Patients as regulators? Patients' evolving influence over health care delivery

Journal of Legal Medicine

Volumn 31, Issue 1, 2010, Pages 9-34

  Madison, Kristin ^a  

^a UNIVERSITY OF PENNSYLVANIA LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; CONSUMER; HEALTH CARE DELIVERY; HUMAN; PATIENT; ROLE PLAYING; UNITED STATES;

CONSUMER PARTICIPATION; DELIVERY OF HEALTH CARE; HUMANS; PATIENTS; ROLE; UNITED STATES;

EID: 77951642453     PISSN: 01947648     EISSN: 1521057X     Source Type: Journal    
DOI: 10.1080/01947641003598195     Document Type: Article

References (115)

1. Michelle M. Mello et al., Fostering Rational Regulation of Patient Safety, 30 J. Health Pol. Pol'y & L. 375, 376 (2005) (defining the term "regulation" in the health care context); see also id. at 381-96 (discussing regulatory pluralism and providing many detailed examples of health care regulatory mechanisms);
2. Kristin Madison, Health Care Quality Regulation in an Information Age, 40 U.C. Davis L. Rev. 1577, 1585-95 (2007) (providing typology of health care quality regulation that includes regulatory mechanisms implemented by medical boards, hospital committees, managed care organizations, courts, report card-producing entities, accreditation and certification organizations, and payers).
3. See Ruth R. Faden & Tom L. Beauchamp, A History and Theory of Informed Consent 76-86 (1986) (describing medical practice prior to the 1950s).
4. See id. at 100-101 (discussing beneficence model of consent and its implication that "physicians were able to rely almost exclusively on their own judgment in the medical management of their patients").
5. See id. at 120 ("Four battery decisions between 1905 and 1914 are almost universally credited with formulating the basic features of informed consent in American Law.").
6. See id. at 125-138 (analyzing cases developing informed consent doctrine).
7. See Barry R. Furrow et al., Health Law § 6-11 (2d ed. 2000) (describing factors to be disclosed to obtain informed consent). The courts did not act alone in expanding the tools that patients could use to influence the direction of their care. As courts were defining the legal requirements for informed consent, health care providers themselves were beginning to explicitly acknowledge the rights of patients with respect to the direction of their care. In the 1970s, for example, the American Hospital Association published a Bill of Rights for patients. Faden & Beauchamp, supra note 2, at 93-94. The emphasis on patients' rights grew alongside the consumer and civil rights movements of the same era. Id.; see also id. at 100-101
8. See, e.g., Faden & Beauchamp, supra note2, at100 ("[Jay] Katz seems right in his thesis that the informed consent doctrine has not changed the fundamental character of the physician-patient relationship. . . . The beneficence model is overwhelmingly predominant. Patients routinely acquiesce to medical interventions rather than autonomously authorizing them."
9. Marshall B. Kapp, Patient Autonomy in the Age of Consumer-Driven Health Care: Informed Consent and Informed Choice, 28 J. Legal Med. 91, 99-101 (2007) (discussing "[r]ealists' critiques of informed consent in practice").
10. See Faden & Beauchamp, supra note 2, at 30-34 (reviewing informed consent disclosure standards and noting that "the principal objection to [the professional practice] standard is that it undermines individual autonomy"); Furrow et al., supra note 6, § 6-10 (describing nature and prevalence of disclosure standards).
11. The most likely direction of divergence would be for the professional standard to require less disclosure. See Faden & Beauchamp, supra note 2, at 31.
12. Cf. Peter Schuck, Rethinking Informed Consent, 103 Yale L.J. 899, 932-938 (1994) (discussing reasons that informed consent doctrine may not be effective in practice).
13. See Carl E. Schneider, After Autonomy, 41 Wake Forest L. Rev. 411, 418 (2006) (stating that evidence about extent of physician disclosure is "disheartening" and citing relevant study).
14. Edmund D. Pellegrino, Patient and Physician Autonomy: Conflicting Rights and Obligations in the Physician-Patient Relationship, 10 J. Contemp. Health L. & Pol'y 47, 55 (1993).
15. See Schneider, supra note 11, at 418-424 (reporting on study showing limited patient understanding of disclosed information, pointing out that patient may not have fully formed value system to provide a basis for decision making, and highlighting cognitive shortcomings that interfere with ability to make reasoned choices).
16. See Schuck, supra note 10, at 934 (discussing patients' reluctance to take advantage of information disclosure); Schneider, supra note 11, at 436 ("While many patients say they want to make decisions, a very substantial number of patients say they do not.").
17. But see Inst. of Med., Crossing the Quality Chasm: A New Health System for the 21st Century 71 (2001) (discussing studies showing patients want more information and treatment involvement and reporting that physicians underestimate patients' demand for knowledge).
18. Other goals were safety, effectiveness, timeliness, efficiency, and equity. See Inst. of Med., supra note 14, at 39-40.
19. Id. at 48.
20. Id. at 49 (citing Margaret Gerteis et al., Through the Pat i e n t 's Eyes: Understanding and Promoting Patient-Centered Care (1993)).
21. Alfred A. Bove, President's Page: Patient-Centered Care and Health Care Reform, 53 J. Am. Coll. Cardiol. 1242, 1242 (2009).
22. Karen Davis et al., Aiming High for the U.S. Health System: A Context for Health Reform, 36 J.L. Med. & Ethics 629, 634-635 (2008).
23. References to patient education and communication, for example, echo the disclosure obligations of informed consent. Similarly, the repeated references to values and preferences reflect the respect for patient autonomy underlying modern views of informed consent.
24. See Inst. of Med., supra note 14, at 48.
25. Donald M. Berwick, What "Patient-Centered" Should Mean: Confessions of an Extremist, Health Aff. Web Exclusive w555, w560 (2009).
26. See id. at w561.
27. The parenthetical in Berwick's definition ("to the extent the informed, individual patient desires it") makes limitations based on patient preferences and information problems explicit.
28. See Inst. of Med., supra note 14, at 70 (advocating greater control for patients and noting that this would "represent a significant change in how many clinicians would approach patient care, but is very consistent with the direction in which the clinician-patient relationship has been evolving").
29. Carl E. Schneider & Mark A. Hall, The Patient Life: Can Consumers Direct Health Care?, 35 AM. J.L. & Med. 7, 12 (2009).
30. Mark A. Hall, The Legal and Historical Foundations of Patients as Medical Consumers, 96 Geo. L.J. 583, 584 (2008).
31. Marc A. Rodwin, Patient Accountability and Quality of Care: Lessons from Medical Consumerism and the Patients' Rights, Women's Health and Disability Rights Movements, 20 Am. J.L. & Med. 147, 147-153 (1994).
32. A working paper modeling the effects of consumerism highlights this point when it states that consumerism "arises when patients acquire and use medical information from sources apart from their physicians, such as the Internet and direct-to-patient advertising." Hai Fang et al., Demanding Customers: Consumerist Patients and Quality of Care 1 (Nat'l Bureau of Econ. Research, Working Paper No. 14350, 2008).
33. Hall, supra note 27, at 584-585.
34. Id. at 586.
35. Schneider & Hall, supra note 26, at 13.
36. For a similar argument, see generally Kapp, supra note 7 (arguing that if consumers can exercise autonomy with respect to clinical decision making in the informed consent context, they also ought to be able to do so in the consumer-directed health care context). See also Janet L. Dolgin, The Evolution of the "Patient": Shifts in Attitudes About Consent, Genetic Information, and Commercialization in Health Care, 34 Hofstra L. Rev. 137, 145 (2005) (referring to the "appearance of patient autonomy in the marketplace of late twentieth century health care, a phenomenon also facilitated by the growing significance of patient autonomy"); id. at 155 ("New understandings of patient and physician as putatively equal, autonomous partners support the appearance of forms of relationship and modes of decision making within the world of health care that resemble those in the commercial marketplace."); id. at 175 ("Moreover, the notion of the 'informed patient' merges with the notion of the 'informed consumer.'").
37. This is not to say that consumerism is an entirely new phenomenon. Physician-patient relationships have long had a monetary aspect to them: the fee. As Mark Hall explains, "consumerist ideology has taken on renewed prominence" but "[t]he patient/consumer duality is a permanent feature of medicine." Hall, supra note 27, at 587. Generous insurance coverage can hide this duality by making the money that changes hands less visible to the patient; high-deductible health plans expose it.
38. See Joel S. Weissman et al., Consumers' Reports on the Health Effects of Direct-to-Consumer Drug Advertising, Health Aff. Web Exclusive w3-82, w3-85 (2003). Another survey showed that of respondents who talked to a physician about an advertised drug, more than 40% received a prescription for the drug.
39. Henry J. Kaiser Family Foundation, Understanding the Effects of Direct-to-Consumer Prescription Drug Advertising 3 (2001).
40. Susannah Fox & Sydney Jones, The Social Life of Health Information 4 (June 2009), available at http://www.pewinternet.org/Reports/2009/8-The-Social- Life-of-Health-Information.aspx (last visited Sept. 28, 2009).
41. Id. at 26-27.
42. See Timothy Stoltzfus Jost, Is Health Insurance a Bad Idea? The Consumer-Driven Perspective, 14 Conn. Ins. L.J. 377 (2008) (describing and assessing consumer-driven health care trend
43. Kristin Madison & Peter D. Jacobson, Debate, Consumer-Directed Health Care, 156U.Pa. L. Rev. PENNumbra 107, 107 (2007), available at http://www.pennumbra.com/debates/CDHC.pdf (last visited Sept. 28, 2009) (discussing nature of consumer-directed health care). America's Health Insurance Plans report that in January of 2009, more than eight million people were covered by a high-deductible health plan, a form of consumer-directed health plan. See America's Health Insurance Plans, January 2009 Census Shows 8 Million People Covered by HSA/High-Deductible Health Plans (May 2009), available at http://www.ahipresearch.org/pdfs/2009hsacensus.pdf (last visited Sept. 28, 2009).
44. One recent assessment of consumer-driven health care suggests that "[t]he paradigmatic insurance plan for consumer-driven health care is the [high deductible health plan], characterized by thin benefits; a broad provider network; and only a modest, voluntary engagement with medical management." James C. Robinson & Paul B. Ginsburg, Consumer-Driven Health Care: Promise and Performance, Health Aff. Web Exclusive w272, w274 (2009).
45. Patients may seek information about physician fees directly from their physicians or, in some cases, from their insurers. See Emily Berry, Aetna Lets More Patients See What Doctors Are Being Paid, Am. Med. News (2009) (discussing one insurer's provision of information about negotiated fees with providers), available at http://www.ama-assn.org/amednews/2009/03/16/bisa0316.htm (last visited Sept. 28, 2009).
46. Regarding the cost and quality effects of consumer-directed health care, see Melinda Beeuwkes Buntin et al., Consumer-Directed Health Care: Early Evidence About Effects on Cost and Quality, Health Aff. Web Exclusive w516 (2006).
47. See Kristin Madison, The Law and Policy of Health Care Quality Reporting, 31 Campbell L. Rev. 215, 216-220 (2009) (providing examples of health care quality report cards).
48. Medicare.gov, Hospital Compare, http://www.hospitalcompare.hhs.gov/ (last visited Sept. 28, 2009).
49. N.Y. State Dep't of Health, Adult Cardiac Surgery in New York State 2003-2005, at 21-33 (2008), available at http://www.health.state.ny.us/diseases/ cardiovascular/heart disease/docs/ 2003-2005 adult cardiac surgery.pdf (last visited Sept. 28, 2009).
50. Pennsylvania Health Care Cost Containment Council, Hospital-Acquired Infections in Pennsylvania (2009), available at http://www.phc4.org/reports/hai/ 07/docs/hai2007report.pdf (last visited Sept. 28, 2009).
51. See Madison, supra note 42, at 236-240, and sources cited therein (describing health plan rating systems).
52. See Medicare.gov, Hospital Compare: Information for Consumers, http://www.hospitalcompare.hhs.gov/Hospital/Static/ConsumerInformation tabset.asp?activeTab=4&language=English&version=default (last visited Sept. 28, 2009) (describing contents of Hospital Consumer Assessment of Healthcare Providers and Systems survey).
53. Massachusetts Health Quality Partners, Quality Insights: 2007 Patient Experiences in Primary Care, http://www.mhqp.org/quality/pes/pesMASumm.asp?nav= 031600 (last visited Sept. 28, 2009).
54. See Milt Freudenheim, Noted Rater of Restaurants Brings Its Touch to Medicine, N.Y. Times, Feb. 15, 2009, at B8.
55. See, e.g., Angie's List, Service Categories, http://www.angieslist.com/ AngiesList/Visitor/services.aspx (last visited Sept. 28, 2009
56. RateMDs.com, Doctor Ratings and Reviews, http://www.ratemds.com/ (last visited Sept. 28, 2009).
57. Schneider & Hall, supra note 26, at 27-31. Note, however, that some insurers have implemented programs designed to increase knowledge about treatment costs. See, e.g., Press Release, CIGNA, CIGNA Launches Two National Initiatives to Improve Service for Physicians & Hospitals (Apr. 27, 2009), available at http://newsroom.cigna.com/article display.cfm?article id=1044 (last visited Sept. 28, 2009) (describing insurer cost estimator tool that physicians can use to estimate costs of care for patients).
58. See Fox, supra note 36, at 46; see also Madison, supra note 42, at 221-223 (discussing studies of report card use).
59. Hall, supra note 27, at 587.
60. Rodwin, supra note 28, at 147.
61. See generally Timothy Stoltzfus Jost, Oversight of the Quality of Medical Care: Regulation, Management, or the Market?, 37 Ariz. L. Rev. 825 (1995) (providing general overview of entities exercising oversight over health care quality); Madison, supra note 1 (describing types of health care regulators and regulation).
62. Another reason that consumerism is not the best analogy for the purposes of this article is that some of section I's examples, such as informed consent and patient-centeredness, do not operate through a market interface. For these examples, the analogy between patients' influence and consumers' power is inapt.
63. See Schneider, supra note 11, at 418-424 (describing patients' poor understanding and ability to analyze information provided in informed consent process).
64. See Schneider & Hall, supra note 26, at 23-24 (discussing direct-to-consumer advertisements).
65. Cf. Jost, supra note 38, at 384 (citing RAND study showing that patients "cut back on high value health care to the same extent they cut back on low value health care"); Arnold Rosoff, Consumer-Driven Health Care, 28 J. Legal Med. 11, 26-27 (2007) and sources cited therein (discussing risks that patients will forgo needed care).
66. See Madison, supra note 42, at 227, and sources cited therein (describing barriers to proper report card use); Madison, supra note 1, at 1618-20, and sources cited therein (describing some patients' difficulties in using report cards). On the difficulties patients often face in obtaining and using health care information more generally, see Schneider, supra note 11, at 429-432, and sources cited therein (providing specific examples of information problems that pose challenges to consumer-directed health care); Schneider & Hall, supra note 26, at 19-26 (describing patients' difficulty in obtaining information); id. at 36-59 (describing difficulties in presenting and using health care information).
67. See Madison, supra note 42, at 233-236 (describing problems arising from report card design).
68. See id.
69. The Physician Charter identifies as a fundamental principle of medical professionalism the "primacy of patient welfare." American Board of Internal Medicine, American College of Physicians - American Society of Internal Medicine & European Federation of Internal Medicine, Medical Professionalism in the New Millennium: A Physician Charter, 136 Ann. Intern. Med. 243, 244 (2002) [hereinafter Physician Charter]. The Physician Charter also includes among its three fundamental principles the principle of patient autonomy, which underlies the practice of informed consent. Id. at 244. Although the autonomy principle would seem to militate in favor of support for the consumerist trend, the Charter does not provide much detail about its scope and it is limited by the requirement that patient decisions "are in keeping with ethical practice and do not lead to demands for inappropriate care." Id. In addition, the autonomy principle may sometimes conflict with the patient welfare principle. As a result, even though the Charter's principles are consistent with expanding patient influence, they may also sometimes be consistent with efforts by medical professionals to resist the trend. Cf. Fred Hafferty, Finding Soul in a "Medical Professional of One," 28 J. Health Pol. Pol'y & L. 133 (2003) (discussing implications of tension between Physician Charter's patient autonomy principle and its ethics and inappropriate care exceptions).
70. A number of physicians have lamented the effects of medicine's increasing commercialization on the traditional tenets of medical professionalism, a somewhat different concern. See, e.g., Arnold S. Relman, Medical Professionalism in a Commercialized Health Care Market, 298 J.A.M.A. 2668 (2007) (discussing importance of preserving professionalism in face of increasingly common view of medical practice as a business).
71. See Andrew Fichter, The Law of Doctoring: A Study of the Codification of Medical Professionalism, 19 Health Matrix 317, 334-343 (2009) (analyzing Eliot Freidson's framework for classifying professionalism).
72. See generally Jost, supra note 55 (discussing changes in approaches to quality oversight over time, from professional self-regulation to management and market-based oversight); Madison, supra note 1 (categorizing existing types of health care regulation).
73. On the definition of the term "autonomy," see Pellegrino, supra note 12, at 48 ("What is common to most definitions is the notion that an autonomous person is one who, in his thoughts, words, and actions, is able to follow those norms he chooses as his own without external constraints or coercion by others.").
74. Other authors have examined other examples of the conflict between patient autonomy and physician autonomy. Conflicts may arise, for example, in the case of medical futility, where patients demand treatment despite the fact that physicians believe it will have no medical benefit. See, e.g., Judith F. Daar, Medical Futility and Implications for Physician Autonomy, 21 Am. J. L. & Med. 221, 222 (1995) (discussing physician autonomy in cases involving medical futility); Pellegrino, supra note 12, at 58-61 (discussing medical futility in context of patient autonomy as a "challenge to the physician's judgment of what is good medicine."). Conflicts also arise when physicians object as a matter of conscience to a treatment a patient demands. Pellegrino, supra note 12, at 61-62.
75. Dolgin, supra note 33, at154 &164. Other authors have also noted the tension between patient autonomy and physicians' status as professionals. See, e.g., Marjorie Maguire Shultz, From Informed Consent to Patient Choice: A New Protected Interest, 95 Yale L.J. 219, 276 n.242 (1985) ("The principle of patient control involves a degree of conflict with professional ideology.").
76. Berwick, supra note 22, at w557-58.
77. The mere fact that patients request a particular service is at most a weak intrusion on physician autonomy, if it is an intrusion at all. Many physicians do not feel pressured to prescribe advertised drugs, and those who do may not alter their prescribing patterns in response. In one exploratory survey, however, approximately 35% of primary care physicians and 21% of specialists surveyed reported that their belief that the patient expected a prescription influenced their decision to prescribe a drug. Kathryn J. Aikin et al., Patient and Physician Attitudes and Behaviors Associated with DTC Promotion of Prescription Drugs: Summary of FDA Survey Research, Final Report 67 (2004), available at http://www.fda.gov/downloads/AboutFDA/CentersOffices/CDER/ ucm109875.pdf (last visited Sept. 28, 2009). The survey found that, although most physicians did not feel pressured to prescribe drugs, 22% of primary care physicians felt "somewhat" or "very pressured" to prescribe a drug, as did 13% of specialists. Id. at 68. A companion patient survey identified one potential source of pressure: 17% of patients reported that they would be somewhat or very likely to search for a different physician if their physician refused to prescribe a requested brand name drug. Id. at 40.
78. See Joel S. Weissman et al., Physicians Report on Patient Encounters Involving Direct-to-Consumer Advertising, Health Aff. Web Exclusive W4-219, W4-227 (2004) (reporting survey results showing that, when patients requested advertised drugs, 39% of physicians prescribed the requested drugs but only 5.5% of these physicians agreed that "other drugs or treatment options may be more effective"). Advertising may also force physicians to devote time to correcting patient misunderstandings, reducing the time available for other tasks. See id. at W4-231.
79. A national survey of physicians showed that the majority of physicians somewhat or strongly agreed that advertising "helps educate and inform patients about treatments available to them" or "helps you to have better discussions with patients," but almost a third of physicians reported that advertising "makes your patients less confident in your judgment." Id. at W4-224.
80. Cf. Mark Hall, Institutional Control of Physician Behavior: Legal Barriers to Health Care Cost Containment, 137 U. Pa. L. Rev. 431, 463 (1988) (observing that "the importance of individual autonomy to professional interests is equal to the sanctity of group autonomy").
81. See, e.g., Physician Charter, supra note 63, at 244 (identifying patient autonomy as one of Charter's three fundamental principles).
82. They might refuse to submit data when doing so is voluntary; they might also refuse to participate in efforts to develop reporting mechanisms. See, e.g., Timothy G. Ferris et al., Physician Specialty Societies and the Development of Physician Performance Measures, 26 Health Aff. 1712, 1716 (2007) (mentioning some medical specialty society members' reluctance to participate in performance measure initiatives).
83. See Lindsey Tanner, Doctors Seek Gag Orders to Stop Patients' Online Reviews, USA Today, Mar. 5, 2009, http://www.usatoday.com/news/health/2009-03- 05-doctor-reviews N.htm (last visited Oct. 12, 2009) (describing agreements prohibiting individual patients' online reviews of physician services).
84. See Madison, supra note 42, at 238-239 (describing lawsuits related to health plan rating systems).
85. See Peter Jacobson, Who Killed Managed Care? A Policy Whodunit, 47 St. Louis U. L.J. 365, 368-369 (2003) (describing how managed care organizations affected health care delivery).
86. See id. at 370 ("Concepts suchas preauthorization, utilization review, and economic incentives toreduce the cost of health care compromised physician autonomy.").
87. As with report cards and other consumer trends, provider opposition tomanaged care arose from concern about its effect on patients, as well as concern about its impact on physician autonomy. Managed care's threat to physician autonomy was both direct and profound, however, so concerns about professional autonomy likely drove many of the physician complaints. See John Jacobi, After Managed Care: Gray Boxes, Tiers and Consumerism, 47 St. Louis U. L.J. 397, 398 (2003) ("The real goal seemed to be to preserve the prerogatives of each individual treating physician from any impingement.").
88. Id. at 371.
89. See id. at 372-373 (describing physician responses to growth of managed care).
90. See generally James C. Robinson, The End of Managed Care, 285 J.A.M.A. 2622, 2625 (2001) ("The proximate cause of the shift to consumerism is the widespread backlash against managed care's instruments of cost control, including integrated delivery systems, capitation, and utilization review.");
91. James C. Robinson, Reinvention of Health Insurance in the Consumer Era, 291 J.A.M.A. 1880 (2004) (describing evolution of health plans in aftermath of managed care backlash).
92. Jacobson considers the "motive" and "opportunity" of numerous "suspects" who may have "killed managed care": physicians; patients; employers; courts; legislatures; the media; health insurers; hospitals; and the managed care industry itself. See generally Jacobson, supra note 79. After rejecting the conclusion that managed care experienced a "death by a thousand cuts," his verdict is that "the primary perpetrator was the managed care industry itself." Id. at 394.
93. See Jacobson, supra note 79, at 373-376 (describing patient reactions to managed care, including concern about coverage denials
94. Robinson, Reinvention of Health Insurance, supra note 84, at 1882-1883 (describing redesigns in health plan models to address "consumer desires for choice of physician and hospital at the time of care").
95. See Robert J. Blendon, Understanding the Managed Care Backlash, 17 Health Aff. 80, 83-86 (July/Aug. 1998) (reporting survey results on Americans' perceptions of effects of managed care).
96. See id. at 87 (reporting that 61% of people in "heavy" managed care plans were "[v]ery/somewhat worried that your health plan would be more concerned about saving money than about what is the best treatment for you if you are sick").
97. See Madison, supra note 42, at 242-248 (documenting consumer groups' support for high quality report cards).
98. Elizabeth Murray et al., The Impact of Health Information on the Internet on the Physician-Patient Relationship, 162 Arch. Intern. Med. 1727, 1727 (2003). (Pubitemid 36898962)
99. See generally David Mechanic, Changing Medical Organization and the Erosion of Trust, 74 Milbank Q. 171 (1996 (Pubitemid 126433304)
100. David Mechanic, The Functions and Limitations of Trust in the Provision of Medical Care, 23 J. Health Pol., Pol'y & L. 661 (1998). (Pubitemid 28374554)
101. See Mechanic, Functions and Limitations, supra note 91, at 676-678
102. See generally Mark A. Hall, Law, Medicine, and Trust, 55 Sta n . L. Rev. 463 (2002) (exploring relationship between trust and law in medical context).
103. Cf. Marshall B. Kapp, Consumer-Driven Health Care: Implications for the Physician/Patient Relationship, 70 Pharos 12, 14 (2007) (suggesting that more patient involvement may mean less external regulation).
104. For a fuller discussion ofthe implications of quality reporting for medical professionalism, see generally Kristin Madison & Mark Hall, Quality Regulation in the Information Age: Challenges for Medical Professionalism, in Medical Professionalism in the New Information Age (David J. Rothman & David Blumenthal eds., forthcoming 2010).
105. Recently, the New York Attorney General played a potentially important role in determining the content of report cards produced by managed care organizations. See Madison, supra note 42, at 240-248 (describing New York Attorney General's settlements with health plans regarding content of rating programs).
106. On recent legislative efforts to limit direct-to-consumer advertising, see Natasha Singer, Lawmakers Seek to Curb Drug Commercials, N.Y. Times, July 26, 2009, at B1. For an example of recent regulatory activity concerning direct-to-consumer advertising, see Food & Drug Administra-tion,Guidance for Industry:Presenting Risk Information in Prescription Drug and Medical Device Promotion, Draft Guidance (May 2009), available at http://www.fda.gov/downloads/ drugs/guidancecomplianceregulatoryinformation/guidances/ucm155480.pdf (last visited Sept. 28, 2009).
107. As the experience in Australia has shown, even bans on advertising are not always fully effective in preventing the dissemination of prescription drug information to consumers. See Sonja Brown, Striving for Quality Use of Medicines: How Effective Is Australia's Ban on Direct-to-Consumer Prescription Medicine Advertising?, 16 J. Law & Med. 666, 677-681 (2009) (discussing how drug companies reach consumers despite a ban on prescription advertising).
108. See America's Health Insurance Plans, supra note 38, at 3 (documenting enrollment trends between 2005 and 2009
109. see also Paul Fronstin, Findings from the 2008 EBRI Consumer Engagement in Health Care Survey, EBRI Issue Brief No. 323, 6 (2008), available at http://www.ebri.org/pdf/briefspdf/EBRI IB 11-20081.pdf (last visited Sept. 28, 2009) (showing slow growth in plans combining high deductibles and savings accounts and an increase in high-deductible health plans among insured respondents between 2005 and 2008).
110. Fronstin,supra note 99,at 33.Ofthose who reported that their health plans provided quality information, about half reported trying to use it. Id. Overall, just under a quarter of enrollees who received health care reported checking quality ratings of physicians or hospitals, a rate comparable to that of enrollees of traditional plans. Id.
111. See, e.g., Press Release, Centers for Medicare & Medicaid Services, New Ratings for America's Hospitals Now Available on Hospital Compare Web Site (July 9, 2009) (reporting that readmission statistics were added to hospital comparison Web site
112. Press Release, Massachusetts Health Care Quality and Cost Council, State Launches Consumer-Friendly Website Comparing Health Care Quality and Costs (Dec. 10, 2008) (announcing new Massachusetts hospital quality comparison Web site
113. Consumer-Purchaser Disclosure Project, http://healthcaredisclosure.org/ (last visited Sept. 28, 2009) (describing recent reporting-related activities).
114. Given the many barriers patients face in using public report cards, however, payers and providers will likely continue to be the most influential report card users.
115. Some quality measures have already been retired. See Thomas H. Lee, Eulogy for a Quality Measure, 357 New Eng. J. Med. 1175 (2007) (discussing retirement of beta-blocker quality measure because it was no longer needed).