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The Role of the Courts in Shaping Health Policy: An Empirical Analysis

Published online by Cambridge University Press:  01 January 2021

Peter D. Jacobson ,
Elizabeth Selvin  and
Scott D. Pomfret
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Extract

The transformation of health-care delivery from fee-for-service medicine to managed care represents a fundamental philosophical shift away from the prevailing medical ethos that the needs of the individual patient take precedence over competing social values, such as reducing health-care costs. In managed care, financial incentives to reduce health-care utilization may result in denying an individual’s claim for medical services.

Litigation challenging managed care’s resource allocation decisions often presents the need to resolve conflicting social policy goals, such as the tension between an individual patient’s access to health care and a managed care organization’s (MCO’s) need to restrain costs. Conflicts may arise when a patient’s desire for unconstrained health care clashes with a provider’s and an insurer’s cost containment strategies. In turn, cost containment strategies may raise questions about restrictions on physician autonomy and conflicts among stakeholders for control over resource allocation decisions.

Type
Article
Information
Journal of Law, Medicine & Ethics , Volume 29 , Issue 3-4 , Fall Winter 2001 , pp. 278 - 289
Copyright
Copyright © American Society of Law, Medicine and Ethics 2001

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References

The vast majority of cases coded were published. Some, however, had not been published at the time we coded them. We are not aware of whether they were subsequently published.Google Scholar
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In selecting patient autonomy as a policy variable, we anticipated that issues such as patient choice and informed consent would be important considerations in managed care litigation. Similarly, we expected that a major policy dispute in the litigation would be over managed care's attempts to control clinical practice, hence reducing physician autonomy for clinical decisions. Both scenarios, in essence, raise the issue of who makes the clinical decision in managed care.Google Scholar
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Lexis-Nexis is the other major legal database. There is little, if any, discrepancy in the availability of cases from Westlaw and Lexis.Google Scholar
We observed no differences in results when medical professionals, professional organizations, and other individuals were considered separately in our analysis. Thus, we grouped all plaintiffs into a single category.Google Scholar
For purposes of ERISA, a managed care organization is considered to be part of the employee's health benefit plan and, thus, subject to ERISA requirements.Google Scholar
The null hypothesis being that the rulings in both distributions are identical.Google Scholar
A recent comprehensive study on antitrust litigation confirms these results, showing a remarkably similar distribution of rulings. Hammer, P.J.D., Ph.D., Conversation with Jacobson, P.D., March 2001. Hammer and William Sage have compiled an extensive antitrust database that they are now in the process of analyzing. We defer detailed consideration of our antitrust sample to them.Google Scholar
Even though this is the expected result, this is the first time the result has been validated through an empirical analysis.Google Scholar
One possible explanation, as noted by an anonymous reviewer, is that a court might want to bow in the direction of fairness, even if the ruling is for the defendant, to avoid the appearance of not caring about the patient's distress.Google Scholar
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