1 Edmund F. Haislmaier, What's Wrong with Healthcare, in Critical Issues: A National Health System for America (Stuart M. Butler & Edmund F. Haislmaier eds., 1989); E. Haavi Morreim, Balancing Act: The New Medical Ethics of Medicine's New Economics (1991) [Hereinafter Morreim, Balancinc Act]; Paul Starr, The Social Transformation of American Medicine (1982).

2 Arthur Barsky, Worried Sick: Our Troubled Quest for Wellness 11-15 (1988).

3 Haislmaier, supra note 1, at 10; Starr, supra note 1, at 311.

4 Delbanco, Thomas L. et al., Paying the Physician's Fee: Blue Shield and the Reasonable Charge, 301 New Eng. J. Med. 1314 (1979)Google Scholar; Jack, Hadley, How Should Medicare Pay Physicians?, 62 Milbank Memorial Fund Q. 279 (1984)Google Scholar; Jencks, Stephen F. & Allen, Dobson, Strategies for Reforming Medicare's Physician Payments, 312 New Eng. J. Med. 1492 (1985)Google Scholar; Roe, Benson B., The UCR Boondoggle: A Death Knell for Private Practice?, 305 New Eng. J. Med. 41 (1981)Google Scholar.

5 See Haislmaier, supra note 1, at 28; Starr, supra note 1, at 386-87.

6 Gina, Kolata, The Price of Progress: High-Tech Treatments Meet with Little Support from Insurers, 5(11) Cortlandt Forum 24 (1992)Google Scholar.

7 Huber, Peter W., Galileo's Revenge: Junk Science in the Courtroom 78 (1991)Google Scholar; Institute of Medicine, Medical Professional Liability and the Delivery of Obstetrical Care 77-78 (1989); Eddy, David M., Three Battles to Watch in the 1990s, 270 JAMA 520 (1993)Google Scholar; Garber, Alan M., No Price Too High?, 327 New Eng. J. Med. 1676 (1992)Google Scholar; Grimes, David A., Technology Follies: The Uncritical Acceptance of Medical Innovation, 269 JAMA 3030 (1993)Google Scholar; Melski, John W., Price of Technology: A Blind Spot, 267 JAMA 1516 (1992)Google Scholar.

8 Although it is generally accepted elsewhere in the economy that a buyer's willingness to pay should determine the nature of the goods and services he receives, this is a revolutionary idea in the health care field. Specifically, it is at odds with the hitherto fundamental tenet that [patients] are entitled to receive from HC providers not what they pay for, but what they neednot what they demand, but what doctors believe they should have. This idea has been closely related in turn to the myth that, as a technical matter, there exists one right way, discoverable in the collective wisdom of the medical profession, to treat each medical problem. A third variation on this same general theme has been the notion that the same standard of medical care should be available to all Americans regardless of their ability (as distinct from their willingness) to pay. Havighurst, Clark C., Private Reform of Tort-Law Dogma: Market Opportunities and Legal Obstacles, 49 Law & Contemp. Probs. 143, 149 (1986)Google Scholar [hereinafter Havighurst, Private Reform of Tort-Law Dogma].

9 E., Haavi Morreim, Fiscal Scarcity and the Inevitability of Bedside Budget Balancing, 149 Archives Internal Med. 1012 (1989).Google Scholar

10 Inglefinger speaks admiringly of the physician who will take charge and free the patient of worries and decisions about his illness, so that the patient can return to his other interests and concerns. He further suggests that [i]t is a doctor's obligation, by explanation and persuasion, to get the patient to take his medication as prescribed. If the patient fails to do so, the blame is often as much the physician's as the patient's. Inglefinger, Franz J., Arrogance, 303 New. Eng. J. Med. 1507, 1510-11 (1980)Google Scholar; see also Jay Katz, The Silent World of Doctor and Patient (1984); Donald, Oken, What to Tell Cancer Patients: A Study of Medical Attitudes, 175 JAMA 1120, 1128 (1961)Google Scholar.

11 Several commentators are often cited. See, e.g., Dan W. Brock, Life and Death: Philosophical Essays in Biomedical Ethics 328-29 (1993) (A crucial part of this patient-centered ethic, as it is understood by many physicians, is that physicians must do everything of potential benefit for the patients without regard to costs.); Levinsky, Norman G., The Doctor's Master, 311 New Eng. J. Med. 1573, 1573 (1984)Google Scholar ([P]hysicians are required to do everything that they believe may benefit each patient without regard to costs or other societal considerations.); Asking physicians to be cost-conscious would be asking them to abandon their central commitment to their patients. Robert M. Veatch, DRGs and the Ethical Reallocation of Resources, Hastings Center Rep., June 1986, at 38; see also Abrams, Frederick R., The Doctor-with Two Heads: The Patient Versus the Costs, 328 New Eng. J. Med. 975 (1993)Google Scholar.

Note, such an ethic can only arise where funding is not only generous, but where patients are substantially insulated from the costs of care, believing that others such as employers or governments, not they, pay for their care. Where patients experience obvious economic consequences from their medical care, it is difficult if not impossible not to recognize that the high costs of the best care can adversely affect the patient's welfare in other areas. If the patient incurs little or no obvious cost, it is easy to suppose that only his medical welfare should be considered.

12 As Eddy notes, the practitioner's sense of responsibility to his or her individual [patients] is probably the most important barrier to the responsible use of health care resources. See Eddy, David M., Broadening the Responsibilities of Practitioners: The Team Approach, 169 JAMA 1849, 1851 (1993)Google Scholar. Similar issues are seen in the question whether to use inexpensive streptokinase for clot lysis in myocardial infarctions (heart attacks), or genetically engineered alternatives that provide a one percent improvement in survival at nearly ten times the cost. See GUSTO Investigators, An International Randomized Trial Comparing Four Thrombolytic Strategies for Acute Myocardial Infarction, 329 New Eng. J. Med. 673 (1993).

13 Brett, Alan S., Hidden Ethical Issues in Clinical Decision Analysis, 305 New Eng. J. Med. 1150 (1981)Google Scholar; E., Haavi Morreim, The Law of Nature and the Law of the Land: Of Horses, Zebras, and Unicorns, PHAROS, Spring 1990, at 2 (1990).Google Scholar

14 May, William F., The Beleaguered Rulers: The Public Obligation of the Professional, 2 (1) Kennedy Inst. Ethics J. 25 (1992)Google Scholar; Mehlman, Maxwell J., The Patient-Physician Relationship in an Era of Scarce Resources: Is There a Duty to Treat?, 25 Conn. L. Rev. 349 (1993)Google Scholar; E., Haavi Morreim, Economic Disclosure and Economic Advocacy: New Duties in the Medical Standard of Care, 12 J. Legal Med. 275 (1991)Google Scholar.

15 Arnold S. Relman, The Future of Medical Practice, Health Aff., Summer 1993, at 5, 7-8.

16 Havighurst, Private Reform of Tort-Law Dogma, supra note 8, at 149; Note, Rethinking Medical Malpractice Law in Light of Medicare Cost-Cutting, 98 Harv. L. Rev. 1004, 1010 (1985).

17 These points are discussed in greater detail elsewhere. See E. Haavi Morreim, Rationing and the Law, in Rationing America's Medical Care: The Oregon Plan and Beyond 159-84 (M.A. Strosberg et al. eds., 1992) [hereinafter Morreim, Rationing and the law]; E., Haavi Morreim, Cost Containment and the Standard of Medical Care, 75 Cal. L. Rev. 1719 (1987)Google Scholar; E., Haavi Morreim, Stratified Scarcity: Redefining the standard of care, 17 Law, Med. & Health Care 356 (1989)Google Scholar; E., Haavi Morreim, Stratified Scarcity and Unfair Liability, 36 Case W. Res. L. Rev. 1033 (1986)Google Scholar; see also Mehlman, supra note 14, at 373; Siliciano, John A., Wealth, Equity and the Unitary Medical Malpractice Standard, 77 Va. L. Rev. 439, 441 (1991)Google Scholar.

18 Mehlman, for instance, argues that physicians have been obligated and entitled to shift costs, heroically to use whatever resources are necessary to deliver necessary care and, thereby, to preserve patients trust. In this discussion, he does not attend explicitly to the fact that the resources thus delivered by physicians to their patients usually belong to other people. See Mehlman, supra note 14, at 374. For further discussion, see Morreim, Rationing and the Law, supra note 17, at 159.

19 Epstein, Richard A., Medical Malpractice: The Case for Contract, 1 Am. B. Found. Res. J. 87, 93 (1976)Google Scholar; Havighurst, Private Reform of Tort-Law Dogma, supra, note 8, at 163; Havighurst, Clark C., Prospective Self-Denial: Can Consumers Contract Today to Accept Health Care Rationing Tomorrow?, 140 U. Pa. L. Rev. 1755, 1766 (1992)Google Scholar [hereinafter Havighurst, Prospective Self-Denial]; Kalb, Paul E., Controlling Health Care Costs by Controlling Technology: A Private Contractual Approach, 99 Yale L.J. 1109, 1117 (1990)Google Scholar; see also Tunkl v. Regents of Univ. of Cal., 383 P.2d 441, 44647 (Cal. 1963); Emory Univ. v. Porubiansky, 282 S.E.2d 903, 904-05 (Ga. 1981).

20 Examples include coverage for high-dose chemotherapy with autologous bone marrow transplant for advanced breast cancer, AIDS or multiple myeloma, laetrile for various forms of cancer, and major organ transplants. See, e.g., Leonhardt v. Holden Business Forms Co., 828 F. Supp. 657, 661 (D. Minn. 1993); Nesseim v. Mail Handlers Benefit Plan, 792 F. Supp. 674, 678 (D.S.D. 1992); Dozsa v. Crum & Forester Ins. Co., 716 F. Supp. 131, 137-40 (D.N.J. 1989); DiDomenico v. Employers Coop. Indus. Trust, 676 F. Supp. 903, 907-08 (N.D. Ind. 1987); Montoya v. Johnston, 654 F. Supp. 511, 513-14 (W.D. Tex. 1987); Bradley v. Empire Blue Cross, 562 N.Y.S.2d 908, 909-10 (Sup. Ct. 1990). But see Harris v. Omaha Co., 992 F.2d 706, 712-13 (7th Cir. 1993).

Numerous academics have also addressed this issue. See Abraham, Kenneth S., Judge-Made Law and Judge-Made Insurance: Honoring the Reasonable Expectations of the Insured, 67 VA. L. Rev. 1151, 1152-54 (1981)Google Scholar; Ferguson, John H. et al., Court-Ordered Reimbursement for Unproven Medical Technology: Circumventing Technology Assessment, 269 JAMA 2116, 2120-21 (1993)Google Scholar; Hall, Mark A. & Anderson, Gerard F., Health Insurers'Assessment of Medical Necessity, 140 U. PA. L. Rev. 1637, 1637-39 (1992)CrossRefGoogle Scholar; Havighurst, Prospective Self-Denial, supra note 19, at 1766; James, Frank P., The Experimental Treatment Exclusion Clause: A Tool For Silent Rationing, 12 J. Legal Med. 358, 374 (1991)Google Scholar; Kalb, supra note 19, at 1117-18.

21 Aside from a reimbursement system that fueled price inflation and encouraged maximally technological health care, other factors fueling the escalation of health care costs include the aging of the population and concomitant rise of chronic illness, the appearance of AIDS and other costly disabilities, and a litigiousness that inspires defensive medicine. For a more detailed discussion and references see Morreim, Balancing Act, supra note 1, at 9-21.

22 Id.

23 See Berenson, Robert A., In a Doctor's Wallet, New Republic, May 18, 1987, at 11, 1213Google Scholar; Hillman, Alan A., Financial Incentives for Physicians in HMOs: Is There a Conflict of Interest?, 317 New Eng. J . Med. 1743, 1746-48 (1987)Google Scholar [hereinafter Hillman, Financial Incentives for Physicians in HMOs]; Hillman, Alan A. et al., How Do Financial Incentives Affect Physicians Clinical Decisions and the Financial Performance of Health Maintenance Organizations?, 321 New Eng. J. Med. 86, 8891 (1989)Google Scholar [hereinafter Hillman et al., How Do Financial Incentives Affect Physicians Clinical Decisions].

24 Blum, John D., Economic Credentialing: A New Twist in Hospital Appraisal Processes, 12 J. Legal Med. 427 (1991).Google Scholar

25 Burstin, Helen R. et al., The Effect of Hospital Financial Characteristics on Quality of Care, 270 JAMA 845, 848 (1993)Google Scholar; Jack, Hadley et al., Comparison of Uninsured and Privately Insured Hospital Patients: Condition on Admission, Resource Use, and Outcome, 265 JAMA 374, 378-79 (1991)Google Scholar; Chris, Hafner-Eaton, Physician Utilization Disparities Between the Uninsured and Insured: Comparisons of the Chronically III, Acutely III, and Well Non-elderly Populations, 269 JAMA 787, 790-91 (1993)Google Scholar.

26 Ellwood, Paul M., Outcomes Management: A Technology of Patient Experience, 318 New Eng. J. Med. 1549 (1988)Google Scholar; Epstein, Arnold M., The Outcomes MovementWill It Get Us Where We Want to Go?, 323 New Eng. J. Med. 266 (1990)Google Scholar; Sheldon, Greenfield et al., Variations in Resource Utilization Among Medical Specialties and Systems of Care: Results from the Medical Outcomes Study, 267 JAMA 1624 (1992)Google Scholar; W., Pete Welch et al., Geographic Variation in Expenditures for Physicians'Services in the United States, 328 New Eng. J. Med. 621 (1993)Google Scholar; Wennberg, John E., Outcomes Research, Cost Containment, and the Fear of Rationing, 323 New Eng. J. Med. 1202 (1990)Google Scholar.

27 In psychiatric medicine, for instance, some payment protocols seem to presume that the patient with mental illnesses is a sick brain to be treated with drugs, rather than a disturbed person to be treated not just pharmacologically, but also with conversation and introspection. E., Haavi Morreim, The New Economics of Medicine: Special Challenges for Psychiatry, 15 J. Med. & Phil. 97 (1990)Google Scholar. Such protocols are not always based on evidence that the former approach is medically superior, but sometimes arise simply because they are less costly and because it is easier to document the results of drug treatment. Id.

28 Peter, Franks et al., Gatekeeping Revisited Protecting Patients from Overtreatment, 327 New Eng. J. Med. 424 (1992)Google Scholar; Schoenbaum, Stephen C., Toward Fewer Procedures and Better Outcomes, 269 JAMA 794 (1993)Google Scholar.

29 See supra notes 16-20 and accompanying text.

30 Leahy, Richard E., Rational Health Policy and the Legal Standard of Care: A Call for Judicial Deference to Medical Practice Guidelines, 77 Cal. L. Rev. 1483 (1989)Google Scholar.

31 Helling v. Carey, 519 P.2d 981, 983 (Wash. 1974).

32 Fortess, Eric E. & Kapp, Marshall B., Medical Uncertainty, Diagnostic Testing, and Legal Liability, 13 Law, Med. & Health Care 213, 217 (1985)Google Scholar.

33 Wash. Rev. Code Ann. 4.24.290 (West 1975).

34 See, e.g., Huber, supra note 7, at 75-91.

35 See supra notes 19-20 and accompanying text.

36 Ferguson et al., supra note 20; James, supra note 20; Abraham, supra note 20.

37 Harris, Meyer, Breast Study Woes Preview Reform Barriers, Am. Med. News, Mar. 8, 1993, at 10-11.Google Scholar

38 For an excellent discussion of this point, see Leahy, supra note 30, at 1483. Any screening test, for example, will detect some, but not all cases of the disease in question. One can do a test more often and one can add further tests, but at some point the cost will vastly outweigh the benefits. At that point one must acknowledge that a very good policy can still fail to detect some instances of the disease. When a court declares retrospectively that because a broader use of that test would have helped this patient, in effect it rewrites policies on the basis of the very kind of unfortunate individual instances that any such policy must expect. In effect, the court thereby rewrites the standard of care in the spirit of the Artesian Wellwhere the patient's health is concerned, money is no object.

See also HUBER, supra note 7, at 187 (arguing that the individualist goals of compensating injured plaintiffs can systematically conflict with broader policy goals of deterring unwanted conduct); Eddy, David M., The Individual vs. Society: Is There a Conflict?, 265 JAMA 1446 (1991)Google Scholar (arguing that the policies that we as individuals adopt prospectively, contemplating the possibility of disease, need to be enforced even when we have a disease requiring treatment that may not be covered by the policy).

39 See Burstin, supra note 25; Hadley et al., supra note 25; Hafner-Eaton, supra note 25.

40 In Hall v. Hilbun, 466 So. 2d 856 (Miss. 1985), the Mississippi Supreme Court recognized that physicians in remote rural areas may not have access to the same level of technology found in larger cities. This resource-based variant of the locality rule, however, does not help physicians who work in those larger cities, where the resource differences are based on poverty, not geography.

41 For further discussion of this problem see Morreim, Rationing and the Law, supra note 17.

42 Morreim, Rationing and the Law, supra note 17; Hall, Mark A., The Malpractice Standard under Health Care Cost Containment, 17 Law, Med. & Health Care 347 (1989)Google Scholar; Siliciano, supra note 17, at 439; Furrow, Barry R., Medical Malpractice and Cost Containment: Tightening the Screws, 36 Case W. Res. L.R. 985 (1985-86)Google Scholar.

43 In one of those recommendations, enterprise liability would recognize that bad outcomes in health care are more the product of the system than of individual misconduct, and would ascribe liability to institutions such as hospitals or HMOs instead of to physicians. Physicians care would then be overseen by the institutions, not directly by courts. Indeed, some observers suggest that we are already well on the way to enterprise liability, as courts increasingly ascribe liability to hospitals and HMOs under theories of corporate liability and ostensible agency. See Stanhope v. Los Angeles College of Chiropractic, 128 P.2d 705 (Cal. App. 1942); Insinga v. LaBella, 543 So. 2d 209 (Fla. 1989); Crewe v. Mt. Clemens Gen. Hosp., 273 N.W.2d 429 (Mich. 1978); McClellan v. Health Maintenance, 604 A.2d 1053 (Pa. Super. 1992).

Such an approach might, as touted, ease physicians malpractice fears considerably. However, it would confuse still further the concept of personal responsibility in health care. The fact remains that physicians still can err as individuals: the surgeon can read the x-ray backwards and remove the wrong kidney; the internist can put the feeding tube down the trachea instead of the esophagus, or neglect to ask about drug allergies when prescribing a potent antibiotic. When a professional with such power over a patient's life is clearly careless, it is doubtful that either our ethics or our courts would permit that individual to escape personal liability in favor of an institution. Courts may happily add such institutions to the defendants box, but actually excusing the physician would fly in the face of long-held values in which the physician's greatest and most direct responsibility is to the patient he serves, not to an institution for which he works.

44 See note supra notes 58-59 and accompanying text.

45 Peter Williams, Legal Responsibility In Health Care: Whose Fault is it Anyway?, in Responsibility in Health Care 227, 232-36 (George J. Agich ed., 1982).

46 Peter Huber, Liability: The Legal Revolution and its Consequences (1988); Epstein, supra note 19, at 101-02.

47 Burgess v. Superior Court (GUPTA), 831 P.2d 1197 (Cal. 1992) (emotional distress for mother witnessing injury to her infant during delivery); Kerins v. Hartley, 21 Cal. Rptr. 2d 621 (Cal. Ct. App. 1993) (emotional distress as patient learned her physician was infected with HIV while performing surgery on her); Oswald v. LeGrand, 453 N.W.2d 634 (Iowa 1990) (recognizing injury for emotional distress caused by mistakenly telling mother that baby was stillborn); Carey v. Lovett, 622 A.2d 1279 (N.J. 1993) (emotional distress suffered in observing the obstetric malpractice in delivery of one's child); Howard v. Alexandria Hosp., 429 S.E.2d 22 (Va. 1993) (establishing cause of action for fear of contracting HIV from unsterile surgical equipment, though no evidence existed that patient had become infected); Peter, Jacobson, Medical Malpractice and the Tort System, 262 JAMA 3320, 3325 (1989)Google Scholar. But see Lubowitz v. Albert Einstein Medical Ctr., 623 A.2d 3 (Pa. Super. 1993) (fear of HIV not compensable, since the emotional distress was not caused by infection itself).

48 Jacobson, supra note 47, at 3325; see also Waffen v. United States Dep't of Health & Human Servs., 799 F.2d 911 (4th Cir. 1986); DeBurkarte v. Louvar, 393 N.W.2d 131 (Iowa 1986); Falcon v. Memorial Hosp., 462 N.W.2d 44 (Mich. 1990); Valdez v. Lyman-Roberts Hosp., Inc., 638 S.W.2d. 1ll (Tex. Ct. App. 1982).

49 See, e.g., Gallimore v. Children's Hosp. Medical Ctr., 617 N.E.2d 1052 (Ohio 1993) (establishing cause of action for loss of filial consortium). Other providers, such as hospitals and HMOs, likewise face expanding bases of liability. Direct corporate negligence for the selection and monitoring of medical staff, and ostensible agency where physicians appear to be employees of the hospital, both have implicated hospitals even where they cannot be held liable under the doctrine of vicarious liability. See Stanhope v. Los Angeles College of Chiropractic, 128 P.2d 705 (Cal. Ct. App. 1942); Insinga v. LaBella, 543 So.2d 209 (Fla. 1989); Grewe v. Mt. Clemens Gen. Hosp., 273 N.W.2d 429 (Mich. 1978); McClellan v. Health Maintenance, 604 A.2d 1053 (Pa. Super. 1992); see also Blumstein, James F. et al., Report of the Panel on Cost Containment, in Health Care Delivery and Tort: Systems on a Collision Course? 76 (Elizabeth Rolph ed., 1991).Google Scholar

50 Jacobson, supra note 47; Ferguson et al., supra note 20, at 2120. For the most recent Supreme Court discussion of rules for admitting scientific evidence, see Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786 (1993).

51 Particularly in product liability cases, punitive damages have been seen by some commentators to amount to elaborate ways to make business pay for everyone else's bad luck. Richard, Mahoney & Michael, Dubinsky, Innovation on Trial: Punitive Damages Versus New Products, 246 Science 1395, 1397 (1989)Google Scholar; see also Huber, supra note 9, at 12 ([i]f the new tort system cannot find a careless defendant after an accident, it will often settle for a merely wealthy one).

Admittedly, it can be argued on the other side that many of the earliest rules governing malpractice litigation tended to favor physiciansi.e., rules requiring expert rather than lay testimony, permitting variations in the standard of care according to locality and subspecialty, and litigating informed consent cases as negligence rather than as battery. Further, even though more recent trends have favored injured patients, some of these have been ameliorated by various states tort reform legislation. Note also that in recent years, joint and several liability has been eliminated in favor of proportionate liability by a number of courts and legislatures. See, e.g., Mclntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992). Still, it can plausibly be argued that malpractice liability is not always closely linked with medical culpability, and that good medical practice does not always ward off legal evils.

52 Williams, supra note 45; Epstein, supra note 19, at 98, (citing but disagreeing with such suggestions); Weiler, Paul C. et al., Proposal for Medical Liability Reform, 267 JAMA 2355 (1992)Google Scholar.

53 It should be noted that physicians respond, not just to realities, but also to their fears of litigation which, in some cases, are based more on supposition than on fact. To some extent, physicians legal fears are exaggerated by mythology of their own manufacture. See, e.g., Helen, Burstin et al., Do the Poor Sue More? A Case-Control Study of Malpractice Claims and Socioeconomic Status, 270 JAMA 697 (1993)Google Scholar; John, Glasson David, Orentlicher, Caring for the Poor and Professional Liability: Is There a Need for Tort Reform?, 270 JAMA 1740 (1993)Google Scholar; Annas, George J., Law and Medicine: Myths and Realities in the Medical School Classroom, 1 Am.J.L. & Med. 195 (1975)Google Scholar. In one study, for instance, ignorance about legal requirements prompted some physicians to be far more reluctant to withdraw unwanted or unwarranted life-support than their more knowledgeable colleagues. See S., Van McCrary et al., Treatment Decisions for Terminally III Patients: Physicians Legal Defensiveness and Knowledge of Medical Law, 20 Law, Med. & Health Care 364 (1992)Google Scholar.

54 Estimates of the cost of defensive medicine vary. The American Medical Association pegs professional liability costs (including malpractice insurance premiums and defensive medicine) at 20.7 billion, while the Congressional Budget office says that the cost is less than one percent of the total national health care tab, and an actuarial firm says health-related tort costs are 10 billion. B., McCormick, Cost of Liability Depends on How You Count, Am. Med. News, NOV. 9, 1992, at 3, 67Google Scholar; see also Reynolds, Roger A. et al., The Cost of Medical Professional Liability, 257 JAMA 2776 (1987)Google Scholar.

55 Mahoney, Richard J. & Littlejohn, Stephen E., Innovation on Trial: Punitive Damages Versus New Products, 246 Science 1395 (1989)Google Scholar.

56 It is not the purpose of this article to discuss the pros and cons of enterprise liability, but a brief comment may be made. Even if we agree that many of the adverse outcomes of medical care arise from problems in the delivery system rather than from individual foul-ups, and even if we agree that institutions should bear greater legal responsibility when this occurs, arguably there still should be room in the tort system to acknowledge injuries that clearly are the product of individuals negligence. Where the surgeon operates on the wrong leg, Spero v. Board of Regents of Univ. of State, 551 N.Y.S.2d 352 ( App. Div. 1990), or where a radiologist puts a patient on the table and goes out and has a cup of coffee, Lopez v. Swyer, 300 A.2d 563, 565 (NJ. 1973), tort law should recognize that the physician has a special, personal obligation to compensate the injured patient.

57 As David Eddy points out, physicians can no longer avoid bringing economic considerations into the care of their patients. Overall policies promoting cost-conscious and effective uses of medical resources can only be implemented by individual physicians at the bedside and in the office. Eddy, supra note 12; see also E. Haavi, Morreim, Fiscal Scarcity and the Inevitability of Bedside Budget Balancing, 149 Archives Internal Med. 1012 (1989)Google Scholar.

58 Leveling up would require such a staggering commitment of resources that other public priorities would unduly suffer; leveling down would promote gross inefficiency, lower quality, achieve a dubious sort of equity in which waiting time would be the main resource allocator, and threaten fundamental precepts of freedom by barring individual expenditures for health above some arbitrary limit set by government. Blumstein, James F. & Sloan, Frank A., Redefining Government's Role in Health Care: Is a Dose of Competition What the Doctor Should Order?, 34 Vand. L. Rev. 849, 865 (1981)Google Scholar.

59 Havighurst, Private Reform of Tort-Law Dogma, supra note 8, at 149.

60 Rainbolt, George W., Competition and the Patient-Centered Ethic, 12 J. Med. & Phil. 85, 88 (1987)Google Scholar. Note also, people do not all value health, health care, and health insurance equally. Some people have different priorities for their money, while other people avoid health care for religious or personal reasons. An insistence that everyone receive precisely the same care, at enormous collective expense, leaves little margin for such alternative personal values.

61 Eddy, supra note 7.

62 See Morreim, supra note 9; see also Morreim, Balancing Act, supra note 1; E., Haavi Morreim, Cost Containment: Challenging Fidelity and Justice, Hastings Center Rep., Dec. 1988, at 20, 21.Google Scholar

63 Wilson v. Blue Cross of S. Cal., 271 Cal. Rptr. 876, 883 (Cal. Ct. App. 1990); Wickline v. California., 192 Cal. App. 3d 1630, 1645 (1987).

64 E., Haavi Morreim, Gaming the System: Dodging the Rules, Ruling the Dodgers, 151 Archives Internal Med. 443 (1991)Google Scholar. Such gaming ultimately can trigger even severer cost containment mechanisms.

65 Havighurst, Prospective Self-Denial, supra note 19; Reinhardt, Uwe W., American Values: Are They Blocking Health-System Reform? Med. Econs., Nov. 2, 1992, at 126, 141Google Scholar; Reinhardt, Uwe W., You Pay When Business Bankrolls Health Care, Wall St. J., Dec. 2, 1992, at A10Google Scholar; Weaver, James P., The Best Care Other People's Money Can Buy, Wall St. J., Nov. 19, 1992, at A14.Google Scholar

66 Reinhardt, Uwe E., Reorganizing the Financial Flows in American Health Care, 12 Health Aff. 172, 176 (Supp. 1993).Google Scholar

67 Katz, supra note 10, at 130-64.

68 Canterbury v. Spence, 464 F.2d 772, 782-83 (D.C. Cir. 1972); Cobbs v. Grant, 502 P.2d 1, 10 (Cal. 1972); Salgo v. Leland Stanford Jr. Univ. Bd. of Trustees, 317 P.2d 170, 181 (Cal. Ct. App. 1957); Natanson v. Kline, 350 P.2d 1093, 1106, reh'g denied, 354 P.2d 670, 672 (Kan. 1960).

69 Regina, Herzlinger, The Simplest, Best Cure for Our Health Care Crisis, Med. Econs., NOV. 18, 1991, at 135, 140422Google Scholar; Glenn, Ruffenach, Firms Use Financial Incentives to Make Employees Seek Lower Health-Care Fees, Wall St. J., Feb. 9, 1993, at Bl, B6Google Scholar; Hsaio, William C. et al., The Resource-Based Relative Value Scale, 258 JAMA 799, 800 (1987)Google Scholar.

70 Ruffenach, supra note 69.

71 A particular antihypertensive medication may be less costly than its alternatives for equally good blood pressure reduction, for instance, but if its side effects are unacceptable to patients, their consequent noncompliance could cause greater medical trouble in the long run. Similarly, Wennberg and colleagues have discerned that, when patients with benign prostatic hypertrophy are given detailed information about various options, many decline surgery in favor of watchful waitingcontrary to the usual pattern. Wennberg, John E., Outcomes Research, Cost Containment, and the Fear of Rationing, 323 New Eng. J. Med. 1202 (1990)Google Scholar; Schoenbaum, supra note 28.

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73 Aaron, Henry J. & Schwartz, William B., The Painful Prescription: Rationing Hospital Care 127-28 (1984); Tony Hope et al., Not Clinically Indicated: Patients Interests or Resource Allocation?, 306 Brit. Med. J. 379 (1993)Google Scholar.

Admittedly, there important medical questions concerning whether to screen for breast cancer solely with regular manual exam, or with mammography (and at what intervals), or with Positron Emission Tomography (PET) scans. We need to know how many new cases of cancer each will detect, at what stage of curability. But the fundamental choices are matters of value: how much money is worth spending in order to detect one more case that would not otherwise have been found with a lower threshold of screening. Eddy, supra note 7; Leahy, supra note 30. In 1975, Neuhauser and Lewicki showed that, repeating a test to detect occult blood in a patient's stool more than once can detect new cases of colon cancer. However, by the time the test was repeated a sixth time, the cost of each new cancer detected was over. 47 million. Duncan, Neuhauser & Ann, Lewicki, What Do We Gain From the Sixth Stool Guaiac?, 293 New Eng. J. Med. 226, 228 (1975)Google Scholar.

74 Franz Inglefinger, noted editor of New England Journal of Medicine, sought for himself a physician who would dominate, who would tell me what to do, who would in a paternalistic manner assume responsibility for my care . It is a doctor's obligation, by explanation and persuasion, to get the patient to take his medication as prescribed. If the patient fails to do so, the blame is often as much the physician's as the patient's. Inglefinger, supra note 10.

75 At times we can absolve or absorb familial guilt if we say it is best to do nothing, yet following the family's wishes does not excuse us from immoral choices. Unlike others who can comment from a distance about the moral appropriateness of our actions, unless or until we are fired, we are responsible for making treatment decisions . Perhaps more than we are willing to admit we can decide what symptoms to ignore or acknowledge, what level of intervention to provide or forgo, and what options to recommend or avoid recommending to family members . If we ignore a problem until it is too late, if we stand by and do nothing, letting nature take its course, we have implicidy made a decision.

Denise Niemira, Life on the Slippery Slope: A Bedside View of Treating Incompetent Elderly Patients, Hastings Center. Rep., May-June, 1993, at 14, 15.

76 Erde, Edmund L., Studies in the Explanation of Issues in Biomedical Ethics: (II) On Play[ing] God', Etc., 14 J. Med. & Phil. 593 (1989)Google Scholar.

77 For a useful discussion of the concept of responsibility, see George J. Agich, The Concept of Responsibility in Medicine, in Responsibility in Health Care (George J. Agich ed., 1982).

78 For further discussion of this argument, see E., Haavi Morreim, Impairments and Impediments in Patients Decision Making: Reframing the Competence Question, 294 J. Clin. Ethics 298 (1993)Google Scholar.

79 Hardwig, , Robin Hoods and Good Samaritans: The Role of Patients in Health Care Distribution, 8 Theoretical Med. 47, 5358 (1987)Google Scholar; Marion, Danis & Churchill, Larry R., Autonomy and the Common Weal, Hastings Center Rep., Jan.-Feb. 1991, at 25, 28.Google Scholar

80 E. Haavi Morreim, Of Rescue and Responsibility: Learning to Live with Limits, J. Med. Philosophy (forthcoming 1994).

81 A variety of approaches could grant patients the appropriate choices and rewards. Although we can review several, my agenda here is not to recommend any particular one.

Managed competition, currently the favorite of many health policy analysts, would empower each patient to choose among available plans on the basis of lower costs, better service, or other parameters. See Kalb, supra note 19.

Analogously, the Federal Employee Health Benefits Plan permits employees to select among a wide variety of plans and to garner savings from their choices, in the process keeping FEHBP expenditures for health benefits below those of most employers. See Herzlinger, supra note 69, at 148; Robert E. Moffit, Surprise A Government Health Plan That Works, Wall St. J., Apr. 2, 1992, at A14.

Similar results have been documented for private corporations that give employees choices among plans and direct rewards for prudence. See Herzlinger, supra 69; Ruffenach, supra note 70. Under another approach, individuals might be required to purchase their own insurance direcdy on a competitive market, helped by tax breaks and government subsidies to ensure that everyone can afford to. See Critical Issues: A National Health System for America, supra note 1.

Patients economic involvement might also be promoted via options to purchase care beyond whatever is specified in the minimum plan. Havighurst, Clark C., Practice Guidelines for Medical Care: The Policy Rationale, 34 St. Louis U.L.J. 777 (1990)Google Scholar [hereinafter Havighurst, Practice Guidelines for Medical Care]; Havighurst, Prospective Self-denial, supra note 19. On this approach, basic care would encompass interventions that are demonstrated to be not only safe and effective, but also the most cost-effective way to achieve the goal in question. Thus, if two antibiotics have essentially die same effectiveness but one costs considerably more for the convenience of once-daily radier than thrice-daily administration, the basic package would include only the cheaper drug. Similarly, one might receive costly low-osmolar contrast media for radiographic studies only if one is specifically at risk for harm from the use of high-osmolar media, and not in cases where the costlier agent merely enhances comfort. Eddy, David M., Applying Cost-Effectiveness Analysis: The Inside Story, 268 JAMA 2575 (1992)Google Scholar; Jacobson, Peter D. & C. John, Rosenquist, The Introduction of Low-Osmolar Contrast Agents in Radiology, 260 JAMA 1586 (1988)Google Scholar. Quite possibly such a basic plan would also restrict the use of very high-cost interventions that are only slightly more effective than significantly cheaper alternatives, as where streptokinase achieves nearly the same clot lysis for patients with myocardial infarction as far cosdier genetically engineered drugs. GUSTO Investigators, supra note 12.

A higher premium might cover interventions that are safe and effective, but not cost-effective. Hall & Anderson, supra note 20. At this level one might have the more convenient antibiotic, the more comfortable low-osmolar contrast media, and perhaps also the higher-cost clot lysis drugs. A sdll higher premium might grant access to the newest technologies, promising and perhaps life-saving but not yet proven safe, effective, or cost-effective. As inefficient or insufficiently tested procedures are proved and improved through their availability in these costlier plans, they could then be integrated into the basic package of services provided for everyone. Gina, Kolata, When Doctors Say Yes and Insurers No, 69 Med. Econs. 87 (1992)Google Scholar.

82 Milton Friedman, The Folly of Buying Health Care at the Company Store, Wall St. J., Feb. 3, 1993, at A14 (discussing benefits of utilizing Medisave accounts); John Goodman & Gerald Muscrave, Patient (1992).

83 Martin Feldstein, What's Wrong With the Clinton Health Plan?, Wall St. J., July 14, 1993, at A12.

84 Berenson, supra note 23, at 11; Hillman, Financial Incentives for Physician in HMOs, supra note 23; Hillman et al., How Do Financial Incentives Affect Physicians Clinical Decisions?, supra note 23; Douglas, Levinson, Toward Full Disclosure of Referral Restrictions and Financial Incentives by Prepaid Health Plans, 317 New Eng. J. Med. 1729 (1987)Google Scholar.

85 Charles, Marwick, Using High-Quality Providers to Cope With Today's Rising Health Care Costs, 268 JAMA 2142 (1992)Google Scholar.

86 Melvin H. Kirschner, Managed Care is a Pox on us and Our Patients, Med. Econ., Nov. 16, 1992, at 46, 56.

87 This analysis is further described in Morreim, Stratified Scarcity, supra note 19.

88 A recent study in the New England Journal of Medicine, for example, shows that the use of fetal ultrasound in the absence of specific clinical indications to do the test yields no improvements in medical outcomes. Ewigman, Bernard G. et al., Effect of Prenatal Ultrasound Screening on Perinatal Outcome, 329 New Eng. J. Med. 821, 825 (1993)Google Scholar; see also Graboys, Thomas B. et al., Results of a Second-Opinion Trial Among Patients Recommended for Coronary Angiography, 268 JAMA 2537, 2537 (1992)Google Scholar (concluding that much of the coronary angiography currendy performed is probably unnecessary).

89 Truman v. Thomas, 611 P.2d 902, 906 (Cal. 1980).

90 Finkler, Steven A., The Distinction Between Cost and Charges, 96 Annals Internal Med. 102 (1982)Google Scholar.

91 Eddy, David M., Applying Cost-Effectiveness Analysis: The Inside Story, 268 JAMA 2575, 280 (1992)Google Scholar.

92 Economic agents can use medical outcomes research to help identify various policy optionsan array of resource standards (SRUs), if you will, from which patients can choose. There are many ways in which we can make tradeoffs between the health values we seek and the costs we are willing to pay for them. No particular amount of money is the correct amount to spend on health care, and no one formula can possibly be designated as the right way to determine which benefits to pursue and which to forego. Some of these choices can only be made on the societal level as we determine how much to tax ourselves, and what proportion of taxes to spend on health care versus education, defense, roads, research, and other priorities. Other choices can only be made within health plans, as each decides what ranges of services to offer on the market at what prices.

93 Note, this does not entail a single set of one-size-fits-all guidelines. As some commentators propose, patients should have some variety of guidelines (tiers of care) from which to choose. See Havighurst, Practice Guidelines for Medical Care, supra note 81; Hall & Anderson, supra note 20; Kalb, supra note 19. Note, some antitrust relief may be necessary for collaborative formation of practice guidelines. See Edward B. Hirshfeld, Tort Considerations for Third Party Payors, in Legal Implications of Practice Parameters 55 (K.B. Johnson et al. eds., 1990).

94 Chittenden, supra note 72; Hinden & Elden, supra note 72; Glover & Kuhlik, supra note 72; Hirshfeld, supra note 72.

95 Grumet, Gerald W., Health Care Rationing Through Inconvenience: The Third Party's Secret Weapon, 321 New Eng. J. Med. 607 (1989)Google Scholar; Light, Donald W., The Practice and Ethics of Risk-Rated Health Insurance, 267 JAMA 2503 (1992)Google Scholar.

96 Butler, Stuart W., A Tax Reform Strategy to Deal With the Uninsured, 265 JAMA 2541, 2543 (1991)Google Scholar; Weaver, supra note 65.

97 Ruffenach, supra note 69.

98 Moffit, supra note 81.

99 Edmund Faltermayer, Let's Really Cure the Health System, Fortune, Mar. 23, 1992, at 46, 49-50; Schoenbaum, supra note 28; Wennberg, supra note 26.

100 Berkely Rice, Educate Your Patients Without Taking More Time, Med. Econs., Oct. 5, 1992, at 92, 93; Barber, Benjamin R., Participatory Democracy in Health Care: The Role of the Responsible Citizen, 7 Trends in Health Care, L. & Ethics 9 (1992)Google Scholar; SHAPIRO, ROBIN S. Et. al., A Survey of Sued and Nonsued Physicians and Suing Patients, 149 Archives Internal Med. 2190 (1989)Google Scholar; Redelmeier, Donald A. et al., Understanding Patients Decisions: Cognitive and Emotional Perspectives, 270 JAMA 72 (1993)Google Scholar.

101 Council on Ethical and Judicial Affairs. Patient Responsibilities (adopted by House of Delegates, June 15, 1993).

102 Id.; see also M., Meyer, Patients'Duties, 17 J. Med. & Phil. 541 (1992)Google Scholar.

103 Where the patient is not competent to participate responsibly in health care, that responsible adult will of course be the patient's decision-making surrogate.

104 In New York Life Ins. Co. v. Johnson, the Third Circuit Court of Appeals upheld an insurer's right to deny benefits to a subscriber who had lied on his application form. The court noted that the consequence of lying must be more than a mere imposition of higher premiums retroactively. Otherwise, the applicant has everything to gain and nothing to lose by lying. The victims will be the honest applicants who tell the truth and whose premiums will rise over the long run to pay for the excessive insurance proceeds paid out as a result of undetected misrepresentations in fraudulent applications. New York Life Ins. Co. v. Johnson, 923 F.2d 279, 284 (3d Cir. 1991). Arguably, the same reasoning applies where patients seek health benefits to which they are not entitled. See Abraham, supra note 20, at 1188.

105 Kalb, supra note 19, at 1125-26; Epstein, supra note 19; Havighurst, Prospective Self-Denial, supra note 19, at 1787-88; Hall & Anderson, supra note 20. It is encouraging to see what may be the beginning of a stronger trend by courts to hold patients to the terms of their contracts. See McGee v. Equicor-Equitable HCA Corp., 953 F.2d 1192 (10th Cir. 1992); Coon v. Nicola, 21 Cal. Rptr. 2d 846 (Cal. Ct. App. 1993); Madden v. Kaiser Found. Hosps., 552 P.2d 1178 (Cal. 1976); Sarchett v. Blue Shield of Cal., 729 P.2d 267 (Cal. 1987); see also Edward Felsenthal, Rulings Support the Fine Print of Health Plans, Wall St. J., July 1, 1993, at Bl, B3; Pomerance, Alan J., Don't Let HMOs Bully You Out of Your Fees, 70 Med. Econ. 147 (1993)Google Scholar.

106 Some observers propose that judges should use the device of judicial notice to adopt carefully drawn practice parameters rather than competing expert witnesses to guide decisions about standards of care. See Leahy, supra note 30, at 1506.

107 Moffit, supra note 81.