Stop! In the name of love

California Law Review, 1987

Rapid increases in health care costs have prompted business and government to impose cost containment measures that, in turn, pressure physicians to provide less care, particularly for the poor. Current malpractice law, however, requires the physician to provide ordinary and reasonable care, regardless of resources. Where resource constraints prevent the physician from delivering customary levels of care, a jurisprudential problem arises: if the law does not allow a physician to invoke cost constraints as a defense in a malpractice case, physicians may unfairly be held liable for inadequacies beyond their control, if the law does allow such a defense, adjusting the standard of care according to the available resources, poor patients may unfairly be denied legal remedies in malpractice actions. In this Article, Professor Morreim explores this dilemma and finds the traditional rules and concepts of malpractice law inadequate to resolve it. Neither the methods for establishing standards of care (the locality rule, medical custom, and accepted practice) nor the legal principles of informed consent and equal protection can resolve the dilemma. Professor Morreim also considers several other proposed solutions: retaining the unitary standard of care; sharing liability with third parties; peer review with minimum standards; private contracting and exculpatory clauses; and resource-based reference groups. She concludes that these schemes are also inadequate, and recommends that the presumption of a unitary standard of care be rebuttable by appropriate evidence of economic constraints. [Vol. 75:1719 reader. During the past two decades, the cost of health care in the United States has risen astronomically. Per capita health care costs have trebled since 1950,2 rising from 5% to nearly 11% of the GNP between 1960 and 1983.1 By the end of 1987, health care spending was predicted to reach over half a trillion dollars, amounting to 11.4% of the GNP. 4 This escalation can be attributed partly to price inflation, the growing and aging of the population, the emergence of costly new technologies, and the rapid growth of hospital facilities.' Equally important, reimbursement policies of third party payers have encouraged maximal use of those technologies and facilities. 6 Retrospective payment of a fee for each service performed has meant that the more services were performed for each patient, the more revenues would be received. Thus insulated from the economic costs of their decisions and inspired by the societal value that each patient should receive the best health care available, physicians and other providers have had powerful incentives to deliver all indicated care, and virtually no incentives to hold back. 7 As a result, the federal Medicare program for the elderly now faces bankruptcy by the mid-1990's, 8 while state Medicaid programs for the poor are consuming excessive shares of limited state funds. 9 Corpora

Saint Louis University Law Journal, 1994

Vanderbilt Law Review, 1981

Annals of Medicine and Surgery, 2013

Health Affairs, 2003

Revista Estado, Gobierno y Gestión Pública, 2012

2005

Medicare must decide whether to pay for extremely expensive new medical advances. This article shows that Medicare does not have the legal power to consider cost when making these decisions, but does have a conflicting moral obligation to preserve scarce financial resources. Here, the legal, historical and political contexts that have led to this conflict are described and a proposal is made for fixing this by having Congress create independent boards to assess new technologies with an explicit mandate to consider cost.

2010

The United States has the most expensive health care system in the world, yet its system produces inferior outcomes relative to those in other countries. This brief examines the health care reform debate and argues that the basic structure of the health care system is unlikely to change, because “reform” measures actually promote the status quo. The authors believe that the fundamental problem facing the U.S. health care system is the unhealthy lifestyle of many Americans. They prefer to see a reduced role for private insurers and an increased role for government funding, along with greater public discussion of environmental and lifestyle factors. A Medicare buy-in (“public option”) for people under 65 would provide more cost control (by competing with private insurance), help to solve the problem of treatment denial based on preexisting conditions, expand the risk pool of patients, and enhance the global competitiveness of U.S. corporations—thus bringing the U.S. health care system...

The Milbank Memorial Fund Quarterly. Health and Society, 1973

Current interest in the development of a national health insurance in the United States invites a clear determination of objectives through identification of the problems to be resolved by a new program and an understanding of how these problems came about and why. Historical review of the back ground and the evolution of the current medical care scene provides per spective. Critical review may also contribute to better design of what should be intended by new undertakings and to utilization of lessons from the past in order that the specifications should minimize mistakes for the future. Here, therefore, is a review of major events and the lessons they taught (or should have taught), from the Final Report of the Committee on the Costs of Medical Care (1932) to Medicare and Medicaid (1965) and their early operational years through 1972. It is a personal review but by an author who was privileged to be a participant in many of the studies and legislative campaigns as well as a continuous observer of the evolving scene. This historical review was planned as prologue to a course of action. The author therefore comments on various current legislative proposals and indicates why he and others advocate the Health Security Bill-principally because its scope embraces not only the financing of comprehensive personal health services for the whole population but, equally and simultaneously, the improvement of the medical care system as well. This review and the presentation of a rationale for action are timely, since diverse and conflicting proposals are now engaging national attention and are being debated in the Congress.