Patients as Consumers - Harvard Law School

MLR 106-4 Edit Format Document Hall Mich L Rev.doc
understand how uninsured services are priced. Patients, doctors,
hospitals, illnesses, and treatments vary so enormously that
generalizing about medical pricing is a fools’ game. But play it we
must. Our generalization: the patient’s illness, the patient’s
relationship with the physician, and the patient’s disadvantages in
selecting physicians combine to make it miserably difficult for
patients to shop skillfully for fair prices.
1. The Effects of Illness on the Patient as Consumer
Being a consumer is harder than it looks, especially when buying
unfamiliar things in unfamiliar situations. Consumers chronically
inform themselves laxly, understand their preferences hazily, and
analyze their choices carelessly. An extensive and expanding law of
consumer protection responds to these frailties with a varied array of
doctrines. 24 For example, it forbids unduly dangerous and even unduly
disadvantageous sales—as usury laws do. It relieves people of some
improvident contracts, if only through a locus poenitentiae. It
requires warnings about many products—truth-in-lending laws being a
prime example (of this popular if bootless technique). It provides
remedies for harms done by defective products.
What, then, of the patient as consumer? All the problems of
buying unknown things in foreign situations afflict the patient. But
in addition, illness can cripple the patient as consumer. How?
Illness disables. Sick bodies rebel, and the ill are defeated.
Illness pains. The faltering body hurts. Sometimes intensely;
sometimes perpetually. Even “a little loss of animal toughness, a
little irritable weakness and descent of the pain-threshold, will
bring the worm at the core of all our usual springs of delight into
full view, and turn us into melancholy metaphysicians.” 25
Illness exhausts. The sick lose the physical strength and
emotional fortitude to keep houses clean, families cared for,
friendships alive, and employers satisfied. They struggle even to rise
from bed, brush their teeth, or make breakfast.
2001); River Park Hosp., Inc. v. BlueCross BlueShield of Tenn., Inc., 173
S.W.3d 43, 60 (Tenn. Ct. App. 2002); H.E. Butt Grocery Co. v. Rencare, Ltd.,
No. 04-03-00190-CV, 2004 WL 199272, at *1 (Tex. Ct. App. Feb. 4, 2004).
24. See generally Am. Bar Ass’n, The American Bar Association Guide
to Consumer Law (1997), available at
http://www.abanet.org/publiced/practical/books/consumer/home.html; Andrew L.
Sandler et al., Consumer Financial Services (2006); Jonathan Sheldon &
Carolyn L. Carter, Unfair and Deceptive Acts and Practices (6th ed. 2004).
25. William James, The Varieties of Religious Experience 140 (rev.
reprint 1902).
U of M Law School Publications Center, November 2, 2007, 12:51 PM
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