based on failure to provide a service, which is necessarily a retrospective
determination, mesh with treatment decisions based on
prospective payment mechanisms? Will expanded MCO liability
actually encourage more defensive medicine by MCOs and their
providers—and how will a capitated system that strives to reduce
unnecessary care deal with this pressure?
Can traditional approaches to liability coexist with organized
cost containment—and if so, how? Some may believe (or hope)
that they cannot. Others may believe that the courts, given the opportunity,
will provide answers to these questions. Or that the “mark
et” will eventually iron out whatever thorny problems consumers
and their attorneys may throw at MCOs. Still others may prefer that
these issues be the province of policy analysts and legislators who
may (some will argue) be better able to shape a coherent, conscious,
and systematic response to what are ultimately policy, as well
as legal, questions.
The answers to these questions will depend on a continued assessment
and debate about how health care is delivered, financed,
and organized. Most importantly, those answers must be based on
a determination of which policy, regulatory, and legal approaches
can best assure and protect patients' interests in a rapidly changing
health care system.
The “corporate practice of medicine doctrine” refers to state laws,
originating in the early 1930s, that “ban unlicensed individuals and
companies from engaging in the practice of medicine, and thus
controlling patient care, by employing licensed professionals such
as doctors or dentists. Its intent was to assure that only persons with
medical licenses could actually deliver medical care and that lay persons
would not influence professional decisions regarding treatment”
(National Health Lawyers Association–American Academy of
Hospital Attorneys, 1997, 5). Most states currently do not have such
statutes; those that have them may interpret their specific applications
differently. The existence of these statutes has prevented (and often
continues to prevent) hospitals and other nonphysician employers
in some states, but not all, from directly employing physicians.
Another question in examining allocation of legal risk and accountability
for managed care plans is whether employers who contract
with health plans to administer benefits to employees can be
Questia, a part of Gale, Cengage Learning. www.questia.com
Book title: Regulating Managed Care: Theory, Practice, and Future Options.
Contributors: Stuart H. Altman - Editor, Uwe E. Reinhardt - Editor, David Shactman - Editor.
Place of publication: San Francisco.
Publication year: 1999.
Page number: 185.
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