Academic journal article American Journal of Law & Medicine

Reflective Choice in Health Care: Using Information Technology to Present Allocation Options

Academic journal article American Journal of Law & Medicine

Reflective Choice in Health Care: Using Information Technology to Present Allocation Options

Article excerpt


Over the last few decades, the U.S. health care system has been the beneficiary of tremendous growth in the power and sheer quantity of useful medical technology. As a consequence, our society has, for some time, had to make costbenefit tradeoffs in health care.2 The alternative-funding all health care interventions that would produce some health benefit for some patient-is not feasible, because it would effectively consume all of our resources.3

Managed care plans,4 which have emerged as the market's preferred mechanism for making cost-benefit tradeoffs,5 frequently make such tradeoffs by giving physicians financial incentives of various sorts to reduce their spending on medical testing, hospitalization and referral.6 Alternatively, plans may give third-party utilization reviewers the authority to deny approval for treatments proposed by plan physicians.7 Yet managed care organizations (MCOs) are typically under no legal obligation, common law or statutory, to disclose to prospective plan enrollees information regarding physician financial incentives or utilization review guidelines.8 Indeed, the promotional materials issued by these organizations often promote the misconception that no cost-benefit tradeoffs will be made.9 Managed care plans impose on enrollees spending tradeoffs that may be quite different from those that the enrollees would have chosen at the time of enrollment, had they been given an explicit, open choice regarding tradeoffs.10

As an alternative to this type of sub rosa rationing,11 a number of commentators argue in favor of systems that allow individual consumers to make choices among health plans with explicit rationing schemes.12 However, one important argument that frequently has been advanced by commentators opposed to consumer choiceoriented approaches is that these approaches falsely assume that consumers can make considered, autonomy-enhancing choices about their health care priorities.13 This Article examines the issue of consumer choice with an eye toward determining whether and how information technology could assist individuals in making truly reflective health care rationing choices. The Article argues that information technology could squarely address the concerns voiced by opponents of choice by giving consumers a genuine understanding of how different allocation mechanisms worked. Information technology could also facilitate communication among patients who have chosen a particular allocation mechanism.14

This Article divides into three parts. Part II briefly surveys various consumer choice-oriented approaches to health care rationing. Part III addresses the objection that choice in the health care arena is not desirable, because consumers cannot make autonomy-enhancing, reflective choices in this arena. Part IV discusses the range of mechanisms by which information technology could facilitate reflective choice.


A number of commentators have suggested approaches toward rationing that focus on consumer choice. Market theorists have developed one set of choice based literature. Market-oriented commentators view choice as necessary because individuals, particularly individuals of different income levels, will have different preferences regarding how they want to trade off health care spending against other spending priorities. For example, although wealthier consumers may prefer a "Cadillac" plan, the less wealthy might prefer a "Chevrolet" plan, which leaves them money to spend on other activities.l5 Market-oriented commentators, therefore, suggest that managed care contracts make explicit their level of rationing, in other words, the extent to which cost-benefit tradeoffs will be made.

For example, Ira Ellman and Mark Hall propose a scheme under which the contractual obligations of various insurance plans are defined in terms of budgets for particular pools of patients. …

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