|The health care system is undergoing drastic changes. One major change
is in the relationships among physicians, patients, and third-party payers.
Third- party payers are finding an increasing amount of their profit going
to health care costs. As health care costs increase, third-party payers
are seeking ways to introduce cost containment into the equation.
One way that managed care organizations effect cost containment is by shifting
the risk of overutilization to the physician, thus inducing the physician
to order fewer medical services and to refuse to treat high-risk patients.
The Hippocratic oath requires that the physician do no harm.(426)
Patients expect physicians to act in the patients' best interest.(427)
Third-party payers (particularly managed care products) now contract with
physicians to act as gatekeepers to health care services, to avoid providing
services that are minimally beneficial, and to protect the wealth of the
third- party payers.
This new relationship between third-party payers and physicians introduces
a new and different risk into the health care delivery system: A patient
may be injured because a physician failed to provide services because of
the financial pressures of third-party payers. Under this arrangement,
third-party payers, as the new rule makers, are in the best position to
promote safety and prevent injury. Thus, it is important that as the health
care system changes, new systems of compensation or means of risk placement
be developed based on the new relationships between physician, patient,
and third-party payer.
Traditionally, third-party payers have not been held liable for the
actions of health care providers. That standard was developed because no
contractual relationship existed between the third-party payers and the
health care providers. Now, third-party payers have contractual relationships
with health care providers that require the physician to act as an agent
for the third- party payer. These new contractual relationships obligate
providers to provide care within the guidelines of the managed care products.
Thus, third-party payers, not providers, set the standard of care. Yet,
when patients are injured because of the standard of care, the third-party
payers are insulated from liability. Thus, third-party payers unfairly
avoid paying for injuries that their managed care activities cause, and
patients are left with uncompensated injuries.
The legal system must apportion liability based on the risk that an
actor has created. Managed care actors have introduced risks that
individuals will be injured as providers are pressured to deny access to
beneficial services. If cost containment is important to society, the injuries
that result from lower health care costs should be spread throughout society.
The injured patient should not be required to bear the cost alone, nor
should the provider. The appropriate party to assume the risk is the entity
that created the risk-the third-party payer. Thus, a medical injury compensation
fund is a fair quid pro quo for cost containment measures that run the
risk of increasing uncompensated medical injuries. It assures compensation
for those injured, while spreading the cost to those generating the risk.
Thus, a medical injury compensation fund can solve the problem of managed
care cost containment injuries