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The Roles of Ethicists in Managed Care Litigation

Published online by Cambridge University Press:  01 January 2021

Mary Anderlik Majumder
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Extract

In the lead article in this symposium issue, Edward Imwinkelried follows other scholars in distinguishing among three types of tasks for ethicists serving as expert witnesses: (1) descriptive (e.g., addressing the existence and content of relevant codes of ethics or guidelines, or the correspondence, or lack of correspondence, between relevant codes or guidelines and the parties’ practices); (2) metaethical (e.g., clarifying concepts, critiquing the logic of a particular argument or position); and (3) normative (e.g., addressing what the standard or practice should be). He finds agreement that the admissibility of descriptive or metaethical evidence rests upon the usual criteria of helpfulness and reliability. He breaks new ground in arguing that normative evidence typically relates to the judge's legislative rather than adjudicative function and therefore need not satisfy the usual standards for admissibility in order to be considered.

Type
Symposium
Information
Journal of Law, Medicine & Ethics , Volume 33 , Issue 2 , Summer 2005 , pp. 264 - 273
Copyright
Copyright © American Society of Law, Medicine and Ethics 2005

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References

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“Managed care organization” is also a slippery term. In the contemporary situation, there are very few health insurers that refrain from any involvement in the delivery of care. Still, some insurers are more involved than others. In 1992, John Iglehart defined a managed care system as one that integrates the financing and delivery of medical care by means of the following features: “contracts with selected physicians and hospitals that furnish a comprehensive set of health care services to enrolled members, usually for a predetermined, monthly premium; utilization and quality controls that contracting providers agree to accept; financial incentives for patients to use the providers and facilities associated with the plan; and the assumption of some financial risk by doctors, thus fundamentally altering their role from serving as agent for the patient's welfare to balancing the patient's needs against the need for cost control.” Iglehart, J. K., “Managed Care,” N. Engl. J. Med. 327 (1992): 742–747.CrossRefGoogle Scholar
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For example, the expert should specify how opinions were derived, e.g., from personal experience, a synthesis of the peer-reviewed or other literature or particular sources, or generally accepted professional opinion in the field (and how this was ascertained). See Spielman, B. J., supra note 10, at 425.Google Scholar
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Peeno testified that this was true at the macro level, in terms of decisions about what programs to establish or emphasize, and also at the micro or individual patient level, with decisions related to the children terminated from case management. So, for example, as to the latter: “Q. Did you ever see anywhere in the documents, any of the depositions, where there was ever a consideration, a discussion, about what would happen to the catastrophically-ill child that was terminated from the medical case management when they went back on the regular plan? A. No. I mean absolutely nothing where anybody expressed any kind of concern about the consequences of these sort of decisions to these extremely vulnerable little kids.” Direct Examination of Dr. Linda Peeno, Chipps trial transcript, Vol. 10, TR I671–1672. Also: “A. It is unethical to create a program to focus on savings, to create a chart where your goal is to produce 78 and a half million dollars of savings and to have nothing, absolutely nothing in any of those reports that we looked at that talked about quality of care, or outcome, or specific consequences to the individual patients whose lives are going to be saved [sic] in order to produce that savings. That's unethical.” Re-direct of Dr.Peeno, Linda, Chipps trial transcript, Vol. 11, TR 1818.Google Scholar
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