Protecting Participants in and Beneficiaries of ERISA-Governed Managed Health Care Plans

By Cerminara, Kathy L. | The University of Memphis Law Review, Winter 1999 | Go to article overview

Protecting Participants in and Beneficiaries of ERISA-Governed Managed Health Care Plans


Cerminara, Kathy L., The University of Memphis Law Review


I. INTRODUCTION

The fast-changing health care system has left American patients behind. The complexity of health care decision-making overwhelms them; the cost-conscious nature of managed care puts them on guard; and the provision of most health care coverage through employee benefit plans leaves many of them without an effective remedy for injury during care. The convergence on the American patient of these sociologic, economic, and political developments has left many wondering how the system can be improved. "Consumer protection," meaning patient protection,1 is a popular catch-phrase in the media and politics, and proposed consumer protection measures include laws that would mandate an increase in the amount of information available to patients and laws that would expose managed care organizations to increased potential liability.

This Article will examine the impact of the above-named sociologic, economic, and political factors on patients in the American health care system. In particular, it will explain how the convergence of coverage, care, cost considerations, and federal law has led to both a distrust of the medical profession and inequity between those patients who obtain health care coverage through employment and those who do not. Then it will examine how the law could help eliminate some of the current negative attitudes and inequities. Part V will address one possible solution: consumer access to greater information, achieved either through the guarantees of the Employee Retirement Income Security Act of 1974 (ERISA)2 or through recently proposed federal and state legislation. Part VI will address another possible solution: the imposition, through common law and statutes, of enterprise liability on managed care entities for medical malpractice. It will conclude that today's main consumer protection challenge is not only to increase the amount of information available but also to work with ERISA, amending it if necessary, to eliminate inequities between recipients of health care coverage based solely on the source of that coverage.

II. FACTORS CONTRIBUTING TO THE NEED FOR MORE PATIENT PROTECTION

Patients are very much at the mercy of their physicians and, indeed, at the mercy of all those involved in providing their care. The average patient, who may be vulnerable due to illness, may not understand his or her myriad treatment choices, which are often technologically advanced and scientifically complex. As a result of either hearing horror stories or experiencing poor or indifferent care, the patient may not trust the system to render the best care possible. Moreover, the patient may believe that even the legal system cannot help him or her in assuring the provision of quality care. These considerations mandate that America's health care system provide effective safeguards for all the patients it serves.

A. Complexity of Care

One reason for the current state of affairs is the American love of, and increasing reliance on, scientific and technological advances in medicine. At least one commentator has attributed most of the United States' increase in health care spending to the spread of new technology.3 Whether or not that conclusion is accurate,4 it certainly speaks to the high profile of advanced technology in the American health care system.

Beginning after World War II, the government encouraged expansion of health care facilities with the passage of the Hill-Burton Act.5 Increased medical research and technological developments followed. Between 1948 and 1997, the budget of the National Institutes of Health, which support and conduct medical research, grew from $26 million to $12.4 billion.6 The growth of and government funding for academic medical centers, where much research and development took place, fueled medical discoveries. More was better; science was good; and complying with the standard of care meant providing the newest and the best.7

Factors other than direct government funding also contributed to growth in research and development. …

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