Mehlman, Maxwell J.

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Case Western Reserve University School of Law

Health Matrix: The Journal of Law-MedicineVolume 6 | Issue 11996ON PHYSICIAN DECISION MAKING ANDMANAGED CARE -- IntroductionMaxwell J. MehlmanFollow this and additional works at: https://scholarlycommons.law.case.edu/healthmatrixPart of the Health Law and Policy CommonsThis Symposium is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law ScholarlyCommons. It has been accepted for inclusion in Health Matrix: The Journal of Law-Medicine by an authorized administrator of Case Western ReserveUniversity School of Law Scholarly Commons.Recommended CitationMaxwell J. Mehlman, ON PHYSICIAN DECISION MAKING AND MANAGED CARE -- Introduction, 6 Health Matrix 1 (1996)Available at: https://scholarlycommons.law.case.edu/healthmatrix/vol6/iss1/3SYMPOSIUMPHYSICIAN DECISION MAKINGAND MANAGED CAREINTRODUCTIONTIS ISSUE OF HEALTH MATRIX contains seven articlesthat were presented as part of a workshop on June 8-9, 1995,on physician decision-making in managed care settings. Theworkshop was sponsored by the American Medical Association,the P.I.E. Mutual Insurance Company, and the Ohio State Medi-cal Association. Drafts of these papers were presented at theworkshop and were refined for publication following the discus-sion. Discussants included John Blum, Randall Bovbjerg, HarryBrown, Ruth Anna Carlson, Carl Gillombardo, Dan Klais, DavidKern, Frank Lettierri, Rosemary Macedonio, Thomas Murray,Rand Rosenblatt, Mark Rust, Simonetti Samuels, Dinah Siever,Andrew Smith, Stephanie Switzer, Norman Tazlitz, Charles Wel-ler, Sidney Wolfe, and Walter Zelman.In preparing their remarks, each of the authors was asked torespond to a specific aspect of the following thesis statement:Market forces are rapidly transforming the traditional rolesof physicians and patients. Historically, patients and physicianshad control over the medical care that was provided to patients.The physician recommended the course of treatment that thephysician believed was in the best interests of the patient, andthe patient decided whether to accept the recommendation.Tort law buttressed this relationship by requiring the physi-cian to meet minimum standards of knowledge and skill, and byrequiring that the patient give informed consent prior to receiv-ing medical care. The law generally did not take into account asocietal need to expend resources wisely in determining whetherthe physician met the standard of care. The traditional health in-surance indemnity plan accommodated these roles by paying forany care recommended by a physician and received by the pa-tient, provided it was within the scope of coverage of the plan.HEALTH MATRIXDue to a need to control costs, payors have begun to insistthat physicians comply with payor-endorsed controls, protocols,and standards before they will pay for medical care received byone of their beneficiaries. A new element has been introducedinto the decision-making process - whether the course of treat-ment recommended by the physician is the most cost-effectivemedical option available.These changes have thrown the law into confusion. On theone hand, the law seems willing to accept the control lost by thepatient as a choice made as a matter of contract with the payor.On the other hand, the law continues to insist that the physiciancontinue to meet the traditional, patient-centered standard of care.Some courts have resisted efforts by patients and physicians toshift tort responsibility for medical decision-making to the healthplans. Other courts have not. The physician has been asked tofind the appropriate balance between cost control and the needsof the patient. Yet antitrust and other laws have facilitated theability of health plans to obtain economic leverage over physi-cians, making it difficult for physicians to challenge the controlsexerted by health plans over medical decision-making.These issues have not raised serious patient care problemsto date because traditional medical practice built in large marginsof safety for the care of patients, and also facilitated a substantialamount of waste. As a result, it has been possible to reduce costsby reducing the size of the margins of safety and by eliminatingwaste.What will happen when the ability of physicians to reducecosts in this fashion reaches its limit? Will they have the lever-age necessary to resist pressures to achieve further savings bydegrading the quality of patient outcomes? What legal controlsshould be put in place that will enable physicians to draw theline?As the Director of the Law-Medicine Center, I want tothank all of those whose efforts and generosity made this work-shop possible.Maxwell J. Mehlman** Arthur E. Petersilge Professor of Law and Director, The Law-Medicine Center.[Vol. 6:1

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\u3cb\u3eON PHYSICIAN DECISION MAKING AND MANAGED CARE\u3c/b\u3e -- Introduction

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