The patient life: Can consumers direct health care?

American Journal of Law and Medicine

Volumn 35, Issue 1, 2009, Pages 7-65

  Schneider, Carl E ^a   Hall, Mark A ^b  

^a UNIVERSITY OF MICHIGAN   (United States)

^b WAKE FOREST UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; CONSUMER; COST CONTROL; DECISION MAKING; HEALTH CARE DELIVERY; HEALTH CARE QUALITY; HUMAN; UNITED STATES;

CHOICE BEHAVIOR; CONSUMER PARTICIPATION; COST CONTROL; DELIVERY OF HEALTH CARE; HUMANS; QUALITY OF HEALTH CARE; UNITED STATES;

EID: 68049096961     PISSN: 00988588     EISSN: None     Source Type: Journal    
DOI: 10.1177/009885880903500101     Document Type: Article

References (340)

1. Clark C. Havighurst and Barak D. Richman, Distributive Injustice (s) in American Health Care, 69 L & Contemp Prob 7, 11 (2006).
2. Id at 13.
3. Mark A. Hall, Making Medical Spending Decisions: The Law, Ethics & Economics of Rationing Mechanisms 21 (Oxford, 1997).
4. Economists generally agree that the "principal factor by far [in rising costs] is medical innovations like new drugs, new surgical procedures and new diagnostic techniques." Gina Kolata, A Conversation with Victor Fuchs: An Economist's View of Health Care Reform, New York Times F6 (May 2, 2000).
5. James C. Robinson, The Corporate Practice of Medicine: Competition and Innovation in Health Care 21 (Berkeley, 1999).
6. Id at 23.
7. Committee on Costs of Medicare, Medical Care for the American People (Chicago, 1932).
8. Robinson, The Corporate Practice of Medicine: Competition and Innovation in Health Care at 23 (cited in note 5).
9. Id at 28.
10. Id at 24.
11. James C. Robinson and Jill M. Yegian, Medical Management After Managed Care, Health Affairs W4-269, W4-269-W4-270 (2004 - Web Exclusive), online at http://content.healthafFairs.org/cgi/reprint/hlthafF.w4.269vl.pdf (visited Feb. 9, 2009).
12. Daniel Callahan and Angela A. Wasunna, Medicine and the Market: Equity v. Choice 49-50 (Johns Hopkins, 2006).
13. Mark A. Hall, The Death of Managed Care: A Regulatory Autopsy, 30 J Health Politics, Policy & L 427 (2005).
14. "It is clear that a consumer-driven revolution has begun, and there is reason to believe that it will shape the future direction of the health care system." Jill Quadagno, Who Wins? Who Loses? Who Pays?, 27 Health Affairs 294, 295 (2008).
15. For especially intelligent treatments of consumerism, see Clark Havighurst's oeuvre. For his witty introduction to his own work, see
16. Clark C. Havighurst, I've Seen Enough! My Life and Times in Health Care Law and Policy, 14 Health Matrix 107 (2004).
17. An excellent and recent survey is Timothy Stoltzfus Jost, Health Care at Risk: A Critique of the Consumer-Driven Movement (Duke, 2007). Several book reviews provide an efficient (and sufficient?) introduction to consumerist writing. See
18. Clark C. Havighurst, Healthy Competition: What's Holding Back Health Care and How To Free It, 25 Health Affairs 1740 (2006) ;
19. Alan Maynard, Who Killed Health Care? America's $2 Trillion Medical Problem - and the Consumer-Driven Cure, 26 Health Affairs 1783 (2007) ;
20. Uwe E. Reinhardt, Health Care Reform Now!: A Prescription for Change, 27 Health Affairs 291 (2008).
21. John C. Goodman and Gerald L. Musgrave, Patient Power: The Free-Enterprise Alternative to Clinton's Health Plan vii (Cato Institute, 1994).
22. Robert Pear, Bush Proposes Linking the Medicare Drug Premium to Beneficiaries' Income, NY Times (Feb. 16, 2008) (quoting Michael Levitt), online at http://www.nytimes.com/2008/02/l6/washington/l6health.html.
23. Mark A. Hall, The Legal and Historical Foundations of Patients as Medical Consumers, 96 Geo L J 583 (2008).
24. William M. Sage, Regulating Through Information: Disclosure Laws and American Health Care, 99 Colum L Rev 1701 (1999). "The fundamental idea underlying the theory of managed care was to achieve social equity through the distribution of vouchers - that could be used only for the purchase of health insurance offered by a variety of private, competing health insurance plans."
25. Uwe E. Reinhardt, Can Efficiency in Health Care Be Left to the Market?, 26 J Health Politics, Policy & L 967, 985 (2001).
26. Perhaps the most popular of the labels, " consumer-directed health care, " is "so widely used that many different concepts masquerade under its banner...." Len M. Nichols, et al, Are Market Forces Strong Enough to Deliver Efficient Health Care Systems? Confidence Is Waning, 23 Health Affairs 8, 16 (2004).
27. For evidence that people shop for doctors more than one might suppose, see Carl E. Schneider, The Practice of Autonomy: Patients, Doctors, and Medical Decisions (Oxford, 1998).
28. To avoid grating repetition of "test or treatment, " we normally use "treatment" to include "test."
29. See Mark A. Hall and Carl E. Schneider, Patients as Consumers: Courts, Contracts, and the New Medical Marketplace, 106 Mich L Rev 643 (2008).
30. US Dept Treasury, Treasury, IRS Issue 2009 Indexed Amounts for Health Savings Accounts, online at http://www.treas.gov/press/releases/hp975.htm (visited Mar. 21, 2009). Seventy percent of the people with family coverage in a consumerist plan had "a family deductible of $2, 000 to $4, 999; 29 percent reported a deductible of at least $5, 000."
31. Paul Fronstin and Sara R. Collins, Findings from the 2007 EBRI/Commonwealth Fund Consumerism in Health Survey, 315 EBRI Issue Brief 1, 9 (2008), online at http://www.commonwealthfund.org/publications/publications- show.htm?doc-id=67366l (visited Feb. 9, 2009).
32. Id at 4.
33. Giridhar Mallya, et al, Are Primary Care Physician Ready to Practice in a Consumer-Driven Environment?, 14 Am J Managed Care 661, 665 (2008).
34. Jessica Greene, et al, Comprehension and Choice of a Consumer-Directed Health Plan: An Experimental Study, 14 Am J Managed Care 369, 374 (2008). (Pubitemid 351928442)
35. Marsha Garrison and Carl E. Schneider, The Law of Bioethics: Individual Autonomy and Social Regulation 27-467 (West, 2003).
36. William M. Sage, Regulating Through Information: Disclosure Laws and American Health Care, 99 Columbia L Rev 1701 (1999).
37. For example, the Patient Self-Determination Act seeks to encourage patients to use advance directives to make "pre-need" decisions lest incompetence should prevent them from exercising their authority. 42 USC § 1395cc (a) (2008).
38. The PSDA requires that patients be given information about advance directives. HIPAA regulations seek to permit patients to protect the confidentiality of medical information about them. 45 CFR Parts 160, 162, 164 (2009). The regulations require doctors and hospitals to give patients the information they need to manage the handling of confidential information.
39. For examples, see Carl E. Schneider, After Autonomy, 41 Wake Forest L Rev 411 (2006).
40. A complete evaluation would be broad. At the least, it would ask economic questions like: Isn't much of our health care dollar spent on a small group of people whose care is so expensive that deductibles are irrelevant? Are health care costs driven by forces - like technology and the institutions of health care - that consumers can little affect?
41. For an excellent survey of the issues, see Jost, Health Care at Risk (cited in note 14).
42. As we write, CNN tells us to "take heart, there may be more legislation... on the way. Last month New Jersey became the first state to enact a law that requires [matchmaking websites] to disclose whether they do background checks on members.' Jen Haley, Be α Savoy Consumer When Looking for Love Online, CNN.com, online at http://www.cnn. com/2008/LIVING/personal/ 02/14/roym.online.dating/index.html (visited Feb. 10, 2009).
43. Kenneth J. Arrow, Uncertainty and the Welfare Economics of Medical Care, 53 Am Economic Rev 941 (1963).
44. Amy B. Bernstein and Anne K. Gauthier, Choices in Health Care: What Are They and What Are They Worth?, 56 Med Care Res & Rev 5, 11 (1999).
45. Peter D. Jacobson, Who Killed Managed Care? A Policy Whodunit, 47 SLU L Rev 365, 375 (2003).
46. Lawrence D. Brown, Management by Objection?: Public Policies to Protect Choice in Health Plans, 56 Med Care Res & Rev 145, 157 (1999).
47. See generally Melissa B. Jacoby, The Debtor-Patient Revisited, 51 SLU L Rev 307 (2007) ;
48. Melissa B. Jacoby and Elizabeth Warren, Beyond Hospital Misbehavior: An Alternative Account of Medical-Related Financial Distress, 100 Nw U L Rev 535, 538-539 (2006) ; (Pubitemid 43938725)
49. R. W. Seifert and M. Rukavina, Bankruptcy Is the Tip of a Medical-Debt Iceberg, 25 Health Affairs w89 (2006 - Web Exclusive).
50. Michele Heisler, et al, The Health Effects of Restricting Prescription Medication Use Because of Cost, 42 Med Care 626, 630 (2004).
51. Uwe E. Reinhardt, The Pricing of US. Hospital Services: Chaos Behind a Veil of Secrecy, 25 Health Affairs 57, 65 (2006).
52. Dahlia K. Remler and Sherry A. Glied, How Much More Cost Sharing Will Health Savings Accounts Bring?, 25 Health Affairs 1070, 1073 (2006).
53. On formularies, their promise and problems, see Peter J. Neumann, et al, Do Drug Formulary Policies Reflect Evidence of Value?, 12 Am J Managed Care 30 (2006).
54. Steven Reichert, et al, Physicians' Attitudes About Prescribing and Knowledge of the Costs of Common Medications, 160 Arch Intern Med 2799, 2800 (2000).
55. For the contrasting view three decades ago, see Peter Temin, Taking Your Medicine: Drug Regulation in the United States 103, 105 (Harvard, 1980).
56. Paul Clay Sorum, Ethical Decision Making in Managed Care, 156 Arch Intern Med 2041 (1996).
57. Pegram v. Herdrich, 530 US 211 (2000).
58. A plan without burst appendices is performing unnecessary appendectomies, which have their own risks.
59. Reinhardt, 26 J Health Politics, Policy & L at 967 (cited in note 18).
60. Jacobson, 47 SLU L Rev at 374 (cited in note 35).
61. For a failure described at length, see Hall and Schneider, 106 Mich L Rev at 643 (cited in note 22).
62. Doe v. HCA Health Services of Tennessee, 46 SW3d 191, 194 (Tenn 2001).
63. Hospital charge masters are described in Gerard Anderson, From "Soak the Rich" to "Soak the Poor": Recent Trends in Hospital Pricing, 26 Health Affairs 780, 786 (2007) ;
64. Uwe E. Reinhardt, The Pricing of US. Hospital Services: Chaos Behind a Veil of Secrecy, 25 Health Affairs 57, 58-59 (2006) ;
65. Allen Dobson, et al, Medicare Payment Advisory Commission, A Study of Hospital Charge Setting Practices (2005), online at http://www.medpac.gov/ publications/contractor-reports/Dec05-Charge-setting.pdf (visited Feb. 10, 2009).
66. For examples, see http://www.treas.gov/offices/public-affairs/hsa/.
67. On the impossibility of all this, see Hall and Schneider, 106 Mich L Rev at 643 (cited in note 22).
68. Ha T. Tu and Jessica H. May, Self-Pay Markets In Health Care: Consumer Nirvana Or Caveat Emptor?, Health Affairs w217, w223 (2007 - Web Exclusive), online at http://content.healthaffairs. Org/cgi/content/full/hlthaff.26.2. w217vl/DCl (visited Feb. 11, 2009).
69. Anderson, 26 Health Affairs at 786 (cited in note 50).
70. "[F]ew of these initiatives provide health plan enrollees the data they might need to make informed choices among available providers or treatments." Mark Merlis, National Health Policy Forum, Health Care Price Transparency and Price Competition (2007), online at http://www.nhpf.org/ library/background-papers/BP-PriceTransparency-03-28-07-pdf (visited Feb. 11, 2009).
71. Perhaps consumers shouldn't even want this information published, since publication of prices might inhibit discounts. See Margaret K. Kyle and David B. Ridley, Would Greater Transparency and Uniformity of Health Care Prices Benefit Poor Patients? 26 Health Affairs 1384 (2007) ;
72. Paul B. Ginsburg, Shopping for Price in Medical Care, 26 Health Aff w208 (2007) ;
73. Symposium, 23 Frontiers of Health Service Management 3 (2007).
74. Reinhardt, 26 J Health Politics, Policy & L at 987 (cited in note 18).
75. Fronstin and Collins, 315 EBRI Issue Brief at 29 (cited in note 23).
76. Reinhardt, 26 J Health Politics, Policy & L at 986-87 (cited in note 18).
77. Deborah Haas-Wilson, Arrow and the Information Market Failure in Health Care: The Changing Content and Sources of Health Care Information, 26 J Health Politics, Policy & L1031, 1040 (2001).
78. Id at 1041.
79. Brown, 56 Med Care Res & Rev at 160 (cited in note 36).
80. Ha T. Tu and Johanna R. Lauer, Word of Mouth and Physician Referrals Still Drive Health Care Provider Choice, 9 Center for Studying Health System Change 1, 5 (2008), online at http://www.hschange.org/CONTENT/1028/(visited Feb. 11, 2009).
81. Tu and May, Health Affairs (2007 - Web Exclusive) at w 222 (cited in note 52).
82. Charles L. Bosk, Occupational Rituals in Patient Management, 303 NEJM 71, 72 (1980).
83. Jay Katz, The Silent World of Doctor and Patient 166 (Free Press, 1984).
84. Eric J. Cassell, The Changing Concept of the Ideal Physician, Daedalus 185, 186 (1986).
85. Id at 191. On clinical uncertainty, see Schneider, The Practice of Autonomy at 48-75 (cited in note 20).
86. Brown, 56 Med Care Res & Rev at 149 (cited in note 36).
87. Tu and May, Health Affairs (2007 - Web Exclusive) at w221 (cited in note 52).
88. LASIK "is widely regarded as the self-pay market with the most favorable conditions for consumer shopping: It is an elective, nonurgent, simple procedure, " so consumers should have time and capacity to shop for it, "screening exams are not required to obtain initial price quotes, which keeps the dollar and time costs of shopping reasonable; and easy entry of providers (ophthalmologists) into the market has stimulated competition and kept prices down. "
89. Dominick L. Frosch, et al, Creating Demand for Prescription Drugs: A Content Analysis of Television Direct-to-Consumer Advertising, 5 Annals Family Med 6 (2007).
90. Alan Lyles, Direct Marketing of Pharmaceuticals to Consumers, 23 Annual Rev Public Health 73 (2002). (Pubitemid 34508067)
91. Steven Morgan, et al, The Economics of Direct-to-Consumer Advertising of Prescription Advertising of Prescription-Only Drugs: Prescribed to Improve Consumer Welfare?, 8 J Health Services Res & Policy 237 (2003).
92. Kimberly A. Kaphingst and William DeJong, The Educational Potential ofDirect-Toconsumer Prescription Drug Advertising, 23 Health Affairs 143, 145 (2004). (Pubitemid 38960701)
93. David S. Zingmond, et al, Information Superhighway or Billboards by the Roadside? An Analysis of Hospital Web Sites, 175 Western J Med 385 (2001).
94. Mark A. Hall, The Theory and Practice of Disclosing HMO Physician Incentives, 65 L & Contemp Prob 207, 227 (2002).
95. Similarly, lending disclosure requirements may "create incentives for lenders to draft contract terms that... continue to obscure the actual contract terms." Susan Block-Lieb and Edward J. Janger, The Myth of the Rational Borrower: Rationality, Behavioralism, and the Misguided "Reform" of Bankruptcy Law, 84 Texas L Rev 1481, 1560 (2005-2006). (Pubitemid 44059693)
96. Amy B. Bernstein and Anne K. Gauthier, Choices in Health Care: What Are They and What Are They Worth?, 56 Med Care Res & Rev 5, 13 (1999).
97. James S. Lubalin and Lauren D. Harris-Kojetin What Do Consumers Want and Need to Know in Making Health Care Choices?, 56 Med Care Res & Rev 67, 72 (1999).
98. For example, B. McKinstry, et al, Do Patients and Expert Doctors Agree on the Assessment of Consultation Skills?, 21 Family Practice 75 (2004)
99. found "no meaningful association" between patients' and experts' assessments of doctors' skills. John T. Chang, et al, Patients' Global Ratings of Their Health Care Are Not Associated with the Technical Quality of Their Care, 144 Annals Intern Med 665, 671 (2006)
100. "found that patient reports about interpersonal quality were distinct from technical quality of care as measured by medical records and patient interviews."
101. For a brief description, see J. D. Kleinke, Vaporware.com: The Failed Promise of the Health Care Internet: Why the Internet Will Be the Next Big Thing Not To Fix the U. S. Health Care System, 19 Health Affairs 57, 66-67 (2000).
102. Anderson, 26 Health Affairs at 786 (cited in note 50).
103. Laurence Baker, et al, Use of the Internet and E-Mail For Health Care Information: Results From a National Survey, 289 JAMA 2400, 2402 (2003).
104. Yaniv Hanoch and Thomas Rice, Can Limiting Choice Increase Social Welfare? The Elderly and Health Insurance, 84 Milbank Q 37, 54 (2006).
105. Baker, et al, 289 JAMA at 2405 (cited in note 81).
106. Piero Impicciatore, et al, Reliability of Health Information for the Public on the World Wide Web: Systematic Survey of Advice on Managing Fever in Children at Home, 314 British Med J 1875, 1878 (1997).
107. Similarly downbeat is Angela Fagerlin, et al, Patient Education Materials About the Treatment of Early-Stage Prostate Cancer: A Critical Review, 140 Annals Intern Med 721, 724 (2004).
108. Hanoch and Rice, 84 Milbank Q at 54 (cited in note 82).
109. 'Accessing health information using search engines and simple search terms is not efficient. Coverage of key information... is poor and inconsistent.... High reading levels are required to comprehend Web-based health information. " Gretchen K. Berland, et al, Health Information on the Internet: Accessibility, Quality, and Readability in English and Spanish, 285 JAMA 2612 (2001).
110. Kleinke, 19 Health Affairs at 67 (cited in note 79).
111. G. Caleb Alexander, et al, Barriers to Patient-Physician Communication About Outof-Pocket Costs, 856 J Gen Intern Med 19 (2004).
112. Hall and Schneider, 106 Mich L Rev at 655 (cited in note 22).
113. Sara R. Collins, et al, The Commonwealth Fund, Gaps in Health Insurance: An All-American Problem 20 (2006), online at http://www.commonwealthfund.org/ usr-doc/Collins-gapshltins-920.pdf.
114. Hall and Schneider, 106 Mich L Rev at 655-56 (cite in note 22).
115. Even when doctors spoke with sophisticated patients (San Francisco AIDS patients) about an important topic (CPR), conversations were brief, doctors did most of the talking, and they "dominated the discussions." James A. Tulsky, et al, How Do Medical Residents Discuss Resuscitation with Patients?, 10 J Gen Intern Med 436 (1995).
116. For a historical view of the ethics and practice of fees, see Fridolf Kudlien, Medicine as a "Liberal Art" and the Question of the Physician's Income, 31 J History Med 448 (1976).
117. Alex D. Federman, Don't Ask, Don't Tell: The Status of Doctor-Patient Communication About Health Care Costs, 164 Arch Intern Med 1723, 1723 (2004).
118. See, for example, Berkeley Rice, How to Market Your Practice, Med Econ 53 (Mar. 4, 2005), online at http://medicaleconomics.modernmedicine.eom/memag/ Medical-t-Practice-t-Managenient:-+-Pra ctice+Pointers/Practice-Pointers-How-to- market-yourpractice/ArticleStandard/Article/detail/148876 (visited Feb. 13, 2009).
119. * John A. Rizzo & Richard J. Zeckhauser, Advertising and the Price, Quantity, and Quality of Primary Care Physician Services, 27 J Human Resources 381, 388-89, n 12 (1992).
120. John Fabre, Medicine as a Profession: Hip, Hip, Hippocrates: Extracts from The Hippocratic Doctor, 315 British Med J 1669 (1997).
121. Howard F. Stein, The Money Taboo in American Medicine, 7 Med Anthropology 1, 11 (1983).
122. G. Caleb Alexander et al, Patient-Physician Communication About Out-of-Pocket Costs, 290 JAMA 953, 955 (2003).
123. Thomas P. O'Toole et al, Full Disclosure of Financial Costs and Options to Patients: The Roles of Race, Age, Health Insurance, and Usual Source for Care, 15 J Health Care Poor & Underserved 52, 56 (2004).
124. Fronstin and Collins, 315 EBRI Issue Brief at 33 (cited in note 23).
125. Derjung M. Tarn et al, Physician Communication About the Cost and Acquisition of Newly Prescribed Medications, 12 Am J Managed Care 657, 657 (2006).
126. Michele Heisler et al, Clinician Identification of Chronically III Patients Who Have Problems Paying for Prescription Medications, 116 Am J Med 753, 753 (2004).
127. Herman Miles Somers and Anne Ramsay Somers, Doctors, Patients, and Health Insurance 209, 209 (1961).
128. Peter Temin, Taking Your Medicine: Drug Regulation in the United States 103, 105 (1980).
129. G. M. Allan et al, Physician Awareness of Drug Cost: A Systematic Review, 4 PLoS Med 1486, 1486 (2007).
130. Reichert et al, 160 Arch Intern Med at 2802 (cited in note 42). Nor did a third of them realize that Medicare did not (then) cover medications.
131. See generally John D. Goodson, Unintended Consequences of Resource-Based Relative Value Scale Reimbursement, 298 JAMA 2308 (2007).
132. Giridhar Mallya et al, 14 Am J of Managed Care at 666 (cited in 25).
133. Mark A. Hall and Carl E. Schneider, 106 Mich L Rev at 657 (cited in note 22) (quoting Atul Gawande, Piecework: Medicine's Money Problem, New Yorker, Apr. 4, 2005, at 44).
134. Kleinke, 19 Health Affairs at 61 (cited in note 79).
135. For an introduction to this unexpectedly challenging problem see Gro Jamtvedt et al, Audit and Feedback: Effects on Professional Practice and Health Care Outcomes, 1 Cochrane Database Syst Rev 259 (2006) ;
136. Peter J. Greco and John M. Eisenberg, Changing Physicians' Practices, 17 NEJM 1271, 1271 (1993) ;
137. Jacqueline Kosecoff et al, Effects of the National Institutes of Health Consensus Development Program on Physician Practice, 258 JAMA 2708, 2712 (1987) ;
138. Lee A. Green and Colleen M. Seifert, Translation of Research Into Practice: Why We Can't "Just Do It", J Am Bd Family Prac 541, 541 (2005) ;
139. Lee Green and David R. Mehr, What Alters Physicians'Decisions to Admit to the Coronary Care Unit?, 45 J Family Prac 219, 223 (1997).
140. For a helpful discussion of this issue, see E. H. Morreim, High-Deductible Health Plans: New Twists on Old Challenges from Tort and Contract, 59 Vanderbilt L Rev 1207, 1224-32 (2006).
141. , 113 For more on the difficulties patients face resisting medical bills, see Hall and Schneider, 106 Mich L Rev at 643 (cited in note 22).
142. Magan Medical Clinic v. California State Board of Medical Examiners, 57 Cal Rptr 256, 263 (Ct App 1967).
143. Hall and Schneider, 106 Mich L Rev at 652 (cited in note 22).
144. For this history, see Mark A. Hall and Carl E. Schneider, Learning From the Legal History of Billing for Medical Fees, 23 J Gen Intern Med 1257 (2008).
145. "[M]any studies have suggested... that physicians' decisions are influenced by a wide variety of factors that are unrelated to a patient's specific medical problem. These factors include practice setting, degree of specialization, and physician age." Lachlan Forrow et al, Science, Ethics, and the Making of Clinical Decisions: Implications for Risk Factor Intervention, 259 JAMA 3161, 3165 (1988).
146. Furthermore, "[w]ide variations in the incidence of medical and surgical services are the norm, not the exception, " Bradford H. Gray, The Profit Motive and Patient Care: The Changing Accountability of Doctors and Hospitals 252 (Harvard U Press, 1991) (emphasis in original), although much of this variation is concentrated in areas where there is professional disagreement about the treatment. Further, "as much as 25 percent or more of expenditures for medical care is for unnecessary or inappropriate services."
147. Id at.
148. For vivid demonstrations of how much medical practices vary geographically, see John E. Wennberg et al, Are Hospital Services Rationed in New Haven or Over-Utilized in Boston?, 1987 Lancet 1185;
149. Mark R. Chassin et al, Variations in the Use of Medical and Surgical Services by the Medicare Population, 314 NEJM 285 (1986).
150. For the background, see Hall and Schneider, 106 Mich L Rev at 643 (cited in note 22).
151. "[P]hysicians provided some of the most vociferous opposition to managed care-" Jacobson, 47 SLU L Rev at 371 (cited in note 35).
152. Id at 366.
153. David A. Hyman, Accountable Managed Care: Should We Be Careful What We Wish For?, 32 U Mich J L Reform 785, 801-02 (1999).
154. Nor can we count on organized medicine for constructive alternatives. "[P]roviders have spent too much of their time complaining about managed care and too little time considering whether alternatives to existing payment arrangements might make everyone better off." David A. Hyman, Medicine in the New Millennium: A Seff-Help Guide for the Perplexed, 26 Am J L & Med 143, 147 (2000).
155. M. Gregg Bloche, The Market for Medical Ethics, 26 J Health Politics, Policy & L 1099, 1108-09 (October 2001).
156. The depth of their feeling is suggested by their occasional willingness to deceive insurance companies to obtain coverage. This superficially appealing but also destructive practice is discussed in Rachael M. Werner et al, Lying to Insurance Companies: The Desire to Deceive among Physicians and the Public, 4 Am J Bioethics 53 (2004) ;
157. Victor G. Freeman et al, Lying for Patients: Physician Deception of Third-Party Payers, 159 Arch Intern Med 2263 (1999) ;
158. Matthew K. Wynia et al, Physicians Manipulation of Reimbursement Rules for Patients: Between a Rock and a Hard Place, 283 JAMA 1858 (2000).
159. However, we have tolerated a sharp dissonance between medical ethics' professed adherence to a rule of absolute patient loyalty and the reality of myriad violations of the rule. For example, physicians routinely make pragmatic decisions in public institutions operating under fixed budgets that may compromise individual patients' optimal medical benefit In clinical practice, physicians regularly compromise individual patient welfare to a small but discernible extent because of competing demands for their time and limits on available specialized facilities and technology. They also comfortably adopt prudent clinical heuristics that avoid extravagant expenditures for very small increments of medical benefit. Mark A. Hall and Robert A. Berenson, Ethical Practice in Managed Care: A Dose of Realism, 128 Ann Intern Med 395, 396 (1998).
160. Robert Zussman, Intensive Care: Medical Ethics and the Medical Profession 192 (U Chicago Press, 1992).
161. Schneider, The Practice of Autonomy 4-9 (cited in note 20).
162. Gail Weiss, A Patient's Coverage Takes a Back Seat to Clinical Factors, Say Most Respondents to our Ethics Policy, Med Economics (Dec. 1, 2006) online at 38http://medicaleconomics.modernmedicine.com/memag/Physician+Surveys:+2006/ Whatwould-you-do-Testing-and-insurance/ArticleStandard/Article/detail/387515 (visited February 25, 2009).
163. See also Samia A. Hurst et al, Physicians' Responses To Resource Constraints, 165 Arch Intern Med 639, 641-42 (2005).
164. Hoangmai H. Pham et al, Physician Consideration Of Patients' Out-Of-Pocket Costs In Making Common Clinical Decisions, 167 Arch Intern Med 663, 663 (2007).
165. In one small survey, doctors considered patients' insurance status in 47% of patients' visits. David S. Meyers et al, Primary Care Physicians'Perceptions of the Effect of Insurance Status on Clinical Decision Making, 4 Ann Fam Med 399, 401 (2006).
166. In another study, 31% of the doctors questioned sometimes or often did not offer "a useful service to patients because of health plan coverage rules." Matthew K. Wynia et al, Do Physicians Not Offer Useful Services Because Of Coverage Restrictions?, 22 Health Affairs 190, 190 (2003).
167. Reichert et al, 160 Arch Intern Med at 2800 (cited in note 42).
168. Elizabeth A. Mort et al, Physician Response To Patient Insurance Status in Ambulatory Care Clinical Decision-Making: Implications For Quality Of Care, 34 Med Care 783, 783 (1996), for example, finds that patients' insurance status influences doctors' clinical decisions more for discretionary than for necessary services.
169. Sherry Glied and Joshua Graff Zivin, How Do Doctors Behave When Some (But Not All) of Their Patients are in Managed Care?, 21 J Health Economics 337, 353 (2002).
170. See also Rajesh Balkrishnan et al, Capitation Payment, Length of Visit, and Preventive Services, 8 Am J Managed Care 332, 332 (2002) (finding that "[p]hysicians spent 5.6% less time... with patients in capitated plans that with those in noncapitated plans.").
171. Similarly, the designers of Medicare's "diagnostic-related groups" imagined that they would cause hospitals to treat more and less profitable services differently. Instead, hospitals essentially economized across the board, even for non-Medicare patients. David M. Frankford, The Medicare DRGs: Efficiency and Organizational Rationality, 10 Yale J Reg 273, 293-96 (1993).
172. Mallya et al, 14 Am J Managed Care at 665 (cited in note 25).
173. Id at 666.
174. Id at 665.
175. David Mechanic and Donna D. McAlpine, "Fifteen Minutes of Fame": Reflections on the Uses of Health Research, the Media, Pundits, and the Spin, 20 Health Affairs 211, 213 (2001).
176. Goodson, 298 JAMA at 2308 (cited in note 107).
177. Kimberly S. H. Yarnall et al, Primary Care: Is There Enough Time for Prevention?, 93 Am J Public Health 635, 637 (2003).
178. Truls Ostbye et al, Is There Time for Management of Patients With Chronic Diseases in Primary Caret, 3 Ann Fam Med. 209, 209 (2005).
179. "Why should it be simple, when it can so easily be complicated?"
180. Ad Hoc Committee on Health Literacy for the Council on Scientific Affairs, American Medical Association, Health Literacy: Report of the Council on Scientific Affairs, 281 JAMA 552, 552 (1999).
181. Id.
182. On the word and the problem, see John Allen Paulos, Innumeracy: Mathematical Illiteracy and Its Consequences (Hill and Wang, 2001).
183. Judith H. Hibbard et al, Consumer Competencies and the Use of Comparative Quality Information: It Isn't Just About Literacy, 64 Med Care Res & Rev 379, 388 (2007).
184. Id at 380.
185. Id at 388.
186. Lisa M. Schwartz et al, The Role of Numeracy in Understanding the Benefit of Screening Mammography, 127 Ann Intern Med 966, 966 (1997).
187. Id.
188. Block-Lieb and Janger, 84 Texas L Rev at 1538 (cited in note 75).
189. Jessica Greene et al, 14 Am J Managed Care at 374 (cited in note 26).
190. Lubalin and Harris-Kojetin, 56 Med Care Res & Rev at 72 (cited in note 77).
191. Worse, people's view of the information they need for choosing a health care plan or treatment changes rapidly as they acquire information.
192. Ginsburg, 26 Health Affairs at w213 (cited in noted 55). This disclosure was also abandoned because it created "pressure for price increases from hospitals identified as low cost."
193. Id.
194. Dewey K. Ziegler et al, How Much Information About Adverse Effects of Medication Do Patients Want from Physicians?, 161 Arch Intern Med 706, 708 (2001) (emphasis added).
195. Reinhardt, 25 Health Affairs at 59 (cited in note 39).
196. Judith H. Hibbard et al, Informing Consumer Decisions in Health Care: Implications from Decision-Making Research, 75 Milbank Q 395, 398 (1997).
197. Ziegler et al, 161 Arch Intern Med at 708 (cited in note 156) (emphasis added).
198. On the travails of IRBs with informed consent, see Simon Whitney and Carl E. Schneider, The Stop of Truth: The Case Against the IKB System (forthcoming).
199. Apparently this is an old problem. "According to the statutes of the university, every student before he is matriculated must subscribe his assent to the Thirty-nine Articles of the Church of England, which are signed by more than read them, and read by more than believe them." Edward Gibbon, The Autobiography of Edward Gibbon 82 (Meridian Books, 1961).
200. Hibbard et al, 75 Milbank Q at 397-98 (cited in note 158) (emphasis added).
201. Hanoch and Rice, 84 Milbank Q at 41 (cited in 82).
202. The complexity to which health-insurance can descend is exemplified by Medicaid, a "horribly complicated law" that is "almost unintelligible to the uninitiated." So unintelligible that "millions of eligible people are not enrolled." Melissa B. Jacoby, The Debtor-Patient: In Search of Non-Debt-Based Alternatives, 69 Brooklyn L Rev 453, 467-68 (2004).
203. Brown, 56 Med Care Res & Rev at 161 (cited in note 68) (footnotes omitted). '"We can tell people whether we have a withhold, bonus payments or capitation, ' remarked Paul Langevin, president of the New Jersey HMO Association, 'but there are literally over 100, 000 ways to pay, and these systems are very proprietary. And, quite frankly, the plans change them all the time.'"
204. Id.
205. Mark A. Hall, The Theory and Practice of Disclosing HMO Physician
206. Id.
207. William M. Sage, Accountability Through Information: What the Health Care Industry Can Learn from Securities Regulation 22 (Milbank Memorial Fund, 2000).
208. Peter J. Cunningham et al, Do Consumers Know How Their Health Plan Works?, 20 Health Affairs 159, 165 (2001).
209. Id at 163.
210. Another example: "approximately one-third of patients correctly identified their physicians' payment method, one-third were incorrect, and one-third did not know." Tracy E. Miller and Carol R. Horowitz, Disclosing Doctors'Incentives: Will Consumers Understand and Value the Information?, 19 Health Affairs 149, 150 (2000)
211. (describing Audrey C. Kao et al, The Relationship Between Method of Physician Payment and Patient Trust, 280 JAMA 1708 (1998)).
212. Another study agreed that most patients know "little about how their health plan" compensates doctors. Anne G. Pereira and Steven D. Pearson, Patient Attitudes Toward Physician Financial Incentives, 161 Arch Intern Med 1313, 1316 (2001).
213. Sage, Accountability Through Information 22 (cited in note 167).
214. S. Walfish and K. M. Watkins, Readability Level of Health Insurance Portability and Accountability Act Notices of Privacy Practices Utilized by Academic Medical Centers, 28 Eval Health Prof 479, 479 (2005).
215. M. K. Paasche-Orlow et al, Notices of Privacy Practices: A Survey of the Health Insurance Portability and Accountability Act of 1996 Documents Presented to Patients at US Hospitals, 43 Med Care 558, 558 (2005).
216. M. K. Paasche-Orlow et al, Readability Standards for Informed-Consent Forms as Compared with Actual Readability, 20 NEJM 348, 348 (2003).
217. Lauren A. McCormack et al, Measuring Beneficiary Knowledge in Two Randomized Experiments, 23 Health Care Financing Rev 47, 60 (2001).
218. On some of the barriers to success, see Michele Heisler, Helping Your Patients With Chronic Disease: Effective Physician Approaches to Support Self-Management, 8 Seminars Med Prac 43, 49 (2005) ;
219. Kimberley Koons Woloshin et al, Patients' Interpretation of Qualitative Probability Statements, 3 Arch Fam Med 961, 965 (1994).
220. Marshall B. Kapp, Patient Autonomy in the Age of Consumer-Driven Health Care: Informed Consent and Informed Choice, 28 J Legal Med 91, 102 (2007).
221. Judith H. Hibbard et al, Can Medicare Beneficiaries Make Informed Choices?, 17 Health Affairs 181, 190-91 (1998).
222. Id at 185.
223. Id at 186.
224. Cunningham et al, 20 Health Affairs at 165 (cited in note 168).
225. Lubalin and Harris-Kojetin, 56 Med Care Res & Rev at 73 (cited in note 77).
226. Deborah W. Garnick et al, How Well Do Americans Understand Their Health Coverage?, 12 Health Affairs 204, 206 (1993).
227. Id at 207.
228. Id at 209.
229. Colleen E. Medill, Challenging the Four "Truths" of Personal Social Security Accounts: Evidence From the World of 40I (K) Plans, 81 NC L Rev 901, 947-48 (2003).
230. On the scant knowledge about Social Security benefits, see Ruth Helman et al, Encouraging Workers to Save: The 2005 Retirement Confidence Survey, 280 EBRI Issue Brief 1, 27 (2005).
231. One literature suggests that people are happier and choose better when options are not too numerous. See e.g., Sheena S. Iyengar and Mark R. Lepper, When Choice is Demotivating: Can One Desire Too Much of a Good Thing?, 79 J Personality & Social Psych 995 (2000).
232. These things are complicated enough that high schools now teach courses covering them. Alas, with dismal success. See Block-Lieb and Janger, 84 Texas L Rev at 1561 (cited in note 75).
233. Bany Schwartz, The Paradox of Choice: Why More is Less (HarperCollins, 2004), develops many of these points.
234. Howard Margolis, Dealing With Risk: Why the Public and the Experts Disagree on Environmental Issues 33 (U Chicago Press, 1996).
235. This reluctance to make medical decisions is discussed and defended in Schneider, The Practice of Autonomy (cited in note 20). Chapter 2 scrutinizes the empirical data with tiresome thoroughness.
236. Jack Ende et al, Measuring Patient's Desire for Autonomy: Decision Making and Information-Seeking Preferences Among Medical Patients, 4 J Gen Intern Med 23, 26-27 (1989).
237. Benson B. Roe, The UCR Boondoggle: A Death Knell for Private Practice?, 305 NEJM 41, 43 (1981).
238. And twenty years ago Judith H. Hibbard and Edward C. Weeks, Consumerism in Health Care: Prevalence and Predictors, 25 Med Care 1019 (1987), questioned whether patients would be willing to be consumers.
239. Fronstin and Collins, 315 EBRI Issue Brief at 15 (cited in note 23).
240. Ende et al, 4 J Gen Intern Med at 26 (cited in note 191). This remarkable contrast between an information score of 80 and a participation score of 33 is typical.
241. Fronstin and Collins, 315 EBRI Issue Brief at 29 (cited in note 23).
242. Lisa M. Schwartz et al, How Do Elderly Patients Decide Where to Go for Major Surgery?, 331 BMJ 821, 821 (2005).
243. Katherine M. Harris, How Do Patients Choose Physicians? Evidence from a National Survey of Enrollees in Employment-Related Health Plans, 38 Health Services Res 711, 712 (2003).
244. Id at 729.
245. Ha T. Tu and Johanna R. Lauer, Word of Mouth and Physician Referrals Still Drive Health Care Provider Choice, 9 Center Studying Health System Change 1, 5 (2008).
246. Judith Hibbard and L. Gregory Pawlson, Why Not Give Consumers a Framework for Understanding Quality?, 30 Joint Commission Journal Quality & Safety 347, 349 (2004).
247. James J. Choi et al, Defined Contribution Pensions: Plan Rules, Participant Choices, and the Path of Least Resistance, prepared for Tax Policy and the Economy 32 (2001).
248. Ruth Helman et al, 280 EBRI Issue Brief at 6 (cited in note 185).
249. Id at 25.
250. Shlomo Benartzi and Richard H. Thaler, Naiw Diversification Strategies in Defined Contribution Saving Plans, 91 Am Econ Rev 79, 79 (2001).
251. Id at 95. "Perhaps the most disturbing aspect of 401 (k) participants' asset allocation choices is the large fraction of balances invested in employer stock.... For firms that offer company stock in their plans... about 33 percent of plan assets are held in this asset class." Choi et al, Defined Contribution Pensions at 27 (cited in note 201). Investing heavily in your employer's stock flouts the diversification principle, partly because you already rely on your employer for your economic welfare. (The consequences are sadly shown by the fate of the Enron employees whose pensions were invested in Enron stock).
252. Stephen J. Choi and A. C. Pritchard, Behavioral Economics and the SEC, 56 Stanford L Rev 1, 12 (2003).
253. Brown, 56 Med Care Res & Rev at 151 (cited in note 68).
254. Id.
255. Id at 145.
256. vtId at 146.
257. Philip Rieff, The Triumph of The Therapeutic: Uses of Faith After Freud 26 (Harper & Row, 1966).
258. Arthur L. Caplan, Informed Consent and Provider/Patient Relationships in Rehabilitation Medicine, in If I Were a Rich Man Could I Buy a Pancreas? and Other Essays on the Ethics of Health Care 245 (Indiana U Press, 1992).
259. Irving L. Janis, The Patient as Decision Maker, in W. Doyle Gentry, ed, Handbook of Behavioral Medicine 326, 333 (Guilford, 1984).
260. Id at 1531.
261. The vast literature on the sadly abundant defects in human reasoning is still well described in two classics: Richard Nisbett & Lee Ross, Human Inference: Strategies and Shortcomings of Social Judgment (Prentice-Hall, 1980) ;
262. Daniel Kahneman et al, Judgment Under Uncertainty: Heuristics and Biases (Cambridge U Press, 1982). A more recent summary of evidence that was written for lawyers is Paul Slovic, Rational Actors and Rational Fools: The Influence of Affect on Judgment and Decision-Making, 6 Roger Williams U L Rev 163 (2000). Daniel Gilbert, Stumbling on Happiness (Alfred A. Knopf, 2006), surveys the issues with welcome wit. Barak Richman, Behavioral Economics and Health Policy: Understanding Medicaid's Failure, 90 Cornell L Rev 705 (2005), applies the literature to health care policy. Block-Lieb and J anger, 84 Texas L Rev 1481 (cited in note 75), applies this literature to a problem with important parallels to the consumerism question.
263. Howard Margolis, Dealing With Risk: Why the Public and the Experts Disagree on Environmental Issues 33 (cited in note 189), applies the literature to a broader set of issues.
264. Lee Clarke, Context Dependency and Risk Decision Making
265. in James F. Short, Jr., and Lee Clarke, Organizations, Uncertainties and Risk 28 (Westview, 1992).
266. Paul Slovic, The Construction of Preference, 50 Am Psychologist 364, 365 (1995).
267. Hibbard et al, 75 Milbank Q at 402 (cited in note 158).
268. Frank A. Sloan, Arrow's Concept of the Health Care Consumer: A Forty-Year Retrospective, 26 J Health Politics, Policy & L 899, 899 (October 2001).
269. Terri R. Fried et al, Inconsistency Over Time in the Preferences of Older Persons with Advanced Illness for Life-Sustaining Treatment, 55 J Am Geriatrics Society 1007, 1010 (2007).
270. Angela Fagerlin and Carl E. Schneider, Enough: The Failure of the Living Will, 34 Hastings Center Rep 30, 33 (March/April 2004), reviews the literature on the instability of patient's preferences.
271. Fagerlin and Schneider, 34 Hastings Center Rep at 33 (cited in note 220) (quoting J. J. Christensen-Szalanski, Discount Functions and the Measurement of Patients' Values: Women's Decisions during Childbirth, 4 Med Decision Making 47 (1984)).
272. Ellen Peters et al, Less Is More In Presenting Quality Information To Consumers, 64 Med Care Res & Rev 169, 170 (2007).
273. Francis Bacon, Of Truth, in The Essays 61 (Penguin, 1985).
274. Garrison and Schneider, The Law of Bioethics at 306-307 (cited in note 27), reviews this research.
275. For fascinating applications of these ideas to medical situations, see Peter Ubel, You're Stronger Than You Think (McGraw-Hill, 2006).
276. Linda S. Gottfredson & Ian J. Deary, Intelligence Predicts Health and Longevity, But Why?, 13 Current Directions Psych Sci 1, 2 (2004).
277. Linda S. Gottfredson, Intelligence: Is It the Epidemiologists' Elusive "Fundamental Cause" of Social Class Inequalities in Health, 86 J Personality & Social Psych 174, 175 (2004).
278. Roberta G. Simmons, et al, Gift of Life: The Social and Psychological Impact of Organ Transplantation 241 (Transaction Books, 1987) (emphasis in original).
279. Lubalin and Harris-Kojetin, 56 Med Care Res & Rev at 88 (cited in 77).
280. Hanoch and Rice, 84 Milbank Q at 41 (cited in note 163).
281. Penny F. Pierce, Deciding on Breast Cancer Treatment: A Description of Decision Behavior, 42 Nursing Res 20, 23 (1993).
282. Schneider, The Practice of Autonomy 94-95 (cited in note 20). For an extended development of these points
283. see id at 92-99.
284. Judith H. Hibbard et al, Choosing a Health Plan: Do Large Employers Use the Data?, 16 Health Affairs 172, 177 (1997).
285. Id at 177.
286. Id.
287. Id at 175.
288. Id at 179.
289. Block-Lieb and Janger, 84 Texas L Rev at 1539 (cited in note 75).
290. Fronstin and Collins, 315 EBRI Issue Brief at 33, 40 (cited in note 23).
291. 240 Joseph P. Newhouse, Free For All?: Lessons from the Rand Health Insurance Experiment 339 (Harvard U Press, 1993).
292. Id.
293. Judith H. Hibbard et al, Does Enrollment in a CDHP Stimulate Cost-Effective Utilization?, 65 Medical Care Research and Review 437, 445 (2008).
294. Irving L. Janis and Leon Mann, Decision Making: A Psychological Analysis of Conflict, Choice, and Commitment 230 (Free Press, 1977).
295. T. P. Hackett and N. H. Cassem, Psychological Management of the Myocardial Infarction Patient, 1 J Human Stress 25, 27 (1975).
296. This is long established. See, e.g., B. Kutner et al, Delay in the Diagnosis and Treatment of Cancer: A Critical Analysis of the Literature, 7 J Chronic Diseases 95 (1958).
297. Janis and Mann, Decision Making at 230 (cited in note 243).
298. Richard P. Brickner, My Second Twenty Years: An Unexpected Life 197 (Basic Books, 1976).
299. Peter J. Neumann et al, 12 Am J Managed Care at 30 (cited in note 41).
300. John Hsu et al, Unintended Consequences of Caps on Medicare Drug Benefits, 354 NEJM 2349, 2356 (2006).
301. Id at 2356-2357.
302. Thomas Rice & K. Y. Matsuoka, The Impact of Cost-Sharing on Appropriate Utilization and Health Status: A Review of the Literature on Seniors, 61 Med Care Res & Rev 415, 415 (2004).
303. As one reviewer says of one zealot and her book, "She and the majority of her 92 contributors... are convinced that a new age is dawning. As a consequence, this book projects an almost messianic fervor; it brims with the confidence and enthusiasm of converts to a great cause." Arnold S. Relman, Review of Regina E. Herzlinger, ed, Consumer-Driven Health Care: Implications for Proxnders, Payers, and Policy-Makers (2004), 350 NEJM 2217, 2217 (2004).
304. Callahan and Wasunna, Medicine and the Market at 77 (cited in note 12).
305. Nichols et al, 23 Health Affairs at 8 (cited in note 19).
306. For an acidulous argument that Congress had it wrong
307. see David A. Hyman, Drive-Through Deliveries: Is "Consumer Protection" Just What the Doctor Ordered?, 78 NC L Rev 5 (1999).
308. "After condemnation of such clauses by every member of Congress who spoke on the subject, the General Accounting Office determined that there were no true gag clauses in any of the 1, 150 contracts they examined.... Opponents of managed care also have yet to produce a single true gag clause...." David A. Hyman, Consumer Protection in a Managed Care World: Should Consumers Call 911?, 43 Vill L Rev 409, 409 nl42 (1998). Nor have providers presented any "proof that any of these provisions are being enforced in a way that systematically restricts communications between providers and patients."
309. David A. Hyman, Managed Care at the Millennium: Scenes from a Maul, 24 J Health Politics, Policy & L 1061, 1064 (1999).
310. Jacobson, 47 SLU L J at 381 (cited in note 35).
311. Callahan and Wasunna, Medicine and the Market at 50 (cited in note 12).
312. Brown, 56 Med Care Res & Rev at 151-52 (cited in note 68).
313. For a sobering example, see Theda Skocpol's analysis of the collapse of the Clinton reform - Boomerang: Health Care Reform and the Turn Against Government (Norton, 1997).
314. For the history, see Paul Starr, The Social Transformation of American Medicine: The Rise of a Sovereign Profession and the Making of a Vast Industry (Harper Collins, 1982).
315. As the dying Cardinal Wolsey famously lamented, "[b]ut if I had served God as diligently as I have done the King, he would not have given me over in my grey hairs. Howbeit this is the just reward that I must receive for my worldly diligence and pains that I have had to do him service, only to satisfy his vain pleasures, not regarding my godly duties."
316. For a discussion of what patients want and what they get in today's bureaucratized medicine, see Schneider, The Practice of Autonomy at 181-231 (cited in note 20).
317. 26t Barry Eisenberg, Customer Service in Healthcare: A New Era, 42 Hospital & Health Services Admin 17, 20 (1997).
318. Raj Arora et al, Influence of Key Variables on the Patients' Choice of a Physician, 13 Quality Management Health Care 166, 166 (2004).
319. This argument is made in detail in Mark A. Hall and Clark C. Havighurst, Reviving Managed Care With Health Savings Accounts, 24 Health Affairs 1490 (2005).
320. Asked to describe the few "most important health care problems, " people first mentioned the "cost of health care services, the lack of or inadequate health insurance coverage, and the cost of prescription drugs. In combination, costs were the top issue for approximately half of respondents."
321. Robert J. Blendon et al, Americans' Health Priorities: Curing Cancer and Controlling Costs, 20 Health Affairs 222, 227-228 (2001).
322. * Support "plummeted if Americans heard that reform would limit their choice of doctors or hospitals, would require rationing, would reduce the quality of care most persons now receive, or would require more than a modest tax increase." Robert J. Blendon et al, What Happened to Americans'Support for the Clinton Health Plant, 8 Health Affairs 7, 12 (1995).
323. For some specifics, see Jessica H. May and Peter J. Cunningham, Tough Trade-Offs: Medical Bills, Family Finances and Access to Care, 85 Issue Brief Center Studying Health System Change 1, 1 (2004).
324. David Mechanic, Disadvantage Inequality and Social Policy: Major Initiatives Intended to Improve Population Health May Also Increase Health Disparities, 21 Health Affairs 48, 49 (2002).
325. The 2006 median household income was $48, 201. U. S. Census Bureau, Current Population Survey, online at http://pubdb3.census.gov/macro/ 032007/hhinc/new04-001.htm (visited Mar. 16, 2009).
326. For a forceful statement of ways the health care system already favors the well-to-do, see Havighurst and Richman, 69 L & Contemp Prob at 7 (cited in note 1).
327. Carl E. Schneider, 41 Wake Forest L Rev at 443 (cited in note 30).
328. Jessica Greene et al, 14 The American Journal of Managed Care at 370 (cited in note 26).
329. Ad Hoc Committee on Health Literacy for the Council on Scientific Affairs, American Medical Association, Health Literacy: Report of the Council on Scientific Affairs, 281 JAMA 552, 553 (1999).
330. Judith H. Hibbard et al, Is The Informed-Choice Policy Approach Appropriate For Medicare Beneficiaries?, 20 Health Affairs 199, 200 (2001).
331. Id at 200-01.
332. Id at 201.
333. Hibbard et al, 17 Health Affairs at 185 (cited in note 177).
334. Jessica H. May et al, Most Uninsured People Unaware of Health Care Safety Net Providers, 90 Center for Studying Health System Change Issue Brief 1, 1 (2004).
335. Sage, Accountability Through Information at 23 (cited in note 167).
336. Judith H. Hibbard et al, 65 Medical Care Research & Review at 447 (cited in note 242).
337. Sidney D. Watson, The View from the Bottom: Consumer-Directed Medicaid and Cost-Shifting to Patients, 51 Saint Louis University Law Journal 403, 430 (2007).
338. David Mechanic, 21 Health Affairs at 51 (cited in note 270).
339. "All health care systems are a mixture of public and private elements: the rise of the market in healthcare involves an incremental shift and the selected application of various market 'tools' or instruments to different parts of the health system, rather than a wholesale move from one kind of system to another." Callahan and Wasunna, Medicine and the Market at 42 (cited in note 12).
340. Id at 261.