Academic journal article The Hastings Center Report

Cost Constraints as a Malpractice Defense

Academic journal article The Hastings Center Report

Cost Constraints as a Malpractice Defense

Article excerpt

Cost Constraints as a Malpractice Defense

There's another revolution coming. The health care industry already is in the midst of an economic revolution that promises to reshape not only medical resources, but the healing relationships that depend on them. [1] The coming revolution is jurisprudential and, while we do not yet know just what directions it will take, its impact on health care is certain to be enormous. It will consist in the legal system's response to the new economics of health care.

This second revolution is actually under way. Since the mid-1970s, every state has instituted tort reforms in an attempt to curb the high cost of malpractice litigation, which contributes to the high cost of health care. [2] Other important jurisprudential questions, however, remain largely unexamined.

In particular, how should health care's economic revolution affect the legal standard of care that physicians owe their patients? The standard of care is the first of four elements the patient-plaintiff must prove against the physician-defendant in malpractice litigation: (1) the physician owed a duty to the patient to ensure that his medical are measured up to certain standards of quality; (2) and physicians's care fell below this standard; (3) the patient suffered an injury; and (4) the breach of duty caused the injury. Should a physician ever be excused for providing substandard care if he can show that his actions were seriously constrained by economic limitations? For example, physicians in crowded inner-city public hospitals may be economically compelled to discharge their patients earlier and to use costly interventions more sparingly than their better-funded colleagues. [3] Do these constraints provide sufficient grounds for exonerating such physicians of their responsibilities to meet the standard of care?

Currently, the law answers this question with a resounding "no." Within any given locality, the standard of care may not be compromised simply because the patient cannot afford to pay. A physician may refuse to accept a patient, of course, for any reason including the patient's indigence. [4] But once the patient is accepted, "whether the patient be a pauper or a millionaire, whether he be treated gratuitously or for reward, the physician owes him precisely the same measure of duty, and the same degree of skill and care." [5] The physician may not perform an inadequate diagnostic workup out of cost considerations, [6] for example, nor may he abandon the patient at a crucial juncture because the patient cannot pay his fees. [7] This does not mean that physicians and hospitals must provide the highest possible standard of care. Rather, the legal requirement is that all patients are entitled to receive basic "ordinary and reasonable" care--a unitary standard not reduced by an inability to pay. [8]

In the past, this requirement has not been difficult to satisfy. Until fairly recently physicians had relatively few interventions, costly or otherwise, to offer patients. As expensive technologies emerged, virtually unlimited third-party reimbursement encouraged physicians to provide their patients will all services that promised potential benefit. Though not all citizens had access to the health care system, those who did usually could receive the full range of available benefits.

However, this situation is now changing rapidly. Dramatic escalations of health care costs over the past twenty years have threatened the viability of both public and private health care programs, prompting vigorous efforts by both government and corporations to contain their expenditures. [9] As a result, the financial structure of health care delivery is being thoroughly overhauled, primarily via such incentive changes as prospective payment. For the first time, hospitals, physicians, and other health care providers are being pressured to do less for patients, to perform more procedures on an outpatient basis, and to discharge hospitalized patients earlier. …

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