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Publication Date

Winter 1997




Duke University School of Law




Millenia prompt reflection about change, both past and future. Tons of newsprint have already been devoted to documenting the astonishing developments in medicine during the past century, and to speculating about what breakthroughs to expect in the next one.1 Health economists generally accept that these changes, particularly advances in technology, have been the dominant factor propelling U.S. health care costs into the stratosphere over the past hundred years.' Analysts by the score have also examined the myriad ways in which this nation's health care delivery system has been (and must continue to be) transformed to cope with these expensive developments.4 However, relatively few authors have considered the way medical discipline has-or has not-kept pace with the dramatically different ways in which medicine is now practiced, and how it should continue to adapt in the twenty-first century The time to re-think what we really mean to achieve when we speak of disciplining physicians is now. Is not the primary purpose to safeguard and improve the overall quality6 of patient care?

This article posits that the locus of "disciplining" doctors-in the broadest sense of that term-has already begun to gravitate away from traditional government licensure and medical malpractice litigation toward purchasers of medical services. At the same time, the underlying philosophical rationale for purchaser "discipline" has evolved to one of-ideally-educating doctors about their professional shortcomings as compared with their peers, rather than one of sanctioning deviants for failing to perform up to standard. Self-awareness of defects in their practice motivates most doctors to improve in the interest of better patient care, not to mention their own professional self-interest.

Two related phenomena have driven this change: a shift to a more market-oriented health sector,8 and dramatic advances in health care information technology and collection methods.9 These changes encourage and facilitate far more sophisticated assessments of physician performance than have been possible in the past, and they foster them on a contemporaneous and continuous basis.10 More than two-thirds of all privately insured Americans, plus a growing number of Medicare and Medicaid patients," currently receive medical care through managed care organizations ("MCOs"). Managing medical services gives MCOs both the incentive and the opportunity to pay close attention to the way physicians practice medicine. 13 Employers, who subsidize a substantial percentage of privately insured care, are paying close attention as well. So too is government, as a substantial purchaser through the Medicare and Medicaid programs it subsidizes.

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