It's hard to know whether doctors hate managed care more because it represents the loss of their unfettered practice of medicine or because of what it has done to their incomes.
Whatever the reason, some in the medical community were disappointed with last month's U.S. Supreme Court ruling in Pegram vs. Herdrich, shielding HMOs from some lawsuits by patients in federal courts. In closing the doors to a full-scale legal assault against managed care, however, the high court cut through a number of emotional minefields and came up with a well-balanced finding.
Writing for the court in a unanimous ruling, Judge David Souter said that a patient could not sue the HMO for violating a fiduciary duty to act "solely in the interest of the particpants and beneficiaries of the plan under ERISA. For the court to rule otherwise would be acting contrary to congressional policy, which established HMOs to help reduce costs."
In his opinion, Souter recognized that Congress encouraged creation of managed care because health costs were out of control and employers weren't willing to pay the freight anymore. In effect, Souter has acknowledged that HMOs could not survive without some incentives to physicians to limit unnecessary and wasteful procedures.
But while Souter's opinion recognized that rationing is part of medicine today, he also noted that health plans have an obligation to disclose information about appropriateness of care decisions.
Ironically, the "victory" for HMOs may end up protecting the many physicians working in managed care today. Many doctors overlook the fact that a full-scale legal assault against managed care companies would have dragged many of them into a new maelstrom of litigation over coverage decisions, exposing doctors to more legal liability.
Patient protections already exist in state courts and in ethical codes that require physicians to put the well-being of patients first. The Illinois Supreme Court ruled in May that health insurance plans can be held responsible for actions by managed care physicians who were found to be negligent.
So, as Yogi Berra might say, the fat lady hasn't sung yet in the managed care opera.
Some believe the high court ruling has ratcheted up the pressure on Congress to act on a patient bill of rights that allows patients to sue their HMOs for care denials. But with an election coming up, it's clear that lawmakers are attempting to make political hay and avoid touching this issue with a 10-foot pole. When the matter finally comes to a vote, probably next year, we hope policymakers look to the creation of arbitration panels that provide consumers with speedy and effective complaint resolution procedures.
Meanwhile, the managed care debate will largely play out in the state courts, where numerous racketeering and class action suits have been filed. With trial lawyers poised to challenge each plan's failure to make truthful disclosures about managed care practices, physicians and health plans must be prepared to show that they are putting patients before profits.