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.