Relational duties, regulatory duties, and the widening gap between individual health law and collective health policy

Georgetown Law Journal

Volumn 96, Issue 2, 2008, Pages 497-522

  Sage, William M ^a  

^a NONE

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EID: 39849087165     PISSN: 00168092     EISSN: None     Source Type: Journal    
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References (126)

1. Jeffrey M. Drazen, Government in Medicine, 356 NEW ENG. J. MED. 2195, 2195 (2007).
2. Jerome P. Kassirer, Practicing Medicine Without a License - The New Intrusions by Congress, 336 NEW ENG. J. MED. 1747, 1747 (1997).
3. Drazen, supra note 1, at 2195.
4. Nat'l Coal, on Health Care, Health Insurance Cost: Facts on the Cost of Health Care (2007), http://www.nchc.org/facts/cost.pdf.
5. Id.
6. Nat'l Coal, on Health Care, Health Insurance Coverage: Facts on Health Insurance Coverage (2007), http://www.nchc.org/facts/coverage_fact_sheet_2007. pdf.
7. Jay A. Gold, Wiser than the Laws?: The Legal Accountability of the Medical Profession, 7 AM. J.L. & MED. 145, 146-47 (1981).
8. Ronald J. Gilson, The Devolution of the Legal Profession: A Demand Side Perspective, 49 MD. L. REV. 869, 916 (1990).
9. See generally PAUL STARR, THE SOCIAL TRANSFORMATION OF AMERICAN MEDICINE 3-9 (1982) (casting the history of American medicine in terms of physicians' successful collective opposition to both corporate and governmental control).
10. See generally F.A. Hayek, The Use of Knowledge in Society, 35 AM. ECON. REV. 519, 526-28 (1945) (arguing that free markets are informationally superior to central planning, in large part because of price signaling).
11. Mental imagery plays an important role in health law by establishing archetypes against which legal rules and ethical precepts are evaluated. For example, David Orentlicher argues that social acceptance of the right to refuse medical resuscitation and social resistance to the right to assisted suicide derive in large part from images associating the former with elderly patients suffering from terminal cancer and the latter with young adults suffering from depression. David Orentlicher, The Legalization of Physician-Assisted Suicide, 335 NEW ENG. J. MED. 663, 665-66 (1996).
12. See generally The Schiavo Case: A Symposium, 22 CONST. COMMENT. 383 (2005) (collecting articles about the case).
13. For purposes of this Essay, the legal term of art that attaches to the physician-patient relationship is not important. Strict definitions of agency may not capture all of what physicians do for patients. And commentators differ on whether the physician-patient relationship should be considered "fiduciary" or merely "confidential." Compare Tamar Frankel, Fiduciary Law, 71 CAL. L. REV. 795, 796 & n.6 (1983) ("[P]hysicians and psychiatrists have recently become members of the fiduciary group."), with RESTATEMENT (SECOND) OF TRUSTS § 2 cmt. B (1959) (defining the relationship between physician and patient as confidential, but not fiduciary).
14. Kenneth J. Arrow, Uncertainty and the Welfare Economics of Medical Care, 53 AM. ECON. REV. 941, 949 (1963). For a comprehensive updating and analysis of Arrow's seminal article, see UNCERTAIN TIMES: KENNETH ARROW AND THE CHANGING ECONOMICS OF HEALTH CARE (Peter J. Hammer et al. eds., 2003).
15. CLARENCE WILBUR TABER, TABER'S CYLOPEDIC MEDICAL DICTIONARY 662 (14th ed. 1981) (reproducing the Hippocratic Oath).
16. See generally William M. Sage, Unfinished Business: How Litigation Relates to Health Care Regulation, 28 J. HEALTH POL. POL'Y & L. 387 (2003) (attributing health care litigation to incomplete industrialization, incomplete consumerism, and incomplete social solidarity in the U.S. health care system).
17. See JAMES C. MOHR, DOCTORS AND THE LAW: MEDICAL JURISPRUDENCE IN NINETEENTH- CENTURY AMERICA 94-108 (1993) (describing how the legal and medical professions grew apart in small towns with locally appointed coroners and high-profile lawsuits in which physicians lost face as witnesses and defendants).
18. Wendy K. Mariner, Slouching Toward Managed Care Liability: Reflections on Doctrinal Boundaries, Paradigm Shifts, and Incremental Reform, 29 J.L. MED. & ETHICS 253, 254-60 (2001) (surveying the debate between tort law and contract law proponents).
19. See, e.g., John C.P. Goldberg, The Constitutional Status of Tort Law: Due Process and the Right to a Law for the Redress of Wrongs, 115 YALE L.J. 524, 528-29 (2005);
20. John C.P. Goldberg, Tort Law for Federalists (and the Rest of Us): Private Law in Disguise, 28 HARV. J.L. & PUB. POL'Y 3, 3-4, 7 (2004). But see Samuel Issacharoff & John Fabian Witt, The Inevitability of Aggregate Settlement: An Institutional Account of American Tort Law, 57 VAND. L. REV. 1571, 1573-78 (2004) (arguing that aggregate resolution of tort claims, albeit through private institutions, has served as a pragmatic counterpoint to the notion of "individualized justice" throughout modern American history).
21. 29 U.S.C. § 1132(a)(1)(B) (2000); see also Aetna Health Inc. v. Davila, 542 U.S. 200, 222-24 (2004) (Ginsburg, J., concurring) (questioning prior rulings on available damages under ERISA).
22. 42 U.S.C. § 1395dd(d)(2)(A) (2000 & Supp. IV 2004).
23. 45 C.F.R. § 46.123 (2006).
24. Pub. L. No. 104-191, 110 Stat. 1936 (1996); see also 42 U.S.C. § 1320d-5, d-6 (2000) (civil administrative and criminal enforcement provisions).
25. See, e.g., Pegram v. Herdrich, 530 U.S. 211, 236 (2000) ("ERISA was not enacted . . . in order to federalize malpractice litigation.").
26. See, e.g.. Grimes v. Kennedy Krieger Inst., Inc., 782 A.2d 807 (Md. 2001) (denying summary judgment under state tort law in a case involving alleged violations of federal research regulations).
27. See STARR, supra note 9, at 79-144 (discussing physicians' "consolidation of authority" between 1850 and 1920). Starr describes the AMA's initial code of ethics at mid-century as an attempt by mainstream physicians to exclude unconventional practitioners, id. at 90-91, and notes that professional self-regulation was ineffective until decades later when, because of medical advances, "[t]he public granted the legitimate complexity of medicine and the need for institutionalized professional authority." Id. at 141.
28. See id. 299-301 (describing physician resistance to health insurance innovations).
29. See, e.g., RUTH R. FADEN & TOM L. BEAUCHAMP, A HISTORY AND THEORY OF INFORMED CONSENT 88-101 (1986).
30. Nuremberg Code, in 2 TRIALS OF WAR CRIMINALS BEFORE THE NUREMBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW, No. 10, at 182 (1949), available at http://www.ushmm.org/ research/doctors/Nuremberg_Code.htm.
31. The Belmont Report emphasizes beneficence, and prohibits "brutal or inhumane treatment" regardless of consent. THE NAT'L COMM'N FOR THE PROTECTION OF HUMAN SUBJECTS OF BIOMEDICAL & BEHAVIORAL RESEARCH, U.S. DEP'T OF HEALTH, EDUC. & WELFARE, THE BELMONT REPORT: ETHICAL PRINCIPLES & GUIDELINES FOR THE PROTECTION OF HUMAN SUBJECTS OF RESEARCH 17 (1978). This is similar to the Nuremberg Code's ban on experimentation where possible death or disabling injury can be expected.
32. See, e.g., MARC A. RODWIN, MEDICINE, MONEY, AND MORALS: PHYSICIANS' CONFLICTS OF INTEREST, at xiii-xvii (1993) (describing the dangers to patients of marketizing medicine and changing the financial incentives of physicians).
33. See, e.g., E. HAAVI MORREIM, HOLDING HEALTH CARE ACCOUNTABLE: LAW AND THE NEW MEDICAL MARKETPLACE 80-91 (2001) (dividing quality problems in medical markets into expertise issues and resource issues, and proposing corresponding duties involving tort, agency, and contract).
34. These pressures have been bipartisan. It has been suggested, for example, that the first President Bush rejected the state of Oregon's Medicaid waiver application because he did not want to be known as the "rationing president." See Thomas Bodenheimer, The Oregon Health Plan - Lessons for the Nation (First of Two Parts), 337 NEW ENG. J. MED. 651, 652 (1997).
35. See, e.g., Lisa Heinzerling, The Rights of Statistical People, 24 HARV. ENVTL. L. REV. 189, 189-92 (2000).
36. Lawrence Jacobs et al., The Oregon Health Plan and the Political Paradox of Rationing: What Advocates and Critics Have Claimed and What Oregon Did, 24 J. HEALTH POL. POL'Y & L. 161, 174 (1999).
37. See David A. Hyman, Do Good Stories Make for Good Policy?, 25 J. HEALTH POL. POL'Y & L. 1149, 1149-50 (2000) (arguing that when atypical or incomplete stories motivate health care "reform," unsound policies may result).
38. 42 U.S.C. § 1395dd (2000 & Supp. IV 2004); see also David A. Hyman, Patient Dumping and EMTALA: Past Imperfect/Future Shock, 8 HEALTH MATRIX 29, 32-34 (1998).
39. Pub. L. No. 104-204, 110 Stat. 2874 (1996);
40. see also David A. Hyman, What Lessons Should We Learn From Drive-Through Deliveries?, 107 PEDIATRICS 406, 407 (2001).
41. See DAVID M. OSHINSKY, POLIO: AN AMERICAN STORY 79-91 (2005).
42. Health Security Act, H.R. 3600, 103d Cong. (1993).
43. Remarks by Pres. Clinton During A California Town Hall Meeting, U.S. NEWSWIRE, Oct. 4, 1993.
44. See THEDA SKOCPOL, BOOMERANG 137-38 (1996) (discussing HIAA's advertising campaign); Raymond L. Goldsteen et al., Harry and Louise and Health Care Reform: Romancing Public Opinion, 26 J. HEALTH POL. POL'Y & L. 1325, 1345-47 (2001) (suggesting that advertising of this sort can demobilize public support for health policy initiatives that are unfavorable to special interests). When I returned to California the following year, I learned that a local Democratic operative supporting health reform had contacted the actress who played "Louise," hoping to persuade her to go public with the fact that she herself lacked health insurance and might well benefit from government-sponsored universal coverage. The actress arrived at the meeting wearing a hidden recording device provided by the Republican opposition. Welcome to politics.
45. Elizabeth McCaughey, No Exit: What the Clinton Plan Will Do for You, NEW REPUBLIC, Feb. 7, 1994, at 21.
46. Id.
47. Lawrence R. Jacobs, Politics of America's Supply State: Health Reform and Technology, HEALTH AFF., Mar.-Apr. 1995, at 143.
48. Id. at 149-52.
49. "Health alliances" (previously called "health insurance purchasing cooperatives") were non-profit bodies that would have structured regional health insurance markets, receiving contributions from employers and paying risk-adjusted premiums to the health plans in which beneficiaries had enrolled. "Global budgets" would have limited, as a matter of law, the aggregate amount that could be paid for the statutory package of health benefits, imposing various correctives that (if not revised by a subsequent Congress) would be triggered should the limits be exceeded. For a policy-minded explanation of these and other features of the Clinton Health Plan, see Paul Starr & Walter A. Zelman, Bridge to Compromise: Competition Under a Budget, HEALTH AFF. (Supp.) 18-21 (1993). For insight into the role of the CBO, as well as its struggle to maintain impartiality, see Viveca Novak, By the Numbers, NAT'L JOURNAL, Feb. 12, 1994, at 348.
50. See Health Care Reform (Part 10): Joint Hearing Before the Subcomm. on Health and the Env't and the Subcomm. on Commerce, Consumer Prot. and Competitiveness of the H. Comm. on Energy and Commerce, 103d Cong. 10 (1994) (testimony of Robert D. Reischauer, Director, CBO) (citing data that the limits placed on premiums and Medicare savings are sufficient to reduce national health expenditures by some $30 billion below baseline levels by 2000 and $150 billion below baseline levels by 2004, but also concluding that mandatory payments from private employers to health alliances constitute "an exercise of sovereign power").
51. See David A. Hyman, How Law Killed Ethics, 34 PERSP. BIOLOGY & MED. 134, 146-47 (1990);
52. William M. Sage, The Lawyerization of Medicine, 26 J. HEALTH POL. POL'Y & L. 1179, 1184-87 (2001).
53. Monetizing medical practice also breeds suspicion of group purchasing because of concern about economic self-interest on the part of employers, health insurers, or other purchasing intermediaries. See infra text accompanying notes 69-80.
54. The Inauguration: Transcript of President Clinton's Second Inaugural Address to the Nation, N.Y. TIMES, Jan. 21, 1997, at A14.
55. See generally William M. Sage, Regulating Through Information: Disclosure Laws and American Health Care, 99 COLUM. L. REV. 1701 (1999); see also infra text accompanying notes 82-88.
56. See Richard A. Merrill, The Architecture of Government Regulation of Medical Products, 82 VA. L. REV. 1753, 1840-44 (1996) (analyzing the adoption of drug user fees).
57. Abigail Alliance for Better Access to Developmental Drugs v. Von Eschenbach, 469 F.3d 129 D.C. Cir. 2006), vacated and rev'd, 495 F.3d 695 (D.C. Cir. 2007) (en banc);
58. see also John A. Robertson, Controversial Medical Treatment and the Right to Health Care, 36 HASTINGS CTR. REP. 15 (2006);
59. Eugene Volokh, Medical Self-Defense, Prohibited Experimental Therapies, and Payment for Organs, 120 HARV. L. REV. 1813 (2007).
60. Sen. Clinton's official website, for example, describes her newly released reform plan as "[b]uilding on her proposals to rein in costs and to insist on value and quality." Hillary for President, American Health Choices Plan, http://www.hillaryclinton.com/feature/healthcareplan/summary.aspx (last visited Oct. 22, 2007).
61. See KAREN DAVIS ET AL., MIRROR, MIRROR ON THE WALL: AN INTERNATIONAL UPDATE ON THE COMPARATIVE PERFORMANCE OF AMERICAN HEALTH CARE (2007); Editorial, World's Best Medical Care?, N.Y. TIMES, Aug. 12, 2007, at WK9 (describing the American health system's shortcomings compared with other nations).
62. Dr. Bud Relman, a highly influential prior editor of The New England Journal of Medicine and a vigorous defender of traditional ethics and practices, cautioned physicians in 1991 about medicine's transition from profession to industry, warning that "our profession faces an ethical and economic crisis of unprecedented proportions, as it struggles to find its bearings in a health care system that has become a vast and highly lucrative marketplace." Arnold S. Relman, Shattuck Lecture - The Health Care Industry: Where Is It Taking Us?, 325 NEW ENG. J. MED. 854, 854 (1991).
63. See, e.g., Troyen A. Brennan et al., Health Industry Practices That Create Conflicts of Interest, 295 JAMA 429, 430 (2006). See generally SHELDON KRIMSKY, SCIENCE IN THE PRIVATE INTEREST: HAS THE LURE OF PROFITS CORRUPTED BIOMEDICAL RESEARCH? (2003) (criticizing university-industry relationships, often involving patented technologies).
64. At the University of Pennsylvania, Jesse Gelsinger died after physicians with a commercial stake in a novel gene therapy ignored warning signs when enrolling research subjects to test the procedure. Sheryl Gay Stolberg, F.D.A. Officials Fault Penn Team in Gene Therapy Death, N.Y. TIMES, Dec. 9, 1999, at A22. In another case, a pharmaceutical company, Apotex, pressured the University of Toronto, to which it had promised a multimillion dollar gift, to demote a hematologist who had published negative findings about its new iron-binding drug. Krista Foss, Grievance Filed in Drug-Research Controversy at U of T: Doctor in Lengthy Battle with Company over Freedom To Publish Her Negative Findings, GLOBE & MAIL (Toronto), Dec. 18, 1998, at All. The maker of Synthroid, Boots Pharmaceutical, attempted to suppress the publication of research that it sponsored at the University of California, San Francisco, which failed to show its product to be advantageous.
65. See Drummond Remue, Thyroid Storm, 277 JAMA 1238, 1238-39 (1997);
66. see also In re Synthroid Mktg. Litig., 264 F.3d 712, 714 (7th Cir. 2001) (discussing the published study).
67. W. Bradley Wendel, The Deep Structure of Conflicts of Interest, 16 GEO. J. LEGAL ETHICS 473, 477 (2003). A general economic definition of an agent is anyone who makes a decision on behalf of another. The law of agency sets its scope more narrowly, defining an agent as a fiduciary subject to the principal's right of control. RESTATEMENT (THIRD) OF AGENCY § 1 (2006).
68. Dennis F. Thompson, Understanding Financial Conflicts of Interest, 329 NEW ENG. J. MED. 573, 573 (1993).
69. Coleman identifies recent litigation against clinical researchers as a pressing reason to define clearly the obligations owed by researchers to subjects because the template for such litigation is the obligation of physician to patient under established laws of medical malpractice and informed consent. Carl H. Coleman, Duties to Subjects in Clinical Research, 58 VAND. L. REV. 387, 388-91 (2005).
70. See, e.g., Franklin G. Miller, Research Ethics and Misguided Moral Intuition, 32 J.L. MED. & ETHICS 111, 114 (2004). Miller notes the curiosity that founding documents in bioethics assume that researchers must act with "therapeutic beneficence" toward human subjects, id. at 111, but that recent conceptions of research ethics minimize direct benefit to the subject as the basis for participation, stressing instead altruistic desire to help future sufferers among the general public, or within susceptible subgroups in whose wellbeing the participant has at most an indirect interest. Id. at 114.
71. See Paul S. Appelbaum, Clarifying the Ethics of Clinical Research: A Path Toward Avoiding the Therapeutic Misconception, 2 AM. J. BIOETHICS 22, 23 (2002) (discussing the substantial prevalence of "therapeutic misconception").
72. See Norman Levinsky, Nonfinancial Conflicts of Interest in Research, 347 NEW ENG. J. MED. 759, 760 (2002).
73. 35 U.S.C. §§ 200-12 (2000). See generally Rebecca S. Eisenbeig, Public Research and Private Development: Patents and Technology Transfer in Government-Sponsored Research, VA. L. REV. 1663, 1691-95 (1996) (tracing the history of the Bayh-Dole Act and its attempts to 'facilitate [universities'] efforts to transfer technology to industry").
74. To illustrate, I recently learned from the chair of biomedical engineering at the University of Texas that most junior faculty joining his department list "starting a company" as one of their five-year career goals. It is hard to imagine that ambition being either offered or accepted as a path to academic success a generation ago.
75. For a more detailed argument, see William M. Sage, Some Principles Require Principals: Why Banning "Conflicts of Interest" Won't Solve Incentive Problems in Biomedical Research, 85 TEX. L. REV. 1413 (2007).
76. Clark C. Havighurst & Barak D. Richman, Distributive Injustice(s) in American Health Care, 69 LAW & CONTEMP. PROBS. 7, 8-9 (2006).
77. See David A. Hyman, Managed Care at the Millennium: Scenes From a Maul, 24 J. HEALTH POL. POL'Y & L. 1061, 1061 (1999).
78. See Jerome P. Kassirer, Editorial, Managing Care - Should We Adopt a New Ethic?, 339 NEW ENG. J. MED. 397, 397 (1998) (arguing that a population-based ethic for the provision of health care - "intentionally providing minimally acceptable care to some for the benefit of others" - is wrong). But see William M. Sage, Physicians as Advocates, 35 HOUS. L. REV. 1529, 1558, 1581 (1999) (arguing that a strict duty of physician advocacy on behalf of individual patients would be counterproductive). Among medical practice settings, only a few well-established HMOs seem to have developed cultures that make physicians feel responsible for their colleagues' patients as well as their own, promoting cost-consciousness without obligating them to "ration at the bedside." For a revealing portrait of the tension between individual and group health management, see David M. Eddy, Broadening the Responsibilities of Practitioners: The Team Approach, 269 JAMA 1849 (1993) (discussing the proper use of expensive radiographic contrast agents).
79. Compare Dukes v. U.S. Healthcare, Inc., 57 F.3d 350, 356 (3d Cir. 1995) (holding that lawsuits alleging problems with the "quality" of employer benefits are not completely preempted by ERISA), with Aetna Health Inc. v. Davila, 542 U.S. 200, 221 (2004) (holding that ERISA completely preempts claims alleging patient injury by insurers under employee benefit plans). By the time Davila was decided, however, aggressive managed care was already dead as a practical matter.
80. See, e.g., Florence Nightingale Nursing Serv., Inc. v. Blue Cross & Blue Shield of Ala., 832 F. Supp. 1456, 1461 (N.D. Ala. 1993) (ridiculing the defendant health plan's medical director for being trained "not only in medicine but in 'cost containment'"), aff'd, 41 F.3d 1476 (11th Cir. 1995).
81. 530 U.S. 211 (2000).
82. Id. at 231-34, 237 (holding that a mixed eligibility-treatment decision made by an HMO through its employed physicians is not a fiduciary act under ERISA); see also William M. Sage, UR Here: The Supreme Court's Guide for Managed Care, HEALTH AFF., Sept-Oct. 2000, at 219 (discussing Pegram).
83. See Michelle M. Mello & Troyen A. Brennan, The Controversy over High-Dose Chemotherapy with Autologous Bone Marrow Transplantation for Breast Cancer, HEALTH AFF., Sept-Oct 2001, at 101. For insight into judicial reasoning in these cases, see Mark A. Hall et al., Judicial Protection of Managed Care Consumers: An Empirical Study of Insurance Coverage Disputes, 26 SETON HALL L. REV. 1055 (1996);
84. William M. Sage, Judicial Opinions Involving Health Insurance Coverage: Trompe L'oeil or Window on the World?, 31 IND. L. REV. 49 (1998).
85. See David J. Graham, COX-2 Inhibitors, Other NSAIDs, and Cardiovascular Risk: The Seduction of Common Sense, 296 JAMA 1653 (2006) (summarizing science and regulation of Vioxx);
86. Henry A. Waxman, The Lessons of Vioxx - Drug Safety and Sales, 352 NEW ENG. J. MED. 2576 (2005) (describing overzealous marketing efforts).
87. See, e.g., Maio v. Aetna, 221 F.3d 472 (3d Cir. 2000);
88. In re Managed Care Litigation, 209 F.R.D. 678 (S.D. Fla. 2002);
89. see also Clark C. Havighurst, Consumers Versus Managed Care: The New Class Actions, HEALTH AFF., July-Aug. 2001, at 8. Beyond the health care context, "fraud on the market" similarly reflects the legal system trying to address systemic harms by extrapolating from individual ones.
90. See Sage, supra note 68, at 1461-62;
91. see also Dura Pharm., Inc. v. Broudo, 544 U.S. 336 (2005); John C. Coffee, Jr., Causation by Presumption? Why the Supreme Court Should Reject Phantom Losses and Reverse Broudo, 60 BUS. LAW. 533, 543 (2005);
92. Merritt B. Fox, Demystifying Causation in Fraud-on-the-Market Actions, 60 BUS. LAW. 507 (2005).
93. See, e.g., Michael E. Chernew, Allison B. Rosen & A. Mark Fendrick, Value-Based Insurance Design, 26 HEALTH AFF. (WEB EXCLUSIVE) w 195 (2007), available at http://content.healthaffairs.org/cgi/content/full/26/2/w195;
94. Meredith B. Rosenthal et al., Paying for Quality: Providers' Incentives for Quality Improvement, HEALTH AFF., Mar.-Apr. 2004, at 127-28.
95. See William M. Sage, Pay-for-Performance: Will It Work in Theory?, 3 IND. HEALTH L. REV. 305, 314-22 (2006):
96. Arrow, supra note 14, at 946-47.
97. See generally id. (discussing professional ethics as a non-market social institution that reduces uncertainty in medical markets); Peter J. Hammer, Arrow's Analysis of Social Institutions: Entering the Marketplace -with Giving Hands, in UNCERTAIN TIMES: KENNETH ARROW AND THE CHANGING ECONOMICS OF HEALTH CARE 216-26 (Peter J. Hammer et al. eds., 2003) (analyzing Arrow's thesis regarding social institutions);
98. James C. Robinson, The End of Asymmetric Information, in UNCERTAIN TIMES: KENNETH ARROW AND THE CHANGING ECONOMICS OF HEALTH CARE 181 (Peter J. Hammer et al. eds., 2003) (criticizing the political use of information asymmetry to justify heavy-handed regulation).
99. See INST. OF MED., CROSSING THE QUALITY CHASM: A NEW HEALTH SYSTEM FOR THE 21ST CENTURY 23-28 (2001); INST. OF MED., TO ERR IS HUMAN: BUILDING A SAFER HEALTH SYSTEM (Linda T. Kohn et al. eds., 2000);
100. JOHN E. WENNBERG, THE DARTMOUTH ATLAS OF HEALTH CARE IN THE UNITED STATES 2 (1996).
101. See James C. Robinson, Consumer-Directed Health Insurance: The Next Generation, 24 HEALTH AFF. (WEB EXCLUSIVE) w583 (2005), available at http://content. healthaffairs.org/cgi/content/full/hlthaff.w5.583/DC1.
102. See Phil Gramm, Why We Need Medical Savings Accounts, 330 NEW ENG. J. MED. 1752, 1752-53 (1994) (claiming that waste in health care is primarily attributable to the moral hazard of costlessness at the point of service); Gerald L. Musgrave et al., Lunch Insurance, 15 REGULATION 257 (1992) (making the same point by postulating a "lunch system" with subsidies similar to the current health care system). Whether or not one agrees with this assessment of moral hazard, see John A. Nyman, Is "Moral Hazard" Inefficient?: The Policy Implications of a New Theory, HEALTH AFF., Sept.-Oct. 2004, at 194 (arguing that health insurance shifts dollars to more highly valued future uses), the consumer-directed care movement deserves respect in political terms for having both an innovation and a theory to support it, something little seen in health care since the Nixon administration's flirtation with health maintenance organizations.
103. For a discussion of the public policy implications of retail clinics, see William M. Sage, The Wal-Martization of Health Care, 28 J. LEGAL MED. 503 (2007).
104. Letter from Thomas Jefferson to William Charles Jarvis (Sept. 28, 1820), in X THE WRITINGS OF THOMAS JEFFERSON, 1816-1826, at 161 (Paul Leicester Ford ed., 1899).
105. See Carol B. Liebman & Chris Stern Hyman, A Mediation Skills Model To Manage Disclosure of Errors and Adverse Events to Patients, HEALTH AFF., July-Aug. 2004, at 22;
106. William M. Sage et al., Bridging the Private-Public Divide: A Pragmatic Information Policy for Medical Malpractice and Patient Safety, 59 VAND. L. REV. 1263, 1283-84, 1308 (2006).
107. See Arrow, supra note 14, at 941 (clarifying immediately for readers that the subject of his economic analysis was medical care and not health).
108. See LAWRENCE O. GOSTIN, PUBLIC HEALTH LAW: POWER, DUTY, RESTRAINT, at xix (2000) (analyzing legal and ethical tradeoffs between public goods and private rights). These threats, and the AIDS pandemic that preceded them, have also reinvigorated and reshaped public health efforts in the international arena. See Jon Cohen, The New World of Global Health, SCIENCE, Jan. 13, 2006, at 162-63 (2006).
109. See Steven A. Schroeder, We Can Do Better - Improving the Health of the American People, 357 NEW ENG. J. MED. 1221 (2007) (reviewing the public health crisis in the United States, with an emphasis on risk factors for chronic disease and premature death).
110. See generally LAWRENCE O. GOSTIN & PETER D. JACOBSON, LAW AND THE HEALTH SYSTEM 41-76 (2006) (considering whether public health law should concern itself with issues such as socioeconomic status and the built environment, and whether state intervention can be justified in the absence of market externalities).
111. It is worth acknowledging that utopian visions of managed care also included bringing public health together with clinical medicine based on the assumption that population-based "health maintenance" by prepaid health plans serving broad segments of their communities required such an approach. A detailed ethical framework for governing these organizations based on political rather than market or professional accountability was even proposed. See Ezekiel J. Emanuel & Linda L. Emanuel, Preserving Community in Health Care, 22 J. HEALTH POL. POL'Y & L. 147, 158-64 (1997).
112. Jess Alderman et al., Application of Law to the Childhood Obesity Epidemic, 35 J.L. MED. & ETHICS 90, 91 (2007) (symposium issue on childhood obesity).
113. Marice Ashe et al., Local Venues for Change: Legal Strategies for Healthy Environments, 35 J.L. MED. & ETHICS 138, 139 (2007).
114. See, e.g., Leslie P. Francis et al., How Infectious Disease Got Left Out - And What This Omission Might Have Meant for Bioethics, 19 BIOETHICS 307, 308 (2005) (speculating on how the historical coincidence of liberal bioethics taking shape at the nadir of concern over infectious disease might have drained bioethics of collective content);
115. Lawrence O. Gostin & Madison Powers, What Does Social Justice Require for the Public's Health? Public Health Ethics and Policy Imperatives, HEALTH AFF., July-Aug. 2006, at 1053, 1059-60 (2006) (urging an interventionist approach to the multiple causes of systematic disadvantage in health).
116. See Richard A. Epstein, Let the Shoemaker Stick to His Last: A Defense of the "Old" Public Health, 46 PERSP. BIOLOGY & MED. (SUPP.) S138, S139, S148 (2003).
117. Lawrence O. Gostin & M. Gregg Bloche, The Politics of Public Health: A Response to Epstein, 46 PERSP. BIOLOGY & MED. (SUPP) S160, S164-65, S172-73 (2003).
118. Collective meaning implies shared sacrifice as well as shared benefit, not merely a right to health care - as the "social paradigm" is often portrayed in contrast to professional or market dominance. See, e.g., Rand E. Rosenblatt, The Four Ages of Health Law, 14 HEALTH MATRIX 155, 166-75 (2004) (describing a version of health law based on an egalitarian social contract).
119. See, e.g., Donald C. Langevoort, The Social Construction of Sarbanes-Oxley, 105 MICH. L. REV. 1817 (2007) (explaining the Sarbanes-Oxley Act as mediating between individual investor and collective social risks associated with large public corporations).
120. Steven Brint distinguishes "social trustee" professionals from "expert knowledge" professionals, and asserts a historical trend in favor of the latter group, who tend to provide sophisticated services to paying clients. STEVEN BRINT, IN AN AGE OF EXPERTS: THE CHANGING ROLE OF PROFESSIONALS IN POLITICS AND PUBLIC LIFE 7-8 (1994);
121. see also WILLIAM F. MAY, BELEAGUERED RULERS: THE PUBLIC OBLIGATION OF THE PROFESSIONAL 6, 67 (2001) (arguing that all professions have social as well as technical duties, including to teach virtue to their clients within their fields of expertise).
122. M. Gregg Bloche, Health Care for All?, 357 NEW ENG. J. MED. 1173, 1175 (2007).
123. See Mark Schlesinger, A Loss of Faith: The Sources of Reduced Political Legitimacy for the American Medical Profession, 80 MILBANK Q. 185, 189-90 (2002).
124. Christine K. Cassel & Troyen E. Brennan, Managing Medical Resources: Return to the Commons?, 297 JAMA 2518 (2007) (articulating physicians' duty to attend to collective costs).
125. Rosemary A. Stevens, Public Roles for the Medical Profession in the United States: Beyond Theories of Decline and Fall, 79 MILBANK Q. 327, 344-47 (2001) (urging the profession to redefine patients as groups, physicians as teams and organizations, and science as a "positive joint effort of numerous organizations and interests").
126. See William M. Sage, Legislating Delivery System Reform: A 30,000-Foot View of the 800-Pound Gorilla, 26 HEALTH AFF. 1553 (2007) (arguing that health care delivery system reform requires a theory for success, collective meaning, and political champions).