case in which a court considered imposing liability on an HMO for malpractice under ostensible agency theory).
203. See, e.g., Pomeroy v. Johns Hopkins Med. Servs., 868 F. Supp. 110, 116 (D. Md. 1994) (holding claims against HMO, including one based on "ostensible agency," preempted by ERISA and recognizing that such holding leaves plaintiff with no claim against defendant and possibly without any adequate remedy at all); Raglin v. HMO Ill., Inc., 595 N.E.2d 153, 155 (Ill. App. Ct. 1992) (affirming summary judgment in favor of HMO defendant in claim based on apparent authority by finding that HMO did not hold itself out as exerting control over its physicians in a manner that would lead a third person to conclude that physicians were employees of HMO, and that there was no evidence plaintiff relied on HMO's representation in selecting physician just because plaintiff was required to, and did, choose from list of physicians); Gugino v. Harvard Community Health Plan, 403 N.E.2d 1166 (Mass. 1980); Chase v. Independent Practice Ass'n, 583 N.E.2d 251, 255 (Mass. App. Ct. 1991) (holding plaintiff's statement that she was not made aware that her doctors were not employees of the HMO was insufficient to support her claim of ostensible agency because plaintiff failed to establish that she believed doctors were employees of the HMO); Williams v. Good Health Plus, Inc.-Health Amer. Corp., 743 S.W.2d 373, 378-79 (Tex. Ct. App. 1987) (granting HMO's motion for summary judgment on claim of ostensible agency, saying that HMO exercised no right of control over physicians that treated plaintiff). See also Dominick C. DiCicco, Jr., HMO Liability for the Medical Negligence of Member Physicians, 43 VILL. L. REV. 499, 511-13 (1998) (noting Williams as the first case in which a court considered imposing liability on an HMO for malpractice under ostensible agency theory).
204. See, e.g., Pomeroy v. Johns Hopkins Med. Servs., 868 F. Supp. 110, 116 (D. Md. 1994) (holding claims against HMO, including one based on "ostensible agency," preempted by ERISA and recognizing that such holding leaves plaintiff with no claim against defendant and possibly without any adequate remedy at all); Raglin v. HMO Ill., Inc., 595 N.E.2d 153, 155 (Ill. App. Ct. 1992) (affirming summary judgment in favor of HMO defendant in claim based on apparent authority by finding that HMO did not hold itself out as exerting control over its physicians in a manner that would lead a third person to conclude that physicians were employees of HMO, and that there was no evidence plaintiff relied on HMO's representation in selecting physician just because plaintiff was required to, and did, choose from list of physicians); Gugino v. Harvard Community Health Plan, 403 N.E.2d 1166 (Mass. 1980); Chase v. Independent Practice Ass'n, 583 N.E.2d 251, 255 (Mass. App. Ct. 1991) (holding plaintiff's statement that she was not made aware that her doctors were not employees of the HMO was insufficient to support her claim of ostensible agency because plaintiff failed to establish that she believed doctors were employees of the HMO); Williams v. Good Health Plus, Inc.-Health Amer. Corp., 743 S.W.2d 373, 378-79 (Tex. Ct. App. 1987) (granting HMO's motion for summary judgment on claim of ostensible agency, saying that HMO exercised no right of control over physicians that treated plaintiff). See also Dominick C. DiCicco, Jr., HMO Liability for the Medical Negligence of Member Physicians, 43 VILL. L. REV. 499, 511-13 (1998) (noting Williams as the first case in which a court considered imposing liability on an HMO for malpractice under ostensible agency theory).
205. See, e.g., Pomeroy v. Johns Hopkins Med. Servs., 868 F. Supp. 110, 116 (D. Md. 1994) (holding claims against HMO, including one based on "ostensible agency," preempted by ERISA and recognizing that such holding leaves plaintiff with no claim against defendant and possibly without any adequate remedy at all); Raglin v. HMO Ill., Inc., 595 N.E.2d 153, 155 (Ill. App. Ct. 1992) (affirming summary judgment in favor of HMO defendant in claim based on apparent authority by finding that HMO did not hold itself out as exerting control over its physicians in a manner that would lead a third person to conclude that physicians were employees of HMO, and that there was no evidence plaintiff relied on HMO's representation in selecting physician just because plaintiff was required to, and did, choose from list of physicians); Gugino v. Harvard Community Health Plan, 403 N.E.2d 1166 (Mass. 1980); Chase v. Independent Practice Ass'n, 583 N.E.2d 251, 255 (Mass. App. Ct. 1991) (holding plaintiff's statement that she was not made aware that her doctors were not employees of the HMO was insufficient to support her claim of ostensible agency because plaintiff failed to establish that she believed doctors were employees of the HMO); Williams v. Good Health Plus, Inc.-Health Amer. Corp., 743 S.W.2d 373, 378-79 (Tex. Ct. App. 1987) (granting HMO's motion for summary judgment on claim of ostensible agency, saying that HMO exercised no right of control over physicians that treated plaintiff). See also Dominick C. DiCicco, Jr., HMO Liability for the Medical Negligence of Member Physicians, 43 VILL. L. REV. 499, 511-13 (1998) (noting Williams as the first case in which a court considered imposing liability on an HMO for malpractice under ostensible agency theory).
206. See, e.g., Pomeroy v. Johns Hopkins Med. Servs., 868 F. Supp. 110, 116 (D. Md. 1994) (holding claims against HMO, including one based on "ostensible agency," preempted by ERISA and recognizing that such holding leaves plaintiff with no claim against defendant and possibly without any adequate remedy at all); Raglin v. HMO Ill., Inc., 595 N.E.2d 153, 155 (Ill. App. Ct. 1992) (affirming summary judgment in favor of HMO defendant in claim based on apparent authority by finding that HMO did not hold itself out as exerting control over its physicians in a manner that would lead a third person to conclude that physicians were employees of HMO, and that there was no evidence plaintiff relied on HMO's representation in selecting physician just because plaintiff was required to, and did, choose from list of physicians); Gugino v. Harvard Community Health Plan, 403 N.E.2d 1166 (Mass. 1980); Chase v. Independent Practice Ass'n, 583 N.E.2d 251, 255 (Mass. App. Ct. 1991) (holding plaintiff's statement that she was not made aware that her doctors were not employees of the HMO was insufficient to support her claim of ostensible agency because plaintiff failed to establish that she believed doctors were employees of the HMO); Williams v. Good Health Plus, Inc.-Health Amer. Corp., 743 S.W.2d 373, 378-79 (Tex. Ct. App. 1987) (granting HMO's motion for summary judgment on claim of ostensible agency, saying that HMO exercised no right of control over physicians that treated plaintiff). See also Dominick C. DiCicco, Jr., HMO Liability for the Medical Negligence of Member Physicians, 43 VILL. L. REV. 499, 511-13 (1998) (noting Williams as the first case in which a court considered imposing liability on an HMO for malpractice under ostensible agency theory).
207. The vast disparity of knowledge between the MCO and its member may suffice to create a duty to disclose comparative provider information. See MARSHALL S. SHAPO, THE DUTY TO ACT: TORT LAW, POWER & PUBLIC POLICY 3, 4, 13, 154 (1977) (establishing legal imposition of duty to act as arising generally out of relationships where one party has power over the other and the "power holder already has done something in a way that engenders reliance on the part of the injured party or has created a generalized sense of security with reference to the [injured party's] physical integrity," and arguing that duties arise specifically from medical relations because power is leveraged against the patient "owing to his ignorance of medical knowledge generally and how it applies to the facts that have been developed in his particular case"). In other areas of the law, disparity of knowledge often serves as a sufficient predicate to disclose information. See, e.g., Miles v. McSwegin, 388 N.E.2d 1367, 1370 (Ohio 1979) (finding real estate broker had duty to disclose known termite damage despite lack of "special relationship between vendor's agent and vendee . . ."); Quashnock v. Frost, 299 Pa. Super. 9, 23 (1982); Obde v. Schlemeyer, 353 P.2d 672, 674-75 (Wash. 1960) (holding home vendors had duty to speak where termite-infested house was "dangerous to property, health, or life of the tenant, which defects are known to the landlord when the lease is made, but unknown to the tenant, and which a careful examination on his part would not disclose . . .") (quoting Perkins v. Marsh, 37 P.2d 689, 690 (1934)). Similarly, securities dealers have a duty to disclose information because of their superior access to information. See, e.g., Keenan v. D.H. Blair & Co., 838 F. Supp. 82, 89 (S.D.N.Y. 1993) ("a securities dealer must have an adequate and reasonable basis in order to recommend a security, and must disclose facts of which he has knowledge or that are easily ascertainable" (citing Hanly v. Securities & Exch. Comm'n, 415 F.2d 589, 597(2d Cir. 1969))).
208. The vast disparity of knowledge between the MCO and its member may suffice to create a duty to disclose comparative provider information. See MARSHALL S. SHAPO, THE DUTY TO ACT: TORT LAW, POWER & PUBLIC POLICY 3, 4, 13, 154 (1977) (establishing legal imposition of duty to act as arising generally out of relationships where one party has power over the other and the "power holder already has done something in a way that engenders reliance on the part of the injured party or has created a generalized sense of security with reference to the [injured party's] physical integrity," and arguing that duties arise specifically from medical relations because power is leveraged against the patient "owing to his ignorance of medical knowledge generally and how it applies to the facts that have been developed in his particular case"). In other areas of the law, disparity of knowledge often serves as a sufficient predicate to disclose information. See, e.g., Miles v. McSwegin, 388 N.E.2d 1367, 1370 (Ohio 1979) (finding real estate broker had duty to disclose known termite damage despite lack of "special relationship between vendor's agent and vendee . . ."); Quashnock v. Frost, 299 Pa. Super. 9, 23 (1982); Obde v. Schlemeyer, 353 P.2d 672, 674-75 (Wash. 1960) (holding home vendors had duty to speak where termite-infested house was "dangerous to property, health, or life of the tenant, which defects are known to the landlord when the lease is made, but unknown to the tenant, and which a careful examination on his part would not disclose . . .") (quoting Perkins v. Marsh, 37 P.2d 689, 690 (1934)). Similarly, securities dealers have a duty to disclose information because of their superior access to information. See, e.g., Keenan v. D.H. Blair & Co., 838 F. Supp. 82, 89 (S.D.N.Y. 1993) ("a securities dealer must have an adequate and reasonable basis in order to recommend a security, and must disclose facts of which he has knowledge or that are easily ascertainable" (citing Hanly v. Securities & Exch. Comm'n, 415 F.2d 589, 597(2d Cir. 1969))).
209. The vast disparity of knowledge between the MCO and its member may suffice to create a duty to disclose comparative provider information. See MARSHALL S. SHAPO, THE DUTY TO ACT: TORT LAW, POWER & PUBLIC POLICY 3, 4, 13, 154 (1977) (establishing legal imposition of duty to act as arising generally out of relationships where one party has power over the other and the "power holder already has done something in a way that engenders reliance on the part of the injured party or has created a generalized sense of security with reference to the [injured party's] physical integrity," and arguing that duties arise specifically from medical relations because power is leveraged against the patient "owing to his ignorance of medical knowledge generally and how it applies to the facts that have been developed in his particular case"). In other areas of the law, disparity of knowledge often serves as a sufficient predicate to disclose information. See, e.g., Miles v. McSwegin, 388 N.E.2d 1367, 1370 (Ohio 1979) (finding real estate broker had duty to disclose known termite damage despite lack of "special relationship between vendor's agent and vendee . . ."); Quashnock v. Frost, 299 Pa. Super. 9, 23 (1982); Obde v. Schlemeyer, 353 P.2d 672, 674-75 (Wash. 1960) (holding home vendors had duty to speak where termite-infested house was "dangerous to property, health, or life of the tenant, which defects are known to the landlord when the lease is made, but unknown to the tenant, and which a careful examination on his part would not disclose . . .") (quoting Perkins v. Marsh, 37 P.2d 689, 690 (1934)). Similarly, securities dealers have a duty to disclose information because of their superior access to information. See, e.g., Keenan v. D.H. Blair & Co., 838 F. Supp. 82, 89 (S.D.N.Y. 1993) ("a securities dealer must have an adequate and reasonable basis in order to recommend a security, and must disclose facts of which he has knowledge or that are easily ascertainable" (citing Hanly v. Securities & Exch. Comm'n, 415 F.2d 589, 597(2d Cir. 1969))).
210. The vast disparity of knowledge between the MCO and its member may suffice to create a duty to disclose comparative provider information. See MARSHALL S. SHAPO, THE DUTY TO ACT: TORT LAW, POWER & PUBLIC POLICY 3, 4, 13, 154 (1977) (establishing legal imposition of duty to act as arising generally out of relationships where one party has power over the other and the "power holder already has done something in a way that engenders reliance on the part of the injured party or has created a generalized sense of security with reference to the [injured party's] physical integrity," and arguing that duties arise specifically from medical relations because power is leveraged against the patient "owing to his ignorance of medical knowledge generally and how it applies to the facts that have been developed in his particular case"). In other areas of the law, disparity of knowledge often serves as a sufficient predicate to disclose information. See, e.g., Miles v. McSwegin, 388 N.E.2d 1367, 1370 (Ohio 1979) (finding real estate broker had duty to disclose known termite damage despite lack of "special relationship between vendor's agent and vendee . . ."); Quashnock v. Frost, 299 Pa. Super. 9, 23 (1982); Obde v. Schlemeyer, 353 P.2d 672, 674-75 (Wash. 1960) (holding home vendors had duty to speak where termite-infested house was "dangerous to property, health, or life of the tenant, which defects are known to the landlord when the lease is made, but unknown to the tenant, and which a careful examination on his part would not disclose . . .") (quoting Perkins v. Marsh, 37 P.2d 689, 690 (1934)). Similarly, securities dealers have a duty to disclose information because of their superior access to information. See, e.g., Keenan v. D.H. Blair & Co., 838 F. Supp. 82, 89 (S.D.N.Y. 1993) ("a securities dealer must have an adequate and reasonable basis in order to recommend a security, and must disclose facts of which he has knowledge or that are easily ascertainable" (citing Hanly v. Securities & Exch. Comm'n, 415 F.2d 589, 597(2d Cir. 1969))).
211. The vast disparity of knowledge between the MCO and its member may suffice to create a duty to disclose comparative provider information. See MARSHALL S. SHAPO, THE DUTY TO ACT: TORT LAW, POWER & PUBLIC POLICY 3, 4, 13, 154 (1977) (establishing legal imposition of duty to act as arising generally out of relationships where one party has power over the other and the "power holder already has done something in a way that engenders reliance on the part of the injured party or has created a generalized sense of security with reference to the [injured party's] physical integrity," and arguing that duties arise specifically from medical relations because power is leveraged against the patient "owing to his ignorance of medical knowledge generally and how it applies to the facts that have been developed in his particular case"). In other areas of the law, disparity of knowledge often serves as a sufficient predicate to disclose information. See, e.g., Miles v. McSwegin, 388 N.E.2d 1367, 1370 (Ohio 1979) (finding real estate broker had duty to disclose known termite damage despite lack of "special relationship between vendor's agent and vendee . . ."); Quashnock v. Frost, 299 Pa. Super. 9, 23 (1982); Obde v. Schlemeyer, 353 P.2d 672, 674-75 (Wash. 1960) (holding home vendors had duty to speak where termite-infested house was "dangerous to property, health, or life of the tenant, which defects are known to the landlord when the lease is made, but unknown to the tenant, and which a careful examination on his part would not disclose . . .") (quoting Perkins v. Marsh, 37 P.2d 689, 690 (1934)). Similarly, securities dealers have a duty to disclose information because of their superior access to information. See, e.g., Keenan v. D.H. Blair & Co., 838 F. Supp. 82, 89 (S.D.N.Y. 1993) ("a securities dealer must have an adequate and reasonable basis in order to recommend a security, and must disclose facts of which he has knowledge or that are easily ascertainable" (citing Hanly v. Securities & Exch. Comm'n, 415 F.2d 589, 597(2d Cir. 1969))).
212. The vast disparity of knowledge between the MCO and its member may suffice to create a duty to disclose comparative provider information. See MARSHALL S. SHAPO, THE DUTY TO ACT: TORT LAW, POWER & PUBLIC POLICY 3, 4, 13, 154 (1977) (establishing legal imposition of duty to act as arising generally out of relationships where one party has power over the other and the "power holder already has done something in a way that engenders reliance on the part of the injured party or has created a generalized sense of security with reference to the [injured party's] physical integrity," and arguing that duties arise specifically from medical relations because power is leveraged against the patient "owing to his ignorance of medical knowledge generally and how it applies to the facts that have been developed in his particular case"). In other areas of the law, disparity of knowledge often serves as a sufficient predicate to disclose information. See, e.g., Miles v. McSwegin, 388 N.E.2d 1367, 1370 (Ohio 1979) (finding real estate broker had duty to disclose known termite damage despite lack of "special relationship between vendor's agent and vendee . . ."); Quashnock v. Frost, 299 Pa. Super. 9, 23 (1982); Obde v. Schlemeyer, 353 P.2d 672, 674-75 (Wash. 1960) (holding home vendors had duty to speak where termite-infested house was "dangerous to property, health, or life of the tenant, which defects are known to the landlord when the lease is made, but unknown to the tenant, and which a careful examination on his part would not disclose . . .") (quoting Perkins v. Marsh, 37 P.2d 689, 690 (1934)). Similarly, securities dealers have a duty to disclose information because of their superior access to information. See, e.g., Keenan v. D.H. Blair & Co., 838 F. Supp. 82, 89 (S.D.N.Y. 1993) ("a securities dealer must have an adequate and reasonable basis in order to recommend a security, and must disclose facts of which he has knowledge or that are easily ascertainable" (citing Hanly v. Securities & Exch. Comm'n, 415 F.2d 589, 597(2d Cir. 1969))).
213. The vast disparity of knowledge between the MCO and its member may suffice to create a duty to disclose comparative provider information. See MARSHALL S. SHAPO, THE DUTY TO ACT: TORT LAW, POWER & PUBLIC POLICY 3, 4, 13, 154 (1977) (establishing legal imposition of duty to act as arising generally out of relationships where one party has power over the other and the "power holder already has done something in a way that engenders reliance on the part of the injured party or has created a generalized sense of security with reference to the [injured party's] physical integrity," and arguing that duties arise specifically from medical relations because power is leveraged against the patient "owing to his ignorance of medical knowledge generally and how it applies to the facts that have been developed in his particular case"). In other areas of the law, disparity of knowledge often serves as a sufficient predicate to disclose information. See, e.g., Miles v. McSwegin, 388 N.E.2d 1367, 1370 (Ohio 1979) (finding real estate broker had duty to disclose
214. Union Carbide Carbon Corp. v. Stapleton, 237 F.2d 229 (6th Cir. 1956) (employer that had its medical staff take x-ray of employee for employment purposes had a duty to reveal diagnosis of tuberculosis to employee); Coffee v. McDonnell-Douglas Corp., 503 P.2d 1366 (Cal. 1972) (employer who subjected pilot to pre-employment blood test had a duty to disclose results showing disease); Dormak v. Lafayette Gen. Hosp., 399 So. 2d 168 (La. 1981) (hospital that subjected employee to pre-employment x-ray had duty to disclose evidence of tuberculosis); Wojcik v. Aluminum Co. of America, 183 N.Y.S.2d 351 (Sup. Ct. 1959) (employer who subjected employees to x-rays had a common law duty to disclose to employee finding of tuberculosis).
215. Stopleton, 237 F.2d at 232-33.
216. See Meinze v. Holmes, 532 N.E.2d 170, 173 (Ohio Ct. App. 1987) (insurer has a duty to disclose to patient material information discovered by insurer's medical examiner). Courts are more reluctant to impose a duty to disclose on life insurance companies who undertake routine health examinations prior to issuing a policy. See Hannah E. Greenwald, Note, What You Don't Know Could Save Your Life: A Case for Federal Insurance Disclosure Legislation, 102 DICK. L. REV. 131 (1997).
217. See Meinze v. Holmes, 532 N.E.2d 170, 173 (Ohio Ct. App. 1987) (insurer has a duty to disclose to patient material information discovered by insurer's medical examiner). Courts are more reluctant to impose a duty to disclose on life insurance companies who undertake routine health examinations prior to issuing a policy. See Hannah E. Greenwald, Note, What You Don't Know Could Save Your Life: A Case for Federal Insurance Disclosure Legislation, 102 DICK. L. REV. 131 (1997).
218. 107 F.3d 625 (8th Cir. 1997). Recently a court has gone beyond requiring that an HMO inform subscribers about possible conflicts in exercising their fiduciary responsibilities and has found that an HMO that both owned and administered a health insurance plan breached its fiduciary duty when the owner-physicians received a bonus from minimizing diagnostic tests and utilizing only their own hospital facilities. See Herdrich v. Pegram, 154 F.3d 362 (7th Cir. 1998), reh'g denied, 170 F.3d 683, cert. granted, No. 98-1949, 1999 WL 386669 (Sept. 28, 1999).
219. But see Weiss v. Cigna Healthcare, Inc., 972 F. Supp. 748, 755 (S.D.N.Y. 1997) ("ERISA imposes no affirmative obligation upon [an HMO] to inform plan participants about its financial arrangements with participating physicians . . . .").
220. 36 F.3d 746 (1994), aff'd 515 U.S. 1186 (1995). See also Mertens v. Hewitt Assocs., 508 U.S. 248, 262 (1993) ("ERISA, however, defines 'fiduciary' not in terms of formal trusteeship, but in functional terms of control and authority over the plan . . . thus expanding the universe of persons subject to fiduciary duties . . . ."); Clifford A. Cantor, Fiduciary Liability in Emerging Health Care, 9 DEPAUL BUS. L.J. 189 (1997).
221. 36 F.3d 746 (1994), aff'd 515 U.S. 1186 (1995). See also Mertens v. Hewitt Assocs., 508 U.S. 248, 262 (1993) ("ERISA, however, defines 'fiduciary' not in terms of formal trusteeship, but in functional terms of control and authority over the plan . . . thus expanding the universe of persons subject to fiduciary duties . . . ."); Clifford A. Cantor, Fiduciary Liability in Emerging Health Care, 9 DEPAUL BUS. L.J. 189 (1997).
222. 36 F.3d 746 (1994), aff'd 515 U.S. 1186 (1995). See also Mertens v. Hewitt Assocs., 508 U.S. 248, 262 (1993) ("ERISA, however, defines 'fiduciary' not in terms of formal trusteeship, but in functional terms of control and authority over the plan . . . thus expanding the universe of persons subject to fiduciary duties . . . ."); Clifford A. Cantor, Fiduciary Liability in Emerging Health Care, 9 DEPAUL BUS. L.J. 189 (1997).
223. See Shea, 107 F.3d at 628 (quoting Howe, 36 F.3d at 754).
224. Whether such a duty exists is beyond the scope of this Article.
225. 29 U.S.C. § 1132 (1988). See Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 66-67 (1987).
226. 29 U.S.C. § 1144(a) (1988) (emphasis added).
227. See Robert Pear, Hands Tied, Judges Rue Law That Limits H.M.O. Liability, N.Y. TIMES, July 11, 1998, at A1.
228. 29 U.S.C. § 1132(e)(1) (1988). See also Metropolitan Life, 481 U.S. at 66-67 (removal is automatic notwithstanding the well-pleaded complaint rule because, ostensibly, the claim was to recover benefits due, to enforce rights, or to clarify future benefits.).
229. See infra notes 102-03 and accompanying text.
230. 57 F.3d 350 (3d Cir. 1995).
231. Id. at 357-58. Accord Crum v. Health Alliance-Midwest, Inc., 47 F. Supp. 2d 1013 (C.D. Ill. 1999) (claim based on nurse's misdiagnosis of heart attack over telephone not preempted); Moscovitch v. Danbury Hosp., 25 F. Supp.2d 74 (D. Conn. 1998) (claim based on suicide of transferred psychiatric patient not preempted).
232. Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 97 (1983). See also New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 656 (1995) (upholding the definition of "relates to" applied by the Delta court while simultaneously dismissing that language as "unhelpful"). For an extensive discussion of the preemption doctrine see Peter D. Jacobson & Scott D. Pomfret, Form, Function, and Managed Care Torts: Achieving Fairness and Equity in ERISA Jurisprudence, 35 HOUS. L. REV. 985 (1998). See also Larry J. Pitman, ERISA's Preemption Clause and the Health Care Industry: An Abdication of Judicial Law-Creating Authority, 46 FLA. L. REV. 355 (1994).
233. Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 97 (1983). See also New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 656 (1995) (upholding the definition of "relates to" applied by the Delta court while simultaneously dismissing that language as "unhelpful"). For an extensive discussion of the preemption doctrine see Peter D. Jacobson & Scott D. Pomfret, Form, Function, and Managed Care Torts: Achieving Fairness and Equity in ERISA Jurisprudence, 35 HOUS. L. REV. 985 (1998). See also Larry J. Pitman, ERISA's Preemption Clause and the Health Care Industry: An Abdication of Judicial Law-Creating Authority, 46 FLA. L. REV. 355 (1994).
234. Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 97 (1983). See also New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 656 (1995) (upholding the definition of "relates to" applied by the Delta court while simultaneously dismissing that language as "unhelpful"). For an extensive discussion of the preemption doctrine see Peter D. Jacobson & Scott D. Pomfret, Form, Function, and Managed Care Torts: Achieving Fairness and Equity in ERISA Jurisprudence, 35 HOUS. L. REV. 985 (1998). See also Larry J. Pitman, ERISA's Preemption Clause and the Health Care Industry: An Abdication of Judicial Law-Creating Authority, 46 FLA. L. REV. 355 (1994).
235. Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 97 (1983). See also New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 656 (1995) (upholding the definition of "relates to" applied by the Delta court while simultaneously dismissing that language as "unhelpful"). For an extensive discussion of the preemption doctrine see Peter D. Jacobson & Scott D. Pomfret, Form, Function, and Managed Care Torts: Achieving Fairness and Equity in ERISA Jurisprudence, 35 HOUS. L. REV. 985 (1998). See also Larry J. Pitman, ERISA's Preemption Clause and the Health Care Industry: An Abdication of Judicial Law-Creating Authority, 46 FLA. L. REV. 355 (1994).
236. 514 U.S. 645 (1995).
237. See id. at 660-61. See also DeBuono v. NYSA-ILP Med. and Clinical Servs. Inc., 520 U.S. 806 (1997) (holding that state gross receipts of health care facilities operated in field generally regulated by the states and was not preempted by ERISA). Accord Pappas v. Asbel, 724 A.2d 889, 893 (Pa. 1999) (relying on the "Travelers line of cases" and holding negligence claim based on quadriplegia caused by delay in hospital transfer for treatment not preempted, because decision to delay treatment involved "provision of safe medical care").
238. See Pacificare of Okla., Inc. v. Burrage, 59 F.3d 151, 153 n.2 (10th Cir. 1995).
239. See id. at 155 (holding that malpractice claim against HMO that held out a doctor as its agent "does not involve the administration of benefits or the level or quality of benefits promised by the plan" but only negligent medical care, and thus the claim was not preempted); Dukes v. U.S. Healthcare, 57 F.3d 350, 360 (3d Cir. 1995) (drawing distinction between "utilization review" and role of HMO in "arranging for medical treatment."); Rice v. Panchal, 65 F.3d 637, 646 (7th Cir. 1995) (holding that a claim by a plan participant who sought damages for medical malpractice because he became handicapped after treatment by the preferred provider of a PPO and an out-of-network referral physician was not a claim "to enforce his rights under the terms of a plan that is within the scope of ERISA," and thus the claim was not completely preempted under the civil enforcement provision). See also Nealy v. United States Healthcare HMO, 711 N.E.2d 621 (N.Y. 1999). In that case, plaintiff's husband, who had a history of heart problems, had consulted a primary care physician, Dr. Yung, under the U.S. Healthcare HMO and asked for referral to an out-of-network cardiologist because he was suffering from renewed chest pain. Dr. Yung delayed ten days in completing the necessary form. Further time passed and U.S. Healthcare declined referral to an out-of-network cardiologist. By the time arrangements were made to see an innetwork cardiologist, the patient suffered a severe heart attack and died. Plaintiff brought an action against U.S. Healthcare and Dr. Yung. The action against U.S. Healthcare was removed to federal court and dismissed on the ground that it was preempted by ERISA. See Nealy v. United States Healthcare HMO, 844 F. Supp. 966 (S.D.N.Y. 1994). Dr. Yung, who had not been served with a summons and complaint, did not take part in the removal motion. The federal court remanded the case against him to the New York State Supreme Court, stating that ERISA did not cut off malpractice claims against the treating physician. The New York Court of Appeals rejected Dr. Yung's argument that his function in failing to submit referral forms on a timely basis was an administrative function to be performed by a physician under the plan and was thus barred under ERISA. The court found that the claim was one of malpractice in failing to take timely action to treat the patient and was thus too peripheral to the benefit plan to "relate to" the plan within the meaning of ERISA. Id. at 975.
240. A Senate bill introduced last year aimed at amending ERISA to allow medical malpractice actions, S. 1136, noted "there is a split among the United States Courts of Appeals on whether ERISA pre-empts medical malpractice suits against employer-sponsored health insurers," S. 1136, 105th Cong. (1997). See also William E. Milks, Annotation, Liability of Health Maintenance Organizations (HMOs) for Negligence of Member Physicians, 51 A.L.R. 5th 271 (1997); Corey J. Ayling, New Developments in ERISA Preemption and Judicial Oversight of Managed Care, 31 CREIGHTON L. REV. 403, 415-20 (1998).
241. A Senate bill introduced last year aimed at amending ERISA to allow medical malpractice actions, S. 1136, noted "there is a split among the United States Courts of Appeals on whether ERISA pre-empts medical malpractice suits against employer-sponsored health insurers," S. 1136, 105th Cong. (1997). See also William E. Milks, Annotation, Liability of Health Maintenance Organizations (HMOs) for Negligence of Member Physicians, 51 A.L.R. 5th 271 (1997); Corey J. Ayling, New Developments in ERISA Preemption and Judicial Oversight of Managed Care, 31 CREIGHTON L. REV. 403, 415-20 (1998).
242. In 1990, Dr. David Axelrod, the New York State Commissioner of Health, met with the authors of this Article to discuss his plan to make available to the public risk-adjusted mortality rates for open heart surgery. In that meeting, Dr. Axelrod expressed the views set forth herein. Regrettably, shortly after the release of the statistics to the public, Dr. Axelrod suffered a serious stroke and was totally incapacitated until his death several years later. The ineffectiveness of peer review is much discussed in the literature. See, e.g., Mark R. Chassin, Improving the Quality of Care (Quality of Health Care): Part 3, 335 NEW ENG. J. MED. 1060 (1996) (reporting that physicians "may be forgiven if they are dubious" of a recent call by the HCFA and the JCAHO for "a more cooperative effort to enhance quality" because physicians have "heard it before," "in the 1970s, [when] peer review was supposed to improve the quality of care," and in the 1980s with "quality assurance," both of which left only a legacy of "punitive, sometimes humiliating sanctions" that "make physicians' practicing lives difficult" but "rarely" deal with issues regarded as "important for patient care"); Henry A. Waxman, Medical Malpractice and Quality of Care, 316 NEW ENG. J. MED. 943, 944 (1987) ("Challenges to the value of peer review [are] based on evidence that it has often served the self-interest of physicians or a hospital rather than the public interest. Witnesses at congressional hearings described as common the practice of giving physicians known to be incompetent an assurance of silence, or even a positive recommendation, in exchange for their resigning from the hospital or moving out of town.").
243. In 1990, Dr. David Axelrod, the New York State Commissioner of Health, met with the authors of this Article to discuss his plan to make available to the public risk-adjusted mortality rates for open heart surgery. In that meeting, Dr. Axelrod expressed the views set forth herein. Regrettably, shortly after the release of the statistics to the public, Dr. Axelrod suffered a serious stroke and was totally incapacitated until his death several years later. The ineffectiveness of peer review is much discussed in the literature. See, e.g., Mark R. Chassin, Improving the Quality of Care (Quality of Health Care): Part 3, 335 NEW ENG. J. MED. 1060 (1996) (reporting that physicians "may be forgiven if they are dubious" of a recent call by the HCFA and the JCAHO for "a more cooperative effort to enhance quality" because physicians have "heard it before," "in the 1970s, [when] peer review was supposed to improve the quality of care," and in the 1980s with "quality assurance," both of which left only a legacy of "punitive, sometimes humiliating sanctions" that "make physicians' practicing lives difficult" but "rarely" deal with issues regarded as "important for patient care"); Henry A. Waxman, Medical Malpractice and Quality of Care, 316 NEW ENG. J. MED. 943, 944 (1987) ("Challenges to the value of peer review [are] based on evidence that it has often served the self-interest of physicians or a hospital rather than the public interest. Witnesses at congressional hearings described as common the practice of giving physicians known to be incompetent an assurance of silence, or even a positive recommendation, in exchange for their resigning from the hospital or moving out of town.").
244. The Democratic minority bill, H.R. 3605, and its companion Senate bill, S. 1890, both entitled the "Patients' Bill of Rights Act of 1998," would amend Section 514 to allow state medical malpractice actions against MCOs. Both would also require MCOs to collect "uniform quality data" that include, among other things, data on quality indicators and health outcomes. H.R. 3605, 105th Cong. (1998); S. 1890, 105th Cong. (1998). Alternatively the House Republican leadership bill, H.R. 4250, as well as the companion Senate bill, which was placed on the Senate calendar on July 29, 1998, would not amend ERISA to allow state medical malpractice actions against MCOs. H.R. 4250 would allow for civil penalties of up to $500 per day for the denial of medical care, plus costs including attorney's fees, if an MCO receives an adverse judgment in federal court. These Republican proposals would also require that a report by the Institutes of Medicine be submitted to the Secretary of Health and Human Services, which would include, among other things, "recommendations for the disclosure of information on health care professionals, including the competencies and professional qualifications of such practitioners, to better facilitate patient choice, quality improvement, and market competition." H.R. 4250, 105th Cong. (1998); S. 4250, 105th Cong. (1998).
245. See Robert Pear, Eye on Polls, G.O.P. Offers a Patients Bill, N.Y. TIMES, July 16, 1998, at A1.
246. For a comprehensive discussion of the impact of the adoption of the authors' proposal, see Lynn M. LoPucki, Twerski and Cohen's Second Revolution: A Systems/Strategic Perspective, 94 NW. U. L. REV. 55 (1999).