Public Health Law Map - Beta 5 - Medical and Public Health Law Site

Another limitation on a patient’s choice of medical care services is the limited
availability of market information. Although the Federal Trade Commission (FTC)
has eliminated many of the traditional bans on physician advertising, the highly
personal nature of medical care makes it difficult to compare prices and services. It
is also difficult to obtain a personalized bid for medical services. This lack of
information increases the physician’s duty to provide the comparative information
to the patient that is necessary to make an informed choice of treatment.
Even patients with information about the market for medical services are often
financially limited in their ability to choose a physician. These financial limitations
stem from attempts by employers and their insurance companies to limit the cost of
medical care. The primary vehicles for reducing costs are managed care
organizations. It is important to recognize that the more the patient’s choice of
physician is limited, the greater is the physician’s duty to protect the patient’s
interests. If the plan is sufficiently restrictive (as is often true for specialty care in an
MCO), this duty to guard the patient’s interests may extend to the administrators of
the plan and the employer that selects the plan.
Market models also assume that there is time to collect and evaluate market
information, but many serious medical problems arise quickly and must be treated
quickly, limiting the patient’s choice of physicians to whomever is geographically
available. Even in nonemergency cases, the discomfort and risk involved in
shopping for physicians severely limit the patient’s ability to choose a physician.
An equally serious problem is financial limitations. The poor have always been
limited in their choices of medical care providers—a limitation increasingly being
felt by the middle class.
Finally, market models are based on the fungibility of goods: that one product is
much the same as another, allowing them to be interchanged based on price.
Patients do not like to treat physicians as fungible. One traditional definition of a
profession was that it mattered who did the work, not just the price of the job.
Although the medical profession does not like to stress the differing abilities of its
practitioners, no medical care practitioner would be comfortable picking a name
from the phone directory if their family member needed treatment.
2. Duties of a Fiduciary
As a fiduciary, the physician has the legal duty to act on behalf of the patient. There
have always been financial conflicts between physicians and patients, but they were
of a different type than those that arise in the MCO setting. Physicians in private
practice treating patients with traditional indemnification health insurance had an
incentive to overtreat and perform unnecessary procedures. This is reflected in
informed consent litigation. The pre-MCO cases are about whether a patient had
enough information to consent to treatment. The post-MCO cases deal with whether
the patient was informed that the physician had an incentive to deny treatment.
Although unnecessary treatment can be bad for the patient, it is philosophically
different from a denial of treatment when denial of treatment is invisible.
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