Document Type
Article
Publication Date
Fall 1999
ISSN
0882-1046
Publisher
The Catholic University of America, Columbus School of Law
Language
en-US
Abstract
There is hardly a legislature in the country that is not currently debating the issue of patient rights in managed care. Not surprisingly, legislators, as well as reporters covering the debate, have called upon George J. Annas, Edward R. Utley Professor of Health Law and Chair of the Health Law Department at Boston University, for information and advice. Professor Annas has earned the title of "father of patient rights" for his decades of research, writing, and advocacy on behalf of individuals who need health care and deserve justice.
Today, however, one might ask whether patient rights are compatible with managed care.2 After all, much of the impetus for managed care was to counter the rising demand for, and cost of, medical care. Much of the managed care industry's success in lowering health insurance premium costs may be attributed to limiting patient choices and treatments, especially. in regard to the length of hospital stays.3 Indeed, the managed care industry does not speak of the rights of "patients." Instead, it describes the rights and responsibilities of members or consumers.
Professor Annas critiqued "managed care's attempt to transform the patient into a consumer" because it portends the potential loss of important rights for everyone. 5 The change in language both reflects and encourage; conceptualizing health care as a market commodity.6 While doctors and hospitals have patients, markets have consumers. Annas argues that: if patients metamorphose into consumers, the law must continue to protect individuals as patients. Just as he developed a model bill of patient rights in 1975,7 Annas now proposes a national bill of patient rights for the new era in which managed care plays a prominent role.
Annas has been the trailblazer in patient rights, mapping new ground in law with succinct and pungent writing that captures the essence of a patient's place in medicine. He has left little for the rest of us to do but fill in the details. This article follows in that tradition by developing the distinction between patient rights and consumer rights and examining what the contours of law that protects both might look like. The first section of this article describes the difference between rights ascribed to patients and consumers respectively, and the general nature of laws that have traditionally protected each. Patient rights focus on the relationship between patients, physicians or other "providers" regarding the type and quality of care provided. Consumer rights focus on purchasing decisions before forming a provider relationship or agreeing to a contract. The second section differentiates the health care delivery and insurance functions of managed care that affect patient rights and consumer rights, respectively, noting that some elements have mixed effects. These differences are developed in the third section, which argues that current efforts to regulate managed care conflate patients with consumers, and that the resulting reliance on consumer choice to protect patient rights is misplaced. Section four outlines the problems with conceptualizing managed care issues solely within the consumer model. The choice of a health plan is but one of many rights today's patients deem important. However, an increasing number of Americans retain little, if any, meaningful choice of health plans. Consumer rights are necessary to help people choose a health plan, but they are not sufficient to protect patients when they need medical care. Moreover, consumer choice encourages a perception that managed care plans can be understood as simple contracts between willing buyers and sellers, with the contract defining all the parties' rights and duties. This raises the question whether contracts should supersede tort obligations in providing patient care. Section five argues that managed care issues cannot always be resolved satisfactorily by applying traditional contract principles exclusive of tort principles. Finally, section six suggests viewing managed care plans as a hybrid incorporating elements of standard form insurance contracts, far removed from the idealized contract model, as well as elements of professional service agreements for personal medical care traditionally governed by tort standards. While some contract doctrines may serve to protect consumers in their financial dealings, the law should protect patients as well as consumers in the complex reality of managed care relationships. Thus, there is a need for extra-contractual tort standards to protect the rights of patients, whether or not they are members of a managed care plan.
Recommended Citation
Wendy K. Mariner,
Standards of Care and Standard Form Contracts: Distinguishing Patient Rights and Consumer Rights in Managed Care
,
in
15
The Journal of Contemporary Health Law and Policy
1
(1999).
Available at:
https://scholarship.law.bu.edu/faculty_scholarship/1953
