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Emerging Parallels in the American Health Care and Legal-Judicial Systems

Published online by Cambridge University Press:  24 February 2021

David C. Hadorn
David C. Hadorn*
Affiliation:
University of California at San Diego; University of Colorado. Center for Health Ethics and Policy, University of Colorado at Denver
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Abstract

The structure and principal decision-making processes of the American health care system have, in recent years, evolved to closely resemble those of the legal-judicial system. This transformation reflects important common values that underlie both systems, including the values of life and liberty. This Article analyzes quasi-legal features of the health care system and draws conclusions about how those features might be used to address the problem of health care rationing. It concludes that coverage rules, if properly developed, can provide the sort of objective framework necessary to evaluate claims of health care needs. This Article also demonstrates that by defining legitimate health care needs, society can thereby potentially eliminate or forestall the need to ration necessary care. This can be achieved by using carefully developed coverage rules, rather than the informal rules currently in place, in conjunction with already existing due process methods for interpreting and implementing those rules.

Type
Articles
Information
American Journal of Law & Medicine , Volume 18 , Issue 1-2: Rationing Health Care: Social, Political and Legal Perspectives , 1992 , pp. 73 - 96
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 1992

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References

1 It might nonetheless be asked whether and to what extent the structural and procedural parallels between the two systems, see infra pp. 74-81, have come about in response to the legalistic environment within which the health care system must function. While this Article considers the two explanations, see infra pp. 82-84, to be the principal factors driving the evolution of these parallels, it is certainly possible that part of the resemblance between the two systems is caused by prolonged exposure of one to the other.

2 Moreover, it is possible to develop a set of general rules for the proper speed limits for various types of road, e.g., interstate highways, residential and school areas or a remote two lane country highway. In a much-simplified fashion, the formulation of these general rules reflect how clinical guidelines (or coverage rules) can take into account relevant clinical factors to develop general rules of appropriate medical practice.

3 See GEORGE J., ANNAS ETAL., AMERICAN HEALTH LAW 192-94, 526-28 (1990).Google Scholar

4 Coverage criteria of this type were born with the Professional Standards Review Organizations (PSROs), created by the Social Security Amendments of 1972, Pub. L. No. 92-603, §§ 1671-1689, 86 Stat. 1329, 1429-42 (1972), in response to concerns about rising expenditures in the federal Medicare and Medicaid programs. PSROs, and their subsequent replacements, federal Peer Review Organizations (PROs), were created to “apply professionally developed norms of care, diagnosis, and treatment based upon typical patterns of practice” to Medicare and Medicaid patients. 42 U.S.C.A. § 1320c(3)(a)(6)(A) (West 1992). See generally Peter E., Dans et al., Peer Review Organizations: Promises and Potential Pitfalls, 313 NEW ENC. J. MED. 1131 (1985).Google Scholar

5 This entire line of argument assumes that on average, it is in society's best interests to restrict or reduce both health care spending and air pollution. Although one can no doubt argue to the contrary, this Article argues that these assumptions generally are correct. To the extent they are not, the validity of this Article's conclusions is suspect.

6 See generally David M., Eddy, The Challenge, 263 JAMA 287 (1990).Google Scholar

7 But see infra text accompanying notes 19-23.

8 See supra text p. 76.

9 Bruce E., Zawacki, ICU Physician's Ethical Role in Distributing Scarce Resources, CRITICAL CARE MED., Jan. 1985, at 59.Google Scholar

10 An important implication of the parallel that this Article draws between the health care and legal-judicial systems is that physicians should remain (or resume their role as) unequivocal patient advocates. This conclusion is at odds with the advice of many observers, who would increasingly vest implicit “gatekeeper” status on physicians, expecting them to manage patients’ care with one eye on the patient and the other on the payer's pocketbook. Such divided loyalty surely would not be tolerated of defense attorneys, and in my view is inappropriate for physicians as well. Others have shared this concern. For example, Dan Brock, writing for the President's Commission for the Study of Ethical Problems in Medicine (President's Commission) noted that

[V]arious features of a typical physician/patient encounter contribute to the importance of the patient's ability to trust the physician to act in the patient's best interest. Patients often come to a physician in a state of anxiety, vulnerability, even fear. Something is wrong with their body, something they in all likelihood do not understand and about which they are worried. The care they receive may affect their future in dramatic, perhaps life-and-death ways.

Dan W., Brock, Distribution of Health Care and Individual Liberty, in 2 PRESIDENT's COMM'N FOR THE STUDY OF ETHICAL PROBLEMS IN MEDICINE AND BIOMEDICAL AND BEHAVIORAL RESEARCH, SECURING ACCESS TO HEALTH CARE: THE ETHICAL IMPLICATIONS OF DIFFERENCE IN THE AVAILABILITY OF HEALTH SERVICES 239, 255 (1983)Google Scholar [hereinafter PRESIDENT's COMM'N REPORT].

Similarly, Robert Veatch has observed that asking physicians to assume a double-agent role would be tantamount to asking them

to remove the Hippocratic Oath from their waiting room walls and replace it with a sign that reads: “Warning all ye who enter here. I will generally work for your rights and welfare, but if benefits to you are marginal and costs are great, I will abandon you in order to protect society.“

Robert M., Veatch, DRGs and the Ethical Allocation of Resources, HASTINGS CENTER REP., June 1986, at 32, 38.Google Scholar

Of course, physicians’ actions and options would be constrained by the coverage rules that govern patients’ access to care under their insurance plans, just as attorneys may not break the law while formulating defense strategies. Physicians could, of course, recommend tests or treatments not covered by patients’ insurance plans, perhaps even urging them to borrow money to cover the costs, if necessary. By permitting physicians unrestricted freedom to further their patients’ interests within the boundaries circumscribed by society (that is, in the form of coverage rules) physicians can retain their unequivocal advocacy positions without breaking the public bank.

It should be noted that an alternative scheme for health care decision-making exists which, although diametrically opposed to the one described in this Article, would also likely solve the health care spending problem. It is simple: put all physicians on salary. In this way, marginally beneficial services would likely be sharply curtailed (assuming that these can be reliably identified by physicians). This rather drastic solution would not find favor with the medical community, however, and even patients might have reason to be concerned that their physicians would rather go home at five o'clock than perform a marginally beneficial test or treatment — which in one's specific case, however, might make the difference between continued illness (or death) and recovery. The fact that no adverse outcomes have been associated with salaried physicians in contemporary settings (e.g., staff-model HMOs) might make this concern seem overblown, but the debate and rancor that surely would accompany a proposal to salary physicians throughout society would likely bring a new (and harsh) light on this subject.

11 Bruce E. Zawacki, supra note 9, at 60.

12 The terms “uphold” and “overturn” are actually used in the utilization review community and mean the same thing as their counterparts in the legal-judicial system.

13 JOHN, RAWLS, A THEORY OF JUSTICE 85–86 (1971).Google Scholar

14 See Harris v. McRae, 448 U.S. 297, 318 (1980); Maher v. Roe, 432 U.S. 464,469 (1977).

15 James F., Blumstein, Rationing Medical Resources: A Constitutional, Legal and Policy Analysis, in 3 PRESIDENT's COMM'N REPORT, supra note 10, at 349, 352-53Google Scholar; William J., Curran, The Constitutional Right to Health Care, 320 NEW ENG. J. MED. 788, 788-89 (1989).Google Scholar

16 Bruce E. Zawacki, supra note 9, at 59.

17 Amy, Gutmann, For and Against Equal Access to Health Care, in 2 PRESIDENT's COMM'N REPORT, supra note 10, at 51, 56.Google Scholar

18 Brown v. Board of Educ, 347 U.S. 483, 495 (1954).

19 See supra text pp. 77-78.

20 David C., Hadorn & Robert H., Brook, The Health Care Resource Allocation Debate: Defining Our Terms, 266 JAMA 3328, 3329-30 (1991)Google Scholar. See also Daniel, Callahan, Symbols, Rationality and Justice: Rationing Health Care, 18 AM. J. L. & MED. 1, 3 (1992)Google Scholar.

21 NORMAN, DANIELS, JUST HEALTH CARE 23–26 (1985)CrossRefGoogle Scholar; John C., Moskop, Rawlsian Justice and A Human Right to Health Care, 8 J. MED. & PHIL. 329, 333-34 (1983).Google Scholar

22 Dan W., Brock, Distribution of Health Care and Individual Liberty, in 2 PRESIDENT's COMM'N REPORT, supra note 10, at 239, 262 (emphasis added).Google Scholar

23 Norman, Daniels, Health-Care Needs and Distributive Justice, 10 PHIL. & PUB. AFF. 146, 152-54, 160 (1981).Google Scholar

24 Bruce C., Vladeck, Equity, Access, and the Costs of Health Services, in 3 PRESIDENT's COMM'N REPORT, supra note 10, at 3, 5.Google Scholar

25 DANIEL, CALLAHAN, SETTING LIMITS: MEDICAL GOALS IN AN AGINC SOCIETY 168 (1987).Google Scholar

26 1 PRESIDENT's COMM'N REPORT, supra note 10, at 19.

27 Id. at 22.

28 Id. at 35.

29 Tim, Scanlon, Preference and Urgency, 19 J. PHIL. 655, 658-60 (1975) (emphasis added).Google Scholar

30 See supra text pp. 75-78.

31 See supra text p. 76.

32 David M. Eddy, supra note 6, at 287-89.

33 See supra text p. 79.

34 See DAVID C. HADORN, BASIC BENEFITS AND CLINICAL GUIDELINES: DEFINING THE ADEQUATE LEVEL OF CARE (forthcoming 1992).

35 The evaluation of outcomes will be influenced by the evaluators’ values and preferences for those outcomes (e.g., how important is a given degree of pain relief versus functional improvement?). See infra text accompanying notes 45-48.

36 One 6f the most notable efforts of this kind has been the National Institutes of Health's (NIH) Consensus Development Program, in which a panel of experts considers specific questions that have been developed in advance, hears evidence and expert opinion, and then adjourns to write a report in private. Significantly, this particular process has been likened to a judicial trial: “The conference questions constitute the charge, the speakers’ presentations and audience comments provide the evidence, and the panel, as a jury, weighs the evidence and reaches a verdict in the form of a consensus statement.” Geraldine E., Markle & Daryl E., Chubin, Consensus Development in Biomedicine: The Liver Transplant Controversy, 65 MILBANK Q. 1, 4 (1987).Google Scholar This analogy is, of course, consistent with the general theme of this Article.

Consensus development projects similar to the NIH effort have been conducted in several other settings. See generally Arlene, Fink et al., Consensus Methods: Characteristics and Guidelines for Use, 74 AM. J. PUB. HEALTH 979 (1984)Google Scholar.

37 See generally David C., Hadorn, The Role of Public Values in Setting Health Care Priorities, 32 Soc. Sci. MED. 773 (1991)Google Scholar; Robert M., Veatch & Carol Mason, Spicer, Medically Futile Care: The Role of the Physician in Setting Limits, 18 AM. J.L. & MED. 15 (1992).Google Scholar

38 Indeed, one might argue that the panels should consist of only lay representation, with physicians serving only as expert witnesses. This is the model used for malpractice trials, of course, and, less often, for grand jury hearings. In these latter instances, panels of citizens represent society as a whole; the values of the jury are considered representative of the values of society. In view of the techniques often used to empanel juries (e.g., the use of peremptory challenges), however, the validity of this assumption is open to serious question.

39 Public Health Service Act, Pub. L. No. 101-239, § 6103(a), 103 Stat. 2193 (1989) (codified as amended at 42 U.S.C.A. § 299b-2 (West 1991)).

40 Interview with Kathleen McCormick, Director, Office of the Forum for Quality and Effectiveness in Health Care.

41 OR. REV. STAT. § 414.715 (1989). See also David C., Hadorn, Setting Heatlh Care Priorities in Oregon: Cost-Effectiveness Meets the Rule of Rescue, 265 JAMA 2218 (1991)Google Scholar [hereinafter David C. Hadorn, Health Care Priorities in Oregon]

42 See Sara, Rosenbaum, Mothers and Children Last: The Oregon Medicaid Experiment, 18 AM. J.L. & MED. 97, 105 (1992).Google Scholar

43 In view of the close moral connections between the health care and legal-judicial systems, appointment by a Governor or state legislature might be the preferred process. Should a process ever be implemented to develop a uniform basic benefit plan for a national health insurance program, Presidential or Congressional appointment of panelists or Commissioners would be appropriate.

44 OR. REV. STAT. § 414.715 (1989).

45 This Article does not consider the various questions dealing with how best to analyze and interpret the medical literature, or how to combine data from different studies into summary judgments of treatment effect. These issues are dealt with at length in several recent articles on this topic. See, e.g., Steven H., Woolf et al.. Assessing the Clinical Effectiveness of Preventive Maneuvers: Analytic Principles and Systematic Methods in Reviewing Evidence and Developing Clinical Practice Recommendations, 43 J. CLINICAL EPIDEMIOLOGY 891 (1990)Google Scholar. For an approach congruent with the procedures recommended in the present article, see Jonathan, Lomas et al., The Role of Evidence in the Consensus Process: Results from a Canadian Consensus Exercise, 259 JAMA 3001 (1988).Google Scholar

46 See supra text accompanying notes 23-33.

47 See David C., Hadorn, The Oregon Priority-Setting Exercise: Quality of Life and Public Policy, HASTINGS CENTER REP., May-June 1991, at 11.Google Scholar

48 See, e.g., Astrid, Fletcher et al., Evaluation of Quality of Life in Clinical Trials of Cardiovascular Disease, 40 J. CHRONIC DISEASES 557 (1987)Google Scholar; H.J., Sutherland et al., Ratings of the Importance of Quality of Life Variables: Therapeutic Implication for Patients with Metastatic Breast Cancer, 43 J. CLINICAL EPIDEMIOLOGY 661 (1990)Google Scholar; Ingela, Wilkind et al., Factors of Importance when Evaluating Quality of Life in Clinical Trials, 11 CONTROLLED CLINICAL TRIALS 169 (1990)Google Scholar; Aeilko H., Zwinderman et al., The Measurement of Change of Quality of Life in Clinical Trials, 9 STATISTICS IN MED. 931 (1990)Google Scholar.

49 See 2 MCCORMICK ON EVIDENCE 424-97 (John William Strong ed., 1992).

50 See id. at 445-49.

51 See id. at 437-41; W. PAGE, KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS 239-40 (5th ed. 1984)Google Scholar.

52 See 2 MCCORMICK ON EVIDENCE, supra note 49, at 445-49.

53 Id. at 444.

54 Michael H. v. Gerald D., 491 U.S. 110, 111 (1989).

55 Ronald J., Allen, A Reconceptualization of Civil Trials, 66 B.U. L. REV. 401, 405-06 n.21 (1986).Google Scholar

56 2 MCCORMICK ON EVIDENCE, supra note 49, at 445.

57 Michael A., Peszke, Duty to the Patient or Society: Reflections on the Psychiatrist's Dilemma, in 9 THE LAW-MEDICINE RELATION: A PHILOSOPHICAL EXPLORATION 177, 181 (Stuart F., Spicker et al. eds., 1981).Google Scholar

58 2 MCCORMICK ON EVIDENCE, supra note 49, at 445 (footnote omitted).

59 See supra text pp. 75-78.

60 David C. Hadorn, Health Care Priorities in Oregon, supra note 41, at 2223.

61 Id.

62 The RAND Corporation is a non-profit research organization focusing on public policy issues involving U.S. national security and the domestic welfare. Its fields of expertise include behavioral, political and systems sciences, with major emphasis on (1) international relations; (2) national security affairs; (3) American domestic problems, such as health care; and (4) science, technology and methodology. BUSINESS ORGANIZATIONS, AGENCIES, AND PUBLICATIONS DIRECTORY 16700 (Catherine M. Ehr & Kenneth Estell eds., 6th ed. 1992).

63 Rolla E., Park et al., Physician Ratings of Appropriate Indications for Six Medical and Surgical Procedures, 76 AM. J. PUB. HEALTH 766, 767 (1986).Google Scholar

64 Moreover, relatively few indications for most treatments (especially, perhaps, for very expensive, high-technology treatments) can pass even a moderate, “reasonably well demonstrated” standard. For example, a recent study by the AHCPR concluded that, based on available evidence, liver transplants are of convincing benefit only for patients suffering from primary biliary cirrhosis or primary sclerosing cholangitis — a small subset of possible indications. UNITED STATES DEP't OF HEALTH AND HUMAN SERVS., AGENCY FOR HEALTH CARE POLICY AND RESEARCH, HEALTH TECHNOLOGY ASSESSMENT REPORTS: ASSESSMENT OF LIVER TRANSPLANTATION 28 & table 6 (1990). Similarly, the use of low-osmolar contrast medium has been demonstrated to be of convincing benefit for only a relatively few patients. Vivek, Goel et al., Nonionic Contrast Media: Economic Analysis and Health Policy Development, 140 CAN. MED. ASS'N J. 389, 392-93 (1989).Google Scholar

65 See supra text p. 76.

66 This might be done either by adopting the coverage rules for a national health insurance system or by requiring all public and private insurance plans to offer “basic benefit plans” providing access to all and only deemed-necessary services. In the latter instance, society also would have to ensure that all citizens were able to qualify for one or another of these plans, which presumably would compete on the basis of price, quality and amenities, rather than on differences in coverage design. See DESIGNING A FAIR AND REASONABLE BASIC BENEFIT PLAN USING CLINICAL GUIDELINES (David C. Hadorn ed., forthcoming 1992). But see Daniel Callahan, supra note 20, at 2 (arguing that the only way to ensure access for all to health care is by rationing).

67 1 PRESIDENT's COMM'N REPORT, supra note 10, at 20. See supra text accompanying notes 21-24. The term “adequate level of care” and “basic benefit plan” are functionally equivalent, each purporting to provide for patients’ bona fide health care needs, but not for “mere desires.“

68 Robert H., Brook, Health, Health Insurance, and the Uninsured, 265 JAMA 2998, 3001 (1991).Google Scholar

69 Charles, Fried, Equality and Rights in Medical Care, HASTINGS CENTER REP., Feb. 1976, at 29, 32.Google Scholar

70 The United States Congress’ creation in 1989 of the new federal Agency for Health Care Policy and Research (AHCPR) shows the manifestation of this effort. Congress provided the Agency with a budget of over $500 million (over a five-year period) and directed the Agency to support research and other activities that would “enhance the quality, appropriateness, and effectiveness of health care services ….” Public Health Service Act, Pub. L. No. 101-239, § 6103(a), 103 Stat. 2192 (1989) (codified as amended at 42 U.S.C.A. § 299b-l(a)(l) (West 1991)). Within AHCPR, the Office of the Forum for Quality and Effectiveness in Health Care was created, which has principal responsibility for conducting health outcomes research and for “arranging for” the development of “clinically relevant guidelines that may be used by physicians, educators, and health care practitioners to assist in determining how diseases, disorders, and other health conditions can most effectively and appropriately be prevented, diagnosed, treated, and managed clinically.” An Institute of Medicine report noted that AHCPR's

responsibilities for practice guidelines reflect congressional recognition of the practical need for ways to translate knowledge into patient and practitioner decisions that improve the value the nation receives for its health care spending. More generally, the creation of a practice guidelines function within AHCPR can be seen as part of a significant cultural shift, a move away from unexamined reliance on professional judgment toward more structured support and accountability for such judgments.

CLINICAL PRACTICE GUIDELINES: DIRECTIONS FOR A NEW PROGRAM 2 (Marilyn J. Field & Kathleen N. Lohr eds., 1990). See UNITED STATES DEP't OF HEALTH AND HUMAN SERVICES, AGENCY FOR HEALTH CARE POLICY AND RESEARCH PROGRAM NOTE: CLINICAL GUIDELINE DEVELOPMENT (1990); UNITED STATES DEP't OF HEALTH AND HUMAN SERVICES, AGENCY FOR HEALTH CARE POLICY AND RESEARCH PROGRAM NOTE: MEDICAL TREATMENT EFFECTIVESS RESEARCH (1990); UNITED STATES DEP't OF HEALTH & HUMAN SERVICES, AGENCY FOR HEALTH CARE POLICY AND RESEARCH: PURPOSE AND PROGRAMS (1990).