¹ See Berg, Paula, Toward a First Amendment Theory of Doctor-Patient Discourse and the Right to Receive Unbiased Medical Advice, 74 B.U. L. REV. 201, 201 (1994)Google Scholar (quoting Kane, Penny, Family Planning in China, in HEALTH CARE AND TRADITIONAL MEDICINE IN CHINA 1800-1982, at 426, 431 (Hillier, Sheila M. & Jewell, J.A. eds., 1983)).Google Scholar

² See id. at 202 (quoting FIELD, MARK G., DOCTOR AND PATIENT IN SOVIET RUSSIA 168-69 (1957)).Google Scholar

³ See id. (quoting Rothman, David J. & Rothman, Sheila M, How AIDS Came to Romania, in N.Y. REV. BOOKS 5 (1990)).Google Scholar

⁴ See 42 C.F.R. § 59.8 (1995) (suspended 1993). President Clinton issued an executive order directing the secretary of Health and Human Services to suspend this rule. See President’s Memorandum for the Secretary of Health and Human Services on the Title X “Gag Rule,” 58 Fed. Reg. 7455 (1993). The order was carried out on February 5, 1993. See Standards of Compliance for Abortion-Related Services in Family Planning Service Projects, 58 Fed. Reg. 7462 (1993).

⁵ See CAL. WELF. & INST. CODE § 14500.5, 14509(c) & (d) (West 1991); LA. REV. STAT. ANN. § 46:447.1 (West 1996); S.C. CODE ANN. § 43-5-24 (Law. Co-op. 1995); UTAH CODE ANN. § 76-7- 322 (1987). Restrictions on doctor-patient discussions in the private context have not withstood judicial scrutiny. See, e.g., Griswold v. Connecticut, 381 U.S. 479, 485 (1965) (holding that Connecticut’s statute prohibiting counseling on contraception violated the constitutional right to privacy). Most other private restrictions have been repealed. For example, Illinois enacted, but then repealed, a law requiring physicians to distribute a statement to all patients seeking an abortion, which read: “The State of Illinois wants you to know that in its view the child you are carrying is a living human being whose life should be preserved. Illinois strongly encourages you not to have an abortion but to go through to childbirth.” Berg, supra note 1, at 203 (citing Pub. Act 81-1078, 3.5(2), 1979 Ill. Laws 4108, 4115 (repealed 1984)).

⁶ The term managed care has an imprecise meaning. Typically, it refers to the exertion of control by insurers and other health care payors over who provides medical care and how. See Greely, Henry, The Regulation of Private Health Insurance, in 1 HEALTH CARE CORPORATE LAW (FORMATION AND REGULATION) 8-11 (Hall, Mark A. ed., 1993).Google Scholar Control over how medical care is provided is exerted by “second-guessing” the decisions of doctors through utilization review. See id.

The American Medical Association (AMA) defines managed care as “the control of access to and limitation on physician and patient utilization of services by public or private payers or their agents through the use of prior and concurrent review for approval of or referral to service or site of service, and financial incentives or penalties.” Iglehart, John K., Health Policy Report: The American Health Care System, 326 NEW ENG. J. MED. 962, 965 (1992)Google Scholar [hereinafter Iglehart, Health Policy Report].

A typical MCO is the health maintenance organization (HMO). “[A]n HMO agrees to provide certain defined health services to its members in return for a fixed monthly premium.” Greely, supra, at 8-7 (emphasis in original). Although HMOs originally focused on preventive care, they now typically stress their ability to control costs. See id. at 8-8.

In this Article, MCOs refers to organizations in which the physicians providing direct care are distinct from those providing managerial/utilization review oversight. For example, MCOs as used here does not include small physician groups in which the practicing physicians review their own decisions for cost-efficiency.

⁷ See infra Part III and text accompanying notes 12-17.

⁸ See Larson, Erik, The Soul of an HMO, TIME, Jan. 22, 1996, at 45, 45Google ScholarPubMed (“Prodded by large companies fed up with rising medical costs, the new medicine’s entrepreneurs have turned health care into a corporate battlefield increasingly governed by the promise of stock market wealth, incentives that reward minimal care and a brand of aggressive competition alien to front-line doctors for whom dressing for success still means wearing khakis and a lab coat.”); see also Greely, supra note 6, at 8-11 (“Driven by the need to lower costs, traditional insurers and self-insuring employers have tried to become more like HMOs by increasing their involvement in who provides medical care and how.”); Birenbaum, Arnold, Managed Care: Will It Be For Everyone?, USA TODAY MAG., July 1996, at 46, 46Google Scholar (stating that “employers . . . find managed care plans attractive because they believe in their capacity to control medical expenses”).

⁹ BARBARA H. FRANKLIN ET AL., U.S. DEP’T OF COMMERCE, BUSINESS FORECASTS FOR 350 INDUSTRIES: U.S. INDUSTRIAL OUTLOOK 1993, at 42-1 (1993).

¹⁰ See Pear, Robert, Health Costs are Growing More Slowly, Report Says, N.Y. TIMES, May 28, 1996, at A13.Google Scholar

¹¹ The increases are even more dramatic if a larger perspective is taken. Total expenditures equaled $27.1 billion in 1960, $74.4 billion in 1970, $250.1 billion in 1980 and $422.6 billion in 1985. See Iglehart, Health Policy Report, supra note 6, at 965 tbl.1.

The percentage of the gross domestic product (GDP) spent on health care has similarly risen. While health care costs accounted for 13.7% of the GDP in 1994, see Pear, supra note 10, at A13, it accounted for only 7% in 1970 and 12% in 1990, see Iglehart, Health Policy Report, supra note 6, at 964.

¹² See, e.g., Larson, supra note 8, at 47 (citing a recent survey showing that from 1994 to 1995 HMO premiums actually declined); Pear, supra note 10, at A13 (reporting that the Health Care Financing Administration attributed “the deceleration of health care spending in 1994 to the greater use of managed care” and that the “cost of employee health benefits in private industry has leveled off”).

¹³ See, e.g., Managed Care Cuts Hospital Costs, Reduces Stays, EMPLOYEE BENEFIT PLAN REV., July 1996, at 56, 56 (reporting that “[i]n a national study of 11.7 million patients at 3,700 acute care hospitals, hospitals in cities with high levels of managed care enrollment reported lowered costs, reduced lengths of stay, and decreased mortality rates”); Fuchs, Victor R., Perspective on Medicare: Are We Asking The Right Questions; We Need to Decide How Much Care to Give to the Elderly, Who Will Pay and How the Care is to be Delivered, L.A. TIMES, July 1, 1996Google Scholar, at B5 (reporting that managed care has slowed the growth of expenditures for private health care insurers).

¹⁴ See Birenbaum, supra note 8, at 46 (reporting that “[f]ifty million Americans now belong to health maintenance organizations (HMOs), a result of employers and employees seeking to lower the cost of their health care”).

¹⁵ See Iglehart, Health Policy Report, supra note 6, at 965.

¹⁶ See infra note 46.

¹⁷ See Contract Issues and Quality Standards for Managed Care: Hearings on H.R. 2976 Before the Subcomm. on Health and the Env’t of the House Comm. on Commerce, 104th Cong. (May 30, 1996), available in 1996 WL 289939 [hereinafter McAfee Testimony] (statement of the AMA, presented by Robert E. McAfee, M.D., Past President of American Medical Association) (reporting that “an increasing number of Medicare beneficiaries have begun to join managed care plans”); Iglehart, John, Health Policy Report: The American Health Care System: Medicaid, 328 NEW ENG. J. MED. 896, 900 (1993).CrossRefGoogle Scholar “Increasingly, states have declared their intention to enroll Medicaid beneficiaries in managed-care organizations as the best way to save money and improve the quality of care.” Id. at 900. For example, in California, half of the state’s Medicaid population was expected to be enrolled in managed care plans by 1995, and in Arizona, the entire Medicaid population is provided care by HMOs. See id.

¹⁸ See Greely, supra note 6, at 8-8 (stating that HMOs have stressed their greater ability to control costs); Birenbaum, supra note 8, at 46 (asserting that HMOs are an attractive form of cost- effective health care for both employers and employees); cf. Iglehart, Health Policy Report, supra note 6, at 965 (restating the AMA’s definition of managed care, which emphasizes “the control of access to and limitation on physician and patient utilization of services”).

¹⁹ See, e.g., Greely, supra note 6, at 8-11 to 8-14. In the marketplace, the three pure forms of private health insurance—HMOs, employer self-insurance and third-party reimbursement—co-exist “with a more confusing set of hybrids, combining different aspects of each of the main systems.” Id. at 8-11. These hybrids, such as the preferred provider organization, are typically designed to mimic HMOs in order to enjoy the attendant cost reductions. See id. Further, although HMOs are the typical form of managed care, there are at least four different HMO models:

Hillman, Alan L., Financial Incentives for Physicians in HMOs: Is There a Conflict of Interest?, 317 NEW ENG. J. MED. 1743, 1744 (1987)CrossRefGoogle Scholar [hereinafter Hillman, Conflict of Interest]. The type of payment structure used in these models may vary. See id.

²⁰ See Greely, supra note 6, at 8-7.

²¹ See Hillman, Conflict of Interest, supra note 19, at 1743.

²² See generally Birenbaum, supra note 8, at 46; Council on Ethical & Judicial Affairs, American Med. Ass’n, Ethical Issues in Managed Care, 273 JAMA 330 (1995) (reporting that plans cut costs by restricting enrollees to physicians who agree to lower reimbursements).

²³ See, e.g., Guglielmo, Wayne, Business Has a Mixed Message for Doctors, 73 MED. ECON. 165, 165Google Scholar (stating that business leaders adopt cost-containment strategies to keep health costs from rising); Hillman, Conflict of Interest, supra note 19, at 1743 (recognizing that because HMOs, the most common form of MCO, guarantee a comprehensive range of services for a fixed price, their economic viability depends on their ability to keep the use of health care resources within budget).

²⁴ See Forrest, Christopher B. & Starfield, Barbara, The Effect of First-Contact Care With Primary Care Clinicians on Ambulatory Health Care Expenditures, 43 J. FAM. PRAC. 40, 44 (1996)Google ScholarPubMed (reporting that when the patient’s first-contact was with a primary care physician, it resulted in reductions in costs of ambulatory care of over 50%).

²⁵ See, e.g., MARIANNE F. FAZEN, MANAGED CARE DESK REFERENCE: THE COMPLETE GUIDE TO TERMINOLOGY AND RESOURCES 108 (1994). A gatekeeper is a

Id.; see also Birenbaum, supra note 8, at 47 (“HMOs usually control costs through primary-care providers acting as ‘gatekeepers’ to all other health services.”).

²⁶ See, e.g., FAZEN, supra note 25, at 108. See generally Council on Ethical & Judicial Affairs, supra note 22 (describing one MCO method of controlling costs as “denying access to the services of medical specialists until the subscriber has obtained the approval of a primary care physician”).

²⁷ See, e.g., Council on Ethical & Judicial Affairs, supra note 22, at 330 (stating that MCOs use several techniques to constrain participating physicians’ practices, including restricting the physicians’ ability to perform procedures or diagnostic tests).

²⁸ See, e.g., Managed Care Ethics: Hearings on H.R. 2976 Before the Health and Env’t Subcomm. of the House Comm. on Commerce, 104th Cong. (May 30, 1996), available in 1996 WL 289951 (statement of Linda Peeno, M.D., former medical director of three MCOs, who currently works in the field of medical and health care ethics) (reporting that “[t]he increasing power over physician decision making should concern us the most”); FAZEN, supra note 25, at 108; Kotulak, Ronald & Gorner, Peter, Medicine Aches with HMO Fever, CHI. TRIB., Apr. 14, 1996, at C1Google Scholar, available in 1996 WL 2661839 (observing that under managed care, doctors “have less say [than they used to have] in how medicine is practiced”).

²⁹ See Health CARE CONSULTANTS OF AMERICA, INC., PHYSICIANS GUIDE TO MANAGED CARE: A COMPREHENSIVE GUIDE TO CAPITATION, DISCOUNTED FEE-FOR-SERVICE & INTEGRATED DELIVERY SYSTEMS 141 (1996).

³⁰ Id. at 141; see also FAZEN, supra note 25, at 274 (defining utilization review (UR) as a “technique whereby trained health care professionals evaluate the appropriateness, quality, and medical necessity of services provided to plan members”).

³¹ See, e.g., FAZEN, supra note 25, at 274; Council on Ethical & Judicial Affairs, supra note 22, at 330.

³² See FAZEN, supra note 25, at 274 (stating that UR includes prospective review, in which a proposed schedule of treatment that specifies how care will be provided is evaluated); see also HEALTH CARE CONSULTANTS OF AMERICA, INC., supra note 29, at 141.

³³ See infra Part III.A.1.

³⁴ See id.

³⁵ See Council on Ethical & Judicial Affairs, supra note 22, at 333-34 (stating that MCOs use financial incentives to encourage cost-conscious decisions by physicians).

³⁶ See AYNAH ASKANAS, CALIFORNIA MED. ASS’N, PHYSICIAN’S MANAGED CARE MANUAL 12 (1995) (stating that HMOs and IPAs frequently compensate primary care physicians with capitation payments and that this form of payment is becoming increasingly popular for specialists’ compensation); Bass, Alison, Focusing on Managed Care: Doctors’ Pay Often Tied to Controlling Costs, Study Finds, BOSTON GLOBE, Dec. 21, 1995, at 32.Google Scholar

³⁷ See id.

³⁸ See id. (citing a study commissioned by the Physician Payment Review Commission appointed by Congress); Council on Ethical & Judicial Affairs, supra note 22, at 331.

Id.

³⁹ See, e.g., Edgahl, Richard H. & Taft, Cynthia H., Financial Incentives to Physicians, 315 NEW ENG. J. MED. 59 (1986)Google Scholar; Enthoven, Alain C., Shattuck Lecture—Cutting Cost Without Cutting the Quality of Care, 298 NEW ENG. J. MED. 1229 (1978)CrossRefGoogle ScholarPubMed; Hillman, Alan L. et al., How Do Financial Incentives Affect Physicians’ Clinical Decisions and the Financial Performance of Health Maintenance Organizations?, 321 NEW ENG. J. MED. 86 (1989)CrossRefGoogle ScholarPubMed [hereinafter Hillman et al., Clinical Decisions]. In fact, the demise of at least one HMO, SAFECO United Healthcare, has been attributed to the lack of adequate financial incentives for physicians. See Hillman, Conflict of Interest, supra note 19, at 1743.

⁴⁰ See, e.g., ASKANAS, supra note 35, at 12.

⁴¹ See Kotulak & Gorner, supra note 28, at C1 (“Under capitation, a cap is set on how much money a doctor will get for treating a certain number of patients. If the doctor comes in under the cap—by providing less care—he gets to pocket the difference.”); see also FAZEN, supra note 25, at 36 (defining capitation as a “type of risk sharing reimbursement method whereby providers in a plan’s network receive fixed periodic payments (usually monthly) for health services rendered to plan members”). Also, MCOs “may set aside a percentage of the total annual cap payment in a risk pool to safeguard against unexpected costs. At the end of the year, any money left in the risk pool is returned to the providers.” Id.

⁴² See Kotulak & Gorner, supra note 28, at C1 (noting that as a result of capitation “doctors get paid more by doing less”).

⁴³ See id. (stating that according to a leading researcher, Dr. Alvin Tarlov of the Harvard School of Public Health, “capitation programs are intended to return the decision-making process to physicians, but doctors now have to accept financial responsibility, which places their incomes at risk”); see also ASKANAS, supra note 35, at 12 (explaining that under capitation arrangements, physicians are paid a fixed amount for each patient assigned to them, and payments are not increased when an assigned patient becomes seriously ill and requires expensive treatment). Capitation places the financial risk of a patient’s health on the responsible physician because overutilization will eventually be reflected in the income of the physician. See id.

⁴⁴ See McAfee Testimony, supra note 17 (stating that the AMA believes that gag clauses present an inherent ethical conflict of interest that strikes at the heart of the patient-physician relationship); Hillman, Conflict of Interest, supra note 19, at 1747 (arguing that an unacceptable conflict of interest exists when financial risks to physicians are particularly high, such as when the risks are spread over a small pool of physicians, the rates of withholding are excessive, penalties beyond withheld amounts exist and outpatient lab tests are paid from a primary care capitation fund).

Historically, physicians have been compensated on a fee-for-service (FFS) basis, creating an incentive to overtreat to boost earnings. See FURROW, BARRY R. ET AL., HEALTH LAW: CASES, MATERIALS AND PROBLEMS 665 (1991).Google Scholar However, until recently, FFS plans have not been the source of controversy because physicians’ interest in treating patients generally matched patients’ desire to be treated. See Hillman, Conflict of Interest, supra note 19, at 1744.

⁴⁵ See Patient Right to Know Act of 1996: Hearings on H.R. 2976 Before the Subcomm. on Health of the House Comm. on Ways and Means, 104th Cong. (1996), available in 1996 WL 10830078 [hereinafter Nelson Testimony] (statement of the American Medical Association by John C. Nelson, M.D., Deputy Director, Utah Dept. of Health) (stating in reference to the Patient’s Right to Know Act of 1996 that “studies, press accounts, anecdotal evidence, and a growing wave of public opinion . . . have begun to point out that needed care may be denied because of the financial pressures put on physicians and other health care providers to reduce costs to the detriment of their patients”); Bobinski, Mary Anne, Autonomy and Privacy: Protecting Patients from Their Physicians, 55 U. PITT. L. REV. 291, 308-09 (1994)Google ScholarPubMed (stating that reports of “diminished quality of care in HMOs remain common” and that available data suggests that incentives to deny care have been shown to correlate with poor patient outcomes); Kotulak & Gorner, supra note 28, at C1.

⁴⁶ See Hillman, Conflict of Interest, supra note 19, at 1743-44 (stating that, due to a concern over the quality of care rendered to managed care patients, “Congress included a provision in the budget law for fiscal year 1987 to prohibit methods of paying physicians in HMOs participating in Medicare that encourage them to reduce the use of services”).

⁴⁷ See Omnibus Budget Reconciliation Act of 1990 § 4204(a)(i), Pub. L. No. 101-508, 104 Stat. 1388 (1990) (prohibiting plans from knowingly making payments “directly or indirectly under the plan to a physician or physician group as an inducement to reduce or limit medically necessary services”); Health Maintenance Organizations, Competitive Medical Plans, and Health Care Prepayment Plans, 42 C.F.R. §§ 417.470-500 (1995); Contracts, id. §§ 434.50-67; Civil Money Penalties, Assessments and Exclusions, id. §§ 1003.100—.135. The regulations similarly prohibit physicians from knowingly accepting such payments. See id. § 1003.102(c)(1)(ii)(A).

⁴⁸ Consider, for instance, the emphasis in current political debates on reducing the deficit as well as generally limiting government. In this political climate, Medicare and Medicaid are particularly vulnerable to funding cuts.

⁴⁹ See, e.g., ASKANAS, supra note 35, at 12 (reporting that capitation is frequently used to compensate primary care physicians and increasingly used to compensate specialists).

⁵⁰ Woolhandler, Steffie & Himmelstein, David U., Extreme Risk—The New Corporate Proposition for Physicians, 333 NEW ENG. J. MED. 1706, 1707 (1995).CrossRefGoogle ScholarPubMed

⁵¹ Note that many MCOs spend less on delivery of health care services than expected. See Harrop, Froma, Health Care Conspiracy Ought to Make You Sick, SACRAMENTO BEE, Jan. 22 , 1996, at B7.Google Scholar Many MCOs spend less than 75% of revenues on health care, while Medicare spends 98% of its resources on providing care. See id. This is likely another result of the move to for-profit medicine. Now, MCOs must spend significant sums of money on advertising and executive compensation. See Larson, supra note 8, at 46. One MCO, Health Net, on its merger with another MCO, paid its CEO a severance package totaling $18.1 million, equal to the monthly premiums of 134,000 plan members. See id. at 52.

⁵² See Larson, supra note 8, at 46.

⁵³ See Woolhandler & Himmelstein, supra note 50, at 1706.

⁵⁴ See, e.g., Johnson, Richard, HCMR Perspective: The Economic Era of Health Care, HEALTH CARE MGMT. REV., Fall 1994, at 64, 66Google ScholarPubMed (writing that “because economics has become the foremost priority, both government and third-party payors are focusing their efforts on restricting payments to providers”).

⁵⁵ Cf. McAfee Testimony, supra note 17 (declaring that gag clauses “are designed and implemented with the intent to control physician behavior and to limit a patient’s access to the full range of information that is needed for them [sic] to make informed decisions and provide informed consent about the proper course of their [sic] medical treatment”).

⁵⁶ See Kotulak & Gorner, supra note 28, at C1 (observing that under managed care, doctors “have less say in how medicine is practiced”).

⁵⁷ This trend toward greater patient involvement in their own care was part of a societal movement in this direction. See, e.g., Shragg, Thomas A. M.D., Insurers Demand Silence on Myths of Managed Care, SACRAMENTO BEE, June 12 , 1995, at B7.Google Scholar

⁵⁸ 464 F.2d 772, 780 (D.C. Cir. 1972).

⁵⁹ See Priliaman, Hunter A., A Physician’s Duty to Inform of Newly Developed Therapy, 6 J. CONTEMP. HEALTH L. & POL’Y 43, 51 (1990).Google Scholar

⁶⁰ As stated by the AMA’s Council on Ethical & Judicial Affairs, “managed care can compromise the quality and integrity of the patient-physician relationship and reduce the quality of care received by patients. In particular, by creating conflicting loyalties for the physician, some of the techniques of managed care can undermine the physician’s fundamental obligation to serve as patient advocate.” Council on Ethical & Judicial Affairs, supra note 22, at 331.

⁶¹ See infra Part III.

⁶² See Nelson Testimony, supra note 45. “[A] number of physicians have also become concerned about the more subtle, unwritten, plan policies and procedures that are used to impede physicians from discussing treatment options . . . .” Id.

⁶³ See Gianelli, Diane M., Bound and Gagged: AMA: Unethical Managed Care Rules Stifle Communication, AM. MED. NEWS, Feb. 5 , 1996.Google Scholar

⁶⁴ See id.

⁶⁵ The Patient Right to Know Act: Hearings on H.R. 2976 Before the Subcomm. on Health of the House Comm. on Ways and Means, 104th Cong. (1996), available in 1996 WL 10830075 [hereinafter Kongstvedt Testimony] (statement of Peter Kongstvedt, M.D.).

⁶⁶ Id.

⁶⁷ Matthews, Jon, Let HMO Doctors Talk Freely, Panel Says, SACRAMENTO BEE, Apr. 17 , 1996, at A3.Google Scholar

⁶⁸ Gardner, Jonathan, Debate Heats Up Over Need for Law on ‘Gag Clauses,’ MOD. HEALTHCARE, June 3 , 1996, at 4, 4.Google Scholar

⁶⁹ See Pear, Robert, Doctors Say HMOs Limit What They Can Tell Patients, N.Y. TIMES, Dec. 21 , 1995, at Al.Google ScholarPubMed

⁷⁰ Kreier, Rachel, N.Y. Suit Fights Increasingly Common HMO ‘Gag Rules,’ AM. MED. NEWS, Dec. 11 , 1995, at 5, 5.Google Scholar

⁷¹ See id.

⁷² Id. at 7; see Sandberg, William, HMOs Force Doctors to Give Up Right to Free Speech, SACRAMENTO BUS. J., Jan. 30 ,1995.Google Scholar

⁷³ See Davis, Flora, Give Your HMO a Checkup: Evaluating a Health Insurance Plan, WORKING WOMAN, July, 1996, at 61, 77.Google Scholar

⁷⁴ See id.

⁷⁵ See id.

⁷⁶ See Brink, Susan, How Your HMO Could Hurt You, U.S. NEWS & WORLD REP., Jan. 15 , 1996, at 62, 63-64.Google Scholar

⁷⁷ See Goldberg, Carol, Anti-Gag Rule Nothing to Sneeze At, LONG IS. BUS. NEWS, Apr. 22 , 1996, at 1,Google Scholar available in 1996 WL 8419534.

⁷⁸ Dr. Himmelstein believes that he lost his contract because of his criticism of U.S. Health care. See Brink, supra note 77, at 64.

⁷⁹ See Kreier, supra note 70, at 5.

⁸⁰ Brink, supra note 76, at 64.

⁸¹ See, e.g., infra notes 85-116 and accompanying text.

⁸² H.R. 2976, 104th Cong. (1996).

⁸³ McAfee Testimony, supra note 17.

⁸⁴ Physicians typically express their concern through their governing body, the AMA, which strongly supports legislation prohibiting this type of gag clause. See infra text accompanying note 347; see also Council on Ethical & Judicial Affairs, supra note 22, at 332.

⁸⁵ Gianelli, supra note 63. Another contract, offered by an HMO in northern Ohio, similarly prohibited physicians from discussing proposed treatments with patients prior to receiving plan authorization. See Kreier, supra note 70, at 5.

⁸⁶ Patients at Risk When Doctors are Silenced, USA TODAY, Dec. 26 , 1995, at 10A.Google Scholar

⁸⁷ Kreier, supra note 70, at 5.

⁸⁸ Karash, Julius A., Providers to Erase ‘Gag Rule’; Health-Care Groups Agree Language Could Inhibit Doctor-Patient Dialogue, KAN. CITY STAR, Mar. 8 , 1996, at A1,Google Scholar available in LEXIS, News Library, Curnws File. This gag clause was voluntarily eliminated by HealthNet after it became public. See id.

⁸⁹ Sandberg, supra note 72.

⁹⁰ Kreier, supra note 70, at 7.

⁹¹ See Gianelli, supra note 63.

⁹² Sandberg, supra note 72.

⁹³ See Gianelli, supra note 63.

⁹⁴ Philp, Tom, The Best HMO? Many Doctors Just Can’t Say, SACRAMENTO BEE, Apr. 18 , 1995, at A10.Google Scholar

⁹⁵ Kreier, supra note 70, at 5.

⁹⁶ See supra notes 86-89 and accompanying text. Even if a physician is not bound by an anti- disparagement clause, if she offers free or reduced rate care in the wake of the MCO’s determination that the care is unnecessary, the MCO may terminate the physician under a “termination without cause” provision. These provisions have become increasingly common. See infra text accompanying notes 282-88. Massachusetts psychologist Ray Mount was terminated without explanation shortly after offering reduced cost care to a child. See Brink, supra note 76, at 64. The plan had denied coverage of further treatment sessions. See id.

⁹⁷ See Kreier, supra note 70, at 5.

⁹⁸ See id.

⁹⁹ Woolhandler & Himmelstein, supra note 50, at 1706.

¹⁰⁰ Kreier, supra note 70, at 5.

¹⁰¹ Id.

¹⁰² See Woolhandler & Himmelstein, supra note 50, at 1706; see also supra notes 99-101 and accompanying text.

¹⁰³ See Kongstvedt Testimony, supra note 65.

¹⁰⁴ Kreier, supra note 70, at 7.

¹⁰⁵ See supra notes 35-45 and accompanying text.

¹⁰⁶ See Kongstvedt Testimony, supra note 65 (stating that “[c]lauses related to a health plan’s market position are designed to prevent... a physician from encouraging patients to join a competing health plan ostensibly for reasons of quality, but in fact because the competing health plan pays better”).

¹⁰⁷ See supra notes 90-93 and accompanying text.

¹⁰⁸ patients typically have no access to this information other than through their doctor. See, e.g., Sandberg, supra note 72.

The Patient Right to Know Act: Hearings on H.R. 2976 Before the Subcomm. on Health of the House Comm. on Ways and Means, 104th Cong. (1996), available in 1996 WL 10830077 [hereinafter Rust Testimony] (statement of Mark E. Rust, Partner, Kamensky & Rubinstein).

¹⁰⁹ Sandberg, supra note 72.

¹¹⁰ See Council on Ethical & Judicial Affairs, supra note 22, at 231 (arguing that physicians are positioned best to know their patients’ interests and that patients’ health and well-being will not be protected without their physician’s commitment to place patients’ interests first).

¹¹¹ See Kreier, supra note 70, at 5.

¹¹² Id.

¹¹³ See id.

¹¹⁴ This type of gag clause has already caused public controversy. Dr. David Himmelstein was terminated on Feb. 26, 1996 by U.S. Healthcare following his publication in the New England Journal of Medicine and appearance on Donahue discussing the impact of managed care on patient health. See Clarinet E-Mail News (visited Dec. 26, 1995) <http://www.clari.net>. He was later reinstated because of the negative publicity generated by his termination and the use of gag clauses. See Goldberg, supra note 77, at 1.

¹¹⁵ Sandberg, supra note 72 (emphasis added).

¹¹⁶ Patients at Risk When Doctors are Silenced, supra note 86, at 10A.

¹¹⁷ Id.

¹¹⁸ See Kreier, supra note 70, at 7.

¹¹⁹ See id.

¹²⁰ See id.

¹²¹ See Larson, supra note 8, at 49-50. Christy deMeurers was a young mother diagnosed with metastatic breast cancer. To her family and doctor, it appeared that her only hope was a costly new therapy, autologous bone marrow transplant (ABMT). Christy’s doctor, apparently after being chastised by Health Net executives for telling Christy about ABMT, had a change of heart and withdrew his referral. Christy and her family began a long battle to get the treatment and find a doctor who would talk to her honestly and openly. In the end, UCLA performed the treatment for free to avoid a confrontation with Health Net. A year and a half later, Christy died.

In October 1995, an arbitration panel awarded Christy’s husband $1.02 million, based on its finding that Health Net’s interference in the doctor-patient relationship constituted intentional infliction of emotional distress. See id.

¹²² See Kreier, supra note 70, at 7.

¹²³ See supra notes 57-59 and accompanying text.

¹²⁴ See McAfee Testimony, supra note 17.

¹²⁵ See, e.g., Woolsey, Christine, Jury Hits HMO for Coverage Denial, BUS. INS., Jan. 3 , 1994, at 1,Google Scholar 23 (reporting that many health insurers deny payment for procedures such as autologous bone marrow transfusion because they consider them “experimental or investigational”).

¹²⁶ See, e.g., Fuja v. Benefit Trust Life Ins. Co., 18 F.3d 1405, 1411 (7th Cir. 1994) (sustaining insurance company’s denial of coverage of HDC/ABMT treatment because it was “in connection with medical or other research”); see also Prillaman, supra note 59, at 51.

¹²⁷ See, e.g., Woolsey, supra note 125, at 23.

¹²⁸ See, e.g., Canterbury v. Spence, 464 F.2d 772, 780 (D.C. Cir. 1972). Informed consent reflects the fundamental premise in American jurisprudence that every adult “has a right to determine what shall be done with his own body” and that “[t]rue consent to what happens to one’s self is the informed exercise of a choice, and that entails an opportunity to evaluate knowledgeably the options available and the risks attendant upon each.” Id. Because “the average patient has little or no understanding of the medical arts, and ordinarily has only his physician to whom he can look for enlightenment with which to reach an intelligent decision,” the physician is required to divulge reasonably to the patient the information “to make such a decision possible.” Id.

Alternatively, some courts have limited informed consent to information regarding the treatment actually performed. See, e.g., Moure v. Raeuchle, 604 A.2d 1003, 1008 (Pa. 1992) (stating that an action based on informed consent is limited to issues regarding the surgical procedure itself); Doe v. Dyer-Goode, 566 A.2d 889, 891 (Pa. Super. Ct. 1989) (explaining that informed consent covers only the invasive procedure itself); Boyer v. Smith, 497 A.2d 646, 649 (Pa. Super. Ct. 1985) (holding that informed consent covers surgical procedures only, not the prescription of drugs).

¹²⁹ OUR BODIES, OURSELVES (Boston Women’s Health Book Collective ed., 1976) (collecting articles by members of women’s discussion group about women’s knowledge of their bodies, its functions and their emotions).

¹³⁰ See id.; Shragg, supra note 57, at B7.

¹³¹ See Prillaman, supra note 59, at 47-48.

¹³² See id. at 45.

¹³³ Cf. id. at 46. Informed consent differs from malpractice in that malpractice focuses on negligence. Informed consent requires an injurious outcome to establish actual causation, but the injurious outcome need not be the result of negligence. See, e.g., Smith v. Karen S. Reisig, M.D., Inc., 686 P.2d 285 (Okla. 1984) (holding that “one of the elements of damage [in informed consent] is the injury and expense caused by the surgery itself, including any complications which may arise, whether resulting from defective treatment or not”).

¹³⁴ See Prillaman, supra note 59, at 47-48. A “patient may recover for a physician’s failure to disclose alternative treatments even if the chosen treatment is not negligently performed.” Id. The patient is required to establish that an alternative treatment would have been chosen if it had been disclosed. See Karen S. Reisig, M.D., Inc., 686 P.2d at 289.

¹³⁵ See, e.g., Spencer v. Seikel, 742 P.2d 1126, 1129 (Okla. 1987).

¹³⁶ See, e.g., Duff v. Yelin, 721 S.W.2d 365, 372. (Tex. Ct. App. 1986).

¹³⁷ See Prillaman, supra note 59, at 45.

¹³⁸ See id. As MCOs control an increasingly larger proportion of the health care market and promulgate consistent standards of what constitutes appropriate care, MCOs can potentially shape the reasonable physician standard. As a result, proving lack of informed consent may become increasingly difficult as more physicians contract with managed care. If doctors uniformly do not inform patients about expensive treatments in accordance with plan gag clauses, this may become the standard and shield plans and physicians from liability to patients injured as a result.

¹³⁹ This reasoning was first developed by Judge Learned Hand in The TJ Hooper.

60 F.2d 737, 740 (2d Cir. 1932).

Judge Hand’s reasoning formed the basis of Helling v. Carey, 519 P.2d 981, 983 (Wash. 1974) (holding an ophthalmologist negligent as a matter of law for not performing a glaucoma test on a patient less than 40 years of age where it was simple, cheap, reliable, and risk-free, even though the practice in the community was not to administer the test), and later, Gates v. Jensen, 595 P.2d 919, 924 (Wash. 1979) (holding that the rule established in Helling prevails even after the Washington legislature passed a law attempting to overturn it).

¹⁴⁰ See Prillaman, supra note 59, at 45.

¹⁴¹ Cobbs v. Grant, 502 P.2d 1, 11 (Cal. 1972).

¹⁴² Id. at 10.

¹⁴³ See Prillaman, supra note 59, at 46-47.

¹⁴⁴ See, e.g., id. at 49. For a full discussion of duty to inform of alternative treatments, see id. at 46-52.

¹⁴⁵ See, e.g., Ziegert v. South Chicago Community Hosp., 425 N.E.2d 450, 458-59 (Ill. App. 1981).

¹⁴⁶ See id.

¹⁴⁷ 622 P.2d 1246, 1257 (Wash. 1980); see also Sard v. Hardy, 379 A.2d 1014 (Md. 1977).

¹⁴⁸ See Keogan, 622 P.2d at 1260.

¹⁴⁹ Gates v. Jensen, 595 P.2d 919, 923 (Wash. 1979).

¹⁵⁰ Canterbury v. Spence, 464 F.2d 772, 781 (D.C. Cir. 1972) (emphasis added).

¹⁵¹ Dunham v. Wright, 423 F.2d 940, 946 (3d Cir. 1970).

¹⁵² PAUL S. APPELBAUM ET AL., INFORMED CONSENT—LEGAL THEORY AND CLINICAL PRACTICE 54 (1987).

¹⁵³ See, e.g., Woolsey, supra note 125, at 1 (discussing an insurance company’s denial of coverage for a bone marrow transplant to treat cancer because it was considered experimental); see also Bechtold v. Physicians Health Plan of N. Ind., Inc., 19 F.3d 322, 328 (7th Cir. 1994) (concluding that insurance does not cover high-dose chemotherapy with ABMT); Fuja v. Benefit Life Ins. Co., 18 F.3d 1405, 1412 (7th Cir. 1994) (holding that insurance contract does not cover treatment connected with medical research); Wheeler v. Dynamic Eng’g, Inc., 850 F. Supp. 459, 461 (E.D. Va. 1994) (finding denial of insurance coverage for breast cancer treatment unreasonable). For a discussion of what makes a treatment “experimental,” see Prillaman, supra note 59, at 44.

¹⁵⁴ See Prillaman, supra note 59, at 52.

¹⁵⁵ See id. at 58.

¹⁵⁶ See Archer v. Galbraith, 567 P.2d 1155, 1161 (Wash. 1977) (holding that a patient has the right to be informed about an alternative “means of therapy pursued by a respectable segment of the medical profession”).

¹⁵⁷ See Gianelli, supra note 63.

¹⁵⁸ See Wickline v. California, 239 Cal. Rptr. 810, 819-20 (Ct. App. 1986). “While we recognize, realistically, that cost consciousness has become a permanent feature of the health care system, it is essential that cost limitation programs not be permitted to corrupt medical judgment. . . .” Id. at 820. “[T]he physician who complies without protest to the limitations imposed by a third party payor, when his medical judgment dictates otherwise, cannot avoid his ultimate responsibility for his patient’s care.” Id. at 819.

¹⁵⁹ See, e.g., E. ALLAN FARNSWORTH & WILLIAM F. YOUNG, CONTRACTS: CASES AND MATERIALS 440-41 (4th ed. 1988). Courts will refuse to enforce an agreement, which the parties freely and fairly entered into, if the agreement violates public policy. See id. at 441. In other words, courts will refuse to enforce agreements which, in their view, sanction conduct that society finds objectionable. See id. Courts formulate public policy by using their own judgment, or by following policy adhered to by other courts. See id. Given that some courts have held that cost limitation programs cannot interfere with medical judgment and patient care, see Wickline, 239 Cal. Rptr. at 819, courts may reason that society considers gag clauses to be objectionable and, therefore, may refuse to enforce them, see FARNSWORTH & YOUNG, supra, at 441.

¹⁶⁰ See Prillaman, supra note 59, at 43-44.

¹⁶¹ See Bobinski, supra note 45, at 343.

¹⁶² 500 U.S. 173(1991).

¹⁶³ See Bobinski, supra note 45, at 316 n.86.

¹⁶⁴ See Rust, 500 U.S. at 200. In his dissent, Justice Blackmun suggests that such patients are entitled to the same level of care as privately funded patients, responding that just as the common law recognizes the duty to avoid any affirmative acts that may make a situation worse, “[a] physician who accepts a charity patient will then be liable for a failure to use reasonable care for the protection of the plaintiffs interests.” Id. at 217 n.5.

¹⁶⁵ See Bobinski, supra note 45, at 316 n.86 (hypothesizing that if third party payors “seize the opening noted by the Supreme Court and attempt specifically to limit the scope of some doctor- patient relationships,” then patients would not have an enforceable expectation of comprehensive medical advice).

¹⁶⁶ See supra text accompanying notes 35-45; see also Council on Ethical & Judicial Affairs, supra note 22, at 331.

Id.

¹⁶⁷ See, e.g., Wickline v. California, 239 Cal. Rptr. 810, 819 (Ct. App. 1986); see also ASKANAS, supra note 35, at 35 (explaining that “financial incentives may result in an incentive to under-prescribe services”).

¹⁶⁸ See, e.g., Council on Ethical & Judicial Affairs, supra note 22, at 333 (stating that “incentives to limit care are more problematic than incentives to provide care” and, as such, patients generally prefer the risk of too much care to the risk of too little care because such incentives are less likely to conflict with patients’ interests); Hillman et al., Clinical Decisions, supra note 39, at 86.

¹⁶⁹ Under FFS, medicine is paid for like most other commodities in a capitalist society. You pay for what you receive. Before health insurance, health care was paid for on a FFS basis directly by the patient. Even with the widespread use of health insurance, the public was aware that the insurance company paid the hospital and physicians based on the amount of care delivered. This awareness is based, in part, on both the media sensationalizing the costs of certain treatments (or, for example, the cost of aspirin while hospitalized) and the itemization of one’s health care costs by the insurance company on the premium statement.

¹⁷⁰ See Pear, supra note 69, at A1 (stating that patients are often unaware of financial arrangements between doctors and HMOs because doctors are prohibited from disclosing them. Dr. Chris tine Cassel, president-elect of the American College of Physicians, argues that patients need to understand the financial arrangements put forth by MCOs.).

¹⁷¹ See Council on Ethical & Judicial Affairs, supra note 22, at 333.

¹⁷² See id.

¹⁷³ See Bobinski, supra note 45, at 343 n.188.

¹⁷⁴ See infra Part V.A.

¹⁷⁵ See Bobinski, supra note 45, at 345.

¹⁷⁶ See Moore v. Regents of the Univ. of Cal., 793 P.2d 479, 483 (Cal. 1990) (citing Cobbs v. Grant, 502 P.2d 1 (Cal. 1972)).

¹⁷⁷ Id. at 483. “Indeed, the law already recognizes that a reasonable patient would want to know whether a physician has an economic interest that might affect the physician’s professional judgment.” Id. (referring to Magan Med. Clinic v. California State Bd. of Med. Exam’rs, 57 Cal. Rptr. 256, 262 (Ct. App. 1967) (holding that the legislature had constitutionally exercised its authority in prohibiting physicians and surgeons from owning pharmacies, and stating that “[c]ertainly a sick patient deserves to be free of any reasonable suspicions that his doctor’s judgment is influenced by a profit motive”)). Moore, the leading case to consider the role of financial incentives in the physician-patient relationship, established that:

• (1) a physician must disclose personal interests unrelated to the patient’s health, whether research or economic, that may affect the physician’s professional judgment; and (2) a physician’s failure to disclose such interests may give rise to a cause of action for performing medical procedures without informed consent or breach of fiduciary duty.

Id.

¹⁷⁸ See generally id.

¹⁷⁹ See Bobinski, supra note 45, at 370 n.287.

¹⁸⁰ See id. Regardless of the standard employed, courts that combine the doctrines of informed consent and fiduciary duty are more likely to rule in favor of the patient harmed by a conflict of interest hidden by a gag clause. See id. Cases like Moore view the two doctrines as interrelated. 793 P.2d at 483. Moore held that this “cause of action could properly be characterized either as the breach of a fiduciary duty to disclose facts material to the patient’s consent or, alternatively, as the performance of medical procedures without first having obtained the patient’s informed consent.” Id.

¹⁸¹ BLACK’S LAW DICTIONARY 431 (abr. 6th ed. 1991).

¹⁸² See Bobinski, supra note 45, at 350 n.212 (citing RESTATEMENT (SECOND) OF AGENCY § 13 cmt. a (1958); RESTATEMENT (SECOND) OF TORTS § 874 cmt. a (1977); RESTATEMENT (SECOND) OF TRUSTS § 2 cmt. b (1959)).

¹⁸³ See Bobinski, supra note 45, at 349 n.210.

¹⁸⁴ See generally id. at 372 (discussing the fiduciary duty found in Moore).

¹⁸⁵ Moore, 793 P.2d at 485 n.10; see also Arato v. Avedon, 858 P.2d 598, 608 (Cal. 1993) (holding that a physician’s fiduciary obligation to a patient does not encompass the patient’s financial interests). However, many other courts have failed to analyze the range of the fiduciary duty of physicians to patients, assuming that it is as broad as in other contexts. See Bobinski, supra note 45, at 372.

¹⁸⁶ See supra notes 40-45 and accompanying text.

¹⁸⁷ See Bobinski, supra note 45, at 351. Remedies for breach of fiduciary duty include invalidation of the transaction, payment to trusting party of impermissible benefits or profits, and compensation for actual damages including personal injury. See id. at 355-56. Courts are split, however, over whether the plaintiff must show injury resulting from the fiduciary’s breach. See id. at 356.

¹⁸⁸ Id. at 370 n.288.

¹⁸⁹ See id. at 315. Also, the desire to avoid publicity of one’s conflicts strongly encourages settlement. See id.

¹⁹⁰ Id. at 317-18.

¹⁹¹ 419 N.W.2d 511, 513-14 (Minn. Ct. App. 1988), rev’d, 431 N.W.2d 855 (1988).

¹⁹² See id. at 515.

¹⁹³ See 42 U.S.C. § 1320 (1994); Bobinski, supra note 45, at 325.

¹⁹⁴ See Bobinski, supra note 45, at 325 nn.118-19.

¹⁹⁵ See id.

¹⁹⁶ See CAL. HEALTH & SAFETY CODE § 1363.5(a)(4) (West Supp. 1996); 28 TEX. ADMIN. CODE § 3.3703(3) (West 1993).

¹⁹⁷ See 28 TEX. ADMIN. CODE § 3.3703(3) (“The referring physician or practitioner may not be required to bear the expenses of referral for specialty care in or out of the preferred provider panel.... An insurer shall not use any financial incentive or make payment to a physician or health care provider which acts directly or indirectly as an inducement to limit medically necessary services.”).

¹⁹⁸ See CAL. HEALTH & SAFETY CODE § 1363.5(a)(4).

¹⁹⁹ See supra notes 109-14 and accompanying text.

²⁰⁰ See Holloway, William J. & Leech, Michael J., EMPLOYMENT TERMINATION: RIGHTS AND REMEDIES 552 (2d ed. 1993)Google Scholar; see also Corroon & Black, Inc. v. Magner, 494 N.E.2d 785, 790 (Ill. App. Ct. 1986). “While acting as an agent or an employee of another, one owes the duty of fidelity and loyalty. Accordingly, a fiduciary cannot act inconsistently with his agency or trust; for example, an employee cannot solicit his employer’s customers for himself.” Id. at 790.

²⁰¹ Cf. HOLLOWAY & LEECH, supra note 200, at 552 (discussing fiduciary duties and competition in the context of practicing law).

²⁰² The MCOs claim that these clauses are merely an attempt to protect their business asset, the patients. See Kongstvedt Testimony, supra note 65.

²⁰³ See, e.g., Jones v. Fakehany, 67 Cal. Rptr. 810 (Ct. App. 1968); Humana Med. Plan, Inc. v. Jacobson, 614 So. 2d 520 (Fla. Dist. Ct. App. 1992).

²⁰⁴ See Humana Med. Plan, 614 So. 2d at 521-23 (holding invalid a penalty clause that would have required a terminated HMO physician to pay each time he saw HMO patients at another HMO).

²⁰⁵ See Jones, 67 Cal. Rptr. at 815.

²⁰⁶ Id.

²⁰⁷ See CAL. HEALTH & SAFETY CODE § 1373.65 (West Supp. 1996).

²⁰⁸ See supra Part III.D.

²⁰⁹ See Turner v. Byers, 562 S.W.2d 507, 510 (Tex. Civ. App. 1978).

²¹⁰ See Connick v. Myers, 461 U.S. 138, 154 (1983) (noting that the “Court has frequently re affirmed that speech on public issues occupies the ‘highest rung of the hierarchy of First Amendment values,’ and is entitled to special protection”).

²¹¹ 710 F.2d 41, 46 (2d Cir. 1983).

²¹² 712 F.2d 339, 339 (8th Cir. 1983).

²¹³ 705 F.2d 1110, 1115 (9th Cir. 1983).

²¹⁴ See McGee, 712 F.2d 339; Rookard, 710 F.2d 41; McKinley, 705 F.2d 1110. But see HOLLOWAY & LEECH, supra note 200, at 160 (citing Barr v. Kelso-Burnett Co., 478 N.E.2d 1354 (1985) (stating that the public policy of free speech is applicable only to governmental action, not private conduct)).

²¹⁵ 555 F. Supp. 750, 759 (D.N.J. 1983).

²¹⁶ Because political speech is “core” speech under First Amendment doctrine, heightened scrutiny is applied in these cases. See, e.g., Riley v. National Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 796 n.9 (1988) (noting differential treatment of traditional and commercial speech under the first amendment); Zauderer v. Office of Disciplinary Counsel of the Sup. Ct. of Ohio, 471 U.S. 626, 637 (1985) (holding that a reprimand by the Disciplinary Counsel for an attorney’s use of illustrations in his advertisement and offer of legal advice is a first amendment violation).

²¹⁷ See supra note 17 and accompanying text.

²¹⁸ The first case to find a public policy in a private employee’s First Amendment right to freedom of expression was Novosel v. Nationwide Ins. Co., 721 F.2d 894 (3d Cir. 1983) (protecting an employee who refused to participate in a program to generate support for no-fault insurance). See HOLLOWAY & LEECH, supra note 200, at 159.

²¹⁹ 721 F.2d 894.

²²⁰ HOLLOWAY & LEECH, supra note 200, at 160 (discussing Novosel, 721 F.2d at 900).

²²¹ Rust v. Sullivan, 500 U.S. 173 (1991) (upholding statute restraining federally funded family-planning physician services from advocating abortion); Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) (upholding a statute requiring a physician to disclose abortion alternatives and the availability of state-printed pro-life materials); see also Webster v. Sullivan, 492 U.S. 490, 511 (1989) (considering a state statute forbidding public employees from discussing a life-saving abortion with a patient); Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 760-64 (1986) (holding unconstitutional a statute requiring disclosure of certain information before allowing a woman to consent to an abortion).

²²² See Poe v. Ullman, 367 U.S. 497, 513 (1961); City of Akron v. Akron Ctr. for Reprod. Health, Inc., 462 U.S. 416, 472 n.16 (1983).

²²³ 367 U.S. at 513 (Douglas, J., dissenting).

²²⁴ 462 U.S. at 472 n.16 (1983) (O’Connor, J., dissenting) (“This is not to say that the in formed-consent provisions may not violate the First Amendment rights of the physician if the State requires him or her to communicate its ideology.”).

²²⁵ See Rust, 500 U.S. at 192. One lower court decision, however, viewed a restriction on the physician’s ability to inform a patient of her treatment alternatives as a violation of the physician’s First Amendment right to free speech. See Guam Soc’y of Obstetricians & Gynecologists v. Ada, 776 F. Supp. 1422, 1428-29 (D. Guam 1990), aff’d, 962 F.2d 1366 (9th Cir. 1992) (affirming district court’s decision without discussing the first amendment), cert. denied, 113 S. Ct. 633 (1992). The district court in Guam Society of Obstetricians & Gynecologists held that a statute prohibiting the solicitation of women to have abortions violated the physicians’ first amendment rights. See id.

²²⁶ See, e.g., Thornburgh, 476 U.S. at 760-64; Griswold v. Connecticut, 381 U.S. 479, 485 (1965) (holding unconstitutional a statute prohibiting counseling about contraception and family planning).

²²⁷ See, e.g., Sage, William M. et al., Enterprise Liability for Medical Malpractice and Health Care Quality Improvement, 20 AM. J.L. & MED. 1, 1 (1994)Google ScholarPubMed.

²²⁸ See supra Part IV.A.2.C.

²²⁹ See, e.g., Sage, supra note 227, at 1-2. Note that enterprise liability in the context of medical malpractice is distinct from enterprise liability as used in product liability cases to denote market-share liability. See id. at 16 n.91.

²³⁰ Id. at 9. Because “health plans” deliver health care,

Abraham, Kenneth S. & Weiler, Paul C., Enterprise Liability and the Choice of the Responsible Enterprise, 20 AM. J.L. & MED. 29, 30 (1994)Google ScholarPubMed. As a result, holding health plans liable would best channel the legal incentives for preventing patient injury. See id.

²³¹ See, e.g., Mariner, Wendy K., Liability for Managed Care Decisions: The Employee Retirement Income Security Act (ERISA) and the Uneven Playing Field, 86 AM. J. PUB. HEALTH 863, 868 (1996).CrossRefGoogle ScholarPubMed

²³² See Sage et al., supra note 227, at 16.

²³³ See id. at 17.

²³⁴ 239 Cal. Rptr. 810, 819 (Ct. App. 1986).

²³⁵ 271 Cal. Rptr. 876, 885 (1990) (overruling the district court’s grant of summary judgment against the plaintiff and remanding to the district court).

²³⁶ Mariner, supra note 231, at 864.

²³⁷ See supra notes 160-65, 189-94.

²³⁸ To the extent that a gag clause prevents a patient from becoming aware of an uncovered treatment, the patient will have more success suing the MCO for denial of coverage than for gagging the physician. And to the extent that the physician or MCO was negligent, the patient will sue for negligence: the presence of the gag clause is tangential to the patient’s claim.

²³⁹ See Wilson, 271 Cal. Rptr. at 883; Wickline, 239 Cal. Rptr. at 819.

²⁴⁰ See generally Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001-1461 (1994).

²⁴¹ See Mariner, supra note 231, at 864 (noting that “patients in ERISA group health plans do not have a remedy for direct negligence although such remedy is commonly available to patients in nonemployee group plans”).

²⁴² See Kotulak, Ronald & Gorner, Peter, Managed Care: National Leap of Faith, CHI. TRIB., Oct. 2 , 1996,Google Scholar News Section, at 1, available in 1996 WL 2713295.

²⁴³ See H.R. REP. No. 93-533 (1973), available in LEXIS, Fedtax Library, Legis File.

²⁴⁴ 29 U.S.C. § 1144(a).

²⁴⁵ See FMC Corp. v. Holliday, 498 U.S. 52, 56-57 (1990).

²⁴⁶ See 29 U.S.C. § 1002.

²⁴⁷ See Mariner, supra note 231, at 864.

²⁴⁸ See id.

²⁴⁹ See id.

²⁵⁰ See id.

²⁵¹ See, e.g., Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 91 (1983). In her comprehensive article on liability for managed care decisions and the role of ERISA, Professor Wendy Mariner dis cusses the recent movement by federal appellate courts to read ERISA’s preemption clause more narrowly. These decisions have begun to view quality of care as distinct from the provision of benefits. See Mariner, supra note 231, at 865-66.

²⁵² See 29 U.S.C. § 1132(a)(1) (1994). This section provides a remedy for claims “to recover benefits . . . under the terms of [the employee benefit] plan, to enforce . . . rights under the terms of the plan, or to clarify . . . rights to future benefits under the terms of the plan.” Id. § 1132(a)(1)(B).

²⁵³ See Mariner, supra note 231, at 864.

²⁵⁴ See id. (citing Mertens v. Hewitt Assocs., 113 S. Ct. 2063 (1993)).

²⁵⁵ See id.

Id.

²⁵⁶ “I will keep them from harm and injustice.” HIPPOCRATIC OATH, reprinted in JUDITH AREEN ET AL., LAW, SCIENCE AND MEDICINE 273 (1984).

²⁵⁷ “I will apply . . . measures for the benefit of the sick according to my ability and judgment .... Whatever houses I may visit, I will come for the benefit of the sick, remaining free of all intentional injustice.” Id.

²⁵⁸ The AMA has also used Percival’s Code as a foundation. See CODES OF PROFESSIONAL RESPONSIBILITY 263 (Rena A. Gorlin ed., 3d ed. 1994). Percival’s Code was established in 1803 by English physician/philosopher Thomas Percival. See id.

²⁵⁹ See CODE OF MEDICAL ETHICS, reprinted in CODES OF PROFESSIONAL RESPONSIBILITY, supra note 258, at 265; see also infra notes 270-74 and accompanying text.

²⁶⁰ See CODE OF MEDICAL ETHICS, reprinted in CODES OF PROFESSIONAL RESPONSIBILITY, supra note 258, at 265.

²⁶¹ See id. at 267.

²⁶² Id.

²⁶³ Some physicians attempt to challenge these restraints by mentioning the uncovered or ex pensive treatment options, but cave in to the contractual and financial pressure by presenting them in a negative light. As one physician explains, when

²⁶⁴ CODE OF MEDICAL ETHICS, reprinted in CODES OF PROFESSIONAL RESPONSIBILITY, supra note 258, at 267. MCOs that deny access to consultations or referrals will likely seize on the phrase “when indicated.”

²⁶⁵ Id.

²⁶⁶ Id. MCOs may argue that the physician chose to sign a contract with them and thus is bound by its provisions.

²⁶⁷ See id. at 263.

²⁶⁸ AMA COUNCIL ON ETHICAL & JUDICIAL AFFAIRS, FUNDAMENTAL ELEMENTS OF THE PATIENT-PHYSICIAN RELATIONSHIP (1993), reprinted in CODES OF PROFESSIONAL RESPONSIBILITY, supra note 258, at 267. The report was originally adopted in 1990 and updated in 1993. See id.

²⁶⁹ Id. at 268.

²⁷⁰ See id. at 262.

²⁷¹ See id.

²⁷² See The Ethics of Care: The AMA as Guardian, AM. MED. NEWS, AMA REPORT TO MEMBERS, July 1 . 1996, at 2A.Google Scholar

²⁷³ See supra text accompanying note 272.

²⁷⁴ 417 A.2d 505, 512 (N.J. 1980) (holding that in this case, the physician was merely at odds with her supervisor, also a physician, in believing that carrying out medical research to develop a drug containing saccharin was unethical). In holding that the ethical dilemma must be rooted in a recognizable standard, the court said that “an employee should not have the right to prevent his or her employer from pursuing its business because the employee perceives that a particular decision violates the employee’s personal morals, as distinguished from the recognized code of ethics of the employee’s profession.” Id.

²⁷⁵ 465 N.W.2d 395, 403 (Mich. App. 1991).

²⁷⁶ 590 P.2d 513, 514 (Colo. App. 1978).

²⁷⁷ See id. at 515.

²⁷⁸ See id. But see Hobson v. McLean Hosp. Corp., 522 N.E.2d 975, 978 (Mass. 1988) (reversing the lower court’s decision granting defendant’s motion to dismiss on the grounds that plaintiff nurse stated a claim when she alleged that defendants wrongfully terminated her for admonishing the nurses to abide by state and municipal laws and regulations).

²⁷⁹ See generally Lampe, 590 P.2d at 515 (holding that state’s licensure statutes for nurses would not protect them from disobeying their employers’ orders even if the nurses felt that the orders could endanger patient welfare); Hillman, Conflict of Interest, supra note 19, at 1743 (stating that physicians govern the use of health care resources on patients).

²⁸⁰ See supra Part V.

²⁸¹ See Pear, Robert, HMO Doctors Frustrated by ‘Gag Clauses,’ ORANGE COUNTY REG., Dec. 24 , 1995,Google Scholar available in 1995 WL 10773568 (reporting that doctors in New York filed a lawsuit challenging a confidentiality clause, on the ground that it “destroys the physician’s liberty to convey needed information to patients concerning H.M.O. operations”). The lawsuit, brought by the League of Physicians and Surgeons, claims that the restriction “stifle[s] all discussion[s] by physicians of quality of care issues and HMO practices that are harmful to patients.” Kreier, supra note 70, at 5. This case was argued in December 1995, but the court has yet to make a decision. See id.

²⁸² See Rust Testimony, supra note 108.

Id.

²⁸³ See id.

Id.

²⁸⁴ See id. Termination without cause clauses are

Id.

²⁸⁵ See id.

²⁸⁶ The Association of American Medical Colleges recognizes the growing oversupply of physicians in the United States. See Statement of the Association of American Medical Colleges on Teaching Hospitals and Other Issues Related to Graduate Medical Education to the Subcomm. on Health of the House Comm. on Ways and Means, 104th Cong. (1996), available in 1996 WL 324344 (statement of Timothy M. Goldfarb, Director, Healthcare Systems at the Oregon Health Sciences Univ., Portland, Or.)

²⁸⁷ See Rust Testimony, supra note 108 (noting that physicians feel compelled to enter into the contracts offered to them because MCOs “control a large market share of patients”).

Id.

²⁸⁸ See generally HOLLOWAY & LEECH, supra note 200, at 133 (referring to a new rule of law that states that employees may not be discharged from employment for acting in furtherance of or for refusing to violate public policy).

²⁸⁹ See id.

²⁹⁰ 344 P.2d 25, 27-28 (Cal. Dist. Ct. App. 1959).

²⁹¹ The following jurisdictions have recognized the action for retaliatory discharge: Alabama, see ALA. CODE § 25-5-11.1 (Michie 1992); Alaska, see ALASKA STAT. § 18.60.89 (Michie 1995); Arizona, see ARIZ. REV. STAT. ANN. § 23-1501 (West Supp. 1996); California, see CAL. LABOR CODE § 6310 (West Supp. 1996); Colorado, see COLO. REV. STAT. § 24-50.5-103 (1988); Connecticut, see CONN. GEN. STAT. ANN. § 31-51m (West 1996); District of Columbia, see D.C. CODE ANN. § 36-342 (1981); Hawaii, see HAW. REV. STAT. ANN. § 378-33 (Michie 1988); Idaho, see IDAHO CODE § 45-613 (1948); Illinois, see 820 ILL. COMP. STAT. ANN. § 115/14 (West 1996); Indiana, see IND. CODE ANN. § 12-10-3-11 (West 1996); Iowa, see Springer v. Weeks & Leo Co., 429 N.W.2d 558, 561 (Iowa 1988) (finding that state public policy, as expressed in its worker’s compensation act, supports recognition of a tort of retaliatory discharge); see also IOWA CODE § 85.18 (1987); Kansas, see Murphy v. City of Topeka, 630 P.2d 186, 193 (Kan. Ct. App. 1981) (finding that state public policy, as expressed in the Kansas Workmen’s Compensation Act, supports recognition of a tort of retaliatory discharge); see also KAN. STAT. ANN. § 44-501 (1995); Kentucky, see Firestone Textile Co. Div., Firestone Tire & Rubber Co. v. Meadows, 666 S.W.2d 730, 734 (Ky. 1983) (finding that state public policy, as expressed in the Kentucky Workers’ Compensation Act, supports recognition of a tort of retaliatory discharge); see also KY. REV. STAT. ANN. § 342.197 (Banks-Baldwin 1995); Maryland, see Adler v. American Standard Corp., 432 A.2d 464, 471 (Md. 1981) (concluding that “the reasoning of a growing number of jurisdictions that have recognized [retaliatory discharge] as a new cause of action” had persuaded the court that the tort should be recognized in Maryland); Massachusetts, see DeRose v. Putnam Management Co., 496 N.E.2d 428, 431 (Mass. 1986) (finding that Massachusetts should recognize a cause of action for retaliatory discharge if the discharge is contrary to state public policy); see also MASS. GEN. LAWS ch. 149 § 185 (1996); Michigan, see Sventko v. Kroger Co., 245 N.W.2d 151, 153-54 (Mich. Ct. App. 1976) (finding that state public policy, as expressed in its workmen’s compensation act, supports recognition of a tort of retaliatory discharge); Minnesota, see Jensen v. Hercules, Inc., 524 N.W.2d 748 (Minn. Ct. App. 1994) (explaining damages allowed under MINN. STAT. ANN. § 176.82 (West Supp. 1996), which prohibits terminating employees in retaliation for filing worker’s compensation claims); Missouri, see MO. ANN. STAT. § 287.780 (West Supp. 1996); Montana, see MONT. CODE ANN. § 39-2-904 (1995); Nebraska, see NEB. REV. STAT. § 48-1104 (1993); Nevada, see Hansen v. Harrah’s, 675 P.2d 394 (Nev. 1984) (explaining retaliatory discharge public policy exception to employment-at-will); New Hampshire, see N.H. REV. STAT. ANN. § 273-A:5 (1987); New Jersey, see N.J. STAT. ANN. § 34:19-3 (West 1988); New Mexico, see N.M. STAT. ANN. § 52-l-28.2(a) (Michie 1978); North Carolina, see Sides v. Duke Univ., 328 S.E.2d 818, 826-27 (N.C Ct. App. 1985); see also N.C. GEN. STAT. § 95-83 (1995) (providing that employers may not fire employees for their participation in labor unions nor for any exercise of their union rights); North Dakota, see Ressler v. Humane Soc’y of Grand Forks, 480 N.W.2d 429, 432 (N.D. 1992); Ohio, see OHIO REV. CODE ANN. § 4113.52(B) (Banks-Baldwin 1996); Oklahoma, see OKLA. STAT. ANN. tit. 85, § 5(A) (West 1996) (prohibiting retaliatory discharge under worker’s compensation act); Oregon, see OR. REV. STAT. § 659.035 (1981); Pennsylvania, see 43 PA. CONS. STAT. ANN. § 1101.1201 (1996); South Carolina, see S.C. CODE ANN. § 41-1-80 (Law. Co-op. 1986); South Dakota, see S.D. CODIFIED LAWS § 60-12-21 (Michie 1966); Tennessee, see TENN. CODE ANN. § 50-1-304 (1990); Texas, see TEX. LABOR CODE ANN. § 21.055 (West 1993); Vermont, see VT. STAT. ANN. tit. 21, § 495 (1995); see also Murray v. St. Michael’s College, 667 A.2d 294 (Vt. 1995); Virginia, see VA. CODE ANN. § 65.2-308 (Michie 1991); see also Miller v. Sevamp, 36 S.E.2d 915 (Va. 1987); Washington, see WASH. REV. CODE ANN. § 42.40.050 (West 1996); see also Allison v. Housing Authority of Seattle, 821 P.2d 34 (Wash. 1991); West Virginia, see W. VA. CODE § 21-3A-13 (1966); see also Collins v. Elkay Mining Co., 371 S.E.2d 46 (W. Va. 1988); Wisconsin, see WIS. STAT. ANN. § 230.85 (West 1996); see also Marathon Electric Mfg. Corp. v. Industrial Comm’n, 70 N.W.2d 576 (Wis. 1955); and Wyoming, see WYO. STAT. ANN. § 9-11-103 (Michie 1977); see also Griess v. Consolidated Freightways Corp. of Del., 776 P.2d 752 (Wyo. 1989).

Six states have rejected the action: Arkansas, see ARK. CODE ANN. § 11-9-107 (Michie 1996); see also Tackett v. Crain Automotive, 899 S.W.2d 839, 839 (Ark. 1995) (stating that Arkansas eliminated the cause of action for retaliatory discharge in 1993); Delaware, see DuPont v. Pressman, 679 A.2d 436 (Del. 1996); Florida; Georgia; Louisiana; and New York. See [9A Individual Employment Rights Manual] Lab. Rel. Rep. (BNA) 505:251, :261, :383, :601 (Aug. 27, 1996) (giving specific information concerning each state and its retaliatory discharge policy). “Four states[, Maine, Mississippi, Rhode Island, and Utah,] have not clearly expressed [an opinion].” HOLLOWAY & LEECH, supra note 200, at 135 n.5.

²⁹² See, e.g., New Horizons Elecs. Mktg. Inc. v. Clarion Corp. of Am., 561 N.E.2d 283, 285 (Ill. App. Ct. 1990); Wilmington v. Harvest Ins. Cos., 521 N.E.2d 953, 955 (Ind. Ct. App. 1988) (stating that an exception allowing causes of action based on retaliatory discharge is not available to independent contractors); cf. Anderson v. Farm Bureau Mut. Ins. Co., 732 P.2d 699, 703 (Idaho Ct. App. 1987) (establishing a test for the determination of an individual’s status as an independent contractor).

²⁹³ See generally Hoover v. Sun Oil Co., 212 A.2d 214 (Del. 1965); Humble Oil & Refining Co. v. Martin, 222 S.W.2d 995 (Tex. 1949) (establishing that the substance and not the label of the relationship is determinative).

²⁹⁴ The need to look beyond the label of an independent contractor is particularly pronounced in this context because traditionally the corporate practice of medicine doctrine has prevented classification of physicians as employees.

²⁹⁵ See HOLLOWAY & LEECH, supra note 200, at 133. See generally id. at 147-65.

²⁹⁶ Petermann v. Teamsters, 344 P.2d 25, 27 (Cal. Dist. Ct. App. 1959).

²⁹⁷ See, e.g., Foley v. Interactive Data Corp., 765 P.2d 373, 379 (Cal. 1988) (stating that public policy must affect “a duty which inures to the public at large rather than to a particular employer or employee”). Similarly, in Rojo v. Kliger, 257 Cal. Rptr. 158, 169 (Ct. App. 1989), aff’d, 801 P.2d 373 (Cal. 1990), the court stated that a public interest “which could not properly be circumvented by agreement of the parties” was necessary to establish a public policy.

²⁹⁸ See HOLLOWAY & LEECH, supra note 200, at 149-50.

²⁹⁹ Id. at 150.

³⁰⁰ See, e.g., Palmateer v. International Harvester Co., 421 N.E.2d 876, 879 (Ill. 1981). “There is no public policy more basic, nothing more implicit in the concept of ordered liberty, than the enforcement of a State’s criminal code.” Id.

³⁰¹ See Delaney v. Taco Time Int’l, Inc., 681 P.2d 114, 117 (Or. 1984) (holding that asking an employee to violate tort law implicates societal interests and violates social duties).

³⁰² The AMA agrees that “these onerous medical ‘gag clauses’ violate sound public policy and should be made unenforceable and legally null and void.” McAfee Testimony, supra note 17.

³⁰³ Foley v. Interactive Data Corp., 765 P.2d 373, 379 (Cal. 1988).

³⁰⁴ See, e.g., Pierce v. Ortho Pharmaceutical Corp., 417 A.2d 505, 512 (N.J. 1980). See generally HOLLOWAY & LEECH, supra note 200, at 153-56 (tracing the use of ethical guidelines as the basis of public policy violations).

³⁰⁵ See Kotulak & Gorner, supra note 242.

³⁰⁶ See Act effective July 22, 1996, ch. 260, 1996 Cal. Legis. Serv. 1564 (West) (amending CAL. BUS. & PROF. CODE § 2056).

³⁰⁷ See Act of July 18, 1996, ch. 537, 1996 Del. Adv. Legis. Serv. 189 (Michie).

³⁰⁸ See generally Kotulak & Gorner, supra note 242.

³⁰⁹ See Health Security Act, No. 1996-85, 1996 Pa. Legis. Serv. 366 (West).

³¹⁰ See Confidentiality of Patient Information, ch. 8, 1996 Mass. Adv. Legis. Serv. 7 (Law. Co-op.)

³¹¹ See Graham, Patrick, Despite Setback, TennCare Satisfied with Legislation, MEMPHIS BUS. J., May 27 , 1996, at 52Google Scholar (reporting passage of a bill prohibiting MCOs from utilizing gag clauses that prevent physicians from advising patients of potentially helpful treatments not covered by the MCO).

³¹² See Florida: Veto is a Victory for State’s Managed Care Plans, HEALTH LINE, May 30 , 1996,Google Scholar available in LEXIS, News library, Hltlne file; see also Phil Galewitz, HMO Customers Need More Protection, Report Says, PALM BEACH POST, July 24, 1996, at B5 (final edition) (discussing states’ legislative efforts to address HMO and consumer protection issues).

³¹³ ALA. CODE § 27-1-20 (Supp. 1996).

³¹⁴ See id. § 27-1 -20(c)(1).

³¹⁵ See id. § 27-1-20(c)(1)(a).

³¹⁶ See id. § 27-l-20(c)(1)(b).

³¹⁷ See id. § 27-l-20(c)(1)(d). Prior authorizations include “procedures for and limitations or restrictions on referrals to a provider other than primary care physicians, dent`ists, or other review requirements, including preauthorization review, concurrent review, postservice review, and post- payment review.” Id.

³¹⁸ See Health Care Accessibility and Quality Assurance Act, 1996 R.I. Pub. Laws ch. 41 (amending R.I. GEN. LAWS tit. 23).

³¹⁹ See H.R. 2976, 104th Cong. § 1(b)(4) (1996). The findings further provide that “in order to provide for uniform treatment of health care providers and patients among the States, it is necessary to cover health plans operating in one State as well as those operating among the several States.” Id.

³²⁰ See Kotulak & Gorner, supra note 242.

³²¹ See H.R. 2976.

³²² For current information on the status of H.R. 2976, see LEXIS, Legis Library, Bltrck File.

³²³ H.R. 2976, § 1(b)(2). Two other findings state: “(1) [p]atients cannot make appropriate health care decisions without access to all relevant information relating to those decisions,” id. § 1(b)(1), and “(3) [s]erious concerns have been raised about the use by health plans of contractual clauses or policies that interfere with communications between physicians and other health care providers and their patients and the impact of such clauses and policies on the quality of care received by those patients,” id. § 1(b)(3).

³²⁴ Id. § 2(a)(1).

³²⁵ Id. § 2(b). Section 2(b)(2)(A)-(F) specifically provides that medical communication includes communications concerning

• (A) any tests, consultations, and treatment options;

• (B) any risks or benefits associated with such tests, consultations, and options;

• (C) variation among any health care providers and any institutions providing such services in experience, quality, or outcomes;

• (D) the basis or standard for the decision of an entity offering a health plan to authorize or deny health care services or benefits;

• (E) the process used by such an entity to determine whether to authorize or deny health care services or benefits; and

• (F) any financial incentives or disincentives provided by such an entity to a health care provider that are based on service utilization.

³²⁶ See id. § 2(a)(3).

³²⁷ See id. § 2(a)(2)(A)-(E).

³²⁸ Id. § 2(c)(1)(A)-(B).

³²⁹ See Inside the Beltway, WASH. HEALTH WK., Aug. 19 , 1996,Google Scholar available in LEXIS, Market Library, Iacnws File.

³³⁰ Id. (reporting that “the managed care industry worries that the bill will be reintroduced promptly next year”).

³³¹ See Rep. Markey, Edward, Removing the Gag: Legislation Would Protect Doctor-Patient Communication from Code of Silence, ROLL CALL, Sept. 16 , 1996,Google Scholar available in LEXIS, News Library, Rollcl File. The bill is also endorsed by “dozens of health care and consumer groups, including the Consumer Federation of America, Consumers Union, Citizen Action,... the American Academy of Family Physicians, the American Nurses Association, the American Lung Association, ... the American Heart Association,” and the American Association of Retired Persons. Id.

³³² See H. R. REP. NO. 104-865 (part I); 142 CONG. REC. H12172 (daily ed. Sept. 28, 1996).

³³³ See Weissenstein, Eric, GOP Tries to Block ‘Gag Clause’ Ban, MOD. HEALTHCARE, Sept. 16 , 1996, at 6, 6.Google Scholar

³³⁴ See id.

³³⁵ See id.

³³⁶ Excerpts from Second Televised Debate Between Clinton and Dole, N.Y. TIMES, Oct. 18, 1996, at A28 [hereinafter Debate Transcript]. Earlier, the President pledged his support for H.R. 2976 declaring, “[t]oo often, too many health plans are literally gagging their doctors . ... I want to say to you that I think this has to stop.” Markey, supra note 331.

³³⁷ Debate Transcript, supra note 336, at A28.

³³⁸ Sees Omnibus Bill Quiets the Gag Rule Ban, But Advances Other Health Policy Issues, HEALTH LEGIS. & REG., Oct. 2 , 1996,Google Scholar available in 1996 WL 11279402 [hereinafter Omnibus Bill]. Efforts to include the amendment in the appropriations bill came after efforts failed to include a similar measure in the pipeline safety bill. See Clinton: Signs Maternity-Stay, Mental Health Measure, HEALTH LINE, Sept. 27, 1996, available in LEXIS, Legis Library, Hltlne File.

³³⁹ See Omnibus Bill, supra note 338.

³⁴⁰ See Sandberg, supra note 72 (reporting that it is not atypical for a physician to have 30 to 50% of her entire patient base come from one contract).

³⁴¹ See Business Briefs: Florida Doctors Challenge Gag Rules, HEALTH LINE, Oct. 15, 1996, available in LEXIS, Legis Library, Hltlne File [hereinafter Florida Doctors]; Galewitz, Phil, Visiting Nurse Program Offers Extras for Wealthy, PALM BEACH POST, Oct. 14 , 1996,Google Scholar available in LEXIS, News Library, Pbpst File.

³⁴² See Florida Doctors, supra note 341.

³⁴³ See Galewitz, supra note 341.

³⁴⁴ See Gianelli, supra note 63.

³⁴⁵ See Kreier, supra note 70, at 7.

³⁴⁶ See id.

³⁴⁷ See Nelson Testimony, supra note 45; see also Davis, supra note 73, at 77.

³⁴⁸ See Nelson Testimony, supra note 45.

³⁴⁹ See Sullivan, Joseph F., Officials Scrutinizing Doctor Bonuses in Managed Care Plans, N.Y. TIMES, Sept. 21 , 1995, at B6.Google Scholar

³⁵⁰ The HMO Gag Rule, SACRAMENTO BEE, Apr. 20, 1995, at B8.

³⁵¹ Woolhandler & Himmelstein, supra note 50, at 1707.