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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.