Reconceptualizing Informed Consent in an Era of Health Care Cost Containment

Iowa Law Review

Volumn 85, Issue 1, 1999, Pages 261-385

  Krause, Joan H ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

ACCESS TO INFORMATION; ANALYTICAL APPROACH; ARTICLE; COST CONTROL; DOCTOR PATIENT RELATION; ECONOMICS; HEALTH CARE AND PUBLIC HEALTH; HEALTH INSURANCE; HUMAN; INFORMED CONSENT; INTERPERSONAL COMMUNICATION; LEGAL APPROACH; LEGAL ASPECT; PATIENT ADVOCACY; PENSION; PERSONNEL MANAGEMENT; STANDARD; UNITED STATES;

ANALYTICAL APPROACH; HEALTH CARE AND PUBLIC HEALTH; LEGAL APPROACH;

ACCESS TO INFORMATION; COST CONTROL; DISCLOSURE; EMPLOYEE RETIREMENT INCOME SECURITY ACT; HUMANS; INFORMED CONSENT; MANAGED CARE PROGRAMS; PATIENT ADVOCACY; PHYSICIAN INCENTIVE PLANS; PHYSICIAN-PATIENT RELATIONS; UNITED STATES;

EID: 0033275392     PISSN: 00210552     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (808)

1. Mark A. Hall, A Theory of Economic Informed Consent, 31 GA. L. REV. 511, 528 (1997) [hereinafter Hall, Informed Consent].
2. E. Haavi Morreim, Economic Disclosure and Economic Advocacy: New Duties in the Medical Standard of Care, 12 J. LEGAL MED. 275, 291 (1991) [hereinafter Morreim, Economic Disclosure and Economic Advocacy].
3. Schloendorff v. Society of N.Y. Hosp., 105 N.E. 92, 93 (N.Y. 1914). For general background on informed consent and medical decision making, see, for example, PAUL S. APPELBAUM, ET AL., INFORMED CONSENT: LEGAL THEORY AND CLINICAL PRACTICE (1987); JAMES F. CHILDRESS, WHO SHOULD DECIDE? PATERNALISM IN HEALTH CARE (1982); ARNOLD J. ROSOFF, INFORMED CONSENT: A GUIDE FOR HEALTH CARE PROVIDERS (1981).
4. Schloendorff v. Society of N.Y. Hosp., 105 N.E. 92, 93 (N.Y. 1914). For general background on informed consent and medical decision making, see, for example, PAUL S. APPELBAUM, ET AL., INFORMED CONSENT: LEGAL THEORY AND CLINICAL PRACTICE (1987); JAMES F. CHILDRESS, WHO SHOULD DECIDE? PATERNALISM IN HEALTH CARE (1982); ARNOLD J. ROSOFF, INFORMED CONSENT: A GUIDE FOR HEALTH CARE PROVIDERS (1981).
5. Schloendorff v. Society of N.Y. Hosp., 105 N.E. 92, 93 (N.Y. 1914). For general background on informed consent and medical decision making, see, for example, PAUL S. APPELBAUM, ET AL., INFORMED CONSENT: LEGAL THEORY AND CLINICAL PRACTICE (1987); JAMES F. CHILDRESS, WHO SHOULD DECIDE? PATERNALISM IN HEALTH CARE (1982); ARNOLD J. ROSOFF, INFORMED CONSENT: A GUIDE FOR HEALTH CARE PROVIDERS (1981).
6. Schloendorff v. Society of N.Y. Hosp., 105 N.E. 92, 93 (N.Y. 1914). For general background on informed consent and medical decision making, see, for example, PAUL S. APPELBAUM, ET AL., INFORMED CONSENT: LEGAL THEORY AND CLINICAL PRACTICE (1987); JAMES F. CHILDRESS, WHO SHOULD DECIDE? PATERNALISM IN HEALTH CARE (1982); ARNOLD J. ROSOFF, INFORMED CONSENT: A GUIDE FOR HEALTH CARE PROVIDERS (1981).
7. Unlike other commentators, this Author begins with the assumption that informed consent - as both a theoretical and practical concept - is worth saving. See, e.g., Richard A. Epstein, Medical Malpractice: The Case for Contract, 1 AM. B. FOUND. RES. J. 87, 125 (1976) (arguing that "[t]here is nothing of practical importance worth salvaging in the doctrine"); Peter H. Schuck, Rethinking Informed Consent, 103 YALE L.J. 899 (1994) (questioning the ongoing value of the doctrine in a cost-conscious health care system); Robert M. Veatch, Abandoning Informed Consent, HASTINGS CTR. REP., Mar. 1, 1995, at 5 (arguing that informed consent is merely a "transition concept" to a "more thoroughly revisionary conceptual framework").
8. Unlike other commentators, this Author begins with the assumption that informed consent - as both a theoretical and practical concept - is worth saving. See, e.g., Richard A. Epstein, Medical Malpractice: The Case for Contract, 1 AM. B. FOUND. RES. J. 87, 125 (1976) (arguing that "[t]here is nothing of practical importance worth salvaging in the doctrine"); Peter H. Schuck, Rethinking Informed Consent, 103 YALE L.J. 899 (1994) (questioning the ongoing value of the doctrine in a cost-conscious health care system); Robert M. Veatch, Abandoning Informed Consent, HASTINGS CTR. REP., Mar. 1, 1995, at 5 (arguing that informed consent is merely a "transition concept" to a "more thoroughly revisionary conceptual framework").
9. Unlike other commentators, this Author begins with the assumption that informed consent - as both a theoretical and practical concept - is worth saving. See, e.g., Richard A. Epstein, Medical Malpractice: The Case for Contract, 1 AM. B. FOUND. RES. J. 87, 125 (1976) (arguing that "[t]here is nothing of practical importance worth salvaging in the doctrine"); Peter H. Schuck, Rethinking Informed Consent, 103 YALE L.J. 899 (1994) (questioning the ongoing value of the doctrine in a cost-conscious health care system); Robert M. Veatch, Abandoning Informed Consent, HASTINGS CTR. REP., Mar. 1, 1995, at 5 (arguing that informed consent is merely a "transition concept" to a "more thoroughly revisionary conceptual framework").
10. See infra Part IV.A (discussing the elements required for an informed consent tort action).
11. See infra Part IV.B (noting how few cases have proceeded solely on the basis of physicians' failures to disclose alternative treatments).
12. See infra Part VI (examining different approaches to solving the problem of patient access to information).
13. See id. (noting the success of breast cancer informed consent statutes).
14. This section is intended only as a brief summary of the history of informed consent. For a more detailed discussion, see generally RUTH R. FADEN & TOM L. BEAUCHAMP, A HISTORY AND THEORY OF INFORMED CONSENT 53-150 (1986); Jeremy Sugarman et al., Empirical Research on Informed Consent: An Annotated Bibliography, HASTINGS CTR. REP., Jan.-Feb. 1999, at S1; Danuta Mendelson, Historical Evolution and Modern Implications of Concepts of Consent to, and Refusal of, Medical Treatment in the Law of Trespass, 17 J. LEGAL MED. 1 (1996); Anthony Szczygiel, Beyond Informed Consent, 21 OHIO N.U. L. REV. 171 (1994); Jay Katz, Informed Consent - A Fairy Tale? Law's Vision, 39 U. PITT. L. REV. 137 (1977) [hereinafter Katz, A Fairy Tale?].
15. This section is intended only as a brief summary of the history of informed consent. For a more detailed discussion, see generally RUTH R. FADEN & TOM L. BEAUCHAMP, A HISTORY AND THEORY OF INFORMED CONSENT 53-150 (1986); Jeremy Sugarman et al., Empirical Research on Informed Consent: An Annotated Bibliography, HASTINGS CTR. REP., Jan.-Feb. 1999, at S1; Danuta Mendelson, Historical Evolution and Modern Implications of Concepts of Consent to, and Refusal of, Medical Treatment in the Law of Trespass, 17 J. LEGAL MED. 1 (1996); Anthony Szczygiel, Beyond Informed Consent, 21 OHIO N.U. L. REV. 171 (1994); Jay Katz, Informed Consent - A Fairy Tale? Law's Vision, 39 U. PITT. L. REV. 137 (1977) [hereinafter Katz, A Fairy Tale?].
16. This section is intended only as a brief summary of the history of informed consent. For a more detailed discussion, see generally RUTH R. FADEN & TOM L. BEAUCHAMP, A HISTORY AND THEORY OF INFORMED CONSENT 53-150 (1986); Jeremy Sugarman et al., Empirical Research on Informed Consent: An Annotated Bibliography, HASTINGS CTR. REP., Jan.-Feb. 1999, at S1; Danuta Mendelson, Historical Evolution and Modern Implications of Concepts of Consent to, and Refusal of, Medical Treatment in the Law of Trespass, 17 J. LEGAL MED. 1 (1996); Anthony Szczygiel, Beyond Informed Consent, 21 OHIO N.U. L. REV. 171 (1994); Jay Katz, Informed Consent - A Fairy Tale? Law's Vision, 39 U. PITT. L. REV. 137 (1977) [hereinafter Katz, A Fairy Tale?].
17. This section is intended only as a brief summary of the history of informed consent. For a more detailed discussion, see generally RUTH R. FADEN & TOM L. BEAUCHAMP, A HISTORY AND THEORY OF INFORMED CONSENT 53-150 (1986); Jeremy Sugarman et al., Empirical Research on Informed Consent: An Annotated Bibliography, HASTINGS CTR. REP., Jan.-Feb. 1999, at S1; Danuta Mendelson, Historical Evolution and Modern Implications of Concepts of Consent to, and Refusal of, Medical Treatment in the Law of Trespass, 17 J. LEGAL MED. 1 (1996); Anthony Szczygiel, Beyond Informed Consent, 21 OHIO N.U. L. REV. 171 (1994); Jay Katz, Informed Consent - A Fairy Tale? Law's Vision, 39 U. PITT. L. REV. 137 (1977) [hereinafter Katz, A Fairy Tale?].
18. This section is intended only as a brief summary of the history of informed consent. For a more detailed discussion, see generally RUTH R. FADEN & TOM L. BEAUCHAMP, A HISTORY AND THEORY OF INFORMED CONSENT 53-150 (1986); Jeremy Sugarman et al., Empirical Research on Informed Consent: An Annotated Bibliography, HASTINGS CTR. REP., Jan.-Feb. 1999, at S1; Danuta Mendelson, Historical Evolution and Modern Implications of Concepts of Consent to, and Refusal of, Medical Treatment in the Law of Trespass, 17 J. LEGAL MED. 1 (1996); Anthony Szczygiel, Beyond Informed Consent, 21 OHIO N.U. L. REV. 171 (1994); Jay Katz, Informed Consent - A Fairy Tale? Law's Vision, 39 U. PITT. L. REV. 137 (1977) [hereinafter Katz, A Fairy Tale?].
19. This Article addresses informed consent only in the context of medical treatment decisions. Unlike informed consent to medical treatment, which is governed by state law and arises in a private physician-patient interaction, consent to participation in medical research is controlled by a hospital's institutional review board ("IRB"), acting in accordance with federal regulations. See 21 C.F.R. pt. 50 (1999) (listing Food and Drug Administration regulations governing Protection of Human Subjects); 45 C.F.R. pt. 46 (1999) (listing Department of Health and Human Services regulations governing federally funded medical research). For an insightful analysis of informed consent issues arising in the research context, see Richard S. Saver, Critical Care Research and Informed Consent, 75 N.C. L. REV. 205 (1996).
20. PRESIDENT'S COMMISSION FOR THE STUDY OF ETHICAL PROBLEMS IN MEDICINE AND BIOMEDICAL AND BEHAVIORAL RESEARCH, 1 MAKING HEALTH CARE DECISIONS: THE ETHICAL AND LEGAL IMPLICATIONS OF INFORMED CONSENT IN THE PATIENT-PRACTITIONER RELATIONSHIP 44 (1982) [hereinafter MAKING HEALTH CARE DECISIONS]. As one philosopher has noted, "[b]y exercising such a capacity we define our nature, give meaning and coherence to our lives, and take responsibility for the kind of person we are." Gerald Dworkin, Autonomy and Informed Consent, in 3 MAKING HEALTH CARE DECISIONS, supra, at 71.
21. PRESIDENT'S COMMISSION FOR THE STUDY OF ETHICAL PROBLEMS IN MEDICINE AND BIOMEDICAL AND BEHAVIORAL RESEARCH, 1 MAKING HEALTH CARE DECISIONS: THE ETHICAL AND LEGAL IMPLICATIONS OF INFORMED CONSENT IN THE PATIENT-PRACTITIONER RELATIONSHIP 44 (1982) [hereinafter MAKING HEALTH CARE DECISIONS]. As one philosopher has noted, "[b]y exercising such a capacity we define our nature, give meaning and coherence to our lives, and take responsibility for the kind of person we are." Gerald Dworkin, Autonomy and Informed Consent, in 3 MAKING HEALTH CARE DECISIONS, supra, at 71.
22. See TOM L. BEAUCHAMP & JAMES F. CHILDRESS, PRINCIPLES OF BIOMEDICAL ETHICS 69 (3d ed. 1989). Beyond the general precondition that autonomy requires freedom to make one's own decisions, however, there is little agreement as to the content of the principle. For example, there is substantial disagreement over the types of personal values that autonomy must further, and the extent to which an autonomous decision must be free from outside influences. Under a deontological approach, such as that identified with Immanuel Kant, the central goal of autonomy is the freedom to do what each individual understands to be right. Under the strain of analysis often identified with the liberal tradition of John Stuart Mill, however, autonomy instead consists of the absence of interference with a person's actions. See, e.g., G. Dworkin, supra note 11, at 67-70 (distinguishing the concepts of autonomy and liberty); Roger B. Dworkin, Medical Law and Ethics in the Post-Autonomy Age, 68 MED. L. & ETHICS 727, 733-34 (1993) (describing "physical essentialist autonomy," i.e., the right to be left alone); John Stuart Mill, On Liberty, in THREE ESSAYS 5, 102-03 (1975). In contrast to the deontological approach, Mill's consequentialist ethics focuses less on individual concepts of right than on allowing the individual to do what he or she knows will produce the most personal happiness. Thus, a Kantian might permit broader ethical obligations to influence an individual's choices, while for Mill this would be impermissible unless such constraints also furthered personal happiness. Depending on their underlying ethical perspectives, theorists may come to very different conclusions regarding the extent to which a choice among a restricted group of options - such as the choice of health plans offered by one employer - will satisfy the conditions for an autonomous decision.
23. See TOM L. BEAUCHAMP & JAMES F. CHILDRESS, PRINCIPLES OF BIOMEDICAL ETHICS 69 (3d ed. 1989). Beyond the general precondition that autonomy requires freedom to make one's own decisions, however, there is little agreement as to the content of the principle. For example, there is substantial disagreement over the types of personal values that autonomy must further, and the extent to which an autonomous decision must be free from outside influences. Under a deontological approach, such as that identified with Immanuel Kant, the central goal of autonomy is the freedom to do what each individual understands to be right. Under the strain of analysis often identified with the liberal tradition of John Stuart Mill, however, autonomy instead consists of the absence of interference with a person's actions. See, e.g., G. Dworkin, supra note 11, at 67-70 (distinguishing the concepts of autonomy and liberty); Roger B. Dworkin, Medical Law and Ethics in the Post-Autonomy Age, 68 MED. L. & ETHICS 727, 733-34 (1993) (describing "physical essentialist autonomy," i.e., the right to be left alone); John Stuart Mill, On Liberty, in THREE ESSAYS 5, 102-03 (1975). In contrast to the deontological approach, Mill's consequentialist ethics focuses less on individual concepts of right than on allowing the individual to do what he or she knows will produce the most personal happiness. Thus, a Kantian might permit broader ethical obligations to influence an individual's choices, while for Mill this would be impermissible unless such constraints also furthered personal happiness. Depending on their underlying ethical perspectives, theorists may come to very different conclusions regarding the extent to which a choice among a restricted group of options - such as the choice of health plans offered by one employer - will satisfy the conditions for an autonomous decision.
24. See TOM L. BEAUCHAMP & JAMES F. CHILDRESS, PRINCIPLES OF BIOMEDICAL ETHICS 69 (3d ed. 1989). Beyond the general precondition that autonomy requires freedom to make one's own decisions, however, there is little agreement as to the content of the principle. For example, there is substantial disagreement over the types of personal values that autonomy must further, and the extent to which an autonomous decision must be free from outside influences. Under a deontological approach, such as that identified with Immanuel Kant, the central goal of autonomy is the freedom to do what each individual understands to be right. Under the strain of analysis often identified with the liberal tradition of John Stuart Mill, however, autonomy instead consists of the absence of interference with a person's actions. See, e.g., G. Dworkin, supra note 11, at 67-70 (distinguishing the concepts of autonomy and liberty); Roger B. Dworkin, Medical Law and Ethics in the Post-Autonomy Age, 68 MED. L. & ETHICS 727, 733-34 (1993) (describing "physical essentialist autonomy," i.e., the right to be left alone); John Stuart Mill, On Liberty, in THREE ESSAYS 5, 102-03 (1975). In contrast to the deontological approach, Mill's consequentialist ethics focuses less on individual concepts of right than on allowing the individual to do what he or she knows will produce the most personal happiness. Thus, a Kantian might permit broader ethical obligations to influence an individual's choices, while for Mill this would be impermissible unless such constraints also furthered personal happiness. Depending on their underlying ethical perspectives, theorists may come to very different conclusions regarding the extent to which a choice among a restricted group of options - such as the choice of health plans offered by one employer - will satisfy the conditions for an autonomous decision.
25. See TOM L. BEAUCHAMP & JAMES F. CHILDRESS, PRINCIPLES OF BIOMEDICAL ETHICS 69 (3d ed. 1989). Beyond the general precondition that autonomy requires freedom to make one's own decisions, however, there is little agreement as to the content of the principle. For example, there is substantial disagreement over the types of personal values that autonomy must further, and the extent to which an autonomous decision must be free from outside influences. Under a deontological approach, such as that identified with Immanuel Kant, the central goal of autonomy is the freedom to do what each individual understands to be right. Under the strain of analysis often identified with the liberal tradition of John Stuart Mill, however, autonomy instead consists of the absence of interference with a person's actions. See, e.g., G. Dworkin, supra note 11, at 67-70 (distinguishing the concepts of autonomy and liberty); Roger B. Dworkin, Medical Law and Ethics in the Post-Autonomy Age, 68 MED. L. & ETHICS 727, 733-34 (1993) (describing "physical essentialist autonomy," i.e., the right to be left alone); John Stuart Mill, On Liberty, in THREE ESSAYS 5, 102-03 (1975). In contrast to the deontological approach, Mill's consequentialist ethics focuses less on individual concepts of right than on allowing the individual to do what he or she knows will produce the most personal happiness. Thus, a Kantian might permit broader ethical obligations to influence an individual's choices, while for Mill this would be impermissible unless such constraints also furthered personal happiness. Depending on their underlying ethical perspectives, theorists may come to very different conclusions regarding the extent to which a choice among a restricted group of options - such as the choice of health plans offered by one employer - will satisfy the conditions for an autonomous decision.
26. See BEAUCHAMP & CHILDRESS, supra note 12, at 195-96 (describing the principle of beneficence).
27. Id. at 120 (quoting "the maxim Primum non nocere: 'Above all [or first] do no harm'"). These principles are expressed in the Hippocratic Oath, to which all new physicians swear allegiance. Id.
28. Canterbury v. Spence, 464 F.2d 772, 780 (D.C. Cir. 1972); see Edmund D. Pellegrino, Patient and Physician Autonomy: Conflicting Rights and Obligations in the Physician-Patient Relationship, 10 J. CONTEMP. HEALTH L. & POL'Y 47, 53-55 (1994) (explaining the influence of these factors on the patient's ability to make an autonomous decision).
29. Canterbury v. Spence, 464 F.2d 772, 780 (D.C. Cir. 1972); see Edmund D. Pellegrino, Patient and Physician Autonomy: Conflicting Rights and Obligations in the Physician-Patient Relationship, 10 J. CONTEMP. HEALTH L. & POL'Y 47, 53-55 (1994) (explaining the influence of these factors on the patient's ability to make an autonomous decision).
30. See BEAUCHAMP & CHILDRESS, supra note 12, at 209-28 (discussing varying theories of paternalism); FADEN & BEAUCHAMP, supra note 9, at 13 (articulating the factors that determine the proper decision-making authority). For a general discussion of paternalism, see generally CHILDRESS, supra note 3.
31. Jay Katz, Informed Consent - Must it Remain a Fairy Tale?, 10 J. CONTEMP. HEALTH L. & POL'Y 69, 86 (1994) [hereinafter Katz, Must it Remain a Fairy Tale?]. In Katz's view, when beneficence and autonomy conflict, autonomy must prevail. Id. In contrast, Professor Edmund Pellegrino views beneficence as a prerequisite to the exercise of autonomy: It is the physician's obligation to enhance, empower, and enrich the patient's capacity to be autonomous. . . . To become a reality, patient autonomy requires cooperation and assistance from the physician. In short, it requires the physician's beneficent attention to make the patient's autonomy an authentic, as well as an independent, reality. Pellegrino, supra note 15, at 51.
32. Jay Katz, Informed Consent - Must it Remain a Fairy Tale?, 10 J. CONTEMP. HEALTH L. & POL'Y 69, 86 (1994) [hereinafter Katz, Must it Remain a Fairy Tale?]. In Katz's view, when beneficence and autonomy conflict, autonomy must prevail. Id. In contrast, Professor Edmund Pellegrino views beneficence as a prerequisite to the exercise of autonomy: It is the physician's obligation to enhance, empower, and enrich the patient's capacity to be autonomous. . . . To become a reality, patient autonomy requires cooperation and assistance from the physician. In short, it requires the physician's beneficent attention to make the patient's autonomy an authentic, as well as an independent, reality. Pellegrino, supra note 15, at 51.
33. The final principle that informs considerations of medical ethics is the principle of justice, the concept that the distribution of societal benefits and burdens should be constrained by considerations of fairness. See ERNLE W.D. YOUNG, ALPHA & OMEGA: ETHICS AT THE FRONTIERS OF LIFE AND DEATH 22 (1990) ("In its most basic terms, justice may be characterized as fairness."). While justice has come to play a significant role in the debate over the proper allocation of health care resources, it generally is not invoked during discussions of informed consent. However, with the current focus on the effects of large-scale health care cost containment strategies on individual patient care, the principle may play a greater role in future discussions.
34. See FADEN & BEAUCHAMP, supra note 9, at 116-25 (tracing the English and American history of consent).
35. 105 N.E. 92 (N.Y. 1914).
36. Id. at 93.
37. 317 P.2d 170 (Cal. App. 1957); see FADEN & BEAUCHAMP, supra note 9, at 125-29 (describing the issues raised in Salgo); Cathy J. Jones, Autonomy and Informed Consent in Medical Decisionmaking: Toward a New Self-Fulfilling Prophecy, 47 WASH. & LEE L. REV. 379, 388-89 (1990) (explaining the Salgo reasoning); Szczygiel, supra note 9, at 197 (describing the issues raised on appeal).
38. 317 P.2d 170 (Cal. App. 1957); see FADEN & BEAUCHAMP, supra note 9, at 125-29 (describing the issues raised in Salgo); Cathy J. Jones, Autonomy and Informed Consent in Medical Decisionmaking: Toward a New Self-Fulfilling Prophecy, 47 WASH. & LEE L. REV. 379, 388-89 (1990) (explaining the Salgo reasoning); Szczygiel, supra note 9, at 197 (describing the issues raised on appeal).
39. 317 P.2d 170 (Cal. App. 1957); see FADEN & BEAUCHAMP, supra note 9, at 125-29 (describing the issues raised in Salgo); Cathy J. Jones, Autonomy and Informed Consent in Medical Decisionmaking: Toward a New Self-Fulfilling Prophecy, 47 WASH. & LEE L. REV. 379, 388-89 (1990) (explaining the Salgo reasoning); Szczygiel, supra note 9, at 197 (describing the issues raised on appeal).
40. 317 P.2d 170 (Cal. App. 1957); see FADEN & BEAUCHAMP, supra note 9, at 125-29 (describing the issues raised in Salgo); Cathy J. Jones, Autonomy and Informed Consent in Medical Decisionmaking: Toward a New Self-Fulfilling Prophecy, 47 WASH. & LEE L. REV. 379, 388-89 (1990) (explaining the Salgo reasoning); Szczygiel, supra note 9, at 197 (describing the issues raised on appeal).
41. Salgo, 317 P.2d at 181.
42. 350 P.2d 1093 (Kan. 1960); see FADEN & BEAUCHAMP, supra note 9, at 129-32 (summarizing the consequences of the decision); Jones, supra note 22, at 389-91 (outlining the court's reasoning); Szczygiel, supra note 9, at 198-99 (noting the reaction to the decision).
43. Negligence generally is perceived as more "physician-friendly" than battery, chiefly because it requires the plaintiff to prove causation and damages and permits additional defenses to be raised. See Jones, supra note 22, at 390 n.37 (explaining the defenses to battery and negligence).
44. 464 F.2d 772 (D.C. Cir. 1972); see FADEN & BEAUCHAMP, supra note 9, at 132-38 (describing the influence of the decision); Jones, supra note 22, at 391-94 (summarizing the court's opinion); Szczygiel, supra note 9, at 200-01 (explaining the reasonable person disclosure standard).
45. Cantebury, 464 F.2d at 781.
46. See FAY A. ROZOVSKY, CONSENT TO TREATMENT: A PRACTICAL GUIDE § 1.15 (2d ed. 1990).
47. W. PAGE KEETON, ET AL., PROSSER & KEETON ON THE LAW OF TORTS § 32, at 190 (5th ed. 1984). Several general exceptions to the requirement of obtaining informed consent are recognized by most jurisdictions, including: (1) an emergency exception, which applies when the patient is incapable of consenting and the imminent harm from forgoing treatment outweighs the harm threatened by the proposed treatment; (2) a "therapeutic privilege," which applies when the disclosure of risks would present such a threat of harm to the patient that it is medically contraindicated; and (3) an exception for risks that ought to be known by everyone, or that are already known by the particular patient. See, e.g., Canterbury, 464 F.2d at 788-89; Spencer v. Seikel, 742 P.2d 1126, 1128-29 (Okla. 1987) (holding that the patient could not recover where record demonstrated that patient clearly knew of alternative treatment); Scott v. Bradford, 606 P.2d 554, 558 (Okla. 1979).
48. See Szczygiel, supra note 9, at 190-93.
49. See id. at 203. These special provisions often target patient populations that are perceived as particularly vulnerable, or therapies that are considered to be harmful or of questionable value. See, e.g., CONN. GEN. STAT. ANN. §§ 17a-540 (rights of mentally ill persons) & 45a-691 (West 1998) (informed consent to sterilization); MINN. STAT. ANN. § 147B.06(b) (West 1998) (informed consent to acupuncture); MO. ANN. STAT. § 188.039.2(3) (West 1996) (consent to abortion); W. VA. CODE § 16-5A-9a (1998) (consent to laetrile use); FADEN & BEAUCHAMP, supra note 9, at 140; See also Szczygiel, supra note 9, at 207-09 (describing recent mandated disclosure laws); infra Part VI (discussing breast cancer informed consent statutes).
50. See id. at 203. These special provisions often target patient populations that are perceived as particularly vulnerable, or therapies that are considered to be harmful or of questionable value. See, e.g., CONN. GEN. STAT. ANN. §§ 17a-540 (rights of mentally ill persons) & 45a-691 (West 1998) (informed consent to sterilization); MINN. STAT. ANN. § 147B.06(b) (West 1998) (informed consent to acupuncture); MO. ANN. STAT. § 188.039.2(3) (West 1996) (consent to abortion); W. VA. CODE § 16-5A-9a (1998) (consent to laetrile use); FADEN & BEAUCHAMP, supra note 9, at 140; See also Szczygiel, supra note 9, at 207-09 (describing recent mandated disclosure laws); infra Part VI (discussing breast cancer informed consent statutes).
51. See id. at 203. These special provisions often target patient populations that are perceived as particularly vulnerable, or therapies that are considered to be harmful or of questionable value. See, e.g., CONN. GEN. STAT. ANN. §§ 17a-540 (rights of mentally ill persons) & 45a-691 (West 1998) (informed consent to sterilization); MINN. STAT. ANN. § 147B.06(b) (West 1998) (informed consent to acupuncture); MO. ANN. STAT. § 188.039.2(3) (West 1996) (consent to abortion); W. VA. CODE § 16-5A-9a (1998) (consent to laetrile use); FADEN & BEAUCHAMP, supra note 9, at 140; See also Szczygiel, supra note 9, at 207-09 (describing recent mandated disclosure laws); infra Part VI (discussing breast cancer informed consent statutes).
52. See id. at 203. These special provisions often target patient populations that are perceived as particularly vulnerable, or therapies that are considered to be harmful or of questionable value. See, e.g., CONN. GEN. STAT. ANN. §§ 17a-540 (rights of mentally ill persons) & 45a-691 (West 1998) (informed consent to sterilization); MINN. STAT. ANN. § 147B.06(b) (West 1998) (informed consent to acupuncture); MO. ANN. STAT. § 188.039.2(3) (West 1996) (consent to abortion); W. VA. CODE § 16-5A-9a (1998) (consent to laetrile use); FADEN & BEAUCHAMP, supra note 9, at 140; See also Szczygiel, supra note 9, at 207-09 (describing recent mandated disclosure laws); infra Part VI (discussing breast cancer informed consent statutes).
53. See id. at 203. These special provisions often target patient populations that are perceived as particularly vulnerable, or therapies that are considered to be harmful or of questionable value. See, e.g., CONN. GEN. STAT. ANN. §§ 17a-540 (rights of mentally ill persons) & 45a-691 (West 1998) (informed consent to sterilization); MINN. STAT. ANN. § 147B.06(b) (West 1998) (informed consent to acupuncture); MO. ANN. STAT. § 188.039.2(3) (West 1996) (consent to abortion); W. VA. CODE § 16-5A-9a (1998) (consent to laetrile use); FADEN & BEAUCHAMP, supra note 9, at 140; See also Szczygiel, supra note 9, at 207-09 (describing recent mandated disclosure laws); infra Part VI (discussing breast cancer informed consent statutes).
54. See id. at 203. These special provisions often target patient populations that are perceived as particularly vulnerable, or therapies that are considered to be harmful or of questionable value. See, e.g., CONN. GEN. STAT. ANN. §§ 17a-540 (rights of mentally ill persons) & 45a-691 (West 1998) (informed consent to sterilization); MINN. STAT. ANN. § 147B.06(b) (West 1998) (informed consent to acupuncture); MO. ANN. STAT. § 188.039.2(3) (West 1996) (consent to abortion); W. VA. CODE § 16-5A-9a (1998) (consent to laetrile use); FADEN & BEAUCHAMP, supra note 9, at 140; See also Szczygiel, supra note 9, at 207-09 (describing recent mandated disclosure laws); infra Part VI (discussing breast cancer informed consent statutes).
55. See Hall v. Hilbun, 466 So. 2d 856 (Miss. 1985) (holding that a physician must act with the level of skill practiced by minimally competent physicians in the same field of practice throughout the United States).
56. See Hiser v. Randolph, 617 P.2d 774 (Ariz. Ct. App. 1980) (stating that while physicians are generally free to refuse to treat patients, defendant physician contracted away this right by accepting an on-call emergency room position); Ricks v. Budge, 64 P.2d 208 (Utah 1937) (stating that physician is under duty of continuing attention unless relationship is properly terminated).
57. See Pellegrino, supra note 15, at 53-55 (explaining influence of these factors on the patient's ability to make an autonomous decision). But see Katz, Must It Remain a Fairy Tale?, supra note 17, at 72-75 (arguing against any significant role for these factors). For a general discussion of the physician-patient relationship, see JAY KATZ, THE SILENT WORLD OF DOCTOR AND PATIENT (1984) [hereinafter KATZ, SILENT WORLD]; SHERWIN B. NULAND, HOW WE DIE (1994).
58. See Pellegrino, supra note 15, at 53-55 (explaining influence of these factors on the patient's ability to make an autonomous decision). But see Katz, Must It Remain a Fairy Tale?, supra note 17, at 72-75 (arguing against any significant role for these factors). For a general discussion of the physician-patient relationship, see JAY KATZ, THE SILENT WORLD OF DOCTOR AND PATIENT (1984) [hereinafter KATZ, SILENT WORLD]; SHERWIN B. NULAND, HOW WE DIE (1994).
59. See Pellegrino, supra note 15, at 53-55 (explaining influence of these factors on the patient's ability to make an autonomous decision). But see Katz, Must It Remain a Fairy Tale?, supra note 17, at 72-75 (arguing against any significant role for these factors). For a general discussion of the physician-patient relationship, see JAY KATZ, THE SILENT WORLD OF DOCTOR AND PATIENT (1984) [hereinafter KATZ, SILENT WORLD]; SHERWIN B. NULAND, HOW WE DIE (1994).
60. See Pellegrino, supra note 15, at 53-55 (explaining influence of these factors on the patient's ability to make an autonomous decision). But see Katz, Must It Remain a Fairy Tale?, supra note 17, at 72-75 (arguing against any significant role for these factors). For a general discussion of the physician-patient relationship, see JAY KATZ, THE SILENT WORLD OF DOCTOR AND PATIENT (1984) [hereinafter KATZ, SILENT WORLD]; SHERWIN B. NULAND, HOW WE DIE (1994).
61. Katz, A Fairy Tale?, supra note 9, at 148; see also Katz, Must it Remain a Fairy Tale?, supra note 17, at 72-74 (discussing physicians'beliefs).
62. Katz, A Fairy Tale?, supra note 9, at 148; see also Katz, Must it Remain a Fairy Tale?, supra note 17, at 72-74 (discussing physicians'beliefs).
63. See Maxwell J. Mehlman, Fiduciary Contracting: Limitations On Bargaining Between Patients and Health Care Providers, 51 U. PITT. L. REV. 365 (1990). Mehlman's theory is styled as a response to modern contract theorists, who seek more consistent treatment of physician-patient issues through a stricter reliance on contract. Id. at 365-70. Under a contract approach, general principles of tort law would be replaced by a contractual agreement between the physician and the patient, which would allocate in advance the risks of potential injuries arising from care (such as by pre-selecting a standard of care that might differ from the national standard of care involved in most malpractice suits). See generally Epstein, supra note 4; Clark Havighurst, Prospective Self-Denial: Can Consumers Contract Today to Accept Health Care Rationing Tomorrow?, 140 U. PENN. L. REV. 1755 (1992); Eleanor Kinney, Clark C. Havighurst's Health Care Choices: Private Contracts as Instruments of Health Reform, 17 J. LEGAL MED. 331 (1996) (book review).
64. See Maxwell J. Mehlman, Fiduciary Contracting: Limitations On Bargaining Between Patients and Health Care Providers, 51 U. PITT. L. REV. 365 (1990). Mehlman's theory is styled as a response to modern contract theorists, who seek more consistent treatment of physician-patient issues through a stricter reliance on contract. Id. at 365-70. Under a contract approach, general principles of tort law would be replaced by a contractual agreement between the physician and the patient, which would allocate in advance the risks of potential injuries arising from care (such as by pre-selecting a standard of care that might differ from the national standard of care involved in most malpractice suits). See generally Epstein, supra note 4; Clark Havighurst, Prospective Self-Denial: Can Consumers Contract Today to Accept Health Care Rationing Tomorrow?, 140 U. PENN. L. REV. 1755 (1992); Eleanor Kinney, Clark C. Havighurst's Health Care Choices: Private Contracts as Instruments of Health Reform, 17 J. LEGAL MED. 331 (1996) (book review).
65. See Maxwell J. Mehlman, Fiduciary Contracting: Limitations On Bargaining Between Patients and Health Care Providers, 51 U. PITT. L. REV. 365 (1990). Mehlman's theory is styled as a response to modern contract theorists, who seek more consistent treatment of physician-patient issues through a stricter reliance on contract. Id. at 365-70. Under a contract approach, general principles of tort law would be replaced by a contractual agreement between the physician and the patient, which would allocate in advance the risks of potential injuries arising from care (such as by pre-selecting a standard of care that might differ from the national standard of care involved in most malpractice suits). See generally Epstein, supra note 4; Clark Havighurst, Prospective Self-Denial: Can Consumers Contract Today to Accept Health Care Rationing Tomorrow?, 140 U. PENN. L. REV. 1755 (1992); Eleanor Kinney, Clark C. Havighurst's Health Care Choices: Private Contracts as Instruments of Health Reform, 17 J. LEGAL MED. 331 (1996) (book review).
66. See Maxwell J. Mehlman, Fiduciary Contracting: Limitations On Bargaining Between Patients and Health Care Providers, 51 U. PITT. L. REV. 365 (1990). Mehlman's theory is styled as a response to modern contract theorists, who seek more consistent treatment of physician-patient issues through a stricter reliance on contract. Id. at 365-70. Under a contract approach, general principles of tort law would be replaced by a contractual agreement between the physician and the patient, which would allocate in advance the risks of potential injuries arising from care (such as by pre-selecting a standard of care that might differ from the national standard of care involved in most malpractice suits). See generally Epstein, supra note 4; Clark Havighurst, Prospective Self-Denial: Can Consumers Contract Today to Accept Health Care Rationing Tomorrow?, 140 U. PENN. L. REV. 1755 (1992); Eleanor Kinney, Clark C. Havighurst's Health Care Choices: Private Contracts as Instruments of Health Reform, 17 J. LEGAL MED. 331 (1996) (book review).
67. See Maxwell J. Mehlman, Fiduciary Contracting: Limitations On Bargaining Between Patients and Health Care Providers, 51 U. PITT. L. REV. 365 (1990). Mehlman's theory is styled as a response to modern contract theorists, who seek more consistent treatment of physician-patient issues through a stricter reliance on contract. Id. at 365-70. Under a contract approach, general principles of tort law would be replaced by a contractual agreement between the physician and the patient, which would allocate in advance the risks of potential injuries arising from care (such as by pre-selecting a standard of care that might differ from the national standard of care involved in most malpractice suits). See generally Epstein, supra note 4; Clark Havighurst, Prospective Self-Denial: Can Consumers Contract Today to Accept Health Care Rationing Tomorrow?, 140 U. PENN. L. REV. 1755 (1992); Eleanor Kinney, Clark C. Havighurst's Health Care Choices: Private Contracts as Instruments of Health Reform, 17 J. LEGAL MED. 331 (1996) (book review).
68. Marc A. Rodwin, Strains in the Fiduciary Metaphor: Divided Physician Loyalties and Obligations in a Changing Health Care System, 21 AM. J.L. & MED. 241, 243 (1995) [hereinafter Rodwin, Strains in the Fiduciary Metaphor].
69. See Mehlman, supra note 36, at 365-70; Rodwin, supra note 37, Strains in the Fiduciary Metaphor, at 245-46.
70. See Mehlman, supra note 36, at 365-70; Rodwin, supra note 37, Strains in the Fiduciary Metaphor, at 245-46.
71. Mehlman, supra note 36, at 390-91. For discussion of the application of fiduciary theory in the managed care context, see Mary Anne Bobinski, Autonomy and Privacy: Protecting Patients From Their Physicians, 55 U. PITT. L. REV. 291, 347-417 (suggesting possible role for fiduciary theory in requiring physician disclosure); Kim Johnston, Patient Advocates or Patient Adversaries? Using Fiduciary Law to Compel Disclosure of Managed Care Financial Incentives, 35 SAN DIEGO L. REV. 951 (1998).
72. Mehlman, supra note 36, at 390-91. For discussion of the application of fiduciary theory in the managed care context, see Mary Anne Bobinski, Autonomy and Privacy: Protecting Patients From Their Physicians, 55 U. PITT. L. REV. 291, 347-417 (suggesting possible role for fiduciary theory in requiring physician disclosure); Kim Johnston, Patient Advocates or Patient Adversaries? Using Fiduciary Law to Compel Disclosure of Managed Care Financial Incentives, 35 SAN DIEGO L. REV. 951 (1998).
73. Mehlman, supra note 36, at 390-91. For discussion of the application of fiduciary theory in the managed care context, see Mary Anne Bobinski, Autonomy and Privacy: Protecting Patients From Their Physicians, 55 U. PITT. L. REV. 291, 347-417 (suggesting possible role for fiduciary theory in requiring physician disclosure); Kim Johnston, Patient Advocates or Patient Adversaries? Using Fiduciary Law to Compel Disclosure of Managed Care Financial Incentives, 35 SAN DIEGO L. REV. 951 (1998).
74. See MARC A. RODWIN, MEDICINE, MONEY, AND MORALS: PHYSICIANS' CONFLICTS OF INTEREST 179-11 (1993) [hereinafter RODWIN, MEDICINE, MONEY, AND MORALS]; Rodwin, Strains in the Fiduciary Metaphor, supra note 37, at 247-51. In fact, the physician-patient relationship lacks perhaps the most fundamental element of a fiduciary relationship: the physician's trusteeship over the patient's property. See Mendelson, supra note 9, at 62.
75. See MARC A. RODWIN, MEDICINE, MONEY, AND MORALS: PHYSICIANS' CONFLICTS OF INTEREST 179-11 (1993) [hereinafter RODWIN, MEDICINE, MONEY, AND MORALS]; Rodwin, Strains in the Fiduciary Metaphor, supra note 37, at 247-51. In fact, the physician-patient relationship lacks perhaps the most fundamental element of a fiduciary relationship: the physician's trusteeship over the patient's property. See Mendelson, supra note 9, at 62.
76. See MARC A. RODWIN, MEDICINE, MONEY, AND MORALS: PHYSICIANS' CONFLICTS OF INTEREST 179-11 (1993) [hereinafter RODWIN, MEDICINE, MONEY, AND MORALS]; Rodwin, Strains in the Fiduciary Metaphor, supra note 37, at 247-51. In fact, the physician-patient relationship lacks perhaps the most fundamental element of a fiduciary relationship: the physician's trusteeship over the patient's property. See Mendelson, supra note 9, at 62.
77. See Alan Meisel & Loren H. Roth, Toward an Informed Discussion of Informed Consent: A Review and Critique of the Empirical Studies, 25 ARIZ. L. REV. 265, 283, 306 (1983) (reviewing empirical literature).
78. See Katz, A Fairy Tale?, supra note 9, at 146-47, 173 (arguing that "judges' sole focus on disclosure, to the exclusion of consent, tends to perpetuate physicians' disengaged monologues and to discourage a meaningful dialogue between doctors and patients").
79. See Jones, supra note 22, at 397-406, 409-25 (describing problems in practical operation of informed consent); Barbara J. McNeil et al., On the Elicitation of Preferences for Alternative Therapies, 306 NEW. ENG. J. MED. 1259 (1982) (concluding that variations in the manner of presentation can influence the choice between alternative therapies, even for patients who were themselves physicians).
80. See Jones, supra note 22, at 397-406, 409-25 (describing problems in practical operation of informed consent); Barbara J. McNeil et al., On the Elicitation of Preferences for Alternative Therapies, 306 NEW. ENG. J. MED. 1259 (1982) (concluding that variations in the manner of presentation can influence the choice between alternative therapies, even for patients who were themselves physicians).
81. The authors of one study concluded that "an awareness of the effects of presentation among physicians and patients could help reduce bias and improve the quality of medical decision making." McNeil et al., supra note 43, at 1262; see also Lori B. Andrews, Informed Consent Statutes and the Decisionmaking Process, 5 J. LEGAL MED. 163, 182-205 (1984) (suggesting improvements in regulation of content and disclosure of information). Moreover, many of these problems may be exacerbated by the doctrine's reliance on written forms of consent. See T.P. Gallanis, Write and Wrong: Rethinking the Way We Communicate Health Care Decisions, 31 CONN. L. REV. 1015 (1999) (discussing the example of advanced medical directives).
82. The authors of one study concluded that "an awareness of the effects of presentation among physicians and patients could help reduce bias and improve the quality of medical decision making." McNeil et al., supra note 43, at 1262; see also Lori B. Andrews, Informed Consent Statutes and the Decisionmaking Process, 5 J. LEGAL MED. 163, 182-205 (1984) (suggesting improvements in regulation of content and disclosure of information). Moreover, many of these problems may be exacerbated by the doctrine's reliance on written forms of consent. See T.P. Gallanis, Write and Wrong: Rethinking the Way We Communicate Health Care Decisions, 31 CONN. L. REV. 1015 (1999) (discussing the example of advanced medical directives).
83. The authors of one study concluded that "an awareness of the effects of presentation among physicians and patients could help reduce bias and improve the quality of medical decision making." McNeil et al., supra note 43, at 1262; see also Lori B. Andrews, Informed Consent Statutes and the Decisionmaking Process, 5 J. LEGAL MED. 163, 182-205 (1984) (suggesting improvements in regulation of content and disclosure of information). Moreover, many of these problems may be exacerbated by the doctrine's reliance on written forms of consent. See T.P. Gallanis, Write and Wrong: Rethinking the Way We Communicate Health Care Decisions, 31 CONN. L. REV. 1015 (1999) (discussing the example of advanced medical directives).
84. "The proponents of informed consent and patient self-determination have insufficiently appreciated that trusting oneself and others to become aware of the certainties and uncertainties that surround the practice of medicine, and to integrate them with one's hopes, fears, and realistic expectations, are inordinately difficult tasks." KATZ, SILENT WORLD, supra note 34, at xv-xvi.
85. See Katz, A Fairy Tale?, supra note 9, at 168-72 (describing judicial deference to medical practice); Katz, Must it Remain a Fairy Tale?, supra note 17, at 90 (noting that "[as] a profession we have never examined and tested in a committed manner what I have proposed").
86. See Katz, A Fairy Tale?, supra note 9, at 168-72 (describing judicial deference to medical practice); Katz, Must it Remain a Fairy Tale?, supra note 17, at 90 (noting that "[as] a profession we have never examined and tested in a committed manner what I have proposed").
87. As Katz concludes, "[s]trictly speaking, the legal life of 'informed consent' was over almost as soon as it was born." Katz, A Fairy Tale?, supra note 9, at 170.
88. Mark Fajfar, Note, An Economic Analysis of Informed Consent to Medical Care, 80 GEO. L.J. 1941, 1941 (1992).
89. See Hall, Informed Consent, supra note 1, at 512 (discussing "economic informed consent").
90. See supra note 36 and accompanying text.
91. See Susan M. Wolf, Toward a Systemic Theory of Informed Consent in Managed Care, 35 HOUS. L. REV. 1631 (1999) (hereinafter Wolf, Toward a Systemic Theory].
92. Id. at 1639.
93. Id. at 1638.
94. For a comprehensive discussion of the evolution of American medical practice, see generally PAUL STARR, THE SOCIAL TRANSFORMATION OF AMERICAN MEDICINE (1982). For a discussion of the fee-for-service compensation system, see id. at 62-64; Alexander M. Capron, Containing Health Care Costs: Ethical and Legal Implications of Changes in the Methods of Paying Physicians, 36 CASE W. RES. L. REV. 708, 710-15 (1986) [hereinafter Capron, Containing Health Care Costs].
95. For a comprehensive discussion of the evolution of American medical practice, see generally PAUL STARR, THE SOCIAL TRANSFORMATION OF AMERICAN MEDICINE (1982). For a discussion of the fee-for-service compensation system, see id. at 62-64; Alexander M. Capron, Containing Health Care Costs: Ethical and Legal Implications of Changes in the Methods of Paying Physicians, 36 CASE W. RES. L. REV. 708, 710-15 (1986) [hereinafter Capron, Containing Health Care Costs].
96. For a comprehensive discussion of the evolution of American medical practice, see generally PAUL STARR, THE SOCIAL TRANSFORMATION OF AMERICAN MEDICINE (1982). For a discussion of the fee-for-service compensation system, see id. at 62-64; Alexander M. Capron, Containing Health Care Costs: Ethical and Legal Implications of Changes in the Methods of Paying Physicians, 36 CASE W. RES. L. REV. 708, 710-15 (1986) [hereinafter Capron, Containing Health Care Costs].
97. See Gary T. Schwartz, A National Health Care Program: What its Effect Would Be On American Tort Law and Malpractice Law, 79 CORNELL L. REV. 1339, 1358-59 (1994) (noting that only ten percent of Americans were covered by health insurance).
98. See Capron, Containing Health Care Costs, supra note 54, at 712 (describing different types of health insurance).
99. RODWIN, MEDICINE, MONEY, AND MORALS, supra note 40, at 2.
100. See id. at 13 ("Direct payment limited the amount of money that physicians could extract from patients by recommending and performing unnecessary or marginally useful services."). Of course, the ordering of unnecessary services - without informing the patient of their true status - might in itself be considered a violation of the basic principle of informed consent.
101. See id. at 14; see also James F. Blumstein, Rationing Medical Resources: A Constitutional, Legal, and Policy Analysis, 59 TEX. L. REV. 1345, 1354-56 (1981) (describing the impact of third-party payments on resource allocation decisions); Havighurst, supra note 36, at 1758-61 (describing the problem of "moral hazard," i.e., the propensity to overspend among people who consume health care services but do not bear the burden of paying for them); Schwartz, supra note 55, at 1359-60 (describing powerful fee-for-service incentives to perform tests and procedures that are more costly than beneficial). For a discussion of the function of insurance and its effect on patients' sensitivity to health care costs, see MARK A. HALL, MAKING MEDICAL SPENDING DECISIONS: THE LAW, ETHICS, AND ECONOMICS OF RATIONING MECHANISMS 1556 (1997) [hereinafter HALL, MAKING MEDICAL SPENDING DECISIONS].
102. See id. at 14; see also James F. Blumstein, Rationing Medical Resources: A Constitutional, Legal, and Policy Analysis, 59 TEX. L. REV. 1345, 1354-56 (1981) (describing the impact of third-party payments on resource allocation decisions); Havighurst, supra note 36, at 1758-61 (describing the problem of "moral hazard," i.e., the propensity to overspend among people who consume health care services but do not bear the burden of paying for them); Schwartz, supra note 55, at 1359-60 (describing powerful fee-for-service incentives to perform tests and procedures that are more costly than beneficial). For a discussion of the function of insurance and its effect on patients' sensitivity to health care costs, see MARK A. HALL, MAKING MEDICAL SPENDING DECISIONS: THE LAW, ETHICS, AND ECONOMICS OF RATIONING MECHANISMS 1556 (1997) [hereinafter HALL, MAKING MEDICAL SPENDING DECISIONS].
103. See id. at 14; see also James F. Blumstein, Rationing Medical Resources: A Constitutional, Legal, and Policy Analysis, 59 TEX. L. REV. 1345, 1354-56 (1981) (describing the impact of third-party payments on resource allocation decisions); Havighurst, supra note 36, at 1758-61 (describing the problem of "moral hazard," i.e., the propensity to overspend among people who consume health care services but do not bear the burden of paying for them); Schwartz, supra note 55, at 1359-60 (describing powerful fee-for-service incentives to perform tests and procedures that are more costly than beneficial). For a discussion of the function of insurance and its effect on patients' sensitivity to health care costs, see MARK A. HALL, MAKING MEDICAL SPENDING DECISIONS: THE LAW, ETHICS, AND ECONOMICS OF RATIONING MECHANISMS 1556 (1997) [hereinafter HALL, MAKING MEDICAL SPENDING DECISIONS].
104. See id. at 14; see also James F. Blumstein, Rationing Medical Resources: A Constitutional, Legal, and Policy Analysis, 59 TEX. L. REV. 1345, 1354-56 (1981) (describing the impact of third-party payments on resource allocation decisions); Havighurst, supra note 36, at 1758-61 (describing the problem of "moral hazard," i.e., the propensity to overspend among people who consume health care services but do not bear the burden of paying for them); Schwartz, supra note 55, at 1359-60 (describing powerful fee-for-service incentives to perform tests and procedures that are more costly than beneficial). For a discussion of the function of insurance and its effect on patients' sensitivity to health care costs, see MARK A. HALL, MAKING MEDICAL SPENDING DECISIONS: THE LAW, ETHICS, AND ECONOMICS OF RATIONING MECHANISMS 1556 (1997) [hereinafter HALL, MAKING MEDICAL SPENDING DECISIONS].
105. Julia A. Martin & Lisa K. Bjerknes, The Legal and Ethical Implications of Gag Clauses in Physician Contracts, 22 AM. J.L. & MED. 433, 439, n.44 (1996). The Council on Ethical and Judicial Affairs ("CEJA") of the American Medical Association ("AMA") similarly has argued that incentives to limit care are more problematic than those to provide unnecessary care, in part because the latter are more likely to coincide with patients' interests. For information supporting this proposition, see CEJA, Ethical Issues in Managed Care, 273 JAMA. 330, 333 (1995) [hereinafter CEJA, Ethical Issues]. See also David Orentlicher, Health Care Reform and the Patient-Physician Relationship, 5 HEALTH MATRIX 141, 148 (1995) (noting that conflicts of interest in fee-for-service medicine "have not seriously undermined patient trust in physicians") [hereinafter Orentlicher, Health Care Reform].
106. Julia A. Martin & Lisa K. Bjerknes, The Legal and Ethical Implications of Gag Clauses in Physician Contracts, 22 AM. J.L. & MED. 433, 439, n.44 (1996). The Council on Ethical and Judicial Affairs ("CEJA") of the American Medical Association ("AMA") similarly has argued that incentives to limit care are more problematic than those to provide unnecessary care, in part because the latter are more likely to coincide with patients' interests. For information supporting this proposition, see CEJA, Ethical Issues in Managed Care, 273 JAMA. 330, 333 (1995) [hereinafter CEJA, Ethical Issues]. See also David Orentlicher, Health Care Reform and the Patient-Physician Relationship, 5 HEALTH MATRIX 141, 148 (1995) (noting that conflicts of interest in fee-for-service medicine "have not seriously undermined patient trust in physicians") [hereinafter Orentlicher, Health Care Reform].
107. Julia A. Martin & Lisa K. Bjerknes, The Legal and Ethical Implications of Gag Clauses in Physician Contracts, 22 AM. J.L. & MED. 433, 439, n.44 (1996). The Council on Ethical and Judicial Affairs ("CEJA") of the American Medical Association ("AMA") similarly has argued that incentives to limit care are more problematic than those to provide unnecessary care, in part because the latter are more likely to coincide with patients' interests. For information supporting this proposition, see CEJA, Ethical Issues in Managed Care, 273 JAMA. 330, 333 (1995) [hereinafter CEJA, Ethical Issues]. See also David Orentlicher, Health Care Reform and the Patient-Physician Relationship, 5 HEALTH MATRIX 141, 148 (1995) (noting that conflicts of interest in fee-for-service medicine "have not seriously undermined patient trust in physicians") [hereinafter Orentlicher, Health Care Reform].
108. See Peter Franks et al., Gatekeeping Revisited: Protecting Patients From Over-treatment, 327 NEW ENG. J. MED. 424-25 (1992) (and sources cited therein).
109. See RODWIN, MEDICINE, MONEY, AND MORALS, supra note 40, at 22-31 (arguing that even though paying for referrals may function as a legitimate way for doctors to recommend their reputable colleagues, such conduct also has the potential to increase health care costs and lead to overutilization of medical services); see also OHIO REV. CODE ANN. § 4731.22(B)(17) (Banks-Baldwin 1999) (prohibiting "[a]ny division of fees or charges, or any agreement or arrangement to share fees or charges, made by any person licensed to practice medicine and surgery . . . with any person").
110. See RODWIN, MEDICINE, MONEY, AND MORALS, supra note 40, at 22-31 (arguing that even though paying for referrals may function as a legitimate way for doctors to recommend their reputable colleagues, such conduct also has the potential to increase health care costs and lead to overutilization of medical services); see also OHIO REV. CODE ANN. § 4731.22(B)(17) (Banks-Baldwin 1999) (prohibiting "[a]ny division of fees or charges, or any agreement or arrangement to share fees or charges, made by any person licensed to practice medicine and surgery . . . with any person").
111. 42 U.S.C. § 1320a-7b(b) (1999). For a discussion of kickback incentives inherent in fee-for-service medicine, see RODWIN, MEDICINE, MONEY AND MORALS, supra note 40, at 98-100.
112. See 42 U.S.C. §§ 1320a-7a(a) - 1320a-7b(b) (1999).
113. See Medicare and State Health Care Programs: Fraud and Abuse; OIG AntiKickback Provisions, 56 Fed. Reg. 35,952, 35,954-56, 35,978 (1991) (codified at 42 C.F.R. pt. 1001) (denoting the factors that the government takes into account). Several states have enacted laws that ban similar activities regardless of whether public funding is involved. See also R.I. GEN. LAWS § 5-48.1-1, 5-48.1-3 (1995). Similar concerns led to the 1989 enactment of a federal ban on "self-referral" practices, the so-called "Stark Law." 42 U.S.C. § 1395nn (1999). Enactment of the Stark Law was due in large part to a governmental study conducted in the late 1980's, which reported that Medicare patients whose physicians owned or invested in clinical laboratories received 45% more laboratory services than the general Medicare population. See Office of Inspector General, Department of Health and Human Services, Financial Arrangements Between Physicians and Health Care Businesses:
114. See Medicare and State Health Care Programs: Fraud and Abuse; OIG AntiKickback Provisions, 56 Fed. Reg. 35,952, 35,954-56, 35,978 (1991) (codified at 42 C.F.R. pt. 1001) (denoting the factors that the government takes into account). Several states have enacted laws that ban similar activities regardless of whether public funding is involved. See also R.I. GEN. LAWS § 5-48.1-1, 5-48.1-3 (1995). Similar concerns led to the 1989 enactment of a federal ban on "self-referral" practices, the so-called "Stark Law." 42 U.S.C. § 1395nn (1999). Enactment of the Stark Law was due in large part to a governmental study conducted in the late 1980's, which reported that Medicare patients whose physicians owned or invested in clinical laboratories received 45% more laboratory services than the general Medicare population. See Office of Inspector General, Department of Health and Human Services, Financial Arrangements Between Physicians and Health Care Businesses: Report to Congress (May 1989); Medicare and Medicaid Programs; Physicians' Referrals to Health Care Entities With Which They Have Financial Relationships, 63 Fed. Reg. 1659, 1661 (1998) (to be codified at 42 C.F.R. pts. 411, 424, 435, 455) (proposed Jan. 9, 1998) (and sources cited therein). The Stark Law is designed to prohibit the referral of Medicare and Medicaid patients for certain types of "designated health services" (such as laboratory services) to providers with which the referring physician has a financial relationship. Several states also have enacted similar prohibitions on self-referral. See FLA. STAT. ANN. § 455.654 (West 1999). For a discussion of self-referral incentives inherent in fee-for-service medicine, see RODWIN, MEDICINE, MONEY AND MORALS, supra note 40, at 100-02.
115. See Medicare and State Health Care Programs: Fraud and Abuse; OIG AntiKickback Provisions, 56 Fed. Reg. 35,952, 35,954-56, 35,978 (1991) (codified at 42 C.F.R. pt. 1001) (denoting the factors that the government takes into account). Several states have enacted laws that ban similar activities regardless of whether public funding is involved. See also R.I. GEN. LAWS § 5-48.1-1, 5-48.1-3 (1995). Similar concerns led to the 1989 enactment of a federal ban on "self-referral" practices, the so-called "Stark Law." 42 U.S.C. § 1395nn (1999). Enactment of the Stark Law was due in large part to a governmental study conducted in the late 1980's, which reported that Medicare patients whose physicians owned or invested in clinical laboratories received 45% more laboratory services than the general Medicare population. See Office of Inspector General, Department of Health and Human Services, Financial Arrangements Between Physicians and Health Care Businesses: Report to Congress (May 1989); Medicare and Medicaid Programs; Physicians' Referrals to Health Care Entities With Which They Have Financial Relationships, 63 Fed. Reg. 1659, 1661 (1998) (to be codified at 42 C.F.R. pts. 411, 424, 435, 455) (proposed Jan. 9, 1998) (and sources cited therein). The Stark Law is designed to prohibit the referral of Medicare and Medicaid patients for certain types of "designated health services" (such as laboratory services) to providers with which the referring physician has a financial relationship. Several states also have enacted similar prohibitions on self-referral. See FLA. STAT. ANN. § 455.654 (West 1999). For a discussion of self-referral incentives inherent in fee-for-service medicine, see RODWIN, MEDICINE, MONEY AND MORALS, supra note 40, at 100-02.
116. See Medicare and State Health Care Programs: Fraud and Abuse; OIG AntiKickback Provisions, 56 Fed. Reg. 35,952, 35,954-56, 35,978 (1991) (codified at 42 C.F.R. pt. 1001) (denoting the factors that the government takes into account). Several states have enacted laws that ban similar activities regardless of whether public funding is involved. See also R.I. GEN. LAWS § 5-48.1-1, 5-48.1-3 (1995). Similar concerns led to the 1989 enactment of a federal ban on "self-referral" practices, the so-called "Stark Law." 42 U.S.C. § 1395nn (1999). Enactment of the Stark Law was due in large part to a governmental study conducted in the late 1980's, which reported that Medicare patients whose physicians owned or invested in clinical laboratories received 45% more laboratory services than the general Medicare population. See Office of Inspector General, Department of Health and Human Services, Financial Arrangements Between Physicians and Health Care Businesses: Report to Congress (May 1989); Medicare and Medicaid Programs; Physicians' Referrals to Health Care Entities With Which They Have Financial Relationships, 63 Fed. Reg. 1659, 1661 (1998) (to be codified at 42 C.F.R. pts. 411, 424, 435, 455) (proposed Jan. 9, 1998) (and sources cited therein). The Stark Law is designed to prohibit the referral of Medicare and Medicaid patients for certain types of "designated health services" (such as laboratory services) to providers with which the referring physician has a financial relationship. Several states also have enacted similar prohibitions on self-referral. See FLA. STAT. ANN. § 455.654 (West 1999). For a discussion of self-referral incentives inherent in fee-for-service medicine, see RODWIN, MEDICINE, MONEY AND MORALS, supra note 40, at 100-02.
117. See E. HAAVI MORREIM, BALANCING ACT: THE NEW MEDICAL ETHICS OF MEDICINE'S NEW ECONOMICS 9-13 (1995) [hereinafter MORREIM, BALANCING ACT]. According to Morreim, other factors contributing to the rapid escalation of costs included the numbers of uninsured Americans, treatment for AIDS and HIV-related illnesses, defensive medicine, and our normative beliefs about the level of health care to which we (and others) are entitled. Id. at 12-13.
118. See E. HAAVI MORREIM, BALANCING ACT: THE NEW MEDICAL ETHICS OF MEDICINE'S NEW ECONOMICS 9-13 (1995) [hereinafter MORREIM, BALANCING ACT]. According to Morreim, other factors contributing to the rapid escalation of costs included the numbers of uninsured Americans, treatment for AIDS and HIV-related illnesses, defensive medicine, and our normative beliefs about the level of health care to which we (and others) are entitled. Id. at 12-13.
119. See WALTER A. ZELMAN & ROBERT A BERENSON, THE MANAGED CARE BLUES AND How TO CURE THEM 1 (1998); Morreim, Economic Disclosures and Economic Advocacy, supra note 2, at 280-81.
120. See WALTER A. ZELMAN & ROBERT A BERENSON, THE MANAGED CARE BLUES AND How TO CURE THEM 1 (1998); Morreim, Economic Disclosures and Economic Advocacy, supra note 2, at 280-81.
121. See Morreim, Economic Disclosures and Economic Advocacy, supra note 2, at 280-81.
122. As Professor E. Haavi Morreim has noted, "[i]f one cannot effectively dictate how money will be spent, one can control costs by ensuring that those who make the spending decisions will bear the economic consequences of their actions." E. Haavi Morreim, Diverse and Perverse Incentives of Managed Care: Bringing Patients Into Alignment, 1 WIDENER L. SYMP. J. 89-90 (1996) [hereinafter Morreim, Diverse and Perverse Incentives]. For a discussion of the legal issues raised by such financial incentives, see, for example, HALL, MAKING MEDICAL SPENDING DECISIONS, supra note 59 ; RODWIN, MEDICINE, MONEY, AND MORALS, supra note 40; CEJA, Ethical Issues, supra note 60, at 333-34; Marsha R. Gold et al., A National Survey of the Arrangements Managed-Care Plans Make With Physicians, 333 NEW ENG. J. MED. 1678 (1995); Stephen R. Latham, Regulation of Managed Care Incentive Payments to Physicians, 22 AM. J.L. & MED. 399 (1996); Andrew Ruskin, Capitation: The Legal Implications of Using Capitation to Affect Physician Decision-Making Processes, 13 J. CONTEMP. HEALTH L. & POL'Y 391 (1997).
123. As Professor E. Haavi Morreim has noted, "[i]f one cannot effectively dictate how money will be spent, one can control costs by ensuring that those who make the spending decisions will bear the economic consequences of their actions." E. Haavi Morreim, Diverse and Perverse Incentives of Managed Care: Bringing Patients Into Alignment, 1 WIDENER L. SYMP. J. 89-90 (1996) [hereinafter Morreim, Diverse and Perverse Incentives]. For a discussion of the legal issues raised by such financial incentives, see, for example, HALL, MAKING MEDICAL SPENDING DECISIONS, supra note 59 ; RODWIN, MEDICINE, MONEY, AND MORALS, supra note 40; CEJA, Ethical Issues, supra note 60, at 333-34; Marsha R. Gold et al., A National Survey of the Arrangements Managed-Care Plans Make With Physicians, 333 NEW ENG. J. MED. 1678 (1995); Stephen R. Latham, Regulation of Managed Care Incentive Payments to Physicians, 22 AM. J.L. & MED. 399 (1996); Andrew Ruskin, Capitation: The Legal Implications of Using Capitation to Affect Physician Decision-Making Processes, 13 J. CONTEMP. HEALTH L. & POL'Y 391 (1997).
124. As Professor E. Haavi Morreim has noted, "[i]f one cannot effectively dictate how money will be spent, one can control costs by ensuring that those who make the spending decisions will bear the economic consequences of their actions." E. Haavi Morreim, Diverse and Perverse Incentives of Managed Care: Bringing Patients Into Alignment, 1 WIDENER L. SYMP. J. 89-90 (1996) [hereinafter Morreim, Diverse and Perverse Incentives]. For a discussion of the legal issues raised by such financial incentives, see, for example, HALL, MAKING MEDICAL SPENDING DECISIONS, supra note 59 ; RODWIN, MEDICINE, MONEY, AND MORALS, supra note 40; CEJA, Ethical Issues, supra note 60, at 333-34; Marsha R. Gold et al., A National Survey of the Arrangements Managed-Care Plans Make With Physicians, 333 NEW ENG. J. MED. 1678 (1995); Stephen R. Latham, Regulation of Managed Care Incentive Payments to Physicians, 22 AM. J.L. & MED. 399 (1996); Andrew Ruskin, Capitation: The Legal Implications of Using Capitation to Affect Physician Decision-Making Processes, 13 J. CONTEMP. HEALTH L. & POL'Y 391 (1997).
125. As Professor E. Haavi Morreim has noted, "[i]f one cannot effectively dictate how money will be spent, one can control costs by ensuring that those who make the spending decisions will bear the economic consequences of their actions." E. Haavi Morreim, Diverse and Perverse Incentives of Managed Care: Bringing Patients Into Alignment, 1 WIDENER L. SYMP. J. 89-90 (1996) [hereinafter Morreim, Diverse and Perverse Incentives]. For a discussion of the legal issues raised by such financial incentives, see, for example, HALL, MAKING MEDICAL SPENDING DECISIONS, supra note 59 ; RODWIN, MEDICINE, MONEY, AND MORALS, supra note 40; CEJA, Ethical Issues, supra note 60, at 333-34; Marsha R. Gold et al., A National Survey of the Arrangements Managed-Care Plans Make With Physicians, 333 NEW ENG. J. MED. 1678 (1995); Stephen R. Latham, Regulation of Managed Care Incentive Payments to Physicians, 22 AM. J.L. & MED. 399 (1996); Andrew Ruskin, Capitation: The Legal Implications of Using Capitation to Affect Physician Decision-Making Processes, 13 J. CONTEMP. HEALTH L. & POL'Y 391 (1997).
126. As Professor E. Haavi Morreim has noted, "[i]f one cannot effectively dictate how money will be spent, one can control costs by ensuring that those who make the spending decisions will bear the economic consequences of their actions." E. Haavi Morreim, Diverse and Perverse Incentives of Managed Care: Bringing Patients Into Alignment, 1 WIDENER L. SYMP. J. 89-90 (1996) [hereinafter Morreim, Diverse and Perverse Incentives]. For a discussion of the legal issues raised by such financial incentives, see, for example, HALL, MAKING MEDICAL SPENDING DECISIONS, supra note 59 ; RODWIN, MEDICINE, MONEY, AND MORALS, supra note 40; CEJA, Ethical Issues, supra note 60, at 333-34; Marsha R. Gold et al., A National Survey of the Arrangements Managed-Care Plans Make With Physicians, 333 NEW ENG. J. MED. 1678 (1995); Stephen R. Latham, Regulation of Managed Care Incentive Payments to Physicians, 22 AM. J.L. & MED. 399 (1996); Andrew Ruskin, Capitation: The Legal Implications of Using Capitation to Affect Physician Decision-Making Processes, 13 J. CONTEMP. HEALTH L. & POL'Y 391 (1997).
127. As Professor E. Haavi Morreim has noted, "[i]f one cannot effectively dictate how money will be spent, one can control costs by ensuring that those who make the spending decisions will bear the economic consequences of their actions." E. Haavi Morreim, Diverse and Perverse Incentives of Managed Care: Bringing Patients Into Alignment, 1 WIDENER L. SYMP. J. 89-90 (1996) [hereinafter Morreim, Diverse and Perverse Incentives]. For a discussion of the legal issues raised by such financial incentives, see, for example, HALL, MAKING MEDICAL SPENDING DECISIONS, supra note 59 ; RODWIN, MEDICINE, MONEY, AND MORALS, supra note 40; CEJA, Ethical Issues, supra note 60, at 333-34; Marsha R. Gold et al., A National Survey of the Arrangements Managed-Care Plans Make With Physicians, 333 NEW ENG. J. MED. 1678 (1995); Stephen R. Latham, Regulation of Managed Care Incentive Payments to Physicians, 22 AM. J.L. & MED. 399 (1996); Andrew Ruskin, Capitation: The Legal Implications of Using Capitation to Affect Physician Decision-Making Processes, 13 J. CONTEMP. HEALTH L. & POL'Y 391 (1997).
128. As Professor E. Haavi Morreim has noted, "[i]f one cannot effectively dictate how money will be spent, one can control costs by ensuring that those who make the spending decisions will bear the economic consequences of their actions." E. Haavi Morreim, Diverse and Perverse Incentives of Managed Care: Bringing Patients Into Alignment, 1 WIDENER L. SYMP. J. 89-90 (1996) [hereinafter Morreim, Diverse and Perverse Incentives]. For a discussion of the legal issues raised by such financial incentives, see, for example, HALL, MAKING MEDICAL SPENDING DECISIONS, supra note 59 ; RODWIN, MEDICINE, MONEY, AND MORALS, supra note 40; CEJA, Ethical Issues, supra note 60, at 333-34; Marsha R. Gold et al., A National Survey of the Arrangements Managed-Care Plans Make With Physicians, 333 NEW ENG. J. MED. 1678 (1995); Stephen R. Latham, Regulation of Managed Care Incentive Payments to Physicians, 22 AM. J.L. & MED. 399 (1996); Andrew Ruskin, Capitation: The Legal Implications of Using Capitation to Affect Physician Decision-Making Processes, 13 J. CONTEMP. HEALTH L. & POL'Y 391 (1997).
129. MCOs primarily are regulated by the states. See TEX. INS. CODE ANN. art. 20A (West 1981) (listing Texas Health Maintenance Organization Act).
130. See Emily Friedman, Capitation, Integration, and Managed Care: Lessons From Early Experiments, 275 JAMA 957, 958 (1996) (discussing employer-pioneered managed care for immigrants); Barry R. Furrow, Managed Care Organizations and Patient Injury: Rethinking Liability, 31 GA. L. REV. 419, 428 (1997) (stating that throughout the 1800's, many employers developed health care services for immigrant employees). The early part of the twentieth century saw the development of prepaid contracts between employee associations and physician groups, as well as the formation of a number of marginally successful rural Populist "medical cooperatives." See STARR, supra note 54, at 301-06. Many modern non-profit MCOs, such as Kaiser Permanente and Group Health Cooperative of Puget Sound, developed out of post-World War II plans that were created to meet the needs of a particular geographic on worker population. See id. at 301, 320-27 (describing the different organizational approaches taken in these early plans); Friedman, supra, at 958-59 (describing early efforts).
131. See Emily Friedman, Capitation, Integration, and Managed Care: Lessons From Early Experiments, 275 JAMA 957, 958 (1996) (discussing employer-pioneered managed care for immigrants); Barry R. Furrow, Managed Care Organizations and Patient Injury: Rethinking Liability, 31 GA. L. REV. 419, 428 (1997) (stating that throughout the 1800's, many employers developed health care services for immigrant employees). The early part of the twentieth century saw the development of prepaid contracts between employee associations and physician groups, as well as the formation of a number of marginally successful rural Populist "medical cooperatives." See STARR, supra note 54, at 301-06. Many modern non-profit MCOs, such as Kaiser Permanente and Group Health Cooperative of Puget Sound, developed out of post-World War II plans that were created to meet the needs of a particular geographic on worker population. See id. at 301, 320-27 (describing the different organizational approaches taken in these early plans); Friedman, supra, at 958-59 (describing early efforts).
132. See Emily Friedman, Capitation, Integration, and Managed Care: Lessons From Early Experiments, 275 JAMA 957, 958 (1996) (discussing employer-pioneered managed care for immigrants); Barry R. Furrow, Managed Care Organizations and Patient Injury: Rethinking Liability, 31 GA. L. REV. 419, 428 (1997) (stating that throughout the 1800's, many employers developed health care services for immigrant employees). The early part of the twentieth century saw the development of prepaid contracts between employee associations and physician groups, as well as the formation of a number of marginally successful rural Populist "medical cooperatives." See STARR, supra note 54, at 301-06. Many modern non-profit MCOs, such as Kaiser Permanente and Group Health Cooperative of Puget Sound, developed out of post-World War II plans that were created to meet the needs of a particular geographic on worker population. See id. at 301, 320-27 (describing the different organizational approaches taken in these early plans); Friedman, supra, at 958-59 (describing early efforts).
133. Furrow, supra note 71, at 427-28.
134. See id. at 429-30.
135. To further complicate matters, there is significant variety (and constant innovation) among the types of entities that are considered to be HMOs. Common models include: (1) staff model HMOs, in which all physicians are salaried employees; (2) group model HMOs, in which a group of physicians contract to provide services to enrollees; and (3) independent practice associations ("IPAs"), in which the HMO contracts with an association of independent physicians, who treat enrollees as well as other patients. See, e.g., Furrow, supra note 71, at 433-34; Mark A. Hall, Institutional Control of Physician Behavior: Legal Barriers to Health Care Cost Containment, 137 U. PA. L. REV. 431, 483-85 (1988) [hereinafter Hall, Institutional Control]; David Orentlicher, Paying Physicians More to Do Less: Financial Incentives to Limit Care, 30 U. RICH. L. REV. 155, 158-59 (1996) [hereinafter Orentlicher, Paying Physicians More to Do Less]. Currently, IPAs are the most common HMO model. See Friedman, supra note 71, at 957. In 1973, Congress enacted a federal statute to encourage the growth of HMOs. 42 U.S.C. § 300e (1973). In return for offering "federally qualified" HMOs favorable business opportunities, this provision imposed substantial burdens regarding benefit structure, premiums, solvency, and demographics. See id. However, due to subsequent changes in the marketplace and federal regulation, at this point few HMOs seek federal qualification.
136. To further complicate matters, there is significant variety (and constant innovation) among the types of entities that are considered to be HMOs. Common models include: (1) staff model HMOs, in which all physicians are salaried employees; (2) group model HMOs, in which a group of physicians contract to provide services to enrollees; and (3) independent practice associations ("IPAs"), in which the HMO contracts with an association of independent physicians, who treat enrollees as well as other patients. See, e.g., Furrow, supra note 71, at 433-34; Mark A. Hall, Institutional Control of Physician Behavior: Legal Barriers to Health Care Cost Containment, 137 U. PA. L. REV. 431, 483-85 (1988) [hereinafter Hall, Institutional Control]; David Orentlicher, Paying Physicians More to Do Less: Financial Incentives to Limit Care, 30 U. RICH. L. REV. 155, 158-59 (1996) [hereinafter Orentlicher, Paying Physicians More to Do Less]. Currently, IPAs are the most common HMO model. See Friedman, supra note 71, at 957. In 1973, Congress enacted a federal statute to encourage the growth of HMOs. 42 U.S.C. § 300e (1973). In return for offering "federally qualified" HMOs favorable business opportunities, this provision imposed substantial burdens regarding benefit structure, premiums, solvency, and demographics. See id. However, due to subsequent changes in the marketplace and federal regulation, at this point few HMOs seek federal qualification.
137. To further complicate matters, there is significant variety (and constant innovation) among the types of entities that are considered to be HMOs. Common models include: (1) staff model HMOs, in which all physicians are salaried employees; (2) group model HMOs, in which a group of physicians contract to provide services to enrollees; and (3) independent practice associations ("IPAs"), in which the HMO contracts with an association of independent physicians, who treat enrollees as well as other patients. See, e.g., Furrow, supra note 71, at 433-34; Mark A. Hall, Institutional Control of Physician Behavior: Legal Barriers to Health Care Cost Containment, 137 U. PA. L. REV. 431, 483-85 (1988) [hereinafter Hall, Institutional Control]; David Orentlicher, Paying Physicians More to Do Less: Financial Incentives to Limit Care, 30 U. RICH. L. REV. 155, 158-59 (1996) [hereinafter Orentlicher, Paying Physicians More to Do Less]. Currently, IPAs are the most common HMO model. See Friedman, supra note 71, at 957. In 1973, Congress enacted a federal statute to encourage the growth of HMOs. 42 U.S.C. § 300e (1973). In return for offering "federally qualified" HMOs favorable business opportunities, this provision imposed substantial burdens regarding benefit structure, premiums, solvency, and demographics. See id. However, due to subsequent changes in the marketplace and federal regulation, at this point few HMOs seek federal qualification.
138. To further complicate matters, there is significant variety (and constant innovation) among the types of entities that are considered to be HMOs. Common models include: (1) staff model HMOs, in which all physicians are salaried employees; (2) group model HMOs, in which a group of physicians contract to provide services to enrollees; and (3) independent practice associations ("IPAs"), in which the HMO contracts with an association of independent physicians, who treat enrollees as well as other patients. See, e.g., Furrow, supra note 71, at 433-34; Mark A. Hall, Institutional Control of Physician Behavior: Legal Barriers to Health Care Cost Containment, 137 U. PA. L. REV. 431, 483-85 (1988) [hereinafter Hall, Institutional Control]; David Orentlicher, Paying Physicians More to Do Less: Financial Incentives to Limit Care, 30 U. RICH. L. REV. 155, 158-59 (1996) [hereinafter Orentlicher, Paying Physicians More to Do Less]. Currently, IPAs are the most common HMO model. See Friedman, supra note 71, at 957. In 1973, Congress enacted a federal statute to encourage the growth of HMOs. 42 U.S.C. § 300e (1973). In return for offering "federally qualified" HMOs favorable business opportunities, this provision imposed substantial burdens regarding benefit structure, premiums, solvency, and demographics. See id. However, due to subsequent changes in the marketplace and federal regulation, at this point few HMOs seek federal qualification.
139. See Robert J. Blendon et al., Understanding the Managed Care Backlash, HEALTH AFFAIRS, July-Aug. 1998, at 80 (describing criticism of managed care).
140. See Schwartz, supra note 55, at 1362 (explaining that many fee-for-service plans are now subject to cost containment mechanisms, such as utilization review); Wolf, Toward a Systematic Theory, supra note 51, at 1633 n. 13 (noting that "managed care techniques such as required second opinions and high-cost case management . . . are used pervasively both within MCOs and beyond"). Because these strategies are used by insurers and MCOs alike, this Article will refer to cost-sensitive forms of health insurance more generally as "health plans."
141. See Schwartz, supra note 55, at 1362 (explaining that many fee-for-service plans are now subject to cost containment mechanisms, such as utilization review); Wolf, Toward a Systematic Theory, supra note 51, at 1633 n. 13 (noting that "managed care techniques such as required second opinions and high-cost case management . . . are used pervasively both within MCOs and beyond"). Because these strategies are used by insurers and MCOs alike, this Article will refer to cost-sensitive forms of health insurance more generally as "health plans."
142. See Morreim, Diverse and Perverse Incentives, supra note 69, at 91 (discuss ing capitation); Orentlicher, Paying Physicians More to Do Less, supra note 74, a 158-59 (explaining capitation and the different MCO models).
143. See Morreim, Diverse and Perverse Incentives, supra note 69, at 91 (discuss ing capitation); Orentlicher, Paying Physicians More to Do Less, supra note 74, a 158-59 (explaining capitation and the different MCO models).
144. See Orentlicher, Paying Physicians More to Do Less, supra note 74, at 159-60.
145. See Hall, Institutional Control, supra note 74, at 480. Not surprisingly, many physicians do not agree that managed care allows them to retain autonomy over medical treatment decisions. See CEJA, Ethical Issues, supra note 60; CEJA, Opinions on Practice Matters, § 8.13(2)(F), reprinted in CODE OF MEDICAL ETHICS: CURRENT OPINIONS WITH ANNOTATIONS 127 (1996-97) [hereinafter CEJA, Opinions on Practice Matters].
146. See Hall, Institutional Control, supra note 74, at 480. Not surprisingly, many physicians do not agree that managed care allows them to retain autonomy over medical treatment decisions. See CEJA, Ethical Issues, supra note 60; CEJA, Opinions on Practice Matters, § 8.13(2)(F), reprinted in CODE OF MEDICAL ETHICS: CURRENT OPINIONS WITH ANNOTATIONS 127 (1996-97) [hereinafter CEJA, Opinions on Practice Matters].
147. See Hall, Institutional Control, supra note 74, at 480. Not surprisingly, many physicians do not agree that managed care allows them to retain autonomy over medical treatment decisions. See CEJA, Ethical Issues, supra note 60; CEJA, Opinions on Practice Matters, § 8.13(2)(F), reprinted in CODE OF MEDICAL ETHICS: CURRENT OPINIONS WITH ANNOTATIONS 127 (1996-97) [hereinafter CEJA, Opinions on Practice Matters].
148. See Hall, Institutional Control, supra note 74, at 480. Not surprisingly, many physicians do not agree that managed care allows them to retain autonomy over medical treatment decisions. See CEJA, Ethical Issues, supra note 60; CEJA, Opinions on Practice Matters, § 8.13(2)(F), reprinted in CODE OF MEDICAL ETHICS: CURRENT OPINIONS WITH ANNOTATIONS 127 (1996-97) [hereinafter CEJA, Opinions on Practice Matters].
149. For a good overview of utilization review requirements, see Vernellia R. Randall, Managed Care, Utilization Review, and Financial Risk Shifting: Compensating Patients for Health Care Cost Containment Injuries, 17 U. PUGET SOUND L. REV. 1 (1994). Many states have adopted strict licensure requirements for entities that perform utilization review. See TEX. INS. CODE ANN. art. 21.58A (West Supp. 1999).
150. See Orentlicher, Health Care Reform, supra note 60, at 148-49. On the bioethics side, Professor Susan Wolf has described the evolution from the traditional dyadic physician-patient relationship to "organizational" bioethics, and finally to "systemic" bioethics. Wolf, Toward a Systematic Theory, supra note 51, at 1640-50.
151. See Orentlicher, Health Care Reform, supra note 60, at 148-49. On the bioethics side, Professor Susan Wolf has described the evolution from the traditional dyadic physician-patient relationship to "organizational" bioethics, and finally to "systemic" bioethics. Wolf, Toward a Systematic Theory, supra note 51, at 1640-50.
152. A growing literature chronicles the potential effects that managed care cost containment strategies may have on the traditional physician-patient relationship. See generally Carolyn M. Clancy & Howard Brody, Managed Care: Jekyll or Hyde?, 273 JAMA 338 (1995); Susan Dorr Gold, Commentary, Money and Trust: Relationships Between Patients, Physicians, and Health Plans, 23 J. HEALTH POL. POL'Y & L. 687 (1998) (discussing differences between patients' trust in physicians and trust in managed care organizations); David Mechanic, The Functions and Limitations of Trust in the Provision of Medical Care, 23 J. HEALTH POL. POL'Y & L. 661 (1998) (discussing the effect of changing health care arrangements on trust); David Mechanic & Mark Schlesinger, The Impact of Managed Care on Patients' Trust in Medical Care and Their Physicians, 275 JAMA 1693 (1996) (arguing for separation of physician's interests from health plan's interests); Orentlicher, Paying Physicians More to Do Less, supra note 74, at 191-97 (discussing limits on financial incentives for physicians); Rodwin, Strains in the Fiduciary Metaphor, supra note 37 at 241. As two commentators have noted, "[w]hatever the short-term financial gain to individual physicians, any system that sacrifices the quality of patient care eventually will destroy the profession of medicine as well." Edward P. Richards & Thomas R. McLean, Physicians in Managed Care: A Multidimensional Analysis of New Trends in Liability and Business Risk, 18 J. LEGAL MED. 443, 473 (1997).
153. A growing literature chronicles the potential effects that managed care cost containment strategies may have on the traditional physician-patient relationship. See generally Carolyn M. Clancy & Howard Brody, Managed Care: Jekyll or Hyde?, 273 JAMA 338 (1995); Susan Dorr Gold, Commentary, Money and Trust: Relationships Between Patients, Physicians, and Health Plans, 23 J. HEALTH POL. POL'Y & L. 687 (1998) (discussing differences between patients' trust in physicians and trust in managed care organizations); David Mechanic, The Functions and Limitations of Trust in the Provision of Medical Care, 23 J. HEALTH POL. POL'Y & L. 661 (1998) (discussing the effect of changing health care arrangements on trust); David Mechanic & Mark Schlesinger, The Impact of Managed Care on Patients' Trust in Medical Care and Their Physicians, 275 JAMA 1693 (1996) (arguing for separation of physician's interests from health plan's interests); Orentlicher, Paying Physicians More to Do Less, supra note 74, at 191-97 (discussing limits on financial incentives for physicians); Rodwin, Strains in the Fiduciary Metaphor, supra note 37 at 241. As two commentators have noted, "[w]hatever the short-term financial gain to individual physicians, any system that sacrifices the quality of patient care eventually will destroy the profession of medicine as well." Edward P. Richards & Thomas R. McLean, Physicians in Managed Care: A Multidimensional Analysis of New Trends in Liability and Business Risk, 18 J. LEGAL MED. 443, 473 (1997).
154. A growing literature chronicles the potential effects that managed care cost containment strategies may have on the traditional physician-patient relationship. See generally Carolyn M. Clancy & Howard Brody, Managed Care: Jekyll or Hyde?, 273 JAMA 338 (1995); Susan Dorr Gold, Commentary, Money and Trust: Relationships Between Patients, Physicians, and Health Plans, 23 J. HEALTH POL. POL'Y & L. 687 (1998) (discussing differences between patients' trust in physicians and trust in managed care organizations); David Mechanic, The Functions and Limitations of Trust in the Provision of Medical Care, 23 J. HEALTH POL. POL'Y & L. 661 (1998) (discussing the effect of changing health care arrangements on trust); David Mechanic & Mark Schlesinger, The Impact of Managed Care on Patients' Trust in Medical Care and Their Physicians, 275 JAMA 1693 (1996) (arguing for separation of physician's interests from health plan's interests); Orentlicher, Paying Physicians More to Do Less, supra note 74, at 191-97 (discussing limits on financial incentives for physicians); Rodwin, Strains in the Fiduciary Metaphor, supra note 37 at 241. As two commentators have noted, "[w]hatever the short-term financial gain to individual physicians, any system that sacrifices the quality of patient care eventually will destroy the profession of medicine as well." Edward P. Richards & Thomas R. McLean, Physicians in Managed Care: A Multidimensional Analysis of New Trends in Liability and Business Risk, 18 J. LEGAL MED. 443, 473 (1997).
155. A growing literature chronicles the potential effects that managed care cost containment strategies may have on the traditional physician-patient relationship. See generally Carolyn M. Clancy & Howard Brody, Managed Care: Jekyll or Hyde?, 273 JAMA 338 (1995); Susan Dorr Gold, Commentary, Money and Trust: Relationships Between Patients, Physicians, and Health Plans, 23 J. HEALTH POL. POL'Y & L. 687 (1998) (discussing differences between patients' trust in physicians and trust in managed care organizations); David Mechanic, The Functions and Limitations of Trust in the Provision of Medical Care, 23 J. HEALTH POL. POL'Y & L. 661 (1998) (discussing the effect of changing health care arrangements on trust); David Mechanic & Mark Schlesinger, The Impact of Managed Care on Patients' Trust in Medical Care and Their Physicians, 275 JAMA 1693 (1996) (arguing for separation of physician's interests from health plan's interests); Orentlicher, Paying Physicians More to Do Less, supra note 74, at 191-97 (discussing limits on financial incentives for physicians); Rodwin, Strains in the Fiduciary Metaphor, supra note 37 at 241. As two commentators have noted, "[w]hatever the short-term financial gain to individual physicians, any system that sacrifices the quality of patient care eventually will destroy the profession of medicine as well." Edward P. Richards & Thomas R. McLean, Physicians in Managed Care: A Multidimensional Analysis of New Trends in Liability and Business Risk, 18 J. LEGAL MED. 443, 473 (1997).
156. A growing literature chronicles the potential effects that managed care cost containment strategies may have on the traditional physician-patient relationship. See generally Carolyn M. Clancy & Howard Brody, Managed Care: Jekyll or Hyde?, 273 JAMA 338 (1995); Susan Dorr Gold, Commentary, Money and Trust: Relationships Between Patients, Physicians, and Health Plans, 23 J. HEALTH POL. POL'Y & L. 687 (1998) (discussing differences between patients' trust in physicians and trust in managed care organizations); David Mechanic, The Functions and Limitations of Trust in the Provision of Medical Care, 23 J. HEALTH POL. POL'Y & L. 661 (1998) (discussing the effect of changing health care arrangements on trust); David Mechanic & Mark Schlesinger, The Impact of Managed Care on Patients' Trust in Medical Care and Their Physicians, 275 JAMA 1693 (1996) (arguing for separation of physician's interests from health plan's interests); Orentlicher, Paying Physicians More to Do Less, supra note 74, at 191-97 (discussing limits on financial incentives for physicians); Rodwin, Strains in the Fiduciary Metaphor, supra note 37 at 241. As two commentators have noted, "[w]hatever the short-term financial gain to individual physicians, any system that sacrifices the quality of patient care eventually will destroy the profession of medicine as well." Edward P. Richards & Thomas R. McLean, Physicians in Managed Care: A Multidimensional Analysis of New Trends in Liability and Business Risk, 18 J. LEGAL MED. 443, 473 (1997).
157. A growing literature chronicles the potential effects that managed care cost containment strategies may have on the traditional physician-patient relationship. See generally Carolyn M. Clancy & Howard Brody, Managed Care: Jekyll or Hyde?, 273 JAMA 338 (1995); Susan Dorr Gold, Commentary, Money and Trust: Relationships Between Patients, Physicians, and Health Plans, 23 J. HEALTH POL. POL'Y & L. 687 (1998) (discussing differences between patients' trust in physicians and trust in managed care organizations); David Mechanic, The Functions and Limitations of Trust in the Provision of Medical Care, 23 J. HEALTH POL. POL'Y & L. 661 (1998) (discussing the effect of changing health care arrangements on trust); David Mechanic & Mark Schlesinger, The Impact of Managed Care on Patients' Trust in Medical Care and Their Physicians, 275 JAMA 1693 (1996) (arguing for separation of physician's interests from health plan's interests); Orentlicher, Paying Physicians More to Do Less, supra note 74, at 191-97 (discussing limits on financial incentives for physicians); Rodwin, Strains in the Fiduciary Metaphor, supra note 37 at 241. As two commentators have noted, "[w]hatever the short-term financial gain to individual physicians, any system that sacrifices the quality of patient care eventually will destroy the profession of medicine as well." Edward P. Richards & Thomas R. McLean, Physicians in Managed Care: A Multidimensional Analysis of New Trends in Liability and Business Risk, 18 J. LEGAL MED. 443, 473 (1997).
158. A growing literature chronicles the potential effects that managed care cost containment strategies may have on the traditional physician-patient relationship. See generally Carolyn M. Clancy & Howard Brody, Managed Care: Jekyll or Hyde?, 273 JAMA 338 (1995); Susan Dorr Gold, Commentary, Money and Trust: Relationships Between Patients, Physicians, and Health Plans, 23 J. HEALTH POL. POL'Y & L. 687 (1998) (discussing differences between patients' trust in physicians and trust in managed care organizations); David Mechanic, The Functions and Limitations of Trust in the Provision of Medical Care, 23 J. HEALTH POL. POL'Y & L. 661 (1998) (discussing the effect of changing health care arrangements on trust); David Mechanic & Mark Schlesinger, The Impact of Managed Care on Patients' Trust in Medical Care and Their Physicians, 275 JAMA 1693 (1996) (arguing for separation of physician's interests from health plan's interests); Orentlicher, Paying Physicians More to Do Less, supra note 74, at 191-97 (discussing limits on financial incentives for physicians); Rodwin, Strains in the Fiduciary Metaphor, supra note 37 at 241. As two commentators have noted, "[w]hatever the short-term financial gain to individual physicians, any system that sacrifices the quality of patient care eventually will destroy the profession of medicine as well." Edward P. Richards & Thomas R. McLean, Physicians in Managed Care: A Multidimensional Analysis of New Trends in Liability and Business Risk, 18 J. LEGAL MED. 443, 473 (1997).
159. See Orentlicher, Paying Physicians More to Do Less, supra note 74, at 161-62. For discussion of the potential adverse effects of managed care incentives on patient care, see generally RODWIN, MEDICINE, MONEY AND MORALS, supra note 40, at 152-56; Marc. A. Rodwin, Managed Care and the Elusive Quest for Accountable Health Care, 1 WIDENER L. SYMP. J. 65, 83 (1996) [hereinafter Rodwin, Managed Care and the Elusive Quest]. Some physicians have argued that these newer arrangements are not simply the inverse of fee-for-service medicine, but really the inverse of fee splitting: "Just as fee splitting allows doctors paid on a fee-for-service basis to profit from referring patients, so doctors under the new arrangements can profit from not referring patients." Steffie Woolhandler & David Himmelstein, Extreme Risk - The New Corporate Proposition for Physicians, 333 NEW ENG. J. MED. 1706, 1708 (1995). But see Franks et al., supra note 61, at 425 ("Although this market view of physicians' behavior is plausible, there is little evidence that primary care physicians withhold beneficial care for financial reasons."). Other commentators have noted that while managed care creates incentives to underutilize resources in the short run, the incentives are balanced to a certain extent by longer-term concerns. See Schwartz, supra note 55, at 1367-69. For example, an HMO that skimps on short-term care may raise its costs in the long run if patients require more intensive and expensive care for conditions that could have been identified and treated earlier. See id.
160. See Orentlicher, Paying Physicians More to Do Less, supra note 74, at 161-62. For discussion of the potential adverse effects of managed care incentives on patient care, see generally RODWIN, MEDICINE, MONEY AND MORALS, supra note 40, at 152-56; Marc. A. Rodwin, Managed Care and the Elusive Quest for Accountable Health Care, 1 WIDENER L. SYMP. J. 65, 83 (1996) [hereinafter Rodwin, Managed Care and the Elusive Quest]. Some physicians have argued that these newer arrangements are not simply the inverse of fee-for-service medicine, but really the inverse of fee splitting: "Just as fee splitting allows doctors paid on a fee-for-service basis to profit from referring patients, so doctors under the new arrangements can profit from not referring patients." Steffie Woolhandler & David Himmelstein, Extreme Risk - The New Corporate Proposition for Physicians, 333 NEW ENG. J. MED. 1706, 1708 (1995). But see Franks et al., supra note 61, at 425 ("Although this market view of physicians' behavior is plausible, there is little evidence that primary care physicians withhold beneficial care for financial reasons."). Other commentators have noted that while managed care creates incentives to underutilize resources in the short run, the incentives are balanced to a certain extent by longer-term concerns. See Schwartz, supra note 55, at 1367-69. For example, an HMO that skimps on short-term care may raise its costs in the long run if patients require more intensive and expensive care for conditions that could have been identified and treated earlier. See id.
161. See Orentlicher, Paying Physicians More to Do Less, supra note 74, at 161-62. For discussion of the potential adverse effects of managed care incentives on patient care, see generally RODWIN, MEDICINE, MONEY AND MORALS, supra note 40, at 152-56; Marc. A. Rodwin, Managed Care and the Elusive Quest for Accountable Health Care, 1 WIDENER L. SYMP. J. 65, 83 (1996) [hereinafter Rodwin, Managed Care and the Elusive Quest]. Some physicians have argued that these newer arrangements are not simply the inverse of fee-for-service medicine, but really the inverse of fee splitting: "Just as fee splitting allows doctors paid on a fee-for-service basis to profit from referring patients, so doctors under the new arrangements can profit from not referring patients." Steffie Woolhandler & David Himmelstein, Extreme Risk - The New Corporate Proposition for Physicians, 333 NEW ENG. J. MED. 1706, 1708 (1995). But see Franks et al., supra note 61, at 425 ("Although this market view of physicians' behavior is plausible, there is little evidence that primary care physicians withhold beneficial care for financial reasons."). Other commentators have noted that while managed care creates incentives to underutilize resources in the short run, the incentives are balanced to a certain extent by longer-term concerns. See Schwartz, supra note 55, at 1367-69. For example, an HMO that skimps on short-term care may raise its costs in the long run if patients require more intensive and expensive care for conditions that could have been identified and treated earlier. See id.
162. See Orentlicher, Paying Physicians More to Do Less, supra note 74, at 161-62. For discussion of the potential adverse effects of managed care incentives on patient care, see generally RODWIN, MEDICINE, MONEY AND MORALS, supra note 40, at 152-56; Marc. A. Rodwin, Managed Care and the Elusive Quest for Accountable Health Care, 1 WIDENER L. SYMP. J. 65, 83 (1996) [hereinafter Rodwin, Managed Care and the Elusive Quest]. Some physicians have argued that these newer arrangements are not simply the inverse of fee-for-service medicine, but really the inverse of fee splitting: "Just as fee splitting allows doctors paid on a fee-for-service basis to profit from referring patients, so doctors under the new arrangements can profit from not referring patients." Steffie Woolhandler & David Himmelstein, Extreme Risk - The New Corporate Proposition for Physicians, 333 NEW ENG. J. MED. 1706, 1708 (1995). But see Franks et al., supra note 61, at 425 ("Although this market view of physicians' behavior is plausible, there is little evidence that primary care physicians withhold beneficial care for financial reasons."). Other commentators have noted that while managed care creates incentives to underutilize resources in the short run, the incentives are balanced to a certain extent by longer-term concerns. See Schwartz, supra note 55, at 1367-69. For example, an HMO that skimps on short-term care may raise its costs in the long run if patients require more intensive and expensive care for conditions that could have been identified and treated earlier. See id.
163. See Orentlicher, Paying Physicians More to Do Less, supra note 74, at 161-62. For discussion of the potential adverse effects of managed care incentives on patient care, see generally RODWIN, MEDICINE, MONEY AND MORALS, supra note 40, at 152-56; Marc. A. Rodwin, Managed Care and the Elusive Quest for Accountable Health Care, 1 WIDENER L. SYMP. J. 65, 83 (1996) [hereinafter Rodwin, Managed Care and the Elusive Quest]. Some physicians have argued that these newer arrangements are not simply the inverse of fee-for-service medicine, but really the inverse of fee splitting: "Just as fee splitting allows doctors paid on a fee-for-service basis to profit from referring patients, so doctors under the new arrangements can profit from not referring patients." Steffie Woolhandler & David Himmelstein, Extreme Risk - The New Corporate Proposition for Physicians, 333 NEW ENG. J. MED. 1706, 1708 (1995). But see Franks et al., supra note 61, at 425 ("Although this market view of physicians' behavior is plausible, there is little evidence that primary care physicians withhold beneficial care for financial reasons."). Other commentators have noted that while managed care creates incentives to underutilize resources in the short run, the incentives are balanced to a certain extent by longer-term concerns. See Schwartz, supra note 55, at 1367-69. For example, an HMO that skimps on short-term care may raise its costs in the long run if patients require more intensive and expensive care for conditions that could have been identified and treated earlier. See id.
164. In one highly publicized case, a jury awarded $2.9 million (later reduced to $700,000) to the family of Joyce Ching, who died of colon cancer after her primary care physicians refused to refer her to a specialist despite repeated requests. Her family argued that the doctors delayed sending Mrs. Ching to a specialist because the HMO gave them incentives to limit referrals. Although the family was successful on its medical malpractice and wrongful death claims, the judge dismissed a breach of fiduciary duty claim alleging that the doctors rendered substandard care based on financial considerations. See Ching v. Gaines, No. 137656 (Super. Ct., Ventura Co., Cal., Nov. 15, 1995); Family of Deceased Cancer Patient Wins $3 Million: Case Questions Doc Incentives, 4 HEALTH L. REP. (BNA) 54 (1995); Nancy J. Picinic, Note, Physicians Bound and Gagged: Federal Attempts to Combat Managed Care's Use of Gag Clauses, 21 SETON HALL LEGIS. J. 567, 568-69 (1997). In another case profiled on the cover of Time magazine, breast cancer patient Christine deMeurers was denied a potentially life-saving bone marrow transplant by her HMO. Although she eventually underwent the transplant at her own expense, it was not successful. Arguing that the HMO had interfered with the physician-patient relationship by preventing physicians from suggesting the transplant at a time when it might have been more viable, her family was later awarded $1.02 million in arbitration. See Jan Crawford, Comment, Tort Law: The Appropriate Vehicle to Control HMO Abuse of Gag Clauses, 29 ARIZ. ST. L.J. 1103 (1997); Erik Larson, The Soul of an HMO, TIME, Jan. 22, 1996, at 44. For other anecdotes shared at a congressional hearing on this topic, see Contract Issues and Quality Standards for Managed Care, 1996: Hearings Before the Subcomm. on Health and Environment of the House Comm. on Commerce, 104th Cong. (1996).
165. In one highly publicized case, a jury awarded $2.9 million (later reduced to $700,000) to the family of Joyce Ching, who died of colon cancer after her primary care physicians refused to refer her to a specialist despite repeated requests. Her family argued that the doctors delayed sending Mrs. Ching to a specialist because the HMO gave them incentives to limit referrals. Although the family was successful on its medical malpractice and wrongful death claims, the judge dismissed a breach of fiduciary duty claim alleging that the doctors rendered substandard care based on financial considerations. See Ching v. Gaines, No. 137656 (Super. Ct., Ventura Co., Cal., Nov. 15, 1995); Family of Deceased Cancer Patient Wins $3 Million: Case Questions Doc Incentives, 4 HEALTH L. REP. (BNA) 54 (1995); Nancy J. Picinic, Note, Physicians Bound and Gagged: Federal Attempts to Combat Managed Care's Use of Gag Clauses, 21 SETON HALL LEGIS. J. 567, 568-69 (1997). In another case profiled on the cover of Time magazine, breast cancer patient Christine deMeurers was denied a potentially life-saving bone marrow transplant by her HMO. Although she eventually underwent the transplant at her own expense, it was not successful. Arguing that the HMO had interfered with the physician-patient relationship by preventing physicians from suggesting the transplant at a time when it might have been more viable, her family was later awarded $1.02 million in arbitration. See Jan Crawford, Comment, Tort Law: The Appropriate Vehicle to Control HMO Abuse of Gag Clauses, 29 ARIZ. ST. L.J. 1103 (1997); Erik Larson, The Soul of an HMO, TIME, Jan. 22, 1996, at 44. For other anecdotes shared at a congressional hearing on this topic, see Contract Issues and Quality Standards for Managed Care, 1996: Hearings Before the Subcomm. on Health and Environment of the House Comm. on Commerce, 104th Cong. (1996).
166. In one highly publicized case, a jury awarded $2.9 million (later reduced to $700,000) to the family of Joyce Ching, who died of colon cancer after her primary care physicians refused to refer her to a specialist despite repeated requests. Her family argued that the doctors delayed sending Mrs. Ching to a specialist because the HMO gave them incentives to limit referrals. Although the family was successful on its medical malpractice and wrongful death claims, the judge dismissed a breach of fiduciary duty claim alleging that the doctors rendered substandard care based on financial considerations. See Ching v. Gaines, No. 137656 (Super. Ct., Ventura Co., Cal., Nov. 15, 1995); Family of Deceased Cancer Patient Wins $3 Million: Case Questions Doc Incentives, 4 HEALTH L. REP. (BNA) 54 (1995); Nancy J. Picinic, Note, Physicians Bound and Gagged: Federal Attempts to Combat Managed Care's Use of Gag Clauses, 21 SETON HALL LEGIS. J. 567, 568-69 (1997). In another case profiled on the cover of Time magazine, breast cancer patient Christine deMeurers was denied a potentially life-saving bone marrow transplant by her HMO. Although she eventually underwent the transplant at her own expense, it was not successful. Arguing that the HMO had interfered with the physician-patient relationship by preventing physicians from suggesting the transplant at a time when it might have been more viable, her family was later awarded $1.02 million in arbitration. See Jan Crawford, Comment, Tort Law: The Appropriate Vehicle to Control HMO Abuse of Gag Clauses, 29 ARIZ. ST. L.J. 1103 (1997); Erik Larson, The Soul of an HMO, TIME, Jan. 22, 1996, at 44. For other anecdotes shared at a congressional hearing on this topic, see Contract Issues and Quality Standards for Managed Care, 1996: Hearings Before the Subcomm. on Health and Environment of the House Comm. on Commerce, 104th Cong. (1996).
167. In one highly publicized case, a jury awarded $2.9 million (later reduced to $700,000) to the family of Joyce Ching, who died of colon cancer after her primary care physicians refused to refer her to a specialist despite repeated requests. Her family argued that the doctors delayed sending Mrs. Ching to a specialist because the HMO gave them incentives to limit referrals. Although the family was successful on its medical malpractice and wrongful death claims, the judge dismissed a breach of fiduciary duty claim alleging that the doctors rendered substandard care based on financial considerations. See Ching v. Gaines, No. 137656 (Super. Ct., Ventura Co., Cal., Nov. 15, 1995); Family of Deceased Cancer Patient Wins $3 Million: Case Questions Doc Incentives, 4 HEALTH L. REP. (BNA) 54 (1995); Nancy J. Picinic, Note, Physicians Bound and Gagged: Federal Attempts to Combat Managed Care's Use of Gag Clauses, 21 SETON HALL LEGIS. J. 567, 568-69 (1997). In another case profiled on the cover of Time magazine, breast cancer patient Christine deMeurers was denied a potentially life-saving bone marrow transplant by her HMO. Although she eventually underwent the transplant at her own expense, it was not successful. Arguing that the HMO had interfered with the physician-patient relationship by preventing physicians from suggesting the transplant at a time when it might have been more viable, her family was later awarded $1.02 million in arbitration. See Jan Crawford, Comment, Tort Law: The Appropriate Vehicle to Control HMO Abuse of Gag Clauses, 29 ARIZ. ST. L.J. 1103 (1997); Erik Larson, The Soul of an HMO, TIME, Jan. 22, 1996, at 44. For other anecdotes shared at a congressional hearing on this topic, see Contract Issues and Quality Standards for Managed Care, 1996: Hearings Before the Subcomm. on Health and Environment of the House Comm. on Commerce, 104th Cong. (1996).
168. In one highly publicized case, a jury awarded $2.9 million (later reduced to $700,000) to the family of Joyce Ching, who died of colon cancer after her primary care physicians refused to refer her to a specialist despite repeated requests. Her family argued that the doctors delayed sending Mrs. Ching to a specialist because the HMO gave them incentives to limit referrals. Although the family was successful on its medical malpractice and wrongful death claims, the judge dismissed a breach of fiduciary duty claim alleging that the doctors rendered substandard care based on financial considerations. See Ching v. Gaines, No. 137656 (Super. Ct., Ventura Co., Cal., Nov. 15, 1995); Family of Deceased Cancer Patient Wins $3 Million: Case Questions Doc Incentives, 4 HEALTH L. REP. (BNA) 54 (1995); Nancy J. Picinic, Note, Physicians Bound and Gagged: Federal Attempts to Combat Managed Care's Use of Gag Clauses, 21 SETON HALL LEGIS. J. 567, 568-69 (1997). In another case profiled on the cover of Time magazine, breast cancer patient Christine deMeurers was denied a potentially life-saving bone marrow transplant by her HMO. Although she eventually underwent the transplant at her own expense, it was not successful. Arguing that the HMO had interfered with the physician-patient relationship by preventing physicians from suggesting the transplant at a time when it might have been more viable, her family was later awarded $1.02 million in arbitration. See Jan Crawford, Comment, Tort Law: The Appropriate Vehicle to Control HMO Abuse of Gag Clauses, 29 ARIZ. ST. L.J. 1103 (1997); Erik Larson, The Soul of an HMO, TIME, Jan. 22, 1996, at 44. For other anecdotes shared at a congressional hearing on this topic, see Contract Issues and Quality Standards for Managed Care, 1996: Hearings Before the Subcomm. on Health and Environment of the House Comm. on Commerce, 104th Cong. (1996).
169. See Blendon et al., supra note 75, at 90 (describing effect of HMO "horror stories"); David A. Rochefort, The Role of Anecdotes in Managed Care, HEALTH AFFAIRS, Nov.-Dec. 1998, at 142 (describing role of anecdotal information). But see David A. Hyman, Consumer Protection in a Managed Care World: Should Consumers Call 911?, 43 VILL. L. REV. 409, 459 (1998) (criticizing this method of "attack by anecdote").
170. See Blendon et al., supra note 75, at 90 (describing effect of HMO "horror stories"); David A. Rochefort, The Role of Anecdotes in Managed Care, HEALTH AFFAIRS, Nov.-Dec. 1998, at 142 (describing role of anecdotal information). But see David A. Hyman, Consumer Protection in a Managed Care World: Should Consumers Call 911?, 43 VILL. L. REV. 409, 459 (1998) (criticizing this method of "attack by anecdote").
171. See Blendon et al., supra note 75, at 90 (describing effect of HMO "horror stories"); David A. Rochefort, The Role of Anecdotes in Managed Care, HEALTH AFFAIRS, Nov.-Dec. 1998, at 142 (describing role of anecdotal information). But see David A. Hyman, Consumer Protection in a Managed Care World: Should Consumers Call 911?, 43 VILL. L. REV. 409, 459 (1998) (criticizing this method of "attack by anecdote").
172. See, e.g., Daniel J. Cher & Leslie A. Lenert, Method of Medicare Reimbursement and the Rate of Potentially Ineffective Care of Critically Ill Patients, 278 JAMA 1001 (1997) (study of potentially ineffective care given to
173. See, e.g., Daniel J. Cher & Leslie A. Lenert, Method of Medicare Reimbursement and the Rate of Potentially Ineffective Care of Critically Ill Patients, 278 JAMA 1001 (1997) (study of potentially ineffective care given to Medicare patients suggests that HMOs may be better at limiting or avoiding "injudicious" use of critical care near end of life); Franks et al., supra note 61, at 426 (arguing that primary care physicians are superior "gatekeepers" compared to specialists); Robert H. Miller & Harold S. Luft, Does Managed Care Lead To Better Or Worse Quality of Care?, HEALTH AFFAIRS, Sept-Oct. 1997, at 8 (review of peer-reviewed literature showed equal numbers of better and worse HMO results, although Medicare enrollees with chronic conditions had worse quality of care); Orentlicher, Health Care Reform, supra note 60, at 161-66; Furrow, supra note 71, at 433-42; Bruce D. Platt & Lisa D. Stream, Dispelling the Negative Myths of Managed Care: An Analysis of Anti-Managed Care Legislation and the Quality of Care Provided by Health Maintenance Organizations, 23 FLA. ST. U. L. REV. 489 (1995) (reviewing objective studies and concluding that quality of care in HMOs is often equal to or better than care in fee-for-service settings, and at lower cost).
174. See, e.g., Daniel J. Cher & Leslie A. Lenert, Method of Medicare Reimbursement and the Rate of Potentially Ineffective Care of Critically Ill Patients, 278 JAMA 1001 (1997) (study of potentially ineffective care given to Medicare patients suggests that HMOs may be better at limiting or avoiding "injudicious" use of critical care near end of life); Franks et al., supra note 61, at 426 (arguing that primary care physicians are superior "gatekeepers" compared to specialists); Robert H. Miller & Harold S. Luft, Does Managed Care Lead To Better Or Worse Quality of Care?, HEALTH AFFAIRS, Sept-Oct. 1997, at 8 (review of peer-reviewed literature showed equal numbers of better and worse HMO results, although Medicare enrollees with chronic conditions had worse quality of care); Orentlicher, Health Care Reform, supra note 60, at 161-66; Furrow, supra note 71, at 433-42; Bruce D. Platt & Lisa D. Stream, Dispelling the Negative Myths of Managed Care: An Analysis of Anti-Managed Care Legislation and the Quality of Care Provided by Health Maintenance Organizations, 23 FLA. ST. U. L. REV. 489 (1995) (reviewing objective studies and concluding that quality of care in HMOs is often equal to or better than care in fee-for-service settings, and at lower cost).
175. See, e.g., Daniel J. Cher & Leslie A. Lenert, Method of Medicare Reimbursement and the Rate of Potentially Ineffective Care of Critically Ill Patients, 278 JAMA 1001 (1997) (study of potentially ineffective care given to Medicare patients suggests that HMOs may be better at limiting or avoiding "injudicious" use of critical care near end of life); Franks et al., supra note 61, at 426 (arguing that primary care physicians are superior "gatekeepers" compared to specialists); Robert H. Miller & Harold S. Luft, Does Managed Care Lead To Better Or Worse Quality of Care?, HEALTH AFFAIRS, Sept-Oct. 1997, at 8 (review of peer-reviewed literature showed equal numbers of better and worse HMO results, although Medicare enrollees with chronic conditions had worse quality of care); Orentlicher, Health Care Reform, supra note 60, at 161-66; Furrow, supra note 71, at 433-42; Bruce D. Platt & Lisa D. Stream, Dispelling the Negative Myths of Managed Care: An Analysis of Anti-Managed Care Legislation and the Quality of Care Provided by Health Maintenance Organizations, 23 FLA. ST. U. L. REV. 489 (1995) (reviewing objective studies and concluding that quality of care in HMOs is often equal to or better than care in fee-for-service settings, and at lower cost).
176. See, e.g., Daniel J. Cher & Leslie A. Lenert, Method of Medicare Reimbursement and the Rate of Potentially Ineffective Care of Critically Ill Patients, 278 JAMA 1001 (1997) (study of potentially ineffective care given to Medicare patients suggests that HMOs may be better at limiting or avoiding "injudicious" use of critical care near end of life); Franks et al., supra note 61, at 426 (arguing that primary care physicians are superior "gatekeepers" compared to specialists); Robert H. Miller & Harold S. Luft, Does Managed Care Lead To Better Or Worse Quality of Care?, HEALTH AFFAIRS, Sept-Oct. 1997, at 8 (review of peer-reviewed literature showed equal numbers of better and worse HMO results, although Medicare enrollees with chronic conditions had worse quality of care); Orentlicher, Health Care Reform, supra note 60, at 161-66; Furrow, supra note 71, at 433-42; Bruce D. Platt & Lisa D. Stream, Dispelling the Negative Myths of Managed Care: An Analysis of Anti-Managed Care Legislation and the Quality of Care Provided by Health Maintenance Organizations, 23 FLA. ST. U. L. REV. 489 (1995) (reviewing objective studies and concluding that quality of care in HMOs is often equal to or better than care in fee-for-service settings, and at lower cost).
177. See, e.g., Daniel J. Cher & Leslie A. Lenert, Method of Medicare Reimbursement and the Rate of Potentially Ineffective Care of Critically Ill Patients, 278 JAMA 1001 (1997) (study of potentially ineffective care given to Medicare patients suggests that HMOs may be better at limiting or avoiding "injudicious" use of critical care near end of life); Franks et al., supra note 61, at 426 (arguing that primary care physicians are superior "gatekeepers" compared to specialists); Robert H. Miller & Harold S. Luft, Does Managed Care Lead To Better Or Worse Quality of Care?, HEALTH AFFAIRS, Sept-Oct. 1997, at 8 (review of peer-reviewed literature showed equal numbers of better and worse HMO results, although Medicare enrollees with chronic conditions had worse quality of care); Orentlicher, Health Care Reform, supra note 60, at 161-66; Furrow, supra note 71, at 433-42; Bruce D. Platt & Lisa D. Stream, Dispelling the Negative Myths of Managed Care: An Analysis of Anti-Managed Care Legislation and the Quality of Care Provided by Health Maintenance Organizations, 23 FLA. ST. U. L. REV. 489 (1995) (reviewing objective studies and concluding that quality of care in HMOs is often equal to or better than care in fee-for-service settings, and at lower cost).
178. See Consumer Satisfaction: HMO Consumers More Satisfied in Mature Markets, NRC Survey Finds, 4 MANAGED CARE REP. (BNA) 426 (1998) (citing a National Research Corporation survey which concluded that consumer satisfaction increased as HMO penetration in market increased). But see Audley C. Kao et al., The Relationship Between Method of Physician Payment and Patient Trust, 280 JAMA 1708 (1998) (finding that fee-for-service patients have higher levels of trust in physicians than MCO patients).
179. See Consumer Satisfaction: HMO Consumers More Satisfied in Mature Markets, NRC Survey Finds, 4 MANAGED CARE REP. (BNA) 426 (1998) (citing a National Research Corporation survey which concluded that consumer satisfaction increased as HMO penetration in market increased). But see Audley C. Kao et al., The Relationship Between Method of Physician Payment and Patient Trust, 280 JAMA 1708 (1998) (finding that fee-for-service patients have higher levels of trust in physicians than MCO patients).
180. For studies reporting negative physician views of managed care, see, for example, Karen Donelan et al., The New Medical Marketplace: Physicians' Views, HEALTH AFFAIRS, Sept.-Oct. 1997, at 137 (revealing that physicians in higher HMO penetration areas are more likely to report serious problems with several aspects of medical practice and patient care); Kevin Grumbach et al., Primary Care Physicians' Experience of Financial Incentives in Managed-Care Systems, 339 NEW ENG. J. MED. 1516 (1998) (arguing that incentives based on quality of care and patient satisfaction are linked to greater job satisfaction among physicians); Jack Hadley & Jean M. Mitchell, Effects of HMO Market Penetration on Physicians' Work Effort and Satisfaction, HEALTH AFFAIRS, Nov.-Dec. 1997, at 99 (pointing out that HMO penetration is associated with fewer hours worked and fewer patients seen per week, but greater likelihood of not being very satisfied with current practice). For articles reporting positive physician reaction to managed care, see, for example, Franks et al., supra note 61, at 424-29 (lauding potential for using gatekeepers to protect patients from adverse effects of unnecessary treatment); Ethan A. Halm et al., Is Gatekeeping Better Than Traditional Care?: A Survey of Physicians' Attitudes, 278 JAMA 1677 (1997) (reporting that although physicians identified both positive and negative aspects of gatekeeping, 72% of physicians surveyed thought gatekeeping was better than or comparable to traditional arrangements).
181. For studies reporting negative physician views of managed care, see, for example, Karen Donelan et al., The New Medical Marketplace: Physicians' Views, HEALTH AFFAIRS, Sept.-Oct. 1997, at 137 (revealing that physicians in higher HMO penetration areas are more likely to report serious problems with several aspects of medical practice and patient care); Kevin Grumbach et al., Primary Care Physicians' Experience of Financial Incentives in Managed-Care Systems, 339 NEW ENG. J. MED. 1516 (1998) (arguing that incentives based on quality of care and patient satisfaction are linked to greater job satisfaction among physicians); Jack Hadley & Jean M. Mitchell, Effects of HMO Market Penetration on Physicians' Work Effort and Satisfaction, HEALTH AFFAIRS, Nov.-Dec. 1997, at 99 (pointing out that HMO penetration is associated with fewer hours worked and fewer patients seen per week, but greater likelihood of not being very satisfied with current practice). For articles reporting positive physician reaction to managed care, see, for example, Franks et al., supra note 61, at 424-29 (lauding potential for using gatekeepers to protect patients from adverse effects of unnecessary treatment); Ethan A. Halm et al., Is Gatekeeping Better Than Traditional Care?: A Survey of Physicians' Attitudes, 278 JAMA 1677 (1997) (reporting that although physicians identified both positive and negative aspects of gatekeeping, 72% of physicians surveyed thought gatekeeping was better than or comparable to traditional arrangements).
182. For studies reporting negative physician views of managed care, see, for example, Karen Donelan et al., The New Medical Marketplace: Physicians' Views, HEALTH AFFAIRS, Sept.-Oct. 1997, at 137 (revealing that physicians in higher HMO penetration areas are more likely to report serious problems with several aspects of medical practice and patient care); Kevin Grumbach et al., Primary Care Physicians' Experience of Financial Incentives in Managed-Care Systems, 339 NEW ENG. J. MED. 1516 (1998) (arguing that incentives based on quality of care and patient satisfaction are linked to greater job satisfaction among physicians); Jack Hadley & Jean M. Mitchell, Effects of HMO Market Penetration on Physicians' Work Effort and Satisfaction, HEALTH AFFAIRS, Nov.-Dec. 1997, at 99 (pointing out that HMO penetration is associated with fewer hours worked and fewer patients seen per week, but greater likelihood of not being very satisfied with current practice). For articles reporting positive physician reaction to managed care, see, for example, Franks et al., supra note 61, at 424-29 (lauding potential for using gatekeepers to protect patients from adverse effects of unnecessary treatment); Ethan A. Halm et al., Is Gatekeeping Better Than Traditional Care?: A Survey of Physicians' Attitudes, 278 JAMA 1677 (1997) (reporting that although physicians identified both positive and negative aspects of gatekeeping, 72% of physicians surveyed thought gatekeeping was better than or comparable to traditional arrangements).
183. For studies reporting negative physician views of managed care, see, for example, Karen Donelan et al., The New Medical Marketplace: Physicians' Views, HEALTH AFFAIRS, Sept.-Oct. 1997, at 137 (revealing that physicians in higher HMO penetration areas are more likely to report serious problems with several aspects of medical practice and patient care); Kevin Grumbach et al., Primary Care Physicians' Experience of Financial Incentives in Managed-Care Systems, 339 NEW ENG. J. MED. 1516 (1998) (arguing that incentives based on quality of care and patient satisfaction are linked to greater job satisfaction among physicians); Jack Hadley & Jean M. Mitchell, Effects of HMO Market Penetration on Physicians' Work Effort and Satisfaction, HEALTH AFFAIRS, Nov.-Dec. 1997, at 99 (pointing out that HMO penetration is associated with fewer hours worked and fewer patients seen per week, but greater likelihood of not being very satisfied with current practice). For articles reporting positive physician reaction to managed care, see, for example, Franks et al., supra note 61, at 424-29 (lauding potential for using gatekeepers to protect patients from adverse effects of unnecessary treatment); Ethan A. Halm et al., Is Gatekeeping Better Than Traditional Care?: A Survey of Physicians' Attitudes, 278 JAMA 1677 (1997) (reporting that although physicians identified both positive and negative aspects of gatekeeping, 72% of physicians surveyed thought gatekeeping was better than or comparable to traditional arrangements).
184. For studies reporting negative physician views of managed care, see, for example, Karen Donelan et al., The New Medical Marketplace: Physicians' Views, HEALTH AFFAIRS, Sept.-Oct. 1997, at 137 (revealing that physicians in higher HMO penetration areas are more likely to report serious problems with several aspects of medical practice and patient care); Kevin Grumbach et al., Primary Care Physicians' Experience of Financial Incentives in Managed-Care Systems, 339 NEW ENG. J. MED. 1516 (1998) (arguing that incentives based on quality of care and patient satisfaction are linked to greater job satisfaction among physicians); Jack Hadley & Jean M. Mitchell, Effects of HMO Market Penetration on Physicians' Work Effort and Satisfaction, HEALTH AFFAIRS, Nov.-Dec. 1997, at 99 (pointing out that HMO penetration is associated with fewer hours worked and fewer patients seen per week, but greater likelihood of not being very satisfied with current practice). For articles reporting positive physician reaction to managed care, see, for example, Franks et al., supra note 61, at 424-29 (lauding potential for using gatekeepers to protect patients from adverse effects of unnecessary treatment); Ethan A. Halm et al., Is Gatekeeping Better Than Traditional Care?: A Survey of Physicians' Attitudes, 278 JAMA 1677 (1997) (reporting that although physicians identified both positive and negative aspects of gatekeeping, 72% of physicians surveyed thought gatekeeping was better than or comparable to traditional arrangements).
185. See, e.g. HMOs Expand Presence to 301 Markets, But Wide Regional Variations Persist, 4 HEALTH CARE POL'Y REP. (BNA) 1108 (1996) (finding that level of penetration varies geographically); Friedman, supra note 71 (describing differences in Minnesota, California, Alaska, and Wyoming markets); Henry T. Greely, Direct Financial Incentives in Managed Care: Unanswered Questions, 6 HEALTH MATRIX 53 (1996) (describing variations).
186. See, e.g. HMOs Expand Presence to 301 Markets, But Wide Regional Variations Persist, 4 HEALTH CARE POL'Y REP. (BNA) 1108 (1996) (finding that level of penetration varies geographically); Friedman, supra note 71 (describing differences in Minnesota, California, Alaska, and Wyoming markets); Henry T. Greely, Direct Financial Incentives in Managed Care: Unanswered Questions, 6 HEALTH MATRIX 53 (1996) (describing variations).
187. See, e.g., Ezekiel J. Emanuel & Lee Goldman, Protecting Patient Welfare in Managed Care: Six Safeguards, 23 J. HEALTH POL. POL'Y & L. 635 (1998) (describing safeguards for MCOs); Orentlicher, Health Care Reform, supra note 60, at 167-69 (discussing types of incentives with a high potential for abuse); Orentlicher, Paying Physicians More to Do Less, supra note 74, at 191-97 (discussing how to determine permissible ranges of incentives). Federal regulations restrict the permissible types of financial incentives for MCOs that provide services to Medicare and Medicaid patients. 42 C.F.R. § 417.479 (1999). Among other things, the regulations (which apply to plans that base financial risk on referrals for less than 25,000 patients) prohibit payments made as an inducement to limit medically necessary services for an individual patient. Moreover, plans that place physicians at "substantial financial risk" (defined as more than 25% of the physician's compensation) must provide stop-loss protection and meet specified enrollee survey and disclosure requirements. See id. At least 21 states have addressed this issue by prohibiting the use of incentives that act as inducements for physicians to limit "medically necessary" services. See D. Ward Pimley, States Tell Health Plans That Incentives May Not Limit Medically Necessary Care, 4 MANAGED CARE REP. (BNA) 1030 (1998). While such laws may prove popular litigation tools, they are criticized for offering "virtually no guidance about how [the medical necessity] principle will be applied in practice." Tracy E. Miller, Managed Care Regulation: In the Laboratory of the States, 278 JAMA 1102, 1108 (1997) [hereinafter Miller, Managed Care Regulation]. The Texas Attorney General recently filed suit against several HMOs for violating the new Texas provision. See, e.g., Texas v. Aetna United States Healthcare Inc., No. 98-13972 (Tex. Dist. Ct., filed Dec. 16, 1998); Texas v. Humana Health Plan of Texas, Inc., No. 98-13973 (Tex. Dist. Ct., filed Dec. 16, 1998); Texas v. Pacificare of Texas Inc., No. 98-13971 (Tex. Dist. Ct., filed Dec. 16, 1998).
188. See, e.g., Ezekiel J. Emanuel & Lee Goldman, Protecting Patient Welfare in Managed Care: Six Safeguards, 23 J. HEALTH POL. POL'Y & L. 635 (1998) (describing safeguards for MCOs); Orentlicher, Health Care Reform, supra note 60, at 167-69 (discussing types of incentives with a high potential for abuse); Orentlicher, Paying Physicians More to Do Less, supra note 74, at 191-97 (discussing how to determine permissible ranges of incentives). Federal regulations restrict the permissible types of financial incentives for MCOs that provide services to Medicare and Medicaid patients. 42 C.F.R. § 417.479 (1999). Among other things, the regulations (which apply to plans that base financial risk on referrals for less than 25,000 patients) prohibit payments made as an inducement to limit medically necessary services for an individual patient. Moreover, plans that place physicians at "substantial financial risk" (defined as more than 25% of the physician's compensation) must provide stop-loss protection and meet specified enrollee survey and disclosure requirements. See id. At least 21 states have addressed this issue by prohibiting the use of incentives that act as inducements for physicians to limit "medically necessary" services. See D. Ward Pimley, States Tell Health Plans That Incentives May Not Limit Medically Necessary Care, 4 MANAGED CARE REP. (BNA) 1030 (1998). While such laws may prove popular litigation tools, they are criticized for offering "virtually no guidance about how [the medical necessity] principle will be applied in practice." Tracy E. Miller, Managed Care Regulation: In the Laboratory of the States, 278 JAMA 1102, 1108 (1997) [hereinafter Miller, Managed Care Regulation]. The Texas Attorney General recently filed suit against several HMOs for violating the new Texas provision. See, e.g., Texas v. Aetna United States Healthcare Inc., No. 98-13972 (Tex. Dist. Ct., filed Dec. 16, 1998); Texas v. Humana Health Plan of Texas, Inc., No. 98-13973 (Tex. Dist. Ct., filed Dec. 16, 1998); Texas v. Pacificare of Texas Inc., No. 98-13971 (Tex. Dist. Ct., filed Dec. 16, 1998).
189. See, e.g., Ezekiel J. Emanuel & Lee Goldman, Protecting Patient Welfare in Managed Care: Six Safeguards, 23 J. HEALTH POL. POL'Y & L. 635 (1998) (describing safeguards for MCOs); Orentlicher, Health Care Reform, supra note 60, at 167-69 (discussing types of incentives with a high potential for abuse); Orentlicher, Paying Physicians More to Do Less, supra note 74, at 191-97 (discussing how to determine permissible ranges of incentives). Federal regulations restrict the permissible types of financial incentives for MCOs that provide services to Medicare and Medicaid patients. 42 C.F.R. § 417.479 (1999). Among other things, the regulations (which apply to plans that base financial risk on referrals for less than 25,000 patients) prohibit payments made as an inducement to limit medically necessary services for an individual patient. Moreover, plans that place physicians at "substantial financial risk" (defined as more than 25% of the physician's compensation) must provide stop-loss protection and meet specified enrollee survey and disclosure requirements. See id. At least 21 states have addressed this issue by prohibiting the use of incentives that act as inducements for physicians to limit "medically necessary" services. See D. Ward Pimley, States Tell Health Plans That Incentives May Not Limit Medically Necessary Care, 4 MANAGED CARE REP. (BNA) 1030 (1998). While such laws may prove popular litigation tools, they are criticized for offering "virtually no guidance about how [the medical necessity] principle will be applied in practice." Tracy E. Miller, Managed Care Regulation: In the Laboratory of the States, 278 JAMA 1102, 1108 (1997) [hereinafter Miller, Managed Care Regulation]. The Texas Attorney General recently filed suit against several HMOs for violating the new Texas provision. See, e.g., Texas v. Aetna United States Healthcare Inc., No. 98-13972 (Tex. Dist. Ct., filed Dec. 16, 1998); Texas v. Humana Health Plan of Texas, Inc., No. 98-13973 (Tex. Dist. Ct., filed Dec. 16, 1998); Texas v. Pacificare of Texas Inc., No. 98-13971 (Tex. Dist. Ct., filed Dec. 16, 1998).
190. See, e.g., Ezekiel J. Emanuel & Lee Goldman, Protecting Patient Welfare in Managed Care: Six Safeguards, 23 J. HEALTH POL. POL'Y & L. 635 (1998) (describing safeguards for MCOs); Orentlicher, Health Care Reform, supra note 60, at 167-69 (discussing types of incentives with a high potential for abuse); Orentlicher, Paying Physicians More to Do Less, supra note 74, at 191-97 (discussing how to determine permissible ranges of incentives). Federal regulations restrict the permissible types of financial incentives for MCOs that provide services to Medicare and Medicaid patients. 42 C.F.R. § 417.479 (1999). Among other things, the regulations (which apply to plans that base financial risk on referrals for less than 25,000 patients) prohibit payments made as an inducement to limit medically necessary services for an individual patient. Moreover, plans that place physicians at "substantial financial risk" (defined as more than 25% of the physician's compensation) must provide stop-loss protection and meet specified enrollee survey and disclosure requirements. See id. At least 21 states have addressed this issue by prohibiting the use of incentives that act as inducements for physicians to limit "medically necessary" services. See D. Ward Pimley, States Tell Health Plans That Incentives May Not Limit Medically Necessary Care, 4 MANAGED CARE REP. (BNA) 1030 (1998). While such laws may prove popular litigation tools, they are criticized for offering "virtually no guidance about how [the medical necessity] principle will be applied in practice." Tracy E. Miller, Managed Care Regulation: In the Laboratory of the States, 278 JAMA 1102, 1108 (1997) [hereinafter Miller, Managed Care Regulation]. The Texas Attorney General recently filed suit against several HMOs for violating the new Texas provision. See, e.g., Texas v. Aetna United States Healthcare Inc., No. 98-13972 (Tex. Dist. Ct., filed Dec. 16, 1998); Texas v. Humana Health Plan of Texas, Inc., No. 98-13973 (Tex. Dist. Ct., filed Dec. 16, 1998); Texas v. Pacificare of Texas Inc., No. 98-13971 (Tex. Dist. Ct., filed Dec. 16, 1998).
191. See, e.g., Ezekiel J. Emanuel & Lee Goldman, Protecting Patient Welfare in Managed Care: Six Safeguards, 23 J. HEALTH POL. POL'Y & L. 635 (1998) (describing safeguards for MCOs); Orentlicher, Health Care Reform, supra note 60, at 167-69 (discussing types of incentives with a high potential for abuse); Orentlicher, Paying Physicians More to Do Less, supra note 74, at 191-97 (discussing how to determine permissible ranges of incentives). Federal regulations restrict the permissible types of financial incentives for MCOs that provide services to Medicare and Medicaid patients. 42 C.F.R. § 417.479 (1999). Among other things, the regulations (which apply to plans that base financial risk on referrals for less than 25,000 patients) prohibit payments made as an inducement to limit medically necessary services for an individual patient. Moreover, plans that place physicians at "substantial financial risk" (defined as more than 25% of the physician's compensation) must provide stop-loss protection and meet specified enrollee survey and disclosure requirements. See id. At least 21 states have addressed this issue by prohibiting the use of incentives that act as inducements for physicians to limit "medically necessary" services. See D. Ward Pimley, States Tell Health Plans That Incentives May Not Limit Medically Necessary Care, 4 MANAGED CARE REP. (BNA) 1030 (1998). While such laws may prove popular litigation tools, they are criticized for offering "virtually no guidance about how [the medical necessity] principle will be applied in practice." Tracy E. Miller, Managed Care Regulation: In the Laboratory of the States, 278 JAMA 1102, 1108 (1997) [hereinafter Miller, Managed Care Regulation]. The Texas Attorney General recently filed suit against several HMOs for violating the new Texas provision. See, e.g., Texas v. Aetna United States Healthcare Inc., No. 98-13972 (Tex. Dist. Ct., filed Dec. 16, 1998); Texas v. Humana Health Plan of Texas, Inc., No. 98-13973 (Tex. Dist. Ct., filed Dec. 16, 1998); Texas v. Pacificare of Texas Inc., No. 98-13971 (Tex. Dist. Ct., filed Dec. 16, 1998).
192. See generally Alice G. Gosfield, Clinical Practice Guidelines and the Law: Applications and Implications, in HEALTH LAW HANDBOOK 67-70 (1994) (describing changing roles in health care).
193. See Furrow, supra note 71, at 430 ("Managed care is usually distinguished from traditional indemnity plans by the existence of a single entity responsible for integrating and coordinating the financing and delivery of services that were once scattered between providers and payers.").
194. See id. at 473-74 ("[U]sing concurrent review by nurses . . . to accept or reject a physician's request for treatment . . . is the most annoying feature of cost containment strategies."); see also Randall, supra note 80, at 27-29 (describing utilization review).
195. See Joanne B. Stern, Bad Faith Suits: Are They Applicable to Health Maintenance Organizations?, 85 W. VA. L. REV. 911, 914 n.11 (1983) (arguing that unlike under traditional insurance, "[w]ith the HMO . . . a breach or default usually involves the failure to provide the care itself").
196. See Mark A. Hall & Gerard F. Anderson, Health Insurers' Assessment of Medical Necessity, 140 U. PA. L. REV. 1637, 1712 (1992) (discussing insurers' evaluations of patients requiring such procedures). A significant number of these cases concern the denial of coverage for autologous bone marrow transplants for patients suffering from various forms of cancer. See id. For a discussion of the issues surrounding coverage of experimental therapies, see, for example, Richard S. Saver, Note, Reimbursing New Technologies: Why Are the Courts Judging Experimental Medicine?, 44 STAN. L. REV. 1095 (1992).
197. See Mark A. Hall & Gerard F. Anderson, Health Insurers' Assessment of Medical Necessity, 140 U. PA. L. REV. 1637, 1712 (1992) (discussing insurers' evaluations of patients requiring such procedures). A significant number of these cases concern the denial of coverage for autologous bone marrow transplants for patients suffering from various forms of cancer. See id. For a discussion of the issues surrounding coverage of experimental therapies, see, for example, Richard S. Saver, Note, Reimbursing New Technologies: Why Are the Courts Judging Experimental Medicine?, 44 STAN. L. REV. 1095 (1992).
198. See Mark A. Hall & Gerard F. Anderson, Health Insurers' Assessment of Medical Necessity, 140 U. PA. L. REV. 1637, 1712 (1992) (discussing insurers' evaluations of patients requiring such procedures). A significant number of these cases concern the denial of coverage for autologous bone marrow transplants for patients suffering from various forms of cancer. See id. For a discussion of the issues surrounding coverage of experimental therapies, see, for example, Richard S. Saver, Note, Reimbursing New Technologies: Why Are the Courts Judging Experimental Medicine?, 44 STAN. L. REV. 1095 (1992).
199. See Hall & Anderson, supra note 95, 1651-57 (describing lack of judicial enforcement of prospective review decisions); Mark A. Hall et al., Judicial Protection of Managed Care Consumers: An Empirical Study of Insurance Coverage Disputes, 26 SETON HALL L. REV. 1055, 1062 (1996) (finding that patients win over half of the time in state contract disputes, but are less successful in suits brought under ERISA).
200. See Hall & Anderson, supra note 95, 1651-57 (describing lack of judicial enforcement of prospective review decisions); Mark A. Hall et al., Judicial Protection of Managed Care Consumers: An Empirical Study of Insurance Coverage Disputes, 26 SETON HALL L. REV. 1055, 1062 (1996) (finding that patients win over half of the time in state contract disputes, but are less successful in suits brought under ERISA).
201. See Hall & Anderson, supra note 95, at 1657-62 (describing concerns).
202. See Mechanic & Schlesinger, supra note 82, at 1696 (advocating separation of physician's interests from health plan's interests); Stern, supra note 94, at 916 (noting that many HMOs have been "set up by the physicians themselves and are directed and controlled by such providers").
203. See Mechanic & Schlesinger, supra note 82, at 1697 ("The drawback of such ventures is that they further combine and confuse the sometimes conflicting interests of plans and physicians.").
204. Paul B. Ginsburg, Commentary: Here Come the Docs, MOD. HEALTHCARE, Sept. 1, 1997, at 46. A recent Seventh Circuit case suggests that physicians who also play a managerial or administrative role in the MCO face an inherent conflict of interest that may be actionable under federal law. See Herdrich v. Pegram, 154 F.3d 362, 372 (7th Cir. 1998).
205. Paul B. Ginsburg, Commentary: Here Come the Docs, MOD. HEALTHCARE, Sept. 1, 1997, at 46. A recent Seventh Circuit case suggests that physicians who also play a managerial or administrative role in the MCO face an inherent conflict of interest that may be actionable under federal law. See Herdrich v. Pegram, 154 F.3d 362, 372 (7th Cir. 1998).
206. See Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972) (describing how failure to disclose surgery risks presents an issue of negligence).
207. As another example, one California HMO instructed its physicians to refrain from informing parents that an expensive new chickenpox vaccine was available; the vaccine was covered if parents asked for it, but the HMO discouraged doctors from prescribing it. The HMO changed its policy after a consumer group complained. See HMO Changes Policy on Use of New Chickenpox Vaccine, WASH. TIMES, Apr. 5, 1996 (describing HMO policy); see also Kaiser to Pay $250,000 to California to Close Investigation of Viagra Coverage, 5 MANAGED CARE REP. (BNA) 7 (1999) (describing an investigation of whether the HMO discouraged physicians from writing prescriptions for expensive drug).
208. As another example, one California HMO instructed its physicians to refrain from informing parents that an expensive new chickenpox vaccine was available; the vaccine was covered if parents asked for it, but the HMO discouraged doctors from prescribing it. The HMO changed its policy after a consumer group complained. See HMO Changes Policy on Use of New Chickenpox Vaccine, WASH. TIMES, Apr. 5, 1996 (describing HMO policy); see also Kaiser to Pay $250,000 to California to Close Investigation of Viagra Coverage, 5 MANAGED CARE REP. (BNA) 7 (1999) (describing an investigation of whether the HMO discouraged physicians from writing prescriptions for expensive drug).
209. Anecdotal accounts of gag clauses were first reported in December 1995. See Alison Bass, Therapists Say Insurer Gag Order Hurts Patients, BOSTON GLOBE, Dec. 20, 1995, at 1 (describing first reports of gag clauses in Massachusetts); Robert Pear, Doctors Say H.M.O.'s Limit What They Can Tell Patients, N.Y. TIMES, Dec. 21, 1995, at A1 (describing early reports of gag clauses). For the growing body of commentary regarding gag clauses, see, for example, GENERAL ACCOUNTING OFFICE, Managed Care: Explicit Gag Clauses Not Found in HMO Contracts, But Physician Concerns Remain, GAO/HEHS-97-175 (Aug. 1997) [hereinafter GAO REPORT); Justin D. Harris, The Timely Demise of 'Gag Orders' In Physicians' Contracts With Managed Care Providers, 28 PAC. L.J. 906 (1997); Martin & Bjerknes, supra note 60; Miller, supra note 90, at 1104-05; Bethany J. Spielman, After the Gag Episode: Physician Communications in Managed Care Organizations, 22 SETON HALL LEGIS. J. 437 (1998); Jennifer L. D'Isidori, Note, Stop Gagging Physicians, 7 HEALTH MATRIX 187 (1997); Jennifer L. Myron, Comment, HMOs' Use of Gag Clauses: An Unethical Threat to America's Health, 101 DICK. L. REV. 729 (1997); Diane S. Swanson, Comment, Physician Gag Clauses: The Hypocrisy of the Hippocratic Oath, 21 S. ILL. U. L.J. 313 (1997).
210. Anecdotal accounts of gag clauses were first reported in December 1995. See Alison Bass, Therapists Say Insurer Gag Order Hurts Patients, BOSTON GLOBE, Dec. 20, 1995, at 1 (describing first reports of gag clauses in Massachusetts); Robert Pear, Doctors Say H.M.O.'s Limit What They Can Tell Patients, N.Y. TIMES, Dec. 21, 1995, at A1 (describing early reports of gag clauses). For the growing body of commentary regarding gag clauses, see, for example, GENERAL ACCOUNTING OFFICE, Managed Care: Explicit Gag Clauses Not Found in HMO Contracts, But Physician Concerns Remain, GAO/HEHS-97-175 (Aug. 1997) [hereinafter GAO REPORT); Justin D. Harris, The Timely Demise of 'Gag Orders' In Physicians' Contracts With Managed Care Providers, 28 PAC. L.J. 906 (1997); Martin & Bjerknes, supra note 60; Miller, supra note 90, at 1104-05; Bethany J. Spielman, After the Gag Episode: Physician Communications in Managed Care Organizations, 22 SETON HALL LEGIS. J. 437 (1998); Jennifer L. D'Isidori, Note, Stop Gagging Physicians, 7 HEALTH MATRIX 187 (1997); Jennifer L. Myron, Comment, HMOs' Use of Gag Clauses: An Unethical Threat to America's Health, 101 DICK. L. REV. 729 (1997); Diane S. Swanson, Comment, Physician Gag Clauses: The Hypocrisy of the Hippocratic Oath, 21 S. ILL. U. L.J. 313 (1997).
211. Anecdotal accounts of gag clauses were first reported in December 1995. See Alison Bass, Therapists Say Insurer Gag Order Hurts Patients, BOSTON GLOBE, Dec. 20, 1995, at 1 (describing first reports of gag clauses in Massachusetts); Robert Pear, Doctors Say H.M.O.'s Limit What They Can Tell Patients, N.Y. TIMES, Dec. 21, 1995, at A1 (describing early reports of gag clauses). For the growing body of commentary regarding gag clauses, see, for example, GENERAL ACCOUNTING OFFICE, Managed Care: Explicit Gag Clauses Not Found in HMO Contracts, But Physician Concerns Remain, GAO/HEHS-97-175 (Aug. 1997) [hereinafter GAO REPORT); Justin D. Harris, The Timely Demise of 'Gag Orders' In Physicians' Contracts With Managed Care Providers, 28 PAC. L.J. 906 (1997); Martin & Bjerknes, supra note 60; Miller, supra note 90, at 1104-05; Bethany J. Spielman, After the Gag Episode: Physician Communications in Managed Care Organizations, 22 SETON HALL LEGIS. J. 437 (1998); Jennifer L. D'Isidori, Note, Stop Gagging Physicians, 7 HEALTH MATRIX 187 (1997); Jennifer L. Myron, Comment, HMOs' Use of Gag Clauses: An Unethical Threat to America's Health, 101 DICK. L. REV. 729 (1997); Diane S. Swanson, Comment, Physician Gag Clauses: The Hypocrisy of the Hippocratic Oath, 21 S. ILL. U. L.J. 313 (1997).
212. Anecdotal accounts of gag clauses were first reported in December 1995. See Alison Bass, Therapists Say Insurer Gag Order Hurts Patients, BOSTON GLOBE, Dec. 20, 1995, at 1 (describing first reports of gag clauses in Massachusetts); Robert Pear, Doctors Say H.M.O.'s Limit What They Can Tell Patients, N.Y. TIMES, Dec. 21, 1995, at A1 (describing early reports of gag clauses). For the growing body of commentary regarding gag clauses, see, for example, GENERAL ACCOUNTING OFFICE, Managed Care: Explicit Gag Clauses Not Found in HMO Contracts, But Physician Concerns Remain, GAO/HEHS-97-175 (Aug. 1997) [hereinafter GAO REPORT); Justin D. Harris, The Timely Demise of 'Gag Orders' In Physicians' Contracts With Managed Care Providers, 28 PAC. L.J. 906 (1997); Martin & Bjerknes, supra note 60; Miller, supra note 90, at 1104-05; Bethany J. Spielman, After the Gag Episode: Physician Communications in Managed Care Organizations, 22 SETON HALL LEGIS. J. 437 (1998); Jennifer L. D'Isidori, Note, Stop Gagging Physicians, 7 HEALTH MATRIX 187 (1997); Jennifer L. Myron, Comment, HMOs' Use of Gag Clauses: An Unethical Threat to America's Health, 101 DICK. L. REV. 729 (1997); Diane S. Swanson, Comment, Physician Gag Clauses: The Hypocrisy of the Hippocratic Oath, 21 S. ILL. U. L.J. 313 (1997).
213. Anecdotal accounts of gag clauses were first reported in December 1995. See Alison Bass, Therapists Say Insurer Gag Order Hurts Patients, BOSTON GLOBE, Dec. 20, 1995, at 1 (describing first reports of gag clauses in Massachusetts); Robert Pear, Doctors Say H.M.O.'s Limit What They Can Tell Patients, N.Y. TIMES, Dec. 21, 1995, at A1 (describing early reports of gag clauses). For the growing body of commentary regarding gag clauses, see, for example, GENERAL ACCOUNTING OFFICE, Managed Care: Explicit Gag Clauses Not Found in HMO Contracts, But Physician Concerns Remain, GAO/HEHS-97-175 (Aug. 1997) [hereinafter GAO REPORT); Justin D. Harris, The Timely Demise of 'Gag Orders' In Physicians' Contracts With Managed Care Providers, 28 PAC. L.J. 906 (1997); Martin & Bjerknes, supra note 60; Miller, supra note 90, at 1104-05; Bethany J. Spielman, After the Gag Episode: Physician Communications in Managed Care Organizations, 22 SETON HALL LEGIS. J. 437 (1998); Jennifer L. D'Isidori, Note, Stop Gagging Physicians, 7 HEALTH MATRIX 187 (1997); Jennifer L. Myron, Comment, HMOs' Use of Gag Clauses: An Unethical Threat to America's Health, 101 DICK. L. REV. 729 (1997); Diane S. Swanson, Comment, Physician Gag Clauses: The Hypocrisy of the Hippocratic Oath, 21 S. ILL. U. L.J. 313 (1997).
214. Anecdotal accounts of gag clauses were first reported in December 1995. See Alison Bass, Therapists Say Insurer Gag Order Hurts Patients, BOSTON GLOBE, Dec. 20, 1995, at 1 (describing first reports of gag clauses in Massachusetts); Robert Pear, Doctors Say H.M.O.'s Limit What They Can Tell Patients, N.Y. TIMES, Dec. 21, 1995, at A1 (describing early reports of gag clauses). For the growing body of commentary regarding gag clauses, see, for example, GENERAL ACCOUNTING OFFICE, Managed Care: Explicit Gag Clauses Not Found in HMO Contracts, But Physician Concerns Remain, GAO/HEHS-97-175 (Aug. 1997) [hereinafter GAO REPORT); Justin D. Harris, The Timely Demise of 'Gag Orders' In Physicians' Contracts With Managed Care Providers, 28 PAC. L.J. 906 (1997); Martin & Bjerknes, supra note 60; Miller, supra note 90, at 1104-05; Bethany J. Spielman, After the Gag Episode: Physician Communications in Managed Care Organizations, 22 SETON HALL LEGIS. J. 437 (1998); Jennifer L. D'Isidori, Note, Stop Gagging Physicians, 7 HEALTH MATRIX 187 (1997); Jennifer L. Myron, Comment, HMOs' Use of Gag Clauses: An Unethical Threat to America's Health, 101 DICK. L. REV. 729 (1997); Diane S. Swanson, Comment, Physician Gag Clauses: The Hypocrisy of the Hippocratic Oath, 21 S. ILL. U. L.J. 313 (1997).
215. Anecdotal accounts of gag clauses were first reported in December 1995. See Alison Bass, Therapists Say Insurer Gag Order Hurts Patients, BOSTON GLOBE, Dec. 20, 1995, at 1 (describing first reports of gag clauses in Massachusetts); Robert Pear, Doctors Say H.M.O.'s Limit What They Can Tell Patients, N.Y. TIMES, Dec. 21, 1995, at A1 (describing early reports of gag clauses). For the growing body of commentary regarding gag clauses, see, for example, GENERAL ACCOUNTING OFFICE, Managed Care: Explicit Gag Clauses Not Found in HMO Contracts, But Physician Concerns Remain, GAO/HEHS-97-175 (Aug. 1997) [hereinafter GAO REPORT); Justin D. Harris, The Timely Demise of 'Gag Orders' In Physicians' Contracts With Managed Care Providers, 28 PAC. L.J. 906 (1997); Martin & Bjerknes, supra note 60; Miller, supra note 90, at 1104-05; Bethany J. Spielman, After the Gag Episode: Physician Communications in Managed Care Organizations, 22 SETON HALL LEGIS. J. 437 (1998); Jennifer L. D'Isidori, Note, Stop Gagging Physicians, 7 HEALTH MATRIX 187 (1997); Jennifer L. Myron, Comment, HMOs' Use of Gag Clauses: An Unethical Threat to America's Health, 101 DICK. L. REV. 729 (1997); Diane S. Swanson, Comment, Physician Gag Clauses: The Hypocrisy of the Hippocratic Oath, 21 S. ILL. U. L.J. 313 (1997).
216. Anecdotal accounts of gag clauses were first reported in December 1995. See Alison Bass, Therapists Say Insurer Gag Order Hurts Patients, BOSTON GLOBE, Dec. 20, 1995, at 1 (describing first reports of gag clauses in Massachusetts); Robert Pear, Doctors Say H.M.O.'s Limit What They Can Tell Patients, N.Y. TIMES, Dec. 21, 1995, at A1 (describing early reports of gag clauses). For the growing body of commentary regarding gag clauses, see, for example, GENERAL ACCOUNTING OFFICE, Managed Care: Explicit Gag Clauses Not Found in HMO Contracts, But Physician Concerns Remain, GAO/HEHS-97-175 (Aug. 1997) [hereinafter GAO REPORT); Justin D. Harris, The Timely Demise of 'Gag Orders' In Physicians' Contracts With Managed Care Providers, 28 PAC. L.J. 906 (1997); Martin & Bjerknes, supra note 60; Miller, supra note 90, at 1104-05; Bethany J. Spielman, After the Gag Episode: Physician Communications in Managed Care Organizations, 22 SETON HALL LEGIS. J. 437 (1998); Jennifer L. D'Isidori, Note, Stop Gagging Physicians, 7 HEALTH MATRIX 187 (1997); Jennifer L. Myron, Comment, HMOs' Use of Gag Clauses: An Unethical Threat to America's Health, 101 DICK. L. REV. 729 (1997); Diane S. Swanson, Comment, Physician Gag Clauses: The Hypocrisy of the Hippocratic Oath, 21 S. ILL. U. L.J. 313 (1997).
217. Anecdotal accounts of gag clauses were first reported in December 1995. See Alison Bass, Therapists Say Insurer Gag Order Hurts Patients, BOSTON GLOBE, Dec. 20, 1995, at 1 (describing first reports of gag clauses in Massachusetts); Robert Pear, Doctors Say H.M.O.'s Limit What They Can Tell Patients, N.Y. TIMES, Dec. 21, 1995, at A1 (describing early reports of gag clauses). For the growing body of commentary regarding gag clauses, see, for example, GENERAL ACCOUNTING OFFICE, Managed Care: Explicit Gag Clauses Not Found in HMO Contracts, But Physician Concerns Remain, GAO/HEHS-97-175 (Aug. 1997) [hereinafter GAO REPORT); Justin D. Harris, The Timely Demise of 'Gag Orders' In Physicians' Contracts With Managed Care Providers, 28 PAC. L.J. 906 (1997); Martin & Bjerknes, supra note 60; Miller, supra note 90, at 1104-05; Bethany J. Spielman, After the Gag Episode: Physician Communications in Managed Care Organizations, 22 SETON HALL LEGIS. J. 437 (1998); Jennifer L. D'Isidori, Note, Stop Gagging Physicians, 7 HEALTH MATRIX 187 (1997); Jennifer L. Myron, Comment, HMOs' Use of Gag Clauses: An Unethical Threat to America's Health, 101 DICK. L. REV. 729 (1997); Diane S. Swanson, Comment, Physician Gag Clauses: The Hypocrisy of the Hippocratic Oath, 21 S. ILL. U. L.J. 313 (1997).
218. See GAO REPORT, supra note 103, at 2, 5.
219. See id. at 6 (discussing preapproval limitations); Martin & Bjerknes, suprc note 60, at 443-44 (same); Robert Pear, The Tricky Business of Keeping Doctors Quiet N.Y. TIMES, Sept. 22, 1996, at 7 (quoting Kaiser Permanente contract provision [hereinafter Pear, Keeping Doctors Quiet].
220. See id. at 6 (discussing preapproval limitations); Martin & Bjerknes, suprc note 60, at 443-44 (same); Robert Pear, The Tricky Business of Keeping Doctors Quiet N.Y. TIMES, Sept. 22, 1996, at 7 (quoting Kaiser Permanente contract provision [hereinafter Pear, Keeping Doctors Quiet].
221. See id. at 6 (discussing preapproval limitations); Martin & Bjerknes, suprc note 60, at 443-44 (same); Robert Pear, The Tricky Business of Keeping Doctors Quiet N.Y. TIMES, Sept. 22, 1996, at 7 (quoting Kaiser Permanente contract provision [hereinafter Pear, Keeping Doctors Quiet].
222. Similar clauses may prevent physicians from "portraying the plan in a nega tive light," or from soliciting or advising patients to disenroll from the plan. GAG REPORT, supra note 103, at 6-8; see Martin & Bjerknes, supra note 60, at 444-45 Pear, Keeping Doctors Quiet, supra note 105, at 7 (quoting contract used by Choice Care of Cincinnati).
223. Similar clauses may prevent physicians from "portraying the plan in a nega tive light," or from soliciting or advising patients to disenroll from the plan. GAG REPORT, supra note 103, at 6-8; see Martin & Bjerknes, supra note 60, at 444-45 Pear, Keeping Doctors Quiet, supra note 105, at 7 (quoting contract used by Choice Care of Cincinnati).
224. Similar clauses may prevent physicians from "portraying the plan in a nega tive light," or from soliciting or advising patients to disenroll from the plan. GAG REPORT, supra note 103, at 6-8; see Martin & Bjerknes, supra note 60, at 444-45 Pear, Keeping Doctors Quiet, supra note 105, at 7 (quoting contract used by Choice Care of Cincinnati).
225. See GAO REPORT, supra note 103, at 8-9 (discussing confidentiality provisions); Martin & Bjerknes, supra note 60, at 445-46 (same); Pear, Keeping Doctors Quiet, supra note 105, at 7 (quoting contract used by U.S. Healthcare). For other types of provisions that may restrict physician-patient discussions, See Martin & Bjerknes, supra, at 443-48 .
226. See GAO REPORT, supra note 103, at 8-9 (discussing confidentiality provisions); Martin & Bjerknes, supra note 60, at 445-46 (same); Pear, Keeping Doctors Quiet, supra note 105, at 7 (quoting contract used by U.S. Healthcare). For other types of provisions that may restrict physician-patient discussions, See Martin & Bjerknes, supra, at 443-48 .
227. See GAO REPORT, supra note 103, at 8-9 (discussing confidentiality provisions); Martin & Bjerknes, supra note 60, at 445-46 (same); Pear, Keeping Doctors Quiet, supra note 105, at 7 (quoting contract used by U.S. Healthcare). For other types of provisions that may restrict physician-patient discussions, See Martin & Bjerknes, supra, at 443-48 .
228. See GAO REPORT, supra note 103, at 8-9 (discussing confidentiality provisions); Martin & Bjerknes, supra note 60, at 445-46 (same); Pear, Keeping Doctors Quiet, supra note 105, at 7 (quoting contract used by U.S. Healthcare). For other types of provisions that may restrict physician-patient discussions, See Martin & Bjerknes, supra, at 443-48 .
229. CEJA, Opinions on Practice Matters, supra note 79, at 127; see Diane M. Gianelli, Bound and Gagged, AM. MED. NEWS, Feb. 5, 1996, at 1 (announcing that AMA experts volunteered to review MCO contracts for free "to determine if they interfere with the physician-patient relationship").
230. CEJA, Opinions on Practice Matters, supra note 79, at 127; see Diane M. Gianelli, Bound and Gagged, AM. MED. NEWS, Feb. 5, 1996, at 1 (announcing that AMA experts volunteered to review MCO contracts for free "to determine if they interfere with the physician-patient relationship").
231. See MASS. GEN. L. ANN. ch. 175, § 108(11) (West 1998); Martin & Bjerknes, supra note 60, at 472-76 (discussing state legislative efforts); see also infra Part VI.A.3 (discussing reforms aimed at preserving patient informational rights).
232. See MASS. GEN. L. ANN. ch. 175, § 108(11) (West 1998); Martin & Bjerknes, supra note 60, at 472-76 (discussing state legislative efforts); see also infra Part VI.A.3 (discussing reforms aimed at preserving patient informational rights).
233. See, e.g., White House Press Release: Memorandum re: Federal Agency Compliance with the Patient Bill of Rights, Feb. 20, 1998; Advisory Commission on Consumer Protection and Quality in the Health Care Industry, Consumer Bill of Rights and Responsibilities: Report to the President of the United States (Nov. 1997), available at 〈http://www.hcqualitycommission.gov/cborr/consbill.htm#head1〉; HCFA Office of Managed Care, Operational Policy Letter, OPL-96.044, Nov. 25, 1996 (banning gag clauses in Medicare HMOs). See generally Picnic, supra note 84 (describing federal legislative efforts).
234. See, e.g., White House Press Release: Memorandum re: Federal Agency Compliance with the Patient Bill of Rights, Feb. 20, 1998; Advisory Commission on Consumer Protection and Quality in the Health Care Industry, Consumer Bill of Rights and Responsibilities: Report to the President of the United States (Nov. 1997), available at 〈http://www.hcqualitycommission.gov/cborr/consbill.htm#head1〉; HCFA Office of Managed Care, Operational Policy Letter, OPL-96.044, Nov. 25, 1996 (banning gag clauses in Medicare HMOs). See generally Picnic, supra note 84 (describing federal legislative efforts).
235. See, e.g., White House Press Release: Memorandum re: Federal Agency Compliance with the Patient Bill of Rights, Feb. 20, 1998; Advisory Commission on Consumer Protection and Quality in the Health Care Industry, Consumer Bill of Rights and Responsibilities: Report to the President of the United States (Nov. 1997), available at 〈http://www.hcqualitycommission.gov/cborr/consbill.htm#head1〉; HCFA Office of Managed Care, Operational Policy Letter, OPL-96.044, Nov. 25, 1996 (banning gag clauses in Medicare HMOs). See generally Picnic, supra note 84 (describing federal legislative efforts).
236. In October of 1995, the League of Physicians and Surgeons sued the Commissioner of the New York Department of Health, alleging that the Department failed to enforce the state's managed care laws by approving managed care contracts that contained gag clauses. Finding that the plaintiffs lacked standing to enforce the interests of MCO patients, the trial court dismissed the suit in November 1996. Matter of League of Physicians and Surgeons, Inc. v. DeBuono (Sup. Ct., 1st Jud. Dept., N.Y. Cty., Nov. 13, 1996), reprinted in N.Y. L.J., Nov. 13, 1996, at 26. Similarly, a Florida physicians association filed suit against United Healthcare, seeking to force the HMO to remove alleged gag clause language from its physician contracts. See Florida Physicians Ass'n v. United HealthCare of Florida, Inc., No. CI 96-7225 (Fla. Cir. Ct., filed Sept. 20, 1996).
237. See, e.g., Julius A. Karash, HMO 'Gag Rules' Will Be Debated, KANSAS CITY STAR, May 30, 1996, at B2 (describing clauses eliminated by HealthNet and Blue Cross Blue Shield of Kansas City in Spring of 1996); Ron Winslow, Humana Lifts Rules Limiting Doctors' Speech, WALL ST. J., Oct. 29, 1996, at B5 (describing Humana's decision); United States Healthcare Inc. Cancels 'Gag Clauses' in Doctor Contracts, WALL ST. J., Feb. 3, 1996 (describing U.S. Healthcare's decision). The national HMO trade association has stated that "Health plans believe nothing in any health plan policies or contracts between health plans and physicians should be interpreted as prohibiting physicians from discussing treatment options with patients," and threatened to expel members who did not comply. AMERICAN ASSOCIATION OF HEALTH PLANS, PUTTING PATIENTS FIRST: POLICIES (PATIENT INFORMATION) (1996); Samuel Goldreich, HMO Association Threatens Expulsion For Guideline Evaders, WASH. TIMES, Feb. 26, 1997, at B12.
238. See, e.g., Julius A. Karash, HMO 'Gag Rules' Will Be Debated, KANSAS CITY STAR, May 30, 1996, at B2 (describing clauses eliminated by HealthNet and Blue Cross Blue Shield of Kansas City in Spring of 1996); Ron Winslow, Humana Lifts Rules Limiting Doctors' Speech, WALL ST. J., Oct. 29, 1996, at B5 (describing Humana's decision); United States Healthcare Inc. Cancels 'Gag Clauses' in Doctor Contracts, WALL ST. J., Feb. 3, 1996 (describing U.S. Healthcare's decision). The national HMO trade association has stated that "Health plans believe nothing in any health plan policies or contracts between health plans and physicians should be interpreted as prohibiting physicians from discussing treatment options with patients," and threatened to expel members who did not comply. AMERICAN ASSOCIATION OF HEALTH PLANS, PUTTING PATIENTS FIRST: POLICIES (PATIENT INFORMATION) (1996); Samuel Goldreich, HMO Association Threatens Expulsion For Guideline Evaders, WASH. TIMES, Feb. 26, 1997, at B12.
239. See, e.g., Julius A. Karash, HMO 'Gag Rules' Will Be Debated, KANSAS CITY STAR, May 30, 1996, at B2 (describing clauses eliminated by HealthNet and Blue Cross Blue Shield of Kansas City in Spring of 1996); Ron Winslow, Humana Lifts Rules Limiting Doctors' Speech, WALL ST. J., Oct. 29, 1996, at B5 (describing Humana's decision); United States Healthcare Inc. Cancels 'Gag Clauses' in Doctor Contracts, WALL ST. J., Feb. 3, 1996 (describing U.S. Healthcare's decision). The national HMO trade association has stated that "Health plans believe nothing in any health plan policies or contracts between health plans and physicians should be interpreted as prohibiting physicians from discussing treatment options with patients," and threatened to expel members who did not comply. AMERICAN ASSOCIATION OF HEALTH PLANS, PUTTING PATIENTS FIRST: POLICIES (PATIENT INFORMATION) (1996); Samuel Goldreich, HMO Association Threatens Expulsion For Guideline Evaders, WASH. TIMES, Feb. 26, 1997, at B12.
240. See, e.g., Julius A. Karash, HMO 'Gag Rules' Will Be Debated, KANSAS CITY STAR, May 30, 1996, at B2 (describing clauses eliminated by HealthNet and Blue Cross Blue Shield of Kansas City in Spring of 1996); Ron Winslow, Humana Lifts Rules Limiting Doctors' Speech, WALL ST. J., Oct. 29, 1996, at B5 (describing Humana's decision); United States Healthcare Inc. Cancels 'Gag Clauses' in Doctor Contracts, WALL ST. J., Feb. 3, 1996 (describing U.S. Healthcare's decision). The national HMO trade association has stated that "Health plans believe nothing in any health plan policies or contracts between health plans and physicians should be interpreted as prohibiting physicians from discussing treatment options with patients," and threatened to expel members who did not comply. AMERICAN ASSOCIATION OF HEALTH PLANS, PUTTING PATIENTS FIRST: POLICIES (PATIENT INFORMATION) (1996); Samuel Goldreich, HMO Association Threatens Expulsion For Guideline Evaders, WASH. TIMES, Feb. 26, 1997, at B12.
241. See, e.g., Julius A. Karash, HMO 'Gag Rules' Will Be Debated, KANSAS CITY STAR, May 30, 1996, at B2 (describing clauses eliminated by HealthNet and Blue Cross Blue Shield of Kansas City in Spring of 1996); Ron Winslow, Humana Lifts Rules Limiting Doctors' Speech, WALL ST. J., Oct. 29, 1996, at B5 (describing Humana's decision); United States Healthcare Inc. Cancels 'Gag Clauses' in Doctor Contracts, WALL ST. J., Feb. 3, 1996 (describing U.S. Healthcare's decision). The national HMO trade association has stated that "Health plans believe nothing in any health plan policies or contracts between health plans and physicians should be interpreted as prohibiting physicians from discussing treatment options with patients," and threatened to expel members who did not comply. AMERICAN ASSOCIATION OF HEALTH PLANS, PUTTING PATIENTS FIRST: POLICIES (PATIENT INFORMATION) (1996); Samuel Goldreich, HMO Association Threatens Expulsion For Guideline Evaders, WASH. TIMES, Feb. 26, 1997, at B12.
242. GAO REPORT, supra note 103.
243. Id. at 1-2. However, the contracts reviewed were submitted by the HMOs themselves, and the report focused only on limitations contained in written physician contracts (rather than other written or oral constraints). See id. at 2, 21.
244. Id. at 1-2. However, the contracts reviewed were submitted by the HMOs themselves, and the report focused only on limitations contained in written physician contracts (rather than other written or oral constraints). See id. at 2, 21.
245. Id. at 10.
246. Common "anti-gag" provisions included statements that the contract should not be construed as prohibiting discussions of care-related matters, or encouraging physicians to talk with patients about recommended and medically appropriate treatment alternatives. See id. at 9-10.
247. Id. at 3. Managed care advocates clearly felt vindicated by the report. One AAHP official noted that "[g]ag rules, as the GAO found, do not exist - except in the minds of critics who have no compunctions about distorting the true purpose of clauses that protect the confidentiality of financial
248. Id. at 3. Managed care advocates clearly felt vindicated by the report. One AAHP official noted that "[g]ag rules, as the GAO found, do not exist - except in the minds of critics who have no compunctions about distorting the true purpose of clauses that protect the confidentiality of financial arrangements or guard against disparagement of a plan by a physician contracting with competing plans." Karen Ignani, Covering a Breaking Revolution: The Media and Managed Care, 17 HEALTH AFFAIRS 1, Jan.-Feb. 1998, at 28 (alleging unduly negative treatment of managed care in the media).
249. Miller, Managed Care Regulation, supra note 90, at 1107.
250. GAO REPORT, supra note 103, at 2.
251. In one such situation, a physician who continued to recommend a treatment the HMO had denied received a communication from the HMO warning "'that a persistent pattern of pitting the HMO against its members may place your relationship with [us] in jeopardy.'" Abigail Trafford, For Some Doctors Today, Mum's the Word, WASH. POST, Mar. 12, 1996, at Z6. Correspondence also played a role in a recent case in which a California physician won a jury verdict against the medical group who fired him after receiving complaints from the IPA about the volume of tests he ordered. See Self v. Children's Ass'n Med. Group, No. 695870 (Cal. Super Ct., Apr. 6, 1998) (discussing the first award under new California law prohibiting organizations from penalizing physicians who advocate for medically appropriate care); Karen Brandon, Doctor's Winning Suit Puts Managed Care On Trial, CHI. TRIB., Apr. 26, 1998, at 4. The case ultimately settled for $2.5 million. San Diego Medical Group Settles Wrongful Termination Case for $2.5 Million, 2 MANAGED CARE REP.(BNA) 324 (1998).
252. In one such situation, a physician who continued to recommend a treatment the HMO had denied received a communication from the HMO warning "'that a persistent pattern of pitting the HMO against its members may place your relationship with [us] in jeopardy.'" Abigail Trafford, For Some Doctors Today, Mum's the Word, WASH. POST, Mar. 12, 1996, at Z6. Correspondence also played a role in a recent case in which a California physician won a jury verdict against the medical group who fired him after receiving complaints from the IPA about the volume of tests he ordered. See Self v. Children's Ass'n Med. Group, No. 695870 (Cal. Super Ct., Apr. 6, 1998) (discussing the first award under new California law prohibiting organizations from penalizing physicians who advocate for medically appropriate care); Karen Brandon, Doctor's Winning Suit Puts Managed Care On Trial, CHI. TRIB., Apr. 26, 1998, at 4. The case ultimately settled for $2.5 million. San Diego Medical Group Settles Wrongful Termination Case for $2.5 Million, 2 MANAGED CARE REP.(BNA) 324 (1998).
253. In one such situation, a physician who continued to recommend a treatment the HMO had denied received a communication from the HMO warning "'that a persistent pattern of pitting the HMO against its members may place your relationship with [us] in jeopardy.'" Abigail Trafford, For Some Doctors Today, Mum's the Word, WASH. POST, Mar. 12, 1996, at Z6. Correspondence also played a role in a recent case in which a California physician won a jury verdict against the medical group who fired him after receiving complaints from the IPA about the volume of tests he ordered. See Self v. Children's Ass'n Med. Group, No. 695870 (Cal. Super Ct., Apr. 6, 1998) (discussing the first award under new California law prohibiting organizations from penalizing physicians who advocate for medically appropriate care); Karen Brandon, Doctor's Winning Suit Puts Managed Care On Trial, CHI. TRIB., Apr. 26, 1998, at 4. The case ultimately settled for $2.5 million. San Diego Medical Group Settles Wrongful Termination Case for $2.5 Million, 2 MANAGED CARE REP.(BNA) 324 (1998).
254. The GAO found termination without cause provisions in 72% of the physician contracts reviewed. See GAO REPORT, supra note 103, at 14-15. Contracts without the clause tended to be for terms of one year or less - giving the MCO the option of simply not renewing the contract, rather than initiating termination procedures. Id. For a detailed discussion of the effects of termination without cause provisions, see John P. Little, Note, Managed Care Contracts of Adhesion: Terminating the Doctor-Patient Relationship and Endangering Patient Health, 49 RUTGERS L. REV. 1397 (1997).
255. The GAO found termination without cause provisions in 72% of the physician contracts reviewed. See GAO REPORT, supra note 103, at 14-15. Contracts without the clause tended to be for terms of one year or less - giving the MCO the option of simply not renewing the contract, rather than initiating termination procedures. Id. For a detailed discussion of the effects of termination without cause provisions, see John P. Little, Note, Managed Care Contracts of Adhesion: Terminating the Doctor-Patient Relationship and Endangering Patient Health, 49 RUTGERS L. REV. 1397 (1997).
256. GAO REPORT, supra note 103, at 15.
257. See Mayer v. Pierce County Med. Bureau, 909 P.2d 1323 (Wash. App. 1995) (granting summary judgment for plan).
258. See Harper v. Healthsource New Hampshire, Inc., 674 A.2d 962, 966 (N.H. 1996) (holding that HMO's decision to terminate long-standing relationship with physician "must comport with the covenant of good faith and fair dealing, and may not be made for a reason that is contrary to public policy"). However, Harper concerned a somewhat unusual situation where the HMO initially tried to terminate the physician for cause, and there was evidence that the HMO invoked the no-cause termination provision in order to circumvent the procedural protections required in for-cause terminations. The public policy exception is sometimes invoked by commentators to argue that anti-gag clause legislation reaches implicit restrictions on communication as well. See Miller, Managed Care Regulation, supra note 90, at 1105 (making public policy argument); Martin & Bjerknes, supra note 60, at 468-72 (same).
259. See Harper v. Healthsource New Hampshire, Inc., 674 A.2d 962, 966 (N.H. 1996) (holding that HMO's decision to terminate long-standing relationship with physician "must comport with the covenant of good faith and fair dealing, and may not be made for a reason that is contrary to public policy"). However, Harper concerned a somewhat unusual situation where the HMO initially tried to terminate the physician for cause, and there was evidence that the HMO invoked the no-cause termination provision in order to circumvent the procedural protections required in for-cause terminations. The public policy exception is sometimes invoked by commentators to argue that anti-gag clause legislation reaches implicit restrictions on communication as well. See Miller, Managed Care Regulation, supra note 90, at 1105 (making public policy argument); Martin & Bjerknes, supra note 60, at 468-72 (same).
260. See Potvin v. Metropolitan Life Ins. Co., 63 Cal. Rptr. 202 (Ct. App. 1997), review granted and opinion superseded, 941 P.2d 1121 (Cal. 1997); see also D'Ambrosino v. Metropolitan Life Ins. Co., 899 F. Supp. 438 (N.D. Cal. 1995) (holding that a podiatrist who alleged that MCO applied its at-will termination provision in a discriminatory manner based on his chemical dependency "had a common law right to fair procedures").
261. See Miller, Managed Care Regulation, supra note 90, at 1106 (noting, for example, that Rhode Island's termination without cause prohibition, R.I. GEN. LAWS § 23-17.13.3(c)(l1 (1996), permits "for cause" termination on the basis of the HMO's economic needs).
262. See Miller, Managed Care Regulation, supra note 90, at 1106 (noting, for example, that Rhode Island's termination without cause prohibition, R.I. GEN. LAWS § 23-17.13.3(c)(l1 (1996), permits "for cause" termination on the basis of the HMO's economic needs).
263. Schuck, supra note 4, at 942 (calling for studies to determine the true cost of such encounters).
264. See Maxwell J. Mehlman, The Patient-Physician Relationship in an Era of Scarce Remedies: Is There a Duty to Treat?, 25 CONN. L. REV. 349, 379-83 (1993) (discussing this theory) [hereinafter Mehlman, The Patient-Physician Relationship].
265. Matthew Robert Gregory, Hard Choices: Patient Autonomy in an Era of Health Care Cost Containment, 30 JURIMETRICS J. 483, 493 (1990).
266. "[A]ppeals, as with all stages of utilization review, require considerable physician time and effort. . . . Many physicians will view their advocacy role with discomfort or distaste because it takes time and attention away from treatment." Mechanic & Schlesinger, supra note 82, at 1695. Full disclosure also creates administrative problems for payors. For example, a patient who is informed that a potentially beneficial treatment is not covered by the plan may choose to avail herself of the plan's grievance and appeals processes, sue the plan over its interpretation of the policy, lodge a complaint against the plan with state regulators or the employer who provides the patient's health insurance, or simply switch to a different plan at the next open enrollment period. See Deven McGraw, Financial Incentives to Limit Services: Should Physicians Be Required to Disclose These to Patients?, 83 GEO. L.J. 1821, 1838 (1995) (noting that the enrollee who knows of financial incentives "might be more likely to take charge of her health care destiny and aggressively use the existing grievance procedures to get the desired treatment").
267. See Kathy L. Cerminara, The Class Action Suit As a Method of Patient Empowerment in the Managed Care Setting, 24 AM. J.L. & MED. 7, 17 (1998) ("Physicians might not want to argue too strenuously. . . with the party that pays them, calculates their withholds or bonuses, or credentials them for inclusion on an MCO's list of approved providers.").
268. Professor Mark Hall finds the solution to this problem in the concept of managed care: "What is needed then, is some form of decentralized influence that preserves complete autonomy by internalizing cost consciousness at the bedside level. Health care can only be transformed by altering the process by which doctors make day-to-day treatment decisions." Hall, Institutional Controls, supra note 74, at 480.
269. Such internalized restrictions also interfere with the physician's traditional role as a source of information, contravening both physician autonomy and the principle of beneficence by preventing physicians from providing the level of information they feel is in the patient's best interest. Cf. Pellegrino, supra note 15, at 47 (stressing the role of physician autonomy and beneficence in therapeutic relationship). Other commentators argue that restrictions on disclosing treatment alternatives violate the physician's First Amendment right of freedom of speech. See Martin & Bjerknes, supra note 60, at 460-61 (discussing that "dissenters on the Court have long suggested that abortion related gag clauses violate physician's First Amendment rights"). However, recent Supreme Court decisions in this area provide little support for this argument. In Rust v. Sullivan, 500 U.S. 173 (1991), the Court upheld federal regulations prohibiting Public Health Service Act Title X funding recipients from engaging in "abortion-related activities," including counseling patients regarding the availability of the procedure. In holding that the regulations did not impermissibly infringe on physicians' First Amendment right to discuss treatment with their patients, the Court gave significant weight to the fact that the limitation only applied to recipients who chose to accept the federal funding. Id. at 199. Under this reasoning, restrictions on physician discussion of treatment alternatives might well be permissible because a physician will be subject to the restriction only if he or she chooses to accept funding from the MCO. In fact, the first court to address a "gag clause" lawsuit adopted this reasoning, noting that "only physicians willing to accept the [contract] clause need abide by it, and this Court fails to see anything inimical to law or public policy in allowing them to do so." Matter of League of Physicians and Surgeons, Inc. v. DeBuono (Sup. Ct., 1st Jud. Dep't., N.Y. Cty., Nov. 13, 1996), reprinted in N.Y. L.J., Nov. 13, 1996, at 26. While the Supreme Court suggested in Rust that a different conclusion might be warranted where the restrictions "significantly impinge[d] upon the doctor-patient relationship," 500 U.S. at 200, the Court has not subsequently developed this suggestion. See generally Paula E. Berg, Lost in a Doctrinal Wasteland: The Exceptionalism of Doctor-Patient Speech Within the Rehnquist Court's First Amendment Jurisprudence, 8 HEALTH MATRIX 153 (1998) (discussing court's jurisprudence).
270. Such internalized restrictions also interfere with the physician's traditional role as a source of information, contravening both physician autonomy and the principle of beneficence by preventing physicians from providing the level of information they feel is in the patient's best interest. Cf. Pellegrino, supra note 15, at 47 (stressing the role of physician autonomy and beneficence in therapeutic relationship). Other commentators argue that restrictions on disclosing treatment alternatives violate the physician's First Amendment right of freedom of speech. See Martin & Bjerknes, supra note 60, at 460-61 (discussing that "dissenters on the Court have long suggested that abortion related gag clauses violate physician's First Amendment rights"). However, recent Supreme Court decisions in this area provide little support for this argument. In Rust v. Sullivan, 500 U.S. 173 (1991), the Court upheld federal regulations prohibiting Public Health Service Act Title X funding recipients from engaging in "abortion-related activities," including counseling patients regarding the availability of the procedure. In holding that the regulations did not impermissibly infringe on physicians' First Amendment right to discuss treatment with their patients, the Court gave significant weight to the fact that the limitation only applied to recipients who chose to accept the federal funding. Id. at 199. Under this reasoning, restrictions on physician discussion of treatment alternatives might well be permissible because a physician will be subject to the restriction only if he or she chooses to accept funding from the MCO. In fact, the first court to address a "gag clause" lawsuit adopted this reasoning, noting that "only physicians willing to accept the [contract] clause need abide by it, and this Court fails to see anything inimical to law or public policy in allowing them to do so." Matter of League of Physicians and Surgeons, Inc. v. DeBuono (Sup. Ct., 1st Jud. Dep't., N.Y. Cty., Nov. 13, 1996), reprinted in N.Y. L.J., Nov. 13, 1996, at 26. While the Supreme Court suggested in Rust that a different conclusion might be warranted where the restrictions "significantly impinge[d] upon the doctor-patient relationship," 500 U.S. at 200, the Court has not subsequently developed this suggestion. See generally Paula E. Berg, Lost in a Doctrinal Wasteland: The Exceptionalism of Doctor-Patient Speech Within the Rehnquist Court's First Amendment Jurisprudence, 8 HEALTH MATRIX 153 (1998) (discussing court's jurisprudence).
271. Such internalized restrictions also interfere with the physician's traditional role as a source of information, contravening both physician autonomy and the principle of beneficence by preventing physicians from providing the level of information they feel is in the patient's best interest. Cf. Pellegrino, supra note 15, at 47 (stressing the role of physician autonomy and beneficence in therapeutic relationship). Other commentators argue that restrictions on disclosing treatment alternatives violate the physician's First Amendment right of freedom of speech. See Martin & Bjerknes, supra note 60, at 460-61 (discussing that "dissenters on the Court have long suggested that abortion related gag clauses violate physician's First Amendment rights"). However, recent Supreme Court decisions in this area provide little support for this argument. In Rust v. Sullivan, 500 U.S. 173 (1991), the Court upheld federal regulations prohibiting Public Health Service Act Title X funding recipients from engaging in "abortion-related activities," including counseling patients regarding the availability of the procedure. In holding that the regulations did not impermissibly infringe on physicians' First Amendment right to discuss treatment with their patients, the Court gave significant weight to the fact that the limitation only applied to recipients who chose to accept the federal funding. Id. at 199. Under this reasoning, restrictions on physician discussion of treatment alternatives might well be permissible because a physician will be subject to the restriction only if he or she chooses to accept funding from the MCO. In fact, the first court to address a "gag clause" lawsuit adopted this reasoning, noting that "only physicians willing to accept the [contract] clause need abide by it, and this Court fails to see anything inimical to law or public policy in allowing them to do so." Matter of League of Physicians and Surgeons, Inc. v. DeBuono (Sup. Ct., 1st Jud. Dep't., N.Y. Cty., Nov. 13, 1996), reprinted in N.Y. L.J., Nov. 13, 1996, at 26. While the Supreme Court suggested in Rust that a different conclusion might be warranted where the restrictions "significantly impinge[d] upon the doctor-patient relationship," 500 U.S. at 200, the Court has not subsequently developed this suggestion. See generally Paula E. Berg, Lost in a Doctrinal Wasteland: The Exceptionalism of Doctor-Patient Speech Within the Rehnquist Court's First Amendment Jurisprudence, 8 HEALTH MATRIX 153 (1998) (discussing court's jurisprudence).
272. Larson, supra note 84, at 51.
273. Indeed, "the patient's right to self-determination encompasses the right to decide about one's budget as well as one's body." Morreim, Economic Disclosure and Economic Advocacy, supra note 2, at 303. Similarly, the AMA has argued that "physicians should never presume that they are acting in their patient's best interests by prescribing the less expensive, less effective drug. It is possible that a patient would be willing to sacrifice some other expense to pay out-of-pocket for a drug that may give a better, sustained quality of life." CEJA, Managed Care Cost Containment Involving Prescription Drugs, 53 FOOD & DRUG L.J. 25, 32 (1998) [hereinafter CEJA, Managed Care Cost Containment].
274. Indeed, "the patient's right to self-determination encompasses the right to decide about one's budget as well as one's body." Morreim, Economic Disclosure and Economic Advocacy, supra note 2, at 303. Similarly, the AMA has argued that "physicians should never presume that they are acting in their patient's best interests by prescribing the less expensive, less effective drug. It is possible that a patient would be willing to sacrifice some other expense to pay out-of-pocket for a drug that may give a better, sustained quality of life." CEJA, Managed Care Cost Containment Involving Prescription Drugs, 53 FOOD & DRUG L.J. 25, 32 (1998) [hereinafter CEJA, Managed Care Cost Containment].
275. MORREIM, BALANCING ACT, supra note 66, at 62; see also Morreim, Diverse and Perverse Incentives, supra note 69, at 100 ("Even patients willing to pay for out-of-plan benefits may never learn about the available options, because physicians and health plans may be unlikely to disclose them."); Daniel P. Sulmasy, Managed Care and the New Medical Paternalism, 6 J. CLIN. ETHICS 324-25 (1995) (noting that "patients are not only denied the exercise of their autonomy, they are also denied access to the knowledge that they have lost this autonomy").
276. MORREIM, BALANCING ACT, supra note 66, at 62; see also Morreim, Diverse and Perverse Incentives, supra note 69, at 100 ("Even patients willing to pay for out-of-plan benefits may never learn about the available options, because physicians and health plans may be unlikely to disclose them."); Daniel P. Sulmasy, Managed Care and the New Medical Paternalism, 6 J. CLIN. ETHICS 324-25 (1995) (noting that "patients are not only denied the exercise of their autonomy, they are also denied access to the knowledge that they have lost this autonomy").
277. MORREIM, BALANCING ACT, supra note 66, at 62; see also Morreim, Diverse and Perverse Incentives, supra note 69, at 100 ("Even patients willing to pay for out-of-plan benefits may never learn about the available options, because physicians and health plans may be unlikely to disclose them."); Daniel P. Sulmasy, Managed Care and the New Medical Paternalism, 6 J. CLIN. ETHICS 324-25 (1995) (noting that "patients are not only denied the exercise of their autonomy, they are also denied access to the knowledge that they have lost this autonomy").
278. See Gail B. Agrawal, Chicago Hope Meets the Chicago School, Making Medical Spending Decisions: The Law, Ethics, and Economics of Rationing Mechanisms, 96 MICH. L. REV. 1793, 1807 (1998) (explaining that grievance procedures are "of little practical value" when patients are not aware that potentially beneficial care has been withheld); Capron, Containing Health Care Costs, supra note 54, at 750 ("It is important that patients know about limitations built into the system so that they can employ legitimate processes, both within an individual treatment setting and through broader political processes . . . to change them."); Wolf, Toward a Systemic Theory, supra note 51, at 1678 (describing how patients "discipline the system by walking away from providers and plans that seem unacceptable"); Susan M. Wolf, Health Care Reform and the Future of Physician Ethics, HASTINGS CTR. REP., Mar.-Apr. 1994, at 28, 35 [hereinafter Wolf, Health Care Reform] (arguing that patients must be told of noncovered treatments so they "can consider using the processes available for clarifying benefits and appealing a denial").
279. See Gail B. Agrawal, Chicago Hope Meets the Chicago School, Making Medical Spending Decisions: The Law, Ethics, and Economics of Rationing Mechanisms, 96 MICH. L. REV. 1793, 1807 (1998) (explaining that grievance procedures are "of little practical value" when patients are not aware that potentially beneficial care has been withheld); Capron, Containing Health Care Costs, supra note 54, at 750 ("It is important that patients know about limitations built into the system so that they can employ legitimate processes, both within an individual treatment setting and through broader political processes . . . to change them."); Wolf, Toward a Systemic Theory, supra note 51, at 1678 (describing how patients "discipline the system by walking away from providers and plans that seem unacceptable"); Susan M. Wolf, Health Care Reform and the Future of Physician Ethics, HASTINGS CTR. REP., Mar.-Apr. 1994, at 28, 35 [hereinafter Wolf, Health Care Reform] (arguing that patients must be told of noncovered treatments so they "can consider using the processes available for clarifying benefits and appealing a denial").
280. See Gail B. Agrawal, Chicago Hope Meets the Chicago School, Making Medical Spending Decisions: The Law, Ethics, and Economics of Rationing Mechanisms, 96 MICH. L. REV. 1793, 1807 (1998) (explaining that grievance procedures are "of little practical value" when patients are not aware that potentially beneficial care has been withheld); Capron, Containing Health Care Costs, supra note 54, at 750 ("It is important that patients know about limitations built into the system so that they can employ legitimate processes, both within an individual treatment setting and through broader political processes . . . to change them."); Wolf, Toward a Systemic Theory, supra note 51, at 1678 (describing how patients "discipline the system by walking away from providers and plans that seem unacceptable"); Susan M. Wolf, Health Care Reform and the Future of Physician Ethics, HASTINGS CTR. REP., Mar.-Apr. 1994, at 28, 35 [hereinafter Wolf, Health Care Reform] (arguing that patients must be told of noncovered treatments so they "can consider using the processes available for clarifying benefits and appealing a denial").
281. See Gail B. Agrawal, Chicago Hope Meets the Chicago School, Making Medical Spending Decisions: The Law, Ethics, and Economics of Rationing Mechanisms, 96 MICH. L. REV. 1793, 1807 (1998) (explaining that grievance procedures are "of little practical value" when patients are not aware that potentially beneficial care has been withheld); Capron, Containing Health Care Costs, supra note 54, at 750 ("It is important that patients know about limitations built into the system so that they can employ legitimate processes, both within an individual treatment setting and through broader political processes . . . to change them."); Wolf, Toward a Systemic Theory, supra note 51, at 1678 (describing how patients "discipline the system by walking away from providers and plans that seem unacceptable"); Susan M. Wolf, Health Care Reform and the Future of Physician Ethics, HASTINGS CTR. REP., Mar.-Apr. 1994, at 28, 35 [hereinafter Wolf, Health Care Reform] (arguing that patients must be told of noncovered treatments so they "can consider using the processes available for clarifying benefits and appealing a denial").
282. Wolf, Toward a Systemic Theory, supra note 51, at 1674-75.
283. In the words of a popular Disney song, as a patient you need to know "things you never knew you never knew." COLORS OF THE WIND, SOUNDTRACK FROM POCAHANTAS (Disney Records 1995).
284. See generally Hall & Anderson, supra note 95 (providing an overview of medical necessity determinations and proposing a new model for coverage decisions).
285. See generally supra note 36 and accompanying text (describing contract theorists). At least two commentators have suggested that this approach be extended to permit patients to contract for differing levels of informed consent. See HALL, MAKING MEDICAL SPENDING DECISIONS, supra note 59, at 193-227 (examining contract theory as it relates to the physician-patient relationship); Epstein, supra note 4, at 119-28 (arguing that patients should be allowed to contract for different standards of care); Mark A. Hall, Informed Consent to Rationing Decisions, 71 MILBANK Q. 645 (1993) [hereinafter Hall, Rationing Decisions] (preliminary discussion of topic); Hall, Informed Consent, supra note 1, at 511 (discussing informed consent and its effect on patients' abilities to direct their own medical decisions). For further discussion of the contract approach, see infra Part V.
286. See generally supra note 36 and accompanying text (describing contract theorists). At least two commentators have suggested that this approach be extended to permit patients to contract for differing levels of informed consent. See HALL, MAKING MEDICAL SPENDING DECISIONS, supra note 59, at 193-227 (examining contract theory as it relates to the physician-patient relationship); Epstein, supra note 4, at 119-28 (arguing that patients should be allowed to contract for different standards of care); Mark A. Hall, Informed Consent to Rationing Decisions, 71 MILBANK Q. 645 (1993) [hereinafter Hall, Rationing Decisions] (preliminary discussion of topic); Hall, Informed Consent, supra note 1, at 511 (discussing informed consent and its effect on patients' abilities to direct their own medical decisions). For further discussion of the contract approach, see infra Part V.
287. See generally supra note 36 and accompanying text (describing contract theorists). At least two commentators have suggested that this approach be extended to permit patients to contract for differing levels of informed consent. See HALL, MAKING MEDICAL SPENDING DECISIONS, supra note 59, at 193-227 (examining contract theory as it relates to the physician-patient relationship); Epstein, supra note 4, at 119-28 (arguing that patients should be allowed to contract for different standards of care); Mark A. Hall, Informed Consent to Rationing Decisions, 71 MILBANK Q. 645 (1993) [hereinafter Hall, Rationing Decisions] (preliminary discussion of topic); Hall, Informed Consent, supra note 1, at 511 (discussing informed consent and its effect on patients' abilities to direct their own medical decisions). For further discussion of the contract approach, see infra Part V.
288. See generally supra note 36 and accompanying text (describing contract theorists). At least two commentators have suggested that this approach be extended to permit patients to contract for differing levels of informed consent. See HALL, MAKING MEDICAL SPENDING DECISIONS, supra note 59, at 193-227 (examining contract theory as it relates to the physician-patient relationship); Epstein, supra note 4, at 119-28 (arguing that patients should be allowed to contract for different standards of care); Mark A. Hall, Informed Consent to Rationing Decisions, 71 MILBANK Q. 645 (1993) [hereinafter Hall, Rationing Decisions] (preliminary discussion of topic); Hall, Informed Consent, supra note 1, at 511 (discussing informed consent and its effect on patients' abilities to direct their own medical decisions). For further discussion of the contract approach, see infra Part V.
289. See PROSSER & KEETON, supra note 29, at § 32 (describing the informed consent doctrine).
290. 1 MAKING HEALTH CARE DECISIONS, supra note 11, at 76-77.
291. Ezekiel J. Emanuel & Nancy Neveloff Dubler, Preserving the Physician-Patient Relationship in the Era of Managed Care, 273 JAMA 323, 324 (1995).
292. CEJA, Ethical Issues, supra note 60, at 332, 335. The President's Commission similarly argued that "Ordinarily, alternatives should still be described, even though they would not be covered by a patient's insurance plan (if any) or enrollment agreement with a health maintenance organization, lest the patient be deprived of the opportunity to seek other avenues for paying for the treatment or to look for treatment outside the insured or prepaid options." 1 MAKING HEALTH CARE DECISIONS, supra note 11, at 77.
293. CEJA, Ethical Issues, supra note 60, at 332, 335. The President's Commission similarly argued that "Ordinarily, alternatives should still be described, even though they would not be covered by a patient's insurance plan (if any) or enrollment agreement with a health maintenance organization, lest the patient be deprived of the opportunity to seek other avenues for paying for the treatment or to look for treatment outside the insured or prepaid options." 1 MAKING HEALTH CARE DECISIONS, supra note 11, at 77.
294. Frances H. Miller, Denial of Health Care and Informed Consent in English and American Law, 18 AM. J.L. & MED. 37, 70-71 (1992) [hereinafter F. Miller, Denial of Health Care]; see Marc A. Rodwin, Conflicts In Managed Care, 332 NEW ENG. J. MED. 604, 605 (1995) [hereinafter Rodwin, Conflicts in Managed Care] ("Implicit methods of restricting services - by resource management or rules and incentives - hide from patients their limited choices. Such practices compromise the values underlying informed consent because doctors and providers do not inform patients that their clinical choices are restricted.").
295. Frances H. Miller, Denial of Health Care and Informed Consent in English and American Law, 18 AM. J.L. & MED. 37, 70-71 (1992) [hereinafter F. Miller, Denial of Health Care]; see Marc A. Rodwin, Conflicts In Managed Care, 332 NEW ENG. J. MED. 604, 605 (1995) [hereinafter Rodwin, Conflicts in Managed Care] ("Implicit methods of restricting services - by resource management or rules and incentives - hide from patients their limited choices. Such practices compromise the values underlying informed consent because doctors and providers do not inform patients that their clinical choices are restricted.").
296. See, e.g., Richards & McLean, supra note 82, at 455-56 ("To the extent that gag rules prevent the patient from receiving full information about treatments and alternatives, they are in direct conflict with informed consent doctrine."); Martin & Bjerknes, supra note 60, at 453 ("Gag clauses that prohibit disclosure of uncovered but medically accepted treatments likely violate the doctrine of informed consent if a patient can establish injury."). But see Hall, Informed Consent, supra note 1, at 445-51 (arguing that the doctrine of informed consent can and should permit nondisclosure of marginally beneficial care).
297. KATZ, SILENT WORLD, supra note 34, at ix.
298. APPELBAUM ET AL., supra note 3, at 55 (footnotes omitted); see also George J. Annas 81 Frances H. Miller, The Empire of Death: How Culture and Economics Affect Informed Consent in the U.S., the U.K., and Japan, 20 AM. J.L. & MED. 357, 393 (1994) ("[I]nformed consent probably gets more attention than it deserves with regard to treatment alternatives. Physicians everywhere in fact usually make decisions about therapy for their patients rather than with them."); Susan G. Nayfield et al., Review: Statutory Requirements for Disclosure of Breast Cancer Treatment Alternatives, 86 J. NAT'L CANCER INST. 1202, 1206 (1994) ("Evidence suggests that physicians do not necessarily view the discussion of treatment alternatives as an integral part of informed consent.").
299. APPELBAUM ET AL., supra note 3, at 55 (footnotes omitted); see also George J. Annas 81 Frances H. Miller, The Empire of Death: How Culture and Economics Affect Informed Consent in the U.S., the U.K., and Japan, 20 AM. J.L. & MED. 357, 393 (1994) ("[I]nformed consent probably gets more attention than it deserves with regard to treatment alternatives. Physicians everywhere in fact usually make decisions about therapy for their patients rather than with them."); Susan G. Nayfield et al., Review: Statutory Requirements for Disclosure of Breast Cancer Treatment Alternatives, 86 J. NAT'L CANCER INST. 1202, 1206 (1994) ("Evidence suggests that physicians do not necessarily view the discussion of treatment alternatives as an integral part of informed consent.").
300. See 1 MAKING HEALTH CARE DECISIONS, supra note 11, at 18-19.
301. While this section is based on a review of state informed consent statutes and several hundred reported informed consent cases, it is not intended as a comprehensive review of the law of informed consent in any particular jurisdiction.
302. See ROZOVSKY, supra note 28, § 1.15, at 75 (describing elements).
303. See APPELBAUM ET AL., supra note 3, at 114 (discussing battery doctrine).
304. See Jones, supra note 22, at 390 n.37 (describing differences between informed consent actions arising under negligence and battery).
305. See id. at 117-19; (contrasting the two theories); Marjorie Maguire Shultz, From Informed Consent to Patient Choice: A New Protected Interest, 95 YALE L.J. 219, 225 (1985) (noting concern that under battery theory, "doctors could end up paying significant damages after providing faultless medical treatment, simply because some minor information aspect of the consent process was questioned"); Alan J. Weisbard, Informed Consent: The Law's Uneasy Compromise With Ethical Theory, 65 NEB. L. REV. 749, 754 n.14 (1986) (describing the differences between informed consent actions arising under negligence and battery).
306. See id. at 117-19; (contrasting the two theories); Marjorie Maguire Shultz, From Informed Consent to Patient Choice: A New Protected Interest, 95 YALE L.J. 219, 225 (1985) (noting concern that under battery theory, "doctors could end up paying significant damages after providing faultless medical treatment, simply because some minor information aspect of the consent process was questioned"); Alan J. Weisbard, Informed Consent: The Law's Uneasy Compromise With Ethical Theory, 65 NEB. L. REV. 749, 754 n.14 (1986) (describing the differences between informed consent actions arising under negligence and battery).
307. As the Supreme Court of New Jersey recently noted, "It is a battery if a physician operates without the patient's consent; it is negligence if the physician operates without the patient's informed consent." Conklin v. Weisman, 678 A.2d 1060, 1069 (N.J. 1998) (emphasis added).
308. See Hall, Informed Consent, supra note 1, at 539. Some jurisdictions, such as Pennsylvania, have adopted a more patient-centered hybrid model, balancing the physical contact requirement with the traditional battery requirement that causation need not be proven. E.g., PA. STAT. ANN. tit. 40, § 1301.103 (West 1993) (defining informed consent as a malpractice cause of action); Gouse v. Cassel, 615 A.2d 331, 333 (Pa. 1992).
309. See Hall, Informed Consent, supra note 1, at 539. Some jurisdictions, such as Pennsylvania, have adopted a more patient-centered hybrid model, balancing the physical contact requirement with the traditional battery requirement that causation need not be proven. E.g., PA. STAT. ANN. tit. 40, § 1301.103 (West 1993) (defining informed consent as a malpractice cause of action); Gouse v. Cassel, 615 A.2d 331, 333 (Pa. 1992).
310. PA. STAT. ANN. tit. 40, § 1301.811-A(a) (West Supp. 1999); see also Jones v. Philadelphia College of Osteopathic Med., 813 F. Supp. 1125 (E.D. Pa. 1993) (requiring informed consent for a blood transfusion). Similarly, the Georgia informed consent statute applies only to persons undergoing a surgical procedure (under other than local anesthesia), amniocentesis, or a diagnostic procedure involving intravenous or intraductal injection of contrast media. GA. CODE ANN. § 31-9-6.1(a) (1997).
311. PA. STAT. ANN. tit. 40, § 1301.811-A(a) (West Supp. 1999); see also Jones v. Philadelphia College of Osteopathic Med., 813 F. Supp. 1125 (E.D. Pa. 1993) (requiring informed consent for a blood transfusion). Similarly, the Georgia informed consent statute applies only to persons undergoing a surgical procedure (under other than local anesthesia), amniocentesis, or a diagnostic procedure involving intravenous or intraductal injection of contrast media. GA. CODE ANN. § 31-9-6.1(a) (1997).
312. As explained by one trial court, "when a procedure involves a known risk o serious bodily harm, a medical doctor must exercise due care to disclose to his pa tient the potential of serious harm, the complications which might occur and alter natives to the contemplated treatment." Pegram v. Sisco, 406 F. Supp. 776, 779-81 (W.D. Ark. 1976).
313. Moreover, to the extent that patients voluntarily fill their prescriptions an ingest the drugs, they may be deemed to have consented to the treatment. Se Shultz, supra note 155, at 231 n.45.
314. Morgan v. McPhail, 704 A.2d 617 (Pa. 1997).
315. Id. at 620 (citation omitted).
316. Notable anecdotes include an HMO that authorized an orthopedic surgeon to amputate a patient's broken leg, rather than paying for an expensive procedure to save it, see Ronald Kotulak & Peter Gorner, Medicine Aches With HMO Fever, CHI. TRIB., Apr. 14, 1996, at 1, and a Medicare HMO that refused to pay for a hormone suppression drug for a patient with prostate cancer, opting instead for the more "cost effective" and permanent solution of castration. See also Treatment Trouble, SUN-SENTINEL, Nov. 7, 1993, at 25A.
317. Notable anecdotes include an HMO that authorized an orthopedic surgeon to amputate a patient's broken leg, rather than paying for an expensive procedure to save it, see Ronald Kotulak & Peter Gorner, Medicine Aches With HMO Fever, CHI. TRIB., Apr. 14, 1996, at 1, and a Medicare HMO that refused to pay for a hormone suppression drug for a patient with prostate cancer, opting instead for the more "cost effective" and permanent solution of castration. See also Treatment Trouble, SUN-SENTINEL, Nov. 7, 1993, at 25A.
318. Elaine Lu, Note, Recent Development: The Potential Effect of Managed Competition on Provider Liability and Patient Autonomy, 30 HARV. J. LEGIS. 519, 542-43 (1993) (emphasis added).
319. For general discussion of the history and potential significance of informed refusal, see, for example, Gregory, supra note 129, at 489-92; Hall, Informed Consent, supra note 1, at 541-45; Lu, supra note 164, at 545-50; Shultz, supra note 155, at 242-48.
320. 595 P.2d 919 (Wash. 1979).
321. Id. at 923. The court appeared to reaffirm this conclusion one year later in Keogan v. Holy Family Hospital 622 P.2d 1246 (Wash. 1980), in which the majority opinion applied the doctrine of informed consent to a physician who misdiagnosed a patient's chest pain as inflammation, and did not inform the patient that his symptoms suggested angina or that there were more conclusive diagnostic tests available. As several commentators have noted, however, the precedential value of Keogan is somewhat confusing, in that the "majority" opinion reaffirming Gates appears to be joined by only three of the court's eight justices; the other five justices joined a concurring opinion that reached the same result on a different legal theory, and rejected application of Gates to the facts. See id. at 1260-61; Hall, Informed Consent, supra note 1, at 544-45.
322. Id. at 923. The court appeared to reaffirm this conclusion one year later in Keogan v. Holy Family Hospital 622 P.2d 1246 (Wash. 1980), in which the majority opinion applied the doctrine of informed consent to a physician who misdiagnosed a patient's chest pain as inflammation, and did not inform the patient that his symptoms suggested angina or that there were more conclusive diagnostic tests available. As several commentators have noted, however, the precedential value of Keogan is somewhat confusing, in that the "majority" opinion reaffirming Gates appears to be joined by only three of the court's eight justices; the other five justices joined a concurring opinion that reached the same result on a different legal theory, and rejected application of Gates to the facts. See id. at 1260-61; Hall, Informed Consent, supra note 1, at 544-45.
323. 611 P.2d 902 (Cal. 1980).
324. Id. at 906; see Moore v. Preventive Medicine Med. Group, 223 Cal. Rptr. 859 (Ct. App. 1986) (holding a physician liable for failing to inform a patient of the risks of not consulting a specialist regarding a potentially dangerous mole).
325. In the last 20 years, it appears that only Wisconsin has adopted the theory. See Martin v. Richards, 531 N.W.2d 70 (Wis. 1995) (interpreting WIS. STAT. ANN. § 448.30 (West 1998), which requires a physician to inform a patient of "alternate, viable modes of treatment," to require a physician to inform a patient of the availability of noninvasive or diagnostic procedures such as CT scans). Interestingly, the Seventh Circuit earlier had assumed that Wisconsin would reject application of the statute to diagnostic methods. See McGeshick v. Choucair, 9 F.3d 1229, 1233-35 (7th Cir. 1993) (affirming trial court's refusal of instruction indicating that physician had a duty to inform patient about possibility of undergoing angiography to exclude one potential cause of patient's symptoms). The theory was adopted by one appellate court in New Jersey; however, on review, the New Jersey Supreme Court determined that the informed consent issue was not properly before the lower court. See Kimmel v. Dayrit, 693 A.2d 1287 (N.J. Super. Ct. App. Div. 1997) (holding that the jury should have been allowed to consider informed consent cause of action based on physician's alleged failure to inform patient of availability and potential benefits of a blood test to detect the possible spread of cancer), aff'd as modified, 712 A.2d 1129 (N.J. 1998); cf. Berman v. Allan, 404 A.2d 8 (N.J. 1979) (holding that wrongful birth is a legally cognizable claim, where parents were not informed of availability of amniocentesis to identify Down's Syndrome). But see Reed v. Campagnolo, 630 A.2d. 1145 (Md. 1993) (answering in the negative the certified question of whether the continuation of a pregnancy can give rise to an action for informed consent where the physician failed to inform a pregnant patient of the availability, risk, and benefits o diagnostic testing to reveal potential birth defects).
326. See, e.g., Gates, 595 P.2d at 921 (stating that additional tests for glaucom were "simple, inexpensive, and risk free"); Truman, 611 P.2d at 902 (requiring disclosure when patient intends to decline a "risk-free test or treatment").
327. See, e.g., ARK. CODE ANN. § 16-114-206(b)(1) (Michie 1987); DEL. CODE ANN. tit. 18, § 6852(a)(2) (1974); FLA. STAT. ANN. § 766.103(3)(a)(1) (West 1999); GA. CODE ANN. § 31-9-6.1(a)(3), (5) (Harrison 1997); IDAHO CODE §39-4304 (1998); KY. REV. STAT. ANN. § 304.40-320(1) (Michie 1998); ME. REV. STAT. ANN. tit. 31, § 2905(1) (West 1996); NEB. REV. STAT. § 44-2816 (1998); N.H. REV. STAT. ANN. § 507-C:2(I) (1997); N.Y. PUB. HEALTH § 2805-d(1) (1997); N.C. GEN. STAT. § 90-21.13(a)(1) (1996); TENN. CODE ANN. § 29-26-118 (1996); VT. STAT. ANN. tit. 12, § 1909(a)(1) (1996); Szczygiel, supra note 9, at 207-08.
328. See, e.g., ARK. CODE ANN. § 16-114-206(b)(1) (Michie 1987); DEL. CODE ANN. tit. 18, § 6852(a)(2) (1974); FLA. STAT. ANN. § 766.103(3)(a)(1) (West 1999); GA. CODE ANN. § 31-9-6.1(a)(3), (5) (Harrison 1997); IDAHO CODE §39-4304 (1998); KY. REV. STAT. ANN. § 304.40-320(1) (Michie 1998); ME. REV. STAT. ANN. tit. 31, § 2905(1) (West 1996); NEB. REV. STAT. § 44-2816 (1998); N.H. REV. STAT. ANN. § 507-C:2(I) (1997); N.Y. PUB. HEALTH § 2805-d(1) (1997); N.C. GEN. STAT. § 90-21.13(a)(1) (1996); TENN. CODE ANN. § 29-26-118 (1996); VT. STAT. ANN. tit. 12, § 1909(a)(1) (1996); Szczygiel, supra note 9, at 207-08.
329. See, e.g., ARK. CODE ANN. § 16-114-206(b)(1) (Michie 1987); DEL. CODE ANN. tit. 18, § 6852(a)(2) (1974); FLA. STAT. ANN. § 766.103(3)(a)(1) (West 1999); GA. CODE ANN. § 31-9-6.1(a)(3), (5) (Harrison 1997); IDAHO CODE §39-4304 (1998); KY. REV. STAT. ANN. § 304.40-320(1) (Michie 1998); ME. REV. STAT. ANN. tit. 31, § 2905(1) (West 1996); NEB. REV. STAT. § 44-2816 (1998); N.H. REV. STAT. ANN. § 507-C:2(I) (1997); N.Y. PUB. HEALTH § 2805-d(1) (1997); N.C. GEN. STAT. § 90-21.13(a)(1) (1996); TENN. CODE ANN. § 29-26-118 (1996); VT. STAT. ANN. tit. 12, § 1909(a)(1) (1996); Szczygiel, supra note 9, at 207-08.
330. See, e.g., ARK. CODE ANN. § 16-114-206(b)(1) (Michie 1987); DEL. CODE ANN. tit. 18, § 6852(a)(2) (1974); FLA. STAT. ANN. § 766.103(3)(a)(1) (West 1999); GA. CODE ANN. § 31-9-6.1(a)(3), (5) (Harrison 1997); IDAHO CODE §39-4304 (1998); KY. REV. STAT. ANN. § 304.40-320(1) (Michie 1998); ME. REV. STAT. ANN. tit. 31, § 2905(1) (West 1996); NEB. REV. STAT. § 44-2816 (1998); N.H. REV. STAT. ANN. § 507-C:2(I) (1997); N.Y. PUB. HEALTH § 2805-d(1) (1997); N.C. GEN. STAT. § 90-21.13(a)(1) (1996); TENN. CODE ANN. § 29-26-118 (1996); VT. STAT. ANN. tit. 12, § 1909(a)(1) (1996); Szczygiel, supra note 9, at 207-08.
331. See, e.g., ARK. CODE ANN. § 16-114-206(b)(1) (Michie 1987); DEL. CODE ANN. tit. 18, § 6852(a)(2) (1974); FLA. STAT. ANN. § 766.103(3)(a)(1) (West 1999); GA. CODE ANN. § 31-9-6.1(a)(3), (5) (Harrison 1997); IDAHO CODE §39-4304 (1998); KY. REV. STAT. ANN. § 304.40-320(1) (Michie 1998); ME. REV. STAT. ANN. tit. 31, § 2905(1) (West 1996); NEB. REV. STAT. § 44-2816 (1998); N.H. REV. STAT. ANN. § 507-C:2(I) (1997); N.Y. PUB. HEALTH § 2805-d(1) (1997); N.C. GEN. STAT. § 90-21.13(a)(1) (1996); TENN. CODE ANN. § 29-26-118 (1996); VT. STAT. ANN. tit. 12, § 1909(a)(1) (1996); Szczygiel, supra note 9, at 207-08.
332. See, e.g., ARK. CODE ANN. § 16-114-206(b)(1) (Michie 1987); DEL. CODE ANN. tit. 18, § 6852(a)(2) (1974); FLA. STAT. ANN. § 766.103(3)(a)(1) (West 1999); GA. CODE ANN. § 31-9-6.1(a)(3), (5) (Harrison 1997); IDAHO CODE §39-4304 (1998); KY. REV. STAT. ANN. § 304.40-320(1) (Michie 1998); ME. REV. STAT. ANN. tit. 31, § 2905(1) (West 1996); NEB. REV. STAT. § 44-2816 (1998); N.H. REV. STAT. ANN. § 507-C:2(I) (1997); N.Y. PUB. HEALTH § 2805-d(1) (1997); N.C. GEN. STAT. § 90-21.13(a)(1) (1996); TENN. CODE ANN. § 29-26-118 (1996); VT. STAT. ANN. tit. 12, § 1909(a)(1) (1996); Szczygiel, supra note 9, at 207-08.
333. See, e.g., ARK. CODE ANN. § 16-114-206(b)(1) (Michie 1987); DEL. CODE ANN. tit. 18, § 6852(a)(2) (1974); FLA. STAT. ANN. § 766.103(3)(a)(1) (West 1999); GA. CODE ANN. § 31-9-6.1(a)(3), (5) (Harrison 1997); IDAHO CODE §39-4304 (1998); KY. REV. STAT. ANN. § 304.40-320(1) (Michie 1998); ME. REV. STAT. ANN. tit. 31, § 2905(1) (West 1996); NEB. REV. STAT. § 44-2816 (1998); N.H. REV. STAT. ANN. § 507-C:2(I) (1997); N.Y. PUB. HEALTH § 2805-d(1) (1997); N.C. GEN. STAT. § 90-21.13(a)(1) (1996); TENN. CODE ANN. § 29-26-118 (1996); VT. STAT. ANN. tit. 12, § 1909(a)(1) (1996); Szczygiel, supra note 9, at 207-08.
334. See, e.g., ARK. CODE ANN. § 16-114-206(b)(1) (Michie 1987); DEL. CODE ANN. tit. 18, § 6852(a)(2) (1974); FLA. STAT. ANN. § 766.103(3)(a)(1) (West 1999); GA. CODE ANN. § 31-9-6.1(a)(3), (5) (Harrison 1997); IDAHO CODE §39-4304 (1998); KY. REV. STAT. ANN. § 304.40-320(1) (Michie 1998); ME. REV. STAT. ANN. tit. 31, § 2905(1) (West 1996); NEB. REV. STAT. § 44-2816 (1998); N.H. REV. STAT. ANN. § 507-C:2(I) (1997); N.Y. PUB. HEALTH § 2805-d(1) (1997); N.C. GEN. STAT. § 90-21.13(a)(1) (1996); TENN. CODE ANN. § 29-26-118 (1996); VT. STAT. ANN. tit. 12, § 1909(a)(1) (1996); Szczygiel, supra note 9, at 207-08.
335. See, e.g., ARK. CODE ANN. § 16-114-206(b)(1) (Michie 1987); DEL. CODE ANN. tit. 18, § 6852(a)(2) (1974); FLA. STAT. ANN. § 766.103(3)(a)(1) (West 1999); GA. CODE ANN. § 31-9-6.1(a)(3), (5) (Harrison 1997); IDAHO CODE §39-4304 (1998); KY. REV. STAT. ANN. § 304.40-320(1) (Michie 1998); ME. REV. STAT. ANN. tit. 31, § 2905(1) (West 1996); NEB. REV. STAT. § 44-2816 (1998); N.H. REV. STAT. ANN. § 507-C:2(I) (1997); N.Y. PUB. HEALTH § 2805-d(1) (1997); N.C. GEN. STAT. § 90-21.13(a)(1) (1996); TENN. CODE ANN. § 29-26-118 (1996); VT. STAT. ANN. tit. 12, § 1909(a)(1) (1996); Szczygiel, supra note 9, at 207-08.
336. See, e.g., ARK. CODE ANN. § 16-114-206(b)(1) (Michie 1987); DEL. CODE ANN. tit. 18, § 6852(a)(2) (1974); FLA. STAT. ANN. § 766.103(3)(a)(1) (West 1999); GA. CODE ANN. § 31-9-6.1(a)(3), (5) (Harrison 1997); IDAHO CODE §39-4304 (1998); KY. REV. STAT. ANN. § 304.40-320(1) (Michie 1998); ME. REV. STAT. ANN. tit. 31, § 2905(1) (West 1996); NEB. REV. STAT. § 44-2816 (1998); N.H. REV. STAT. ANN. § 507-C:2(I) (1997); N.Y. PUB. HEALTH § 2805-d(1) (1997); N.C. GEN. STAT. § 90-21.13(a)(1) (1996); TENN. CODE ANN. § 29-26-118 (1996); VT. STAT. ANN. tit. 12, § 1909(a)(1) (1996); Szczygiel, supra note 9, at 207-08.
337. See, e.g., ARK. CODE ANN. § 16-114-206(b)(1) (Michie 1987); DEL. CODE ANN. tit. 18, § 6852(a)(2) (1974); FLA. STAT. ANN. § 766.103(3)(a)(1) (West 1999); GA. CODE ANN. § 31-9-6.1(a)(3), (5) (Harrison 1997); IDAHO CODE §39-4304 (1998); KY. REV. STAT. ANN. § 304.40-320(1) (Michie 1998); ME. REV. STAT. ANN. tit. 31, § 2905(1) (West 1996); NEB. REV. STAT. § 44-2816 (1998); N.H. REV. STAT. ANN. § 507-C:2(I) (1997); N.Y. PUB. HEALTH § 2805-d(1) (1997); N.C. GEN. STAT. § 90-21.13(a)(1) (1996); TENN. CODE ANN. § 29-26-118 (1996); VT. STAT. ANN. tit. 12, § 1909(a)(1) (1996); Szczygiel, supra note 9, at 207-08.
338. See, e.g., ARK. CODE ANN. § 16-114-206(b)(1) (Michie 1987); DEL. CODE ANN. tit. 18, § 6852(a)(2) (1974); FLA. STAT. ANN. § 766.103(3)(a)(1) (West 1999); GA. CODE ANN. § 31-9-6.1(a)(3), (5) (Harrison 1997); IDAHO CODE §39-4304 (1998); KY. REV. STAT. ANN. § 304.40-320(1) (Michie 1998); ME. REV. STAT. ANN. tit. 31, § 2905(1) (West 1996); NEB. REV. STAT. § 44-2816 (1998); N.H. REV. STAT. ANN. § 507-C:2(I) (1997); N.Y. PUB. HEALTH § 2805-d(1) (1997); N.C. GEN. STAT. § 90-21.13(a)(1) (1996); TENN. CODE ANN. § 29-26-118 (1996); VT. STAT. ANN. tit. 12, § 1909(a)(1) (1996); Szczygiel, supra note 9, at 207-08.
339. See, e.g., ARK. CODE ANN. § 16-114-206(b)(1) (Michie 1987); DEL. CODE ANN. tit. 18, § 6852(a)(2) (1974); FLA. STAT. ANN. § 766.103(3)(a)(1) (West 1999); GA. CODE ANN. § 31-9-6.1(a)(3), (5) (Harrison 1997); IDAHO CODE §39-4304 (1998); KY. REV. STAT. ANN. § 304.40-320(1) (Michie 1998); ME. REV. STAT. ANN. tit. 31, § 2905(1) (West 1996); NEB. REV. STAT. § 44-2816 (1998); N.H. REV. STAT. ANN. § 507-C:2(I) (1997); N.Y. PUB. HEALTH § 2805-d(1) (1997); N.C. GEN. STAT. § 90-21.13(a)(1) (1996); TENN. CODE ANN. § 29-26-118 (1996); VT. STAT. ANN. tit. 12, § 1909(a)(1) (1996); Szczygiel, supra note 9, at 207-08.
340. See, e.g., ARK. CODE ANN. § 16-114-206(b)(1) (Michie 1987); DEL. CODE ANN. tit. 18, § 6852(a)(2) (1974); FLA. STAT. ANN. § 766.103(3)(a)(1) (West 1999); GA. CODE ANN. § 31-9-6.1(a)(3), (5) (Harrison 1997); IDAHO CODE §39-4304 (1998); KY. REV. STAT. ANN. § 304.40-320(1) (Michie 1998); ME. REV. STAT. ANN. tit. 31, § 2905(1) (West 1996); NEB. REV. STAT. § 44-2816 (1998); N.H. REV. STAT. ANN. § 507-C:2(I) (1997); N.Y. PUB. HEALTH § 2805-d(1) (1997); N.C. GEN. STAT. § 90-21.13(a)(1) (1996); TENN. CODE ANN. § 29-26-118 (1996); VT. STAT. ANN. tit. 12, § 1909(a)(1) (1996); Szczygiel, supra note 9, at 207-08.
341. Natanson, 350 P.2d at 1107. For other cases adopting the professional standard, see Jacobs v. Painter, 530 A.2d 231, 235-36 (Me. 1987) (reasonable medical practitioner); Robinson v. Bleicher, 559 N.W.2d 473, 478-79 (Neb. 1997) (professional theory); Smith v. Cotter, 810 P.2d 1204, 1207-08 (Nev. 1991) (professional).
342. Natanson, 350 P.2d at 1106.
343. Canterbury v. Spence, 464 F.2d 771, 784, 786 (D.C. Cir. 1972) (emphasis added). For other cases adopting the patient need standard, see, for example, Korman v. Mallin, 858 P.2d 1145 (Alaska 1993) (reasonable patient); Cobbs v. Grant, 502 P.2d 1, 11 (Cal. 1972) (discussing disclosure measured by patient need); Bernard v. Char, 903 P.2d 667, 670 (Haw. 1995) (patient-oriented standard); Rook v. Trout, 747 P.2d 61, 66 (Idaho 1987) (citing Cobbs); Sard v. Hardy, 379 A.2d 1014, 1022 (Md. 1977) (materiality of information to patient's decision); Harnish v. Children's Hosp. Med. Ctr., 439 N.E.2d 240, 243 (Mass. 1982) (information that is "material to an intelligent decision by the patient"); Phillips v. Hull, 516 So. 2d 488, 493 (Miss. 1987) ("prudent patient" standard); Gouse v. Cassel, 615 A.2d 331, 334 (Pa. 1992) (material information that "reasonable man" would have considered significant); Wheeldon v. Madison, 374 N.W.2d 367, 374-75 (S.D. 1995) (following Canterbury); Martin, 531 N.W.2d at 77-78. For the minority of jurisdictions adopting the patient-oriented standard by statute, see PA. STAT. ANN. tit. 40, § 1301.811-A(b) (West 1992); WASH. REV. CODE ANN. § 4.70.050(2) (West 1997).
344. Canterbury v. Spence, 464 F.2d 771, 784, 786 (D.C. Cir. 1972) (emphasis added). For other cases adopting the patient need standard, see, for example, Korman v. Mallin, 858 P.2d 1145 (Alaska 1993) (reasonable patient); Cobbs v. Grant, 502 P.2d 1, 11 (Cal. 1972) (discussing disclosure measured by patient need); Bernard v. Char, 903 P.2d 667, 670 (Haw. 1995) (patient-oriented standard); Rook v. Trout, 747 P.2d 61, 66 (Idaho 1987) (citing Cobbs); Sard v. Hardy, 379 A.2d 1014, 1022 (Md. 1977) (materiality of information to patient's decision); Harnish v. Children's Hosp. Med. Ctr., 439 N.E.2d 240, 243 (Mass. 1982) (information that is "material to an intelligent decision by the patient"); Phillips v. Hull, 516 So. 2d 488, 493 (Miss. 1987) ("prudent patient" standard); Gouse v. Cassel, 615 A.2d 331, 334 (Pa. 1992) (material information that "reasonable man" would have considered significant); Wheeldon v. Madison, 374 N.W.2d 367, 374-75 (S.D. 1995) (following Canterbury); Martin, 531 N.W.2d at 77-78. For the minority of jurisdictions adopting the patient-oriented standard by statute, see PA. STAT. ANN. tit. 40, § 1301.811-A(b) (West 1992); WASH. REV. CODE ANN. § 4.70.050(2) (West 1997).
345. Canterbury, 464 F.2d at 787. Few courts have focused the inquiry on what information would have been material to the individual patient. See Scott v. Bradford, 606 P.2d 555, 559 (Okla. 1979); Cross v. Trapp, 294 S.E.2d 446, 452 (W. Va. 1982).
346. See Hall, Informed Consent, supra note 1, at 533-34.
347. Katz, A Fairy Tale?, supra note 9, at 154.
348. See, e.g., Gerald F. Tietz, Informed Consent in the Prescription Drug Context: The Special Case, 61 WASH. L. REV. 367, 372 (1986) ("[C]ourts that ignore the concerns and desires of the particular patient in favor of the hypothetical patient cannot effect the patient's right of self-determination and bodily integrity."); Weisbard, supra note 155, at 760-61 (explaining that
349. Capron, Containing Health Care Costs, supra note 54, at 750 n. 146; see Hall, Informed Consent, supra note 1, at 560-62 (noting that a "physician would not have to disclose specific nontreatment decisions if a respectable number of doctors in similar practice settings routinely did not do so").
350. Capron, Containing Health Care Costs, supra note 54, at 750 n. 146; see Hall, Informed Consent, supra note 1, at 560-62 (noting that a "physician would not have to disclose specific nontreatment decisions if a respectable number of doctors in similar practice settings routinely did not do so").
351. See Mark A. Hall, The Malpractice Standard Under Health Care Cost Containment, 17 LAW MED. & HEALTH CARE 347 (1989) [hereinafter Hall, Malpractice Standard] (arguing that standard of care is capable of absorbing the impact of cost incentives); F. Miller, Denial of Health Care, supra note 146, at 51 (arguing that "customary medical practice will itself gradually adjust to reflect health care rationing"). For a contrary view, see generally Edward B. Hirshfeld, Commentary, Should Ethical and Legal Standards For Physicians Be Changed to Accommodate New Models for Rationing Health Care?, 140 U. PA. L. REV. 1809 (1992) (arguing that the standard of care should not be altered to accommodate rationing concerns); E. Haavi Morreim, Cost Containment and the Standard of Medical Care, 75 CAL. L. REV. 1719 (1987) (arguing that while the current standard can accept increases in the standard of care, it cannot accept decreases).
352. See Mark A. Hall, The Malpractice Standard Under Health Care Cost Containment, 17 LAW MED. & HEALTH CARE 347 (1989) [hereinafter Hall, Malpractice Standard] (arguing that standard of care is capable of absorbing the impact of cost incentives); F. Miller, Denial of Health Care, supra note 146, at 51 (arguing that "customary medical practice will itself gradually adjust to reflect health care rationing"). For a contrary view, see generally Edward B. Hirshfeld, Commentary, Should Ethical and Legal Standards For Physicians Be Changed to Accommodate New Models for Rationing Health Care?, 140 U. PA. L. REV. 1809 (1992) (arguing that the standard of care should not be altered to accommodate rationing concerns); E. Haavi Morreim, Cost Containment and the Standard of Medical Care, 75 CAL. L. REV. 1719 (1987) (arguing that while the current standard can accept increases in the standard of care, it cannot accept decreases).
353. See Mark A. Hall, The Malpractice Standard Under Health Care Cost Containment, 17 LAW MED. & HEALTH CARE 347 (1989) [hereinafter Hall, Malpractice Standard] (arguing that standard of care is capable of absorbing the impact of cost incentives); F. Miller, Denial of Health Care, supra note 146, at 51 (arguing that "customary medical practice will itself gradually adjust to reflect health care rationing"). For a contrary view, see generally Edward B. Hirshfeld, Commentary, Should Ethical and Legal Standards For Physicians Be Changed to Accommodate New Models for Rationing Health Care?, 140 U. PA. L. REV. 1809 (1992) (arguing that the standard of care should not be altered to accommodate rationing concerns); E. Haavi Morreim, Cost Containment and the Standard of Medical Care, 75 CAL. L. REV. 1719 (1987) (arguing that while the current standard can accept increases in the standard of care, it cannot accept decreases).
354. See Mark A. Hall, The Malpractice Standard Under Health Care Cost Containment, 17 LAW MED. & HEALTH CARE 347 (1989) [hereinafter Hall, Malpractice Standard] (arguing that standard of care is capable of absorbing the impact of cost incentives); F. Miller, Denial of Health Care, supra note 146, at 51 (arguing that "customary medical practice will itself gradually adjust to reflect health care rationing"). For a contrary view, see generally Edward B. Hirshfeld, Commentary, Should Ethical and Legal Standards For Physicians Be Changed to Accommodate New Models for Rationing Health Care?, 140 U. PA. L. REV. 1809 (1992) (arguing that the standard of care should not be altered to accommodate rationing concerns); E. Haavi Morreim, Cost Containment and the Standard of Medical Care, 75 CAL. L. REV. 1719 (1987) (arguing that while the current standard can accept increases in the standard of care, it cannot accept decreases).
355. This concept of "decision causation" is distinguishable from the concept of "injury causation," i.e., the requirement that the procedure cause the patient's harm. See Aaron D. Twerski & Neil B. Cohen, Informed Decision Making and Law of Torts: The Myth of Justiciable Causation, 1988 U. ILL. L. REV. 607, 617-18.
356. Cantebury, 464 F.2d at 790-91. For other cases adopting the objective standard, see, for example, Parkins v. United States, 834 F. Supp. 569, 574 (D. Conn. 1993) ("[W]hether a reasonable person, suitably informed, would have decided differently."); Bernard v. Char, 903 P.2d 667, 673 (Haw. 1995) (finding objective standard "provides a better, simpler, and more equitable analytical process"); Sard v. Hardy, 379 A.2d 1014, 1024-26 (Md. 1977) (applying the objective test); Harnish v. Children's Hosp. Med. Ctr., 439 N.E.2d 240, 244 (Mass. 1982) (holding plaintiff must show that neither he nor a reasonable person in similar circumstances would have chosen to undergo procedure had proper information been provided); Cornfeldt v. Tongen, 295 N.W.2d 638, 640 (Minn. 1980) (holding that a reasonable person would not have consented to procedure if informed of the risk); Phillips v. Hull, 516 So. 2d 488, 493 (Miss. 1987) (using objective test); Wheeldon v. Madison, 374 N.W.2d 367, 376 (S.D. 1995) (applying reasonably prudent person); Keogan v. Holy Family Hosp., 622 P.2d 1246, 1257 (Wash. 1980) ("[W]hether a reasonably prudent person in Keogan's position would have chosen a different course of treatment.").
357. GA. CODE ANN. § 31-9-6.1(d)(3) (1997); see N.Y. PUB. HEALTH § 2805-d(3 (1998) (requiring proof that & reasonably prudent person in patient's position would not have undergone proposed treatment if fully informed); N.C. GEN. STAT. § 90 21.13(a)(3) (1996) (disallowing recovery if a reasonably prudent person would have undergone treatment or procedure if fully informed); UTAH CODE ANN. § 78-14-5(1)(2) (1996) (requiring proof that a reasonably prudent person in patient's position would not have consented if fully informed); WASH. REV. CODE ANN. § 7.70.050(1)(c) (West 1993) (requiring proof that a reasonably prudent person under similar circumstance would not have consented if fully informed).
358. GA. CODE ANN. § 31-9-6.1(d)(3) (1997); see N.Y. PUB. HEALTH § 2805-d(3 (1998) (requiring proof that & reasonably prudent person in patient's position would not have undergone proposed treatment if fully informed); N.C. GEN. STAT. § 90 21.13(a)(3) (1996) (disallowing recovery if a reasonably prudent person would have undergone treatment or procedure if fully informed); UTAH CODE ANN. § 78-14-5(1)(2) (1996) (requiring proof that a reasonably prudent person in patient's position would not have consented if fully informed); WASH. REV. CODE ANN. § 7.70.050(1)(c) (West 1993) (requiring proof that a reasonably prudent person under similar circumstance would not have consented if fully informed).
359. GA. CODE ANN. § 31-9-6.1(d)(3) (1997); see N.Y. PUB. HEALTH § 2805-d(3 (1998) (requiring proof that & reasonably prudent person in patient's position would not have undergone proposed treatment if fully informed); N.C. GEN. STAT. § 90 21.13(a)(3) (1996) (disallowing recovery if a reasonably prudent person would have undergone treatment or procedure if fully informed); UTAH CODE ANN. § 78-14-5(1)(2) (1996) (requiring proof that a reasonably prudent person in patient's position would not have consented if fully informed); WASH. REV. CODE ANN. § 7.70.050(1)(c) (West 1993) (requiring proof that a reasonably prudent person under similar circumstance would not have consented if fully informed).
360. GA. CODE ANN. § 31-9-6.1(d)(3) (1997); see N.Y. PUB. HEALTH § 2805-d(3 (1998) (requiring proof that & reasonably prudent person in patient's position would not have undergone proposed treatment if fully informed); N.C. GEN. STAT. § 90 21.13(a)(3) (1996) (disallowing recovery if a reasonably prudent person would have undergone treatment or procedure if fully informed); UTAH CODE ANN. § 78-14-5(1)(2) (1996) (requiring proof that a reasonably prudent person in patient's position would not have consented if fully informed); WASH. REV. CODE ANN. § 7.70.050(1)(c) (West 1993) (requiring proof that a reasonably prudent person under similar circumstance would not have consented if fully informed).
361. GA. CODE ANN. § 31-9-6.1(d)(3) (1997); see N.Y. PUB. HEALTH § 2805-d(3 (1998) (requiring proof that & reasonably prudent person in patient's position would not have undergone proposed treatment if fully informed); N.C. GEN. STAT. § 90 21.13(a)(3) (1996) (disallowing recovery if a reasonably prudent person would have undergone treatment or procedure if fully informed); UTAH CODE ANN. § 78-14-5(1)(2) (1996) (requiring proof that a reasonably prudent person in patient's position would not have consented if fully informed); WASH. REV. CODE ANN. § 7.70.050(1)(c) (West 1993) (requiring proof that a reasonably prudent person under similar circumstance would not have consented if fully informed).
362. Scott v. Bradford, 606 P.2d 555, 559 (Okla. 1979); see also Smith v. Reisig, 686 P.2d 285, 288 (Okla. 1984) (retaining subjective test); Wilkinson v. Vesey, 295 A.2d 676, 689-90 (R.I. 1972) (adopting subjective test).
363. Scott, 606 P.2d at 559.
364. Katz, A Fairy Tale?, supra note 9, at 164.
365. "The combined effect . . . is that, for all practical purposes, a patient is only entitled to information which would lead a reasonable patient to choose against the doctor's recommended therapy." Twerski & Cohen, supra note 182, at 615.
366. See id. at 626-48 (suggesting that juries face an impossible task even under the objective test).
367. Id. Interestingly, plaintiffs are not required to prove causation in jurisdictions that continue to ground the doctrine of informed consent in battery law. See, e.g., MacDonald v. U.S., 767 F. Supp. 1295, 1312-13 (M.D. Pa. 1991) (acknowledging Pennsylvania's approach to causation); Gouse v. Cassel, 615 A.2d 331, 333 (Pa. 1992) (noting that once the plaintiff proved that he had not been advised of material information that a reasonable man would have considered significant in deciding whether to have his spleen removed, "the causation inquiry ended [and] [t]he sole issue remaining was a determination of damages"); Shadrick v. Coker, 963 S.W.2d 726, 732 (Tenn. 1998) ("When the health care provider performs the treatment or procedure without the requisite informed consent of the patient, liability attaches foi the resulting injuries regardless of whether those injuries resulted from negligence.").
368. Cf. Jon F. Merz, On a Decision-Making Paradigm of Medical Informed Consent 14 J. LEGAL MED. 231, 245 (1993) (criticizing the doctrine's focus on the "single tran spired risk").
369. It does not appear that any such cases have been successful. See Herrington v. Spell, 692 So. 2d 93 (Miss. 1997) (rejecting argument that physician performed a modified radical mastectomy without patient's consent by failing to identify lumpectomy as an alternative); Shultz, supra note 155, at 252 n.134 (noting inability to locate cases as of 1985 alleging lack of patient choice concerning mastectomy or lumpectomy). However, this precise scenario has been addressed by specialized informed consent legislation in several states. See infra Part VI (describing breast cancer in informed consent statutes).
370. See Twerski & Cohen, supra note 182, at 656-57 & n.174; Herman v. Allan, 404 A.2d 8, 13 (N.J. 1979) ("We sympathize with her plight. We cannot, however, say that she would have been better off had she never been brought into the world."); see also Mark Strasser, Wrongful Life, Wrongful Birth, Wrongful Death, and the Right to Refuse Treatment: Can Reasonable Jurisdictions Recognize All But One?, 64 MO. L. REV. 29 (1999).
371. For example, the Supreme Court of Ohio recently affirmed a trial court's conclusion that no cause of action exists for "wrongful living." Anderson v. St. Francis-St. George Hosp., 671 N.E.2d 225, 225 (Ohio 1996). While leaving open the possibility that a plaintiff might be able to recover for any damages actually caused by the unwanted procedure, such as broken bones or burns, or for nominal damages resulting from a battery that did not cause any harm, the court held that the plaintiff had failed to demonstrate entitlement to such relief. Id. at 229; see also Gragg v. Calandra, 696 N.E.2d 1282 (Ill. App. Ct. 1998) (holding that the plaintiff stated a claim for battery against the hospital that allegedly administered unwanted life-saving procedures); S. Elizabeth Wilborn Malloy, Beyond Misguided Paternalism: Regulating the Right to Refuse Medical Treatment, 33 WAKE FOREST L. REV. 1035 (1998) (focusing on the lack of legal remedies); Kellen Rodriguez, Suing Health Care Providers for Saving Lives, 20 J. LEGAL MED. 1 (1999) (discussing physician compliance with patients' end of life decisions).
372. For example, the Supreme Court of Ohio recently affirmed a trial court's conclusion that no cause of action exists for "wrongful living." Anderson v. St. Francis-St. George Hosp., 671 N.E.2d 225, 225 (Ohio 1996). While leaving open the possibility that a plaintiff might be able to recover for any damages actually caused by the unwanted procedure, such as broken bones or burns, or for nominal damages resulting from a battery that did not cause any harm, the court held that the plaintiff had failed to demonstrate entitlement to such relief. Id. at 229; see also Gragg v. Calandra, 696 N.E.2d 1282 (Ill. App. Ct. 1998) (holding that the plaintiff stated a claim for battery against the hospital that allegedly administered unwanted life-saving procedures); S. Elizabeth Wilborn Malloy, Beyond Misguided Paternalism: Regulating the Right to Refuse Medical Treatment, 33 WAKE FOREST L. REV. 1035 (1998) (focusing on the lack of legal remedies); Kellen Rodriguez, Suing Health Care Providers for Saving Lives, 20 J. LEGAL MED. 1 (1999) (discussing physician compliance with patients' end of life decisions).
373. For example, the Supreme Court of Ohio recently affirmed a trial court's conclusion that no cause of action exists for "wrongful living." Anderson v. St. Francis-St. George Hosp., 671 N.E.2d 225, 225 (Ohio 1996). While leaving open the possibility that a plaintiff might be able to recover for any damages actually caused by the unwanted procedure, such as broken bones or burns, or for nominal damages resulting from a battery that did not cause any harm, the court held that the plaintiff had failed to demonstrate entitlement to such relief. Id. at 229; see also Gragg v. Calandra, 696 N.E.2d 1282 (Ill. App. Ct. 1998) (holding that the plaintiff stated a claim for battery against the hospital that allegedly administered unwanted life-saving procedures); S. Elizabeth Wilborn Malloy, Beyond Misguided Paternalism: Regulating the Right to Refuse Medical Treatment, 33 WAKE FOREST L. REV. 1035 (1998) (focusing on the lack of legal remedies); Kellen Rodriguez, Suing Health Care Providers for Saving Lives, 20 J. LEGAL MED. 1 (1999) (discussing physician compliance with patients' end of life decisions).
374. "In most instances, reasonable alternative forms of care seem to involve the same or a similar level of risks and benefits as those found in the proposed form of care." ROZOVSKY, supra note 28, § 1.12.2.
375. See Bobinski, supra note 39, at 344-45 & n. 193 (noting that "[s]everal states refuse to penalize physicians for failure to disclose risks associated with alternative therapies"). In a few states, recent "anti-gag clause" legislation has resulted in new statutes (rather than amendments to the informed consent statutes) guaranteeing the patient's right to information about treatment options. See FLA. STAT. ANN. § 381.026(4)(b)(3) (West 1997) (declaring that a patient has a right to information concerning alternatives unless it is medically inadvisable or impossible to do so).
376. See Bobinski, supra note 39, at 344-45 & n. 193 (noting that "[s]everal states refuse to penalize physicians for failure to disclose risks associated with alternative therapies"). In a few states, recent "anti-gag clause" legislation has resulted in new statutes (rather than amendments to the informed consent statutes) guaranteeing the patient's right to information about treatment options. See FLA. STAT. ANN. § 381.026(4)(b)(3) (West 1997) (declaring that a patient has a right to information concerning alternatives unless it is medically inadvisable or impossible to do so).
377. See, e.g., ARK. CODE ANN. § 16-114-206(b)(1) (Michie 1987) (requiring disclosure of "adequate information"); IDAHO CODE § 39-4304 (1998) (requiring disclosure of "significant risks"); IOWA CODE ANN. § 147.137(1) (West 1997) (requiring disclosure of nature and purpose of procedure, as well as probability of certain serious risks such as death, brain damage, or paralysis); ME. REV. STAT. ANN. tit. 24, § 2905 (West 1996) (remaining silent on the issue); NEB. REV. STAT. ANN. § 44-2816 (same); N.H. STAT. ANN. § 507-c:2 (1997) (same); N.C. STAT. § 90-21.13 (1996) (same); OHIO REV. CODE ANN. § 2317.54 (Anderson Supp. 1999) (requiring disclosure of nature and purpose of procedure, goals of procedure, names of physicians to perform the procedure, and "reasonably known risks"); R.I. GEN. LAWS § 9-19-32 (1997) (requiring disclosure of "all known material risks"); TENN. CODE ANN. § 29-26-118 (1996) (requiring disclosure of "appropriate information"); TEX. REV. Civ. STAT. ANN. art. 4590i, § 6.05 (West Supp. 1998) (requiring disclosure of "risks and hazards"); UTAH CODE ANN. § 78-14-5(1)(e) (1996) (requiring disclosure of "substantial and significant risk"); VT. STAT. ANN. tit. 12, § 1909 (1998) (requiring disclosure of "foreseeable risks and benefits"); see also Andrews, supra note 44, at 197-98 (discussing disclosure requirements).
378. See, e.g., ARK. CODE ANN. § 16-114-206(b)(1) (Michie 1987) (requiring disclosure of "adequate information"); IDAHO CODE § 39-4304 (1998) (requiring disclosure of "significant risks"); IOWA CODE ANN. § 147.137(1) (West 1997) (requiring disclosure of nature and purpose of procedure, as well as probability of certain serious risks such as death, brain damage, or paralysis); ME. REV. STAT. ANN. tit. 24, § 2905 (West 1996) (remaining silent on the issue); NEB. REV. STAT. ANN. § 44-2816 (same); N.H. STAT. ANN. § 507-c:2 (1997) (same); N.C. STAT. § 90-21.13 (1996) (same); OHIO REV. CODE ANN. § 2317.54 (Anderson Supp. 1999) (requiring disclosure of nature and purpose of procedure, goals of procedure, names of physicians to perform the procedure, and "reasonably known risks"); R.I. GEN. LAWS § 9-19-32 (1997) (requiring disclosure of "all known material risks"); TENN. CODE ANN. § 29-26-118 (1996) (requiring disclosure of "appropriate information"); TEX. REV. Civ. STAT. ANN. art. 4590i, § 6.05 (West Supp. 1998) (requiring disclosure of "risks and hazards"); UTAH CODE ANN. § 78-14-5(1)(e) (1996) (requiring disclosure of "substantial and significant risk"); VT. STAT. ANN. tit. 12, § 1909 (1998) (requiring disclosure of "foreseeable risks and benefits"); see also Andrews, supra note 44, at 197-98 (discussing disclosure requirements).
379. See, e.g., ARK. CODE ANN. § 16-114-206(b)(1) (Michie 1987) (requiring disclosure of "adequate information"); IDAHO CODE § 39-4304 (1998) (requiring disclosure of "significant risks"); IOWA CODE ANN. § 147.137(1) (West 1997) (requiring disclosure of nature and purpose of procedure, as well as probability of certain serious risks such as death, brain damage, or paralysis); ME. REV. STAT. ANN. tit. 24, § 2905 (West 1996) (remaining silent on the issue); NEB. REV. STAT. ANN. § 44-2816 (same); N.H. STAT. ANN. § 507-c:2 (1997) (same); N.C. STAT. § 90-21.13 (1996) (same); OHIO REV. CODE ANN. § 2317.54 (Anderson Supp. 1999) (requiring disclosure of nature and purpose of procedure, goals of procedure, names of physicians to perform the procedure, and "reasonably known risks"); R.I. GEN. LAWS § 9-19-32 (1997) (requiring disclosure of "all known material risks"); TENN. CODE ANN. § 29-26-118 (1996) (requiring disclosure of "appropriate information"); TEX. REV. Civ. STAT. ANN. art. 4590i, § 6.05 (West Supp. 1998) (requiring disclosure of "risks and hazards"); UTAH CODE ANN. § 78-14-5(1)(e) (1996) (requiring disclosure of "substantial and significant risk"); VT. STAT. ANN. tit. 12, § 1909 (1998) (requiring disclosure of "foreseeable risks and benefits"); see also Andrews, supra note 44, at 197-98 (discussing disclosure requirements).
380. See, e.g., ARK. CODE ANN. § 16-114-206(b)(1) (Michie 1987) (requiring disclosure of "adequate information"); IDAHO CODE § 39-4304 (1998) (requiring disclosure of "significant risks"); IOWA CODE ANN. § 147.137(1) (West 1997) (requiring disclosure of nature and purpose of procedure, as well as probability of certain serious risks such as death, brain damage, or paralysis); ME. REV. STAT. ANN. tit. 24, § 2905 (West 1996) (remaining silent on the issue); NEB. REV. STAT. ANN. § 44-2816 (same); N.H. STAT. ANN. § 507-c:2 (1997) (same); N.C. STAT. § 90-21.13 (1996) (same); OHIO REV. CODE ANN. § 2317.54 (Anderson Supp. 1999) (requiring disclosure of nature and purpose of procedure, goals of procedure, names of physicians to perform the procedure, and "reasonably known risks"); R.I. GEN. LAWS § 9-19-32 (1997) (requiring disclosure of "all known material risks"); TENN. CODE ANN. § 29-26-118 (1996) (requiring disclosure of "appropriate information"); TEX. REV. Civ. STAT. ANN. art. 4590i, § 6.05 (West Supp. 1998) (requiring disclosure of "risks and hazards"); UTAH CODE ANN. § 78-14-5(1)(e) (1996) (requiring disclosure of "substantial and significant risk"); VT. STAT. ANN. tit. 12, § 1909 (1998) (requiring disclosure of "foreseeable risks and benefits"); see also Andrews, supra note 44, at 197-98 (discussing disclosure requirements).
381. See, e.g., ARK. CODE ANN. § 16-114-206(b)(1) (Michie 1987) (requiring disclosure of "adequate information"); IDAHO CODE § 39-4304 (1998) (requiring disclosure of "significant risks"); IOWA CODE ANN. § 147.137(1) (West 1997) (requiring disclosure of nature and purpose of procedure, as well as probability of certain serious risks such as death, brain damage, or paralysis); ME. REV. STAT. ANN. tit. 24, § 2905 (West 1996) (remaining silent on the issue); NEB. REV. STAT. ANN. § 44-2816 (same); N.H. STAT. ANN. § 507-c:2 (1997) (same); N.C. STAT. § 90-21.13 (1996) (same); OHIO REV. CODE ANN. § 2317.54 (Anderson Supp. 1999) (requiring disclosure of nature and purpose of procedure, goals of procedure, names of physicians to perform the procedure, and "reasonably known risks"); R.I. GEN. LAWS § 9-19-32 (1997) (requiring disclosure of "all known material risks"); TENN. CODE ANN. § 29-26-118 (1996) (requiring disclosure of "appropriate information"); TEX. REV. Civ. STAT. ANN. art. 4590i, § 6.05 (West Supp. 1998) (requiring disclosure of "risks and hazards"); UTAH CODE ANN. § 78-14-5(1)(e) (1996) (requiring disclosure of "substantial and significant risk"); VT. STAT. ANN. tit. 12, § 1909 (1998) (requiring disclosure of "foreseeable risks and benefits"); see also Andrews, supra note 44, at 197-98 (discussing disclosure requirements).
382. See, e.g., ARK. CODE ANN. § 16-114-206(b)(1) (Michie 1987) (requiring disclosure of "adequate information"); IDAHO CODE § 39-4304 (1998) (requiring disclosure of "significant risks"); IOWA CODE ANN. § 147.137(1) (West 1997) (requiring disclosure of nature and purpose of procedure, as well as probability of certain serious risks such as death, brain damage, or paralysis); ME. REV. STAT. ANN. tit. 24, § 2905 (West 1996) (remaining silent on the issue); NEB. REV. STAT. ANN. § 44-2816 (same); N.H. STAT. ANN. § 507-c:2 (1997) (same); N.C. STAT. § 90-21.13 (1996) (same); OHIO REV. CODE ANN. § 2317.54 (Anderson Supp. 1999) (requiring disclosure of nature and purpose of procedure, goals of procedure, names of physicians to perform the procedure, and "reasonably known risks"); R.I. GEN. LAWS § 9-19-32 (1997) (requiring disclosure of "all known material risks"); TENN. CODE ANN. § 29-26-118 (1996) (requiring disclosure of "appropriate information"); TEX. REV. Civ. STAT. ANN. art. 4590i, § 6.05 (West Supp. 1998) (requiring disclosure of "risks and hazards"); UTAH CODE ANN. § 78-14-5(1)(e) (1996) (requiring disclosure of "substantial and significant risk"); VT. STAT. ANN. tit. 12, § 1909 (1998) (requiring disclosure of "foreseeable risks and benefits"); see also Andrews, supra note 44, at 197-98 (discussing disclosure requirements).
383. See, e.g., ARK. CODE ANN. § 16-114-206(b)(1) (Michie 1987) (requiring disclosure of "adequate information"); IDAHO CODE § 39-4304 (1998) (requiring disclosure of "significant risks"); IOWA CODE ANN. § 147.137(1) (West 1997) (requiring disclosure of nature and purpose of procedure, as well as probability of certain serious risks such as death, brain damage, or paralysis); ME. REV. STAT. ANN. tit. 24, § 2905 (West 1996) (remaining silent on the issue); NEB. REV. STAT. ANN. § 44-2816 (same); N.H. STAT. ANN. § 507-c:2 (1997) (same); N.C. STAT. § 90-21.13 (1996) (same); OHIO REV. CODE ANN. § 2317.54 (Anderson Supp. 1999) (requiring disclosure of nature and purpose of procedure, goals of procedure, names of physicians to perform the procedure, and "reasonably known risks"); R.I. GEN. LAWS § 9-19-32 (1997) (requiring disclosure of "all known material risks"); TENN. CODE ANN. § 29-26-118 (1996) (requiring disclosure of "appropriate information"); TEX. REV. Civ. STAT. ANN. art. 4590i, § 6.05 (West Supp. 1998) (requiring disclosure of "risks and hazards"); UTAH CODE ANN. § 78-14-5(1)(e) (1996) (requiring disclosure of "substantial and significant risk"); VT. STAT. ANN. tit. 12, § 1909 (1998) (requiring disclosure of "foreseeable risks and benefits"); see also Andrews, supra note 44, at 197-98 (discussing disclosure requirements).
384. See, e.g., ARK. CODE ANN. § 16-114-206(b)(1) (Michie 1987) (requiring disclosure of "adequate information"); IDAHO CODE § 39-4304 (1998) (requiring disclosure of "significant risks"); IOWA CODE ANN. § 147.137(1) (West 1997) (requiring disclosure of nature and purpose of procedure, as well as probability of certain serious risks such as death, brain damage, or paralysis); ME. REV. STAT. ANN. tit. 24, § 2905 (West 1996) (remaining silent on the issue); NEB. REV. STAT. ANN. § 44-2816 (same); N.H. STAT. ANN. § 507-c:2 (1997) (same); N.C. STAT. § 90-21.13 (1996) (same); OHIO REV. CODE ANN. § 2317.54 (Anderson Supp. 1999) (requiring disclosure of nature and purpose of procedure, goals of procedure, names of physicians to perform the procedure, and "reasonably known risks"); R.I. GEN. LAWS § 9-19-32 (1997) (requiring disclosure of "all known material risks"); TENN. CODE ANN. § 29-26-118 (1996) (requiring disclosure of "appropriate information"); TEX. REV. Civ. STAT. ANN. art. 4590i, § 6.05 (West Supp. 1998) (requiring disclosure of "risks and hazards"); UTAH CODE ANN. § 78-14-5(1)(e) (1996) (requiring disclosure of "substantial and significant risk"); VT. STAT. ANN. tit. 12, § 1909 (1998) (requiring disclosure of "foreseeable risks and benefits"); see also Andrews, supra note 44, at 197-98 (discussing disclosure requirements).
385. See, e.g., ARK. CODE ANN. § 16-114-206(b)(1) (Michie 1987) (requiring disclosure of "adequate information"); IDAHO CODE § 39-4304 (1998) (requiring disclosure of "significant risks"); IOWA CODE ANN. § 147.137(1) (West 1997) (requiring disclosure of nature and purpose of procedure, as well as probability of certain serious risks such as death, brain damage, or paralysis); ME. REV. STAT. ANN. tit. 24, § 2905 (West 1996) (remaining silent on the issue); NEB. REV. STAT. ANN. § 44-2816 (same); N.H. STAT. ANN. § 507-c:2 (1997) (same); N.C. STAT. § 90-21.13 (1996) (same); OHIO REV. CODE ANN. § 2317.54 (Anderson Supp. 1999) (requiring disclosure of nature and purpose of procedure, goals of procedure, names of physicians to perform the procedure, and "reasonably known risks"); R.I. GEN. LAWS § 9-19-32 (1997) (requiring disclosure of "all known material risks"); TENN. CODE ANN. § 29-26-118 (1996) (requiring disclosure of "appropriate information"); TEX. REV. Civ. STAT. ANN. art. 4590i, § 6.05 (West Supp. 1998) (requiring disclosure of "risks and hazards"); UTAH CODE ANN. § 78-14-5(1)(e) (1996) (requiring disclosure of "substantial and significant risk"); VT. STAT. ANN. tit. 12, § 1909 (1998) (requiring disclosure of "foreseeable risks and benefits"); see also Andrews, supra note 44, at 197-98 (discussing disclosure requirements).
386. See, e.g., ARK. CODE ANN. § 16-114-206(b)(1) (Michie 1987) (requiring disclosure of "adequate information"); IDAHO CODE § 39-4304 (1998) (requiring disclosure of "significant risks"); IOWA CODE ANN. § 147.137(1) (West 1997) (requiring disclosure of nature and purpose of procedure, as well as probability of certain serious risks such as death, brain damage, or paralysis); ME. REV. STAT. ANN. tit. 24, § 2905 (West 1996) (remaining silent on the issue); NEB. REV. STAT. ANN. § 44-2816 (same); N.H. STAT. ANN. § 507-c:2 (1997) (same); N.C. STAT. § 90-21.13 (1996) (same); OHIO REV. CODE ANN. § 2317.54 (Anderson Supp. 1999) (requiring disclosure of nature and purpose of procedure, goals of procedure, names of physicians to perform the procedure, and "reasonably known risks"); R.I. GEN. LAWS § 9-19-32 (1997) (requiring disclosure of "all known material risks"); TENN. CODE ANN. § 29-26-118 (1996) (requiring disclosure of "appropriate information"); TEX. REV. Civ. STAT. ANN. art. 4590i, § 6.05 (West Supp. 1998) (requiring disclosure of "risks and hazards"); UTAH CODE ANN. § 78-14-5(1)(e) (1996) (requiring disclosure of "substantial and significant risk"); VT. STAT. ANN. tit. 12, § 1909 (1998) (requiring disclosure of "foreseeable risks and benefits"); see also Andrews, supra note 44, at 197-98 (discussing disclosure requirements).
387. See, e.g., ARK. CODE ANN. § 16-114-206(b)(1) (Michie 1987) (requiring disclosure of "adequate information"); IDAHO CODE § 39-4304 (1998) (requiring disclosure of "significant risks"); IOWA CODE ANN. § 147.137(1) (West 1997) (requiring disclosure of nature and purpose of procedure, as well as probability of certain serious risks such as death, brain damage, or paralysis); ME. REV. STAT. ANN. tit. 24, § 2905 (West 1996) (remaining silent on the issue); NEB. REV. STAT. ANN. § 44-2816 (same); N.H. STAT. ANN. § 507-c:2 (1997) (same); N.C. STAT. § 90-21.13 (1996) (same); OHIO REV. CODE ANN. § 2317.54 (Anderson Supp. 1999) (requiring disclosure of nature and purpose of procedure, goals of procedure, names of physicians to perform the procedure, and "reasonably known risks"); R.I. GEN. LAWS § 9-19-32 (1997) (requiring disclosure of "all known material risks"); TENN. CODE ANN. § 29-26-118 (1996) (requiring disclosure of "appropriate information"); TEX. REV. Civ. STAT. ANN. art. 4590i, § 6.05 (West Supp. 1998) (requiring disclosure of "risks and hazards"); UTAH CODE ANN. § 78-14-5(1)(e) (1996) (requiring disclosure of "substantial and significant risk"); VT. STAT. ANN. tit. 12, § 1909 (1998) (requiring disclosure of "foreseeable risks and benefits"); see also Andrews, supra note 44, at 197-98 (discussing disclosure requirements).
388. See, e.g., ARK. CODE ANN. § 16-114-206(b)(1) (Michie 1987) (requiring disclosure of "adequate information"); IDAHO CODE § 39-4304 (1998) (requiring disclosure of "significant risks"); IOWA CODE ANN. § 147.137(1) (West 1997) (requiring disclosure of nature and purpose of procedure, as well as probability of certain serious risks such as death, brain damage, or paralysis); ME. REV. STAT. ANN. tit. 24, § 2905 (West 1996) (remaining silent on the issue); NEB. REV. STAT. ANN. § 44-2816 (same); N.H. STAT. ANN. § 507-c:2 (1997) (same); N.C. STAT. § 90-21.13 (1996) (same); OHIO REV. CODE ANN. § 2317.54 (Anderson Supp. 1999) (requiring disclosure of nature and purpose of procedure, goals of procedure, names of physicians to perform the procedure, and "reasonably known risks"); R.I. GEN. LAWS § 9-19-32 (1997) (requiring disclosure of "all known material risks"); TENN. CODE ANN. § 29-26-118 (1996) (requiring disclosure of "appropriate information"); TEX. REV. Civ. STAT. ANN. art. 4590i, § 6.05 (West Supp. 1998) (requiring disclosure of "risks and hazards"); UTAH CODE ANN. § 78-14-5(1)(e) (1996) (requiring disclosure of "substantial and significant risk"); VT. STAT. ANN. tit. 12, § 1909 (1998) (requiring disclosure of "foreseeable risks and benefits"); see also Andrews, supra note 44, at 197-98 (discussing disclosure requirements).
389. See, e.g., ARK. CODE ANN. § 16-114-206(b)(1) (Michie 1987) (requiring disclosure of "adequate information"); IDAHO CODE § 39-4304 (1998) (requiring disclosure of "significant risks"); IOWA CODE ANN. § 147.137(1) (West 1997) (requiring disclosure of nature and purpose of procedure, as well as probability of certain serious risks such as death, brain damage, or paralysis); ME. REV. STAT. ANN. tit. 24, § 2905 (West 1996) (remaining silent on the issue); NEB. REV. STAT. ANN. § 44-2816 (same); N.H. STAT. ANN. § 507-c:2 (1997) (same); N.C. STAT. § 90-21.13 (1996) (same); OHIO REV. CODE ANN. § 2317.54 (Anderson Supp. 1999) (requiring disclosure of nature and purpose of procedure, goals of procedure, names of physicians to perform the procedure, and "reasonably known risks"); R.I. GEN. LAWS § 9-19-32 (1997) (requiring disclosure of "all known material risks"); TENN. CODE ANN. § 29-26-118 (1996) (requiring disclosure of "appropriate information"); TEX. REV. Civ. STAT. ANN. art. 4590i, § 6.05 (West Supp. 1998) (requiring disclosure of "risks and hazards"); UTAH CODE ANN. § 78-14-5(1)(e) (1996) (requiring disclosure of "substantial and significant risk"); VT. STAT. ANN. tit. 12, § 1909 (1998) (requiring disclosure of "foreseeable risks and benefits"); see also Andrews, supra note 44, at 197-98 (discussing disclosure requirements).
390. See, e.g., ARK. CODE ANN. § 16-114-206(b)(1) (Michie 1987) (requiring disclosure of "adequate information"); IDAHO CODE § 39-4304 (1998) (requiring disclosure of "significant risks"); IOWA CODE ANN. § 147.137(1) (West 1997) (requiring disclosure of nature and purpose of procedure, as well as probability of certain serious risks such as death, brain damage, or paralysis); ME. REV. STAT. ANN. tit. 24, § 2905 (West 1996) (remaining silent on the issue); NEB. REV. STAT. ANN. § 44-2816 (same); N.H. STAT. ANN. § 507-c:2 (1997) (same); N.C. STAT. § 90-21.13 (1996) (same); OHIO REV. CODE ANN. § 2317.54 (Anderson Supp. 1999) (requiring disclosure of nature and purpose of procedure, goals of procedure, names of physicians to perform the procedure, and "reasonably known risks"); R.I. GEN. LAWS § 9-19-32 (1997) (requiring disclosure of "all known material risks"); TENN. CODE ANN. § 29-26-118 (1996) (requiring disclosure of "appropriate information"); TEX. REV. Civ. STAT. ANN. art. 4590i, § 6.05 (West Supp. 1998) (requiring disclosure of "risks and hazards"); UTAH CODE ANN. § 78-14-5(1)(e) (1996) (requiring disclosure of "substantial and significant risk"); VT. STAT. ANN. tit. 12, § 1909 (1998) (requiring disclosure of "foreseeable risks and benefits"); see also Andrews, supra note 44, at 197-98 (discussing disclosure requirements).
391. See, e.g., DEL. CODE ANN. tit. 18, § 6801 (1989) (information about the "nature of the proposed procedure or treatment and of the risks and alternatives to treatment or diagnosis") (emphasis added); NEV. REV. STAT. § 41A.110 (1995) (requiring explanation of "alternative methods of treatment, if any, and their general nature"); N.M. STAT. ANN. § 11, 13-1104A (Michie 1999) (including a uniform jury instruction that requires disclosure of "alternative methods for treatment"); N.Y. PUB. HEALTH § 2805-d(1) (1997) (requiring disclosure of alternatives to proposed treatment); PA. STAT. ANN. tit. 40, § 1301.811-A(b) (West 1997) (requiring disclosure of "risks and alternatives").
392. See, e.g., DEL. CODE ANN. tit. 18, § 6801 (1989) (information about the "nature of the proposed procedure or treatment and of the risks and alternatives to treatment or diagnosis") (emphasis added); NEV. REV. STAT. § 41A.110 (1995) (requiring explanation of "alternative methods of treatment, if any, and their general nature"); N.M. STAT. ANN. § 11, 13-1104A (Michie 1999) (including a uniform jury instruction that requires disclosure of "alternative methods for treatment"); N.Y. PUB. HEALTH § 2805-d(1) (1997) (requiring disclosure of alternatives to proposed treatment); PA. STAT. ANN. tit. 40, § 1301.811-A(b) (West 1997) (requiring disclosure of "risks and alternatives").
393. See, e.g., DEL. CODE ANN. tit. 18, § 6801 (1989) (information about the "nature of the proposed procedure or treatment and of the risks and alternatives to treatment or diagnosis") (emphasis added); NEV. REV. STAT. § 41A.110 (1995) (requiring explanation of "alternative methods of treatment, if any, and their general nature"); N.M. STAT. ANN. § 11, 13-1104A (Michie 1999) (including a uniform jury instruction that requires disclosure of "alternative methods for treatment"); N.Y. PUB. HEALTH § 2805-d(1) (1997) (requiring disclosure of alternatives to proposed treatment); PA. STAT. ANN. tit. 40, § 1301.811-A(b) (West 1997) (requiring disclosure of "risks and alternatives").
394. See, e.g., DEL. CODE ANN. tit. 18, § 6801 (1989) (information about the "nature of the proposed procedure or treatment and of the risks and alternatives to treatment or diagnosis") (emphasis added); NEV. REV. STAT. § 41A.110 (1995) (requiring explanation of "alternative methods of treatment, if any, and their general nature"); N.M. STAT. ANN. § 11, 13-1104A (Michie 1999) (including a uniform jury instruction that requires disclosure of "alternative methods for treatment"); N.Y. PUB. HEALTH § 2805-d(1) (1997) (requiring disclosure of alternatives to proposed treatment); PA. STAT. ANN. tit. 40, § 1301.811-A(b) (West 1997) (requiring disclosure of "risks and alternatives").
395. See, e.g., DEL. CODE ANN. tit. 18, § 6801 (1989) (information about the "nature of the proposed procedure or treatment and of the risks and alternatives to treatment or diagnosis") (emphasis added); NEV. REV. STAT. § 41A.110 (1995) (requiring explanation of "alternative methods of treatment, if any, and their general nature"); N.M. STAT. ANN. § 11, 13-1104A (Michie 1999) (including a uniform jury instruction that requires disclosure of "alternative methods for treatment"); N.Y. PUB. HEALTH § 2805-d(1) (1997) (requiring disclosure of alternatives to proposed treatment); PA. STAT. ANN. tit. 40, § 1301.811-A(b) (West 1997) (requiring disclosure of "risks and alternatives").
396. See, e.g., ALASKA STAT. § 09.55.556(a) (Michie 1998) (requiring disclosure of "common risks and reasonable alternatives"); IND. CODE ANN. § 27-12-12-3(5) (West Supp. 1999) ("reasonable alternatives to the treatment, procedure, examination, or test."). The federal regulations governing the Veterans Administration health care program similarly require that a practitioner disclose "reasonable and available alternatives." 38 C.F.R. § 17.34(b) (1999). Louisiana generally requires the disclosure only of the nature and purpose of the procedure and certain serious risks such as death or brain damage. LA. STAT. ANN. tit. 40, § 1299.40(A)(1) (West 1997). However, the law also provides for the formation of a Medical Disclosure Panel, which is charged with identifying other information that should be disclosed (if any) for each type of medical procedure performed. Disclosure of the risks and hazards identified by the Panel constitutes a rebuttable presumption that the requirements of consent have been met provided, inter alia, that the physician has disclosed "reasonable therapeutic alternatives and risks associated with such alternatives." Id. § 1299.40(E)(4)(a) & (7)(c).
397. See, e.g., ALASKA STAT. § 09.55.556(a) (Michie 1998) (requiring disclosure of "common risks and reasonable alternatives"); IND. CODE ANN. § 27-12-12-3(5) (West Supp. 1999) ("reasonable alternatives to the treatment, procedure, examination, or test."). The federal regulations governing the Veterans Administration health care program similarly require that a practitioner disclose "reasonable and available alternatives." 38 C.F.R. § 17.34(b) (1999). Louisiana generally requires the disclosure only of the nature and purpose of the procedure and certain serious risks such as death or brain damage. LA. STAT. ANN. tit. 40, § 1299.40(A)(1) (West 1997). However, the law also provides for the formation of a Medical Disclosure Panel, which is charged with identifying other information that should be disclosed (if any) for each type of medical procedure performed. Disclosure of the risks and hazards identified by the Panel constitutes a rebuttable presumption that the requirements of consent have been met provided, inter alia, that the physician has disclosed "reasonable therapeutic alternatives and risks associated with such alternatives." Id. § 1299.40(E)(4)(a) & (7)(c).
398. See, e.g., ALASKA STAT. § 09.55.556(a) (Michie 1998) (requiring disclosure of "common risks and reasonable alternatives"); IND. CODE ANN. § 27-12-12-3(5) (West Supp. 1999) ("reasonable alternatives to the treatment, procedure, examination, or test."). The federal regulations governing the Veterans Administration health care program similarly require that a practitioner disclose "reasonable and available alternatives." 38 C.F.R. § 17.34(b) (1999). Louisiana generally requires the disclosure only of the nature and purpose of the procedure and certain serious risks such as death or brain damage. LA. STAT. ANN. tit. 40, § 1299.40(A)(1) (West 1997). However, the law also provides for the formation of a Medical Disclosure Panel, which is charged with identifying other information that should be disclosed (if any) for each type of medical procedure performed. Disclosure of the risks and hazards identified by the Panel constitutes a rebuttable presumption that the requirements of consent have been met provided, inter alia, that the physician has disclosed "reasonable therapeutic alternatives and risks associated with such alternatives." Id. § 1299.40(E)(4)(a) & (7)(c).
399. See, e.g., ALASKA STAT. § 09.55.556(a) (Michie 1998) (requiring disclosure of "common risks and reasonable alternatives"); IND. CODE ANN. § 27-12-12-3(5) (West Supp. 1999) ("reasonable alternatives to the treatment, procedure, examination, or test."). The federal regulations governing the Veterans Administration health care program similarly require that a practitioner disclose "reasonable and available alternatives." 38 C.F.R. § 17.34(b) (1999). Louisiana generally requires the disclosure only of the nature and purpose of the procedure and certain serious risks such as death or brain damage. LA. STAT. ANN. tit. 40, § 1299.40(A)(1) (West 1997). However, the law also provides for the formation of a Medical Disclosure Panel, which is charged with identifying other information that should be disclosed (if any) for each type of medical procedure performed. Disclosure of the risks and hazards identified by the Panel constitutes a rebuttable presumption that the requirements of consent have been met provided, inter alia, that the physician has disclosed "reasonable therapeutic alternatives and risks associated with such alternatives." Id. § 1299.40(E)(4)(a) & (7)(c).
400. See HAW. REV. STAT. ANN. tit. 36, § 671-3(b)(4) (Michie 1995) (explaining the standard as "recognized possible alternative forms of treatment"); WASH. REV. CODE ANN. § 7.70.050(3)(c) (West 1992) (same).
401. See HAW. REV. STAT. ANN. tit. 36, § 671-3(b)(4) (Michie 1995) (explaining the standard as "recognized possible alternative forms of treatment"); WASH. REV. CODE ANN. § 7.70.050(3)(c) (West 1992) (same).
402. See GA. CODE ANN. § 31-9-6.1(a)(5) (1997) (explaining that disclosure must include "practical alternatives to such proposed surgical or diagnostic procedure which are generally recognized and accepted by reasonably prudent physicians").
403. See FLA. STAT. ANN. § 766.103(3)(a)(2) (West 1997) (stating that no informed consent action may be brought if reasonable individual would have general understanding of the "medically acceptable alternative procedures or treatments"); GA. CODE ANN. § 31-9-6.1(a)(5) (1997); KY. REV. STAT. ANN. § 304.40-320(2) (Banks-Baldwin 1999) (same); N.J. STAT. ANN. § 26:2H-12.8(d) (West 1996) (explaining that a person admitted to the hospital has the right to be advised of "any medically significant alternatives for care or treatment"); VT. STAT. ANN. tit. 18, § 1852 (1987) (stating that a hospital patient has right to information about "medically significant alternatives for care or treatment," and to request and receive information about "medical alternatives"); WIS. STAT. ANN. § 448.30 (West 1997) (requiring that patient be informed of the availability of "all alternative, viable medical modes of treatment and about the benefits and risks of these treatments"). Oregon takes a unique approach, initially requiring physicians only to explain "[t]hat there may be alternative procedures or methods of treatment." OR. REV. STAT. § 677.097(1)(b) (1977). If the patient requests further information, however, the physician must "disclose in substantial detail . . . the viable alternatives." Id. § 677.097(2).
404. See FLA. STAT. ANN. § 766.103(3)(a)(2) (West 1997) (stating that no informed consent action may be brought if reasonable individual would have general understanding of the "medically acceptable alternative procedures or treatments"); GA. CODE ANN. § 31-9-6.1(a)(5) (1997); KY. REV. STAT. ANN. § 304.40-320(2) (Banks-Baldwin 1999) (same); N.J. STAT. ANN. § 26:2H-12.8(d) (West 1996) (explaining that a person admitted to the hospital has the right to be advised of "any medically significant alternatives for care or treatment"); VT. STAT. ANN. tit. 18, § 1852 (1987) (stating that a hospital patient has right to information about "medically significant alternatives for care or treatment," and to request and receive information about "medical alternatives"); WIS. STAT. ANN. § 448.30 (West 1997) (requiring that patient be informed of the availability of "all alternative, viable medical modes of treatment and about the benefits and risks of these treatments"). Oregon takes a unique approach, initially requiring physicians only to explain "[t]hat there may be alternative procedures or methods of treatment." OR. REV. STAT. § 677.097(1)(b) (1977). If the patient requests further information, however, the physician must "disclose in substantial detail . . . the viable alternatives." Id. § 677.097(2).
405. See FLA. STAT. ANN. § 766.103(3)(a)(2) (West 1997) (stating that no informed consent action may be brought if reasonable individual would have general understanding of the "medically acceptable alternative procedures or treatments"); GA. CODE ANN. § 31-9-6.1(a)(5) (1997); KY. REV. STAT. ANN. § 304.40-320(2) (Banks-Baldwin 1999) (same); N.J. STAT. ANN. § 26:2H-12.8(d) (West 1996) (explaining that a person admitted to the hospital has the right to be advised of "any medically significant alternatives for care or treatment"); VT. STAT. ANN. tit. 18, § 1852 (1987) (stating that a hospital patient has right to information about "medically significant alternatives for care or treatment," and to request and receive information about "medical alternatives"); WIS. STAT. ANN. § 448.30 (West 1997) (requiring that patient be informed of the availability of "all alternative, viable medical modes of treatment and about the benefits and risks of these treatments"). Oregon takes a unique approach, initially requiring physicians only to explain "[t]hat there may be alternative procedures or methods of treatment." OR. REV. STAT. § 677.097(1)(b) (1977). If the patient requests further information, however, the physician must "disclose in substantial detail . . . the viable alternatives." Id. § 677.097(2).
406. See FLA. STAT. ANN. § 766.103(3)(a)(2) (West 1997) (stating that no informed consent action may be brought if reasonable individual would have general understanding of the "medically acceptable alternative procedures or treatments"); GA. CODE ANN. § 31-9-6.1(a)(5) (1997); KY. REV. STAT. ANN. § 304.40-320(2) (Banks-Baldwin 1999) (same); N.J. STAT. ANN. § 26:2H-12.8(d) (West 1996) (explaining that a person admitted to the hospital has the right to be advised of "any medically significant alternatives for care or treatment"); VT. STAT. ANN. tit. 18, § 1852 (1987) (stating that a hospital patient has right to information about "medically significant alternatives for care or treatment," and to request and receive information about "medical alternatives"); WIS. STAT. ANN. § 448.30 (West 1997) (requiring that patient be informed of the availability of "all alternative, viable medical modes of treatment and about the benefits and risks of these treatments"). Oregon takes a unique approach, initially requiring physicians only to explain "[t]hat there may be alternative procedures or methods of treatment." OR. REV. STAT. § 677.097(1)(b) (1977). If the patient requests further information, however, the physician must "disclose in substantial detail . . . the viable alternatives." Id. § 677.097(2).
407. See FLA. STAT. ANN. § 766.103(3)(a)(2) (West 1997) (stating that no informed consent action may be brought if reasonable individual would have general understanding of the "medically acceptable alternative procedures or treatments"); GA. CODE ANN. § 31-9-6.1(a)(5) (1997); KY. REV. STAT. ANN. § 304.40-320(2) (Banks-Baldwin 1999) (same); N.J. STAT. ANN. § 26:2H-12.8(d) (West 1996) (explaining that a person admitted to the hospital has the right to be advised of "any medically significant alternatives for care or treatment"); VT. STAT. ANN. tit. 18, § 1852 (1987) (stating that a hospital patient has right to information about "medically significant alternatives for care or treatment," and to request and receive information about "medical alternatives"); WIS. STAT. ANN. § 448.30 (West 1997) (requiring that patient be informed of the availability of "all alternative, viable medical modes of treatment and about the benefits and risks of these treatments"). Oregon takes a unique approach, initially requiring physicians only to explain "[t]hat there may be alternative procedures or methods of treatment." OR. REV. STAT. § 677.097(1)(b) (1977). If the patient requests further information, however, the physician must "disclose in substantial detail . . . the viable alternatives." Id. § 677.097(2).
408. See FLA. STAT. ANN. § 766.103(3)(a)(2) (West 1997) (stating that no informed consent action may be brought if reasonable individual would have general understanding of the "medically acceptable alternative procedures or treatments"); GA. CODE ANN. § 31-9-6.1(a)(5) (1997); KY. REV. STAT. ANN. § 304.40-320(2) (Banks-Baldwin 1999) (same); N.J. STAT. ANN. § 26:2H-12.8(d) (West 1996) (explaining that a person admitted to the hospital has the right to be advised of "any medically significant alternatives for care or treatment"); VT. STAT. ANN. tit. 18, § 1852 (1987) (stating that a hospital patient has right to information about "medically significant alternatives for care or treatment," and to request and receive information about "medical alternatives"); WIS. STAT. ANN. § 448.30 (West 1997) (requiring that patient be informed of the availability of "all alternative, viable medical modes of treatment and about the benefits and risks of these treatments"). Oregon takes a unique approach, initially requiring physicians only to explain "[t]hat there may be alternative procedures or methods of treatment." OR. REV. STAT. § 677.097(1)(b) (1977). If the patient requests further information, however, the physician must "disclose in substantial detail . . . the viable alternatives." Id. § 677.097(2).
409. See FLA. STAT. ANN. § 766.103(3)(a)(2) (West 1997) (stating that no informed consent action may be brought if reasonable individual would have general understanding of the "medically acceptable alternative procedures or treatments"); GA. CODE ANN. § 31-9-6.1(a)(5) (1997); KY. REV. STAT. ANN. § 304.40-320(2) (Banks-Baldwin 1999) (same); N.J. STAT. ANN. § 26:2H-12.8(d) (West 1996) (explaining that a person admitted to the hospital has the right to be advised of "any medically significant alternatives for care or treatment"); VT. STAT. ANN. tit. 18, § 1852 (1987) (stating that a hospital patient has right to information about "medically significant alternatives for care or treatment," and to request and receive information about "medical alternatives"); WIS. STAT. ANN. § 448.30 (West 1997) (requiring that patient be informed of the availability of "all alternative, viable medical modes of treatment and about the benefits and risks of these treatments"). Oregon takes a unique approach, initially requiring physicians only to explain "[t]hat there may be alternative procedures or methods of treatment." OR. REV. STAT. § 677.097(1)(b) (1977). If the patient requests further information, however, the physician must "disclose in substantial detail . . . the viable alternatives." Id. § 677.097(2).
410. See FLA. STAT. ANN. § 766.103(3)(a)(2) (West 1997) (stating that no informed consent action may be brought if reasonable individual would have general understanding of the "medically acceptable alternative procedures or treatments"); GA. CODE ANN. § 31-9-6.1(a)(5) (1997); KY. REV. STAT. ANN. § 304.40-320(2) (Banks-Baldwin 1999) (same); N.J. STAT. ANN. § 26:2H-12.8(d) (West 1996) (explaining that a person admitted to the hospital has the right to be advised of "any medically significant alternatives for care or treatment"); VT. STAT. ANN. tit. 18, § 1852 (1987) (stating that a hospital patient has right to information about "medically significant alternatives for care or treatment," and to request and receive information about "medical alternatives"); WIS. STAT. ANN. § 448.30 (West 1997) (requiring that patient be informed of the availability of "all alternative, viable medical modes of treatment and about the benefits and risks of these treatments"). Oregon takes a unique approach, initially requiring physicians only to explain "[t]hat there may be alternative procedures or methods of treatment." OR. REV. STAT. § 677.097(1)(b) (1977). If the patient requests further information, however, the physician must "disclose in substantial detail . . . the viable alternatives." Id. § 677.097(2).
411. See Campbell v. Oliva, 424 F.2d 1244, 1250 (6th Cir. 1970) (noting disclosure of alternatives is required "when the choice to be selected by the physician involve[s] the serious consequences described"); McGrady v. Wright, 729 P.2d 338 (Ariz. Ct. App. 1986) (testimony that the surgeon has a duty not to perform an operation likely to cause a "major dysfunction" without first informing patient of alternatives).
412. See Canterbury v. Spence, 464 F.2d 771, 787-88 (D.C. Cir. 1972) ("The topics importantly demanding a communication of information are the inherent and potential hazards of the proposed treatment, the alternatives to that treatment, if any, and the results likely if the patient remains untreated."). For a general summary of cases concerning failure to disclose treatment alternatives, see John H. Derrick, Annotation, Medical Malpractice: Liability for Failure of Physician to Inform Patient of Alternative Modes of Diagnosis or Treatment, 38 A.L.R. 4th 900 (1985).
413. See, e.g., Pegram v. Sisco, 406 F. Supp. 776 (W.D. Ark.), 547 F.2d 1172 (8th Cir. 1976) (holding physician liable for negligence and failure to disclose nature of and alternatives to radium implant treatment for cervical cancer); Camp v. White, 510 So. 2d 166 (Ala. 1987) (alleging that physicians negligently failed to treat patient's bacterial infection and failed to inform patient of her condition and possible treatment alternatives); Poulin v. Zartman, 542 P.2d 251 (Alaska 1975) (alleging that physician's improper administration of oxygen caused infant's blindness, and that physician failed to discuss an alternative therapy); Mathies v. Mastromonaco, 733 A.2d 456, 464 (N.J. 1999) (noting "the interrelationship between the malpractice and informed consent issues in the present case"); Zacher v. Petty, 826 P.2d 619 (Or. 1992) (stating that the physician negligently recommended and performed an operation, and failed to disclose nonsurgical alternatives).
414. See Kissinger v. Lofgren, 836 F.2d 678 (1st Cir. 1988) (stating that physician failed to inform patient of risks and alternatives to sinus surgery); Campbell v. Oliva, 424 F.2d 1244 (6th Cir. 1970) (stating that physician failed to disclose full nature, risks, and alternatives to jaw surgery); Parkins v. United States, 834 F. Supp. 569 (D. Conn. 1993) (claiming physician failed to disclose risk of paralysis or alternatives to undergoing surgery); Redford v. United States, No. CIV.A.89-2324 (CRR), 1992 WL 84898 (D.D.C. Apr. 10, 1992)
415. See, e.g., Logan v. Greenwich Hosp. Assoc., 465 A.2d 294, 301 (Conn. 1983) (discussing whether physician must disclose more hazardous alternatives); Spencer v. Seikel, 742 P.2d 1126, 1128 (Okla. 1987) (discussing whether physician was required to inform patient of existence of abortion as alternative to carrying abnormal fetus to term); Masquat v. Maguire, 638 P.2d 1105, 1106-07 (Okla. 1981) (discussing whether physician failed to disclose alternatives to sterilization procedure). See also Hunter L. Prillaman, A Physician's Duty to Inform of Newly Developed Therapy, 6 J. CONTEMP. HEALTH L. & POL'Y 43, 46-47 (1990).
416. 476 N.W.2d 28, 32 (Iowa 1991).
417. Id. at 31-32 (emphasis added). See also Thornton v. Annest, 574 P.2d 1199, 1203 (Wash. Ct. App. 1978) (holding that "only feasible and available treatments must be disclosed" and leaving determination to the jury) (emphasis added).
418. See Guebard v. Jabaay, 452 N.E.2d 751, 755 (111. App. Ct. 1983) (holding that a physician has a duty to inform patient of "reasonable alternatives" to a procedure); Kimmel v. Dayrit, 693 A.2d 1287, 1297 (N.J. Super. Ct. App. Div. 1997 (noting that physician's duty "o inform a patient of all reasonable options is a standard of care" which a lay jury can easily understand without expert testimony).
419. See, e.g., Keomaka v. Zakaib, 811 P.2d 478, 482-83 (Haw. Ct. App. 1991) (requiring disclosure of "recognized possible alternative forms of treatment"); Ziegert v. South Chicago Community Hosp., 425 N.E.2d 450, 459 (111. App. Ct. 1981) (rejecting plaintiff's allegation that physician failed to identify "possible alternatives" to surgery); Harrell v. Witt, 755 S.W.2d 296 (Mo. Ct. App. 1988) (holding that a jury instruction requiring disclosure of "possible alternatives" was prejudicially erroneous due to causation language); Kinser v. Elkadi, 674 S.W.2d 226, 232 (Mo. Ct. App. 1984) (upholding jury instruction requiring physician to inform patient of "possible alternatives"); ZeBarth v. Swedish Hosp. Med. Ctr., 499 P.2d 1, 10 (Wash. 1972) (requiring that physicians inform patients of "possible alternative treatments").
420. See, e.g., Jamison v. Lindsay, 166 Cal. Rptr. 443, 446 (Cal. Ct. App. 1980) (holding that a physician must inform of "available alternatives"); Archer v. Galbraith, 567 P.2d 1155, 1160-61 (Wash. Ct. App. 1977) (noting that plaintiff must prove the physician's failure to inform of "available courses of treatment"); Derrick, supra note 204, § 4[a] (describing cases holding physician liable for failure to disclose "feasible and available" alternatives).
421. The author is not aware of any reported cases in which the physician or health plan explicitly used this theory as a defense. However, while in private practice, the author was aware that this argument was being advanced by some clients in the health care industry. Cf. Hall, Informed Consent, supra note 1, at 527-28 ("One might suppose that it is immaterial to the patient's legal and practical options to disclose expensive but possibly beneficial care that the patient has no right to insist on payment for.").
422. Doe, 476 N.W.2d at 31-32.
423. 530 A.2d 231, 236-37 (Me. 1987). Similarly, the Supreme Judicial Court of Massachusetts held that informed consent analysis applies to non-invasive treatments, including "letting nature take its course." Feeley v. Baer, 679 N.E.2d 180, 182 n.3 (Mass. 1997) (citing Harnish v. Children's Hosp. Med. Ctr., 439 N.E.2d 240 (Mass. 1982)). See also Wecker v. Amend, 918 P.2d 658, 661 (Kan. Ct. App. 1996) (asking "how a patient can give an informed consent to treatment for a condition if the patient is not informed that the condition might resolve itself without any treatment at all?").
424. Wheeldon v. Madison, 374 N.W.2d 372, 376 (S.D. 1985). Ironically, health care cost containment strategies would seem to support a broad reading of such disclosure requirements, urging the disclosure of "no treatment" as an available - and significantly less expensive - treatment "option."
425. 691 A.2d 148 (D.C. 1997).
426. Id. at 154.
427. 733 A.2d 456, 461-62 (N.J. 1999).
428. 431 N.W.2d 855 (Minn. 1988).
429. Id. at 861; see also Jamison v. Lindsay, 166 Cal. Rptr. 443 (Ct. App. 1980) (refusing to apply "informed refusal" line of cases where physician had not proposed any test or treatment); Kalsbeck v. Westview Clinic, P.A., 375 N.W.2d 861, 869 (Minn. Ct. App. 1985) (explaining that informed consent "does not apply to situations where the patient's decision is whether to submit to treatments in addition to the basic treatment given").
430. Hall, Informed Consent, supra note 1, at 542.
431. 638 P.2d 1105 (Okla. 1981).
432. Id. at 1107 ("Although various methods were available to do the ligation the difference between them was not so significant as to vitiate consent."). See also Wachter v. United States, 689 F. Supp. 1420, 1423-24 (D. Md. 1988), aff'd, 877 F.2d 257 (4th Cir. 1989) (explaining that the possibility of using a different vein for a coronary bypass operation was merely "a choice of tactical surgical approaches, rather than a choice among treatment modalities," and required no informed consent). But see Prillaman, supra note 207, at 50-51 (arguing that "any medically acceptable variation from the recommended course of treatment, no matter how minor, should constitute an alternative treatment").
433. In addition, the causation element has proven fatal to many plaintiffs in treatment alternative cases, regardless of which standard was used. In Paulin v. Zartman, 542 P.2d 251 (Alaska 1975), for example, the Supreme Court of Alaska found that the plaintiff failed to establish that had he been informed of its existence, he would have opted for an alternative form of oxygen administration that presented less of a risk of blindness to his infant. Interestingly, the court noted that the father conceivably could have consented to both forms of treatment, leaving the ultimate choice to the physician. Id. While certainly possible, it is somewhat disingenuous to assume that, if presented with all the information, the father would have made no decision at all. After all, this is at least a theoretical possibility in any informed consent case, yet is not often relied upon to deny recovery. There are many additional cases where courts find against plaintiffs on the issue of causation. See Duff v. Yelin, 721 S.W.2d 365, 372 (Tex. Ct. App. 1986), aff'd, 751 S.W.2d 175 (Tex. 1988) (affirming jury finding that person of ordinary prudence would not have refused arm surgery if informed of alternatives); Guebard v. Jabaay, 452 N.E.2d 751, 758 (Ill. App. Ct. 1983) (explaining that plaintiff did not testify regarding what she would have done if informed of alternative knee surgery procedure); Herrington v. Spell, 692 So. 2d 93, 100-01 (Miss. 1997) (stating that "ample testimony" supported conclusion that reasonable person in patient's position would have chosen to undergo modified radical mastectomy to treat breast cancer, even if in-formed of possibility of undergoing lumpectomy); Plumber v. Louisiana, 634 So. 2d 1347, 1351 (La. Ct. App.), writ denied, 637 So. 2d 1056 (La. 1994) (stating that reasonable patient in plaintiff's position would not have declined chemotherapy if fully informed); Spann v. Irwin Memorial Blood Ctr., 40 Cal. Rptr.2d 360, 367 (Cal. App. 1995) (explaining that given that patient knew of risk of contracting AIDS from a blood transfusion, and in light of serious nature of her medical condition, plaintiff failed to raise issue of fact that a reasonable person would have declined the treatment even if full disclosure had been made); Weidl v. Gfeller, No. CV88-0351 404S, 1992 WL 229214, at *8 (Conn. Super. Ct., Sept. 3, 1992) (explaining that plaintiff failed to prove that reasonable person would have foregone surgery if fully informed). Plaintiffs similarly have failed to establish the requirement of injury causation, i.e., proof that the failure to disclose actually caused the patient's injury and damages. See Cornfeldt v. Tongen, 295 N.W.2d 638, 641 (Minn. 1980) (holding that plaintiff failed to elicit expert testimony "that the administration of halothane superimposed on hepatitis aggravated the hepatitis to the point of massive liver necrosis causing death"); Steinbach v. Barfield, 428 So. 2d 915, 922-23 (La. Ct. App. 1983) (finding no evidence in record to show that had alternative procedure been performed, it would have resulted in the earlier diagnosis or more successful treatment of patient's cancer).
434. See, e.g., Gemme v. Goldberg, 626 A.2d 318, 326 (Conn. App. Ct. 1993) (explaining that physician is required to inform patient of "all viable alternatives methods of treatment" to oral surgery); Logan v. Greenwich Hosp. Assoc., 465 A.2d 294 (Conn. 1983) (focusing on whether alternatives were viable and/or feasible); Martin v. Richards, 531 N.W.2d 70, 78 (Wis. 1995) (explaining that all "viable alternatives" must be disclosed); Shabinaw v. Brown, 874 P.2d 516 (Idaho 1994) (discussing the alleged failure to disclose viable alternatives to surgery); Smith v. Reisig, 686 P.2d 285, 287-88 (Okla. 1984) (explaining that hormonal therapy was "viable and possibly preferable" alternative to surgery); Woolley v. Henderson, 418 A.2d 1123, 1130 (Me. 1980) (physician must evaluate "viability of alternative therapeutic measures"); Zacher v. Petty, 826 P.2d 619, 620 (Or. 1992) (stating that "viable alternatives" must be disclosed); Wenger v. Oregon Urology Clinic, P.C., 796 P.2d 376, 378 (Or. Ct. App. 1990) (explaining that physician must disclose all "viable alternatives" prior to surgery).
435. See, e.g., Phillips v. Hull, 516 So. 2d 488, 493 (Miss. 1987) (citing with approval guidelines that require disclosure of "feasible" treatment alternatives); Keogan v. Holy Family Hosp., 622 P.2d 1246, 1254-55 (Wash. 1980) (requiring disclosure of "feasible alternatives" to proposed treatment); Davidson v. Schnurr, No. 0045188, 1990 WL 271090, at *1 (Conn. Super. Ct. May 7, 1990) (explaining that "there exists no obligation to inform an individual of an alternative method of treatment when such treatment is not a feasible alternative for the particular patient").
436. See, e.g., Cunningham v. Yankton Clinic, P.A., 262 N.W.2d 508, 511 (S.D. 1978) (explaining that physicians must inform patient of alternatives that are "reasonably appropriate"); Kennedy v. St. Charles Gen. Hosp. Auxiliary, 630 So. 2d 888, 892 (La. Ct. App. 1993), writ denied, 634 So. 2d 863 (La. 1994) ("We know of no jurisprudence which requires a physician to advise a patient of a procedure that he believes is not appropriate or medically indicated."); Wheeldon v. Madison, 374 N.W.2d 372, 375 (S.D. 1985) (same); Caputa v. Antiles, 686 A.2d 356, 361-62 (N.J. Super. Ct. 1996) (explaining that physician must disclose existence of an alternative treatment that is "recognized by the medical community); Steele v. St. Paul Fire & Marine Ins., 371 So. 2d 843, 849 (La. Ct. App. 1979), writ denied, 374 So. 2d 658 (La. 1979) (requiring plaintiff to prove existence of an "acceptable medical treatment"); Stover v. Association of Thoracic & Cardiovascular Surgeons, 635 A.2d 1047, 1050 (Pa. Super. Ct. 1993) (explaining that physician need only disclose "medically recognized" or "medically sound" alternatives); Vandi v. Permanente Med. Group, Inc., 9 Cal. Rptr.2d 463 (Cal. Ct. App. 1992) (refusing to require physician to disclose "nonrecommended" treatments on grounds that it would rely on "medical hindsight" and would suggest that the physician is supposed to defer medical judgment to the patient's wishes regarding procedures that are not medically necessary); Wecker v. Amend, 918 P.2d 658, 662 (Kan. Ct. App. 1996) (explaining that physician must inform patient of "medically acceptable alternative"). Where the physician fails to propose an alternative that should have been recommended, the proper cause of action is "ordinary medical negligence." Vandi, 9 Cal. Rptr.2d at 467.
437. See Mathies, 733 A.2d at 457 (stating that physicians should explain "medically reasonable invasive and noninvasive alternatives").
438. See Camp v. White (Ala. 1987), 510 So. 2d 166, 169 (finding no evidence of a viable procedure for weaning patient off of ventilator); Williams v. Wadsworth, 503 N.W.2d 120, 122 (Minn. 1993) (explaining that physician did not believe any comparable diagnostic methods existed); Getchell v. Mansfield, 489 P.2d 953, 958 (Or. 1971) (discussing the fact that no evidence indicated that taping of shoulder was a feasible alternative to surgery); Contreras v. St. Lukes Hosp., 144 Cal. Rptr. 647, 653 (Cal. Ct. App. 1978) (explaining that there was no evidence of feasible alternative treatments to knee surgery); Ziegert, 425 N.B.2d at 459 (ruling that expert testimony did not identify alternatives to surgery); Morris v. Ferriss, 669 So. 2d 1316, 1327-28 (La. Ct. App. 1996), writ denied, 672 So. 2d 671 (La. 1996) (finding that psychiatric treatment was not a "recognized, feasible treatment" for epileptic seizures caused by a brain lesion); Chapman v. State, 468 N.Y.S.2d 792 (N.Y. App. Div. 1983) (explaining that further diagnostic procedures would not have been "productive"); Gilmore v. Memorial Sloan Kettering Cancer Ctr., 607 N.Y.S.2d 546, 548 (N.Y. Sup. Ct. 1993) (explaining that patient "was not a candidate" for autologous blood donation); Neal v. Lu, 530 A.2d 103, 111-12 (Pa. Super. Ct. 1986) (discussing lack of expert medical testimony identifying alternative methods of treatment); Steele, 371 So. 2d at 849 (finding that physician is under no duty to disclose alternatives that are not accepted as feasible); Weidl v. Gfeller, No. CV88-0351 4045, 1992 WL 229214 (Conn. Super. Ct. Sept. 3, 1992) (finding no evidence of viable alternatives to surgery); Moore v. Baker, 989 F.2d 1129 (11th Cir. 1993) (discussing that Georgia law requires disclosure only of alternatives that are "generally recognized and accepted by reasonably prudent physicians"). While a physician cannot be held liable for adhering to one of two "schools of thought" regarding appropriate treatment, some cases - but not all - have imposed liability for failure to inform the patient of the existence of the other "school." See, e.g., Marino v. Ballestas, 749 F.2d 162, 168 (3d Cir. 1984) (stating that although physician should express his opinion regarding preferable method of treatment, "he may not neglect to set out in a fair manner the alternatives to the procedure he advocates"); Taylor v. Wilmington Med. Ctr., 577 F. Supp. 309, 317-18 (D. Del. 1983) (denying summary judgment because there was an issue of material fact regarding whether physician informed parents that some neurosurgeons advocated immediate surgery for infant's condition); Prillaman, supra note 207, at 48. But see Parris v. Sands, 25 Cal. Rptr.2d 800 (Cal Ct. App. 1993) (finding that physician had no duty to inform patients of "two schools of thought" regarding use of prophylactic antibiotics by patients who have had their spleens removed); Mathis v. Morrissey, 13 Cal. Rptr.2d 819 (Cal. Ct. App. 1992) (explaining that existence of "two schools of thought" must be disclosed only if it would constitute "material" information); Hall, Informed Consent, supra note 1, at 543 (noting that many courts have agreed that there is no general duty to inform patients of treatments the doctor is not recommending").
439. 322 A.2d 82, 93 (Me. 1974) (discussing that a reduction and application of a cast to a fractured hip was not a feasible alternative to traction, and that the physician was not liable for failure to obtain informed consent). Query whether the court would have come to the same conclusion had the patient's "condition" been financial rather than medical.
440. 465 A.2d 294 (Conn. 1983).
441. Id. at 298, 301.
442. Id. at 302. The Connecticut Appellate Court recently interpreted this holding as encompassing the obligation to disclose alternatives that might lead to a "less than perfect" result. See Gemme v. Goldberg, 626 A.2d 318, 326-27 (Conn. App. Ct. 1993). See also Prillaman, supra note 207, at 48-49 (noting that because procedures have different risk-benefit profiles, a simple rule that more hazardous procedures need not be disclosed would not succeed in practice). Similarly, the New Jersey Supreme Court held that a physician must disclose invasive alternatives to a recommended noninvasive treatment, noting that the duty "is especially important when the alternatives are mutually exclusive . . . . That need intensifies when the choice turns not so much on purely medical considerations as on the choice of one lifestyle or set of values over another." Mathies, 733 A.2d at 463-64.
443. Canterbury, 464 F.2d at 781 (emphasis added). Similarly, in Kennedy v. St. Charles General Hospital Auxiliary, 630 So.2d 888 (La. Ct. App. 1993), writ denied, 634 So.2d 863 (La. 1994), the court refused to require the physician to advise the patient of a procedure that was not medically indicated, and held that the plaintiff had failed to meet his burden of proving that a one-vessel angiogram was a safer alternative to the three-vessel angiogram. Id. at 892. Cf. Williams, 503 N.W.2d at 125 (explaining that the expert witness did not indicate that any less intrusive comparable diagnostic methods were available).
444. See Doe v. Johnston, 476 N.W.2d 28 (Iowa 1991) (explaining that the "reasonable availability" issue is best left to the jury); Getchell v. Mansfield, 489 P.2d 953 (Or. 1971) (explaining that expert medical testimony is essential to enable the fact finder to determine feasibility, as well as materiality and effect of disclosure on patient).
445. See Prillaman, supra note 207, at 52-57.
446. The only commentator to have discussed this issue in-depth identifies four categories of "nonreadily available alternatives": geographical, institutional, experimental, and financial. See Halle Fine Terrion, Note, Informed Choice: Physicians' Duty to Disclose Nonreadily Available Alternatives, 43 CASE W. RES. L. REV. 491, 494-95 (1993). This author respectfully disagrees with this characterization in two ways. First, I believe legal unavailability is a concept distinct from geographic unavailability. I would characterize a therapy such as laetrile as legally unavailable because it is not approved for use in the United States, rather than as geographically unavailable because it might be obtained in Mexico. Second, I would exclude experimental treatments from this discussion, since that debate focuses primarily on medical acceptability.
447. Id. at 493 (arguing that such alternatives "historically have fallen outside the realm of a physician's duty to disclose"); Hall, Informed Consent, supra note 1, at 527-28 & n.45; Alan Meisel, A 'Dignitary Tort' As a Bridge Between the Idea of Informed Consent and the Law of Informed Consent, 16 J.L. MED. & HEALTHCARE 210, 214-15 (1988).
448. Id. at 493 (arguing that such alternatives "historically have fallen outside the realm of a physician's duty to disclose"); Hall, Informed Consent, supra note 1, at 527-28 & n.45; Alan Meisel, A 'Dignitary Tort' As a Bridge Between the Idea of Informed Consent and the Law of Informed Consent, 16 J.L. MED. & HEALTHCARE 210, 214-15 (1988).
449. Id. at 493 (arguing that such alternatives "historically have fallen outside the realm of a physician's duty to disclose"); Hall, Informed Consent, supra note 1, at 527-28 & n.45; Alan Meisel, A 'Dignitary Tort' As a Bridge Between the Idea of Informed Consent and the Law of Informed Consent, 16 J.L. MED. & HEALTHCARE 210, 214-15 (1988).
450. 742 P.2d 1126 (Okla. 1987).
451. Id. at 1129. The court also noted that the patient was fully aware that abortion was an alternative to carrying the fetus to term. Id.
452. Iafelice v. Zarafu, 534 A.2d 417 (N.J. Super. Ct. 1987).
453. Id. at 418. However, courts have rejected the argument that a physician need not disclose an alternative that is not available at a particular institution. In Martin v. Richards, 531 N.W.2d 70 (Wis. 1995), physicians treating a child for head injuries failed to inform her father that should a neurological complication arise, his daughter would have to be transferred to another facility because the hospital did not have a neurosurgeon on staff. The Supreme Court of Wisconsin held that the physicians' failure was actionable under WIS. STAT. ANN. § 448.30 (West 1999), which requires that patients be informed of alternate modes of treatment. Id. Thus, the fact that a neurosurgeon was not available at the defendants' hospital did not make neurosurgery an "unavailable" alternative.
454. See Terrion, supra note 238, at 513 (discussing the difficulties physicians face in disclosing unavailable alternatives).
455. "For a patient who is unlikely to be able to afford the treatment on his own, disclosure may be not only pointless, but also cruel." Hall, Informed Consent, supra note 1, at 528. See also Morreim, Economic Disclosure and Economic Advocacy, supra note 2, at 319 ("The patient's autonomy is not necessarily enhanced by information he or she cannot use, nor is the patient's trust enriched by glorious tales of what he or she cannot have."); Prillaman, supra note 207, at 52 ("Does it make sense, for example, to explain an expensive treatment offered in an exclusive clinic in Vienna to an indigent patient from an American inner city?"). One commentator even suggested that the therapeutic privilege might apply in such situations, offering an exception to disclosure "because patients who are aware of alternatives which are beyond their reach may become frustrated at the relative unattainability of treatment." Terrion, supra note 238, at 515. The author is not aware of any cases adopting this novel approach.
456. "For a patient who is unlikely to be able to afford the treatment on his own, disclosure may be not only pointless, but also cruel." Hall, Informed Consent, supra note 1, at 528. See also Morreim, Economic Disclosure and Economic Advocacy, supra note 2, at 319 ("The patient's autonomy is not necessarily enhanced by information he or she cannot use, nor is the patient's trust enriched by glorious tales of what he or she cannot have."); Prillaman, supra note 207, at 52 ("Does it make sense, for example, to explain an expensive treatment offered in an exclusive clinic in Vienna to an indigent patient from an American inner city?"). One commentator even suggested that the therapeutic privilege might apply in such situations, offering an exception to disclosure "because patients who are aware of alternatives which are beyond their reach may become frustrated at the relative unattainability of treatment." Terrion, supra note 238, at 515. The author is not aware of any cases adopting this novel approach.
457. "For a patient who is unlikely to be able to afford the treatment on his own, disclosure may be not only pointless, but also cruel." Hall, Informed Consent, supra note 1, at 528. See also Morreim, Economic Disclosure and Economic Advocacy, supra note 2, at 319 ("The patient's autonomy is not necessarily enhanced by information he or she cannot use, nor is the patient's trust enriched by glorious tales of what he or she cannot have."); Prillaman, supra note 207, at 52 ("Does it make sense, for example, to explain an expensive treatment offered in an exclusive clinic in Vienna to an indigent patient from an American inner city?"). One commentator even suggested that the therapeutic privilege might apply in such situations, offering an exception to disclosure "because patients who are aware of alternatives which are beyond their reach may become frustrated at the relative unattainability of treatment." Terrion, supra note 238, at 515. The author is not aware of any cases adopting this novel approach.
458. 379 A.2d 1014 (Md. 1977).
459. Id. at 1025 (emphasis added).
460. 903 P.2d 667 (Haw. 1995).
461. Id. at 668-69.
462. Id. at 676.
463. 29 U.S.C. §§ 1001-1169 (1994).
464. Some plaintiffs have sought to hold their MCOs liable for harm sustained as a result of the cost containment mechanisms employed. In general, plaintiffs have not successfully sued MCOs simply for adopting cost-containment measures. See, e.g., Teti v. United States Healthcare, Inc., No. CIV.A.88-9808, 88-9822, 1989 WL 143274 (E.D. Pa. Nov. 21, 1989) (discussing an unsuccessful claim that HMO's concealment of incentives for physicians not to refer patients constituted a pattern of non-disclosure in violation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1861-1964 (1994)); Furrow, supra note 71, at 465-69 (discussing MCO's goal of managing the cost of health care via underutilization). But see Bush v. Dake, No. 86-25767 (Saginaw Cty., Mich., Apr. 27, 1989) (holding that a genuine issue of fact existed as to whether the incentive system used by an HMO proximately caused malpractice, such as by contributing to improper treatment and delay in diagnosis). Plaintiffs have been slightly more successful in obtaining compensation for faulty utilization review decisions. In the classic case of Wickline v. State of California, 289 Cal. Rptr. 810 (Cal. Ct. App. 1986), the court stated in dicta that "Third party payers of health care services can be held legally accountable when medically inappropriate decisions result from defects in the design or implementation of cost containment mechanisms as, for example, when appeals made on a patient's behalf for medical or hospital care are arbitrarily ignored or unreasonably disregarded or overridden." Id. at 819. See also Wilson v. Blue Cross of Southern Cal. 271 Cal. Rptr. 876, 883 (Cal. Ct. App. 1990) (holding that under the right set of facts, physician and utilization reviewer could be held jointly liable for patient harm caused by an unfortunate utilization review decision). Most recently, some states have enacted laws permitting patients to sue their HMOs directly liable for any malpractice by contracted health care professionals. See, e.g., TEX. CIV. PRACT. & REM. CODE ANN. Ch. 88 (West. Supp. 1999); Corporate Health Ins. Inc. v. Texas Dep't. of Ins.,12 F. Supp. 597 (S.D. Tex. 1998) (upholding law); Shannon v. McNulty, 718 A.2d 828 (Pa. Super. Ct. 1998) (finding that plaintiffs made a prima facie case against HMO for both vicarious and corporate liability). See also Deborah W. Larios, Barbarians at the Gate? An Essay on Payor Liability in an Era of Managed Care, 65 TENN. L. REV. 445 (1998) (discussing changing rules in managing health care costs and controlling access to treatment). Some plaintiffs have sought to use a combination of federal and state laws to target managed care abuses. See, e.g., Maio v. Aetna, Inc., No. 99-CV-1969, 1999 WL 800315 (E.D. Pa. Sept. 29, 1999) (class action suit alleging violation of Racketeer Influenced and Corrupt Organizations Act, as well as state unfair trade practice and consumer protection statutes). For a discussion of theories of liability applicable to MCOs, see generally Diana Joseph Bearden & Bryan J. Maedgen, Emerging Theories of Liability in the Managed Health Care Industry, 47 BAYLOR L. REV. 285 (1995) (exploring liability issues in the managed health care industry); William S. Brewbaker III, Medical Malpractice and Managed Care Organizations: The Implied Warranty of Quality, 60 LAW & CONTEMP. PROBS. 117 (1997) (arguing that courts should impose a tort-based implied warranty of quality on MCOs); Furrow, supra note 71; Barbara A. Noah, The Managed Care Dilemma: Can Theories of Tort Liability Adapt to the Realities of Cost Containment?, 48 MERCER L. REV. 1219 (1997) (discussing MCO statutory immunity from malpractice suits); Jeffrey O'Connell & James F. Neale, HMO's, Cost Containment, and Early Offers: New Malpractice Threat and a Proposed Reform, 14 J. CONTEMP. HEALTH L. & POL'Y 287 (1998) (detailing new malpractice risks, critiquing the tort system's ability to address malpractice claims against HMOs, and suggesting an early offer compensation scheme); Randall, supra note 80 (proposing medical injury compensation fund for cost containment injuries); William M. Sage, Enterprise Liability and the Emerging Managed Health Care System, 60 LAW & CONTEMP. PROBS. 159 (1997) (discussing public policy objectives of medical tort law). Despite recent suggestions for expanding MCO liability, one author has concluded "that courts are not systematically impeding the implementation of cost containment initiatives." Peter D. Jacobson, Legal Challenges to Managed Care Cost Containment Strategies," HEALTH AFFAIRS, July-Aug. 1999, at 69, 79.
465. Some plaintiffs have sought to hold their MCOs liable for harm sustained as a result of the cost containment mechanisms employed. In general, plaintiffs have not successfully sued MCOs simply for adopting cost-containment measures. See, e.g., Teti v. United States Healthcare, Inc., No. CIV.A.88-9808, 88-9822, 1989 WL 143274 (E.D. Pa. Nov. 21, 1989) (discussing an unsuccessful claim that HMO's concealment of incentives for physicians not to refer patients constituted a pattern of non-disclosure in violation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1861-1964 (1994)); Furrow, supra note 71, at 465-69 (discussing MCO's goal of managing the cost of health care via underutilization). But see Bush v. Dake, No. 86-25767 (Saginaw Cty., Mich., Apr. 27, 1989) (holding that a genuine issue of fact existed as to whether the incentive system used by an HMO proximately caused malpractice, such as by contributing to improper treatment and delay in diagnosis). Plaintiffs have been slightly more successful in obtaining compensation for faulty utilization review decisions. In the classic case of Wickline v. State of California, 289 Cal. Rptr. 810 (Cal. Ct. App. 1986), the court stated in dicta that "Third party payers of health care services can be held legally accountable when medically inappropriate decisions result from defects in the design or implementation of cost containment mechanisms as, for example, when appeals made on a patient's behalf for medical or hospital care are arbitrarily ignored or unreasonably disregarded or overridden." Id. at 819. See also Wilson v. Blue Cross of Southern Cal. 271 Cal. Rptr. 876, 883 (Cal. Ct. App. 1990) (holding that under the right set of facts, physician and utilization reviewer could be held jointly liable for patient harm caused by an unfortunate utilization review decision). Most recently, some states have enacted laws permitting patients to sue their HMOs directly liable for any malpractice by contracted health care professionals. See, e.g., TEX. CIV. PRACT. & REM. CODE ANN. Ch. 88 (West. Supp. 1999); Corporate Health Ins. Inc. v. Texas Dep't. of Ins.,12 F. Supp. 597 (S.D. Tex. 1998) (upholding law); Shannon v. McNulty, 718 A.2d 828 (Pa. Super. Ct. 1998) (finding that plaintiffs made a prima facie case against HMO for both vicarious and corporate liability). See also Deborah W. Larios, Barbarians at the Gate? An Essay on Payor Liability in an Era of Managed Care, 65 TENN. L. REV. 445 (1998) (discussing changing rules in managing health care costs and controlling access to treatment). Some plaintiffs have sought to use a combination of federal and state laws to target managed care abuses. See, e.g., Maio v. Aetna, Inc., No. 99-CV-1969, 1999 WL 800315 (E.D. Pa. Sept. 29, 1999) (class action suit alleging violation of Racketeer Influenced and Corrupt Organizations Act, as well as state unfair trade practice and consumer protection statutes). For a discussion of theories of liability applicable to MCOs, see generally Diana Joseph Bearden & Bryan J. Maedgen, Emerging Theories of Liability in the Managed Health Care Industry, 47 BAYLOR L. REV. 285 (1995) (exploring liability issues in the managed health care industry); William S. Brewbaker III, Medical Malpractice and Managed Care Organizations: The Implied Warranty of Quality, 60 LAW & CONTEMP. PROBS. 117 (1997) (arguing that courts should impose a tort-based implied warranty of quality on MCOs); Furrow, supra note 71; Barbara A. Noah, The Managed Care Dilemma: Can Theories of Tort Liability Adapt to the Realities of Cost Containment?, 48 MERCER L. REV. 1219 (1997) (discussing MCO statutory immunity from malpractice suits); Jeffrey O'Connell & James F. Neale, HMO's, Cost Containment, and Early Offers: New Malpractice Threat and a Proposed Reform, 14 J. CONTEMP. HEALTH L. & POL'Y 287 (1998) (detailing new malpractice risks, critiquing the tort system's ability to address malpractice claims against HMOs, and suggesting an early offer compensation scheme); Randall, supra note 80 (proposing medical injury compensation fund for cost containment injuries); William M. Sage, Enterprise Liability and the Emerging Managed Health Care System, 60 LAW & CONTEMP. PROBS. 159 (1997) (discussing public policy objectives of medical tort law). Despite recent suggestions for expanding MCO liability, one author has concluded "that courts are not systematically impeding the implementation of cost containment initiatives." Peter D. Jacobson, Legal Challenges to Managed Care Cost Containment Strategies," HEALTH AFFAIRS, July-Aug. 1999, at 69, 79.
466. Some plaintiffs have sought to hold their MCOs liable for harm sustained as a result of the cost containment mechanisms employed. In general, plaintiffs have not successfully sued MCOs simply for adopting cost-containment measures. See, e.g., Teti v. United States Healthcare, Inc., No. CIV.A.88-9808, 88-9822, 1989 WL 143274 (E.D. Pa. Nov. 21, 1989) (discussing an unsuccessful claim that HMO's concealment of incentives for physicians not to refer patients constituted a pattern of non-disclosure in violation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1861-1964 (1994)); Furrow, supra note 71, at 465-69 (discussing MCO's goal of managing the cost of health care via underutilization). But see Bush v. Dake, No. 86-25767 (Saginaw Cty., Mich., Apr. 27, 1989) (holding that a genuine issue of fact existed as to whether the incentive system used by an HMO proximately caused malpractice, such as by contributing to improper treatment and delay in diagnosis). Plaintiffs have been slightly more successful in obtaining compensation for faulty utilization review decisions. In the classic case of Wickline v. State of California, 289 Cal. Rptr. 810 (Cal. Ct. App. 1986), the court stated in dicta that "Third party payers of health care services can be held legally accountable when medically inappropriate decisions result from defects in the design or implementation of cost containment mechanisms as, for example, when appeals made on a patient's behalf for medical or hospital care are arbitrarily ignored or unreasonably disregarded or overridden." Id. at 819. See also Wilson v. Blue Cross of Southern Cal. 271 Cal. Rptr. 876, 883 (Cal. Ct. App. 1990) (holding that under the right set of facts, physician and utilization reviewer could be held jointly liable for patient harm caused by an unfortunate utilization review decision). Most recently, some states have enacted laws permitting patients to sue their HMOs directly liable for any malpractice by contracted health care professionals. See, e.g., TEX. CIV. PRACT. & REM. CODE ANN. Ch. 88 (West. Supp. 1999); Corporate Health Ins. Inc. v. Texas Dep't. of Ins.,12 F. Supp. 597 (S.D. Tex. 1998) (upholding law); Shannon v. McNulty, 718 A.2d 828 (Pa. Super. Ct. 1998) (finding that plaintiffs made a prima facie case against HMO for both vicarious and corporate liability). See also Deborah W. Larios, Barbarians at the Gate? An Essay on Payor Liability in an Era of Managed Care, 65 TENN. L. REV. 445 (1998) (discussing changing rules in managing health care costs and controlling access to treatment). Some plaintiffs have sought to use a combination of federal and state laws to target managed care abuses. See, e.g., Maio v. Aetna, Inc., No. 99-CV-1969, 1999 WL 800315 (E.D. Pa. Sept. 29, 1999) (class action suit alleging violation of Racketeer Influenced and Corrupt Organizations Act, as well as state unfair trade practice and consumer protection statutes). For a discussion of theories of liability applicable to MCOs, see generally Diana Joseph Bearden & Bryan J. Maedgen, Emerging Theories of Liability in the Managed Health Care Industry, 47 BAYLOR L. REV. 285 (1995) (exploring liability issues in the managed health care industry); William S. Brewbaker III, Medical Malpractice and Managed Care Organizations: The Implied Warranty of Quality, 60 LAW & CONTEMP. PROBS. 117 (1997) (arguing that courts should impose a tort-based implied warranty of quality on MCOs); Furrow, supra note 71; Barbara A. Noah, The Managed Care Dilemma: Can Theories of Tort Liability Adapt to the Realities of Cost Containment?, 48 MERCER L. REV. 1219 (1997) (discussing MCO statutory immunity from malpractice suits); Jeffrey O'Connell & James F. Neale, HMO's, Cost Containment, and Early Offers: New Malpractice Threat and a Proposed Reform, 14 J. CONTEMP. HEALTH L. & POL'Y 287 (1998) (detailing new malpractice risks, critiquing the tort system's ability to address malpractice claims against HMOs, and suggesting an early offer compensation scheme); Randall, supra note 80 (proposing medical injury compensation fund for cost containment injuries); William M. Sage, Enterprise Liability and the Emerging Managed Health Care System, 60 LAW & CONTEMP. PROBS. 159 (1997) (discussing public policy objectives of medical tort law). Despite recent suggestions for expanding MCO liability, one author has concluded "that courts are not systematically impeding the implementation of cost containment initiatives." Peter D. Jacobson, Legal Challenges to Managed Care Cost Containment Strategies," HEALTH AFFAIRS, July-Aug. 1999, at 69, 79.
467. Some plaintiffs have sought to hold their MCOs liable for harm sustained as a result of the cost containment mechanisms employed. In general, plaintiffs have not successfully sued MCOs simply for adopting cost-containment measures. See, e.g., Teti v. United States Healthcare, Inc., No. CIV.A.88-9808, 88-9822, 1989 WL 143274 (E.D. Pa. Nov. 21, 1989) (discussing an unsuccessful claim that HMO's concealment of incentives for physicians not to refer patients constituted a pattern of non-disclosure in violation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1861-1964 (1994)); Furrow, supra note 71, at 465-69 (discussing MCO's goal of managing the cost of health care via underutilization). But see Bush v. Dake, No. 86-25767 (Saginaw Cty., Mich., Apr. 27, 1989) (holding that a genuine issue of fact existed as to whether the incentive system used by an HMO proximately caused malpractice, such as by contributing to improper treatment and delay in diagnosis). Plaintiffs have been slightly more successful in obtaining compensation for faulty utilization review decisions. In the classic case of Wickline v. State of California, 289 Cal. Rptr. 810 (Cal. Ct. App. 1986), the court stated in dicta that "Third party payers of health care services can be held legally accountable when medically inappropriate decisions result from defects in the design or implementation of cost containment mechanisms as, for example, when appeals made on a patient's behalf for medical or hospital care are arbitrarily ignored or unreasonably disregarded or overridden." Id. at 819. See also Wilson v. Blue Cross of Southern Cal. 271 Cal. Rptr. 876, 883 (Cal. Ct. App. 1990) (holding that under the right set of facts, physician and utilization reviewer could be held jointly liable for patient harm caused by an unfortunate utilization review decision). Most recently, some states have enacted laws permitting patients to sue their HMOs directly liable for any malpractice by contracted health care professionals. See, e.g., TEX. CIV. PRACT. & REM. CODE ANN. Ch. 88 (West. Supp. 1999); Corporate Health Ins. Inc. v. Texas Dep't. of Ins.,12 F. Supp. 597 (S.D. Tex. 1998) (upholding law); Shannon v. McNulty, 718 A.2d 828 (Pa. Super. Ct. 1998) (finding that plaintiffs made a prima facie case against HMO for both vicarious and corporate liability). See also Deborah W. Larios, Barbarians at the Gate? An Essay on Payor Liability in an Era of Managed Care, 65 TENN. L. REV. 445 (1998) (discussing changing rules in managing health care costs and controlling access to treatment). Some plaintiffs have sought to use a combination of federal and state laws to target managed care abuses. See, e.g., Maio v. Aetna, Inc., No. 99-CV-1969, 1999 WL 800315 (E.D. Pa. Sept. 29, 1999) (class action suit alleging violation of Racketeer Influenced and Corrupt Organizations Act, as well as state unfair trade practice and consumer protection statutes). For a discussion of theories of liability applicable to MCOs, see generally Diana Joseph Bearden & Bryan J. Maedgen, Emerging Theories of Liability in the Managed Health Care Industry, 47 BAYLOR L. REV. 285 (1995) (exploring liability issues in the managed health care industry); William S. Brewbaker III, Medical Malpractice and Managed Care Organizations: The Implied Warranty of Quality, 60 LAW & CONTEMP. PROBS. 117 (1997) (arguing that courts should impose a tort-based implied warranty of quality on MCOs); Furrow, supra note 71; Barbara A. Noah, The Managed Care Dilemma: Can Theories of Tort Liability Adapt to the Realities of Cost Containment?, 48 MERCER L. REV. 1219 (1997) (discussing MCO statutory immunity from malpractice suits); Jeffrey O'Connell & James F. Neale, HMO's, Cost Containment, and Early Offers: New Malpractice Threat and a Proposed Reform, 14 J. CONTEMP. HEALTH L. & POL'Y 287 (1998) (detailing new malpractice risks, critiquing the tort system's ability to address malpractice claims against HMOs, and suggesting an early offer compensation scheme); Randall, supra note 80 (proposing medical injury compensation fund for cost containment injuries); William M. Sage, Enterprise Liability and the Emerging Managed Health Care System, 60 LAW & CONTEMP. PROBS. 159 (1997) (discussing public policy objectives of medical tort law). Despite recent suggestions for expanding MCO liability, one author has concluded "that courts are not systematically impeding the implementation of cost containment initiatives." Peter D. Jacobson, Legal Challenges to Managed Care Cost Containment Strategies," HEALTH AFFAIRS, July-Aug. 1999, at 69, 79.
468. Some plaintiffs have sought to hold their MCOs liable for harm sustained as a result of the cost containment mechanisms employed. In general, plaintiffs have not successfully sued MCOs simply for adopting cost-containment measures. See, e.g., Teti v. United States Healthcare, Inc., No. CIV.A.88-9808, 88-9822, 1989 WL 143274 (E.D. Pa. Nov. 21, 1989) (discussing an unsuccessful claim that HMO's concealment of incentives for physicians not to refer patients constituted a pattern of non-disclosure in violation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1861-1964 (1994)); Furrow, supra note 71, at 465-69 (discussing MCO's goal of managing the cost of health care via underutilization). But see Bush v. Dake, No. 86-25767 (Saginaw Cty., Mich., Apr. 27, 1989) (holding that a genuine issue of fact existed as to whether the incentive system used by an HMO proximately caused malpractice, such as by contributing to improper treatment and delay in diagnosis). Plaintiffs have been slightly more successful in obtaining compensation for faulty utilization review decisions. In the classic case of Wickline v. State of California, 289 Cal. Rptr. 810 (Cal. Ct. App. 1986), the court stated in dicta that "Third party payers of health care services can be held legally accountable when medically inappropriate decisions result from defects in the design or implementation of cost containment mechanisms as, for example, when appeals made on a patient's behalf for medical or hospital care are arbitrarily ignored or unreasonably disregarded or overridden." Id. at 819. See also Wilson v. Blue Cross of Southern Cal. 271 Cal. Rptr. 876, 883 (Cal. Ct. App. 1990) (holding that under the right set of facts, physician and utilization reviewer could be held jointly liable for patient harm caused by an unfortunate utilization review decision). Most recently, some states have enacted laws permitting patients to sue their HMOs directly liable for any malpractice by contracted health care professionals. See, e.g., TEX. CIV. PRACT. & REM. CODE ANN. Ch. 88 (West. Supp. 1999); Corporate Health Ins. Inc. v. Texas Dep't. of Ins.,12 F. Supp. 597 (S.D. Tex. 1998) (upholding law); Shannon v. McNulty, 718 A.2d 828 (Pa. Super. Ct. 1998) (finding that plaintiffs made a prima facie case against HMO for both vicarious and corporate liability). See also Deborah W. Larios, Barbarians at the Gate? An Essay on Payor Liability in an Era of Managed Care, 65 TENN. L. REV. 445 (1998) (discussing changing rules in managing health care costs and controlling access to treatment). Some plaintiffs have sought to use a combination of federal and state laws to target managed care abuses. See, e.g., Maio v. Aetna, Inc., No. 99-CV-1969, 1999 WL 800315 (E.D. Pa. Sept. 29, 1999) (class action suit alleging violation of Racketeer Influenced and Corrupt Organizations Act, as well as state unfair trade practice and consumer protection statutes). For a discussion of theories of liability applicable to MCOs, see generally Diana Joseph Bearden & Bryan J. Maedgen, Emerging Theories of Liability in the Managed Health Care Industry, 47 BAYLOR L. REV. 285 (1995) (exploring liability issues in the managed health care industry); William S. Brewbaker III, Medical Malpractice and Managed Care Organizations: The Implied Warranty of Quality, 60 LAW & CONTEMP. PROBS. 117 (1997) (arguing that courts should impose a tort-based implied warranty of quality on MCOs); Furrow, supra note 71; Barbara A. Noah, The Managed Care Dilemma: Can Theories of Tort Liability Adapt to the Realities of Cost Containment?, 48 MERCER L. REV. 1219 (1997) (discussing MCO statutory immunity from malpractice suits); Jeffrey O'Connell & James F. Neale, HMO's, Cost Containment, and Early Offers: New Malpractice Threat and a Proposed Reform, 14 J. CONTEMP. HEALTH L. & POL'Y 287 (1998) (detailing new malpractice risks, critiquing the tort system's ability to address malpractice claims against HMOs, and suggesting an early offer compensation scheme); Randall, supra note 80 (proposing medical injury compensation fund for cost containment injuries); William M. Sage, Enterprise Liability and the Emerging Managed Health Care System, 60 LAW & CONTEMP. PROBS. 159 (1997) (discussing public policy objectives of medical tort law). Despite recent suggestions for expanding MCO liability, one author has concluded "that courts are not systematically impeding the implementation of cost containment initiatives." Peter D. Jacobson, Legal Challenges to Managed Care Cost Containment Strategies," HEALTH AFFAIRS, July-Aug. 1999, at 69, 79.
469. Some plaintiffs have sought to hold their MCOs liable for harm sustained as a result of the cost containment mechanisms employed. In general, plaintiffs have not successfully sued MCOs simply for adopting cost-containment measures. See, e.g., Teti v. United States Healthcare, Inc., No. CIV.A.88-9808, 88-9822, 1989 WL 143274 (E.D. Pa. Nov. 21, 1989) (discussing an unsuccessful claim that HMO's concealment of incentives for physicians not to refer patients constituted a pattern of non-disclosure in violation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1861-1964 (1994)); Furrow, supra note 71, at 465-69 (discussing MCO's goal of managing the cost of health care via underutilization). But see Bush v. Dake, No. 86-25767 (Saginaw Cty., Mich., Apr. 27, 1989) (holding that a genuine issue of fact existed as to whether the incentive system used by an HMO proximately caused malpractice, such as by contributing to improper treatment and delay in diagnosis). Plaintiffs have been slightly more successful in obtaining compensation for faulty utilization review decisions. In the classic case of Wickline v. State of California, 289 Cal. Rptr. 810 (Cal. Ct. App. 1986), the court stated in dicta that "Third party payers of health care services can be held legally accountable when medically inappropriate decisions result from defects in the design or implementation of cost containment mechanisms as, for example, when appeals made on a patient's behalf for medical or hospital care are arbitrarily ignored or unreasonably disregarded or overridden." Id. at 819. See also Wilson v. Blue Cross of Southern Cal. 271 Cal. Rptr. 876, 883 (Cal. Ct. App. 1990) (holding that under the right set of facts, physician and utilization reviewer could be held jointly liable for patient harm caused by an unfortunate utilization review decision). Most recently, some states have enacted laws permitting patients to sue their HMOs directly liable for any malpractice by contracted health care professionals. See, e.g., TEX. CIV. PRACT. & REM. CODE ANN. Ch. 88 (West. Supp. 1999); Corporate Health Ins. Inc. v. Texas Dep't. of Ins.,12 F. Supp. 597 (S.D. Tex. 1998) (upholding law); Shannon v. McNulty, 718 A.2d 828 (Pa. Super. Ct. 1998) (finding that plaintiffs made a prima facie case against HMO for both vicarious and corporate liability). See also Deborah W. Larios, Barbarians at the Gate? An Essay on Payor Liability in an Era of Managed Care, 65 TENN. L. REV. 445 (1998) (discussing changing rules in managing health care costs and controlling access to treatment). Some plaintiffs have sought to use a combination of federal and state laws to target managed care abuses. See, e.g., Maio v. Aetna, Inc., No. 99-CV-1969, 1999 WL 800315 (E.D. Pa. Sept. 29, 1999) (class action suit alleging violation of Racketeer Influenced and Corrupt Organizations Act, as well as state unfair trade practice and consumer protection statutes). For a discussion of theories of liability applicable to MCOs, see generally Diana Joseph Bearden & Bryan J. Maedgen, Emerging Theories of Liability in the Managed Health Care Industry, 47 BAYLOR L. REV. 285 (1995) (exploring liability issues in the managed health care industry); William S. Brewbaker III, Medical Malpractice and Managed Care Organizations: The Implied Warranty of Quality, 60 LAW & CONTEMP. PROBS. 117 (1997) (arguing that courts should impose a tort-based implied warranty of quality on MCOs); Furrow, supra note 71; Barbara A. Noah, The Managed Care Dilemma: Can Theories of Tort Liability Adapt to the Realities of Cost Containment?, 48 MERCER L. REV. 1219 (1997) (discussing MCO statutory immunity from malpractice suits); Jeffrey O'Connell & James F. Neale, HMO's, Cost Containment, and Early Offers: New Malpractice Threat and a Proposed Reform, 14 J. CONTEMP. HEALTH L. & POL'Y 287 (1998) (detailing new malpractice risks, critiquing the tort system's ability to address malpractice claims against HMOs, and suggesting an early offer compensation scheme); Randall, supra note 80 (proposing medical injury compensation fund for cost containment injuries); William M. Sage, Enterprise Liability and the Emerging Managed Health Care System, 60 LAW & CONTEMP. PROBS. 159 (1997) (discussing public policy objectives of medical tort law). Despite recent suggestions for expanding MCO liability, one author has concluded "that courts are not systematically impeding the implementation of cost containment initiatives." Peter D. Jacobson, Legal Challenges to Managed Care Cost Containment Strategies," HEALTH AFFAIRS, July-Aug. 1999, at 69, 79.
470. Some plaintiffs have sought to hold their MCOs liable for harm sustained as a result of the cost containment mechanisms employed. In general, plaintiffs have not successfully sued MCOs simply for adopting cost-containment measures. See, e.g., Teti v. United States Healthcare, Inc., No. CIV.A.88-9808, 88-9822, 1989 WL 143274 (E.D. Pa. Nov. 21, 1989) (discussing an unsuccessful claim that HMO's concealment of incentives for physicians not to refer patients constituted a pattern of non-disclosure in violation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1861-1964 (1994)); Furrow, supra note 71, at 465-69 (discussing MCO's goal of managing the cost of health care via underutilization). But see Bush v. Dake, No. 86-25767 (Saginaw Cty., Mich., Apr. 27, 1989) (holding that a genuine issue of fact existed as to whether the incentive system used by an HMO proximately caused malpractice, such as by contributing to improper treatment and delay in diagnosis). Plaintiffs have been slightly more successful in obtaining compensation for faulty utilization review decisions. In the classic case of Wickline v. State of California, 289 Cal. Rptr. 810 (Cal. Ct. App. 1986), the court stated in dicta that "Third party payers of health care services can be held legally accountable when medically inappropriate decisions result from defects in the design or implementation of cost containment mechanisms as, for example, when appeals made on a patient's behalf for medical or hospital care are arbitrarily ignored or unreasonably disregarded or overridden." Id. at 819. See also Wilson v. Blue Cross of Southern Cal. 271 Cal. Rptr. 876, 883 (Cal. Ct. App. 1990) (holding that under the right set of facts, physician and utilization reviewer could be held jointly liable for patient harm caused by an unfortunate utilization review decision). Most recently, some states have enacted laws permitting patients to sue their HMOs directly liable for any malpractice by contracted health care professionals. See, e.g., TEX. CIV. PRACT. & REM. CODE ANN. Ch. 88 (West. Supp. 1999); Corporate Health Ins. Inc. v. Texas Dep't. of Ins.,12 F. Supp. 597 (S.D. Tex. 1998) (upholding law); Shannon v. McNulty, 718 A.2d 828 (Pa. Super. Ct. 1998) (finding that plaintiffs made a prima facie case against HMO for both vicarious and corporate liability). See also Deborah W. Larios, Barbarians at the Gate? An Essay on Payor Liability in an Era of Managed Care, 65 TENN. L. REV. 445 (1998) (discussing changing rules in managing health care costs and controlling access to treatment). Some plaintiffs have sought to use a combination of federal and state laws to target managed care abuses. See, e.g., Maio v. Aetna, Inc., No. 99-CV-1969, 1999 WL 800315 (E.D. Pa. Sept. 29, 1999) (class action suit alleging violation of Racketeer Influenced and Corrupt Organizations Act, as well as state unfair trade practice and consumer protection statutes). For a discussion of theories of liability applicable to MCOs, see generally Diana Joseph Bearden & Bryan J. Maedgen, Emerging Theories of Liability in the Managed Health Care Industry, 47 BAYLOR L. REV. 285 (1995) (exploring liability issues in the managed health care industry); William S. Brewbaker III, Medical Malpractice and Managed Care Organizations: The Implied Warranty of Quality, 60 LAW & CONTEMP. PROBS. 117 (1997) (arguing that courts should impose a tort-based implied warranty of quality on MCOs); Furrow, supra note 71; Barbara A. Noah, The Managed Care Dilemma: Can Theories of Tort Liability Adapt to the Realities of Cost Containment?, 48 MERCER L. REV. 1219 (1997) (discussing MCO statutory immunity from malpractice suits); Jeffrey O'Connell & James F. Neale, HMO's, Cost Containment, and Early Offers: New Malpractice Threat and a Proposed Reform, 14 J. CONTEMP. HEALTH L. & POL'Y 287 (1998) (detailing new malpractice risks, critiquing the tort system's ability to address malpractice claims against HMOs, and suggesting an early offer compensation scheme); Randall, supra note 80 (proposing medical injury compensation fund for cost containment injuries); William M. Sage, Enterprise Liability and the Emerging Managed Health Care System, 60 LAW & CONTEMP. PROBS. 159 (1997) (discussing public policy objectives of medical tort law). Despite recent suggestions for expanding MCO liability, one author has concluded "that courts are not systematically impeding the implementation of cost containment initiatives." Peter D. Jacobson, Legal Challenges to Managed Care Cost Containment Strategies," HEALTH AFFAIRS, July-Aug. 1999, at 69, 79.
471. Some plaintiffs have sought to hold their MCOs liable for harm sustained as a result of the cost containment mechanisms employed. In general, plaintiffs have not successfully sued MCOs simply for adopting cost-containment measures. See, e.g., Teti v. United States Healthcare, Inc., No. CIV.A.88-9808, 88-9822, 1989 WL 143274 (E.D. Pa. Nov. 21, 1989) (discussing an unsuccessful claim that HMO's concealment of incentives for physicians not to refer patients constituted a pattern of non-disclosure in violation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1861-1964 (1994)); Furrow, supra note 71, at 465-69 (discussing MCO's goal of managing the cost of health care via underutilization). But see Bush v. Dake, No. 86-25767 (Saginaw Cty., Mich., Apr. 27, 1989) (holding that a genuine issue of fact existed as to whether the incentive system used by an HMO proximately caused malpractice, such as by contributing to improper treatment and delay in diagnosis). Plaintiffs have been slightly more successful in obtaining compensation for faulty utilization review decisions. In the classic case of Wickline v. State of California, 289 Cal. Rptr. 810 (Cal. Ct. App. 1986), the court stated in dicta that "Third party payers of health care services can be held legally accountable when medically inappropriate decisions result from defects in the design or implementation of cost containment mechanisms as, for example, when appeals made on a patient's behalf for medical or hospital care are arbitrarily ignored or unreasonably disregarded or overridden." Id. at 819. See also Wilson v. Blue Cross of Southern Cal. 271 Cal. Rptr. 876, 883 (Cal. Ct. App. 1990) (holding that under the right set of facts, physician and utilization reviewer could be held jointly liable for patient harm caused by an unfortunate utilization review decision). Most recently, some states have enacted laws permitting patients to sue their HMOs directly liable for any malpractice by contracted health care professionals. See, e.g., TEX. CIV. PRACT. & REM. CODE ANN. Ch. 88 (West. Supp. 1999); Corporate Health Ins. Inc. v. Texas Dep't. of Ins.,12 F. Supp. 597 (S.D. Tex. 1998) (upholding law); Shannon v. McNulty, 718 A.2d 828 (Pa. Super. Ct. 1998) (finding that plaintiffs made a prima facie case against HMO for both vicarious and corporate liability). See also Deborah W. Larios, Barbarians at the Gate? An Essay on Payor Liability in an Era of Managed Care, 65 TENN. L. REV. 445 (1998) (discussing changing rules in managing health care costs and controlling access to treatment). Some plaintiffs have sought to use a combination of federal and state laws to target managed care abuses. See, e.g., Maio v. Aetna, Inc., No. 99-CV-1969, 1999 WL 800315 (E.D. Pa. Sept. 29, 1999) (class action suit alleging violation of Racketeer Influenced and Corrupt Organizations Act, as well as state unfair trade practice and consumer protection statutes). For a discussion of theories of liability applicable to MCOs, see generally Diana Joseph Bearden & Bryan J. Maedgen, Emerging Theories of Liability in the Managed Health Care Industry, 47 BAYLOR L. REV. 285 (1995) (exploring liability issues in the managed health care industry); William
472. Some plaintiffs have sought to hold their MCOs liable for harm sustained as a result of the cost containment mechanisms employed. In general, plaintiffs have not successfully sued MCOs simply for adopting cost-containment measures. See, e.g., Teti v. United States Healthcare, Inc., No. CIV.A.88-9808, 88-9822, 1989 WL 143274 (E.D. Pa. Nov. 21, 1989) (discussing an unsuccessful claim that HMO's concealment of incentives for physicians not to refer patients constituted a pattern of non-disclosure in violation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1861-1964 (1994)); Furrow, supra note 71, at 465-69 (discussing MCO's goal of managing the cost of health care via underutilization). But see Bush v. Dake, No. 86-25767 (Saginaw Cty., Mich., Apr. 27, 1989) (holding that a genuine issue of fact existed as to whether the incentive system used by an HMO proximately caused malpractice, such as by contributing to improper treatment and delay in diagnosis). Plaintiffs have been slightly more successful in obtaining compensation for faulty utilization review decisions. In the classic case of Wickline v. State of California, 289 Cal. Rptr. 810 (Cal. Ct. App. 1986), the court stated in dicta that "Third party payers of health care services can be held legally accountable when medically inappropriate decisions result from defects in the design or implementation of cost containment mechanisms as, for example, when appeals made on a patient's behalf for medical or hospital care are arbitrarily ignored or unreasonably disregarded or overridden." Id. at 819. See also Wilson v. Blue Cross of Southern Cal. 271 Cal. Rptr. 876, 883 (Cal. Ct. App. 1990) (holding that under the right set of facts, physician and utilization reviewer could be held jointly liable for patient harm caused by an unfortunate utilization review decision). Most recently, some states have enacted laws permitting patients to sue their HMOs directly liable for any malpractice by contracted health care professionals. See, e.g., TEX. CIV. PRACT. & REM. CODE ANN. Ch. 88 (West. Supp. 1999); Corporate Health Ins. Inc. v. Texas Dep't. of Ins.,12 F. Supp. 597 (S.D. Tex. 1998) (upholding law); Shannon v. McNulty, 718 A.2d 828 (Pa. Super. Ct. 1998) (finding that plaintiffs made a prima facie case against HMO for both vicarious and corporate liability). See also Deborah W. Larios, Barbarians at the Gate? An Essay on Payor Liability in an Era of Managed Care, 65 TENN. L. REV. 445 (1998) (discussing changing rules in managing health care costs and controlling access to treatment). Some plaintiffs have sought to use a combination of federal and state laws to target managed care abuses. See, e.g., Maio v. Aetna, Inc., No. 99-CV-1969, 1999 WL 800315 (E.D. Pa. Sept. 29, 1999) (class action suit alleging violation of Racketeer Influenced and Corrupt Organizations Act, as well as state unfair trade practice and consumer protection statutes). For a discussion of theories of liability applicable to MCOs, see generally Diana Joseph Bearden & Bryan J. Maedgen, Emerging Theories of Liability in the Managed Health Care Industry, 47 BAYLOR L. REV. 285 (1995) (exploring liability issues in the managed health care industry); William S. Brewbaker III, Medical Malpractice and Managed Care Organizations: The Implied Warranty of Quality, 60 LAW & CONTEMP. PROBS. 117 (1997) (arguing that courts should impose a tort-based implied warranty of quality on MCOs); Furrow, supra note 71; Barbara A. Noah, The Managed Care Dilemma: Can Theories of Tort Liability Adapt to the Realities of Cost Containment?, 48 MERCER L. REV. 1219 (1997) (discussing MCO statutory immunity from malpractice suits); Jeffrey O'Connell & James F. Neale, HMO's, Cost Containment, and Early Offers: New Malpractice Threat and a Proposed Reform, 14 J. CONTEMP. HEALTH L. & POL'Y 287 (1998) (detailing new malpractice risks, critiquing the tort system's ability to address malpractice claims against HMOs, and suggesting an early offer compensation scheme); Randall, supra note 80 (proposing medical injury compensation fund for cost containment injuries); William M. Sage, Enterprise Liability and the Emerging Managed Health Care System, 60 LAW & CONTEMP. PROBS. 159 (1997) (discussing public policy objectives of medical tort law). Despite recent suggestions for expanding MCO liability, one author has concluded "that courts are not systematically impeding the implementation of cost containment initiatives." Peter D. Jacobson, Legal Challenges to Managed Care Cost Containment Strategies," HEALTH AFFAIRS, July-Aug. 1999, at 69, 79.
473. Some plaintiffs have sought to hold their MCOs liable for harm sustained as a result of the cost containment mechanisms employed. In general, plaintiffs have not successfully sued MCOs simply for adopting cost-containment measures. See, e.g., Teti v. United States Healthcare, Inc., No. CIV.A.88-9808, 88-9822, 1989 WL 143274 (E.D. Pa. Nov. 21, 1989) (discussing an unsuccessful claim that HMO's concealment of incentives for physicians not to refer patients constituted a pattern of non-disclosure in violation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1861-1964 (1994)); Furrow, supra note 71, at 465-69 (discussing MCO's goal of managing the cost of health care via underutilization). But see Bush v. Dake, No. 86-25767 (Saginaw Cty., Mich., Apr. 27, 1989) (holding that a genuine issue of fact existed as to whether the incentive system used by an HMO proximately caused malpractice, such as by contributing to improper treatment and delay in diagnosis). Plaintiffs have been slightly more successful in obtaining compensation for faulty utilization review decisions. In the classic case of Wickline v. State of California, 289 Cal. Rptr. 810 (Cal. Ct. App. 1986), the court stated in dicta that "Third party payers of health care services can be held legally accountable when medically inappropriate decisions result from defects in the design or implementation of cost containment mechanisms as, for example, when appeals made on a patient's behalf for medical or hospital care are arbitrarily ignored or unreasonably disregarded or overridden." Id. at 819. See also Wilson v. Blue Cross of Southern Cal. 271 Cal. Rptr. 876, 883 (Cal. Ct. App. 1990) (holding that under the right set of facts, physician and utilization reviewer could be held jointly liable for patient harm caused by an unfortunate utilization review decision). Most recently, some states have enacted laws permitting patients to sue their HMOs directly liable for any malpractice by contracted health care professionals. See, e.g., TEX. CIV. PRACT. & REM. CODE ANN. Ch. 88 (West. Supp. 1999); Corporate Health Ins. Inc. v. Texas Dep't. of Ins.,12 F. Supp. 597 (S.D. Tex. 1998) (upholding law); Shannon v. McNulty, 718 A.2d 828 (Pa. Super. Ct. 1998) (finding that plaintiffs made a prima facie case against HMO for both vicarious and corporate liability). See also Deborah W. Larios, Barbarians at the Gate? An Essay on Payor Liability in an Era of Managed Care, 65 TENN. L. REV. 445 (1998) (discussing changing rules in managing health care costs and controlling access to treatment). Some plaintiffs have sought to use a combination of federal and state laws to target managed care abuses. See, e.g., Maio v. Aetna, Inc., No. 99-CV-1969, 1999 WL 800315 (E.D. Pa. Sept. 29, 1999) (class action suit alleging violation of Racketeer Influenced and Corrupt Organizations Act, as well as state unfair trade practice and consumer protection statutes). For a discussion of theories of liability applicable to MCOs, see generally Diana Joseph Bearden & Bryan J. Maedgen, Emerging Theories of Liability in the Managed Health Care Industry, 47 BAYLOR L. REV. 285 (1995) (exploring liability issues in the managed health care industry); William S. Brewbaker III, Medical Malpractice and Managed Care Organizations: The Implied Warranty of Quality, 60 LAW & CONTEMP. PROBS. 117 (1997) (arguing that courts should impose a tort-based implied warranty of quality on MCOs); Furrow, supra note 71; Barbara A. Noah, The Managed Care Dilemma: Can Theories of Tort Liability Adapt to the Realities of Cost Containment?, 48 MERCER L. REV. 1219 (1997) (discussing MCO statutory immunity from malpractice suits); Jeffrey O'Connell & James F. Neale, HMO's, Cost Containment, and Early Offers: New Malpractice Threat and a Proposed Reform, 14 J. CONTEMP. HEALTH L. & POL'Y 287 (1998) (detailing new malpractice risks, critiquing the tort system's ability to address malpractice claims against HMOs, and suggesting an early offer compensation scheme); Randall, supra note 80 (proposing medical injury compensation fund for cost containment injuries); William M. Sage, Enterprise Liability and the Emerging Managed Health Care System, 60 LAW & CONTEMP. PROBS. 159 (1997) (discussing public policy objectives of medical tort law). Despite recent suggestions for expanding MCO liability, one author has concluded "that courts are not systematically impeding the implementation of cost containment initiatives." Peter D. Jacobson, Legal Challenges to Managed Care Cost Containment Strategies," HEALTH AFFAIRS, July-Aug. 1999, at 69, 79.
474. 271 Cal. Rptr. 146 (Cal. 1990).
475. Id. at 150.
476. F. Miller, Denial of Health Care, supra note 146, at 65.
477. However, in 1999, an Illinois Appellate Court opinion cited Moore in reversing a trial court's dismissal of an action alleging breach of a physician's fiduciary duty. See Neade v. Portes, 710 N.E.2d. 418, 425 (Ill. App. Ct. 1999).
478. 858 P.2d 598 (Cal. 1993).
479. Id. at 608. The plaintiffs argued that this "led eventually to the failure of [the patient's] contracting business and to substantial real estate and tax losses following his death." Id. at 602.
480. Id. at 608-09.
481. 29 U.S.C. §§ 1144(a) & (b)(2)(A) (1994).
482. Compare Reilly v. Blue Cross & Blue Shield United of Wis., 846 F.2d 416 (7th Cir. 1988) (holding that plaintiff's claims for punitive damages and bad faith were preempted under ERISA), with Dukes v. United States Healthcare, Inc., 57 F.3d 350 (3d Cir. 1995) (holding that a challenge regarding quality of care received from health plan was not preempted by ERISA).
483. 29 U.S.C. §§ 1132(a)(1)(B) & (a)(3) (1994). See, e.g., Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134 (1985) (holding fiduciary was not personally liable to plan participant for extracontractual compensatory or punitive damages caused by improper claims processing). For a discussion of the effects of ERISA preemption on tort suits against HMOs, see Suzanne M. Grosso, Rethinking Malpractice Liability and ERISA Preemption in the Age of Managed Care, 9 STAN. L. & POL'Y REV. 433 (1998); Robert L. Roth, Recent Developments Concerning the Effect of ERISA Preemption on Tort Claims Against Employers, Insurers, Health Plan Administrators, Managed Care Entities, and Utilization Review Agents, 8 HEALTH LAW., no. 7, at 3 (1996). Recent legislation passed by the House and Senate would make it easier for patients to sue their HMOs, notwithstanding the presence of an ERISA plan. See H.R. 2990, 106th Cong. (1999); S. 1344, 106th Cong. (1999). As of November 1999, however, it was unclear whether those bills could be successfully combined in conference, and the prospect of federal managed care reform remained unclear.
484. 29 U.S.C. §§ 1132(a)(1)(B) & (a)(3) (1994). See, e.g., Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134 (1985) (holding fiduciary was not personally liable to plan participant for extracontractual compensatory or punitive damages caused by improper claims processing). For a discussion of the effects of ERISA preemption on tort suits against HMOs, see Suzanne M. Grosso, Rethinking Malpractice Liability and ERISA Preemption in the Age of Managed Care, 9 STAN. L. & POL'Y REV. 433 (1998); Robert L. Roth, Recent Developments Concerning the Effect of ERISA Preemption on Tort Claims Against Employers, Insurers, Health Plan Administrators, Managed Care Entities, and Utilization Review Agents, 8 HEALTH LAW., no. 7, at 3 (1996). Recent legislation passed by the House and Senate would make it easier for patients to sue their HMOs, notwithstanding the presence of an ERISA plan. See H.R. 2990, 106th Cong. (1999); S. 1344, 106th Cong. (1999). As of November 1999, however, it was unclear whether those bills could be successfully combined in conference, and the prospect of federal managed care reform remained unclear.
485. 29 U.S.C. §§ 1002(21)(A) (stating the definition) & 1104(1)(B) (mandating that fiduciaries discharge their duties "with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use").
486. 107 F.3d 625 (8th Cir. 1997).
487. Id. See Drolet v. Healthsource, Inc., 968 F. Supp. 757 (D.N.H. 1997) (holding that defendant health plan was a plan fiduciary which could be held liable if it made material misrepresentations regarding the financial incentives provided to physicians). But see Lancaster v. Kaiser Found. Health Plan, 958 F. Supp. 1137 (E.D. Va. 1997) (reaching opposite conclusion); Ehlmann v. Kaiser, 20 F. Supp.2d 1008 (N.D. Tex. 1998) (holding that ERISA does not impose a duty on HMOs to disclose their physician compensation arrangements).
488. 154 F.3d 362 (7th Cir. 1998), cert. granted, No. 98-1949, 1999 WL 38666 (U.S. Sept. 28, 1999).
489. Id. at 365 n. 1.
490. Id. at 370 ("[T]he board of directors consisted exclusively of the Plan physicians who were thus in control of each and every aspect of the HMO's governance, including their own year-end bonuses.").
491. Id. at 372.
492. See id. at 383-84 (Flaum, J., dissenting).
493. Herdrich, 154 F.3d at 373; see also id. at 374-77 (describing literature criticizing managed care).
494. This exact point was made by Judge Easterbrook when the full Seventh Circuit subsequently denied a motion for rehearing en banc. Herdrich v. Pegram, 170 F.3d 683 (7th Cir. 1999). In a heated dissent from the denial, Easterbrook chastised the panel for condemning "HMO and managed-care systems on medical grounds, and us[ing] its view of good medical practice as the basis of a conclusion that the HMO structure violates ERISA," and cautioned that "a holding such as this is impossible to cabin, for the plan attacked in this case is an ordinary HMO." Id. at 684, 686. For a discussion of fiduciary duties in the PSO context, see E. Haavi Morreim, Benefits Decisions in ERISA Plans: Diminishing Deference to Fiduciaries and an Emerging Problem for Provider-Sponsored Organizations, 65 TENN. L. REV. 511 (1998).
495. 972 F. Supp. 748 (S.D.N.Y. 1997).
496. Id. at 751.
497. Id. at 753-55. For further discussion of ERISA in the context of managed care disclosure obligations, see, for example, Corey J. Ayling, New Developments in ERISA Preemption and Judicial Oversight of Managed Care, 31 CREIGHTON L. REV. 403 (1998); Wayne Blackmon, The Emerging Convergence of Informed Consent and Judicial Reinterpretation of the Employee Retirement Income Security Act, 19 J. LEGAL MED. 377 (1998); Colleen E. Medill, HIPAA and its Related Legislation: A New Role for ERISA in the Regulation of Private Plans, 65 TENN. L. REV. 485 (1998); Karl Polzer & Patricia A. Butler, Employee Health Plan Protections Under ERISA, HEALTH AFFAIRS, Sept.-Oct. 1997, at 93; Richards & McLean, supra note 82, at 455-62; Charles D. Weller, The Secret Life of the Dominant Form of Managed Care: Self-Insured ERISA Networks, 6 HEALTH MATRIX 305 (1996).
498. Id. at 753-55. For further discussion of ERISA in the context of managed care disclosure obligations, see, for example, Corey J. Ayling, New Developments in ERISA Preemption and Judicial Oversight of Managed Care, 31 CREIGHTON L. REV. 403 (1998); Wayne Blackmon, The Emerging Convergence of Informed Consent and Judicial Reinterpretation of the Employee Retirement Income Security Act, 19 J. LEGAL MED. 377 (1998); Colleen E. Medill, HIPAA and its Related Legislation: A New Role for ERISA in the Regulation of Private Plans, 65 TENN. L. REV. 485 (1998); Karl Polzer & Patricia A. Butler, Employee Health Plan Protections Under ERISA, HEALTH AFFAIRS, Sept.-Oct. 1997, at 93; Richards & McLean, supra note 82, at 455-62; Charles D. Weller, The Secret Life of the Dominant Form of Managed Care: Self-Insured ERISA Networks, 6 HEALTH MATRIX 305 (1996).
499. Id. at 753-55. For further discussion of ERISA in the context of managed care disclosure obligations, see, for example, Corey J. Ayling, New Developments in ERISA Preemption and Judicial Oversight of Managed Care, 31 CREIGHTON L. REV. 403 (1998); Wayne Blackmon, The Emerging Convergence of Informed Consent and Judicial Reinterpretation of the Employee Retirement Income Security Act, 19 J. LEGAL MED. 377 (1998); Colleen E. Medill, HIPAA and its Related Legislation: A New Role for ERISA in the Regulation of Private Plans, 65 TENN. L. REV. 485 (1998); Karl Polzer & Patricia A. Butler, Employee Health Plan Protections Under ERISA, HEALTH AFFAIRS, Sept.-Oct. 1997, at 93; Richards & McLean, supra note 82, at 455-62; Charles D. Weller, The Secret Life of the Dominant Form of Managed Care: Self-Insured ERISA Networks, 6 HEALTH MATRIX 305 (1996).
500. Id. at 753-55. For further discussion of ERISA in the context of managed care disclosure obligations, see, for example, Corey J. Ayling, New Developments in ERISA Preemption and Judicial Oversight of Managed Care, 31 CREIGHTON L. REV. 403 (1998); Wayne Blackmon, The Emerging Convergence of Informed Consent and Judicial Reinterpretation of the Employee Retirement Income Security Act, 19 J. LEGAL MED. 377 (1998); Colleen E. Medill, HIPAA and its Related Legislation: A New Role for ERISA in the Regulation of Private Plans, 65 TENN. L. REV. 485 (1998); Karl Polzer & Patricia A. Butler, Employee Health Plan Protections Under ERISA, HEALTH AFFAIRS, Sept.-Oct. 1997, at 93; Richards & McLean, supra note 82, at 455-62; Charles D. Weller, The Secret Life of the Dominant Form of Managed Care: Self-Insured ERISA Networks, 6 HEALTH MATRIX 305 (1996).
501. Id. at 753-55. For further discussion of ERISA in the context of managed care disclosure obligations, see, for example, Corey J. Ayling, New Developments in ERISA Preemption and Judicial Oversight of Managed Care, 31 CREIGHTON L. REV. 403 (1998); Wayne Blackmon, The Emerging Convergence of Informed Consent and Judicial Reinterpretation of the Employee Retirement Income Security Act, 19 J. LEGAL MED. 377 (1998); Colleen E. Medill, HIPAA and its Related Legislation: A New Role for ERISA in the Regulation of Private Plans, 65 TENN. L. REV. 485 (1998); Karl Polzer & Patricia A. Butler, Employee Health Plan Protections Under ERISA, HEALTH AFFAIRS, Sept.-Oct. 1997, at 93; Richards & McLean, supra note 82, at 455-62; Charles D. Weller, The Secret Life of the Dominant Form of Managed Care: Self-Insured ERISA Networks, 6 HEALTH MATRIX 305 (1996).
502. Id. at 753-55. For further discussion of ERISA in the context of managed care disclosure obligations, see, for example, Corey J. Ayling, New Developments in ERISA Preemption and Judicial Oversight of Managed Care, 31 CREIGHTON L. REV. 403 (1998); Wayne Blackmon, The Emerging Convergence of Informed Consent and Judicial Reinterpretation of the Employee Retirement Income Security Act, 19 J. LEGAL MED. 377 (1998); Colleen E. Medill, HIPAA and its Related Legislation: A New Role for ERISA in the Regulation of Private Plans, 65 TENN. L. REV. 485 (1998); Karl Polzer & Patricia A. Butler, Employee Health Plan Protections Under ERISA, HEALTH AFFAIRS, Sept.-Oct. 1997, at 93; Richards & McLean, supra note 82, at 455-62; Charles D. Weller, The Secret Life of the Dominant Form of Managed Care: Self-Insured ERISA Networks, 6 HEALTH MATRIX 305 (1996).
503. 710 N.E.2d. 418 (Ill. App. Ct. 1999). Similar to Shea, the decedent died from a heart attack after his physician assured him that his recurring symptoms were not cardiac-related.
504. See id. at 426 (citing CEJA, Opinions on Practice Matters, supra note 79, § 8.13(2)).
505. Id. at 427.
506. The district judge in Weiss certainly suggested that the plaintiff would not prevail, noting that she had offered "thin evidence" of the existence of a gag policy. Weiss v. CIGNA Healthcare, Inc., 972 F. Supp. 748, 751 (S.D.N.Y. 1997).
507. See, e.g., RODWIN, MEDICINE, MONEY, AND MORALS, supra note 40, at 216-17, 247; Marc A. Rodwin, Managed Care and Consumer Protection: What Are the Issues?, 26 SETON HALL L. REV. 1007, 1049-54 (1996) [hereinafter Rodwin, Managed Care and Consumer Protection]; Rodwin, Managed Care and the Elusive Quest, supra note 83, at 75-76. Marc A. Rodwin, Patient Accountability and Quality of Care: Lessons From Medical Consumerism and the Patients' Rights, Women's Health and Disability Movements, 20 AM. J.L. & MED. 147 (1994) [hereinafter Rodwin, Patient Accountability and Quality of Care].
508. See, e.g., RODWIN, MEDICINE, MONEY, AND MORALS, supra note 40, at 216-17, 247; Marc A. Rodwin, Managed Care and Consumer Protection: What Are the Issues?, 26 SETON HALL L. REV. 1007, 1049-54 (1996) [hereinafter Rodwin, Managed Care and Consumer Protection]; Rodwin, Managed Care and the Elusive Quest, supra note 83, at 75-76. Marc A. Rodwin, Patient Accountability and Quality of Care: Lessons From Medical Consumerism and the Patients' Rights, Women's Health and Disability Movements, 20 AM. J.L. & MED. 147 (1994) [hereinafter Rodwin, Patient Accountability and Quality of Care].
509. See, e.g., RODWIN, MEDICINE, MONEY, AND MORALS, supra note 40, at 216-17, 247; Marc A. Rodwin, Managed Care and Consumer Protection: What Are the Issues?, 26 SETON HALL L. REV. 1007, 1049-54 (1996) [hereinafter Rodwin, Managed Care and Consumer Protection]; Rodwin, Managed Care and the Elusive Quest, supra note 83, at 75-76. Marc A. Rodwin, Patient Accountability and Quality of Care: Lessons From Medical Consumerism and the Patients' Rights, Women's Health and Disability Movements, 20 AM. J.L. & MED. 147 (1994) [hereinafter Rodwin, Patient Accountability and Quality of Care].
510. See, e.g., RODWIN, MEDICINE, MONEY, AND MORALS, supra note 40, at 216-17, 247; Marc A. Rodwin, Managed Care and Consumer Protection: What Are the Issues?, 26 SETON HALL L. REV. 1007, 1049-54 (1996) [hereinafter Rodwin, Managed Care and Consumer Protection]; Rodwin, Managed Care and the Elusive Quest, supra note 83, at 75-76. Marc A. Rodwin, Patient Accountability and Quality of Care: Lessons From Medical Consumerism and the Patients' Rights, Women's Health and Disability Movements, 20 AM. J.L. & MED. 147 (1994) [hereinafter Rodwin, Patient Accountability and Quality of Care].
511. See Rodwin, Managed Care and Consumer Protection, supra note 280, at 1049-54 (criticizing the lack of proposals and noting that medical consumerism works best with organized advocacy, or when people with a common illness mobilize to voice their concerns); see also Cerminara, supra note 131, at 18 (explaining the need for consumerism in managed care).
512. See Rodwin, Managed Care and Consumer Protection, supra note 280, at 1049-54 (criticizing the lack of proposals and noting that medical consumerism works best with organized advocacy, or when people with a common illness mobilize to voice their concerns); see also Cerminara, supra note 131, at 18 (explaining the need for consumerism in managed care).
513. George J. Annas, A National Bill of Patients' Rights, 338 NEW ENG. J. MED. 695, 697 (1998) [hereinafter Annas, Patients' Rights]. See GEORGE J. ANNAS, SOME CHOICE: LAW, MEDICINE, AND THE MARKET xii (1998) [hereinafter ANNAS, SOME CHOICE]; Wendy K. Mariner, Standards of Care and Standard Form Contract: Distinguishing Patient Rights and Consumer Rights in Managed Care, 15 J. CONTEMP. HEALTH L. & POL'Y 1 (1998). Annas rejects contract-centered "consumer protection" bill-of-rights proposals, arguing instead that "[t]he core of patients' rights is the right to receive care from an accountable physician who shares all relevant information with the patient and guarantees the patient the right to make the final decision about treatment." Annas, Patients' Rights, supra, at 697.
514. George J. Annas, A National Bill of Patients' Rights, 338 NEW ENG. J. MED. 695, 697 (1998) [hereinafter Annas, Patients' Rights]. See GEORGE J. ANNAS, SOME CHOICE: LAW, MEDICINE, AND THE MARKET xii (1998) [hereinafter ANNAS, SOME CHOICE]; Wendy K. Mariner, Standards of Care and Standard Form Contract: Distinguishing Patient Rights and Consumer Rights in Managed Care, 15 J. CONTEMP. HEALTH L. & POL'Y 1 (1998). Annas rejects contract-centered "consumer protection" bill-of-rights proposals, arguing instead that "[t]he core of patients' rights is the right to receive care from an accountable physician who shares all relevant information with the patient and guarantees the patient the right to make the final decision about treatment." Annas, Patients' Rights, supra, at 697.
515. George J. Annas, A National Bill of Patients' Rights, 338 NEW ENG. J. MED. 695, 697 (1998) [hereinafter Annas, Patients' Rights]. See GEORGE J. ANNAS, SOME CHOICE: LAW, MEDICINE, AND THE MARKET xii (1998) [hereinafter ANNAS, SOME CHOICE]; Wendy K. Mariner, Standards of Care and Standard Form Contract: Distinguishing Patient Rights and Consumer Rights in Managed Care, 15 J. CONTEMP. HEALTH L. & POL'Y 1 (1998). Annas rejects contract-centered "consumer protection" bill-of-rights proposals, arguing instead that "[t]he core of patients' rights is the right to receive care from an accountable physician who shares all relevant information with the patient and guarantees the patient the right to make the final decision about treatment." Annas, Patients' Rights, supra, at 697.
516. George J. Annas, A National Bill of Patients' Rights, 338 NEW ENG. J. MED. 695, 697 (1998) [hereinafter Annas, Patients' Rights]. See GEORGE J. ANNAS, SOME CHOICE: LAW, MEDICINE, AND THE MARKET xii (1998) [hereinafter ANNAS, SOME CHOICE]; Wendy K. Mariner, Standards of Care and Standard Form Contract: Distinguishing Patient Rights and Consumer Rights in Managed Care, 15 J. CONTEMP. HEALTH L. & POL'Y 1 (1998). Annas rejects contract-centered "consumer protection" bill-of-rights proposals, arguing instead that "[t]he core of patients' rights is the right to receive care from an accountable physician who shares all relevant information with the patient and guarantees the patient the right to make the final decision about treatment." Annas, Patients' Rights, supra, at 697.
517. See Cerminara, supra note 131 (proposing use of class action suits as a way to empower MCO patients). One popular model centers on providing "medical advocates" to help patients navigate within their HMOs. See, e.g., Annas, Patients' Rights, supra note 282, at 698 (proposing that patients have an independent patient-rights advocate to help assert their rights within the plan); Nancy K. Kubasek, Legislative Approaches to Reducing the Hegemony of the Priestly Model of Medicine, 4 MICH. J. GENDER & L. 375, 421-22 (1997) (calling for hospitals to provide advocates for all women scheduled to give birth); Maxwell J. Mehlman, Medical Advocates: A Call for a New Profession, 1 WIDENER L. SYMP. J. 299 (1996). The legitimacy of consumer protection efforts is not universally accepted, however. See, e.g., Hyman, supra note 85, at 447 (arguing that consumer protection strategies targeting managed care are fundamentally ill-conceived, and merely exacerbate problems in the health care market); John K. Iglehart, Physicians As Agents of Social Control: The Thoughts of Victor Fuchs, HEALTH AFFAIRS, Jan.-Feb. 1998, at 96 (quoting Fuchs as saying that "[a] lot of today's consumerism is being pushed by professional consumerists, consumer advocates, and the media, rather than by any real demand on the part of ordinary people"). For an interesting analysis of the issue, see Russell Korobkin, The Efficiency of Managed Care "Patient Protection" Laws: Incomplete Contracts, Bounded Rationality, and Market Failure, 85 CORNELL L. REV. (forthcoming 1999) (arguing that patient protection legislation may, in some circumstances, increase efficiency).
518. See Cerminara, supra note 131 (proposing use of class action suits as a way to empower MCO patients). One popular model centers on providing "medical advocates" to help patients navigate within their HMOs. See, e.g., Annas, Patients' Rights, supra note 282, at 698 (proposing that patients have an independent patient-rights advocate to help assert their rights within the plan); Nancy K. Kubasek, Legislative Approaches to Reducing the Hegemony of the Priestly Model of Medicine, 4 MICH. J. GENDER & L. 375, 421-22 (1997) (calling for hospitals to provide advocates for all women scheduled to give birth); Maxwell J. Mehlman, Medical Advocates: A Call for a New Profession, 1 WIDENER L. SYMP. J. 299 (1996). The legitimacy of consumer protection efforts is not universally accepted, however. See, e.g., Hyman, supra note 85, at 447 (arguing that consumer protection strategies targeting managed care are fundamentally ill-conceived, and merely exacerbate problems in the health care market); John K. Iglehart, Physicians As Agents of Social Control: The Thoughts of Victor Fuchs, HEALTH AFFAIRS, Jan.-Feb. 1998, at 96 (quoting Fuchs as saying that "[a] lot of today's consumerism is being pushed by professional consumerists, consumer advocates, and the media, rather than by any real demand on the part of ordinary people"). For an interesting analysis of the issue, see Russell Korobkin, The Efficiency of Managed Care "Patient Protection" Laws: Incomplete Contracts, Bounded Rationality, and Market Failure, 85 CORNELL L. REV. (forthcoming 1999) (arguing that patient protection legislation may, in some circumstances, increase efficiency).
519. See Cerminara, supra note 131 (proposing use of class action suits as a way to empower MCO patients). One popular model centers on providing "medical advocates" to help patients navigate within their HMOs. See, e.g., Annas, Patients' Rights, supra note 282, at 698 (proposing that patients have an independent patient-rights advocate to help assert their rights within the plan); Nancy K. Kubasek, Legislative Approaches to Reducing the Hegemony of the Priestly Model of Medicine, 4 MICH. J. GENDER & L. 375, 421-22 (1997) (calling for hospitals to provide advocates for all women scheduled to give birth); Maxwell J. Mehlman, Medical Advocates: A Call for a New Profession, 1 WIDENER L. SYMP. J. 299 (1996). The legitimacy of consumer protection efforts is not universally accepted, however. See, e.g., Hyman, supra note 85, at 447 (arguing that consumer protection strategies targeting managed care are fundamentally ill-conceived, and merely exacerbate problems in the health care market); John K. Iglehart, Physicians As Agents of Social Control: The Thoughts of Victor Fuchs, HEALTH AFFAIRS, Jan.-Feb. 1998, at 96 (quoting Fuchs as saying that "[a] lot of today's consumerism is being pushed by professional consumerists, consumer advocates, and the media, rather than by any real demand on the part of ordinary people"). For an interesting analysis of the issue, see Russell Korobkin, The Efficiency of Managed Care "Patient Protection" Laws: Incomplete Contracts, Bounded Rationality, and Market Failure, 85 CORNELL L. REV. (forthcoming 1999) (arguing that patient protection legislation may, in some circumstances, increase efficiency).
520. See Cerminara, supra note 131 (proposing use of class action suits as a way to empower MCO patients). One popular model centers on providing "medical advocates" to help patients navigate within their HMOs. See, e.g., Annas, Patients' Rights, supra note 282, at 698 (proposing that patients have an independent patient-rights advocate to help assert their rights within the plan); Nancy K. Kubasek, Legislative Approaches to Reducing the Hegemony of the Priestly Model of Medicine, 4 MICH. J. GENDER & L. 375, 421-22 (1997) (calling for hospitals to provide advocates for all women scheduled to give birth); Maxwell J. Mehlman, Medical Advocates: A Call for a New Profession, 1 WIDENER L. SYMP. J. 299 (1996). The legitimacy of consumer protection efforts is not universally accepted, however. See, e.g., Hyman, supra note 85, at 447 (arguing that consumer protection strategies targeting managed care are fundamentally ill-conceived, and merely exacerbate problems in the health care market); John K. Iglehart, Physicians As Agents of Social Control: The Thoughts of Victor Fuchs, HEALTH AFFAIRS, Jan.-Feb. 1998, at 96 (quoting Fuchs as saying that "[a] lot of today's consumerism is being pushed by professional consumerists, consumer advocates, and the media, rather than by any real demand on the part of ordinary people"). For an interesting analysis of the issue, see Russell Korobkin, The Efficiency of Managed Care "Patient Protection" Laws: Incomplete Contracts, Bounded Rationality, and Market Failure, 85 CORNELL L. REV. (forthcoming 1999) (arguing that patient protection legislation may, in some circumstances, increase efficiency).
521. See Cerminara, supra note 131 (proposing use of class action suits as a way to empower MCO patients). One popular model centers on providing "medical advocates" to help patients navigate within their HMOs. See, e.g., Annas, Patients' Rights, supra note 282, at 698 (proposing that patients have an independent patient-rights advocate to help assert their rights within the plan); Nancy K. Kubasek, Legislative Approaches to Reducing the Hegemony of the Priestly Model of Medicine, 4 MICH. J. GENDER & L. 375, 421-22 (1997) (calling for hospitals to provide advocates for all women scheduled to give birth); Maxwell J. Mehlman, Medical Advocates: A Call for a New Profession, 1 WIDENER L. SYMP. J. 299 (1996). The legitimacy of consumer protection efforts is not universally accepted, however. See, e.g., Hyman, supra note 85, at 447 (arguing that consumer protection strategies targeting managed care are fundamentally ill-conceived, and merely exacerbate problems in the health care market); John K. Iglehart, Physicians As Agents of Social Control: The Thoughts of Victor Fuchs, HEALTH AFFAIRS, Jan.-Feb. 1998, at 96 (quoting Fuchs as saying that "[a] lot of today's consumerism is being pushed by professional consumerists, consumer advocates, and the media, rather than by any real demand on the part of ordinary people"). For an interesting analysis of the issue, see Russell Korobkin, The Efficiency of Managed Care "Patient Protection" Laws: Incomplete Contracts, Bounded Rationality, and Market Failure, 85 CORNELL L. REV. (forthcoming 1999) (arguing that patient protection legislation may, in some circumstances, increase efficiency).
522. See Cerminara, supra note 131 (proposing use of class action suits as a way to empower MCO patients). One popular model centers on providing "medical advocates" to help patients navigate within their HMOs. See, e.g., Annas, Patients' Rights, supra note 282, at 698 (proposing that patients have an independent patient-rights advocate to help assert their rights within the plan); Nancy K. Kubasek, Legislative Approaches to Reducing the Hegemony of the Priestly Model of Medicine, 4 MICH. J. GENDER & L. 375, 421-22 (1997) (calling for hospitals to provide advocates for all women scheduled to give birth); Maxwell J. Mehlman, Medical Advocates: A Call for a New Profession, 1 WIDENER L. SYMP. J. 299 (1996). The legitimacy of consumer protection efforts is not universally accepted, however. See, e.g., Hyman, supra note 85, at 447 (arguing that consumer protection strategies targeting managed care are fundamentally ill-conceived, and merely exacerbate problems in the health care market); John K. Iglehart, Physicians As Agents of Social Control: The Thoughts of Victor Fuchs, HEALTH AFFAIRS, Jan.-Feb. 1998, at 96 (quoting Fuchs as saying that "[a] lot of today's consumerism is being pushed by professional consumerists, consumer advocates, and the media, rather than by any real demand on the part of ordinary people"). For an interesting analysis of the issue, see Russell Korobkin, The Efficiency of Managed Care "Patient Protection" Laws: Incomplete Contracts, Bounded Rationality, and Market Failure, 85 CORNELL L. REV. (forthcoming 1999) (arguing that patient protection legislation may, in some circumstances, increase efficiency).
523. See supra note 36 and accompanying text; see also Thomas H. Boyd, Cost Containment and the Physician's Fiduciary Duty to the Patient, 39 DEPAUL L. REV. 131, 147-52 (1989) (describing contract proposals). To the extent an approach that truly mirrored the expectations of the parties regarding information disclosure would be more protective of patients than the professional standard of disclosure used in many jurisdictions, this would seem to provide support for a liberal, patient-centered contract approach as well. Cf. Shultz, supra note 155, at 249 n.1 19 (noting the link between the debate over disclosure standards and the debate between contract and tort approaches).
524. See Epstein, supra note 4, at 127 (arguing that existing informed consent doctrine "is forever at war with the mutual expectations of the parties"). Of course, to the extent that most patients receive their health care as an employment benefit, one wonders exactly whose "expectations" would be enforced: those of the individual patient, or those of the employer who negotiates the group contract with the health plan. See Cerminara, supra note 131, at 16 ("To the extent that employers provide health care benefits, that patients will ever wield consumer power in the eyes of health care corporations is questionable because their employers negotiate their health care coverage for them.").
525. As Professor Peter Schuck has noted, however, the informed consent obligations placed on physicians already outweigh those placed on product sellers. See Schuck, supra note 4, at 913-24.
526. See MORREIM, BALANCING ACT, supra note 66, at 139 ("In matters of health, and of health care, it is time to expect competent patients to assume substantially greater responsibility.").
527. See Alexander Morgan Capron, Informed Consent in Catastrophic Disease Research and Treatment, 123 U. PA. L. REV. 340, 413-14 (1974) [hereinafter Capron, Informed Consent in Catastrophic Disease Research and Treatment] ("The mere relaying of information is not, in itself, more than a necessary precondition to the patient-subject's capacity to give informed consent . . . . '[I]nformation' and 'informed' are not equivalents.") (emphasis added).
528. See MORREIM, BALANCING ACT, supra note 66, at 134-38 (describing problems with "autonomy-sans-responsibility"); see also id. at 141-42 (describing patient's obligation to choose plan). Elsewhere, Morreim argues in favor of mechanisms that involve patients, as well as physicians, in cost containment activities. Cf. Morreim, Diverse and Perverse Incentives, supra note 69, at 105-18 (describing methods of "bringing patients into" cost containment incentives).
529. See MORREIM, BALANCING ACT, supra note 66, at 134-38 (describing problems with "autonomy-sans-responsibility"); see also id. at 141-42 (describing patient's obligation to choose plan). Elsewhere, Morreim argues in favor of mechanisms that involve patients, as well as physicians, in cost containment activities. Cf. Morreim, Diverse and Perverse Incentives, supra note 69, at 105-18 (describing methods of "bringing patients into" cost containment incentives).
530. See MORREIM, BALANCING ACT, supra note 66, at 134-38 (describing problems with "autonomy-sans-responsibility"); see also id. at 141-42 (describing patient's obligation to choose plan). Elsewhere, Morreim argues in favor of mechanisms that involve patients, as well as physicians, in cost containment activities. Cf. Morreim, Diverse and Perverse Incentives, supra note 69, at 105-18 (describing methods of "bringing patients into" cost containment incentives).
531. "[T]he subscriber cannot possibly know about the ways in which the physician incentives created by an insurer or HMO can create conflicts between one's own interests and the physician's unless those incentives are openly disclosed." Morreim, Economic Disclosure and Economic Advocacy, supra note 2, at 311.
532. As Professor Susan Wolf notes, "the managed care context increases the range of information the physician should disclose and intensifies the need for her to do so." Wolf, Toward a Systemic Theory, supra note 51, at 1640.
533. See supra note 107, and accompanying text.
534. Hall, Informed Consent, supra note 1, at 517 & n.16.
535. See CEJA, Opinions on Practice Matters, § 8.13(2)(E), supra note 79, at 127. See also Annas, Patients' Rights, supra note 282, at 698 (proposing a "National Bill of Patients' Rights," which includes the right to know about all financial incentives and arrangements that might affect the patient's care); Bobinski, supra note 39, at 387 (arguing in favor of a bifurcated transaction bar/disclosure standard to address use of financial incentives); Furrow, supra note 71, at 469-73 (describing efforts to impose disclosure obligations); David Mechanic, Trust and Informed Consent to Rationing, 72 MILBANK Q. 217, 220 (1994) [hereinafter Trust and Informed Consent] (arguing that "potential enrollees should be told about the degree of constraint on their future medical care," including "financial arrangements used to influence physicians in the allocation of care"). One of the most thoughtful and extensive analyses of the disclosure issue can be found in the works of Professor E. Haavi Morreim, who argues that even in the absence of explicit regulatory authority mandating disclosure, such a duty is implicit in the doctrine of informed consent, contract law, and fiduciary law. See generally MORREIM, BALANCING ACT, supra note 66, at 105-12; Morreim, Diverse and Perverse Incentives, supra note 69, at 118-31; Morreim, Economic Disclosure and Economic Advocacy, supra note 2.
536. See CEJA, Opinions on Practice Matters, § 8.13(2)(E), supra note 79, at 127. See also Annas, Patients' Rights, supra note 282, at 698 (proposing a "National Bill of Patients' Rights," which includes the right to know about all financial incentives and arrangements that might affect the patient's care); Bobinski, supra note 39, at 387 (arguing in favor of a bifurcated transaction bar/disclosure standard to address use of financial incentives); Furrow, supra note 71, at 469-73 (describing efforts to impose disclosure obligations); David Mechanic, Trust and Informed Consent to Rationing, 72 MILBANK Q. 217, 220 (1994) [hereinafter Trust and Informed Consent] (arguing that "potential enrollees should be told about the degree of constraint on their future medical care," including "financial arrangements used to influence physicians in the allocation of care"). One of the most thoughtful and extensive analyses of the disclosure issue can be found in the works of Professor E. Haavi Morreim, who argues that even in the absence of explicit regulatory authority mandating disclosure, such a duty is implicit in the doctrine of informed consent, contract law, and fiduciary law. See generally MORREIM, BALANCING ACT, supra note 66, at 105-12; Morreim, Diverse and Perverse Incentives, supra note 69, at 118-31; Morreim, Economic Disclosure and Economic Advocacy, supra note 2.
537. See CEJA, Opinions on Practice Matters, § 8.13(2)(E), supra note 79, at 127. See also Annas, Patients' Rights, supra note 282, at 698 (proposing a "National Bill of Patients' Rights," which includes the right to know about all financial incentives and arrangements that might affect the patient's care); Bobinski, supra note 39, at 387 (arguing in favor of a bifurcated transaction bar/disclosure standard to address use of financial incentives); Furrow, supra note 71, at 469-73 (describing efforts to impose disclosure obligations); David Mechanic, Trust and Informed Consent to Rationing, 72 MILBANK Q. 217, 220 (1994) [hereinafter Trust and Informed Consent] (arguing that "potential enrollees should be told about the degree of constraint on their future medical care," including "financial arrangements used to influence physicians in the allocation of care"). One of the most thoughtful and extensive analyses of the disclosure issue can be found in the works of Professor E. Haavi Morreim, who argues that even in the absence of explicit regulatory authority mandating disclosure, such a duty is implicit in the doctrine of informed consent, contract law, and fiduciary law. See generally MORREIM, BALANCING ACT, supra note 66, at 105-12; Morreim, Diverse and Perverse Incentives, supra note 69, at 118-31; Morreim, Economic Disclosure and Economic Advocacy, supra note 2.
538. See CEJA, Opinions on Practice Matters, § 8.13(2)(E), supra note 79, at 127. See also Annas, Patients' Rights, supra note 282, at 698 (proposing a "National Bill of Patients' Rights," which includes the right to know about all financial incentives and arrangements that might affect the patient's care); Bobinski, supra note 39, at 387 (arguing in favor of a bifurcated transaction bar/disclosure standard to address use of financial incentives); Furrow, supra note 71, at 469-73 (describing efforts to impose disclosure obligations); David Mechanic, Trust and Informed Consent to Rationing, 72 MILBANK Q. 217, 220 (1994) [hereinafter Trust and Informed Consent] (arguing that "potential enrollees should be told about the degree of constraint on their future medical care," including "financial arrangements used to influence physicians in the allocation of care"). One of the most thoughtful and extensive analyses of the disclosure issue can be found in the works of Professor E. Haavi Morreim, who argues that even in the absence of explicit regulatory authority mandating disclosure, such a duty is implicit in the doctrine of informed consent, contract law, and fiduciary law. See generally MORREIM, BALANCING ACT, supra note 66, at 105-12; Morreim, Diverse and Perverse Incentives, supra note 69, at 118-31; Morreim, Economic Disclosure and Economic Advocacy, supra note 2.
539. See CEJA, Opinions on Practice Matters, § 8.13(2)(E), supra note 79, at 127. See also Annas, Patients' Rights, supra note 282, at 698 (proposing a "National Bill of Patients' Rights," which includes the right to know about all financial incentives and arrangements that might affect the patient's care); Bobinski, supra note 39, at 387 (arguing in favor of a bifurcated transaction bar/disclosure standard to address use of financial incentives); Furrow, supra note 71, at 469-73 (describing efforts to impose disclosure obligations); David Mechanic, Trust and Informed Consent to Rationing, 72 MILBANK Q. 217, 220 (1994) [hereinafter Trust and Informed Consent] (arguing that "potential enrollees should be told about the degree of constraint on their future medical care," including "financial arrangements used to influence physicians in the allocation of care"). One of the most thoughtful and extensive analyses of the disclosure issue can be found in the works of Professor E. Haavi Morreim, who argues that even in the absence of explicit regulatory authority mandating disclosure, such a duty is implicit in the doctrine of informed consent, contract law, and fiduciary law. See generally MORREIM, BALANCING ACT, supra note 66, at 105-12; Morreim, Diverse and Perverse Incentives, supra note 69, at 118-31; Morreim, Economic Disclosure and Economic Advocacy, supra note 2.
540. See CEJA, Opinions on Practice Matters, § 8.13(2)(E), supra note 79, at 127. See also Annas, Patients' Rights, supra note 282, at 698 (proposing a "National Bill of Patients' Rights," which includes the right to know about all financial incentives and arrangements that might affect the patient's care); Bobinski, supra note 39, at 387 (arguing in favor of a bifurcated transaction bar/disclosure standard to address use of financial incentives); Furrow, supra note 71, at 469-73 (describing efforts to impose disclosure obligations); David Mechanic, Trust and Informed Consent to Rationing, 72 MILBANK Q. 217, 220 (1994) [hereinafter Trust and Informed Consent] (arguing that "potential enrollees should be told about the degree of constraint on their future medical care," including "financial arrangements used to influence physicians in the allocation of care"). One of the most thoughtful and extensive analyses of the disclosure issue can be found in the works of Professor E. Haavi Morreim, who argues that even in the absence of explicit regulatory authority mandating disclosure, such a duty is implicit in the doctrine of informed consent, contract law, and fiduciary law. See generally MORREIM, BALANCING ACT, supra note 66, at 105-12; Morreim, Diverse and Perverse Incentives, supra note 69, at 118-31; Morreim, Economic Disclosure and Economic Advocacy, supra note 2.
541. See CEJA, Opinions on Practice Matters, § 8.13(2)(E), supra note 79, at 127. See also Annas, Patients' Rights, supra note 282, at 698 (proposing a "National Bill of Patients' Rights," which includes the right to know about all financial incentives and arrangements that might affect the patient's care); Bobinski, supra note 39, at 387 (arguing in favor of a bifurcated transaction bar/disclosure standard to address use of financial incentives); Furrow, supra note 71, at 469-73 (describing efforts to impose disclosure obligations); David Mechanic, Trust and Informed Consent to Rationing, 72 MILBANK Q. 217, 220 (1994) [hereinafter Trust and Informed Consent] (arguing that "potential enrollees should be told about the degree of constraint on their future medical care," including "financial arrangements used to influence physicians in the allocation of care"). One of the most thoughtful and extensive analyses of the disclosure issue can be found in the works of Professor E. Haavi Morreim, who argues that even in the absence of explicit regulatory authority mandating disclosure, such a duty is implicit in the doctrine of informed consent, contract law, and fiduciary law. See generally MORREIM, BALANCING ACT, supra note 66, at 105-12; Morreim, Diverse and Perverse Incentives, supra note 69, at 118-31; Morreim, Economic Disclosure and Economic Advocacy, supra note 2.
542. See Wolf, Toward a Systemic Theory, supra note 51, at 1658-62 (discussing types of information that should be conveyed to the patient, including how the physician handles the financial incentives imposed by the plan).
543. Regarding this last issue, Morreim notes that unless the patient understands the economic consequences of accepting treatment, it could be argued that there has been no meeting of the minds between the physician and patient, and hence no contractual agreement. See MORREIM, BALANCING ACT, supra note 66, at 105; Morreim, Economic Disclosure and Economic Advocacy, supra note 2, at 293. For a discussion of these and other issues arising from the implementation of disclosure requirements, see, for example, Hall, Informed Consent, supra note 1, at 524-26 (discussing the issue of whether disclosure should be done by the HMO or the physician); McGraw, supra note 130, at 1836-47 (discussing timing and whether disclosure should be performed by physicians or HMOs); Mechanic & Schlesinger, supra note 82, at 1696 (arguing that financial disclosures must be made by the health plan); Morreim, Diverse and Perverse Incentives, supra note 69, at 118-31; Morreim, Economic Disclosure and Economic Advocacy, supra note 2 (engaging in a general discussion).
544. Regarding this last issue, Morreim notes that unless the patient understands the economic consequences of accepting treatment, it could be argued that there has been no meeting of the minds between the physician and patient, and hence no contractual agreement. See MORREIM, BALANCING ACT, supra note 66, at 105; Morreim, Economic Disclosure and Economic Advocacy, supra note 2, at 293. For a discussion of these and other issues arising from the implementation of disclosure requirements, see, for example, Hall, Informed Consent, supra note 1, at 524-26 (discussing the issue of whether disclosure should be done by the HMO or the physician); McGraw, supra note 130, at 1836-47 (discussing timing and whether disclosure should be performed by physicians or HMOs); Mechanic & Schlesinger, supra note 82, at 1696 (arguing that financial disclosures must be made by the health plan); Morreim, Diverse and Perverse Incentives, supra note 69, at 118-31; Morreim, Economic Disclosure and Economic Advocacy, supra note 2 (engaging in a general discussion).
545. Regarding this last issue, Morreim notes that unless the patient understands the economic consequences of accepting treatment, it could be argued that there has been no meeting of the minds between the physician and patient, and hence no contractual agreement. See MORREIM, BALANCING ACT, supra note 66, at 105; Morreim, Economic Disclosure and Economic Advocacy, supra note 2, at 293. For a discussion of these and other issues arising from the implementation of disclosure requirements, see, for example, Hall, Informed Consent, supra note 1, at 524-26 (discussing the issue of whether disclosure should be done by the HMO or the physician); McGraw, supra note 130, at 1836-47 (discussing timing and whether disclosure should be performed by physicians or HMOs); Mechanic & Schlesinger, supra note 82, at 1696 (arguing that financial disclosures must be made by the health plan); Morreim, Diverse and Perverse Incentives, supra note 69, at 118-31; Morreim, Economic Disclosure and Economic Advocacy, supra note 2 (engaging in a general discussion).
546. Regarding this last issue, Morreim notes that unless the patient understands the economic consequences of accepting treatment, it could be argued that there has been no meeting of the minds between the physician and patient, and hence no contractual agreement. See MORREIM, BALANCING ACT, supra note 66, at 105; Morreim, Economic Disclosure and Economic Advocacy, supra note 2, at 293. For a discussion of these and other issues arising from the implementation of disclosure requirements, see, for example, Hall, Informed Consent, supra note 1, at 524-26 (discussing the issue of whether disclosure should be done by the HMO or the physician); McGraw, supra note 130, at 1836-47 (discussing timing and
547. Regarding this last issue, Morreim notes that unless the patient understands the economic consequences of accepting treatment, it could be argued that there has been no meeting of the minds between the physician and patient, and hence no contractual agreement. See MORREIM, BALANCING ACT, supra note 66, at 105; Morreim, Economic Disclosure and Economic Advocacy, supra note 2, at 293. For a discussion of these and other issues arising from the implementation of disclosure requirements, see, for example, Hall, Informed Consent, supra note 1, at 524-26 (discussing the issue of whether disclosure should be done by the HMO or the physician); McGraw, supra note 130, at 1836-47 (discussing timing and whether disclosure should be performed by physicians or HMOs); Mechanic & Schlesinger, supra note 82, at 1696 (arguing that financial disclosures must be made by the health plan); Morreim, Diverse and Perverse Incentives, supra note 69, at 118-31; Morreim, Economic Disclosure and Economic Advocacy, supra note 2 (engaging in a general discussion).
548. Regarding this last issue, Morreim notes that unless the patient understands the economic consequences of accepting treatment, it could be argued that there has been no meeting of the minds between the physician and patient, and hence no contractual agreement. See MORREIM, BALANCING ACT, supra note 66, at 105; Morreim, Economic Disclosure and Economic Advocacy, supra note 2, at 293. For a discussion of these and other issues arising from the implementation of disclosure requirements, see, for example, Hall, Informed Consent, supra note 1, at 524-26 (discussing the issue of whether disclosure should be done by the HMO or the physician); McGraw, supra note 130, at 1836-47 (discussing timing and whether disclosure should be performed by physicians or HMOs); Mechanic & Schlesinger, supra note 82, at 1696 (arguing that financial disclosures must be made by the health plan); Morreim, Diverse and Perverse Incentives, supra note 69, at 118-31; Morreim, Economic Disclosure and Economic Advocacy, supra note 2 (engaging in a general discussion).
549. Martin Gunderson, Eliminating Conflicts of Interest in Managed Care Organizations Through Disclosure and Consent, 25 J.L. MED. & ETHICS 192, 195 (1997). See also Schuck, supra note 4, at 956-59 (addressing the possibility of contracting for levels of informed consent). The validity of the contract approach depends in part on a long-standing theoretical debate regarding the nature of autonomy: is it a characteristic of persons, or of specific decisions they make? In particular, can a person make an autonomous decision to embark on a course of action that may restrict future choices, thus limiting future exercises of autonomy - such as by enrolling in a health care plan that places limits on the types of services that the patient will receive? The view that autonomy is "inalienable" is often attributed to Immanuel Kant, who argued that autonomy is a necessary precondition for being able to undertake the critical moral reflection required to act as a human being. See Arthur Kuflik, The Inalienability of Autonomy, 13 PHIL. & PUB. AFF. 271 (1984). For an opposing view, see Mark A. Hall, Rationing Health Care at the Bedside, 69 N.Y.U. L. REV. 693, 745-53 (1994) (hereinafter Hall, Rationing Health Care] (arguing that this view misconceives the nature of autonomy, which can embrace a freely made choice to limit one's future options).
550. Martin Gunderson, Eliminating Conflicts of Interest in Managed Care Organizations Through Disclosure and Consent, 25 J.L. MED. & ETHICS 192, 195 (1997). See also Schuck, supra note 4, at 956-59 (addressing the possibility of contracting for levels of informed consent). The validity of the contract approach depends in part on a long-standing theoretical debate regarding the nature of autonomy: is it a characteristic of persons, or of specific decisions they make? In particular, can a person make an autonomous decision to embark on a course of action that may restrict future choices, thus limiting future exercises of autonomy - such as by enrolling in a health care plan that places limits on the types of services that the patient will receive? The view that autonomy is "inalienable" is often attributed to Immanuel Kant, who argued that autonomy is a necessary precondition for being able to undertake the critical moral reflection required to act as a human being. See Arthur Kuflik, The Inalienability of Autonomy, 13 PHIL. & PUB. AFF. 271 (1984). For an opposing view, see Mark A. Hall, Rationing Health Care at the Bedside, 69 N.Y.U. L. REV. 693, 745-53 (1994) (hereinafter Hall, Rationing Health Care] (arguing that this view misconceives the nature of autonomy, which can embrace a freely made choice to limit one's future options).
551. Martin Gunderson, Eliminating Conflicts of Interest in Managed Care Organizations Through Disclosure and Consent, 25 J.L. MED. & ETHICS 192, 195 (1997). See also Schuck, supra note 4, at 956-59 (addressing the possibility of contracting for levels of informed consent). The validity of the contract approach depends in part on a long-standing theoretical debate regarding the nature of autonomy: is it a characteristic of persons, or of specific decisions they make? In particular, can a person make an autonomous decision to embark on a course of action that may restrict future choices, thus limiting future exercises of autonomy - such as by enrolling in a health care plan that places limits on the types of services that the patient will receive? The view that autonomy is "inalienable" is often attributed to Immanuel Kant, who argued that autonomy is a necessary precondition for being able to undertake the critical moral reflection required to act as a human being. See Arthur Kuflik, The Inalienability of Autonomy, 13 PHIL. & PUB. AFF. 271 (1984). For an opposing view, see Mark A. Hall, Rationing Health Care at the Bedside, 69 N.Y.U. L. REV. 693, 745-53 (1994) (hereinafter Hall, Rationing Health Care] (arguing that this view misconceives the nature of autonomy, which can embrace a freely made choice to limit one's future options).
552. Martin Gunderson, Eliminating Conflicts of Interest in Managed Care Organizations Through Disclosure and Consent, 25 J.L. MED. & ETHICS 192, 195 (1997). See also Schuck, supra note 4, at 956-59 (addressing the possibility of contracting for levels of informed consent). The validity of the contract approach depends in part on a long-standing theoretical debate regarding the nature of autonomy: is it a characteristic of persons, or of specific decisions they make? In particular, can a person make an autonomous decision to embark on a course of action that may restrict future choices, thus limiting future exercises of autonomy - such as by enrolling in a health care plan that places limits on the types of services that the patient will receive? The view that autonomy is "inalienable" is often attributed to Immanuel Kant, who argued that autonomy is a necessary precondition for being able to undertake the critical moral reflection required to act as a human being. See Arthur Kuflik, The Inalienability of Autonomy, 13 PHIL. & PUB. AFF. 271 (1984). For an opposing view, see Mark A. Hall, Rationing Health Care at the Bedside, 69 N.Y.U. L. REV. 693, 745-53 (1994) (hereinafter Hall, Rationing Health Care] (arguing that this view misconceives the nature of autonomy, which can embrace a freely made choice to limit one's future options).
553. Martin Gunderson, Eliminating Conflicts of Interest in Managed Care Organizations Through Disclosure and Consent, 25 J.L. MED. & ETHICS 192, 195 (1997). See also Schuck, supra note 4, at 956-59 (addressing the possibility of contracting for levels of informed consent). The validity of the contract approach depends in part on a long-standing theoretical debate regarding the nature of autonomy: is it a characteristic of persons, or of specific decisions they make? In particular, can a person make an autonomous decision to embark on a course of action that may restrict future choices, thus limiting future exercises of autonomy - such as by enrolling in a health care plan that places limits on the types of services that the patient will receive? The view that autonomy is "inalienable" is often attributed to Immanuel Kant, who argued that autonomy is a necessary precondition for being able to undertake the critical moral reflection required to act as a human being. See Arthur Kuflik, The Inalienability of Autonomy, 13 PHIL. & PUB. AFF. 271 (1984). For an opposing view, see Mark A. Hall, Rationing Health Care at the Bedside, 69 N.Y.U. L. REV. 693, 745-53 (1994) (hereinafter Hall, Rationing Health Care] (arguing that this view misconceives the nature of autonomy, which can embrace a freely made choice to limit one's future options).
554. Supra note 1. For earlier versions of Hall's proposal, see HALL, MAKING MEDICAL SPENDING DECISIONS, supra note 59, at 193-239; Hall, Rationing Decisions, supra note 141; Hall, Rationing Health Care, supra note 297. In a recent article, Professor Hall has begun to address the issue of what ethical guidelines should guide physicians engaged in such "bedside" rationing. See Mark A. Hall & Robert A. Berenson, The Ethics of Managed Care: A Dose of Realism, 28 CUMB. L. REV. 287 (1998). For reviews of MAKING MEDICAL SPENDING DECISIONS, see Agrawal, supra note 137; Timothy Stoltzfus Jost, Making Medical Spending Decisions: The Law, Ethics, and Economics of Rationing Mechanisms, by Mark A. Hall, 23 J. HEALTH POL., POL'Y & L. 861 (1998) (reviewing HALL, MAKING MEDICAL SPENDING DECISIONS, supra note 59).
555. Supra note 1. For earlier versions of Hall's proposal, see HALL, MAKING MEDICAL SPENDING DECISIONS, supra note 59, at 193-239; Hall, Rationing Decisions, supra note 141; Hall, Rationing Health Care, supra note 297. In a recent article, Professor Hall has begun to address the issue of what ethical guidelines should guide physicians engaged in such "bedside" rationing. See Mark A. Hall & Robert A. Berenson, The Ethics of Managed Care: A Dose of Realism, 28 CUMB. L. REV. 287 (1998). For reviews of MAKING MEDICAL SPENDING DECISIONS, see Agrawal, supra note 137; Timothy Stoltzfus Jost, Making Medical Spending Decisions: The Law, Ethics, and Economics of Rationing Mechanisms, by Mark A. Hall, 23 J. HEALTH POL., POL'Y & L. 861 (1998) (reviewing HALL, MAKING MEDICAL SPENDING DECISIONS, supra note 59).
556. Supra note 1. For earlier versions of Hall's proposal, see HALL, MAKING MEDICAL SPENDING DECISIONS, supra note 59, at 193-239; Hall, Rationing Decisions, supra note 141; Hall, Rationing Health Care, supra note 297. In a recent article, Professor Hall has begun to address the issue of what ethical guidelines should guide physicians engaged in such "bedside" rationing. See Mark A. Hall & Robert A. Berenson, The Ethics of Managed Care: A Dose of Realism, 28 CUMB. L. REV. 287 (1998). For reviews of MAKING MEDICAL SPENDING DECISIONS, see Agrawal, supra note 137; Timothy Stoltzfus Jost, Making Medical Spending Decisions: The Law, Ethics, and Economics of Rationing Mechanisms, by Mark A. Hall, 23 J. HEALTH POL., POL'Y & L. 861 (1998) (reviewing HALL, MAKING MEDICAL SPENDING DECISIONS, supra note 59).
557. Supra note 1. For earlier versions of Hall's proposal, see HALL, MAKING MEDICAL SPENDING DECISIONS, supra note 59, at 193-239; Hall, Rationing Decisions, supra note 141; Hall, Rationing Health Care, supra note 297. In a recent article, Professor Hall has begun to address the issue of what ethical guidelines should guide physicians engaged in such "bedside" rationing. See Mark A. Hall & Robert A. Berenson, The Ethics of Managed Care: A Dose of Realism, 28 CUMB. L. REV. 287 (1998). For reviews of MAKING MEDICAL SPENDING DECISIONS, see Agrawal, supra note 137; Timothy Stoltzfus Jost, Making Medical Spending Decisions: The Law, Ethics, and Economics of Rationing Mechanisms, by Mark A. Hall, 23 J. HEALTH POL., POL'Y & L. 861 (1998) (reviewing HALL, MAKING MEDICAL SPENDING DECISIONS, supra note 59).
558. Supra note 1. For earlier versions of Hall's proposal, see HALL, MAKING MEDICAL SPENDING DECISIONS, supra note 59, at 193-239; Hall, Rationing Decisions, supra note 141; Hall, Rationing Health Care, supra note 297. In a recent article, Professor Hall has begun to address the issue of what ethical guidelines should guide physicians engaged in such "bedside" rationing. See Mark A. Hall & Robert A. Berenson, The Ethics of Managed Care: A Dose of Realism, 28 CUMB. L. REV. 287 (1998). For reviews of MAKING MEDICAL SPENDING DECISIONS, see Agrawal, supra note 137; Timothy Stoltzfus Jost, Making Medical Spending Decisions: The Law, Ethics, and Economics of Rationing Mechanisms, by Mark A. Hall, 23 J. HEALTH POL., POL'Y & L. 861 (1998) (reviewing HALL, MAKING MEDICAL SPENDING DECISIONS, supra note 59).
559. Supra note 1. For earlier versions of Hall's proposal, see HALL, MAKING MEDICAL SPENDING DECISIONS, supra note 59, at 193-239; Hall, Rationing Decisions, supra note 141; Hall, Rationing Health Care, supra note 297. In a recent article, Professor Hall has begun to address the issue of what ethical guidelines should guide physicians engaged in such "bedside" rationing. See Mark A. Hall & Robert A. Berenson, The Ethics of Managed Care: A Dose of Realism, 28 CUMB. L. REV. 287 (1998). For reviews of MAKING MEDICAL SPENDING DECISIONS, see Agrawal, supra note 137; Timothy Stoltzfus Jost, Making Medical Spending Decisions: The Law, Ethics, and Economics of Rationing Mechanisms, by Mark A. Hall, 23 J. HEALTH POL., POL'Y & L. 861 (1998) (reviewing HALL, MAKING MEDICAL SPENDING DECISIONS, supra note 59).
560. Supra note 1. For earlier versions of Hall's proposal, see HALL, MAKING MEDICAL SPENDING DECISIONS, supra note 59, at 193-239; Hall, Rationing Decisions, supra note 141; Hall, Rationing Health Care, supra note 297. In a recent article, Professor Hall has begun to address the issue of what ethical guidelines should guide physicians engaged in such "bedside" rationing. See Mark A. Hall & Robert A. Berenson, The Ethics of Managed Care: A Dose of Realism, 28 CUMB. L. REV. 287 (1998). For reviews of MAKING MEDICAL SPENDING DECISIONS, see Agrawal, supra note 137; Timothy Stoltzfus Jost, Making Medical Spending Decisions: The Law, Ethics, and Economics of Rationing Mechanisms, by Mark A. Hall, 23 J. HEALTH POL., POL'Y & L. 861 (1998) (reviewing HALL, MAKING MEDICAL SPENDING DECISIONS, supra note 59).
561. Supra note 1. For earlier versions of Hall's proposal, see HALL, MAKING MEDICAL SPENDING DECISIONS, supra note 59, at 193-239; Hall, Rationing Decisions, supra note 141; Hall, Rationing Health Care, supra note 297. In a recent article, Professor Hall has begun to address the issue of what ethical guidelines should guide physicians engaged in such "bedside" rationing. See Mark A. Hall & Robert A. Berenson, The Ethics of Managed Care: A Dose of Realism, 28 CUMB. L. REV. 287 (1998). For reviews of MAKING MEDICAL SPENDING DECISIONS, see Agrawal, supra note 137; Timothy Stoltzfus Jost, Making Medical Spending Decisions: The Law, Ethics, and Economics of Rationing Mechanisms, by Mark A. Hall, 23 J. HEALTH POL., POL'Y & L. 861 (1998) (reviewing HALL, MAKING MEDICAL SPENDING DECISIONS, supra note 59).
562. Hall, Informed Consent, supra note 1, at 520-21. For other research on plan disclosure practices, see Maren Anderson & Jonathan Dunn, DataWatch: Disclosure of Outpatient Prescription Drug Benefits in HMOs, HEALTH AFFAIRS, Summer 1991, at 141 (reporting that a survey of 20 HMOs found that while restrictions on drug benefits are common, plans do not fully explain the nature of such restrictions in their advertising materials).
563. Hall, Informed Consent, supra note 1, at 520-21. For other research on plan disclosure practices, see Maren Anderson & Jonathan Dunn, DataWatch: Disclosure of Outpatient Prescription Drug Benefits in HMOs, HEALTH AFFAIRS, Summer 1991, at 141 (reporting that a survey of 20 HMOs found that while restrictions on drug benefits are common, plans do not fully explain the nature of such restrictions in their advertising materials).
564. Hall, Informed Consent, supra note 1, at 534-45.
565. Id. at 545.
566. Id. at 545-51. With regard to the possible impact of "bedside" disclosures on medical necessity litigation, however, it would seem plausible that insurers could remedy the problem by redrafting their contracts to include more explicit exclusions, or to clarify the definition of "medical necessity". See Agrawal, supra note 137, at 1817-18 n.87 (arguing that insurance providers already find it difficult to enforce exclusions).
567. Id. at 545-51. With regard to the possible impact of "bedside" disclosures on medical necessity litigation, however, it would seem plausible that insurers could remedy the problem by redrafting their contracts to include more explicit exclusions, or to clarify the definition of "medical necessity". See Agrawal, supra note 137, at 1817-18 n.87 (arguing that insurance providers already find it difficult to enforce exclusions).
568. Hall, Informed Consent, supra note 1, at 551-56.
569. Id. at 556-57.
570. Id. at 557-59. Interestingly, one of the authors cited by Hall as supporting the concept of prior consent to health care rationing later disavowed Hall's reliance on his work. See Mechanic, Trust and Informed Consent, supra note 294, at 217.
571. Id. at 557-59. Interestingly, one of the authors cited by Hall as supporting the concept of prior consent to health care rationing later disavowed Hall's reliance on his work. See Mechanic, Trust and Informed Consent, supra note 294, at 217.
572. Hall, Informed Consent, supra note 1, at 559-63.
573. Id. at 562-66.
574. Id. at 566-69 (discussing and rejecting the argument that one cannot waive one's autonomy). At least one commentator has gone further, arguing that global disclosure at enrollment completely eliminates any conflict of interest posed by the use of financial incentives. See Gunderson, supra note 297. For an interesting approach to the conflict of interest issue, see Timothy S. Hall, Third-Party Payor Conflicts of Interest in Managed Care: A Proposal for Regulation Based on the Model Rules of Professional Conduct, 29 SETON HALL L. REV. 95 (1998).
575. Id. at 566-69 (discussing and rejecting the argument that one cannot waive one's autonomy). At least one commentator has gone further, arguing that global disclosure at enrollment completely eliminates any conflict of interest posed by the use of financial incentives. See Gunderson, supra note 297. For an interesting approach to the conflict of interest issue, see Timothy S. Hall, Third-Party Payor Conflicts of Interest in Managed Care: A Proposal for Regulation Based on the Model Rules of Professional Conduct, 29 SETON HALL L. REV. 95 (1998).
576. Id. at 566-69 (discussing and rejecting the argument that one cannot waive one's autonomy). At least one commentator has gone further, arguing that global disclosure at enrollment completely eliminates any conflict of interest posed by the use of financial incentives. See Gunderson, supra note 297. For an interesting approach to the conflict of interest issue, see Timothy S. Hall, Third-Party Payor Conflicts of Interest in Managed Care: A Proposal for Regulation Based on the Model Rules of Professional Conduct, 29 SETON HALL L. REV. 95 (1998).
577. Hall, Informed Consent, supra note 1, at 569. See also id. at 557 ("subsequent denials of marginally beneficial care"); id. at 562 ("everyday, small-ticket, and low-stakes decisions made at the margin on conventional treatment patterns"); id. at 565-67 ("routine and low visibility treatment refusals"); id. at 576 ("long-shot, expensive treatment options that are not covered"); see also Agrawal, supra note 137, at 1803-05 (noting Hall's "incremental" approach).
578. Hall, Informed Consent, supra note 1, at 569. See also id. at 557 ("subsequent denials of marginally beneficial care"); id. at 562 ("everyday, small-ticket, and low-stakes decisions made at the margin on conventional treatment patterns"); id. at 565-67 ("routine and low visibility treatment refusals"); id. at 576 ("long-shot, expensive treatment options that are not covered"); see also Agrawal, supra note 137, at 1803-05 (noting Hall's "incremental" approach).
579. Hall, Informed Consent, supra note 1, at 569. See also id. at 557 ("subsequent denials of marginally beneficial care"); id. at 562 ("everyday, small-ticket, and low-stakes decisions made at the margin on conventional treatment patterns"); id. at 565-67 ("routine and low visibility treatment refusals"); id. at 576 ("long-shot, expensive treatment options that are not covered"); see also Agrawal, supra note 137, at 1803-05 (noting Hall's "incremental" approach).
580. Hall, Informed Consent, supra note 1, at 569. See also id. at 557 ("subsequent denials of marginally beneficial care"); id. at 562 ("everyday, small-ticket, and low-stakes decisions made at the margin on conventional treatment patterns"); id. at 565-67 ("routine and low visibility treatment refusals"); id. at 576 ("long-shot, expensive treatment options that are not covered"); see also Agrawal, supra note 137, at 1803-05 (noting Hall's "incremental" approach).
581. Hall, Informed Consent, supra note 1, at 569. See also id. at 557 ("subsequent denials of marginally beneficial care"); id. at 562 ("everyday, small-ticket, and low-stakes decisions made at the margin on conventional treatment patterns"); id. at 565-67 ("routine and low visibility treatment refusals"); id. at 576 ("long-shot, expensive treatment options that are not covered"); see also Agrawal, supra note 137, at 1803-05 (noting Hall's "incremental" approach).
582. Hall, Informed Consent, supra note 1, at 569. See also id. at 557 ("subsequent denials of marginally beneficial care"); id. at 562 ("everyday, small-ticket, and low-stakes decisions made at the margin on conventional treatment patterns"); id. at 565-67 ("routine and low visibility treatment refusals"); id. at 576 ("long-shot, expensive treatment options that are not covered"); see also Agrawal, supra note 137, at 1803-05 (noting Hall's "incremental" approach).
583. Hall, Informed Consent, supra note 1, at 584-85 (citing Shuck, supra note 4, at 954, for the idea that informed consent should be reconceptualized as a series of doctrines specific to treatment contexts and patients' informational needs).
584. Hall, Informed Consent, supra note 1, at 584-85 (citing Shuck, supra note 4, at 954, for the idea that informed consent should be reconceptualized as a series of doctrines specific to treatment contexts and patients' informational needs).
585. Id. at 576-81. See Gunderson, supra note 297, at 197 (arguing that choices among plans must be preserved by regulation).
586. See Blendon et al., supra note 75, at 90 (stating that 41% of Americans in a study reported that they did not have a choice of more than one insurance plan); Mehlman, The Patient-Physician Relationship, supra note 128, at 370-73 (describing patients' lack of choice); Wolf, Toward a Systemic Theory, supra note 51, at 1656 (arguing that even where an employer offers multiple plans, the employee has "restricted his or her range of subscription options" by accepting the job). One recent study concluded that lack of choice has been a major factor in fueling the "backlash" against managed care, and that providing even a small amount of choice might go a long way towards restoring the public's confidence. Atul A. Gawande et al., Does Dissatisfaction with Health Plans Stem From Having No Choice?, HEALTH AFFAIRS, Sept.-Oct. 1998, at 184.
587. See Blendon et al., supra note 75, at 90 (stating that 41% of Americans in a study reported that they did not have a choice of more than one insurance plan); Mehlman, The Patient-Physician Relationship, supra note 128, at 370-73 (describing patients' lack of choice); Wolf, Toward a Systemic Theory, supra note 51, at 1656 (arguing that even where an employer offers multiple plans, the employee has "restricted his or her range of subscription options" by accepting the job). One recent study concluded that lack of choice has been a major factor in fueling the "backlash" against managed care, and that providing even a small amount of choice might go a long way towards restoring the public's confidence. Atul A. Gawande et al., Does Dissatisfaction with Health Plans Stem From Having No Choice?, HEALTH AFFAIRS, Sept.-Oct. 1998, at 184.
588. See Blendon et al., supra note 75, at 90 (stating that 41% of Americans in a study reported that they did not have a choice of more than one insurance plan); Mehlman, The Patient-Physician Relationship, supra note 128, at 370-73 (describing patients' lack of choice); Wolf, Toward a Systemic Theory, supra note 51, at 1656 (arguing that even where an employer offers multiple plans, the employee has "restricted his or her range of subscription options" by accepting the job). One recent study concluded that lack of choice has been a major factor in fueling the "backlash" against managed care, and that providing even a small amount of choice might go a long way towards restoring the public's confidence. Atul A. Gawande et al., Does Dissatisfaction with Health Plans Stem From Having No Choice?, HEALTH AFFAIRS, Sept.-Oct. 1998, at 184.
589. See Blendon et al., supra note 75, at 90 (stating that 41% of Americans in a study reported that they did not have a choice of more than one insurance plan); Mehlman, The Patient-Physician Relationship, supra note 128, at 370-73 (describing patients' lack of choice); Wolf, Toward a Systemic Theory, supra note 51, at 1656 (arguing that even where an employer offers multiple plans, the employee has "restricted his or her range of subscription options" by accepting the job). One recent study concluded that lack of choice has been a major factor in fueling the "backlash" against managed care, and that providing even a small amount of choice might go a long way towards restoring the public's confidence. Atul A. Gawande et al., Does Dissatisfaction with Health Plans Stem From Having No Choice?, HEALTH AFFAIRS, Sept.-Oct. 1998, at 184.
590. As Professor Susan Wolf notes, "[b]y the time the patient gets to the treatment decision, a great deal may have been decided without the patient even knowing it." Wolf, Toward a Systemic Theory, supra note 51, at 1655. See Hall, Informed Consent, supra note 1, at 576-81. In fact, from a competitive market perspective, it may be unrealistic to expect a health plan to provide such information. A true recitation of the financial incentives used by the plan, and all their potential effects on care, is unlikely to instill confidence in a potential enrollee. Therefore, unless disclosure were required of all plans, there would be little advantage to any particular plan volunteering potentially damaging information. Cf. Wolf, Toward a Systemic Theory, supra, at 1666-67 (noting that employers who are worried about patient satisfaction actually have an "incentive to install a plan coupling rationing with nondisclosure of treatments not covered by the plan").
591. As Professor Susan Wolf notes, "[b]y the time the patient gets to the treatment decision, a great deal may have been decided without the patient even knowing it." Wolf, Toward a Systemic Theory, supra note 51, at 1655. See Hall, Informed Consent, supra note 1, at 576-81. In fact, from a competitive market perspective, it may be unrealistic to expect a health plan to provide such information. A true recitation of the financial incentives used by the plan, and all their potential effects on care, is unlikely to instill confidence in a potential enrollee. Therefore, unless disclosure were required of all plans, there would be little advantage to any particular plan volunteering potentially damaging information. Cf. Wolf, Toward a Systemic Theory, supra, at 1666-67 (noting that employers who are worried about patient satisfaction actually have an "incentive to install a plan coupling rationing with nondisclosure of treatments not covered by the plan").
592. As Professor Susan Wolf notes, "[b]y the time the patient gets to the treatment decision, a great deal may have been decided without the patient even knowing it." Wolf, Toward a Systemic Theory, supra note 51, at 1655. See Hall, Informed Consent, supra note 1, at 576-81. In fact, from a competitive market perspective, it may be unrealistic to expect a health plan to provide such information. A true recitation of the financial incentives used by the plan, and all their potential effects on care, is unlikely to instill confidence in a potential enrollee. Therefore, unless disclosure were required of all plans, there would be little advantage to any particular plan volunteering potentially damaging information. Cf. Wolf, Toward a Systemic Theory, supra, at 1666-67 (noting that employers who are worried about patient satisfaction actually have an "incentive to install a plan coupling rationing with nondisclosure of treatments not covered by the plan").
593. "In order for the system to function effectively, the participants must have access to information upon which to make rational decisions. Artificial barriers to consumer choice impede the efficient functioning of the market process." Blumstein, supra note 59, at 1348.
594. Mark Hochhauser, Letters: Understanding Managed Care, HEALTH AFFAIRS, Sept.-Oct. 1997. The author recalls a similar example from her days in law practice: after an extended debate and perusal of the materials received from our own firm's health care plan, two partners and an associate in the health department (with more than 20 years' combined health law expertise) were unable to determine how the plan would reimburse a particular category of drugs. Could the average health care "consumer" do any better?
595. Recent studies confirm that consumers have difficulty understanding health information. See J.H. Hibbard & J.J. Jewett, Will Quality Report Cards Help Consumers?, HEALTH AFFAIRS, May-June 1997, at 218; S.L. Isaacs, Consumers' Information Needs: Results of a National Survey, HEALTH AFFAIRS, Winter 1996, at 31. See also supra notes 42-44 (describing the problems patients have in comprehending information provided as part of informed consent).
596. Recent studies confirm that consumers have difficulty understanding health information. See J.H. Hibbard & J.J. Jewett, Will Quality Report Cards Help Consumers?, HEALTH AFFAIRS, May-June 1997, at 218; S.L. Isaacs, Consumers' Information Needs: Results of a National Survey, HEALTH AFFAIRS, Winter 1996, at 31. See also supra notes 42-44 (describing the problems patients have in comprehending information provided as part of informed consent).
597. See Twerski & Cohen, supra note 182, at 626-48 (reviewing psychological literature).
598. "Unless they are already ill, however, most people are unable to predict what services they will need - a fact that undermines meaningful choice among policies with different exclusions." Rodwin, Conflicts In Managed Care, supra note 146, at 605.
599. Hall, Informed Consent, supra note 1, at 570-71. But see Wolf, Toward a Systemic Theory, supra note 51, at 1680-81 (suggesting that problem "may be alleviated to a certain extent through multiple disclosures at different points in time").
600. Hall, Informed Consent, supra note 1, at 570-71. But see Wolf, Toward a Systemic Theory, supra note 51, at 1680-81 (suggesting that problem "may be alleviated to a certain extent through multiple disclosures at different points in time").
601. Mehlman, supra note 36, at 374-88; Wolf, Toward a Systemic Theory, supra note 51, at 1672. But see Schuck, supra note 4, at 928-31 (arguing that the informational disparity between health care providers and patients is not much greater than between product sellers and purchasers, and does not require the current level of patient protection). For general discussion of information failure and disclosurebased consumer protections, see, for example., John S. Applegate, The Perils of Unreasonable Risk: Information, Regulatory Policy, and Toxic Substances Control, 91 COLUM. L. REV. 261, 298-300 (1991) (describing information failure in the toxic harm context); John M. Church, A Market Solution to Green Marketing: Some Lessons from the Economics of Information, 79 MINN. L. REV. 245, 271-76 (1994) (explaining a basic description of the problem); William M. Sage, Mandatory Public Disclosure in Managed Care: Lessons from the Securities Industry, 1997 A.B.A. SEC. HEALTH LAW REP. 99, 102-03, 114-16 (discussing advantages and disadvantages of securities model); Alan Schwartz & Louis L. Wilde, Imperfect Information in Markets for Contact Terms: The Examples of Warranties and Security Interests, 69 VA. L. REV. 1387 (1983) (describing search difficulties, and arguing that government regulation does not sufficiently address the problems).
602. Mehlman, supra note 36, at 374-88; Wolf, Toward a Systemic Theory, supra note 51, at 1672. But see Schuck, supra note 4, at 928-31 (arguing that the informational disparity between health care providers and patients is not much greater than between product sellers and purchasers, and does not require the current level of patient protection). For general discussion of information failure and disclosurebased consumer protections, see, for example., John S. Applegate, The Perils of Unreasonable Risk: Information, Regulatory Policy, and Toxic Substances Control, 91 COLUM. L. REV. 261, 298-300 (1991) (describing information failure in the toxic harm context); John M. Church, A Market Solution to Green Marketing: Some Lessons from the Economics of Information, 79 MINN. L. REV. 245, 271-76 (1994) (explaining a basic description of the problem); William M. Sage, Mandatory Public Disclosure in Managed Care: Lessons from the Securities Industry, 1997 A.B.A. SEC. HEALTH LAW REP. 99, 102-03, 114-16 (discussing advantages and disadvantages of securities model); Alan Schwartz & Louis L. Wilde, Imperfect Information in Markets for Contact Terms: The Examples of Warranties and Security Interests, 69 VA. L. REV. 1387 (1983) (describing search difficulties, and arguing that government regulation does not sufficiently address the problems).
603. Mehlman, supra note 36, at 374-88; Wolf, Toward a Systemic Theory, supra note 51, at 1672. But see Schuck, supra note 4, at 928-31 (arguing that the informational disparity between health care providers and patients is not much greater than between product sellers and purchasers, and does not require the current level of patient protection). For general discussion of information failure and disclosurebased consumer protections, see, for example., John S. Applegate, The Perils of Unreasonable Risk: Information, Regulatory Policy, and Toxic Substances Control, 91 COLUM. L. REV. 261, 298-300 (1991) (describing information failure in the toxic harm context); John M. Church, A Market Solution to Green Marketing: Some Lessons from the Economics of Information, 79 MINN. L. REV. 245, 271-76 (1994) (explaining a basic description of the problem); William M. Sage, Mandatory Public Disclosure in Managed Care: Lessons from the Securities Industry, 1997 A.B.A. SEC. HEALTH LAW REP. 99, 102-03, 114-16 (discussing advantages and disadvantages of securities model); Alan Schwartz & Louis L. Wilde, Imperfect Information in Markets for Contact Terms: The Examples of Warranties and Security Interests, 69 VA. L. REV. 1387 (1983) (describing search difficulties, and arguing that government regulation does not sufficiently address the problems).
604. Mehlman, supra note 36, at 374-88; Wolf, Toward a Systemic Theory, supra note 51, at 1672. But see Schuck, supra note 4, at 928-31 (arguing that the informational disparity between health care providers and patients is not much greater than between product sellers and purchasers, and does not require the current level of patient protection). For general discussion of information failure and disclosurebased consumer protections, see, for example., John S. Applegate, The Perils of Unreasonable Risk: Information, Regulatory Policy, and Toxic Substances Control, 91 COLUM. L. REV. 261, 298-300 (1991) (describing information failure in the toxic harm context); John M. Church, A Market Solution to Green Marketing: Some Lessons from the Economics of Information, 79 MINN. L. REV. 245, 271-76 (1994) (explaining a basic description of the problem); William M. Sage, Mandatory Public Disclosure in Managed Care: Lessons from the Securities Industry, 1997 A.B.A. SEC. HEALTH LAW REP. 99, 102-03, 114-16 (discussing advantages and disadvantages of securities model); Alan Schwartz & Louis L. Wilde, Imperfect Information in Markets for Contact Terms: The Examples of Warranties and Security Interests, 69 VA. L. REV. 1387 (1983) (describing search difficulties, and arguing that government regulation does not sufficiently address the problems).
605. Mehlman, supra note 36, at 374-88; Wolf, Toward a Systemic Theory, supra note 51, at 1672. But see Schuck, supra note 4, at 928-31 (arguing that the informational disparity between health care providers and patients is not much greater than between product sellers and purchasers, and does not require the current level of patient protection). For general discussion of information failure and disclosurebased consumer protections, see, for example., John S. Applegate, The Perils of Unreasonable Risk: Information, Regulatory Policy, and Toxic Substances Control, 91 COLUM. L. REV. 261, 298-300 (1991) (describing information failure in the toxic harm context); John M. Church, A Market Solution to Green Marketing: Some Lessons from the Economics of Information, 79 MINN. L. REV. 245, 271-76 (1994) (explaining a basic description of the problem); William M. Sage, Mandatory Public Disclosure in Managed Care: Lessons from the Securities Industry, 1997 A.B.A. SEC. HEALTH LAW REP. 99, 102-03, 114-16 (discussing advantages and disadvantages of securities model); Alan Schwartz & Louis L. Wilde, Imperfect Information in Markets for Contact Terms: The Examples of Warranties and Security Interests, 69 VA. L. REV. 1387 (1983) (describing search difficulties, and arguing that government regulation does not sufficiently address the problems).
606. Mehlman, supra note 36, at 374-88; Wolf, Toward a Systemic Theory, supra note 51, at 1672. But see Schuck, supra note 4, at 928-31 (arguing that the informational disparity between health care providers and patients is not much greater than between product sellers and purchasers, and does not require the current level of patient protection). For general discussion of information failure and disclosurebased consumer protections, see, for example., John S. Applegate, The Perils of Unreasonable Risk: Information, Regulatory Policy, and Toxic Substances Control, 91 COLUM. L. REV. 261, 298-300 (1991) (describing information failure in the toxic harm context); John M. Church, A Market Solution to Green Marketing: Some Lessons from the Economics of Information, 79 MINN. L. REV. 245, 271-76 (1994) (explaining a basic description of the problem); William M. Sage, Mandatory Public Disclosure in Managed Care: Lessons from the Securities Industry, 1997 A.B.A. SEC. HEALTH LAW REP. 99, 102-03, 114-16 (discussing advantages and disadvantages of securities model); Alan Schwartz & Louis L. Wilde, Imperfect Information in Markets for Contact Terms: The Examples of Warranties and Security Interests, 69 VA. L. REV. 1387 (1983) (describing search difficulties, and arguing that government regulation does not sufficiently address the problems).
607. Mehlman, supra note 36, at 374-88; Wolf, Toward a Systemic Theory, supra note 51, at 1672. But see Schuck, supra note 4, at 928-31 (arguing that the informational disparity between health care providers and patients is not much greater than between product sellers and purchasers, and does not require the current level of patient protection). For general discussion of information failure and disclosurebased consumer protections, see, for example., John S. Applegate, The Perils of Unreasonable Risk: Information, Regulatory Policy, and Toxic Substances Control, 91 COLUM. L. REV. 261, 298-300 (1991) (describing information failure in the toxic harm context); John M. Church, A Market Solution to Green Marketing: Some Lessons from the Economics of Information, 79 MINN. L. REV. 245, 271-76 (1994) (explaining a basic description of the problem); William M. Sage, Mandatory Public Disclosure in Managed Care: Lessons from the Securities Industry, 1997 A.B.A. SEC. HEALTH LAW REP. 99, 102-03, 114-16 (discussing advantages and disadvantages of securities model); Alan Schwartz & Louis L. Wilde, Imperfect Information in Markets for Contact Terms: The Examples of Warranties and Security Interests, 69 VA. L. REV. 1387 (1983) (describing search difficulties, and arguing that government regulation does not sufficiently address the problems).
608. Timothy Stoltzfus Jost, Oversight of the Quality of Medical Care: Regulation, Management, or the Market?, 37 ARIZ. L. REV. 825, 850 (1995) [hereinafter Jost, Oversight of the Quality of Medical Care]. See Cerminara, supra note 131, at 18-19 (describing managed care patients'informational disadvantages).
609. Timothy Stoltzfus Jost, Oversight of the Quality of Medical Care: Regulation, Management, or the Market?, 37 ARIZ. L. REV. 825, 850 (1995) [hereinafter Jost, Oversight of the Quality of Medical Care]. See Cerminara, supra note 131, at 18-19 (describing managed care patients'informational disadvantages).
610. Jost, Oversight of the Quality of Medical Care, supra note 321, at 850-55. But see David M. Grether et al., The Irrelevance of Information Overload: An Analysis of Search and Disclosure, 59 So. CAL. L. REV. 277 (1986) (rejecting "information overload," and arguing that consumers instead "satisfice" when a large quantity of information is available).
611. Jost, Oversight of the Quality of Medical Care, supra note 321, at 850-55. But see David M. Grether et al., The Irrelevance of Information Overload: An Analysis of Search and Disclosure, 59 So. CAL. L. REV. 277 (1986) (rejecting "information overload," and arguing that consumers instead "satisfice" when a large quantity of information is available).
612. Hall, Informed Consent, supra note 1, at 572-73. See Gunderson, supra note 297, at 196 (arguing that while patients may not have perfect understanding of economic information, "[n]onetheless, they should certainly understand that physicians who are given financial incentives not to treat are more likely to refrain from treatment and that physicians who have a financial interest in ordering treatments are more likely to order the treatments").
613. Hall, Informed Consent, supra note 1, at 572-73. See Gunderson, supra note 297, at 196 (arguing that while patients may not have perfect understanding of economic information, "[n]onetheless, they should certainly understand that physicians who are given financial incentives not to treat are more likely to refrain from treatment and that physicians who have a financial interest in ordering treatments are more likely to order the treatments").
614. Hall, Informed Consent, supra note 1, at 572-74. Thus, Hall places his theory squarely within the "negative" consumer protection approach described above.
615. Partly for this reason, disclosure at multiple points in the patient-health care system interaction may be more realistic. See Wolf, Toward a Systemic Theory, supra note 51, at 1653, 1670-71.
616. It is true that new information sources, particularly computer-based products, have dramatically increased the level of medical information available to patients. See Frances H. Miller, Health Care Information Technology and Informed Consent: Computers and the Doctor-Patient Relationship, 31 IND. L. REV. 1019 (1998) (arguing that physicians should encourage patients to become knowledgeable users of health care information technology); Arti Rai, Reflective Choice in Health Care: Using Information Technology to Present Allocation Options, 25 AM. J.L. & MED. 7 (1999) (arguing that information technology can help consumers make choices among health plans with different allocation mechanisms); Arnold J. Rosoff, Informed Consent in the Electronic Age, 25 AM. J.L. & MED. 367 (1999) (discussing effect of new technology on physicians' traditional informed consent roles). Despite the availability of these new information sources, however, physicians remain patients' best sources for accurate information about treatment options. See Bob LaMendola, Internet Fever Risking a Cold Sore, CHI. TRIB., June 4, 1998, at 3 (reporting study finding that majority of pediatric medical web sites, including those run by academic medical centers, contained inaccurate or obsolete medical information).
617. It is true that new information sources, particularly computer-based products, have dramatically increased the level of medical information available to patients. See Frances H. Miller, Health Care Information Technology and Informed Consent: Computers and the Doctor-Patient Relationship, 31 IND. L. REV. 1019 (1998) (arguing that physicians should encourage patients to become knowledgeable users of health care information technology); Arti Rai, Reflective Choice in Health Care: Using Information Technology to Present Allocation Options, 25 AM. J.L. & MED. 7 (1999) (arguing that information technology can help consumers make choices among health plans with different allocation mechanisms); Arnold J. Rosoff, Informed Consent in the Electronic Age, 25 AM. J.L. & MED. 367 (1999) (discussing effect of new technology on physicians' traditional informed consent roles). Despite the availability of these new information sources, however, physicians remain patients' best sources for accurate information about treatment options. See Bob LaMendola, Internet Fever Risking a Cold Sore, CHI. TRIB., June 4, 1998, at 3 (reporting study finding that majority of pediatric medical web sites, including those run by academic medical centers, contained inaccurate or obsolete medical information).
618. It is true that new information sources, particularly computer-based products, have dramatically increased the level of medical information available to patients. See Frances H. Miller, Health Care Information Technology and Informed Consent: Computers and the Doctor-Patient Relationship, 31 IND. L. REV. 1019 (1998) (arguing that physicians should encourage patients to become knowledgeable users of health care information technology); Arti Rai, Reflective Choice in Health Care: Using Information Technology to Present Allocation Options, 25 AM. J.L. & MED. 7 (1999) (arguing that information technology can help consumers make choices among health plans with different allocation mechanisms); Arnold J. Rosoff, Informed Consent in the Electronic Age, 25 AM. J.L. & MED. 367 (1999) (discussing effect of new technology on physicians' traditional informed consent roles). Despite the availability of these new information sources, however, physicians remain patients' best sources for accurate information about treatment options. See Bob LaMendola, Internet Fever Risking a Cold Sore, CHI. TRIB., June 4, 1998, at 3 (reporting study finding that majority of pediatric medical web sites, including those run by academic medical centers, contained inaccurate or obsolete medical information).
619. It is true that new information sources, particularly computer-based products, have dramatically increased the level of medical information available to patients. See Frances H. Miller, Health Care Information Technology and Informed Consent: Computers and the Doctor-Patient Relationship, 31 IND. L. REV. 1019 (1998) (arguing that physicians should encourage patients to become knowledgeable users of health care information technology); Arti Rai, Reflective Choice in Health Care: Using Information Technology to Present Allocation Options, 25 AM. J.L. & MED. 7 (1999) (arguing that information technology can help consumers make choices among health plans with different allocation mechanisms); Arnold J. Rosoff, Informed Consent in the Electronic Age, 25 AM. J.L. & MED. 367 (1999) (discussing effect of new technology on physicians' traditional informed consent roles). Despite the availability of these new information sources, however, physicians remain patients' best sources for accurate information about treatment options. See Bob LaMendola, Internet Fever Risking a Cold Sore, CHI. TRIB., June 4, 1998, at 3 (reporting study finding that majority of pediatric medical web sites, including those run by academic medical centers, contained inaccurate or obsolete medical information).
620. Paul S. Appelbaum, Must We Forgo Informed Consent to Control Health Care Costs? A Response to Mark A. Hall, 71 MILBANK Q. 669, 674 (1993). See also Mechanic, Trust and Informed Consent, supra note 294 (arguing that while a more explicit contractual understanding up-front is needed, it will be of limited efficacy, and that the physician will continue to have a duty to inform patients).
621. Paul S. Appelbaum, Must We Forgo Informed Consent to Control Health Care Costs? A Response to Mark A. Hall, 71 MILBANK Q. 669, 674 (1993). See also Mechanic, Trust and Informed Consent, supra note 294 (arguing that while a more explicit contractual understanding up-front is needed, it will be of limited efficacy, and that the physician will continue to have a duty to inform patients).
622. Agrawal, supra note 137, at 1817.
623. Moreover, to the extent that Hall exempts "value-laden" treatment decisions from his theory, and advocates the "contextualization" of informed consent, it is difficult to see how the proposal differs from current law. Taken to its logical extreme, the proposal would require disclosure when the patient attaches significant weight to certain options or side effects - the same disclosure that would appear to be required for "material" information in a "patient need" jurisdiction. See supra, Part IV.A.2 (discussing the standard of disclosure).
624. See Agrawal, supra note 137, at 1803 (citing an example suggesting "that marginally beneficial care might also include care that has a low probability of very significant benefit in a life-or-death situation").
625. Ruth Faden, Managed Care and Informed Consent, 7 KENNEDY INST. OF ETHICS J. 377, 379 (1997).
626. Id.
627. See generally Hall & Anderson, supra note 95, at 1711-12 (discussing the causes and costs of the judicial tendency to oppose insurers' medical necessity determinations).
628. See generally Andrews, supra note 44, at 165-68 and sources cited therein (describing scientific literature demonstrating medical benefits of information); Nancy Levit, Ethereal Torts, 61 GEO. WASH. L. REV. 136, 185-86 (1992) (describing consequences of information deprivation). For the clinical literature on this topic, see, for example, CEJA, Managed Care Cost Containment, supra note 135 (explaining benefits of involving patients in prescription decisions); Sheldon Greenfield et al., Expanding Patient Involvement in Care: Effects on Patient Outcomes, 102 ANN. INTERNAL MED. 520 (1985); Marian Segal, Breast Cancer: Woman is Partner in Choosing Treatment, FDA CONSUMER, Sept. 1991, at 19 (discussing sharing breast cancer information and decisions with patients); Twerski & Cohen, supra note 182, at 655 n.173 (discussing the direct benefits for patients who are informed of possible risks).
629. See generally Andrews, supra note 44, at 165-68 and sources cited therein (describing scientific literature demonstrating medical benefits of information); Nancy Levit, Ethereal Torts, 61 GEO. WASH. L. REV. 136, 185-86 (1992) (describing consequences of information deprivation). For the clinical literature on this topic, see, for example, CEJA, Managed Care Cost Containment, supra note 135 (explaining benefits of involving patients in prescription decisions); Sheldon Greenfield et al., Expanding Patient Involvement in Care: Effects on Patient Outcomes, 102 ANN. INTERNAL MED. 520 (1985); Marian Segal, Breast Cancer: Woman is Partner in Choosing Treatment, FDA CONSUMER, Sept. 1991, at 19 (discussing sharing breast cancer information and decisions with patients); Twerski & Cohen, supra note 182, at 655 n.173 (discussing the direct benefits for patients who are informed of possible risks).
630. See generally Andrews, supra note 44, at 165-68 and sources cited therein (describing scientific literature demonstrating medical benefits of information); Nancy Levit, Ethereal Torts, 61 GEO. WASH. L. REV. 136, 185-86 (1992) (describing consequences of information deprivation). For the clinical literature on this topic, see, for example, CEJA, Managed Care Cost Containment, supra note 135 (explaining benefits of involving patients in prescription decisions); Sheldon Greenfield et al., Expanding Patient Involvement in Care: Effects on Patient Outcomes, 102 ANN. INTERNAL MED. 520 (1985); Marian Segal, Breast Cancer: Woman is Partner in Choosing Treatment, FDA CONSUMER, Sept. 1991, at 19 (discussing sharing breast cancer information and decisions with patients); Twerski & Cohen, supra note 182, at 655 n.173 (discussing the direct benefits for patients who are informed of possible risks).
631. See generally Andrews, supra note 44, at 165-68 and sources cited therein (describing scientific literature demonstrating medical benefits of information); Nancy Levit, Ethereal Torts, 61 GEO. WASH. L. REV. 136, 185-86 (1992) (describing consequences of information deprivation). For the clinical literature on this topic, see, for example, CEJA, Managed Care Cost Containment, supra note 135 (explaining benefits of involving patients in prescription decisions); Sheldon Greenfield et al., Expanding Patient Involvement in Care: Effects on Patient Outcomes, 102 ANN. INTERNAL MED. 520 (1985); Marian Segal, Breast Cancer: Woman is Partner in Choosing Treatment, FDA CONSUMER, Sept. 1991, at 19 (discussing sharing breast cancer information and decisions with patients); Twerski & Cohen, supra note 182, at 655 n.173 (discussing the direct benefits for patients who are informed of possible risks).
632. See generally Andrews, supra note 44, at 165-68 and sources cited therein (describing scientific literature demonstrating medical benefits of information); Nancy Levit, Ethereal Torts, 61 GEO. WASH. L. REV. 136, 185-86 (1992) (describing consequences of information deprivation). For the clinical literature on this topic, see, for example, CEJA, Managed Care Cost Containment, supra note 135 (explaining benefits of involving patients in prescription decisions); Sheldon Greenfield et al., Expanding Patient Involvement in Care: Effects on Patient Outcomes, 102 ANN. INTERNAL MED. 520 (1985); Marian Segal, Breast Cancer: Woman is Partner in Choosing Treatment, FDA CONSUMER, Sept. 1991, at 19 (discussing sharing breast cancer information and decisions with patients); Twerski & Cohen, supra note 182, at 655 n.173 (discussing the direct benefits for patients who are informed of possible risks).
633. See generally Andrews, supra note 44, at 165-68 and sources cited therein (describing scientific literature demonstrating medical benefits of information); Nancy Levit, Ethereal Torts, 61 GEO. WASH. L. REV. 136, 185-86 (1992) (describing consequences of information deprivation). For the clinical literature on this topic, see, for example, CEJA, Managed Care Cost Containment, supra note 135 (explaining benefits of involving patients in prescription decisions); Sheldon Greenfield et al., Expanding Patient Involvement in Care: Effects on Patient Outcomes, 102 ANN. INTERNAL MED. 520 (1985); Marian Segal, Breast Cancer: Woman is Partner in Choosing Treatment, FDA CONSUMER, Sept. 1991, at 19 (discussing sharing breast cancer information and decisions with patients); Twerski & Cohen, supra note 182, at 655 n.173 (discussing the direct benefits for patients who are informed of possible risks).
634. See George J. Annas, Breast Cancer: The Treatment of Choice, HASTINGS CTR. REP., Apr. 1980, at 28 [hereinafter Annas, Breast Cancer] ("No one asks a patient to settle a scientific dispute; only to decide which of a number of apparently equally effective treatments she wants."); Nayfield, et al., supra note 149, at 1207 ("Neither breast-conserving surgery nor mastectomy necessarily results in superior psychosocial outcomes; what seems to matter is the individual's ability to choose between them freely.").
635. See George J. Annas, Breast Cancer: The Treatment of Choice, HASTINGS CTR. REP., Apr. 1980, at 28 [hereinafter Annas, Breast Cancer] ("No one asks a patient to settle a scientific dispute; only to decide which of a number of apparently equally effective treatments she wants."); Nayfield, et al., supra note 149, at 1207 ("Neither breast-conserving surgery nor mastectomy necessarily results in superior psychosocial outcomes; what seems to matter is the individual's ability to choose between them freely.").
636. Jerome P. Kassirer, Incorporating Patients' Preferences Into Medical Decisions, 330 NEW ENG. J. MED. 1895 (1994) (discussing different types of "utility-sensitive decisions").
637. See Morreim, Diverse and Perverse Incentives, supra note 69, at 111 n.69 (stating that research suggests "that when patients are given high-quality, detailed information, many opt for more conservative, less costly care than payers expect").
638. See Shultz, supra note 155, at 295-96 (noting the "central premise of much of the current literature on medical cost control [ ] that greater patient choice would yield a significant reduction in health care consumption").
639. See Capron, Informed Consent in Catastrophic Disease Research and Treatment, supra note 288, at 405 (arguing that courts are "on the brink of creating" a new hybrid theory of recovery); Hall, Informed Consent, supra note 1, at 539 (describing battery/tort hybrid).
640. See Capron, Informed Consent in Catastrophic Disease Research and Treatment, supra note 288, at 405 (arguing that courts are "on the brink of creating" a new hybrid theory of recovery); Hall, Informed Consent, supra note 1, at 539 (describing battery/tort hybrid).
641. R. Dworkin, supra note 12, at 729. Similarly, "[a] serious and fundamental failing of the law of informed consent is its continued lack of recognition that inadequate disclosure of information to patients by doctors is itself a wrong meriting legal protection." Meisel, supra note 239, at 211. See also Shultz, supra note 155, at 219 (explaining that the doctrine has vindicated autonomy only as a by-product of protection for bodily security and well-being); Tietz, supra note 179, at 375 (discussing how courts have failed to protect dignitary interests); Weisbard, supra note 155, at 753-54 (characterizing dignitary injuries as "too abstract and intangible" to result in awards large enough to justify the expense of taking such suits to court).
642. See generally Levit, supra note 334.
643. Id. at 174, 189-90.
644. Id. at 149, 190-92.
645. Shultz, supra note 155, at 276-99. See Bobinski, supra note 39, at 345 n. 195 (describing commentators who argue in favor of a dignitary tort); Hall, Informed Consent, supra note 1, at 539-40 (describing efforts by some commentators in favor of an "unprecedented extension of tort law" by recasting informed consent as a dignitary tort requiring physicians to enhance the exercise of the patient's medical self-determination); Katz, A Fairy Tale?, supra note 9, at 161 n.76 (arguing that dignitary injuries should be recognized as compensable injuries in their own right); Meisel, supra note 239 (proposing a "dignitary tort"); Tietz, supra note 179, at 375 (suggesting that courts "view the dignitary interest as the paramount interest to be protected").
646. Shultz, supra note 155, at 276-99. See Bobinski, supra note 39, at 345 n. 195 (describing commentators who argue in favor of a dignitary tort); Hall, Informed Consent, supra note 1, at 539-40 (describing efforts by some commentators in favor of an "unprecedented extension of tort law" by recasting informed consent as a dignitary tort requiring physicians to enhance the exercise of the patient's medical self-determination); Katz, A Fairy Tale?, supra note 9, at 161 n.76 (arguing that dignitary injuries should be recognized as compensable injuries in their own right); Meisel, supra note 239 (proposing a "dignitary tort"); Tietz, supra note 179, at 375 (suggesting that courts "view the dignitary interest as the paramount interest to be protected").
647. Shultz, supra note 155, at 276-99. See Bobinski, supra note 39, at 345 n. 195 (describing commentators who argue in favor of a dignitary tort); Hall, Informed Consent, supra note 1, at 539-40 (describing efforts by some commentators in favor of an "unprecedented extension of tort law" by recasting informed consent as a dignitary tort requiring physicians to enhance the exercise of the patient's medical self-determination); Katz, A Fairy Tale?, supra note 9, at 161 n.76 (arguing that dignitary injuries should be recognized as compensable injuries in their own right); Meisel, supra note 239 (proposing a "dignitary tort"); Tietz, supra note 179, at 375 (suggesting that courts "view the dignitary interest as the paramount interest to be protected").
648. Shultz, supra note 155, at 276-99. See Bobinski, supra note 39, at 345 n. 195 (describing commentators who argue in favor of a dignitary tort); Hall, Informed Consent, supra note 1, at 539-40 (describing efforts by some commentators in favor of an "unprecedented extension of tort law" by recasting informed consent as a dignitary tort requiring physicians to enhance the exercise of the patient's medical self-determination); Katz, A Fairy Tale?, supra note 9, at 161 n.76 (arguing that dignitary injuries should be recognized as compensable injuries in their own right); Meisel, supra note 239 (proposing a "dignitary tort"); Tietz, supra note 179, at 375 (suggesting that courts "view the dignitary interest as the paramount interest to be protected").
649. Shultz, supra note 155, at 281-83.
650. Id. at 283-84, 286-89.
651. Id. at 290-91.
652. Twerski & Cohen, supra note 182, at 648-64. See Weisbard, supra note 155, at 763, 766 (suggesting the creation of a new cause of action focusing on the patient's right to informed, voluntary participation in medical decisions and the process of promoting patient decision making).
653. Twerski & Cohen, supra note 182, at 649-53.
654. Id. at 654-65.
655. Gouse v. Cassel, 615 A.2d 331, 335 (Pa. 1992).
656. See Shultz, supra note 155, at 290-91 (describing potential ways of compensating dignitary harms that do not result in physical injury).
657. See Grijalva v. Shalala, 152 F.3d 1115 (9th Cir. 1998) (affirming district court opinion requiring the federal government to develop better appeals procedures for beneficiaries in Medicare managed care plans); 42 C.F.R. pt. 417, subpart Q § 417.600 (1999) (listing new regulations governing appeals process); For a general discussion of this topic, see generally Tracy E. Miller, Center Stage on the Patient Protection Agenda: Grievance and Appeal Rights, 26 J.L. MED. & ETHICS 89 (1998).
658. See Wolf, Toward a Systemic Theory, supra note 51, at 1673 (noting that while patients are free to seek care outside the plan, they must rely on physicians "to trigger that search").
659. See id. at 1678 (noting that patients need "someone that will go to bat for them").
660. Morreim, Economic Disclosure and Economic Advocacy, supra note 2, at 280. See Boyd, supra note 284, at 152 (stating that "the physician's fiduciary duties requires him or her to aggressively advocate the patient's interests rather than merely accepting treatment limitations and undertaking to provide substandard health care"). Similarly, the CEJA has opined that "[t]he duty of patient advocacy is a fundamental element of the physician-patient relationship that should not be altered by the system of health care delivery in which the physicians practice. Physicians must continue to place the interests of their patients first." CEJA, Opinions on Practice Matters, § 8.13(1) supra note 79, at 126.
661. Morreim, Economic Disclosure and Economic Advocacy, supra note 2, at 280. See Boyd, supra note 284, at 152 (stating that "the physician's fiduciary duties requires him or her to aggressively advocate the patient's interests rather than merely accepting treatment limitations and undertaking to provide substandard health care"). Similarly, the CEJA has opined that "[t]he duty of patient advocacy is a fundamental element of the physician-patient relationship that should not be altered by the system of health care delivery in which the physicians practice. Physicians must continue to place the interests of their patients first." CEJA, Opinions on Practice Matters, § 8.13(1) supra note 79, at 126.
662. Morreim, Economic Disclosure and Economic Advocacy, supra note 2, at 280. See Boyd, supra note 284, at 152 (stating that "the physician's fiduciary duties requires him or her to aggressively advocate the patient's interests rather than merely accepting treatment limitations and undertaking to provide substandard health care"). Similarly, the CEJA has opined that "[t]he duty of patient advocacy is a fundamental element of the physician-patient relationship that should not be altered by the system of health care delivery in which the physicians practice. Physicians must continue to place the interests of their patients first." CEJA, Opinions on Practice Matters, § 8.13(1) supra note 79, at 126.
663. Wolf, Health Care Reform, supra note 137, at 35-36; see also Bethany J. Spielman, Managed Care Regulation and the Physician-Advocate, 47 DRAKE L. REV. 713 (1999). For an insightful analysis of what such physician advocacy might entail, see William M. Sage, Physicians as Advocates, 35 HOUS. L. REV. 1529 (1999).
664. Wolf, Health Care Reform, supra note 137, at 35-36; see also Bethany J. Spielman, Managed Care Regulation and the Physician-Advocate, 47 DRAKE L. REV. 713 (1999). For an insightful analysis of what such physician advocacy might entail, see William M. Sage, Physicians as Advocates, 35 HOUS. L. REV. 1529 (1999).
665. Wolf, Health Care Reform, supra note 137, at 35-36; see also Bethany J. Spielman, Managed Care Regulation and the Physician-Advocate, 47 DRAKE L. REV. 713 (1999). For an insightful analysis of what such physician advocacy might entail, see William M. Sage, Physicians as Advocates, 35 HOUS. L. REV. 1529 (1999).
666. See Hall, Informed Consent, supra note 1, at 527-33; Gregory, supra note 129, at 497-500.
667. See Hall, Informed Consent, supra note 1, at 527-33; Gregory, supra note 129, at 497-500.
668. See Ricks v. Budge, 64 P.2d 208, 211 (Utah 1937) (holding that the physician-patient relationship may be terminated "by the withdrawal from the case by the physician after giving the patient reasonable notice so as to enable the patient to secure other medical attention"). In general, notice is not considered to be "adequate" if the physician attempts to terminate treatment in a crisis situation without arranging for another health care provider to provide care. Id.
669. Hall, Informed Consent, supra note 1, at 532-33.
670. As Professor Agrawal has argued, "Encouraging misplaced reliance on the physician by withholding disclosure of truthful information would seem paternalistic at best and hazardous at worst." Agrawal, supra note 137, at 1810. To the extent that a physician is concerned that such knowledge would result in actual harm to a particular patient, the therapeutic privilege exception might be invoked to relieve the physician of disclosure duties in an individual case. See supra note 29 (describing therapeutic privilege).
671. Miller, Denial of Health Care, supra note 146, at 71.
672. See, e.g., Tripp Baltz, Center Releases Code of Ethics As Guide for Health Care Delivery, 4 MANAGED CARE REP. (BNA) 1022 (1998) (describing code of ethics developed by the Rocky Mountain Center for Healthcare Ethics); Ezekiel Emanuel, Medical Ethics in the Era of Managed Care: The Need for Institutional Structures Instead of Principles for Individual Cases, 6 J. CLIN. ETHICS 335 (1995); Pellegrino, supra note 15 (calling for "corporate ethic" of managed care to resolve larger ethical dilemmas of distributive justice); Wolf, Health Care Reform, supra note 137, at 38 (arguing that the "formulation of ethics for health care organizations is in its infancy); Laurie Zoloth-Dorfman & Susan Rubin, The Patient as Commodity: Managed Care and the Question of Ethics, 6 J. CLIN. ETHICS 339 (1995). But see Jerome P. Kassirer, Editorial, Managed Care: Should We Adopt a New Ethic?, 339 NEW ENG. J. MED. 397 (1998) (arguing that medical ethics should remain individual-rather than group-focused). For a discussion of general ethical issues involving managed care, see, for example, Symposium, The Ethics of Managed Care, 28 CUMB. L. REV. 287 (1998); Kate C. Christensen, Ethically Important Distinctions Among Managed Care Organizations, 23 J.L. MED. & ETHICS 223 (1995); CEJA, Ethical Issues, supra note 60; Robert I. Field, New Ethical Relationships Under Health Care's New Structure: The Need for a New Paradigm, 43 VILL. L. REV. 467 (1998); Hall, Rationing Health Care, supra note 297, at 727-58; Alycia C. Regan, Regulating the Business of Medicine: Models for Inte grating Ethics and Managed Care, 30 COLUM. J.L. & SOC. PROBS. 635 (1997).
673. See, e.g., Tripp Baltz, Center Releases Code of Ethics As Guide for Health Care Delivery, 4 MANAGED CARE REP. (BNA) 1022 (1998) (describing code of ethics developed by the Rocky Mountain Center for Healthcare Ethics); Ezekiel Emanuel, Medical Ethics in the Era of Managed Care: The Need for Institutional Structures Instead of Principles for Individual Cases, 6 J. CLIN. ETHICS 335 (1995); Pellegrino, supra note 15 (calling for "corporate ethic" of managed care to resolve larger ethical dilemmas of distributive justice); Wolf, Health Care Reform, supra note 137, at 38 (arguing that the "formulation of ethics for health care organizations is in its infancy); Laurie Zoloth-Dorfman & Susan Rubin, The Patient as Commodity: Managed Care and the Question of Ethics, 6 J. CLIN. ETHICS 339 (1995). But see Jerome P. Kassirer, Editorial, Managed Care: Should We Adopt a New Ethic?, 339 NEW ENG. J. MED. 397 (1998) (arguing that medical ethics should remain individual-rather than group-focused). For a discussion of general ethical issues involving managed care, see, for example, Symposium, The Ethics of Managed Care, 28 CUMB. L. REV. 287 (1998); Kate C. Christensen, Ethically Important Distinctions Among Managed Care Organizations, 23 J.L. MED. & ETHICS 223 (1995); CEJA, Ethical Issues, supra note 60; Robert I. Field, New Ethical Relationships Under Health Care's New Structure: The Need for a New Paradigm, 43 VILL. L. REV. 467 (1998); Hall, Rationing Health Care, supra note 297, at 727-58; Alycia C. Regan, Regulating the Business of Medicine: Models for Inte grating Ethics and Managed Care, 30 COLUM. J.L. & SOC. PROBS. 635 (1997).
674. See, e.g., Tripp Baltz, Center Releases Code of Ethics As Guide for Health Care Delivery, 4 MANAGED CARE REP. (BNA) 1022 (1998) (describing code of ethics developed by the Rocky Mountain Center for Healthcare Ethics); Ezekiel Emanuel, Medical Ethics in the Era of Managed Care: The Need for Institutional Structures Instead of Principles for Individual Cases, 6 J. CLIN. ETHICS 335 (1995); Pellegrino, supra note 15 (calling for "corporate ethic" of managed care to resolve larger ethical dilemmas of distributive justice); Wolf, Health Care Reform, supra note 137, at 38 (arguing that the "formulation of ethics for health care organizations is in its infancy); Laurie Zoloth-Dorfman & Susan Rubin, The Patient as Commodity: Managed Care and the Question of Ethics, 6 J. CLIN. ETHICS 339 (1995). But see Jerome P. Kassirer, Editorial, Managed Care: Should We Adopt a New Ethic?, 339 NEW ENG. J. MED. 397 (1998) (arguing that medical ethics should remain individual-rather than group-focused). For a discussion of general ethical issues involving managed care, see, for example, Symposium, The Ethics of Managed Care, 28 CUMB. L. REV. 287 (1998); Kate C. Christensen, Ethically Important Distinctions Among Managed Care Organizations, 23 J.L. MED. & ETHICS 223 (1995); CEJA, Ethical Issues, supra note 60; Robert I. Field, New Ethical Relationships Under Health Care's New Structure: The Need for a New Paradigm, 43 VILL. L. REV. 467 (1998); Hall, Rationing Health Care, supra note 297, at 727-58; Alycia C. Regan, Regulating the Business of Medicine: Models for Inte grating Ethics and Managed Care, 30 COLUM. J.L. & SOC. PROBS. 635 (1997).
675. See, e.g., Tripp Baltz, Center Releases Code of Ethics As Guide for Health Care Delivery, 4 MANAGED CARE REP. (BNA) 1022 (1998) (describing code of ethics developed by the Rocky Mountain Center for Healthcare Ethics); Ezekiel Emanuel, Medical Ethics in the Era of Managed Care: The Need for Institutional Structures Instead of Principles for Individual Cases, 6 J. CLIN. ETHICS 335 (1995); Pellegrino, supra note 15 (calling for "corporate ethic" of managed care to resolve larger ethical dilemmas of distributive justice); Wolf, Health Care Reform, supra note 137, at 38 (arguing that the "formulation of ethics for health care organizations is in its infancy); Laurie Zoloth-Dorfman & Susan Rubin, The Patient as Commodity: Managed Care and the Question of Ethics, 6 J. CLIN. ETHICS 339 (1995). But see Jerome P. Kassirer, Editorial, Managed Care: Should We Adopt a New Ethic?, 339 NEW ENG. J. MED. 397 (1998) (arguing that medical ethics should remain individual-rather than group-focused). For a discussion of general ethical issues involving managed care, see, for example, Symposium, The Ethics of Managed Care, 28 CUMB. L. REV. 287 (1998); Kate C. Christensen, Ethically Important Distinctions Among Managed Care Organizations, 23 J.L. MED. & ETHICS 223 (1995); CEJA, Ethical Issues, supra note 60; Robert I. Field, New Ethical Relationships Under Health Care's New Structure: The Need for a New Paradigm, 43 VILL. L. REV. 467 (1998); Hall, Rationing Health Care, supra note 297, at 727-58; Alycia C. Regan, Regulating the Business of Medicine: Models for Inte grating Ethics and Managed Care, 30 COLUM. J.L. & SOC. PROBS. 635 (1997).
676. See, e.g., Tripp Baltz, Center Releases Code of Ethics As Guide for Health Care Delivery, 4 MANAGED CARE REP. (BNA) 1022 (1998) (describing code of ethics developed by the Rocky Mountain Center for Healthcare Ethics); Ezekiel Emanuel, Medical Ethics in the Era of Managed Care: The Need for Institutional Structures Instead of Principles for Individual Cases, 6 J. CLIN. ETHICS 335 (1995); Pellegrino, supra note 15 (calling for "corporate ethic" of managed care to resolve larger ethical dilemmas of distributive justice); Wolf, Health Care Reform, supra note 137, at 38 (arguing that the "formulation of ethics for health care organizations is in its infancy); Laurie Zoloth-Dorfman & Susan Rubin, The Patient as Commodity: Managed Care and the Question of Ethics, 6 J. CLIN. ETHICS 339 (1995). But see Jerome P. Kassirer, Editorial, Managed Care: Should We Adopt a New Ethic?, 339 NEW ENG. J. MED. 397 (1998) (arguing that medical ethics should remain individual-rather than group-focused). For a discussion of general ethical issues involving managed care, see, for example, Symposium, The Ethics of Managed Care, 28 CUMB. L. REV. 287 (1998); Kate C. Christensen, Ethically Important Distinctions Among Managed Care Organizations, 23 J.L. MED. & ETHICS 223 (1995); CEJA, Ethical Issues, supra note 60; Robert I. Field, New Ethical Relationships Under Health Care's New Structure: The Need for a New Paradigm, 43 VILL. L. REV. 467 (1998); Hall, Rationing Health Care, supra note 297, at 727-58; Alycia C. Regan, Regulating the Business of Medicine: Models for Inte grating Ethics and Managed Care, 30 COLUM. J.L. & SOC. PROBS. 635 (1997).
677. See, e.g., Tripp Baltz, Center Releases Code of Ethics As Guide for Health Care Delivery, 4 MANAGED CARE REP. (BNA) 1022 (1998) (describing code of ethics developed by the Rocky Mountain Center for Healthcare Ethics); Ezekiel Emanuel, Medical Ethics in the Era of Managed Care: The Need for Institutional Structures Instead of Principles for Individual Cases, 6 J. CLIN. ETHICS 335 (1995); Pellegrino, supra note 15 (calling for "corporate ethic" of managed care to resolve larger ethical dilemmas of distributive justice); Wolf, Health Care Reform, supra note 137, at 38 (arguing that the "formulation of ethics for health care organizations is in its infancy); Laurie Zoloth-Dorfman & Susan Rubin, The Patient as Commodity: Managed Care and the Question of Ethics, 6 J. CLIN. ETHICS 339 (1995). But see Jerome P. Kassirer, Editorial, Managed Care: Should We Adopt a New Ethic?, 339 NEW ENG. J. MED. 397 (1998) (arguing that medical ethics should remain individual-rather than group-focused). For a discussion of general ethical issues involving managed care, see, for example, Symposium, The Ethics of Managed Care, 28 CUMB. L. REV. 287 (1998); Kate C. Christensen, Ethically Important Distinctions Among Managed Care Organizations, 23 J.L. MED. & ETHICS 223 (1995); CEJA, Ethical Issues, supra note 60; Robert I. Field, New Ethical Relationships Under Health Care's New Structure: The Need for a New Paradigm, 43 VILL. L. REV. 467 (1998); Hall, Rationing Health Care, supra note 297, at 727-58; Alycia C. Regan, Regulating the Business of Medicine: Models for Inte grating Ethics and Managed Care, 30 COLUM. J.L. & SOC. PROBS. 635 (1997).
678. See, e.g., Tripp Baltz, Center Releases Code of Ethics As Guide for Health Care Delivery, 4 MANAGED CARE REP. (BNA) 1022 (1998) (describing code of ethics developed by the Rocky Mountain Center for Healthcare Ethics); Ezekiel Emanuel, Medical Ethics in the Era of Managed Care: The Need for Institutional Structures Instead of Principles for Individual Cases, 6 J. CLIN. ETHICS 335 (1995); Pellegrino, supra note 15 (calling for "corporate ethic" of managed care to resolve larger ethical dilemmas of distributive justice); Wolf, Health Care Reform, supra note 137, at 38 (arguing that the "formulation of ethics for health care organizations is in its infancy); Laurie Zoloth-Dorfman & Susan Rubin, The Patient as Commodity: Managed Care and the Question of Ethics, 6 J. CLIN. ETHICS 339 (1995). But see Jerome P. Kassirer, Editorial, Managed Care: Should We Adopt a New Ethic?, 339 NEW ENG. J. MED. 397 (1998) (arguing that medical ethics should remain individual-rather than group-focused). For a discussion of general ethical issues involving managed care, see, for example, Symposium, The Ethics of Managed Care, 28 CUMB. L. REV. 287 (1998); Kate C. Christensen, Ethically Important Distinctions Among Managed Care Organizations, 23 J.L. MED. & ETHICS 223 (1995); CEJA, Ethical Issues, supra note 60; Robert I. Field, New Ethical Relationships Under Health Care's New Structure: The Need for a New Paradigm, 43 VILL. L. REV. 467 (1998); Hall, Rationing Health Care, supra note 297, at 727-58; Alycia C. Regan, Regulating the Business of Medicine: Models for Inte grating Ethics and Managed Care, 30 COLUM. J.L. & SOC. PROBS. 635 (1997).
679. See, e.g., Tripp Baltz, Center Releases Code of Ethics As Guide for Health Care Delivery, 4 MANAGED CARE REP. (BNA) 1022 (1998) (describing code of ethics developed by the Rocky Mountain Center for Healthcare Ethics); Ezekiel Emanuel, Medical Ethics in the Era of Managed Care: The Need for Institutional Structures Instead of Principles for Individual Cases, 6 J. CLIN. ETHICS 335 (1995); Pellegrino, supra note 15 (calling for "corporate ethic" of managed care to resolve larger ethical dilemmas of distributive justice); Wolf, Health Care Reform, supra note 137, at 38 (arguing that the "formulation of ethics for health care organizations is in its infancy); Laurie Zoloth-Dorfman & Susan Rubin, The Patient as Commodity: Managed Care and the Question of Ethics, 6 J. CLIN. ETHICS 339 (1995). But see Jerome P. Kassirer, Editorial, Managed Care: Should We Adopt a New Ethic?, 339 NEW ENG. J. MED. 397 (1998) (arguing that medical ethics should remain individual-rather than group-focused). For a discussion of general ethical issues involving managed care, see, for example, Symposium, The Ethics of Managed Care, 28 CUMB. L. REV. 287 (1998); Kate C. Christensen, Ethically Important Distinctions Among Managed Care Organizations, 23 J.L. MED. & ETHICS 223 (1995); CEJA, Ethical Issues, supra note 60; Robert I. Field, New Ethical Relationships Under Health Care's New Structure: The Need for a New Paradigm, 43 VILL. L. REV. 467 (1998); Hall, Rationing Health Care, supra note 297, at 727-58; Alycia C. Regan, Regulating the Business of Medicine: Models for Inte grating Ethics and Managed Care, 30 COLUM. J.L. & SOC. PROBS. 635 (1997).
680. See, e.g., Tripp Baltz, Center Releases Code of Ethics As Guide for Health Care Delivery, 4 MANAGED CARE REP. (BNA) 1022 (1998) (describing code of ethics developed by the Rocky Mountain Center for Healthcare Ethics); Ezekiel Emanuel, Medical Ethics in the Era of Managed Care: The Need for Institutional Structures Instead of Principles for Individual Cases, 6 J. CLIN. ETHICS 335 (1995); Pellegrino, supra note 15 (calling for "corporate ethic" of managed care to resolve larger ethical dilemmas of distributive justice); Wolf, Health Care Reform, supra note 137, at 38 (arguing that the "formulation of ethics for health care organizations is in its infancy); Laurie Zoloth-Dorfman & Susan Rubin, The Patient as Commodity: Managed Care and the Question of Ethics, 6 J. CLIN. ETHICS 339 (1995). But see Jerome P. Kassirer, Editorial, Managed Care: Should We Adopt a New Ethic?, 339 NEW ENG. J. MED. 397 (1998) (arguing that medical ethics should remain individual-rather than group-focused). For a discussion of general ethical issues involving managed care, see, for example, Symposium, The Ethics of Managed Care, 28 CUMB. L. REV. 287 (1998); Kate C. Christensen, Ethically Important Distinctions Among Managed Care Organizations, 23 J.L. MED. & ETHICS 223 (1995); CEJA, Ethical Issues, supra note 60; Robert I. Field, New Ethical Relationships Under Health Care's New Structure: The Need for a New Paradigm, 43 VILL. L. REV. 467 (1998); Hall, Rationing Health Care, supra note 297, at 727-58; Alycia C. Regan, Regulating the Business of Medicine: Models for Inte grating Ethics and Managed Care, 30 COLUM. J.L. & SOC. PROBS. 635 (1997).
681. See, e.g., Tripp Baltz, Center Releases Code of Ethics As Guide for Health Care Delivery, 4 MANAGED CARE REP. (BNA) 1022 (1998) (describing code of ethics developed by the Rocky Mountain Center for Healthcare Ethics); Ezekiel Emanuel, Medical Ethics in the Era of Managed Care: The Need for Institutional Structures Instead of Principles for Individual Cases, 6 J. CLIN. ETHICS 335 (1995); Pellegrino, supra note 15 (calling for "corporate ethic" of managed care to resolve larger ethical dilemmas of distributive justice); Wolf, Health Care Reform, supra note 137, at 38 (arguing that the "formulation of ethics for health care organizations is in its infancy); Laurie Zoloth-Dorfman & Susan Rubin, The Patient as Commodity: Managed Care and the Question of Ethics, 6 J. CLIN. ETHICS 339 (1995). But see Jerome P. Kassirer, Editorial, Managed Care: Should We Adopt a New Ethic?, 339 NEW ENG. J. MED. 397 (1998) (arguing that medical ethics should remain individual-rather than group-focused). For a discussion of general ethical issues involving managed care, see, for example, Symposium, The Ethics of Managed Care, 28 CUMB. L. REV. 287 (1998); Kate C. Christensen, Ethically Important Distinctions Among Managed Care Organizations, 23 J.L. MED. & ETHICS 223 (1995); CEJA, Ethical Issues, supra note 60; Robert I. Field, New Ethical Relationships Under Health Care's New Structure: The Need for a New Paradigm, 43 VILL. L. REV. 467 (1998); Hall, Rationing Health Care, supra note 297, at 727-58; Alycia C. Regan, Regulating the Business of Medicine: Models for Inte grating Ethics and Managed Care, 30 COLUM. J.L. & SOC. PROBS. 635 (1997).
682. See, e.g., Tripp Baltz, Center Releases Code of Ethics As Guide for Health Care Delivery, 4 MANAGED CARE REP. (BNA) 1022 (1998) (describing code of ethics developed by the Rocky Mountain Center for Healthcare Ethics); Ezekiel Emanuel, Medical Ethics in the Era of Managed Care: The Need for Institutional Structures Instead of Principles for Individual Cases, 6 J. CLIN. ETHICS 335 (1995); Pellegrino, supra note 15 (calling for "corporate ethic" of managed care to resolve larger ethical dilemmas of distributive justice); Wolf, Health Care Reform, supra note 137, at 38 (arguing that the "formulation of ethics for health care organizations is in its infancy); Laurie Zoloth-Dorfman & Susan Rubin, The Patient as Commodity: Managed Care and the Question of Ethics, 6 J. CLIN. ETHICS 339 (1995). But see Jerome P. Kassirer, Editorial, Managed Care: Should We Adopt a New Ethic?, 339 NEW ENG. J. MED. 397 (1998) (arguing that medical ethics should remain individual-rather than group-focused). For a discussion of general ethical issues involving managed care, see, for example, Symposium, The Ethics of Managed Care, 28 CUMB. L. REV. 287 (1998); Kate C. Christensen, Ethically Important Distinctions Among Managed Care Organizations, 23 J.L. MED. & ETHICS 223 (1995); CEJA, Ethical Issues, supra note 60; Robert I. Field, New Ethical Relationships Under Health Care's New Structure: The Need for a New Paradigm, 43 VILL. L. REV. 467 (1998); Hall, Rationing Health Care, supra note 297, at 727-58; Alycia C. Regan, Regulating the Business of Medicine: Models for Inte grating Ethics and Managed Care, 30 COLUM. J.L. & SOC. PROBS. 635 (1997).
683. See, e.g., Tripp Baltz, Center Releases Code of Ethics As Guide for Health Care Delivery, 4 MANAGED CARE REP. (BNA) 1022 (1998) (describing code of ethics developed by the Rocky Mountain Center for Healthcare Ethics); Ezekiel Emanuel, Medical Ethics in the Era of Managed Care: The Need for Institutional Structures Instead of Principles for Individual Cases, 6 J. CLIN. ETHICS 335 (1995); Pellegrino, supra note 15 (calling for "corporate ethic" of managed care to resolve larger ethical dilemmas of distributive justice); Wolf, Health Care Reform, supra note 137, at 38 (arguing that the "formulation of ethics for health care organizations is in its infancy); Laurie Zoloth-Dorfman & Susan Rubin, The Patient as Commodity: Managed Care and the Question of Ethics, 6 J. CLIN. ETHICS 339 (1995). But see Jerome P. Kassirer, Editorial, Managed Care: Should We Adopt a New Ethic?, 339 NEW ENG. J. MED. 397 (1998) (arguing that medical ethics should remain individual-rather than group-focused). For a discussion of general ethical issues involving managed care, see, for example, Symposium, The Ethics of Managed Care, 28 CUMB. L. REV. 287 (1998); Kate C. Christensen, Ethically Important Distinctions Among Managed Care Organizations, 23 J.L. MED. & ETHICS 223 (1995); CEJA, Ethical Issues, supra note 60; Robert I. Field, New Ethical Relationships Under Health Care's New Structure: The Need for a New Paradigm, 43 VILL. L. REV. 467 (1998); Hall, Rationing Health Care, supra note 297, at 727-58; Alycia C. Regan, Regulating the Business of Medicine: Models for Inte grating Ethics and Managed Care, 30 COLUM. J.L. & SOC. PROBS. 635 (1997).
684. For a particularly insightful analysis of "systemic informed consent," see Wolf, Toward a Systematic Theory, supra note 51.
685. See Allen Buchanan, Managed Care: Rationing Without Justice, But Not Unjustly, 23 J. HEALTH POL. POL'Y & L. 617 (1998) (arguing that MCOs currently have no responsibility for expanding access and operate in an institutional context without regard for the principles of justice).
686. See Mark Schlesinger & Bradford Gray, A Broader Vision for Managed Care, Part I: Measuring the Benefit to Communities, HEALTH AFFAIRS, May-June 1998, at 152; Mark Schlesinger et al., A Broader Vision for Managed Care, Part II: A Typology of Community Benefits, HEALTH AFFAIRS, Sept.-Oct. 1998, at 26.
687. See Mark Schlesinger & Bradford Gray, A Broader Vision for Managed Care, Part I: Measuring the Benefit to Communities, HEALTH AFFAIRS, May-June 1998, at 152; Mark Schlesinger et al., A Broader Vision for Managed Care, Part II: A Typology of Community Benefits, HEALTH AFFAIRS, Sept.-Oct. 1998, at 26.
688. See supra Part III.A. (discussing "gag clauses").
689. See Spielman, supra note 103, at 467 (describing the "clear" outcome of the anti-gag legislation: that "physicians will not be legally excused from disclosing to patients all treatment options - even uncovered options - just because they practice in a managed care environment"). When the author began to research this topic several years ago, it appeared that the enactment of anti-gag clause legislation would provide an adequate resolution of the problem. Several years into the debate, however, it is apparent that such legislation will play only a minor role in the resolution of much larger issues involving managed care, patient choice, and the continued validity of the informed consent doctrine. For this reason, a full analysis of the antigag clause legislation enacted to date is beyond the scope of this Article.
690. Ignani, supra note 117, at 29.
691. David S. Hilzenrath, Backlash Builds Over Managed Care, WASH. POST, June 30, 1997, at A1. See also Model Patient Protection Act of 1995 (and section-by-section summary) (on file with author).
692. See, e.g., Grosso, supra note 262; State Managed Care Laws Vary Widely, Few Have Broad Protections, Report Says, 4 MANAGED CARE REP. (BNA) 742 (1998) (summarizing FAMILIES USA FOUNDATION, HIT & Miss: STATE MANAGED CARE LAWS (1998)); Corporate Health Ins. Inc. v. Texas Dep't. of Ins., 12 F. Supp. 597, 627-28 (S.D. Tex, 1998) (finding that ERISA preempts TEX. CIV. PRAC. & REM. CODE § 88.002(b) (1999) because the law restricts the structure of MCOs with which ERISA plans may contract); see also Kathy L. Cerminara, Protecting Participants in and Beneficiaries of ERISA-Governed Managed Health Care Plans, 29 U. MEM. L. REV. 317 (1999).
693. See, e.g., Grosso, supra note 262; State Managed Care Laws Vary Widely, Few Have Broad Protections, Report Says, 4 MANAGED CARE REP. (BNA) 742 (1998) (summarizing FAMILIES USA FOUNDATION, HIT & Miss: STATE MANAGED CARE LAWS (1998)); Corporate Health Ins. Inc. v. Texas Dep't. of Ins., 12 F. Supp. 597, 627-28 (S.D. Tex, 1998) (finding that ERISA preempts TEX. CIV. PRAC. & REM. CODE § 88.002(b) (1999) because the law restricts the structure of MCOs with which ERISA plans may contract); see also Kathy L. Cerminara, Protecting Participants in and Beneficiaries of ERISA-Governed Managed Health Care Plans, 29 U. MEM. L. REV. 317 (1999).
694. See, e.g., Grosso, supra note 262; State Managed Care Laws Vary Widely, Few Have Broad Protections, Report Says, 4 MANAGED CARE REP. (BNA) 742 (1998) (summarizing FAMILIES USA FOUNDATION, HIT & Miss: STATE MANAGED CARE LAWS (1998)); Corporate Health Ins. Inc. v. Texas Dep't. of Ins., 12 F. Supp. 597, 627-28 (S.D. Tex, 1998) (finding that ERISA preempts TEX. CIV. PRAC. & REM. CODE § 88.002(b) (1999) because the law restricts the structure of MCOs with which ERISA plans may contract); see also Kathy L. Cerminara, Protecting Participants in and Beneficiaries of ERISA-Governed Managed Health Care Plans, 29 U. MEM. L. REV. 317 (1999).
695. See, e.g., Grosso, supra note 262; State Managed Care Laws Vary Widely, Few Have Broad Protections, Report Says, 4 MANAGED CARE REP. (BNA) 742 (1998) (summarizing FAMILIES USA FOUNDATION, HIT & Miss: STATE MANAGED CARE LAWS (1998)); Corporate Health Ins. Inc. v. Texas Dep't. of Ins., 12 F. Supp. 597, 627-28 (S.D. Tex, 1998) (finding that ERISA preempts TEX. CIV. PRAC. & REM. CODE § 88.002(b) (1999) because the law restricts the structure of MCOs with which ERISA plans may contract); see also Kathy L. Cerminara, Protecting Participants in and Beneficiaries of ERISA-Governed Managed Health Care Plans, 29 U. MEM. L. REV. 317 (1999).
696. In the fall of 1999, both the House and the Senate passed managed care reform bills that included anti-gag clause provisions. See H.R. 2990, 106th Cong. (1999); S. 1344. 106th Cong. (1999). As of November 1999, these bills had yet to go to conference, and the prospects for enactment of a compromise bill remained unclear. For a general discussion of federal anti-gag clause efforts, see Picinic, supra note 84; see also Michael Misocky, The Patients' Bill of Rights: Managed Care Under Siege, 15 J. CONTEMP. HEALTH L. & POL'Y 57 (1998).
697. In the fall of 1999, both the House and the Senate passed managed care reform bills that included anti-gag clause provisions. See H.R. 2990, 106th Cong. (1999); S. 1344. 106th Cong. (1999). As of November 1999, these bills had yet to go to conference, and the prospects for enactment of a compromise bill remained unclear. For a general discussion of federal anti-gag clause efforts, see Picinic, supra note 84; see also Michael Misocky, The Patients' Bill of Rights: Managed Care Under Siege, 15 J. CONTEMP. HEALTH L. & POL'Y 57 (1998).
698. "[A] physician providing care to a Medicare beneficiary under the terms of a risk or cost contract may not be limited in counseling or advising the beneficiary of medically necessary treatment options that may be appropriate for the individual's condition or disease. Contractual provisions that limit a physician's ability to so counsel a Medicare beneficiary are a violation of the law." HCFA Office of Managed Care, Operational Policy Letter, OPL-96.044, Nov. 25, 1996. A similar letter regarding the Medicaid program soon followed. The Balanced Budget Act of 1997 codified a similar prohibition for all plans participating in the "Medicare+Choice" program, which expanded the managed care options available to Medicare enrollees. Pub. L. No. 105-33 § 4001, 111 Stat. 286 (adding § 1852(j)(3) of the Social Security Act).
699. Consumer Bill of Rights and Responsibilities: Report to the President of the United States, Nov. 1997, Executive Summary, Part IV 〈http://www.hcqualitycommission.gov/cborr/consbill.htm#head1〉.
700. See White House Press Release: Memorandum re: Federal Agency Compliance with the Patient Bill of Rights (Weekly Comp. Pres. Doc.), Feb. 20, 1998. In August 1998, OPM became the first agency to finalize rules implementing the President's directives for individuals covered by the Federal Employees Health Benefits Plan. See 48 C.F.R. § 1609.7001(c)(7) (1998) (listing as an example of "poor business practices which adversely affect the . . . carrier's responsibility under its contract . . . [e]ntering into contracts or employment agreements with providers, provider groups, or health care workers that include provisions or financial incentives that directly or indirectly create an inducement to limit or restrict communication about medically necessary services . . . ").
701. See 63 Fed. Reg. 48389 (1998) (explaining proposed Department of Labor regulations).
702. MASS. GEN. LAWS ch. 175, § 108(11) (1997). For a variation on the antiretaliation model, see GA. CODE ANN. § 33-20A-7 (Supp. 1999) ("No health care provider may be penalized for discussing medically necessary or appropriate care with or on behalf of his or her patient."). A number of statutes also prohibit the health plan from penalizing providers who advocate on behalf of their patients. See PA. STAT. ANN. tit. 40, § 991.2113(c)(1) (West 1999) ("[N]o managed care plan shall terminate the employment of or a contract with a health care provider for . . . [a]dvocating for medically necessary and appropriate health care.").
703. MASS. GEN. LAWS ch. 175, § 108(11) (1997). For a variation on the antiretaliation model, see GA. CODE ANN. § 33-20A-7 (Supp. 1999) ("No health care provider may be penalized for discussing medically necessary or appropriate care with or on behalf of his or her patient."). A number of statutes also prohibit the health plan from penalizing providers who advocate on behalf of their patients. See PA. STAT. ANN. tit. 40, § 991.2113(c)(1) (West 1999) ("[N]o managed care plan shall terminate the employment of or a contract with a health care provider for . . . [a]dvocating for medically necessary and appropriate health care.").
704. MASS. GEN. LAWS ch. 175, § 108(11) (1997). For a variation on the antiretaliation model, see GA. CODE ANN. § 33-20A-7 (Supp. 1999) ("No health care provider may be penalized for discussing medically necessary or appropriate care with or on behalf of his or her patient."). A number of statutes also prohibit the health plan from penalizing providers who advocate on behalf of their patients. See PA. STAT. ANN. tit. 40, § 991.2113(c)(1) (West 1999) ("[N]o managed care plan shall terminate the employment of or a contract with a health care provider for . . . [a]dvocating for medically necessary and appropriate health care.").
705. MINN. STAT. ANN. § 62J.71, subd. 1(1) (West 1999). Some states have adopted both of these models. See DEL. CODE ANN. tit. 18, §§ 6408 (1997) (prohibiting retaliation) & 6807 (1997) (prohibiting nondisclosure clauses).
706. MINN. STAT. ANN. § 62J.71, subd. 1(1) (West 1999). Some states have adopted both of these models. See DEL. CODE ANN. tit. 18, §§ 6408 (1997) (prohibiting retaliation) & 6807 (1997) (prohibiting nondisclosure clauses).
707. See OHIO REV. CODE ANN. § 1751.13(C)(8) (Banks-Baldwin 1997) (stating that the contract must require the provider "to observe, protect, and promote the rights of enrollees as patients").
708. See CAL. Bus. & PROF. CODE § 2056.1(c) (West 1999) (explaining that violative provisions are void and unenforceable); N.J. STAT. ANN. §§ 26:28-16 & 26:28-24 (West 1999) (discussing civil penalties, suspension/revocation of license, cease and desist orders, and injunctive relief against licensed insurer or MCO).
709. See CAL. Bus. & PROF. CODE § 2056.1(c) (West 1999) (explaining that violative provisions are void and unenforceable); N.J. STAT. ANN. §§ 26:28-16 & 26:28-24 (West 1999) (discussing civil penalties, suspension/revocation of license, cease and desist orders, and injunctive relief against licensed insurer or MCO).
710. N.Y. INS. LAW § 3217-b(a) (McKinney 1997) (emphasis added). Some of the better-written statutes clearly apply to both written and unwritten policies. For example, the Arizona statute provides that "No person subject to this title may restrict or prohibit, by means of a policy or contract, whether written or otherwise, a licensed health care provider's good faith communication" with a patient. ARIZ. REV. STAT. ANN. § 20-118 (West Supp. 1998) (emphasis added).
711. N.Y. INS. LAW § 3217-b(a) (McKinney 1997) (emphasis added). Some of the better-written statutes clearly apply to both written and unwritten policies. For example, the Arizona statute provides that "No person subject to this title may restrict or prohibit, by means of a policy or contract, whether written or otherwise, a licensed health care provider's good faith communication" with a patient. ARIZ. REV. STAT. ANN. § 20-118 (West Supp. 1998) (emphasis added).
712. See ARK. CODE ANN. § 23-99-407 (Michie 1997) (explaining that the provider may not be restricted from disclosing "any health care information that such provider deems appropriate regarding . . . the availability of alternative therapies); OHIO REV. CODE ANN. § 1751.13(D)(1)(c) (Banks-Baldwin Supp. 1999) (stating that the contract may not contain a provision limiting the provider's "ethical and legal responsibility to fully advise enrollees about their medical condition any and about medically appropriate treatment options") (emphasis added).
713. See ARK. CODE ANN. § 23-99-407 (Michie 1997) (explaining that the provider may not be restricted from disclosing "any health care information that such provider deems appropriate regarding . . . the availability of alternative therapies); OHIO REV. CODE ANN. § 1751.13(D)(1)(c) (Banks-Baldwin Supp. 1999) (stating that the contract may not contain a provision limiting the provider's "ethical and legal responsibility to fully advise enrollees about their medical condition any and about medically appropriate treatment options") (emphasis added).
714. See ALASKA STAT. § 21.86.150(i)(1)(B) (Michie 1998) (providing that a plan may not prohibit communications regarding "health care services"); MASS. GEN. LAWS ch. 175, § 108(11) (1998).
715. See ALASKA STAT. § 21.86.150(i)(1)(B) (Michie 1998) (providing that a plan may not prohibit communications regarding "health care services"); MASS. GEN. LAWS ch. 175, § 108(11) (1998).
716. IND. CODE ANN. § 27-8-11-4.5(a)(2) (West Supp. 1998). Unlike in many informed consent statutes, "availability," as used in this section, clearly is to be construed as independent of financial considerations.
717. VA. CODE ANN. § 38.2-3407.10(K) (Michie 1999) (emphasis added); see also 1998 Haw. Sess. Laws 178, § 2 (adding § 4(b)(1) of "Hawaii Patient Bill of Rights and Responsibilities Act") (noting that in order to fully inform enrollees, provider shall "[d]iscuss all treatment options with an enrollee"). Other states require provider contracts to protect or promote the provider's ability to discuss such information. See N.J. STAT. ANN. § 26:2S-9(c) (West Supp. 1999) (explaining that contract must "protect the ability of a health care provider to communicate openly with a patient about all appropriate diagnostic testing and treatment options"); WIS. STAT. ANN. § 609.30(2) (West 1999) (stating that provider may discuss treatment options with enrollees).
718. VA. CODE ANN. § 38.2-3407.10(K) (Michie 1999) (emphasis added); see also 1998 Haw. Sess. Laws 178, § 2 (adding § 4(b)(1) of "Hawaii Patient Bill of Rights and Responsibilities Act") (noting that in order to fully inform enrollees, provider shall "[d]iscuss all treatment options with an enrollee"). Other states require provider contracts to protect or promote the provider's ability to discuss such information. See N.J. STAT. ANN. § 26:2S-9(c) (West Supp. 1999) (explaining that contract must "protect the ability of a health care provider to communicate openly with a patient about all appropriate diagnostic testing and treatment options"); WIS. STAT. ANN. § 609.30(2) (West 1999) (stating that provider may discuss treatment options with enrollees).
719. VA. CODE ANN. § 38.2-3407.10(K) (Michie 1999) (emphasis added); see also 1998 Haw. Sess. Laws 178, § 2 (adding § 4(b)(1) of "Hawaii Patient Bill of Rights and Responsibilities Act") (noting that in order to fully inform enrollees, provider shall "[d]iscuss all treatment options with an enrollee"). Other states require provider contracts to protect or promote the provider's ability to discuss such information. See N.J. STAT. ANN. § 26:2S-9(c) (West Supp. 1999) (explaining that contract must "protect the ability of a health care provider to communicate openly with a patient about all appropriate diagnostic testing and treatment options"); WIS. STAT. ANN. § 609.30(2) (West 1999) (stating that provider may discuss treatment options with enrollees).
720. VA. CODE ANN. § 38.2-3407.10(K) (Michie 1999) (emphasis added); see also 1998 Haw. Sess. Laws 178, § 2 (adding § 4(b)(1) of "Hawaii Patient Bill of Rights and Responsibilities Act") (noting that in order to fully inform enrollees, provider shall "[d]iscuss all treatment options with an enrollee"). Other states require provider contracts to protect or promote the provider's ability to discuss such information. See N.J. STAT. ANN. § 26:2S-9(c) (West Supp. 1999) (explaining that contract must "protect the ability of a health care provider to communicate openly with a patient about all appropriate diagnostic testing and treatment options"); WIS. STAT. ANN. § 609.30(2) (West 1999) (stating that provider may discuss treatment options with enrollees).
721. See IND. CODE ANN. § 27-13-15-1(1)(a)(2) (West Supp. 1998) (explaining that provider may not be prohibited from disclosing the terms of the contract as they relate to "financial or other incentives to limit medical services"); R.I. GEN. LAWS §§ 23-17.13-3(B)(8) (1996) (explaining that plans may not enter into compensation arrangements "pursuant to which specific payment is made directly or indirectly to the provider as an inducement or incentive to reduce or limit services . . . with respect to an individual patient") & (B)(9) (1996) (explaining that plans "must disclose to prospective and current enrollees the existence of financial arrangements for capitated or other risk sharing arrangements that exist with providers" in a specified manner).
722. See IND. CODE ANN. § 27-13-15-1(1)(a)(2) (West Supp. 1998) (explaining that provider may not be prohibited from disclosing the terms of the contract as they relate to "financial or other incentives to limit medical services"); R.I. GEN. LAWS §§ 23-17.13-3(B)(8) (1996) (explaining that plans may not enter into compensation arrangements "pursuant to which specific payment is made directly or indirectly to the provider as an inducement or incentive to reduce or limit services . . . with respect to an individual patient") & (B)(9) (1996) (explaining that plans "must disclose to prospective and current enrollees the existence of financial arrangements for capitated or other risk sharing arrangements that exist with providers" in a specified manner).
723. See COLO. REV. STAT. ANN. § 10-16-121(2)(c) (West Supp. 1998) (stating that nothing in the statute should be construed to prevent carrier from terminating a contract pursuant to a provision allowing either party to terminate without cause pursuant to notice requirements).
724. R.I. GEN. LAWS §23-17.13-3(c)(1) (1996). See also T. Miller, Managed Care Regulation, supra note 90, at 1106 (describing lack of statutory provisions regarding termination without cause). Moreover, a model "Managed Care Plan Network Adequacy Act" prepared by the National Association of Insurance Commissioners ("NAIC") prohibits the use of "gag" clauses, but permits termination without cause upon 60 days written notice. NAIC, I MODEL LAW, REGULATIONS AND GUIDELINES at 74-1, 74-5, 74-7 (1998).
725. R.I. GEN. LAWS §23-17.13-3(c)(1) (1996). See also T. Miller, Managed Care Regulation, supra note 90, at 1106 (describing lack of statutory provisions regarding termination without cause). Moreover, a model "Managed Care Plan Network Adequacy Act" prepared by the National Association of Insurance Commissioners ("NAIC") prohibits the use of "gag" clauses, but permits termination without cause upon 60 days written notice. NAIC, I MODEL LAW, REGULATIONS AND GUIDELINES at 74-1, 74-5, 74-7 (1998).
726. R.I. GEN. LAWS §23-17.13-3(c)(1) (1996). See also T. Miller, Managed Care Regulation, supra note 90, at 1106 (describing lack of statutory provisions regarding termination without cause). Moreover, a model "Managed Care Plan Network Adequacy Act" prepared by the National Association of Insurance Commissioners ("NAIC") prohibits the use of "gag" clauses, but permits termination without cause upon 60 days written notice. NAIC, I MODEL LAW, REGULATIONS AND GUIDELINES at 74-1, 74-5, 74-7 (1998).
727. See ME. REV. STAT. ANN. tit. 24-A, § 3-A (West Supp. 1999) (explaining that termination without cause provision does not supersede the requirement that provider be given a written explanation prior to termination or nonrenewal of contract).
728. See Annas, Breast Cancer, supra note 335, at 27.
729. Id.
730. MASS. GEN. LAWS ANN. ch. 111, § 70E (West 1998).
731. See, e.g., CAL. HEALTH & SAFETY CODE §§ 109275 (1996) & 109277 (West Supp. 1995); CAL. BUS. & PROF. CODE § 2257 (West 1990 & Supp. 1999); FLA. STAT. ANN. §§ 240.5121 (West 1998 & Supp. 1999), 458.324 (West 1991 & Supp. 1999) & 459.0125 (West 1991 & Supp. 1999); GA. CODE ANN. § 43-34-21 (1997); HAW. REV. STAT. ANN. § 671-3 (1993); 20 ILL. COMP. STAT. ANN. 2310/55.49 (West 1992 & Supp. 1999); KAN. STAT. ANN. § 65-2836 (1992 & Supp. 1998); KY. REV. STAT. ANN. § 311.935 (Banks-Baldwin 1995 & Supp. 1998); ME. REV. STAT. ANN. tit. 21, § 2905-A (West 1997); MD. CODE ANN., HEALTH-GEN. § 20-113 (Michie 1996); MD. CODE ANN., HEALTH OCC. § 14-404 (1994 & Supp. 1998); MICH. COMP. LAWS ANN. §§ 333.17013 & 333.17513 (Michie 1992); MINN. STAT. ANN. § 144.651, subd. 9 (West 1998 & Supp. 1999); MONT. CODE ANN. § 37-3-333 (1999); N.J. STAT. ANN. §§ 26:2-168 (West 1996), 45:9-22.3a & 3b (West 1991); N.Y. PUB. HEALTH § 2404 (McKinney 1993 & Supp. 1999); PA. STAT. ANN. tit. 35, § 5641 (West 1993); TEX. HEALTH & SAFETY CODE ANN. § 86.002 (West 1992); VA. CODE ANN. § 54.1-2971 (Michie 1998). See also Utah Code Ann. § 26-21a-301 (1998) (providing for creation of an educational program to assist the public in understanding, inter alia, available options for treatment). For a general analysis of these laws, see Nayfield et al., supra note 149.
732. See, e.g., CAL. HEALTH & SAFETY CODE §§ 109275 (1996) & 109277 (West Supp. 1995); CAL. BUS. & PROF. CODE § 2257 (West 1990 & Supp. 1999); FLA. STAT. ANN. §§ 240.5121 (West 1998 & Supp. 1999), 458.324 (West 1991 & Supp. 1999) & 459.0125 (West 1991 & Supp. 1999); GA. CODE ANN. § 43-34-21 (1997); HAW. REV. STAT. ANN. § 671-3 (1993); 20 ILL. COMP. STAT. ANN. 2310/55.49 (West 1992 & Supp. 1999); KAN. STAT. ANN. § 65-2836 (1992 & Supp. 1998); KY. REV. STAT. ANN. § 311.935 (Banks-Baldwin 1995 & Supp. 1998); ME. REV. STAT. ANN. tit. 21, § 2905-A (West 1997); MD. CODE ANN., HEALTH-GEN. § 20-113 (Michie 1996); MD. CODE ANN., HEALTH OCC. § 14-404 (1994 & Supp. 1998); MICH. COMP. LAWS ANN. §§ 333.17013 & 333.17513 (Michie 1992); MINN. STAT. ANN. § 144.651, subd. 9 (West 1998 & Supp. 1999); MONT. CODE ANN. § 37-3-333 (1999); N.J. STAT. ANN. §§ 26:2-168 (West 1996), 45:9-22.3a & 3b (West 1991); N.Y. PUB. HEALTH § 2404 (McKinney 1993 & Supp. 1999); PA. STAT. ANN. tit. 35, § 5641 (West 1993); TEX. HEALTH & SAFETY CODE ANN. § 86.002 (West 1992); VA. CODE ANN. § 54.1-2971 (Michie 1998). See also Utah Code Ann. § 26-21a-301 (1998) (providing for creation of an educational program to assist the public in understanding, inter alia, available options for treatment). For a general analysis of these laws, see Nayfield et al., supra note 149.
733. See, e.g., CAL. HEALTH & SAFETY CODE §§ 109275 (1996) & 109277 (West Supp. 1995); CAL. BUS. & PROF. CODE § 2257 (West 1990 & Supp. 1999); FLA. STAT. ANN. §§ 240.5121 (West 1998 & Supp. 1999), 458.324 (West 1991 & Supp. 1999) & 459.0125 (West 1991 & Supp. 1999); GA. CODE ANN. § 43-34-21 (1997); HAW. REV. STAT. ANN. § 671-3 (1993); 20 ILL. COMP. STAT. ANN. 2310/55.49 (West 1992 & Supp. 1999); KAN. STAT. ANN. § 65-2836 (1992 & Supp. 1998); KY. REV. STAT. ANN. § 311.935 (Banks-Baldwin 1995 & Supp. 1998); ME. REV. STAT. ANN. tit. 21, § 2905-A (West 1997); MD. CODE ANN., HEALTH-GEN. § 20-113 (Michie 1996); MD. CODE ANN., HEALTH OCC. § 14-404 (1994 & Supp. 1998); MICH. COMP. LAWS ANN. §§ 333.17013 & 333.17513 (Michie 1992); MINN. STAT. ANN. § 144.651, subd. 9 (West 1998 & Supp. 1999); MONT. CODE ANN. § 37-3-333 (1999); N.J. STAT. ANN. §§ 26:2-168 (West 1996), 45:9-22.3a & 3b (West 1991); N.Y. PUB. HEALTH § 2404 (McKinney 1993 & Supp. 1999); PA. STAT. ANN. tit. 35, § 5641 (West 1993); TEX. HEALTH & SAFETY CODE ANN. § 86.002 (West 1992); VA. CODE ANN. § 54.1-2971 (Michie 1998). See also Utah Code Ann. § 26-21a-301 (1998) (providing for creation of an educational program to assist the public in understanding, inter alia, available options for treatment). For a general analysis of these laws, see Nayfield et al., supra note 149.
734. See, e.g., CAL. HEALTH & SAFETY CODE §§ 109275 (1996) & 109277 (West Supp. 1995); CAL. BUS. & PROF. CODE § 2257 (West 1990 & Supp. 1999); FLA. STAT. ANN. §§ 240.5121 (West 1998 & Supp. 1999), 458.324 (West 1991 & Supp. 1999) & 459.0125 (West 1991 & Supp. 1999); GA. CODE ANN. § 43-34-21 (1997); HAW. REV. STAT. ANN. § 671-3 (1993); 20 ILL. COMP. STAT. ANN. 2310/55.49 (West 1992 & Supp. 1999); KAN. STAT. ANN. § 65-2836 (1992 & Supp. 1998); KY. REV. STAT. ANN. § 311.935 (Banks-Baldwin 1995 & Supp. 1998); ME. REV. STAT. ANN. tit. 21, § 2905-A (West 1997); MD. CODE ANN., HEALTH-GEN. § 20-113 (Michie 1996); MD. CODE ANN., HEALTH OCC. § 14-404 (1994 & Supp. 1998); MICH. COMP. LAWS ANN. §§ 333.17013 & 333.17513 (Michie 1992); MINN. STAT. ANN. § 144.651, subd. 9 (West 1998 & Supp. 1999); MONT. CODE ANN. § 37-3-333 (1999); N.J. STAT. ANN. §§ 26:2-168 (West 1996), 45:9-22.3a & 3b (West 1991); N.Y. PUB. HEALTH § 2404 (McKinney 1993 & Supp. 1999); PA. STAT. ANN. tit. 35, § 5641 (West 1993); TEX. HEALTH & SAFETY CODE ANN. § 86.002 (West 1992); VA. CODE ANN. § 54.1-2971 (Michie 1998). See also Utah Code Ann. § 26-21a-301 (1998) (providing for creation of an educational program to assist the public in understanding, inter alia, available options for treatment). For a general analysis of these laws, see Nayfield et al., supra note 149.
735. See, e.g., CAL. HEALTH & SAFETY CODE §§ 109275 (1996) & 109277 (West Supp. 1995); CAL. BUS. & PROF. CODE § 2257 (West 1990 & Supp. 1999); FLA. STAT. ANN. §§ 240.5121 (West 1998 & Supp. 1999), 458.324 (West 1991 & Supp. 1999) & 459.0125 (West 1991 & Supp. 1999); GA. CODE ANN. § 43-34-21 (1997); HAW. REV. STAT. ANN. § 671-3 (1993); 20 ILL. COMP. STAT. ANN. 2310/55.49 (West 1992 & Supp. 1999); KAN. STAT. ANN. § 65-2836 (1992 & Supp. 1998); KY. REV. STAT. ANN. § 311.935 (Banks-Baldwin 1995 & Supp. 1998); ME. REV. STAT. ANN. tit. 21, § 2905-A (West 1997); MD. CODE ANN., HEALTH-GEN. § 20-113 (Michie 1996); MD. CODE ANN., HEALTH OCC. § 14-404 (1994 & Supp. 1998); MICH. COMP. LAWS ANN. §§ 333.17013 & 333.17513 (Michie 1992); MINN. STAT. ANN. § 144.651, subd. 9 (West 1998 & Supp. 1999); MONT. CODE ANN. § 37-3-333 (1999); N.J. STAT. ANN. §§ 26:2-168 (West 1996), 45:9-22.3a & 3b (West 1991); N.Y. PUB. HEALTH § 2404 (McKinney 1993 & Supp. 1999); PA. STAT. ANN. tit. 35, § 5641 (West 1993); TEX. HEALTH & SAFETY CODE ANN. § 86.002 (West 1992); VA. CODE ANN. § 54.1-2971
736. See, e.g., CAL. HEALTH & SAFETY CODE §§ 109275 (1996) & 109277 (West Supp. 1995); CAL. BUS. & PROF. CODE § 2257 (West 1990 & Supp. 1999); FLA. STAT. ANN. §§ 240.5121 (West 1998 & Supp. 1999), 458.324 (West 1991 & Supp. 1999) & 459.0125 (West 1991 & Supp. 1999); GA. CODE ANN. § 43-34-21 (1997); HAW. REV. STAT. ANN. § 671-3 (1993); 20 ILL. COMP. STAT. ANN. 2310/55.49 (West 1992 & Supp. 1999); KAN. STAT. ANN. § 65-2836 (1992 & Supp. 1998); KY. REV. STAT. ANN. § 311.935 (Banks-Baldwin 1995 & Supp. 1998); ME. REV. STAT. ANN. tit. 21, § 2905-A (West 1997); MD. CODE ANN., HEALTH-GEN. § 20-113 (Michie 1996); MD. CODE ANN., HEALTH OCC. § 14-404 (1994 & Supp. 1998); MICH. COMP. LAWS ANN. §§ 333.17013 & 333.17513 (Michie 1992); MINN. STAT. ANN. § 144.651, subd. 9 (West 1998 & Supp. 1999); MONT. CODE ANN. § 37-3-333 (1999); N.J. STAT. ANN. §§ 26:2-168 (West 1996), 45:9-22.3a & 3b (West 1991); N.Y. PUB. HEALTH § 2404 (McKinney 1993 & Supp. 1999); PA. STAT. ANN. tit. 35, § 5641 (West 1993); TEX. HEALTH & SAFETY CODE ANN. § 86.002 (West 1992); VA. CODE ANN. § 54.1-2971 (Michie 1998). See also Utah Code Ann. § 26-21a-301 (1998) (providing for creation of an educational program to assist the public in understanding, inter alia, available options for treatment). For a general analysis of these laws, see Nayfield et al., supra note 149.
737. See, e.g., CAL. HEALTH & SAFETY CODE §§ 109275 (1996) & 109277 (West Supp. 1995); CAL. BUS. & PROF. CODE § 2257 (West 1990 & Supp. 1999); FLA. STAT. ANN. §§ 240.5121 (West 1998 & Supp. 1999), 458.324 (West 1991 & Supp. 1999) & 459.0125 (West 1991 & Supp. 1999); GA. CODE ANN. § 43-34-21 (1997); HAW. REV. STAT. ANN. § 671-3 (1993); 20 ILL. COMP. STAT. ANN. 2310/55.49 (West 1992 & Supp. 1999); KAN. STAT. ANN. § 65-2836 (1992 & Supp. 1998); KY. REV. STAT. ANN. § 311.935 (Banks-Baldwin 1995 & Supp. 1998); ME. REV. STAT. ANN. tit. 21, § 2905-A (West 1997); MD. CODE ANN., HEALTH-GEN. § 20-113 (Michie 1996); MD. CODE ANN., HEALTH OCC. § 14-404 (1994 & Supp. 1998); MICH. COMP. LAWS ANN. §§ 333.17013 & 333.17513 (Michie 1992); MINN. STAT. ANN. § 144.651, subd. 9 (West 1998 & Supp. 1999); MONT. CODE ANN. § 37-3-333 (1999); N.J. STAT. ANN. §§ 26:2-168 (West 1996), 45:9-22.3a & 3b (West 1991); N.Y. PUB. HEALTH § 2404 (McKinney 1993 & Supp. 1999); PA. STAT. ANN. tit. 35, § 5641 (West 1993); TEX. HEALTH & SAFETY CODE ANN. § 86.002 (West 1992); VA. CODE ANN. § 54.1-2971 (Michie 1998). See also Utah Code Ann. § 26-21a-301 (1998) (providing for creation of an educational program to assist the public in understanding, inter alia, available options for treatment). For a general analysis of these laws, see Nayfield et al., supra note 149.
738. See, e.g., CAL. HEALTH & SAFETY CODE §§ 109275 (1996) & 109277 (West Supp. 1995); CAL. BUS. & PROF. CODE § 2257 (West 1990 & Supp. 1999); FLA. STAT. ANN. §§ 240.5121 (West 1998 & Supp. 1999), 458.324 (West 1991 & Supp. 1999) & 459.0125 (West 1991 & Supp. 1999); GA. CODE ANN. § 43-34-21 (1997); HAW. REV. STAT. ANN. § 671-3 (1993); 20 ILL. COMP. STAT. ANN. 2310/55.49 (West 1992 & Supp. 1999); KAN. STAT. ANN. § 65-2836 (1992 & Supp. 1998); KY. REV. STAT. ANN. § 311.935 (Banks-Baldwin 1995 & Supp. 1998); ME. REV. STAT. ANN. tit. 21, § 2905-A (West 1997); MD. CODE ANN., HEALTH-GEN. § 20-113 (Michie 1996); MD. CODE ANN., HEALTH OCC. § 14-404 (1994 & Supp. 1998); MICH. COMP. LAWS ANN. §§ 333.17013 & 333.17513 (Michie 1992); MINN. STAT. ANN. § 144.651, subd. 9 (West 1998 & Supp. 1999); MONT. CODE ANN. § 37-3-333 (1999); N.J. STAT. ANN. §§ 26:2-168 (West 1996), 45:9-22.3a & 3b (West 1991); N.Y. PUB. HEALTH § 2404 (McKinney 1993 & Supp. 1999); PA. STAT. ANN. tit. 35, § 5641 (West 1993); TEX. HEALTH & SAFETY CODE ANN. § 86.002 (West 1992); VA. CODE ANN. § 54.1-2971 (Michie 1998). See also Utah Code Ann. § 26-21a-301 (1998) (providing for creation of an educational program to assist the public in understanding, inter alia, available options for treatment). For a general analysis of these laws, see Nayfield et al., supra note 149.
739. See, e.g., CAL. HEALTH & SAFETY CODE §§ 109275 (1996) & 109277 (West Supp. 1995); CAL. BUS. & PROF. CODE § 2257 (West 1990 & Supp. 1999); FLA. STAT. ANN. §§ 240.5121 (West 1998 & Supp. 1999), 458.324 (West 1991 & Supp. 1999) & 459.0125 (West 1991 & Supp. 1999); GA. CODE ANN. § 43-34-21 (1997); HAW. REV. STAT. ANN. § 671-3 (1993); 20 ILL. COMP. STAT. ANN. 2310/55.49 (West 1992 & Supp. 1999); KAN. STAT. ANN. § 65-2836 (1992 & Supp. 1998); KY. REV. STAT. ANN. § 311.935 (Banks-Baldwin 1995 & Supp. 1998); ME. REV. STAT. ANN. tit. 21, § 2905-A (West 1997); MD. CODE ANN., HEALTH-GEN. § 20-113 (Michie 1996); MD. CODE ANN., HEALTH OCC. § 14-404 (1994 & Supp. 1998); MICH. COMP. LAWS ANN. §§ 333.17013 & 333.17513 (Michie 1992); MINN. STAT. ANN. § 144.651, subd. 9 (West 1998 & Supp. 1999); MONT. CODE ANN. § 37-3-333 (1999); N.J. STAT. ANN. §§ 26:2-168 (West 1996), 45:9-22.3a & 3b (West 1991); N.Y. PUB. HEALTH § 2404 (McKinney 1993 & Supp. 1999); PA. STAT. ANN. tit. 35, § 5641 (West 1993); TEX. HEALTH & SAFETY CODE ANN. § 86.002 (West 1992); VA. CODE ANN. § 54.1-2971 (Michie 1998). See also Utah Code Ann. § 26-21a-301 (1998) (providing for creation of an educational program to assist the public in understanding, inter alia, available options for treatment). For a general analysis of these laws, see Nayfield et al., supra note 149.
740. See, e.g., CAL. HEALTH & SAFETY CODE §§ 109275 (1996) & 109277 (West Supp. 1995); CAL. BUS. & PROF. CODE § 2257 (West 1990 & Supp. 1999); FLA. STAT. ANN. §§ 240.5121 (West 1998 & Supp. 1999), 458.324 (West 1991 & Supp. 1999) & 459.0125 (West 1991 & Supp. 1999); GA. CODE ANN. § 43-34-21 (1997); HAW. REV. STAT. ANN. § 671-3 (1993); 20 ILL. COMP. STAT. ANN. 2310/55.49 (West 1992 & Supp. 1999); KAN. STAT. ANN. § 65-2836 (1992 & Supp. 1998); KY. REV. STAT. ANN. § 311.935 (Banks-Baldwin 1995 & Supp. 1998); ME. REV. STAT. ANN. tit. 21, § 2905-A (West 1997); MD. CODE ANN., HEALTH-GEN. § 20-113 (Michie 1996); MD. CODE ANN., HEALTH OCC. § 14-404 (1994 & Supp. 1998); MICH. COMP. LAWS ANN. §§ 333.17013 & 333.17513 (Michie 1992); MINN. STAT. ANN. § 144.651, subd. 9 (West 1998 & Supp. 1999); MONT. CODE ANN. § 37-3-333 (1999); N.J. STAT. ANN. §§ 26:2-168 (West 1996), 45:9-22.3a & 3b (West 1991); N.Y. PUB. HEALTH § 2404 (McKinney 1993 & Supp. 1999); PA. STAT. ANN. tit. 35, § 5641 (West 1993); TEX. HEALTH & SAFETY CODE ANN. § 86.002 (West 1992); VA. CODE ANN. § 54.1-2971 (Michie 1998). See also Utah Code Ann. § 26-21a-301 (1998) (providing for creation of an educational program to assist the public in understanding, inter alia, available options for treatment). For a general analysis of these laws, see Nayfield et al., supra note 149.
741. See, e.g., CAL. HEALTH & SAFETY CODE §§ 109275 (1996) & 109277 (West Supp. 1995); CAL. BUS. & PROF. CODE § 2257 (West 1990 & Supp. 1999); FLA. STAT. ANN. §§ 240.5121 (West 1998 & Supp. 1999), 458.324 (West 1991 & Supp. 1999) & 459.0125 (West 1991 & Supp. 1999); GA. CODE ANN. § 43-34-21 (1997); HAW. REV. STAT. ANN. § 671-3 (1993); 20 ILL. COMP. STAT. ANN. 2310/55.49 (West 1992 & Supp. 1999); KAN. STAT. ANN. § 65-2836 (1992 & Supp. 1998); KY. REV. STAT. ANN. § 311.935 (Banks-Baldwin 1995 & Supp. 1998); ME. REV. STAT. ANN. tit. 21, § 2905-A (West 1997); MD. CODE ANN., HEALTH-GEN. § 20-113 (Michie 1996); MD. CODE ANN., HEALTH OCC. § 14-404 (1994 & Supp. 1998); MICH. COMP. LAWS ANN. §§ 333.17013 & 333.17513 (Michie 1992); MINN. STAT. ANN. § 144.651, subd. 9 (West 1998 & Supp. 1999); MONT. CODE ANN. § 37-3-333 (1999); N.J. STAT. ANN. §§ 26:2-168 (West 1996), 45:9-22.3a & 3b (West 1991); N.Y. PUB. HEALTH § 2404 (McKinney 1993 & Supp. 1999); PA. STAT. ANN. tit. 35, § 5641 (West 1993); TEX. HEALTH & SAFETY CODE ANN. § 86.002 (West 1992); VA. CODE ANN. § 54.1-2971 (Michie 1998). See also Utah Code Ann. § 26-21a-301 (1998) (providing for creation of an educational program to assist the public in understanding, inter alia, available options for treatment). For a general analysis of these laws, see Nayfield et al., supra note 149.
742. See, e.g., CAL. HEALTH & SAFETY CODE §§ 109275 (1996) & 109277 (West Supp. 1995); CAL. BUS. & PROF. CODE § 2257 (West 1990 & Supp. 1999); FLA. STAT. ANN. §§ 240.5121 (West 1998 & Supp. 1999), 458.324 (West 1991 & Supp. 1999) & 459.0125 (West 1991 & Supp. 1999); GA. CODE ANN. § 43-34-21 (1997); HAW. REV. STAT. ANN. § 671-3 (1993); 20 ILL. COMP. STAT. ANN. 2310/55.49 (West 1992 & Supp. 1999); KAN. STAT. ANN. § 65-2836 (1992 & Supp. 1998); KY. REV. STAT. ANN. § 311.935 (Banks-Baldwin 1995 & Supp. 1998); ME. REV. STAT. ANN. tit. 21, § 2905-A (West 1997); MD. CODE ANN., HEALTH-GEN. § 20-113 (Michie 1996); MD. CODE ANN., HEALTH OCC. § 14-404 (1994 & Supp. 1998); MICH. COMP. LAWS ANN. §§ 333.17013 & 333.17513 (Michie 1992); MINN. STAT. ANN. § 144.651, subd. 9 (West 1998 & Supp. 1999); MONT. CODE ANN. § 37-3-333 (1999); N.J. STAT. ANN. §§ 26:2-168 (West 1996), 45:9-22.3a & 3b (West 1991); N.Y. PUB. HEALTH § 2404 (McKinney 1993 & Supp. 1999); PA. STAT. ANN. tit. 35, § 5641 (West 1993); TEX. HEALTH & SAFETY CODE ANN. § 86.002 (West 1992); VA. CODE ANN. § 54.1-2971 (Michie 1998). See also Utah Code Ann. § 26-21a-301 (1998) (providing for creation of an educational program to assist the public in understanding, inter alia, available options for treatment). For a general analysis of these laws, see Nayfield et al., supra note 149.
743. See, e.g., CAL. HEALTH & SAFETY CODE §§ 109275 (1996) & 109277 (West Supp. 1995); CAL. BUS. & PROF. CODE § 2257 (West 1990 & Supp. 1999); FLA. STAT. ANN. §§ 240.5121 (West 1998 & Supp. 1999), 458.324 (West 1991 & Supp. 1999) & 459.0125 (West 1991 & Supp. 1999); GA. CODE ANN. § 43-34-21 (1997); HAW. REV. STAT. ANN. § 671-3 (1993); 20 ILL. COMP. STAT. ANN. 2310/55.49 (West 1992 & Supp. 1999); KAN. STAT. ANN. § 65-2836 (1992 & Supp. 1998); KY. REV. STAT. ANN. § 311.935 (Banks-Baldwin 1995 & Supp. 1998); ME. REV. STAT. ANN. tit. 21, § 2905-A (West 1997); MD. CODE ANN., HEALTH-GEN. § 20-113 (Michie 1996); MD. CODE ANN., HEALTH OCC. § 14-404 (1994 & Supp. 1998); MICH. COMP. LAWS ANN. §§ 333.17013 & 333.17513 (Michie 1992); MINN. STAT. ANN. § 144.651, subd. 9 (West 1998 & Supp. 1999); MONT. CODE ANN. § 37-3-333 (1999); N.J. STAT. ANN. §§ 26:2-168 (West 1996), 45:9-22.3a & 3b (West 1991); N.Y. PUB. HEALTH § 2404 (McKinney 1993 & Supp. 1999); PA. STAT. ANN. tit. 35, § 5641 (West 1993); TEX. HEALTH & SAFETY CODE ANN. § 86.002 (West 1992); VA. CODE ANN. § 54.1-2971 (Michie 1998). See also Utah Code Ann. § 26-21a-301 (1998) (providing for creation of an educational program to assist the public in understanding, inter alia, available options for treatment). For a general analysis of these laws, see Nayfield et al., supra note 149.
744. See, e.g., CAL. HEALTH & SAFETY CODE §§ 109275 (1996) & 109277 (West Supp. 1995); CAL. BUS. & PROF. CODE § 2257 (West 1990 & Supp. 1999); FLA. STAT. ANN. §§ 240.5121 (West 1998 & Supp. 1999), 458.324 (West 1991 & Supp. 1999) & 459.0125 (West 1991 & Supp. 1999); GA. CODE ANN. § 43-34-21 (1997); HAW. REV. STAT. ANN. § 671-3 (1993); 20 ILL. COMP. STAT. ANN. 2310/55.49 (West 1992 & Supp. 1999); KAN. STAT. ANN. § 65-2836 (1992 & Supp. 1998); KY. REV. STAT. ANN. § 311.935 (Banks-Baldwin 1995 & Supp. 1998); ME. REV. STAT. ANN. tit. 21, § 2905-A (West 1997); MD. CODE ANN., HEALTH-GEN. § 20-113 (Michie 1996); MD. CODE ANN., HEALTH OCC. § 14-404 (1994 & Supp. 1998); MICH. COMP. LAWS ANN. §§ 333.17013 & 333.17513 (Michie 1992); MINN. STAT. ANN. § 144.651, subd. 9 (West 1998 & Supp. 1999); MONT. CODE ANN. § 37-3-333 (1999); N.J. STAT. ANN. §§ 26:2-168 (West 1996), 45:9-22.3a & 3b (West 1991); N.Y. PUB. HEALTH § 2404 (McKinney 1993 & Supp. 1999); PA. STAT. ANN. tit. 35, § 5641 (West 1993); TEX. HEALTH & SAFETY CODE ANN. § 86.002 (West 1992); VA. CODE ANN. § 54.1-2971 (Michie 1998). See also Utah Code Ann. § 26-21a-301 (1998) (providing for creation of an educational program to assist the public in understanding, inter alia, available options for treatment). For a general analysis of these laws, see Nayfield et al., supra note 149.
745. See, e.g., CAL. HEALTH & SAFETY CODE §§ 109275 (1996) & 109277 (West Supp. 1995); CAL. BUS. & PROF. CODE § 2257 (West 1990 & Supp. 1999); FLA. STAT. ANN. §§ 240.5121 (West 1998 & Supp. 1999), 458.324 (West 1991 & Supp. 1999) & 459.0125 (West 1991 & Supp. 1999); GA. CODE ANN. § 43-34-21 (1997); HAW. REV. STAT. ANN. § 671-3 (1993); 20 ILL. COMP. STAT. ANN. 2310/55.49 (West 1992 & Supp. 1999); KAN. STAT. ANN. § 65-2836 (1992 & Supp. 1998); KY. REV. STAT. ANN. § 311.935 (Banks-Baldwin 1995 & Supp. 1998); ME. REV. STAT. ANN. tit. 21, § 2905-A (West 1997); MD. CODE ANN., HEALTH-GEN. § 20-113 (Michie 1996); MD. CODE ANN., HEALTH OCC. § 14-404 (1994 & Supp. 1998); MICH. COMP. LAWS ANN. §§ 333.17013 & 333.17513 (Michie 1992); MINN. STAT. ANN. § 144.651, subd. 9 (West 1998 & Supp. 1999); MONT. CODE ANN. § 37-3-333 (1999); N.J. STAT. ANN. §§ 26:2-168 (West 1996), 45:9-22.3a & 3b (West 1991); N.Y. PUB. HEALTH § 2404 (McKinney 1993 & Supp. 1999); PA. STAT. ANN. tit. 35, § 5641 (West 1993); TEX. HEALTH & SAFETY CODE ANN. § 86.002 (West 1992); VA. CODE ANN. § 54.1-2971 (Michie 1998). See also Utah Code Ann. § 26-21a-301 (1998) (providing for creation of an educational program to assist the public in understanding, inter alia, available options for treatment). For a general analysis of these laws, see Nayfield et al., supra note 149.
746. See, e.g., CAL. HEALTH & SAFETY CODE §§ 109275 (1996) & 109277 (West Supp. 1995); CAL. BUS. & PROF. CODE § 2257 (West 1990 & Supp. 1999); FLA. STAT. ANN. §§ 240.5121 (West 1998 & Supp. 1999), 458.324 (West 1991 & Supp. 1999) & 459.0125 (West 1991 & Supp. 1999); GA. CODE ANN. § 43-34-21 (1997); HAW. REV. STAT. ANN. § 671-3 (1993); 20 ILL. COMP. STAT. ANN. 2310/55.49 (West 1992 & Supp. 1999); KAN. STAT. ANN. § 65-2836 (1992 & Supp. 1998); KY. REV. STAT. ANN. § 311.935 (Banks-Baldwin 1995 & Supp. 1998); ME. REV. STAT. ANN. tit. 21, § 2905-A (West 1997); MD. CODE ANN., HEALTH-GEN. § 20-113 (Michie 1996); MD. CODE ANN., HEALTH OCC. § 14-404 (1994 & Supp. 1998); MICH. COMP. LAWS ANN. §§ 333.17013 & 333.17513 (Michie 1992); MINN. STAT. ANN. § 144.651, subd. 9 (West 1998 & Supp. 1999); MONT. CODE ANN. § 37-3-333 (1999); N.J. STAT. ANN. §§ 26:2-168 (West 1996), 45:9-22.3a & 3b (West 1991); N.Y. PUB. HEALTH § 2404 (McKinney 1993 & Supp. 1999); PA. STAT. ANN. tit. 35, § 5641 (West 1993); TEX. HEALTH & SAFETY CODE ANN. § 86.002 (West 1992); VA. CODE ANN. § 54.1-2971 (Michie 1998). See also Utah Code Ann. § 26-21a-301 (1998) (providing for creation of an educational program to assist the public in understanding, inter alia, available options for treatment). For a general analysis of these laws, see Nayfield et al., supra note 149.
747. See, e.g., CAL. HEALTH & SAFETY CODE §§ 109275 (1996) & 109277 (West Supp. 1995); CAL. BUS. & PROF. CODE § 2257 (West 1990 & Supp. 1999); FLA. STAT. ANN. §§ 240.5121 (West 1998 & Supp. 1999), 458.324 (West 1991 & Supp. 1999) & 459.0125 (West 1991 & Supp. 1999); GA. CODE ANN. § 43-34-21 (1997); HAW. REV. STAT. ANN. § 671-3 (1993); 20 ILL. COMP. STAT. ANN. 2310/55.49 (West 1992 & Supp. 1999); KAN. STAT. ANN. § 65-2836 (1992 & Supp. 1998); KY. REV. STAT. ANN. § 311.935 (Banks-Baldwin 1995 & Supp. 1998); ME. REV. STAT. ANN. tit. 21, § 2905-A (West 1997); MD. CODE ANN., HEALTH-GEN. § 20-113 (Michie 1996); MD. CODE ANN., HEALTH OCC. § 14-404 (1994 & Supp. 1998); MICH. COMP. LAWS ANN. §§ 333.17013 & 333.17513 (Michie 1992); MINN. STAT. ANN. § 144.651, subd. 9 (West 1998 & Supp. 1999); MONT. CODE ANN. § 37-3-333 (1999); N.J. STAT. ANN. §§ 26:2-168 (West 1996), 45:9-22.3a & 3b (West 1991); N.Y. PUB. HEALTH § 2404 (McKinney 1993 & Supp. 1999); PA. STAT. ANN. tit. 35, § 5641 (West 1993); TEX. HEALTH & SAFETY CODE ANN. § 86.002 (West 1992); VA. CODE ANN. § 54.1-2971 (Michie 1998). See also Utah Code Ann. § 26-21a-301 (1998) (providing for creation of an educational program to assist the public in understanding, inter alia, available options for treatment). For a general analysis of these laws, see Nayfield et al., supra note 149.
748. See, e.g., CAL. HEALTH & SAFETY CODE §§ 109275 (1996) & 109277 (West Supp. 1995); CAL. BUS. & PROF. CODE § 2257 (West 1990 & Supp. 1999); FLA. STAT. ANN. §§ 240.5121 (West 1998 & Supp. 1999), 458.324 (West 1991 & Supp. 1999) & 459.0125 (West 1991 & Supp. 1999); GA. CODE ANN. § 43-34-21 (1997); HAW. REV. STAT. ANN. § 671-3 (1993); 20 ILL. COMP. STAT. ANN. 2310/55.49 (West 1992 & Supp. 1999); KAN. STAT. ANN. § 65-2836 (1992 & Supp. 1998); KY. REV. STAT. ANN. § 311.935 (Banks-Baldwin 1995 & Supp. 1998); ME. REV. STAT. ANN. tit. 21, § 2905-A (West 1997); MD. CODE ANN., HEALTH-GEN. § 20-113 (Michie 1996); MD. CODE ANN., HEALTH OCC. § 14-404 (1994 & Supp. 1998); MICH. COMP. LAWS ANN. §§ 333.17013 & 333.17513 (Michie 1992); MINN. STAT. ANN. § 144.651, subd. 9 (West 1998 & Supp. 1999); MONT. CODE ANN. § 37-3-333 (1999); N.J. STAT. ANN. §§ 26:2-168 (West 1996), 45:9-22.3a & 3b (West 1991); N.Y. PUB. HEALTH § 2404 (McKinney 1993 & Supp. 1999); PA. STAT. ANN. tit. 35, § 5641 (West 1993); TEX. HEALTH & SAFETY CODE ANN. § 86.002 (West 1992); VA. CODE ANN. § 54.1-2971 (Michie 1998). See also Utah Code Ann. § 26-21a-301 (1998) (providing for creation of an educational program to assist the public in understanding, inter alia, available options for treatment). For a general analysis of these laws, see Nayfield et al., supra note 149.
749. See, e.g., CAL. HEALTH & SAFETY CODE §§ 109275 (1996) & 109277 (West Supp. 1995); CAL. BUS. & PROF. CODE § 2257 (West 1990 & Supp. 1999); FLA. STAT. ANN. §§ 240.5121 (West 1998 & Supp. 1999), 458.324 (West 1991 & Supp. 1999) & 459.0125 (West 1991 & Supp. 1999); GA. CODE ANN. § 43-34-21 (1997); HAW. REV. STAT. ANN. § 671-3 (1993); 20 ILL. COMP. STAT. ANN. 2310/55.49 (West 1992 & Supp. 1999); KAN. STAT. ANN. § 65-2836 (1992 & Supp. 1998); KY. REV. STAT. ANN. § 311.935 (Banks-Baldwin 1995 & Supp. 1998); ME. REV. STAT. ANN. tit. 21, § 2905-A (West 1997); MD. CODE ANN., HEALTH-GEN. § 20-113 (Michie 1996); MD. CODE ANN., HEALTH OCC. § 14-404 (1994 & Supp. 1998); MICH. COMP. LAWS ANN. §§ 333.17013 & 333.17513 (Michie 1992); MINN. STAT. ANN. § 144.651, subd. 9 (West 1998 & Supp. 1999); MONT. CODE ANN. § 37-3-333 (1999); N.J. STAT. ANN. §§ 26:2-168 (West 1996), 45:9-22.3a & 3b (West 1991); N.Y. PUB. HEALTH § 2404 (McKinney 1993 & Supp. 1999); PA. STAT. ANN. tit. 35, § 5641 (West 1993); TEX. HEALTH & SAFETY CODE ANN. § 86.002 (West 1992); VA. CODE ANN. § 54.1-2971 (Michie 1998). See also Utah Code Ann. § 26-21a-301 (1998) (providing for creation of an educational program to assist the public in understanding, inter alia, available options for treatment). For a general analysis of these laws, see Nayfield et al., supra note 149.
750. See, e.g., CAL. HEALTH & SAFETY CODE §§ 109275 (1996) & 109277 (West Supp. 1995); CAL. BUS. & PROF. CODE § 2257 (West 1990 & Supp. 1999); FLA. STAT. ANN. §§ 240.5121 (West 1998 & Supp. 1999), 458.324 (West 1991 & Supp. 1999) & 459.0125 (West 1991 & Supp. 1999); GA. CODE ANN. § 43-34-21 (1997); HAW. REV. STAT. ANN. § 671-3 (1993); 20 ILL. COMP. STAT. ANN. 2310/55.49 (West 1992 & Supp. 1999); KAN. STAT. ANN. § 65-2836 (1992 & Supp. 1998); KY. REV. STAT. ANN. § 311.935 (Banks-Baldwin 1995 & Supp. 1998); ME. REV. STAT. ANN. tit. 21, § 2905-A (West 1997); MD. CODE ANN., HEALTH-GEN. § 20-113 (Michie 1996); MD. CODE ANN., HEALTH OCC. § 14-404 (1994 & Supp. 1998); MICH. COMP. LAWS ANN. §§ 333.17013 & 333.17513 (Michie 1992); MINN. STAT. ANN. § 144.651, subd. 9 (West 1998 & Supp. 1999); MONT. CODE ANN. § 37-3-333 (1999); N.J. STAT. ANN. §§ 26:2-168 (West 1996), 45:9-22.3a & 3b (West 1991); N.Y. PUB. HEALTH § 2404 (McKinney 1993 & Supp. 1999); PA. STAT. ANN. tit. 35, § 5641 (West 1993); TEX. HEALTH & SAFETY CODE ANN. § 86.002 (West 1992); VA. CODE ANN. § 54.1-2971 (Michie 1998). See also Utah Code Ann. § 26-21a-301 (1998) (providing for creation of an educational program to assist the public in understanding, inter alia, available options for treatment). For a general analysis of these laws, see Nayfield et al., supra note 149.
751. See, e.g., CAL. HEALTH & SAFETY CODE §§ 109275 (1996) & 109277 (West Supp. 1995); CAL. BUS. & PROF. CODE § 2257 (West 1990 & Supp. 1999); FLA. STAT. ANN. §§ 240.5121 (West 1998 & Supp. 1999), 458.324 (West 1991 & Supp. 1999) & 459.0125 (West 1991 & Supp. 1999); GA. CODE ANN. § 43-34-21 (1997); HAW. REV. STAT. ANN. § 671-3 (1993); 20 ILL. COMP. STAT. ANN. 2310/55.49 (West 1992 & Supp. 1999); KAN. STAT. ANN. § 65-2836 (1992 & Supp. 1998); KY. REV. STAT. ANN. § 311.935 (Banks-Baldwin 1995 & Supp. 1998); ME. REV. STAT. ANN. tit. 21, § 2905-A (West 1997); MD. CODE ANN., HEALTH-GEN. § 20-113 (Michie 1996); MD. CODE ANN., HEALTH OCC. § 14-404 (1994 & Supp. 1998); MICH. COMP. LAWS ANN. §§ 333.17013 & 333.17513 (Michie 1992); MINN. STAT. ANN. § 144.651, subd. 9 (West 1998 & Supp. 1999); MONT. CODE ANN. § 37-3-333 (1999); N.J. STAT. ANN. §§ 26:2-168 (West 1996), 45:9-22.3a & 3b (West 1991); N.Y. PUB. HEALTH § 2404 (McKinney 1993 & Supp. 1999); PA. STAT. ANN. tit. 35, § 5641 (West 1993); TEX. HEALTH & SAFETY CODE ANN. § 86.002 (West 1992); VA. CODE ANN. § 54.1-2971 (Michie 1998). See also Utah Code Ann. § 26-21a-301 (1998) (providing for creation of an educational program to assist the public in understanding, inter alia, available options for treatment). For a general analysis of these laws, see Nayfield et al., supra note 149.
752. CAL. HEALTH & SAFETY CODE § 109275(c)(1) (West 1996). For other methods of informing patients, see, for example, CAL. BUS. & PROF. CODE § 2257 (West 1990) (permitting posted notice of availability of summary wherever breast cancer screening or biopsies are performed). See also HAW. REV. STAT. ANN. § 671-3 (Michie 1995) (requiring board of medical examiners to establish disclosure standards); PA. STAT. ANN. tit. 35, § 5641 (West 1993) (requiring consent form); VA. CODE ANN. § 54.1-2971 (Michie 1998) (same).
753. CAL. HEALTH & SAFETY CODE § 109275(c)(1) (West 1996). For other methods of informing patients, see, for example, CAL. BUS. & PROF. CODE § 2257 (West 1990) (permitting posted notice of availability of summary wherever breast cancer screening or biopsies are performed). See also HAW. REV. STAT. ANN. § 671-3 (Michie 1995) (requiring board of medical examiners to establish disclosure standards); PA. STAT. ANN. tit. 35, § 5641 (West 1993) (requiring consent form); VA. CODE ANN. § 54.1-2971 (Michie 1998) (same).
754. CAL. HEALTH & SAFETY CODE § 109275(c)(1) (West 1996). For other methods of informing patients, see, for example, CAL. BUS. & PROF. CODE § 2257 (West 1990) (permitting posted notice of availability of summary wherever breast cancer screening or biopsies are performed). See also HAW. REV. STAT. ANN. § 671-3 (Michie 1995) (requiring board of medical examiners to establish disclosure standards); PA. STAT. ANN. tit. 35, § 5641 (West 1993) (requiring consent form); VA. CODE ANN. § 54.1-2971 (Michie 1998) (same).
755. CAL. HEALTH & SAFETY CODE § 109275(c)(1) (West 1996). For other methods of informing patients, see, for example, CAL. BUS. & PROF. CODE § 2257 (West 1990) (permitting posted notice of availability of summary wherever breast cancer screening or biopsies are performed). See also HAW. REV. STAT. ANN. § 671-3 (Michie 1995) (requiring board of medical examiners to establish disclosure standards); PA. STAT. ANN. tit. 35, § 5641 (West 1993) (requiring consent form); VA. CODE ANN. § 54.1-2971 (Michie 1998) (same).
756. CAL. HEALTH & SAFETY CODE § 109275(c)(1) (West 1996). For other methods of informing patients, see, for example, CAL. BUS. & PROF. CODE § 2257 (West 1990) (permitting posted notice of availability of summary wherever breast cancer screening or biopsies are performed). See also HAW. REV. STAT. ANN. § 671-3 (Michie 1995) (requiring board of medical examiners to establish disclosure standards); PA. STAT. ANN. tit. 35, § 5641 (West 1993) (requiring consent form); VA. CODE ANN. § 54.1-2971 (Michie 1998) (same).
757. CAL. HEALTH 81 SAFETY CODE § 109275(c)(1) (West Supp. 1995).
758. See, e.g., id. (requiring mandatory summary; physician must note provision of summary in chart prior to performing a biopsy); 20 ILL. COMP. STAT. ANN. 2310/55.49 (West 1992 & Supp. 1999) (Department of Public Health to distribute summaries to physicians, who shall make them available to the public); KAN. STAT. ANN. § 65-2836(m) (1992 & Supp. 1998) (stating that summary shall be given to patients); KY. REV. STAT. ANN. § 311.935 (Banks-Baldwin 1990) (requiring physician to provide summary to patients); MD. CODE ANN., HEALTH-GEN. § 20-113 (1996) (stating that physician shall provide copy of summary, and patient shall sign form acknowledging receipt); N.J. STAT. ANN. § 45:9-22.3a (West 1991) (requiring that physician give summary to patients); N.Y. PUB. HEALTH § 2404 (McKinney 1993 & Supp. 1999) (stating that summary shall be provided to patient by physician).
759. See, e.g., id. (requiring mandatory summary; physician must note provision of summary in chart prior to performing a biopsy); 20 ILL. COMP. STAT. ANN. 2310/55.49 (West 1992 & Supp. 1999) (Department of Public Health to distribute summaries to physicians, who shall make them available to the public); KAN. STAT. ANN. § 65-2836(m) (1992 & Supp. 1998) (stating that summary shall be given to patients); KY. REV. STAT. ANN. § 311.935 (Banks-Baldwin 1990) (requiring physician to provide summary to patients); MD. CODE ANN., HEALTH-GEN. § 20-113 (1996) (stating that physician shall provide copy of summary, and patient shall sign form acknowledging receipt); N.J. STAT. ANN. § 45:9-22.3a (West 1991) (requiring that physician give summary to patients); N.Y. PUB. HEALTH § 2404 (McKinney 1993 & Supp. 1999) (stating that summary shall be provided to patient by physician).
760. See, e.g., id. (requiring mandatory summary; physician must note provision of summary in chart prior to performing a biopsy); 20 ILL. COMP. STAT. ANN. 2310/55.49 (West 1992 & Supp. 1999) (Department of Public Health to distribute summaries to physicians, who shall make them available to the public); KAN. STAT. ANN. § 65-2836(m) (1992 & Supp. 1998) (stating that summary shall be given to patients); KY. REV. STAT. ANN. § 311.935 (Banks-Baldwin 1990) (requiring physician to provide summary to patients); MD. CODE ANN., HEALTH-GEN. § 20-113 (1996) (stating that physician shall provide copy of summary, and patient shall sign form acknowledging receipt); N.J. STAT. ANN. § 45:9-22.3a (West 1991) (requiring that physician give summary to patients); N.Y. PUB. HEALTH § 2404 (McKinney 1993 & Supp. 1999) (stating that summary shall be provided to patient by physician).
761. See, e.g., id. (requiring mandatory summary; physician must note provision of summary in chart prior to performing a biopsy); 20 ILL. COMP. STAT. ANN. 2310/55.49 (West 1992 & Supp. 1999) (Department of Public Health to distribute summaries to physicians, who shall make them available to the public); KAN. STAT. ANN. § 65-2836(m) (1992 & Supp. 1998) (stating that summary shall be given to patients); KY. REV. STAT. ANN. § 311.935 (Banks-Baldwin 1990) (requiring physician to provide summary to patients); MD. CODE ANN., HEALTH-GEN. § 20-113 (1996) (stating that physician shall provide copy of summary, and patient shall sign form acknowledging receipt); N.J. STAT. ANN. § 45:9-22.3a (West 1991) (requiring that physician give summary to patients); N.Y. PUB. HEALTH § 2404 (McKinney 1993 & Supp. 1999) (stating that summary shall be provided to patient by physician).
762. See, e.g., id. (requiring mandatory summary; physician must note provision of summary in chart prior to performing a biopsy); 20 ILL. COMP. STAT. ANN. 2310/55.49 (West 1992 & Supp. 1999) (Department of Public Health to distribute summaries to physicians, who shall make them available to the public); KAN. STAT. ANN. § 65-2836(m) (1992 & Supp. 1998) (stating that summary shall be given to patients); KY. REV. STAT. ANN. § 311.935 (Banks-Baldwin 1990) (requiring physician to provide summary to patients); MD. CODE ANN., HEALTH-GEN. § 20-113 (1996) (stating that physician shall provide copy of summary, and patient shall sign form acknowledging receipt); N.J. STAT. ANN. § 45:9-22.3a (West 1991) (requiring that physician give summary to patients); N.Y. PUB. HEALTH § 2404 (McKinney 1993 & Supp. 1999) (stating that summary shall be provided to patient by physician).
763. See, e.g., id. (requiring mandatory summary; physician must note provision of summary in chart prior to performing a biopsy); 20 ILL. COMP. STAT. ANN. 2310/55.49 (West 1992 & Supp. 1999) (Department of Public Health to distribute summaries to physicians, who shall make them available to the public); KAN. STAT. ANN. § 65-2836(m) (1992 & Supp. 1998) (stating that summary shall be given to patients); KY. REV. STAT. ANN. § 311.935 (Banks-Baldwin 1990) (requiring physician to provide summary to patients); MD. CODE ANN., HEALTH-GEN. § 20-113 (1996) (stating that physician shall provide copy of summary, and patient shall sign form acknowledging receipt); N.J. STAT. ANN. § 45:9-22.3a (West 1991) (requiring that physician give summary to patients); N.Y. PUB. HEALTH § 2404 (McKinney 1993 & Supp. 1999) (stating that summary shall be provided to patient by physician).
764. See, e.g., id. (requiring mandatory summary; physician must note provision of summary in chart prior to performing a biopsy); 20 ILL. COMP. STAT. ANN. 2310/55.49 (West 1992 & Supp. 1999) (Department of Public Health to distribute summaries to physicians, who shall make them available to the public); KAN. STAT. ANN. § 65-2836(m) (1992 & Supp. 1998) (stating that summary shall be given to patients); KY. REV. STAT. ANN. § 311.935 (Banks-Baldwin 1990) (requiring physician to provide summary to patients); MD. CODE ANN., HEALTH-GEN. § 20-113 (1996) (stating that physician shall provide copy of summary, and patient shall sign form acknowledging receipt); N.J. STAT. ANN. § 45:9-22.3a (West 1991) (requiring that physician give summary to patients); N.Y. PUB. HEALTH § 2404 (McKinney 1993 & Supp. 1999) (stating that summary shall be provided to patient by physician).
765. See, e.g., FLA. STAT. ANN. §§ 458.324 & 459.0125 (West 1997) (permitting physician to communicate information orally and/or by provision of a summary; physician must indicate compliance in patient's medical record); GA. CODE ANN. § 4324-21 (1997) (providing for creation of a summary when funds are appropriated; physicians urged to distribute copies); ME. REV. STAT. ANN. tit. 21, § 2905-A (West 1997) (stating that physician may meet duty to inform by providing patient with standardized written summary; form signed by patient shall be included in medical record); MICH. COMP. LAWS ANN. §§ 333.17013 & 333.17513 (West 1992) (providing that physician can satisfy obligations by providing patient with summary; form signed by patient acknowledging receipt shall be included in medical record); TEX. HEALTH & SAFETY CODE ANN. § 86.002 (West 1992) (requiring development of summary).
766. See, e.g., FLA. STAT. ANN. §§ 458.324 & 459.0125 (West 1997) (permitting physician to communicate information orally and/or by provision of a summary; physician must indicate compliance in patient's medical record); GA. CODE ANN. § 4324-21 (1997) (providing for creation of a summary when funds are appropriated; physicians urged to distribute copies); ME. REV. STAT. ANN. tit. 21, § 2905-A (West 1997) (stating that physician may meet duty to inform by providing patient with standardized written summary; form signed by patient shall be included in medical record); MICH. COMP. LAWS ANN. §§ 333.17013 & 333.17513 (West 1992) (providing that physician can satisfy obligations by providing patient with summary; form signed by patient acknowledging receipt shall be included in medical record); TEX. HEALTH & SAFETY CODE ANN. § 86.002 (West 1992) (requiring development of summary).
767. See, e.g., FLA. STAT. ANN. §§ 458.324 & 459.0125 (West 1997) (permitting physician to communicate information orally and/or by provision of a summary; physician must indicate compliance in patient's medical record); GA. CODE ANN. § 4324-21 (1997) (providing for creation of a summary when funds are appropriated; physicians urged to distribute copies); ME. REV. STAT. ANN. tit. 21, § 2905-A (West 1997) (stating that physician may meet duty to inform by providing patient with standardized written summary; form signed by patient shall be included in medical record); MICH. COMP. LAWS ANN. §§ 333.17013 & 333.17513 (West 1992) (providing that physician can satisfy obligations by providing patient with summary; form signed by patient acknowledging receipt shall be included in medical record); TEX. HEALTH & SAFETY CODE ANN. § 86.002 (West 1992) (requiring development of summary).
768. See, e.g., FLA. STAT. ANN. §§ 458.324 & 459.0125 (West 1997) (permitting physician to communicate information orally and/or by provision of a summary; physician must indicate compliance in patient's medical record); GA. CODE ANN. § 4324-21 (1997) (providing for creation of a summary when funds are appropriated; physicians urged to distribute copies); ME. REV. STAT. ANN. tit. 21, § 2905-A (West 1997) (stating that physician may meet duty to inform by providing patient with standardized written summary; form signed by patient shall be included in medical record); MICH. COMP. LAWS ANN. §§ 333.17013 & 333.17513 (West 1992) (providing that physician can satisfy obligations by providing patient with summary; form signed by patient acknowledging receipt shall be included in medical record); TEX. HEALTH & SAFETY CODE ANN. § 86.002 (West 1992) (requiring development of summary).
769. See, e.g., FLA. STAT. ANN. §§ 458.324 & 459.0125 (West 1997) (permitting physician to communicate information orally and/or by provision of a summary; physician must indicate compliance in patient's medical record); GA. CODE ANN. § 4324-21 (1997) (providing for creation of a summary when funds are appropriated; physicians urged to distribute copies); ME. REV. STAT. ANN. tit. 21, § 2905-A (West 1997) (stating that physician may meet duty to inform by providing patient with standardized written summary; form signed by patient shall be included in medical record); MICH. COMP. LAWS ANN. §§ 333.17013 & 333.17513 (West 1992) (providing that physician can satisfy obligations by providing patient with summary; form signed by patient acknowledging receipt shall be included in medical record); TEX. HEALTH & SAFETY CODE ANN. § 86.002 (West 1992) (requiring development of summary).
770. See ME. REV. STAT. ANN. tit. 21, § 2905-A(8) (West 1993); MICH. COMP. LAWS ANN. §§ 333.17013(7) (1992).
771. See ME. REV. STAT. ANN. tit. 21, § 2905-A(8) (West 1993); MICH. COMP. LAWS ANN. §§ 333.17013(7) (1992).
772. Nonetheless, at least two states have tried to implement such a requirement. Both Louisiana and Texas laws provide for the creation of a panel to determine which risks and hazards must be disclosed in connection with specific types of medical care and surgical procedures. LA. REV. STAT. ANN. § 1299.40(E) (West 1998); TEX. REV. CIV. STAT. ANN. art. 4590i, §§ 6.03-.04 (West Supp. 1999). In Louisiana, physicians may use the lists created by the panel in obtaining informed consent from patients; failure to disclose listed risks creates a rebuttable presumption of negligence, while use of the list creates a rebuttable presumption that effective consent was obtained. LA. REV. STAT. ANN. § 1299.40(E)(7) (West 1998). In Texas, a physician is considered to have complied with the informed consent requirements by obtaining written consent after disclosure of the information required by the panel. TEX. REV. CIV. STAT. ANN. art. 4590i, §§ 6.05-.07 (West Supp. 1999).
773. Nonetheless, at least two states have tried to implement such a requirement. Both Louisiana and Texas laws provide for the creation of a panel to determine which risks and hazards must be disclosed in connection with specific types of medical care and surgical procedures. LA. REV. STAT. ANN. § 1299.40(E) (West 1998); TEX. REV. CIV. STAT. ANN. art. 4590i, §§ 6.03-.04 (West Supp. 1999). In Louisiana, physicians may use the lists created by the panel in obtaining informed consent from patients; failure to disclose listed risks creates a rebuttable presumption of negligence, while use of the list creates a rebuttable presumption that effective consent was obtained. LA. REV. STAT. ANN. § 1299.40(E)(7) (West 1998). In Texas, a physician is considered to have complied with the informed consent requirements by obtaining written consent after disclosure of the information required by the panel. TEX. REV. CIV. STAT. ANN. art. 4590i, §§ 6.05-.07 (West Supp. 1999).
774. Nonetheless, at least two states have tried to implement such a requirement. Both Louisiana and Texas laws provide for the creation of a panel to determine which risks and hazards must be disclosed in connection with specific types of medical care and surgical procedures. LA. REV. STAT. ANN. § 1299.40(E) (West 1998); TEX. REV. CIV. STAT. ANN. art. 4590i, §§ 6.03-.04 (West Supp. 1999). In Louisiana, physicians may use the lists created by the panel in obtaining informed consent from patients; failure to disclose listed risks creates a rebuttable presumption of negligence, while use of the list creates a rebuttable presumption that effective consent was obtained. LA. REV. STAT. ANN. § 1299.40(E)(7) (West 1998). In Texas, a physician is considered to have complied with the informed consent requirements by obtaining written consent after disclosure of the information required by the panel. TEX. REV. CIV. STAT. ANN. art. 4590i, §§ 6.05-.07 (West Supp. 1999).
775. Nonetheless, at least two states have tried to implement such a requirement. Both Louisiana and Texas laws provide for the creation of a panel to determine which risks and hazards must be disclosed in connection with specific types of medical care and surgical procedures. LA. REV. STAT. ANN. § 1299.40(E) (West 1998); TEX. REV. CIV. STAT. ANN. art. 4590i, §§ 6.03-.04 (West Supp. 1999). In Louisiana, physicians may use the lists created by the panel in obtaining informed consent from patients; failure to disclose listed risks creates a rebuttable presumption of negligence, while use of the list creates a rebuttable presumption that effective consent was obtained. LA. REV. STAT. ANN. § 1299.40(E)(7) (West 1998). In Texas, a physician is considered to have complied with the informed consent requirements by obtaining written consent after disclosure of the information required by the panel. TEX. REV. CIV. STAT. ANN. art. 4590i, §§ 6.05-.07 (West Supp. 1999).
776. See, e.g., CAL. HEALTH & SAFETY CODE § 109275(b) (West 1996); 20 ILL. COMP. STAT. ANN. 2310/55.49 (West 1992 & Supp. 1999); ME. REV. STAT. ANN. tit. 21, § 2905-A(1) (West 1997) ("alternative efficacious methods of treatment"); MD. CODE ANN., HEALTH-GEN. § 20-113(a) 1996) ("medically practicable"); MASS. GEN. LAWS ANN. ch. 111, § 70E(h) (West 1998); MINN. STAT. ANN. § 144.651, subd. 9 (1998 & Supp. 1999) ("alternative effective methods of treatment"); MONT. CODE ANN. § 37-3-333(1)(a) (1999); N.Y. PUB. HEALTH § 2404(1) (McKinney 1993 & Supp. 1999); PA. STAT. ANN. tit. 35, § 5641 (West 1993); TEX. HEALTH & SAFETY CODE ANN. § 86.002(a) (West 1992). For other standards adopted, see, for example, KAN. STAT. ANN. § 65-2836(m) (1992 & Supp. 1998) ("alternative methods of treatment"); MICH. COMP. LAWS ANN. §§ 333.17013(1) & 333.17513 (West 1992) ("alternative methods of treatment"); N.J. STAT. ANN. §§ 26:2-168 (West 1996) ("alternative methods of breast cancer treatment").
777. See, e.g., CAL. HEALTH & SAFETY CODE § 109275(b) (West 1996); 20 ILL. COMP. STAT. ANN. 2310/55.49 (West 1992 & Supp. 1999); ME. REV. STAT. ANN. tit. 21, § 2905-A(1) (West 1997) ("alternative efficacious methods of treatment"); MD. CODE ANN., HEALTH-GEN. § 20-113(a) 1996) ("medically practicable"); MASS. GEN. LAWS ANN. ch. 111, § 70E(h) (West 1998); MINN. STAT. ANN. § 144.651, subd. 9 (1998 & Supp. 1999) ("alternative effective methods of treatment"); MONT. CODE ANN. § 37-3-333(1)(a) (1999); N.Y. PUB. HEALTH § 2404(1) (McKinney 1993 & Supp. 1999); PA. STAT. ANN. tit. 35, § 5641 (West 1993); TEX. HEALTH & SAFETY CODE ANN. § 86.002(a) (West 1992). For other standards adopted, see, for example, KAN. STAT. ANN. § 65-2836(m) (1992 & Supp. 1998) ("alternative methods of treatment"); MICH. COMP. LAWS ANN. §§ 333.17013(1) & 333.17513 (West 1992) ("alternative methods of treatment"); N.J. STAT. ANN. §§ 26:2-168 (West 1996) ("alternative methods of breast cancer treatment").
778. See, e.g., CAL. HEALTH & SAFETY CODE § 109275(b) (West 1996); 20 ILL. COMP. STAT. ANN. 2310/55.49 (West 1992 & Supp. 1999); ME. REV. STAT. ANN. tit. 21, § 2905-A(1) (West 1997) ("alternative efficacious methods of treatment"); MD. CODE ANN., HEALTH-GEN. § 20-113(a) 1996) ("medically practicable"); MASS. GEN. LAWS ANN. ch. 111, § 70E(h) (West 1998); MINN. STAT. ANN. § 144.651, subd. 9 (1998 & Supp. 1999) ("alternative effective methods of treatment"); MONT. CODE ANN. § 37-3-333(1)(a) (1999); N.Y. PUB. HEALTH § 2404(1) (McKinney 1993 & Supp. 1999); PA. STAT. ANN. tit. 35, § 5641 (West 1993); TEX. HEALTH & SAFETY CODE ANN. § 86.002(a) (West 1992). For other standards adopted, see, for example, KAN. STAT. ANN. § 65-2836(m) (1992 & Supp. 1998) ("alternative methods of treatment"); MICH. COMP. LAWS ANN. §§ 333.17013(1) & 333.17513 (West 1992) ("alternative methods of treatment"); N.J. STAT. ANN. §§ 26:2-168 (West 1996) ("alternative methods of breast cancer treatment").
779. See, e.g., CAL. HEALTH & SAFETY CODE § 109275(b) (West 1996); 20 ILL. COMP. STAT. ANN. 2310/55.49 (West 1992 & Supp. 1999); ME. REV. STAT. ANN. tit. 21, § 2905-A(1) (West 1997) ("alternative efficacious methods of treatment"); MD. CODE ANN., HEALTH-GEN. § 20-113(a) 1996) ("medically practicable"); MASS. GEN. LAWS ANN. ch. 111, § 70E(h) (West 1998); MINN. STAT. ANN. § 144.651, subd. 9 (1998 & Supp. 1999) ("alternative effective methods of treatment"); MONT. CODE ANN. § 37-3-333(1)(a) (1999); N.Y. PUB. HEALTH § 2404(1) (McKinney 1993 & Supp. 1999); PA. STAT. ANN. tit. 35, § 5641 (West 1993); TEX. HEALTH & SAFETY CODE ANN. § 86.002(a) (West 1992). For other standards adopted, see, for example, KAN. STAT. ANN. § 65-2836(m) (1992 & Supp. 1998) ("alternative methods of treatment"); MICH. COMP. LAWS ANN. §§ 333.17013(1) & 333.17513 (West 1992) ("alternative methods of treatment"); N.J. STAT. ANN. §§ 26:2-168 (West 1996) ("alternative methods of breast cancer treatment").
780. See, e.g., CAL. HEALTH & SAFETY CODE § 109275(b) (West 1996); 20 ILL. COMP. STAT. ANN. 2310/55.49 (West 1992 & Supp. 1999); ME. REV. STAT. ANN. tit. 21, § 2905-A(1) (West 1997) ("alternative efficacious methods of treatment"); MD. CODE ANN., HEALTH-GEN. § 20-113(a) 1996) ("medically practicable"); MASS. GEN. LAWS ANN. ch. 111, § 70E(h) (West 1998); MINN. STAT. ANN. § 144.651, subd. 9 (1998 & Supp. 1999) ("alternative effective methods of treatment"); MONT. CODE ANN. § 37-3-333(1)(a) (1999); N.Y. PUB. HEALTH § 2404(1) (McKinney 1993 & Supp. 1999); PA. STAT. ANN. tit. 35, § 5641 (West 1993); TEX. HEALTH & SAFETY CODE ANN. § 86.002(a) (West 1992). For other standards adopted, see, for example, KAN. STAT. ANN. § 65-2836(m) (1992 & Supp. 1998) ("alternative methods of treatment"); MICH. COMP. LAWS ANN. §§ 333.17013(1) & 333.17513 (West 1992) ("alternative methods of treatment"); N.J. STAT. ANN. §§ 26:2-168 (West 1996) ("alternative methods of breast cancer treatment").
781. See, e.g., CAL. HEALTH & SAFETY CODE § 109275(b) (West 1996); 20 ILL. COMP. STAT. ANN. 2310/55.49 (West 1992 & Supp. 1999); ME. REV. STAT. ANN. tit. 21, § 2905-A(1) (West 1997) ("alternative efficacious methods of treatment"); MD. CODE ANN., HEALTH-GEN. § 20-113(a) 1996) ("medically practicable"); MASS. GEN. LAWS ANN. ch. 111, § 70E(h) (West 1998); MINN. STAT. ANN. § 144.651, subd. 9 (1998 & Supp. 1999) ("alternative effective methods of treatment"); MONT. CODE ANN. § 37-3-333(1)(a) (1999); N.Y. PUB. HEALTH § 2404(1) (McKinney 1993 & Supp. 1999); PA. STAT. ANN. tit. 35, § 5641 (West 1993); TEX. HEALTH & SAFETY CODE ANN. § 86.002(a) (West 1992). For other standards adopted, see, for example, KAN. STAT. ANN. § 65-2836(m) (1992 & Supp. 1998) ("alternative methods of treatment"); MICH. COMP. LAWS ANN. §§ 333.17013(1) & 333.17513 (West 1992) ("alternative methods of treatment"); N.J. STAT. ANN. §§ 26:2-168 (West 1996) ("alternative methods of breast cancer treatment").
782. See, e.g., CAL. HEALTH & SAFETY CODE § 109275(b) (West 1996); 20 ILL. COMP. STAT. ANN. 2310/55.49 (West 1992 & Supp. 1999); ME. REV. STAT. ANN. tit. 21, § 2905-A(1) (West 1997) ("alternative efficacious methods of treatment"); MD. CODE ANN., HEALTH-GEN. § 20-113(a) 1996) ("medically practicable"); MASS. GEN. LAWS ANN. ch. 111, § 70E(h) (West 1998); MINN. STAT. ANN. § 144.651, subd. 9 (1998 & Supp. 1999) ("alternative effective methods of treatment"); MONT. CODE ANN. § 37-3-333(1)(a) (1999); N.Y. PUB. HEALTH § 2404(1) (McKinney 1993 & Supp. 1999); PA. STAT. ANN. tit. 35, § 5641 (West 1993); TEX. HEALTH & SAFETY CODE ANN. § 86.002(a) (West 1992). For other standards adopted, see, for example, KAN. STAT. ANN. § 65-2836(m) (1992 & Supp. 1998) ("alternative methods of treatment"); MICH. COMP. LAWS ANN. §§ 333.17013(1) & 333.17513 (West 1992) ("alternative methods of treatment"); N.J. STAT. ANN. §§ 26:2-168 (West 1996) ("alternative methods of breast cancer treatment").
783. See, e.g., CAL. HEALTH & SAFETY CODE § 109275(b) (West 1996); 20 ILL. COMP. STAT. ANN. 2310/55.49 (West 1992 & Supp. 1999); ME. REV. STAT. ANN. tit. 21, § 2905-A(1) (West 1997) ("alternative efficacious methods of treatment"); MD. CODE ANN., HEALTH-GEN. § 20-113(a) 1996) ("medically practicable"); MASS. GEN. LAWS ANN. ch. 111, § 70E(h) (West 1998); MINN. STAT. ANN. § 144.651, subd. 9 (1998 & Supp. 1999) ("alternative effective methods of treatment"); MONT. CODE ANN. § 37-3-333(1)(a) (1999); N.Y. PUB. HEALTH § 2404(1) (McKinney 1993 & Supp. 1999); PA. STAT. ANN. tit. 35, § 5641 (West 1993); TEX. HEALTH & SAFETY CODE ANN. § 86.002(a) (West 1992). For other standards adopted, see, for example, KAN. STAT. ANN. § 65-2836(m) (1992 & Supp. 1998) ("alternative methods of treatment"); MICH. COMP. LAWS ANN. §§ 333.17013(1) & 333.17513 (West 1992) ("alternative methods of treatment"); N.J. STAT. ANN. §§ 26:2-168 (West 1996) ("alternative methods of breast cancer treatment").
784. See, e.g., CAL. HEALTH & SAFETY CODE § 109275(b) (West 1996); 20 ILL. COMP. STAT. ANN. 2310/55.49 (West 1992 & Supp. 1999); ME. REV. STAT. ANN. tit. 21, § 2905-A(1) (West 1997) ("alternative efficacious methods of treatment"); MD. CODE ANN., HEALTH-GEN. § 20-113(a) 1996) ("medically practicable"); MASS. GEN. LAWS ANN. ch. 111, § 70E(h) (West 1998); MINN. STAT. ANN. § 144.651, subd. 9 (1998 & Supp. 1999) ("alternative effective methods of treatment"); MONT. CODE ANN. § 37-3-333(1)(a) (1999); N.Y. PUB. HEALTH § 2404(1) (McKinney 1993 & Supp. 1999); PA. STAT. ANN. tit. 35, § 5641 (West 1993); TEX. HEALTH & SAFETY CODE ANN. § 86.002(a) (West 1992). For other standards adopted, see, for example, KAN. STAT. ANN. § 65-2836(m) (1992 & Supp. 1998) ("alternative methods of treatment"); MICH. COMP. LAWS ANN. §§ 333.17013(1) & 333.17513 (West 1992) ("alternative methods of treatment"); N.J. STAT. ANN. §§ 26:2-168 (West 1996) ("alternative methods of breast cancer treatment").
785. See, e.g., CAL. HEALTH & SAFETY CODE § 109275(b) (West 1996); 20 ILL. COMP. STAT. ANN. 2310/55.49 (West 1992 & Supp. 1999); ME. REV. STAT. ANN. tit. 21, § 2905-A(1) (West 1997) ("alternative efficacious methods of treatment"); MD. CODE ANN., HEALTH-GEN. § 20-113(a) 1996) ("medically practicable"); MASS. GEN. LAWS ANN. ch. 111, § 70E(h) (West 1998); MINN. STAT. ANN. § 144.651, subd. 9 (1998 & Supp. 1999) ("alternative effective methods of treatment"); MONT. CODE ANN. § 37-3-333(1)(a) (1999); N.Y. PUB. HEALTH § 2404(1) (McKinney 1993 & Supp. 1999); PA. STAT. ANN. tit. 35, § 5641 (West 1993); TEX. HEALTH & SAFETY CODE ANN. § 86.002(a) (West 1992). For other standards adopted, see, for example, KAN. STAT. ANN. § 65-2836(m) (1992 & Supp. 1998) ("alternative methods of treatment"); MICH. COMP. LAWS ANN. §§ 333.17013(1) & 333.17513 (West 1992) ("alternative methods of treatment"); N.J. STAT. ANN. §§ 26:2-168 (West 1996) ("alternative methods of breast cancer treatment").
786. See, e.g., CAL. HEALTH & SAFETY CODE § 109275(b) (West 1996); 20 ILL. COMP. STAT. ANN. 2310/55.49 (West 1992 & Supp. 1999); ME. REV. STAT. ANN. tit. 21, § 2905-A(1) (West 1997) ("alternative efficacious methods of treatment"); MD. CODE ANN., HEALTH-GEN. § 20-113(a) 1996) ("medically practicable"); MASS. GEN. LAWS ANN. ch. 111, § 70E(h) (West 1998); MINN. STAT. ANN. § 144.651, subd. 9 (1998 & Supp. 1999) ("alternative effective methods of treatment"); MONT. CODE ANN. § 37-3-333(1)(a) (1999); N.Y. PUB. HEALTH § 2404(1) (McKinney 1993 & Supp. 1999); PA. STAT. ANN. tit. 35, § 5641 (West 1993); TEX. HEALTH & SAFETY CODE ANN. § 86.002(a) (West 1992). For other standards adopted, see, for example, KAN. STAT. ANN. § 65-2836(m) (1992 & Supp. 1998) ("alternative methods of treatment"); MICH. COMP. LAWS ANN. §§ 333.17013(1) & 333.17513 (West 1992) ("alternative methods of treatment"); N.J. STAT. ANN. §§ 26:2-168 (West 1996) ("alternative methods of breast cancer treatment").
787. See, e.g., CAL. HEALTH & SAFETY CODE § 109275(b) (West 1996); 20 ILL. COMP. STAT. ANN. 2310/55.49 (West 1992 & Supp. 1999); ME. REV. STAT. ANN. tit. 21, § 2905-A(1) (West 1997) ("alternative efficacious methods of treatment"); MD. CODE ANN., HEALTH-GEN. § 20-113(a) 1996) ("medically practicable"); MASS. GEN. LAWS ANN. ch. 111, § 70E(h) (West 1998); MINN. STAT. ANN. § 144.651, subd. 9 (1998 & Supp. 1999) ("alternative effective methods of treatment"); MONT. CODE ANN. § 37-3-333(1)(a) (1999); N.Y. PUB. HEALTH § 2404(1) (McKinney 1993 & Supp. 1999); PA. STAT. ANN. tit. 35, § 5641 (West 1993); TEX. HEALTH & SAFETY CODE ANN. § 86.002(a) (West 1992). For other standards adopted, see, for example, KAN. STAT. ANN. § 65-2836(m) (1992 & Supp. 1998) ("alternative methods of treatment"); MICH. COMP. LAWS ANN. §§ 333.17013(1) & 333.17513 (West 1992) ("alternative methods of treatment"); N.J. STAT. ANN. §§ 26:2-168 (West 1996) ("alternative methods of breast cancer treatment").
788. See, e.g., CAL. HEALTH & SAFETY CODE § 109275(b) (West 1996); 20 ILL. COMP. STAT. ANN. 2310/55.49 (West 1992 & Supp. 1999); ME. REV. STAT. ANN. tit. 21, § 2905-A(1) (West 1997) ("alternative efficacious methods of treatment"); MD. CODE ANN., HEALTH-GEN. § 20-113(a) 1996) ("medically practicable"); MASS. GEN. LAWS ANN. ch. 111, § 70E(h) (West 1998); MINN. STAT. ANN. § 144.651, subd. 9 (1998 & Supp. 1999) ("alternative effective methods of treatment"); MONT. CODE ANN. § 37-3-333(1)(a) (1999); N.Y. PUB. HEALTH § 2404(1) (McKinney 1993 & Supp. 1999); PA. STAT. ANN. tit. 35, § 5641 (West 1993); TEX. HEALTH & SAFETY CODE ANN. § 86.002(a) (West 1992). For other standards adopted, see, for example, KAN. STAT. ANN. § 65-2836(m) (1992 & Supp. 1998) ("alternative methods of treatment"); MICH. COMP. LAWS ANN. §§ 333.17013(1) & 333.17513 (West 1992) ("alternative methods of treatment"); N.J. STAT. ANN. §§ 26:2-168 (West 1996) ("alternative methods of breast cancer treatment").
789. FLA. STAT. ANN. §§ 458.324(1) & 459.0125(1) (West 1991 & Supp. 1999).
790. See supra Part IV.B.1.b.
791. See, e.g., CAL. BUS. & PROF. CODE § 2257 (West 1990 & Supp. 1999) (explaining that failure to obtain informed consent from breast cancer patient constitutes unprofessional conduct); KAN. STAT. ANN. § 65-2836(m) (1992 & Sup. 1998) (failure to inform patient of alternative treatments constitutes grounds for, inter alia, revocation, suspension, or limitation of license); MD. CODE ANN., HEALTH-GEN. § 20-113(e) (1996) (same); MD. CODE ANN., HEALTH OCC. § 14-404(a)(26) (1994 & Supp. 1998); MONT. CODE ANN. § 37-3-333(2) (1999) (same); N.J. STAT. ANN. §§ 26:2-168, 45:9-22.3a & 3b (West Supp. 1999); N.Y. PUB. HEALTH §2404 (McKinney 1993 & Supp. 1999); PA. STAT. ANN. tit. 35, §5641(West 1998); VA. CODEANN. §54.1-2971 (Michie 1997). In contrast, Massachusetts provides a private right of action for any person whose rights are violated. See MASS. GEN. LAWS ch. Ill, §7OE (1998). See also MINN. STAT. ANN. § 144.651, subd. 1 (West 1998 & Supp. 1999) (providing that any interested person may seek enforcement of rights). But see N.J. STAT. ANN. § 45:9-22.3b (West Supp. 1999) (providing that a physician who fails to provide copy of information booklet shall not be liable for civil penalty).
792. See, e.g., CAL. BUS. & PROF. CODE § 2257 (West 1990 & Supp. 1999) (explaining that failure to obtain informed consent from breast cancer patient constitutes unprofessional conduct); KAN. STAT. ANN. § 65-2836(m) (1992 & Sup. 1998) (failure to inform patient of alternative treatments constitutes grounds for, inter alia, revocation, suspension, or limitation of license); MD. CODE ANN., HEALTH-GEN. § 20-113(e) (1996) (same); MD. CODE ANN., HEALTH OCC. § 14-404(a)(26) (1994 & Supp. 1998); MONT. CODE ANN. § 37-3-333(2) (1999) (same); N.J. STAT. ANN. §§ 26:2-168, 45:9-22.3a & 3b (West Supp. 1999); N.Y. PUB. HEALTH §2404 (McKinney 1993 & Supp. 1999); PA. STAT. ANN. tit. 35, §5641(West 1998); VA. CODEANN. §54.1-2971 (Michie 1997). In contrast, Massachusetts provides a private right of action for any person whose rights are violated. See MASS. GEN. LAWS ch. Ill, §7OE (1998). See also MINN. STAT. ANN. § 144.651, subd. 1 (West 1998 & Supp. 1999) (providing that any interested person may seek enforcement of rights). But see N.J. STAT. ANN. § 45:9-22.3b (West Supp. 1999) (providing that a physician who fails to provide copy of information booklet shall not be liable for civil penalty).
793. See, e.g., CAL. BUS. & PROF. CODE § 2257 (West 1990 & Supp. 1999) (explaining that failure to obtain informed consent from breast cancer patient constitutes unprofessional conduct); KAN. STAT. ANN. § 65-2836(m) (1992 & Sup. 1998) (failure to inform patient of alternative treatments constitutes grounds for, inter alia, revocation, suspension, or limitation of license); MD. CODE ANN., HEALTH-GEN. § 20-113(e) (1996) (same); MD. CODE ANN., HEALTH OCC. § 14-404(a)(26) (1994 & Supp. 1998); MONT. CODE ANN. § 37-3-333(2) (1999) (same); N.J. STAT. ANN. §§ 26:2-168,
794. See, e.g., CAL. BUS. & PROF. CODE § 2257 (West 1990 & Supp. 1999) (explaining that failure to obtain informed consent from breast cancer patient constitutes unprofessional conduct); KAN. STAT. ANN. § 65-2836(m) (1992 & Sup. 1998) (failure to inform patient of alternative treatments constitutes grounds for, inter alia, revocation, suspension, or limitation of license); MD. CODE ANN., HEALTH-GEN. § 20-113(e) (1996) (same); MD. CODE ANN., HEALTH OCC. § 14-404(a)(26) (1994 & Supp. 1998); MONT. CODE ANN. § 37-3-333(2) (1999) (same); N.J. STAT. ANN. §§ 26:2-168, 45:9-22.3a & 3b (West Supp. 1999); N.Y. PUB. HEALTH §2404 (McKinney 1993 & Supp. 1999); PA. STAT. ANN. tit. 35, §5641(West 1998); VA. CODEANN. §54.1-2971 (Michie 1997). In contrast, Massachusetts provides a private right of action for any person whose rights are violated. See MASS. GEN. LAWS ch. Ill, §7OE (1998). See also MINN. STAT. ANN. § 144.651, subd. 1 (West 1998 & Supp. 1999) (providing that any interested person may seek enforcement of rights). But see N.J. STAT. ANN. § 45:9-22.3b (West Supp. 1999) (providing that a physician who fails to provide copy of information booklet shall not be liable for civil penalty).
795. See, e.g., CAL. BUS. & PROF. CODE § 2257 (West 1990 & Supp. 1999) (explaining that failure to obtain informed consent from breast cancer patient constitutes unprofessional conduct); KAN. STAT. ANN. § 65-2836(m) (1992 & Sup. 1998) (failure to inform patient of alternative treatments constitutes grounds for, inter alia, revocation, suspension, or limitation of license); MD. CODE ANN., HEALTH-GEN. § 20-113(e) (1996) (same); MD. CODE ANN., HEALTH OCC. § 14-404(a)(26) (1994 & Supp. 1998); MONT. CODE ANN. § 37-3-333(2) (1999) (same); N.J. STAT. ANN. §§ 26:2-168, 45:9-22.3a & 3b (West Supp. 1999); N.Y. PUB. HEALTH §2404 (McKinney 1993 & Supp. 1999); PA. STAT. ANN. tit. 35, §5641(West 1998); VA. CODEANN. §54.1-2971 (Michie 1997). In contrast, Massachusetts provides a private right of action for any person whose rights are violated. See MASS. GEN. LAWS ch. Ill, §7OE (1998). See also MINN. STAT. ANN. § 144.651, subd. 1 (West 1998 & Supp. 1999) (providing that any interested person may seek enforcement of rights). But see N.J. STAT. ANN. § 45:9-22.3b (West Supp. 1999) (providing that a physician who fails to provide copy of information booklet shall not be liable for civil penalty).
796. See, e.g., CAL. BUS. & PROF. CODE § 2257 (West 1990 & Supp. 1999) (explaining that failure to obtain informed consent from breast cancer patient constitutes unprofessional conduct); KAN. STAT. ANN. § 65-2836(m) (1992 & Sup. 1998) (failure to inform patient of alternative treatments constitutes grounds for, inter alia, revocation, suspension, or limitation of license); MD. CODE ANN., HEALTH-GEN. § 20-113(e) (1996) (same); MD. CODE ANN., HEALTH OCC. § 14-404(a)(26) (1994 & Supp. 1998); MONT. CODE ANN. § 37-3-333(2) (1999) (same); N.J. STAT. ANN. §§ 26:2-168, 45:9-22.3a & 3b (West Supp. 1999); N.Y. PUB. HEALTH §2404 (McKinney 1993 & Supp. 1999); PA. STAT. ANN. tit. 35, §5641(West 1998); VA. CODEANN. §54.1-2971 (Michie 1997). In contrast, Massachusetts provides a private right of action for any person whose rights are violated. See MASS. GEN. LAWS ch. Ill, §7OE (1998). See also MINN. STAT. ANN. § 144.651, subd. 1 (West 1998 & Supp. 1999) (providing that any interested person may seek enforcement of rights). But see N.J. STAT. ANN. § 45:9-22.3b (West Supp. 1999) (providing that a physician who fails to provide copy of information booklet shall not be liable for civil penalty).
797. See, e.g., CAL. BUS. & PROF. CODE § 2257 (West 1990 & Supp. 1999) (explaining that failure to obtain informed consent from breast cancer patient constitutes unprofessional conduct); KAN. STAT. ANN. § 65-2836(m) (1992 & Sup. 1998) (failure to inform patient of alternative treatments constitutes grounds for, inter alia, revocation, suspension, or limitation of license); MD. CODE ANN., HEALTH-GEN. § 20-113(e) (1996) (same); MD. CODE ANN., HEALTH OCC. § 14-404(a)(26) (1994 & Supp. 1998); MONT. CODE ANN. § 37-3-333(2) (1999) (same); N.J. STAT. ANN. §§ 26:2-168, 45:9-22.3a & 3b (West Supp. 1999); N.Y. PUB. HEALTH §2404 (McKinney 1993 & Supp. 1999); PA. STAT. ANN. tit. 35, §5641(West 1998); VA. CODEANN. §54.1-2971 (Michie 1997). In contrast, Massachusetts provides a private right of action for any person whose rights are violated. See MASS. GEN. LAWS ch. Ill, §7OE (1998). See also MINN. STAT. ANN. § 144.651, subd. 1 (West 1998 & Supp. 1999) (providing that any interested person may seek enforcement of rights). But see N.J. STAT. ANN. § 45:9-22.3b (West Supp. 1999) (providing that a physician who fails to provide copy of information booklet shall not be liable for civil penalty).
798. See, e.g., CAL. BUS. & PROF. CODE § 2257 (West 1990 & Supp. 1999) (explaining that failure to obtain informed consent from breast cancer patient constitutes unprofessional conduct); KAN. STAT. ANN. § 65-2836(m) (1992 & Sup. 1998) (failure to inform patient of alternative treatments constitutes grounds for, inter alia, revocation, suspension, or limitation of license); MD. CODE ANN., HEALTH-GEN. § 20-113(e) (1996) (same); MD. CODE ANN., HEALTH OCC. § 14-404(a)(26) (1994 & Supp. 1998); MONT. CODE ANN. § 37-3-333(2) (1999) (same); N.J. STAT. ANN. §§ 26:2-168, 45:9-22.3a & 3b (West Supp. 1999); N.Y. PUB. HEALTH §2404 (McKinney 1993 & Supp. 1999); PA. STAT. ANN. tit. 35, §5641(West 1998); VA. CODEANN. §54.1-2971 (Michie 1997). In contrast, Massachusetts provides a private right of action for any person whose rights are violated. See MASS. GEN. LAWS ch. Ill, §7OE (1998). See also MINN. STAT. ANN. § 144.651, subd. 1 (West 1998 & Supp. 1999) (providing that any interested person may seek enforcement of rights). But see N.J. STAT. ANN. § 45:9-22.3b (West Supp. 1999) (providing that a physician who fails to provide copy of information booklet shall not be liable for civil penalty).
799. See, e.g., CAL. BUS. & PROF. CODE § 2257 (West 1990 & Supp. 1999) (explaining that failure to obtain informed consent from breast cancer patient constitutes unprofessional conduct); KAN. STAT. ANN. § 65-2836(m) (1992 & Sup. 1998) (failure to inform patient of alternative treatments constitutes grounds for, inter alia, revocation, suspension, or limitation of license); MD. CODE ANN., HEALTH-GEN. § 20-113(e) (1996) (same); MD. CODE ANN., HEALTH OCC. § 14-404(a)(26) (1994 & Supp. 1998); MONT. CODE ANN. § 37-3-333(2) (1999) (same); N.J. STAT. ANN. §§ 26:2-168, 45:9-22.3a & 3b (West Supp. 1999); N.Y. PUB. HEALTH §2404 (McKinney 1993 & Supp. 1999); PA. STAT. ANN. tit. 35, §5641(West 1998); VA. CODEANN. §54.1-2971 (Michie 1997). In contrast, Massachusetts provides a private right of action for any person whose rights are violated. See MASS. GEN. LAWS ch. Ill, §7OE (1998). See also MINN. STAT. ANN. § 144.651, subd. 1 (West 1998 & Supp. 1999) (providing that any interested person may seek enforcement of rights). But see N.J. STAT. ANN. § 45:9-22.3b (West Supp. 1999) (providing that a physician who fails to provide copy of information booklet shall not be liable for civil penalty).
800. See, e.g., CAL. BUS. & PROF. CODE § 2257 (West 1990 & Supp. 1999) (explaining that failure to obtain informed consent from breast cancer patient constitutes unprofessional conduct); KAN. STAT. ANN. § 65-2836(m) (1992 & Sup. 1998) (failure to inform patient of alternative treatments constitutes grounds for, inter alia, revocation, suspension, or limitation of license); MD. CODE ANN., HEALTH-GEN. § 20-113(e) (1996) (same); MD. CODE ANN., HEALTH OCC. § 14-404(a)(26) (1994 & Supp. 1998); MONT. CODE ANN. § 37-3-333(2) (1999) (same); N.J. STAT. ANN. §§ 26:2-168, 45:9-22.3a & 3b (West Supp. 1999); N.Y. PUB. HEALTH §2404 (McKinney 1993 & Supp. 1999); PA. STAT. ANN. tit. 35, §5641(West 1998); VA. CODEANN. §54.1-2971 (Michie 1997). In contrast, Massachusetts provides a private right of action for any person whose rights are violated. See MASS. GEN. LAWS ch. Ill, §7OE (1998). See also MINN. STAT. ANN. § 144.651, subd. 1 (West 1998 & Supp. 1999) (providing that any interested person may seek enforcement of rights). But see N.J. STAT. ANN. § 45:9-22.3b (West Supp. 1999) (providing that a physician who fails to provide copy of information booklet shall not be liable for civil penalty).
801. See, e.g., CAL. BUS. & PROF. CODE § 2257 (West 1990 & Supp. 1999) (explaining that failure to obtain informed consent from breast cancer patient constitutes unprofessional conduct); KAN. STAT. ANN. § 65-2836(m) (1992 & Sup. 1998) (failure to inform patient of alternative treatments constitutes grounds for, inter alia, revocation, suspension, or limitation of license); MD. CODE ANN., HEALTH-GEN. § 20-113(e) (1996) (same); MD. CODE ANN., HEALTH OCC. § 14-404(a)(26) (1994 & Supp. 1998); MONT. CODE ANN. § 37-3-333(2) (1999) (same); N.J. STAT. ANN. §§ 26:2-168, 45:9-22.3a & 3b (West Supp. 1999); N.Y. PUB. HEALTH §2404 (McKinney 1993 & Supp. 1999); PA. STAT. ANN. tit. 35, §5641(West 1998); VA. CODEANN. §54.1-2971 (Michie 1997). In contrast, Massachusetts provides a private right of action for any person whose rights are violated. See MASS. GEN. LAWS ch. Ill, §7OE (1998). See also MINN. STAT. ANN. § 144.651, subd. 1 (West 1998 & Supp. 1999) (providing that any interested person may seek enforcement of rights). But see N.J. STAT. ANN. § 45:9-22.3b (West Supp. 1999) (providing that a physician who fails to provide copy of information booklet shall not be liable for civil penalty).
802. See, e.g., CAL. BUS. & PROF. CODE § 2257 (West 1990 & Supp. 1999) (explaining that failure to obtain informed consent from breast cancer patient constitutes unprofessional conduct); KAN. STAT. ANN. § 65-2836(m) (1992 & Sup. 1998) (failure to inform patient of alternative treatments constitutes grounds for, inter alia, revocation, suspension, or limitation of license); MD. CODE ANN., HEALTH-GEN. § 20-113(e) (1996) (same); MD. CODE ANN., HEALTH OCC. § 14-404(a)(26) (1994 & Supp. 1998); MONT. CODE ANN. § 37-3-333(2) (1999) (same); N.J. STAT. ANN. §§ 26:2-168, 45:9-22.3a & 3b (West Supp. 1999); N.Y. PUB. HEALTH §2404 (McKinney 1993 & Supp. 1999); PA. STAT. ANN. tit. 35, §5641(West 1998); VA. CODEANN. §54.1-2971 (Michie 1997). In contrast, Massachusetts provides a private right of action for any person whose rights are violated. See MASS. GEN. LAWS ch. Ill, §7OE (1998). See also MINN. STAT. ANN. § 144.651, subd. 1 (West 1998 & Supp. 1999) (providing that any interested person may seek enforcement of rights). But see N.J. STAT. ANN. § 45:9-22.3b (West Supp. 1999) (providing that a physician who fails to provide copy of information booklet shall not be liable for civil penalty).
803. See KAN. STAT. ANN. § 65-2836 (1992 & Supp. 1998) (describing penalties). For a description of the use of legislative prohibitions pertaining to health care professionals, see, for example, Bobinski, supra note 39, at 319-30.
804. See KAN. STAT. ANN. § 65-2836 (1992 & Supp. 1998) (describing penalties). For a description of the use of legislative prohibitions pertaining to health care professionals, see, for example, Bobinski, supra note 39, at 319-30.
805. See States Setting Detailed Quality Standards Rather Than "Legislating By Body Part", 7 HEALTH L. REP. (BNA) 1059 (1998) (quoting Susan Laudicina, Director of State Services Research for the Blue Cross and Blue Shield Association, as stating that the "trend of legislating by body part seems to be running out of gas"); Annas, Breast Cancer, supra note 335, at 29 (noting that "it is probably a mistake to legislate in particular areas of medicine regarding informed consent (since the list is unending").
806. See States Setting Detailed Quality Standards Rather Than "Legislating By Body Part", 7 HEALTH L. REP. (BNA) 1059 (1998) (quoting Susan Laudicina, Director of State Services Research for the Blue Cross and Blue Shield Association, as stating that the "trend of legislating by body part seems to be running out of gas"); Annas, Breast Cancer, supra note 335, at 29 (noting that "it is probably a mistake to legislate in particular areas of medicine regarding informed consent (since the list is unending").
807. See Meisel, supra note 239, at 216-17 (proposing that state licensure authorities treat a failure to disclose as a basis for disciplinary sanctions).
808. Matter of League of Physicians & Surgeons, Inc. v. DeBuono (Sup. Ct., 1st Jud. Dep't., N.Y. Cty., Nov. 13, 1996), reprinted in N.Y. L.J., Nov 13, 1996, at 26.