Twerski and Cohen's second revolution: A systems/strategic perspective

Northwestern University Law Review

Volumn 94, Issue 1, 1999, Pages 55-75

  LoPucki, Lynn M ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; CORONARY ARTERY BYPASS GRAFT; HEALTH CARE AND PUBLIC HEALTH; HEALTH CARE DELIVERY; HEALTH CARE QUALITY; HOSPITAL; HUMAN; INFORMED CONSENT; INTERPERSONAL COMMUNICATION; LEGAL APPROACH; LEGAL ASPECT; MORTALITY; PROFESSIONAL PATIENT RELATIONSHIP; STATISTICS; TREATMENT OUTCOME;

HEALTH CARE AND PUBLIC HEALTH; LEGAL APPROACH; PROFESSIONAL PATIENT RELATIONSHIP;

CORONARY ARTERY BYPASS; DELIVERY OF HEALTH CARE; DISCLOSURE; HOSPITAL MORTALITY; HOSPITALS; HUMANS; INFORMED CONSENT; QUALITY OF HEALTH CARE; TREATMENT OUTCOME;

EID: 0038334294     PISSN: 00293571     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (112)

1. Aaron D. Twerski & Neil B. Cohen, Comparing Medical Providers: A First Look at the New Era of Medical Statistics, 58 BROOK. L. REV. 5 (1992) [hereinafter Comparing Medical Providers].
2. 545 N.W.2d 495 (Wis. 1996).
3. Aaron D. Twerski & Neil B. Cohen, The Second Revolution in Informed Consent: Comparing Physicians to Each Other, 94 Nw. U. L. REV. 1 (1999) [hereinafter Second Revolution].
4. Id. at 42.
5. See, e.g., NEW YORK STATE DEP'T OF HEALTH, CORONARY ARTERY BYPASS SURGERY IN NEW YORK STATE 1994-96, at 9-10 (1998) [hereinafter NEW YORK REPORT] (showing New York hospitals with adjusted mortality rates of less than 2% and others with adjusted mortality rates of greater than 5%).
6. See sources cited infra note 44 and accompanying text.
7. See Jesse Green, Problems in the Use of Outcome Statistics to Compare Health Care Providers, 58 BROOK. L. REV. 55 (1992).
8. See infra notes 80-81 and accompanying text.
9. See Susan C. Maerki et al., Selecting Categories of Patients for Regionalization: Implications of the Relationship between Volume and Outcome, 24 MED. CARE 148 (1986) ("concentrating patients in hospitals with high volumes of such patients could avert more than 60% of all hospital deaths [from selected procedures]").
10. See infra notes 44-45 and accompanying text.
11. Kokemoor, 545 N.W.2d at 510.
12. Id. The court's response is formalistic rather than empirical because the court makes no attempt to support its claim regarding the effect of its decision.
13. With regard to methodology, at least, law and economics provides an exception. With generous funding from the Olin Foundation, proponents of that methodology have been conducting workshops for judges for almost two decades, and elements of it have been making their way into legal opinions.
14. See LYNN M. LOPUCKI & ELIZABETH WARREN, SECURED CREDIT: A SYSTEMS APPROACH (2d ed. 1998); Lynn M. LoPucki, The Systems Approach to Law, 82 CORNELL L. REV. 479 (1997); Lynn M. LoPucki & George Triantis, A Systems Approach to Comparing U.S. and Canadian Reorganization of Financially Distressed Companies, 35 HARV. INT'L L.J. 267 (1994).
15. See LYNN M. LOPUCKI & ELIZABETH WARREN, SECURED CREDIT: A SYSTEMS APPROACH (2d ed. 1998); Lynn M. LoPucki, The Systems Approach to Law, 82 CORNELL L. REV. 479 (1997); Lynn M. LoPucki & George Triantis, A Systems Approach to Comparing U.S. and Canadian Reorganization of Financially Distressed Companies, 35 HARV. INT'L L.J. 267 (1994).
16. See LYNN M. LOPUCKI & ELIZABETH WARREN, SECURED CREDIT: A SYSTEMS APPROACH (2d ed. 1998); Lynn M. LoPucki, The Systems Approach to Law, 82 CORNELL L. REV. 479 (1997); Lynn M. LoPucki & George Triantis, A Systems Approach to Comparing U.S. and Canadian Reorganization of Financially Distressed Companies, 35 HARV. INT'L L.J. 267 (1994).
17. See LoPucki, The Systems Approach to Law, supra note 14, at 481.
18. See Second Revolution, supra note 3.
19. In 1996, for example, 32 hospitals performed CABG surgery in New York State. NEW YORK REPORT, supra note 5, at 8. The corresponding number for Massachusetts in the period 1990-94 was 13. See William A. Ghali et al., Statewide Quality Improvement Initiatives and Mortality After Cardiac Surgery, 277 JAMA 379, 379 (1997).
20. See MICHAEL L. MILLENSON, DEMANDING MEDICAL EXCELLENCE: DOCTORS AND ACCOUNTABILITY IN THE INFORMATION AGE 187 (1997) (noting that 1,023 hospitals performed open-heart surgery in 1995).
21. See, e.g., Eric C. Schneider et al., Influence of Cardiac-Surgery Performance Reports on Referral Practices and Access to Care, 335 NEW ENG. J. MED. 251 (1996) (reporting on the referral practices of cardiologists with regard to CABG cases).
22. Eric C. Schneider & Arnold M. Epstein, Use of Public Performance Reports, 279 JAMA 1638, 1640 (1998) (only 1% of Pennsylvania CABG patients reported having discussed the Pennsylvania comparative statistics with a surgeon or other physician before surgery).
23. See id. at 1640.
24. See id. at 1641.
25. Id. at 1640.
26. See, e.g., Fran Carnerie, Crisis and Informed Consent: Analysis of a Law-Medicine Malocclusion, 12 AM. J.L. & MED. 55, 85 (1987) ("[T]he formal efforts of disclosure and signing consent forms often occur the night before the procedure. This means that formal disclosure and consent signing are done after the patient is 'socially and emotionally committed' to the treatment.").
27. See NEW YORK REPORT, supra note 5, at 10.
28. See Gary W. Roach et al., Adverse Cerebral Outcomes After Coronary Bypass Surgery, 335 New Eng. J. Med. 1857, 1859 (1996) (finding that 3.1% of CABG patients had severe brain damage at time of discharge from the hospital and an additional 3% of CABG patients had mild brain damage). Rates varied from 1% to 14% at different institutions. Id.
29. See, e.g., Marshall Franklin, Improving Long-Term Bypass Success Rates, COPLEY NEWS SERVICE, July 6, 1998.
30. See, e.g., Sokol v. Akron Gen. Med. Ctr., No. 5:95CV1108, 1997 U.S. Dist. LEXIS 22078, at *22 (N.D. Ohio Sept. 30, 1997) (using outcome studies as a basis, review committee suspended hospital privileges of heart surgeon).
31. See, e.g., Sandy Campbell, Searching for the Right "Keyhole" in Heart Surgery, HEALTH CARE STRATEGIC MGMT., June 1, 1997 (discussing the new "port access" and "minimally invasive direct" coronary artery bypass techniques).
32. A risk-adjusted death rate is a death rate that has been adjusted to take account of patient characteristics that have been shown to make death more or less likely for the particular patient.
33. See. e.g., Timothy Stoltzfus Jost, Oversight of the Quality of Medical Care: Regulation, Management, or the Market?, 37 ARIZ. L. REV. 825, 859-61 (1995) (describing the system for licensing physicians).
34. See MILLENSON, supra note 18, at 174-76 (describing the study and its release).
35. See id.
36. See, e.g., Leslie Werstein Hann, Keeping Score, in BEST'S REVIEW - LIFE-HEALTH INSURANCE EDITION 31, 32 (1998) (listing New Jersey, Pennsylvania, New York, Maryland and Texas as "among the states publishing health-plan report cards on the Internet").
37. See. e.g., MILLENSON, supra note 18, at 216-22 (describing Hershey Foods' successful effort to require medical providers to furnish outcome data to Hershey).
38. See Schneider & Epstein, supra note 20, at 1638 ("Information on the quality of care provided by physicians, hospitals, and health plans has traditionally been collected for internal quality assurance and has almost always remained confidential.").
39. See Joel Brinkley, U.S. Releasing Lists of Hospitals with Abnormal Mortality Rates, N.Y. TIMES, Mar. 12, 1986, at A1.
40. See Green, supra note 7, at 70-72 (describing the litigation).
41. See MILLENSON, supra note 18, at 175 (stating that "news that comparative information [derived from the HCFA study] on clinical quality . . . would be . . . released to the public with real hospital names attached sent shock waves through the medical community").
42. See, e.g., NEW YORK REPORT, supra note 5, at 1 ("We encourage doctors to discuss this information with their patients and colleagues as they develop treatment plans.").
43. See, e.g., HealthcareReportCards.com (based on privately risk-adjusted HCFA data); ; (report cards on large medical groups); (self-reporting of performance by HMO); (data on health plan performance posted by organization that accredits HMOs and point-of service plans).
44. See, e.g., HealthcareReportCards.com (based on privately risk-adjusted HCFA data); ; (report cards on large medical groups); (self-reporting of performance by HMO); (data on health plan performance posted by organization that accredits HMOs and point-of service plans).
45. See, e.g., HealthcareReportCards.com (based on privately risk-adjusted HCFA data); ; (report cards on large medical groups); (self-reporting of performance by HMO); (data on health plan performance posted by organization that accredits HMOs and point-of service plans).
46. See, e.g., HealthcareReportCards.com (based on privately risk-adjusted HCFA data); ; (report cards on large medical groups); (self-reporting of performance by HMO); (data on health plan performance posted by organization that accredits HMOs and point-of service plans).
47. See, e.g., HealthcareReportCards.com (based on privately risk-adjusted HCFA data); ; (report cards on large medical groups); (self-reporting of performance by HMO); (data on health plan performance posted by organization that accredits HMOs and point-of service plans).
48. See Lisa I. Iezzoni, The Risks of Risk Adjustment, 278 JAMA 1600 (1997) (discussing empirical study and concluding that "[s]everity adjusted mortality rates alone are unlikely to isolate quality differences across hospitals"); see also Green, supra note 8 (arguing against the use of provider-specific outcome statistics as evidence in informed consent or malpractice litigation).
49. See infra notes 81-82 and accompanying text.
50. See, e.g., MILLENSON, supra note 18, at 202 (noting that the 27 low-volume surgeons who stopped performing CABG surgery in New York State from 1989 to 1992 had risk-adjusted death rates 2.5 to 5 times the statewide average); Lisa Priest, Where Patients Can Judge Surgeons: Pennsylvania's Free Guide Is a Hit with Patients, and Death Rates for Bypass Operations Have Declined by 26%, TORONTO STAR, Sept 20, 1997 (noting that Dr. Elliot Senderoff, the heart surgeon with the highest risk-adjusted mortality rate according to the New York Report, no longer did heart surgery).
51. See also Robert L. Lowes, Informed Consent Will Require More Informing, 74 MED. ECON. 93, 94 (1997) (noting that the defendant doctor in Johnson v. Kokemoor, Dr. Richard Kokemoor, no longer performs neurosurgery).
52. See MILLENSON, supra note 18, at 201 n.39 (citing news stories in which 6 of 31 hospitals performing CABG surgery in New York state "publicly admitted that the performance report prompted new quality improvement initiatives").
53. See Cardiac Scorecard: N.Y. Bypass Mortality Hits 8-Year Low, HEALTH LINE, Nov. 13, 1998 ("Since New York began monitoring bypass surgery in 1989, the death rate associated with the procedure has dropped 30% to 1996s low of 2.44 deaths per 100 (1996 is the latest year for which data is available)."). But see Ghali et al., supra note 17 (finding mortality reductions in Massachusetts, which does not release comparative provider statistics, comparable to those in New York and northern New England, which do).
54. See, e.g., Ghali et al., supra note 17 (questioning whether publication of outcome statistics caused the reductions in risk-adjusted mortality that occurred in New York and northern New England).
55. See MILLENSON, supra note 18, at 362.
56. See id. (describing the solid foothold of outcome measurement in the medical profession).
57. Id. at 348.
58. Johnson v. Kokemoor, 545 N.W.2d 495, 504 (Wis. 1996).
59. See Comparing Medical Providers, supra note 1, at 21.
60. Second Revolution, supra note 3, at 38.
61. Id.
62. See Kokemoor, 545 N.W.2d at 499.
63. See Second Revolution, supra note 3; Peter H. Schuck, Rethinking Informed Consent, 103 YALE L.J. 899, 956-58 (1994) (arguing for freedom to contract regarding the necessity for and level of informed consent).
64. See Second Revolution, supra note 3; Peter H. Schuck, Rethinking Informed Consent, 103 YALE L.J. 899, 956-58 (1994) (arguing for freedom to contract regarding the necessity for and level of informed consent).
65. See LoPucki, supra note 15, at 507-09 (describing strategic analysis).
66. Schuck, supra note 56, at 938.
67. See Kokemoor, 545 N.W.2d at 505, 510.
68. In the three years since the Kokemoor decision, there has been little comment in the legal, medical, or general literature. Searches in the Lexis files MEDLIN/RXMEGA, LAWREV/ALLREV/ and NEWS/CURNWS for "Kokemoor" yield a total of only about ten relevant citations. This lack of concern may in part result from the rejection of the holding in Kokemoor by a Washington Court of Appeals. See Whiteside v. Lukson, 947 P.2d 1263 (Wash. Ct. App. 1997). None of the comment that does exist suggests that providers are now divulging comparative provider statistics as part of the process for obtaining informed consent. Id.
69. The latest mortality statistics for CABG surgery released by the New York State Health Department show four hospitals with risk-adjusted mortality rates in excess of 4.0% and ten hospitals with risk-adjusted mortality rates of less than 2.0%. See NEW YORK REPORT, supra note 5, at 9.
70. See Kokemoor, 545 N.W.2d at 510.
71. See NEW YORK REPORT, supra note 5, at 9-10 (showing nearly all hospitals and surgeons in New York to have adjusted mortality rates of less than 5%).
72. See, e.g., PAUL C. WEILER, A MEASURE OF MALPRACTICE: MEDICAL INJURY, MALPRACTICE LITIGATION, AND PATIENT COMPENSATION 73 (1993) (estimating only a one in fifty chance that a patient who suffers a negligent medical injury will file a malpractice claim).
73. See. e.g., Schuck, supra note 56, at 935 (describing some of the difficulties).
74. The average CABG patient runs a mortality risk of about 2% to 3%. Switching to the best available provider would reduce that risk to between 1% and 2%, roughly halving it Assuming the risk to be precisely halved, that is the proportion of damages Twerski and Cohen would allow. Comparing Medical Providers, supra note 1, at 29.
75. For example, Millenson notes: In recent years the Society of Thoracic Surgeons has assembled detailed clinical information on outcomes of the procedure. However, the society prohibits public release of figures on individual doctors or hospitals, or even comparisons among states or regions of the country. There is one exception: surgeons who want to disclose their personal results - even if just for marketing purposes - can do so. "This whole system was designed for the individual surgeon for his own use," the head of the society's data committee explained to the Chicago Tribune in 1993. MILLENSON, supra note 18, at 187 (quoting Michael L. Millenson, The Wonder Drug of Information Makes Patients Insiders, CHICAGO TRIBUNE, May 11, 1993, at 1, 10).
76. See Schuck, supra note 56, at 947 (arguing that the American Medical Association could have generated such norms when the informed consent doctrine was first gaming ground).
77. See, e.g., Paula Walter, The Doctrine of Informed Consent: To Inform or Not To Inform? 71 ST. JOHN'S L. REV. 543, 547-48 (1997). ("The informed consent doctrine envisages a joint decision-making process in which the physician digests the technical information for the patient and transmits this information in a manner comprehensible by a layperson. The patient, in turn, asks questions, evaluates the information conveyed, and agrees to either proceed or not to proceed with the recommended treatment."). But see Schuck, supra note 56, at 933 (expressing doubt that much dialogue actually occurs); id. at 934 ("[A]necdotal and social science evidence alike demonstrate that informed consent law in action is often ritualistic, formalistic, and hollow.").
78. See Schuck, supra note 56, at 917 ("Increasingly, the disclosure is evidenced by a written form signed by the patient prior to treatment, which recites both the risks disclosed to her and her voluntary consent to treatment.").
79. The evidence that Dr. Kokemoor failed to obtain informed consent was entirely testimonial regarding the discussions between him and the plaintiff. See Kokemoor, 545 N.W.2d at 499-500 (recounting, as testimony, oral exchanges between defendant and plaintiff).
80. See Second Revolution, supra note 3.
81. See Green, supra note 7.
82. See Kathy Robertson, Hospitals Having Palpitations over New Report Cards, SACRAMENTO BUS. J., Nov. 20, 1998, at 6 (reporting that the risk adjustment methods of Healthcare Report Cards are confidential).
83. For example, Dr. Kokemoor's defense was that he had disclosed accurate information for surgery to clip a basal aneurysm. See Kokemoor, 545 N.W.2d at 500. The plaintiff's attorney successfully argued, however, that the disclosure should have been for surgery by a physician with the defendant's relatively limited experience. See id. at 499.
84. Professor Jon Macy has proposed as the "iron rule" of law school ratings that regardless of methodology, ratings prepared by a person affiliated with a school will show that school more favorably than ratings prepared by others. Cf. Theodore Eisenberg & Martin T. Wells, Ranking and Explaining the Scholarly Impact of Law Schools, 27 J. LEGAL STUD. 373, 396 (1998) (showing the results of a study done by Cornell professors ranking Cornell Law School 6th in the United States on basis of citation, the results of a study done by a Chicago-Kent professor ranking Chicago-Kent 28th in the United States on basis of productivity, and the results of a study done by U.S. NEWS & WORLD REPORT, ranking Cornell 11th and Chicago-Kent 45th on the basis of scholarly reputation).
85. For example, Dan Tennenhouse, a longtime risk-management consultant to Kaiser Permanente, a large not-for-profit HMO based in Oakland, California, was quoted as saying: "When you explain to most any patient who's facing surgery with potentially serious complications that you have a 12% risk factor, and then tell him that a doctor at a big tertiary-care center 90 miles away has a 10% risk factor, you can expect to lose the patient." Robert L. Lowes, Are the Litigation Floodgates Going to Open Even Wider?, 74 MED. ECON. 104 (1997).
86. See, e.g., S. Silber et al., Waiting Times and Death on the Waiting List for Coronary Artery Bypass Operation, 21 HERZ 389 (1996) (reporting mean waiting times of 13 to 20 days and a risk of dying on the waiting list of 1.3% per month for CABG surgery).
87. See supra Part I. Given that informed consent is pan of a decisionmaking process, courts should require that providers obtain it sufficiently early to facilitate that process. However logical such a change may be, it goes beyond the proposal that is the subject of this Article.
88. See MILLENSON, supra note 18, at 23, 201 (reporting the practice and resulting corruption of data).
89. See id. at 197-201 (discussing and partly refuting charges that doctors and hospitals refused treatment to high-risk patients in response to publication of the New York CABG mortality rates); Schneider, supra note 19 (after commencement of state reporting of comparative provider statistics, "fifty-nine percent of [New York] cardiologists reported increased difficulty in finding surgeons willing to perform CABG surgery in severely ill patients who required it"). But see Eric D. Peterson et al., The Effects of New York's Bypass Surgery Provider Profiling on Access to Care and Patient Outcomes in the Elderly. 32 J. AM. COLLEGE CARDIOLOGY 993 (1998) (finding "no evidence that [New York's] provider profiling limited procedure access of New York's elderly or increased out-of-state transfers" of patients).
90. MILLENSON, supra note 18, at 192-201.
91. See supra notes 47-50 and accompanying text.
92. A recently published study found that only 12% of Pennsylvania CABG recipients knew in advance that Pennsylvania published cardiac surgery mortality rates and that only one-third of them had seen the published rates. See Schneider & Epstein, supra note 20, at 1639. Only 1% reported discussing the ratings with a physician and only 1% reported that the Pennsylvania publication was a major or moderate influence in choice of surgeon or surgical group. See id. at 1639-40. Schneider and Epstein reported they "found formidable evidence that public reporting of mortality outcomes in Pennsylvania has had virtually no direct impact on patients' selection of hospitals or surgeons." Id. at 1642.
93. George J. Annas & 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, 367 (1994).
94. See, e.g., Schneider & Epstein, supra note 20, at 1642 ("Providers may also play an important role. Without a tailored and intensive program for dissemination and patient education, efforts to aid patient decision making with performance reports are unlikely to succeed.").
95. See MILLENSON, supra note 18, at 285-305 (discussing the relationship between financial incentives of providers and the levels of medical care provided).
96. See John V. Jacobi, Patients at a Loss: Protecting Health Care Consumers Through Data Driven Quality Assurance, 45 KAN. L. REV. 705, 708-28 (1997) (discussing the conflicts of interest between provider and patient in modern health care systems).
97. See, e.g., Anthony T. Kronman, Mistake, Disclosure, Information, and the Law of Contracts, 7 J. LEGAL STUD. 1 (1978); Alan Strudler, Moral Complexity in the Law of Nondisclosure, 45 UCLA L. REV. 337 (1997); Christopher T. Wonnell, The Structure of a General Theory of Nondisclosure, 41 CASE W. RES. L. REV. 329 (1991).
98. See, e.g., Anthony T. Kronman, Mistake, Disclosure, Information, and the Law of Contracts, 7 J. LEGAL STUD. 1 (1978); Alan Strudler, Moral Complexity in the Law of Nondisclosure, 45 UCLA L. REV. 337 (1997); Christopher T. Wonnell, The Structure of a General Theory of Nondisclosure, 41 CASE W. RES. L. REV. 329 (1991).
99. See, e.g., Anthony T. Kronman, Mistake, Disclosure, Information, and the Law of Contracts, 7 J. LEGAL STUD. 1 (1978); Alan Strudler, Moral Complexity in the Law of Nondisclosure, 45 UCLA L. REV. 337 (1997); Christopher T. Wonnell, The Structure of a General Theory of Nondisclosure, 41 CASE W. RES. L. REV. 329 (1991).
100. See, e.g., Wonnell, supra note 89, at 331 (noting that "[n]ondisclosure by a fiduciary is generally prohibited").
101. See, e.g., Moore v. Regents of the Univ. of Cal., 793 P.2d 479, 483 (Cal. 1990) ("[A] physician must disclose personal interests unrelated to the patient's health, whether research or economic, that may affect the physician's professional judgment . . . and . . . a physician's failure to disclose such interests may give rise to a cause of action for performing medical procedures without informed consent or breach of fiduciary duty."). See also Marjorie Maguire Shultz, From Informed Consent to Patient Choice: A New Protected Interest, 95 YALE L.J. 219, 259 (1985) ("A doctor's specialized knowledge and powerful role make her a fiduciary to those who depend on her. Consequently, the doctor owes undivided loyalty to her patients.").
102. See Wonnell, supra note 89, at 380-81.
103. See Kronman, supra note 89, at 26 ("It is doubtful whether the benefits of market information which are not eliminated by a disclosure requirement are sufficient by themselves to justify a deliberate investment in its production.").
104. See supra Part I.B.
105. See, e.g., Samuel Hellman & Deborah S. Hellman, Of Mice but Not Men: Problems of the Randomized Clinical Trial, in ETHICAL ISSUES IN MODERN MEDICINE (John D. Arras & Bonnie Steinbock eds., 4th ed. 1995) ("The physician, by entering into a relationship with an individual patient, assumes certain obligations, including the commitment to act in the patient's best interests."); Jacobi, supra note 88, at 720 ("Medical ethics has long regarded the patient's interests as the only proper basis for a physician's decisions.").
106. See Maerki, supra note 9 (estimating that regionalization of care could eliminate 60% of hospital deaths from certain procedures).
107. For example, in the latest statistics for CABG surgery in New York, only 4 of 32 hospitals had mortality rates significantly different from the statewide rate at the .05 level. See NEW YORK REPORT, supra note 5, at 9.
108. See Second Revolution, supra note 3, at 24 n.59.
109. See, e.g., Lowes, supra note 44 (quoting neurosurgeon-lawyer W. Ben Blackett as saying, "The surgeon who's done the most spinal-cord surgeries, for instance, had to do his first one sometime . . . . But if a new doctor can't do his first, where will our future experts come from?").
110. For example, in Milwaukee, HMOs pay cardiac surgeons $3000 to $5000 for CABG surgery, while Medicaid - which serves the indigent - pays cardiac surgeons only $1500 for CABG surgery. This slighting of the poor is deliberate; Medicare - which serves the elderly - pays cardiac surgeons $2500 for CABG surgery. See Interview by Aaron Twerski with anonymous Milwaukee cardiac surgeon (Feb. 17, 1999). The corresponding figures obtained from a New York City hospital were $3500 on the private market, $3000 for Medicare, and $1200 for Medicaid.
111. See, e.g., P.J. Bush, The Placebo Effect, 14 J. AM. PHARMACEUTICAL ASS'N. 671 (1974) (the demeanor of the physician in the context of a total therapeutic setting can achieve a placebo effect). This effect might be lost if the physician is required to reveal the physician's second-rate outcome statistics.
112. See, e.g., Marshall B. Kapp, Placebo Therapy and the Law: Prescribe with Care, 8 AM. J.L. & MED. 371, 376-78 (1983) (describing the dangers of using deception to achieve a placebo effect).