A new resource for managing malpractice risks in managed care
Harold J. Bursztajn, MD
Archie Brodsky
published in CANPFALine, March 1997
Excerpts have been taken from this article, which first appeared
in The Archives of Internal Medicine, with the permission of the
authors. The sections reprinted below deal with ethical versus economic
issues in managed care, and highlight trends in acute care that may
also apply to long-term care (just substitute "long-term care
provider" for the "physician" in the text to see how
it might apply to you).
Managed care, by superimposing nonclinical decision making imperatives
on the traditional physician-patient-family relationship, is creating
new ethical dilemmas and, in turn, additional liability risks for physicians.
Under these stressful conditions, it is essential for physicians to use
enlightened risk management principles while maintaining the integrity
of the clinical decision making process.
Managed care, whether in the current private-sector environment or in
proposed public or private health care financing plans overseen by the
government, is profoundly changing the ground rules by which physicians,
patients, and families relate to one another. Instead of simply a physician-patient-family
relationship, there is now a physician-managed care-peer review-patient-family
relationship. As the structure of decision making becomes more complex,
decision increasingly are taken out of the hands of physicians and patient.
In place of a dialog in which the patient makes an informed choice with
the help of the physician's best medical judgment, rulings by third parties
far removed from the scene approve or deny funding for treatments recommended
by the physician and chosen by the patient.
The legal liabilities of those third parties are only beginning to be
defined, but physicians are still held to a standard of care that, for
the most part, does not account for the constraints imposed on medical
decision making by limited resources. As a result, the patient may feel
compelled to sue the accessible second party (the physician) in response
to real or perceived abandonment by the inaccessible third party (the
insurer or managed care agency). In other words, managed care will exacerbate
the tendency of some patients and families to scapegoat the physician.
For the physician, it is a clear and alarming case of responsibility
without authority.
The disruptive effects of managed care on the communication, trust, empathy
and informed choice that are at the core of liability prevention are
only beginning to be fathomed. Increasingly, for example, patients must
qualify for a protocol to have access to new technology.
More routinely, patient confidentiality is compromised by the mandated
divulging of medical records to third-party reviewers. As patients learn
how third-party administrators are gaining access to highly personal
diagnostic information, they are likely to become less reliable informants.
Some observers believe that such intrusion, together with ever-present
uncertainties about reimbursement for long-term treatment, make the practice
of psychotherapy impossible.
As long as managed care is a reality, principles of fairness and accountability
(and, indeed, the viability of the health care system) demand that those
who control the allocation of resources - not the physicians whose requests
for resources on behalf of their patients are denied - be held liable
for the consequences of that denial. Although physicians are unaccustomed
to welcoming successful litigation, a Georgia federal court ruling may
herald a trend more favorable to the physician-patient relationship.
It ruled that a health insurer could be held liable for its failure to
respond to a hospital's repeated requests for confirmation of coverage
of cardiac bypass surgery that had been ordered for a patient.
Pending the systematic reform that such legal precedents may inspire,
information and advocacy have become primary focuses of physician ethics
under managed care. Physicians can best serve patients' interests and
protect themselves from liability by informing patients about what the
limitations on coverage are and when those limits prevent implementation
of the physician's best clinical judgment. In an extension of a traditional
role to the new context of economic-resource allocation they physician
should then advocate vigorously for the patient, or else (when possible)
help the patient find a better source of coverage.
Dr. Bursztajn is a senior faculty member at Harvard Medical School.