Patients as Consumers - Harvard Law School

MLR 106-4 Edit Format Document Hall Mich L Rev.doc
Illness is “always a place where there’s no company, where nobody can
follow.” 33
Who, so beset, can muster the energy and acuity to buy a
telephone sensibly, much less medical care? How can patients be the
consumer a market needs?
Someone who is ill and seeking help—unlike someone who is
purchasing a pair of socks or a pound of sausages—is often
vulnerable, certainly worried, sometimes uncomfortable, and
frequently frightened. [The term c]ustomer, like the other
obvious choices—clients, consumers, and users—erases
something that lies at the heart of medicine: compassion and
a relationship of trust. 34
2. Shopping for Treatments: Patients in the Hands of Doctors
Not only can illness cripple the patient as seeker of information
and maker of decisions, but the sick must engage with doctors in ways
that unfit them for the market. Patients rely so much on their doctors
that their purchasing choices are so constricted that it is hardly too
much to say that doctors wield something like monopoly power over
patients.
We just described what illness can do to patients. In their
weakness, in their vulnerability, in their fear, patients crave the
solace of doctors, confide themselves to doctors, trust doctors. 35
Patients want a therapeutic relationship with their doctors, a
relationship which produces and prospers on reliance, attachment, and
mutual confidence. This generates what economists call “monopolistic
competition.” 36 It generates a system that is “inherently
33. Flannery O’Connor, The Habit of Being 163 (1979).
34. Raymond Tallis, Commentary: Leave Well Alone, 318 Brit. Med. J.
1756, 1757 (1999); see also Judith H. Hibbard & Edward C. Weeks, Consumerism
in Health Care: Prevalence and Predictors, 25 Med. Care 1019 (1987)
(questioning whether patients are willing to act as consumers); Deborah
Lupton et al., Caveat Emptor or Blissful Ignorance? Patients and the
Consumerist Ethos, 33 Soc. Sci. Med. 559, 567 (1991) (critiquing the attempt
to convert patients to medical consumers as inconsistent with “universal
cultural beliefs in developed capitalist societies” about the desired
relationship to physicians); Wendy K. Mariner, Standards of Care and Standard
Form Contracts: Distinguishing Patient Rights and Consumer Rights in Managed
Care, 15 J. Contemp. Health L. & Pol’y 1 (1998) (outlining differences
between patients and medical consumers).
35. See generally Mark A. Hall, Law, Medicine and Trust, 55 Stan. L.
Rev. 463 (2002).
36. For a review of the economic literature, see Paul J. Feldstein,
Health Care Economics 253–54 (5th ed. 1998). Feldstein notes that “[t]he
physician services market is believed to be characteristic of ‘monopolistic
competition’ both because of the large number of competitors within a market
and because each physician has a somewhat differentiated service, thereby
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