Patient autonomy in the age of consumer-driven health care: Informed consent and informed choice

Journal of Legal Medicine

Volumn 28, Issue 1, 2007, Pages 91-117

  Kapp, Marshall B ^a  

^a Southern Illinois University Schools of Law and Medicine   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

CONFERENCE PAPER; CONSUMER; ETHICS; HEALTH CARE; HEALTH CARE FINANCING; HEALTH CARE POLICY; LEGAL ASPECT; MEDICAL DECISION MAKING; OPTIMISM; PATIENT AUTONOMY;

CHOICE BEHAVIOR; CONSUMER SATISFACTION; COST-BENEFIT ANALYSIS; DEDUCTIBLES AND COINSURANCE; ETHICS, MEDICAL; HEALTH CARE REFORM; HEALTH CARE SECTOR; HUMANS; INFORMED CONSENT; MEDICAL SAVINGS ACCOUNTS; MODELS, ECONOMIC; PATIENT RIGHTS; PERSONAL AUTONOMY; RISK ASSESSMENT; UNITED STATES;

EID: 33947225679     PISSN: 01947648     EISSN: 1521057X     Source Type: Journal    
DOI: 10.1080/01947640601180398     Document Type: Conference Paper

References (228)

1. See, e.g., JERRY MENIKOFF, LAW AND BIOETHICS 356 (2001) (referring to patient autonomy as "that leading principle in the philosopher's world of bioethics").
2. See Lois Snyder & Cathy Leffler, Ethics Manual: Fifth ed., 142 ANNALS INTERN. MED. 560, 574 (2005).
3. See infra notes 33-39.
4. See IOWA CODE § 147.137 (2005); VT. STAT. ANN. tit. 18 § 1852 (2005).
5. See ILL. ADMIN. CODE tit. 77, § 205.610 (d) (2004) (requiring informed consent for ambulatory surgical procedures).
6. See, e.g., Snyder & Leffler, supra note 2, at 563-64.
7. See generally Charles P. Sabatino, The Legal and Functional Status of the Medical Proxy: Suggestions for Statutory Reform, 27 J.L. MED. & ETHICS 52 (1999) (regarding surrogate consent).
8. See THEODORE R. LEBLANG ET AL., Informed Consent to Medical and Surgical Treatment, in LEGAL MEDICINE 343 (S. Sandy Sanbar ed., 6th ed. 2004) [hereinafter LEBLANG ET AL.].
9. See id.
10. See Jennifer J. Couture, The Changes in Informed Consent in Experimental Procedures: The Evolution of a Concept, 1 J. HEALTH & BIOMED. L. 125 (2004).
11. See Schloendorf v. Society of New York Hospitals, 105 N.E.2d 92 (N.Y. 1914).
12. See Ann B. Flood et al., The Importance of Patient Preference in the Decision to Screen for Prostate Cancer, 11 J. GEN. INTERN. MED. 342 (1996) (applying informed consent to screening tests);
13. see also Gail Geller et al., Genetic Testing for Susceptibility to Adult-Onset Cancer: The Process and Content of Informed Consent, 277 JAMA 1467 (1997) (applying informed consent to screening tests). But see Abdulaziz v. City of Philadelphia, 2001 U.S. Dist. Lexis 10156 (E.D. Pa. 2001) (expressing minority view that informed consent requirements only apply to surgical procedures).
14. See John O. Beahrs & Thomas G. Gutheil, Informed Consent in Psychotherapy, 158 AM. J. PSYCHIATRY 4 (2001). "Therapeutic" in this context even includes non-physical interventions.
15. But see Constantine A. Manthous et al., Informed Consent for Medical Procedures: Local and National Practices, 124 CHEST 1978 (2003) (finding no uniform practice for informed consent for commonly performed invasive medical procedures).
16. See infra Section III A.
17. See Lawrence O. Gostin, Informed Consent, Cultural Sensitivity, and Respect for Persons, 274 JAMA 844 (1995);
18. see also Elysa Gordon, Multiculturalism in Medical Decisionmaking: The Notion of Informed Waiver, 23 FORD. URB. L.J. 1321 (1996);
19. Shimon M. Glick, Unlimited Human Autonomy - A Cultural Bias? 336 N. ENG. J. MED. 954 (1997);
20. Kiyomi Tomita, Informed Consent by Cancer Patients in Japanese Case Law, 14 INT'L J. RISK & SAFETY IN MED. 59 (2001).
21. The use of the term "consumer" to refer to individuals in the purchasing role and "patient" to refer to individuals in the direct care receiving role is purposeful. See Wendy K. Mariner, Can Consumer-Choice Plans Satisfy Patients? Problems with Theory and Practice in Health Insurance Contracts, 69 BROOK. L. REV. 485, 491-92 (2004) [hereinafter Mariner] (suggesting that terminology has substantive import for health policy and law). "Individuals can be both consumers and patients, although they are rarely both at the same time. People act like consumers when choosing what health plans to buy and like patients when deciding what treatment to undergo." Id. at 494-95.
22. See Alan Meisel & Mark Kuczewski, Legal and Ethical Myths About Informed Consent, 156 ARCH. INTERN. MED. 2521, 2521 (1996) [hereinafter Meisel & Kuczewski].
23. See Bart J. Collopy, Autonomy in Long Term Care: Some Crucial Distinctions, 28 GERONTOLOGIST 10, 10 (1988 Supp.).
24. See generally PRESIDENT'S COMM'N FOR THE STUDY OF ETHICAL PROBLEMS IN MEDICINE & BIOMEDICAL & BEHAVIORAL RESEARCH, in 1 MAKING HEALTH CARE DECISIONS: THE ETHICAL AND LEGAL IMPLICATIONS OF INFORMED CONSENT IN THE PATIENT-PRACTITIONER RELATIONSHIP (1982) [hereinafter MAKING HEALTH CARE DECISIONS].
25. But see Simon N. Whitney et al., A Typology of Shared Decision Making, Informed Consent, and Simple Consent, 140 ANN. INTERN. MED. 54 (2003) (distinguishing between informed consent and shared decision making);
26. Jerry A. Green, Minimizing Malpractice Risks by Role Clarification: The Confusing Transition from Tort to Contract, 109 ANN. INTERN. MED. 234 (1988) (distinguishing between informed consent and shared decision making);
27. Timothy E. Quill & Howard Brody, Physician Recommendations and Patient Autonomy: Finding a Balance Between Physician Power and Patient Choice, 125 ANN. INTERN. MED. 763 (1996).
28. Steven H.Woolf et al., Promoting Informed Choice: Transforming Health Care to Dispense Knowledge for Decision Making, 143 ANNALS INTERNAL MED. 293, 294 (2005) (citations omitted).
29. See ALBERT R. JONSEN, THE BIRTH OF BIOETHICS 354 (1998).
30. See RUTH R. FADEN & TOM L. BEAUCHAMP, A HISTORY AND THEORY OF INFORMED CONSENT 61 (1986).
31. Remarking on the current practice of allowing patients to make their own medical choices, one author notes: That [letting patients make their own medical choices], in itself, is a remarkable fact. Little more than a decade ago, doctors made the decisions; patients did what they were told. Doctors did not consult patients about their desires and priorities, and routinely withheld information - sometimes crucial information, such as what drugs they were on, what treatments they were being given, and what their diagnosis was. Patients were even forbidden to look at their own medical records: it wasn't their property, doctors said. They were regarded as children: too fragile and simple-minded to handle the truth, let alone make decisions. And they suffered for it. ATUL GAWANDE, COMPLICATIONS: A SURGEON'S NOTES ON AN IMPERFECT SCIENCE 210 (2003).
32. LEBLANG ET AL., supra note 8, at 349.
33. FADEN & BEAUCHAMP, supra note 23, at 262-68.
34. Id. at 40-41.
35. MAKING HEALTH CARE DECISIONS, supra note 20, at 42-44. "Since well-being can be defined only within each individual's experience, it is in most circumstances congruent to self-determination . . . ." Id. at 44;
36. accord David I. Shalowitz & Michael S. Wolf, Shared Decision-Making and the Lower Literate Patient, 32 J.L. MED. & ETHICS 759, 762 (2004) [hereinafter Shalowitz &Wolf] ("The model of shared decision-making is intended to provide a balanced structure for clinical consultations that both promotes patient autonomy and improves health outcomes.");
37. HELEN W. WU ET AL., NATIONAL QUALITY FORUM, IMPROVING PATIENT SAFETY THROUGH INFORMED CONSENT FOR PATIENTS WITH LIMITED HEALTH LITERACY (2005), available at http://www.qualityforum.org/publications.html (last accessed March 1, 2006);
38. see also Karin I. Kjellgren et al., Antihypertensive Medication in Clinical Encounters, 64 INT'L J. CARDIOLOGY 161 (1998) (linking patient participation in decision making and treatment efficacy);
39. Erika Szabo et al., Choice of Treatment Improves Quality of Life: A Study on Patients Undergoing Dialysis, 157 ARCH. OF INTERN. MED. 1352 (1997) (linking patient participation in decision making and treatment efficacy);
40. Carol Golin et al., Impoverished Diabetic Patients Whose Doctors Facilitate Their Participation in Medical Decision Making Are More Satisfied With Their Care, 17 J. GEN. INTERN. MED. 857 (2002) (linking patient participation in decision making and treatment efficacy).
41. See generally FADEN & BEAUCHAMP, supra note 23.
42. See supra notes 4 & 5.
43. See, e.g, N.J. STAT. ANN. § 30:13-15 (2005); FLA. STAT. ANN. § 400.022 (2005).
44. See, e.g., ALASKA STAT. ANN. § 47.30.837 (2005); HAW. REV. STAT. § 327G-10 (2005).
45. See, e.g., Schloendorff v. Soc'y of New York Hospitals, 105 N.E. 92 (N.Y. 1914).
46. Salgo v. Leland Stanford Jr. University Bd. of Trustees, 317 P.2d 170 (Cal. Ct. App. 1957).
47. Natanson v. Kline, 350 P.2d 1093 (Kan. 1960).
48. Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972). Canterbury was followed shortly thereafter by Cobbs v. Grant, 502 P.2d 1 (Cal. 1972) and Wilkinson v. Vesey, 295 A.2d 676 (R.I. 1972).
49. Canterbury, 464 F.2d at 782.
50. LEBLANG ET AL., supra note 8, at 350-51.
51. Natanson v. Kline, 350 P.2d 1093 (Kan. 1960).
52. Howard T. Chatterton, Efficacy, Risk, and the Determination of Value: Shared Medical Decision Making in the Age of Information, 48 J. FAM. PRAC. 505, 505 (1999);
53. see also Kieran G. Sweeney et al., Personal Significance: The Third Dimension, 351 LANCET 134 (1998) (arguing that physicians are concerned with the statistical and clinical significance of facts, but patients care about the personal significance of those same facts).
54. Steven H. Woolf & Robert S. Lawrence, Preserving Scientific Debate and Patient Choice: Lessons from the Consensus Panel on Mammography Screening, 278 JAMA 2105, 2106 (1997).
55. See Arato v. Avedon, 858 P.2d 598, 607 (Cal. 1993) (regarding the level of precision required in communicating information about risks to patients).
56. Truman v. Thomas, 611 P.2d 902, 906 (Cal. 1980) (recognizing a "right of informed refusal").
57. James A. Bulen, Jr., Complementary and Alternative Medicine: Ethical and Legal Aspects of Informed Consent to Treatment, 24 J. LEGAL MED. 331 (2003).
58. See G. Caleb Alexander et al., Patient-Physician Communication About Out-of-Pocket Costs, 290 JAMA 953 (2003);
59. see also James T. Hardee et al., Discussing Health Care Costs with Patients: An Opportunity for Empathic Communication, 20 J. GEN. INTERN. MED. 666 (2005);
60. Michael S. Wilkes & David L. Schriger, Caution: The Meter is Running - Informing Patients About Health Care Costs, 165 W. J. MED. 74 (1996).
61. See Whiteside v. Lukson, 947 P.2d 1263 (Wash. App. 1997); Heyward H. Bouknight, III, Between the Scalpel and the Lie: Comparing Theories of Physician Accountability for Misrepresentations of Experience and Competence, 60 WASH. & LEE L. REV. 1515 (2003).
62. See Howard v. Univ. Medicine & Dentistry of New Jersey, 800 A.2d 73 (N.J. 2002) (regarding physician's obligation to disclose his credentials accurately).
63. See Timothy S. Hall, Bargaining With Hippocrates: Managed Care and the Doctor-Patient Relationship, 54 S.C. L. REV. 689 (2002).
64. See Steven Lubet, Like a Surgeon, 88 CORNELL L. REV. 1178, 1187 (2003).
65. Marshall B. Kapp, Informed Consent to Defensive Medicine: Letting the Patient Decide, 56 PHAROS 12 (1993).
66. Cf. Jeremy Sugarman et al., Empirical Research on Informed Consent: An Annotated Bibliography, HASTINGS CENTER REP., Jan.-Feb. 1999, S1.
67. Robert A. McNutt, Shared Medical Decision Making: Problems, Process, Progress, 292 JAMA 2516 (2004).
68. Annette Moxey et al., Describing Treatment Effects to Patients: How They Are Expressed Makes a Difference, 18 J. GEN. INTERN. MED. 948 (2003).
69. Dennis J. Mazur & David H. Hickam, Patients' Preferences for Risk Disclosure and Role in Decision Making for Invasive Medical Procedures, 12 J. GEN. INTERN. MED. 114 (1997);
70. Lesley F. Degner et al., Information Needs and Decisional Preferences in Women With Breast Cancer, 277 JAMA 1485 (1997);
71. Dewey K. Ziegler et al., How Much Information About Adverse Effects of Medication Do Patients Want From Physicians? 161 ARCH. INTERN. MED. 706 (2001) (finding most individuals desire from physicians all information concerning possible adverse effects of prescribed medication).
72. See Andrea D. Gurmankin, Patients' Resistance to Risk Information in Genetic Counseling for BRCA1/2, 165 ARCH. INTERN. MED. 523 (2005).
73. For a critique of informed consent issued several decades ago, see Charles W. Lidz et al., Barriers to Informed Consent, 99 ANN. INTERN. MED. 539 (1983).
74. See, e.g., CARL E. SCHNEIDER, THE PRACTICE OF AUTONOMY: PATIENTS, DOCTORS, AND MEDICAL DECISIONS (1998).
75. Peter H. Schuck, Rethinking Informed Consent, 103 YALE L.J. 899, 903 (1994).
76. But see Amy L. McGuire et al., Missed Expectations? Physicians' Views of Patients' Participation in Medical Decision-Making, 43 MED. CARE 466 (2005) (finding physicians embraced patients' active participation in medical decision making for reasons of respect for autonomy, promoting better health outcomes, and physicians' self-interest).
77. See Meisel & Kuczewski, supra note 18, at 2522 ("Perhaps the most fundamental and pervasive myth about informed consent is that informed consent has been obtained when a patient signs a consent form. Nothing could be further from the truth, as many courts have pointed out to physicians who were only too willing to believe this myth.").
78. See Jay Katz, Informed Consent: Must It Remain a Fairy Tale?, 10 J. CONTEMP. HEALTH L. & POL'Y 69 (1993);
79. see also JAY KATZ, Informed Consent: A Fairy Tale?, Law's Vision, 39 U. PITT. L. REV.144 (1977);
80. JAY KATZ, THE SILENT WORLD OF DOCTOR AND PATIENT (1984).
81. See Clarence H. Braddock, III et al., Informed Decision Making in Outpatient Practice: Time to Get Back to Basics, 282 JAMA 2313 (1999) (finding informed decision making among the group of primary care physicians and surgeons studied was often incomplete);
82. Clarence H. Braddock, III et al., How Doctors and Patients Discuss Routine Clinical Decisions: Informed Decision Making in the Outpatient Setting, 12 J. GEN. INTERN. MED. 339 (1997) (finding discussions leading to clinical decisions in the primary care settings studied did not fulfill the criteria considered integral to informed decision making).
83. Regarding low literacy rates, see generally Barry D. Weiss & Cathy Coyne, Communicating With Patients Who Cannot Read, 337 NEW ENG. J. MED. 272 (1997) [hereinafter Weiss & Coyne].
84. See Shalowitz & Wolf, supra note 28.
85. Judith Hibbard et al., Identifying Medicare Beneficiaries with Poor Health Literacy Skills: Is a Short Screening Index Feasible?, HEALTH LITERACY RESEARCH REPORT (AARP Public Policy Institute) June 2005, at 1, available at http://assets.aarp.org/ rgcenter/health/2005 01 literacy.pdf (last accessed March 14, 2006).
86. Simon J. Ellis et al., Letter, Informed Consent is Flawed, 357 LANCET 149, 150 (2001).
87. Raisa B. Deber, Shared Decision Making in the Real World, 11 J. GEN. INTERN. MED. 377 (1996).
88. See, e.g., Wendy Levinson et al., Not All Patients Want to Participate in Decision Making: A National Study of Public Preferences, 20 J. GEN. INTERN. MED. 531 (2005); Woolf et al., supra note 21, at 294;
89. Dorcas Mansell et al., Clinical Factors that Influence Patients' Desire for Participation in Decisions About Illness, 160 ARCH. INTERN. MED. 2991 (2000);
90. Geraldine M. Leydon et al., Cancer Patients' Information Needs and Information Seeking Behaviour, 320 BR. MED. J. 909 (2000) (finding cancer patients' attitudes to cancer and their strategies for coping with their illness can constrain their wish for information and their efforts to obtain it);
91. Robert F. Nease, Jr. & W. Blair Brooks, Patient Desire for Information and Decision Making in Healthcare Decisions: The Autonomy Preference Index and the Health Opinion Survey, 10 J. GEN. INTERN. MED. 593 (1995).
92. See Gurmankin et al., supra note 55.
93. See Jan Hoffman, Awash in Information, Patients Face a Lonely, Uncertain Road, N.Y. TIMES, August 14, 2005, at A1, A18-A19, available at www.nytimes.com/2005/08/14/health/14patient.html.
94. See Woolf et al., supra note 21, at 295.
95. See Ronald M. Epstein et al., Communicating Evidence for Participatory Decision Making, 291 JAMA 2359 (2004);
96. Susan J. Diem, How and When Should Physicians Discuss Clinical Decisions With Patients?, 12 J. GEN. INTERN. MED. 397, 398 (1997).
97. See Shalowitz & Wolf, supra note 28, at 762.
98. Woolf et al., supra note 21, at 295-96; Thomas Bodenheimer & Alicia Fernandez, High and Rising Health Care Costs, Part 4: Can Costs Be Controlled While Preserving Quality?, 143 ANNALS INTERN. MED. 26, 29 (2005) ("High-quality shared decision making requires patients who can engage in discussions as informed partners, which in turn requires use of patient decision aids. These are evidence-based tools that allow physicians to accurately inform patients of available options and their consequences.").
99. Terry A. Jacobson et al., Use of a Low-Literacy Patient Education Tool to Enhance Pneumococcal Vaccination Rates, 282 JAMA 646 (1999).
100. Sidney T. Bogardus, Jr. et al., Perils, Pitfalls, and Possibilities in Talking About Medical Risk, 281 JAMA 1037 (1999).
101. Shalowitz & Wolf, supra note 28, at 762.
102. Robert J. Volk et al., A Randomized Controlled Trial of Shared Decision Making for Prostate Cancer Screening, 8 ARCH. FAM. MED. 333 (1999);
103. Richard A. Deyo et al., Involving Patients in Clinical Decisions: Impact of an Interactive Video Program on Use of Back Surgery, 38 MED. CARE 959 (2000).
104. Ramesh Santanam, Health Coaches to Aid Medicare Patients, LAS VEGAS SUN, Aug. 8, 2005, at 12, available at http://www.lasvegassun.com/sunbin/stories/thrive/2005/aug/08/080806822. html.
105. Id.
106. See Michael Pignone et al., Patient Preferences for Colon Cancer Screening, 14 J. GEN. INTERN. MED. 432 (1999) (finding patient preferences for colon cancer screening were sensitive to information about test performance and out-of-pocket costs).
107. See the works by Jay Katz, supra note 61.
108. See McNutt, supra note 52, at 2518.
109. Weiss & Coyne, supra note 63, at 273.
110. See Shalowitz & Wolf, supra note 28, at 763.
111. John V. Jacobi, Consumer-Directed Health Care and the Chronically Ill, 38 U. MICH. J.L. REFORM 531, 533 (2005) [hereinafter Jacobi, Chronically Ill].
112. Margot Roosevelt, Health Insurance? Turn Left at Aisle 6, TIMEMAG., July 25, 2005, at 14 (quoting academic Richard Brown: "But it [a competitive health insurance marketplace] won't stop the [financial] hemorrhaging." What is needed is not a fragmented free market, but instead "a publicly accountable and organized system of health insurance").
113. But see Stephen T. Parente et al., Evaluation of the Effect of a Consumer-Driven Health Plan on Medical Care Expenditures and Utilization, 39 HEALTH SERV. RES. 1189 (2004) (reporting a research finding that enrollees in a consumer-driven health plan had lower total expenditures than PPO enrollees in another study cohort).
114. Regarding the escalating parameters of health care expenditures in the United States, see, e.g., Ida Hellander, A Review of Data on the U.S. Health Sector: Fall 2004, 35 INT. J. HEALTH SERV. 265 (2005);
115. USA TODAY, KAISER FAMILY FOUNDATION & HARVARD SCHOOL OF PUBLIC - HEALTH, HEALTH CARE COSTS SURVEY - SUMMARY AND CHARTPACK (2005), available at http://www.kff.org/ newsmedia/pomr090105pkg.cfm. ;
116. Vanessa Fuhrmans, Employer Health-Care Costs Rise 9.2%, N.Y. TIMES, Sept. 15, 2005, at D2;
117. Editorial, Son of Sanford, WALL ST. J., Aug. 23, 2005, at A10 (describing the fiscal mess created for the states by the federal/state Medicaid program).
118. See Timothy S. Jost, Private, or Public Approaches to Insuring the Uninsured: Lessons from International Experience With Private Insurance, 76 N.Y.U.L. REV. 419 (2001);
119. Malcolm Gladwell, The Moral Hazard Myth: The Bad Idea Behind Our Failed Health-Care System, NEW YORKER, Aug. 29, 2005, at 44 (faulting proponents of consumer-driven health care for giving insufficient reverence to the resource redistribution function of health insurance).
120. See Mariner, supra note 17; James C. Robinson, The Politics of Managed Competition; Public Abuse of the Private Interest, 28 J. HEALTH POL. POL'Y & L. 341 (2003) [hereinafter Robinson, Politics].
121. Compare Stuart Butler, American Values and Social Justice: Why Medicare Today Is in Conflict With Our Social Values, GENERATIONS, Spr. 2005, at 86,
122. with Ann Neale, American Values and Social Justice: Who Should Pay for Elders' Income and Healthcare Security?, GENERATIONS, Spr. 2005, at 88.
123. See, e.g., GEORGE J. ANNAS, THE RIGHTS OF PATIENTS (2004).
124. GEORGE J.ANNAS, SOME CHOICE: LAW, MEDICINE, AND THE MARKET 46 (1998) [hereinafter ANNAS, CHOICE].
125. See, e.g., Robinson, Politics, supra note 89, at 350 (suggesting the push for consumer-driven health care appeals primarily to "right-wing activists");
126. Sara Rosenbaum et al., Foreword: National Health Reform and America's Uninsured, 32 J.L.MED. & ETHICS 386, 388 (2004) (characterizing the difference between "the concept of social contract" and an openness to trying a high degree of "privatization in both program design and administration" as "a historical conflict between two fundamentally different world views");
127. Bruce C. Vladeck, The Struggle for the Soul of Medicare, 32 J.L.MED. & ETHICS 410, 412 (2004) [hereinafter Vladeck] (commenting on "the considerable ideological division about approaches to" the problem of escalating health care costs between "defenders of the welfare state" and economic conservatives); id. at 413 (opining that "the power of ideology is clearly dominant, and should not be underestimated");
128. Jacobi, Chronically Ill, supra note 86, at 548 (implicitly endorsing the analytic framework of philosopher John Rawls, which subjugates individual liberty to the goal of egalitarian redistribution of resources);
129. see JOHN RAWLS, A THEORY OF JUSTICE 303 (1971).
130. See DANIEL YERGIN & JOSEPH STANISLAW, THE COMMANDING HEIGHTS: THE BATTLE BETWEEN GOVERNMENT AND THE MARKETPLACE THAT IS REMAKING THE MODERN WORLD (1998).
131. See, e.g., William D. White, Market Forces, Competitive Strategies, and Health Care Regulation, 2004 U. ILL. L. REV. 137, 158 ("In the wake of rapid increases in costs and a rise in the number of uninsured, a consensus has emerged that managed care is no longer working as a cost containment mechanism . . .At the same time, fundamental questions exist about managed care's ability to address the effects of technological change and underlying problems with quality of care in an environment of growing consumerism.");
132. John V. Jacobi, After Managed Care: Gray Boxes, Tiers and Consumerism, 47 ST. LOUIS U. L.J. 397 (2003); Vladeck, supra note 92, at 413 ("What changed the tone of the debate about privatization - although not the efforts to promote it - was the growing popular dissatisfaction with HMOs. . . ").
133. For ethical critiques of managed care, see, e.g., Frank M. McClellan, Is Managed Care Good for What Ails You? Ruminations on Race, Age and Class, 44 VILL. L. REV. 227 (1999);
134. Sharona Hoffman, Unmanaged Care: Towards Moral Fairness in Health Care Coverage, 78 IND. L.J. 659 (2003).
135. For a critique of managed care plans from the consumer's perspective, see, e.g., Weighing Your Health Plan Choices, CONSUMER REPORTS, Sept. 2005, at 44.
136. But see NAT'L. COMM. FOR QUAL. ASSURANCE, THE STATE OF HEALTH CARE QUALITY: INDUSTRY TRENDS AND ANALYSIS (2005), available at http://www.ncqa.org (reporting on a positive trend in the quality of care received by consumers in managed care plans).
137. See Victor R. Fuchs, Health Care Expenditures Reexamined, 143 ANNALS INTERN. MED. 76, 77 (2005) (reflecting the traditional understanding that it is physicians "whose decisions about drugs, tests, and hospitalization determine the bulk of health care costs at any given time").
138. See generally James C. Robinson, Reinvention of Health Insurance in the Consumer Era, 291 JAMA 1880 (2004) [hereinafter Robinson, Reinvention];
139. see also Greg Scandlen, How Consumer-Driven Health Care Evolves in a Dynamic Market, 39 HEALTH SERV. RES. 1113 (2004);
140. Jacobi, Chronically Ill, supra note 86, at 404-06.
141. See, e.g., The Power of Choice in the Health Care Marketplace and Its Consequences, 56 MED. CARE RES. & REV. (Supp. 1) 5-176 (Amy M. Bernstein & Anne K. Gauthier eds., 1999).
142. Thomas H. Lee & Kinga Zapert, Do High-Deductible Health Plans Threaten Quality of Care?, 353 N. ENG. J. MED. 1202, 1203 (2005) [hereinafter Lee & Zapert].
143. Jacobi, Chronically Ill, supra note 86, at 532 (citations omitted).
144. See Martha P. Patterson, Defined Contribution Health Plan to Consumer Driven Health Benefits: Evolution and Experience, 20 BENEFITS Q. 49 (2004) [hereinafter Patterson].
145. Eric S. Berger et al., The Politics of Consumer-Driven Health Care, in CONSUMER-DRIVEN HEALTH CARE: IMPLICATIONS FOR PROVIDERS, PAYERS, AND POLICYMAKERS 764, 768 (Regina E. Herzlinger ed., 2004).
146. Lee & Zapert, supra note 98, at 1202.
147. See generally THROUGH THE PATIENT'S EYES: UNDERSTANDING AND PROMOTING PATIENT-CENTERED CARE (Margaret Gerteis et al. eds., 1993). According to these editors, "What we hope to accomplish . . . is to help health care providers keep the patient's perspective in mind as they [the providers] respond to the pressures of the 'real' world." Id. at xiii (emphasis added).
148. But see Karen Davis et al., A 2020 Vision of Patient-Centered Primary Care, 20 J. GEN. INTERN. MED. 953 (2005), identifying as a core practice of patient-centered primary care: Patient engagement in care: option for patients to be informed and engaged partners in their care, including a recasting of clinical roles as advisors, with patients or designated surrogates for incapacitated patients serving as the locus of decision making (when desired by patients): information for patients on condition/treatment options/treatment plan; . . . patient education . . . . Id. at 954.
149. See, e.g., Alan Murray, Case Study: Former AOL Chief Seeks Health-Care Revolution, WALL. ST. J., Oct. 5, 2005, at A2 (regarding the movement toward consumer-driven health care as a paradigm shift, and describing a series of investments in health care designed, according to former America Online chief executive officer Steve Case, "to change the world" by "put[ting] patients at the center of the health system, with more choices, more convenience, more control").
150. See, e.g., Advertisement, Custom Choice - Individual Health Plans as Individual as You Are, SOUTHERN ILLINOISIAN, Aug. 28, 2005, at 15A (advertising "a customizable health plan that suits you" and that "lets you pick the coverage and premium that makes sense for you").
151. See, e.g., Jacobi, Chronically Ill, supra note 86, at 549-55;
152. Robinson, Reinvention, supra note 96;
153. James C. Robinson, Health Savings Accounts - The Ownership Society in Health Care, 353 N. ENG. J. MED. 1199 (2005) [hereinafter Robinson, HSAs];
154. Meredith Rosenthal & Arnold Milstein, Consumer-Driven Health Plans: What's Offered? Who Chooses? Awakening Consumer Stewardship of Health Benefits - Prevalence and Differentiation of New Health Plan Models, 39 HEALTH SERV. RES. 1055 (2004).
155. See generally CONSUMER-DRIVEN HEALTH CARE: IMPLICATIONS FOR PROVIDERS, PAYERS, AND POLICYMAKERS (Regina E. Herzlinger ed., 2004).
156. Cf. Barbara Martinez & Sarah Lueck, How to Choose a Medicare Drug Plan, WALL ST. J., OCT. 4, 2005, at D1 (describing the choices older Americans newly enjoy under the Medicare prescription drug benefit effective in late 2005).
157. For descriptions, see, e.g., Robinson, Reinvention, supra note 96, at 1882;
158. Robinson, HSAs, supra note 106.
159. Jacobi, Chronically Ill, supra note 86, at 549.
160. See Richard L. Kaplan, Who's Afraid of Personal Responsibility? Health Savings Accounts and the Future of American Health Care, 36 MCGEORGE L. REV. 535, 550-53 (2005) [hereinafter Kaplan] (describing in detail the high-deductible health insurance plans required under the Health Savings Account provisions of the Medicare Drug, Improvement, and Modernization Act of 2003).
161. See J.M. Razor, Health Savings Accounts: Increasing Health Care Access in America?, 17 LOY. CONSUMER L. REV. 419, 428 (2005) [hereinafter Razor] (finding that over half of all Americans have an employment-based health insurance policy in his or her own name); Mariner, supra note 17, at 489.
162. See John V. Jacobi, Government Reinsurance Programs and Consumer-Driven Care, 53 BUFF. L. REV. 537 (2005) [hereinafter Jacobi, Consumer-Driven].
163. E.g., Jack Lewin&Ronald A.Williams, Cover Yourself!, WALL ST. J., Aug. 19, 2005, at A12 (regarding individually purchased health insurance policies);
164. see also John Shadegg, Editorial, Cheaper Health Insurance, WALL ST. J., July 25, 2005, at A14 (advocating legislation permitting Americans to buy health insurance from vendors in any of the 50 states).
165. See Medicare Prescription Drug, Improvement, and Modernization Act of 2003, Pub. L. No. 108-172,
166. Stat. 2066 (2003) (outlining the fact that consumers were given the opportunity to fund their HSAs with pre-tax dollars).
167. See generally Razor, supra note 111; Kaplan, supra note 109, at 548-50, 553-56. HSAs are distinct from the Medicare Health Accounts idea that has been proposed as a mechanism for Medicare beneficiaries to save for health costs not covered by Medicare. Regarding this idea, see Sara R. Collins et al., Medicare Health Accounts: A New Policy Option to Help Adults Save for Health Care Expenses Not Covered by Medicare (Commonwealth Fund Pub. No. 842, 2005).
168. Jacobi, Chronically Ill, supra note 86, at 538.
169. Id. at 539.
170. Id.
171. CATO INST., HEALTHY COMPETITION: WHAT'S HOLDING BACK HEALTH CARE AND HOW TO FREE IT x-xi (Michael F. Cannon & Christopher T. Erb eds., 2005).
172. See CONSUMER CHOICE: SOCIAL WELFARE & HEALTH POLICY (Robert F. Rich & Christopher T. Erb eds., 2005).
173. See Patterson, supra note 100.
174. I borrowthis simplification technique from Professor Mariner, although she prefers the term "consumer-choice" plans. Mariner, supra note 17, at 496-97.
175. Cf. Loretta Chao, Shopping for the Best Medical Prices, WALL ST. J., Sept. 8, 2005, at D3.
176. Robinson, HSAs, supra note 106, at 1201.
177. See THOMAS SOWELL, THE VISION OF THE ANOINTED: SELF-CONGRATULATION AS A BASIS FOR SOCIAL POLICY (1995) (displaying the author's exalted expression of the libertarian platform).
178. Vladeck, supra note 92, at 413.
179. Christina Sochacki, Consumers Deserve Choice in Health Care Plans, at http://www.foxnews.com/ printer friendly story/0,3566,167635,00.html (Aug. 29, 2005).
180. Robinson, HSAs, supra note 106, at 1201.
181. Kaplan, supra note 109, at 562.
182. GEORGE F. WILL, Listening to Politics With a Third Ear, in WITH A HAPPY EYE BUT: AMERICA AND THE WORLD 1997-2000, at 264-66 (2002).
183. On the inevitability of health care rationing, see DANIEL CALLAHAN, WHAT KIND OF LIFE? (1990);
184. see also DANIEL CALLAHAN, SETTING LIMITS: MEDICAL GOALS IN AN AGING SOCIETY (1987);
185. Marshall B. Kapp, De Facto Health Care Rationing By Age: The Law Has No Remedy, 19 J. LEGAL MED. 323 (1998);
186. Marshall B. Kapp, Health Care Rationing Affecting Older Persons: Rejected in Principle But Implemented in Fact, 14 J. AGING & SOC. POL'Y 27 (2002).
187. Jacobi, Consumer-Driven, supra note 111, at 550.
188. Robinson, HSAS, supra note 106, at 1203.
189. Homan W. Jenkins, Jr., Managed Retreat?, WALL ST. J., July 13, 2005, at A15.
190. Robinson, HSAs, supra note 106, at 1201.
191. Kaplan, supra note 109, at 563.
192. Samia A. Hurst et al., Conserving Scarce Resources: Willingness of Health Insurance Enrollees to Choose Cheaper Options, 32 J.L. MED. & ETHICS 496, 496 (2004).
193. Regarding the author's prejudices in this regard, see, e.g., Marshall B. Kapp, Health Care in the Marketplace: Implications for Decisionally Impaired Consumers and Their Surrogates and Advocates, 24 S. ILL. U.L.J. 1 (1999).
194. See ANNAS, CHOICE, supra note 91.
195. Lee & Zapert, supra note 98, at 1202.
196. Katherine Swartz, Informed Consumer - Caveat Emptor, 42 INQUIRY 3, 3 (2005).
197. Robinson, Reinvention, supra note 96, at 1885;
198. see also John C. Goodman, Designing Health Insurance for the Information Age, in CONSUMER-DRIVEN HEALTH CARE: IMPLICATIONS FOR PROVIDERS, PAYERS, AND POLICYMAKERS 224, 224-26 (Regina Herzlinger ed., 2004).
199. Mariner, supra note 17, at 507.
200. Regarding the general and health-specific illiteracy problem, see generally Weiss & Coyne, supra note 63; see also JESSICA GREENE ET AL., HOW MUCH DO HEALTH LITERACY AND PATIENT ACTIVATION CONTRIBUTE TO OLDER ADULTS'ABILITY TO MANAGE THEIR HEALTH? (AARP Public Policy Institute, Paper No. 2005-05, 2005).
201. Sarah Rubenstein, Using Health Savings Accounts Cuts Costs, But It's Not Easy, WALL ST. J., July 5, 2005, at A15.
202. Judith H. Hibbert & Ellen Peters, Supporting Informed Consumer Health Care Decisions: Data Presentation Approaches that Facilitate the Use of Information in Choice, 24 ANN. REV. PUB. HEALTH 413 (2003).
203. Jacobi, Consumer-Driven, supra note 111, at 552.
204. Robinson, HSAs, supra note 106, at 1201.
205. Id.
206. Marshall B. Kapp, Consumer Choice in the New Millennium: Health Care Professionals as Purchasing Advisors, 22 ISSUES ON AGING 15 (1999).
207. See, e.g., http://www.aarp.org/health/medicare/drug coverage/medicarerx coverage.html (featuring AARP's Guide to the New Medicare Prescription Drug Coverage).
208. See, e.g., http://www.medicare.gov/; http://www.cms.hhs.gov/ quality/hhqi.
209. William M. Sage, Regulating Through Information: Disclosure Laws and American Healthcare, 99 COLUM. L. REV. 1701 (1999).
210. Mariner, supra note 17, at 493.
211. Jacobi, Chronically Ill, supra note 86 (predicting that consumer-driven health care "will endanger the health and well-being of the chronically ill . . . those most reliant on health coverage"). Id. at 533.
212. Id. at 556.
213. Id. at 557.
214. Lee & Zapert, supra note 98, at 1204.
215. Steffie Woolhandler & David U. Himmelstein, When Money Is the Mission: The High Costs of Investor-Owned Care, 341 N. ENG. J. MED. 444, 445-46 (1999).
216. Admittedly, there are a small percentage of individuals who lack sufficient intellectual and/or emotional capacity to function as autonomous decision makers, for either clinical care matters or health plan selection purposes. Even for such persons, though, some version of personal surrogate-driven health care may be possible, just as we sometimes need to rely on surrogates to make clinical decisions on behalf of incapacitated medical patients. See Kapp, supra note 130. See generally, Marshall B. Kapp, From Medical Patients to Health Care Consumers: Decisional Capacity and Choices to Purchase Coverage and Services, 3 AGING & MENTAL HEALTH 294 (1999);
217. Marshall B. Kapp, Consumer Choice in Health Care and Long Term Care: What the United States Can Teach and Learn From Others About Decisionally Incapacitated Consumers, 24 INT'L J.L. & PSYCHIATRY 199 (2001);
218. Marshall B. Kapp, Consumer Choice in Home and Community-Based Long Term Care: Policy Implications for Decisionally Incapacitated Consumers, 19 HOME HEALTH CARE SERV. Q. 17 (2001).
219. See Regina E. Herzliner & Tom Nerney, Medicine for Medicaid, WALL ST. J. Aug. 2, 2005, at A10.
220. A major impetus for this development was the Supreme Court's holding in Olmstead v. United States, 527 U.S. 581 (1999) (holding states have an obligation, under Title II of the Americans With Disabilities Act, 42 U.S.C. § 12101 et seq., to deinstitutionalize disabled persons who need long term care services). See generally Deinstitutionalizing Long-Term Care: Making Legal Strides, Avoiding Policy Errors, 11 ETHICS, L., & AGING REV. ix-102 (Marshall B. Kapp, ed. 2005).
221. Judith E. Heumann, Consumer-Directed Personal Care Services for Older People, at 1 (AARP Public Policy Institute, Series IB 64, 2003) (quoting the National Institute on Consumer-Directed Long-Term Services).
222. See generally Consumer-Directed Care and the Older Person, 6 ETHICS, L. & AGING REV. 3-187 (Marshall B. Kapp ed., 2000);
223. Consumer Direction in Long-Term Care, GENERATIONS, Fall 2000, at 1-99.
224. See generally www.consumerdirection.org (containing information about a project sponsored by the Robert Wood Johnson Foundation, entitled "Promoting Consumer Direction in Aging Services," and conducted through a partnership of the National Association of State Units on Aging and the National Council on the Aging).
225. See also NATIONAL COUNCIL ON DISABILITY, CONSUMER-DIRECTED HEALTH CARE: HOW WELL DOES IT WORK?, http://www.ncd.gov/newsroom/publications/2004/consumerdirected.htm (finding "[b]oth studies and interviews indicate that best outcomes occur when consumers can make their own choices among service options. Even in nursing homes and other institutional settings, there is room for choice about activities and services").
226. Regarding the empowerment of nursing facility residents, see JOEL F. HANDLER, DOWN FROM BUREAUCRACY: THE AMBIGUITY OF PRIVATIZATION AND EMPOWERMENT 149-55 (1996).
227. Mariner, supra note 17, at 498.
228. For historical and philosophical insight regarding this continuous, futile attempt, see DANIEL CALLAHAN, FALSE HOPES: WHY AMERICA'S QUEST FOR PERFECT HEALTH IS A RECIPE FOR FAILURE (1998); MICHAEL B. KATZ, THE PRICE OF CITIZENSHIP: REDEFINING THE AMERICAN WELFARE STATE 257-92 (2001).