1 Clark C. Havighurst and Barak D. Richman, Distributive Injustice(s) in American Health Care, 69 L & Contemp Prob 7, 11 (2006).

2 Id at 13.

3 Hall, Mark A., Making Medical Spending Decisions: The Law, Ethics & Economics of Rationing Mechanisms 21 (Oxford, 1997)Google Scholar.

4 Economists generally agree that the “principal factor by far [in rising costs] is medical innovations like new drugs, new surgical procedures and new diagnostic techniques.” Gina Kolata, A Conversation with Victor Fuchs: An Economist's View of Health Care Reform, New York Times F6 (May 2, 2000).

5 Robinson, James C. The Corporate Practice of Medicine: Competition and Innovation in Health Care 21 (Berkeley, 1999).Google Scholar

6 Id at 23.

7 Committee on Costs of Medicare, Medical Care for the American People (Chicago, 1932).Google Scholar

8 Robinson, The Corporate Practice of Medicine: Competition and Innovation in Health Care at 23 (cited in note 5).

9 Id at 28.

10 Id at 24.

11 Robinson, James C. and Yegian, Jill M., Medical Management After Managed Care, Health Affairs W4-269, W4-269-W4-270 (2004 – Web Exclusive), online at http://content.healthaffairs.org/cgi/reprint/hlthaff.w4.269v1.pdf (visited Feb 9, 2009).CrossRefGoogle Scholar

12 Callahan, Daniel and Wasunna, Angela A., Medicine and the Market: Equity v. Choice 49 - 50 (Johns Hopkins, 2006).Google Scholar

13 Hall, Mark A., The Death of Managed Care: A Regulatory Autopsy, 30 J Health Politics, Policy & L 427 (2005).Google Scholar

14 “It is clear that a consumer-driven revolution has begun, and there is reason to believe that it will shape the future direction of the health care system.” Jill Quadagno, Who Wins? Who Loses? Who Pays?, 27 Health Affairs 294, 295 (2008). For especially intelligent treatments of consumerism, see Clark Havighurst's oeuvre. For his witty introduction to his own work, see Clark C. Havighurst, I’ve Seen Enough! My Life and Times in Health Care Law and Policy, 14 Health Matrix 107 (2004). An excellent and recent survey is Timothy Stoltzfus Jost, Health Care at Risk: A Critique of the Consumer-Driven Movement (Duke, 2007). Several book reviews provide an efficient (and sufficient?) introduction to consumerist writing. See Clark C. Havighurst, Healthy Competition: What's Holding Back Health Care and How To Free It, 25 Health Affairs 1740 (2006); Alan Maynard, Who Killed Health Care? America's $2 Trillion Medical Problem – and the Consumer-Driven Cure, 26 Health Affairs 1783 (2007); Uwe E. Reinhardt, , Health Care Reform Now!: A Prescription for Change, 27 Health Affairs 291 (2008)Google Scholar.

15 John C. Goodman, and Gerald L. Musgrave, , Patient Power: The Free-Enterprise Alternative to Clinton's Health Plan vii (Cato Institute, 1994).Google Scholar

16 Robert Pear, , Bush Proposes Linking the Medicare Drug Premium to Beneficiaries’ Income, NY Times (Feb 16, 2008) (quoting Michael Levitt), online at http://www.nytimes.com/2008/02/16/washington/16health.html.Google Scholar

17 Mark A. Hall, , The Legal and Historical Foundations of Patients as Medical Consumers, 96 Geo L J 583 (2008).Google Scholar

18 William M. Sage, , Regulating Through Information: Disclosure Laws and American Health Care, 99 Colum L Rev 1701 (1999).Google Scholar “The fundamental idea underlying the theory of managed care was to achieve social equity through the distribution of vouchers … that could be used only for the purchase of health insurance offered by a variety of private, competing health insurance plans.” Uwe E. Reinhardt, Can Efficiency in Health Care Be Left to the Market?, 26 J Health Politics, Policy & L 967, 985 (2001).

19 Perhaps the most popular of the labels, “consumer-directed health care,” is “so widely used that many different concepts masquerade under its banner ….” Len M. Nichols, , et al, Are Market Forces Strong Enough to Deliver Efficient Health Care Systems? Confidence Is Waning, 23 Health Affairs 8, 16 (2004).Google Scholar

20 For evidence that people shop for doctors more than one might suppose, see Carl E. Schneider, , The Practice of Autonomy: Patients, Doctors, and Medical Decisions (Oxford, 1998).Google Scholar

21 To avoid grating repetition of “test or treatment,” we normally use “treatment” to include “test.“

22 See Mark A. Hall, and Carl E. Schneider, , Patients as Consumers: Courts, Contracts, and the New Medical Marketplace, 106 Mich L Rev 643 (2008).Google Scholar

23 US Dept Treasury, Treasury, IRS Issue 2009 Indexed Amounts for Health Savings Accounts, online at http://www.treas.gov/press/releases/hp975.htm (visited Mar 21, 2009). Seventy percent of the people with family coverage in a consumerist plan had “a family deductible of $2,000 to $4,999; 29 percent reported a deductible of at least $5,000.” Paul Fronstin and Sara R. Collins, Findings from the 2007 EBRI/Commonwealth Fund Consumerism in Health Survey, 315 EBRI Issue Brief 1, 9 (2008), online at http://www.commonwealthfund.org/publications/publications_show.htm?doc_id=673661 (visited Feb 9, 2009).

24 Id at 4.

25 Giridhar Mallya, , et al, Are Primary Care Physician Ready to Practice in a Consumer- Driven Environment?, 14 Am J Managed Care 661, 665 (2008).Google Scholar

26 Jessica Greene, , et al, Comprehension and Choice of a Consumer-Directed Health Plan: An Experimental Study, 14 Am J Managed Care 369, 374 (2008).Google Scholar

27 Marsha Garrison and Carl E. Schneider, The Law of Bioethics: Individual Autonomy and Social Regulation 27-467 (West, 2003).

28 William M. Sage, , Regulating Through Information: Disclosure Laws and American Health Care, 99 Columbia L Rev 1701 (1999).Google Scholar

29 For example, the Patient Self-Determination Act seeks to encourage patients to use advance directives to make “pre-need” decisions lest incompetence should prevent them from exercising their authority. 42 USC § 1395cc(a) (2008). The PSDA requires that patients be given information about advance directives. HIPAA regulations seek to permit patients to protect the confidentiality of medical information about them. 45 CFR Parts 160, 162, 164 (2009). The regulations require doctors and hospitals to give patients the information they need to manage the handling of confidential information.

30 For examples, see Carl E. Schneider, , After Autonomy, 41 Wake Forest L Rev 411 (2006).Google Scholar

31 A complete evaluation would be broad. At the least, it would ask economic questions like: Isn't much of our health care dollar spent on a small group of people whose care is so expensive that deductibles are irrelevant? Are health care costs driven by forces – like technology and the institutions of health care – that consumers can little affect? For an excellent survey of the issues, see Jost, Health Care at Risk (cited in note 14).

32 As we write, CNN tells us to “take heart, there may be more legislation … on the way. Last month New Jersey became the first state to enact a law that requires [matchmaking websites] to disclose whether they do background checks on members.” Jen Haley, Be a Savvy Consumer When Looking for Love Online, CNN.com, online at http://Www.Cnn.Com/2008/Living/Personal/02/14/Roym.Online.Dating/Index.html (visited Feb 10, 2009).

33 Kenneth J. Arrow, , Uncertainty and the Welfare Economics of Medical Care, 53 Am Economic Rev 941 (1963).Google Scholar

34 Amy B. Bernstein, and Anne K. Gauthier, , Choices in Health Care: What Are They and What Are They Worth?, 56 Med Care Res & Rev 5, 11 (1999).Google Scholar

35 Peter D. Jacobson, , Who Killed Managed Care? A Policy Whodunit, 47 SLU L Rev 365, 375 (2003).Google Scholar

36 Lawrence D. Brown, Management by Objection?: Public Policies to Protect Choice in Health Plans, 56 Med Care Res & Rev 145, 157 (1999).

37 See generally Melissa B. Jacoby, , The Debtor-Patient Revisited, 51 SLU L Rev 307 (2007)Google Scholar; Melissa B. Jacoby and Elizabeth Warren, Beyond Hospital Misbehavior: An Alternative Account of Medical-Related Financial Distress, 100 Nw U L Rev 535, 538-539 (2006); R.W. Seifert and M. Rukavina, Bankruptcy Is the Tip of a Medical-Debt Iceberg, 25 Health Affairs w89 (2006 – Web Exclusive)

38 Michele Heisler, et al, The Health Effects of Restricting Prescription Medication Use Because of Cost, 42 Med Care 626, 630 (2004).

39 Uwe E. Reinhardt, , The Pricing of U.S. Hospital Services: Chaos Behind a Veil of Secrecy, 25 Health Affairs 57, 65 (2006).Google Scholar

40 Dahlia K. Remler, and Sherry A. Glied, , How Much More Cost Sharing Will Health Savings Accounts Bring?, 25 Health Affairs 1070, 1073 (2006).Google Scholar

41 On formularies, their promise and problems, see Peter J. Neumann, et al, Do Drug Formulary Policies Reflect Evidence of Value?, 12 Am J Managed Care 30 (2006).

42 Steven Reichert, et al, Physicians’ Attitudes About Prescribing and Knowledge of the Costs of Common Medications, 160 Arch Intern Med 2799, 2800 (2000). For the contrasting view three decades ago, see Peter Temin, Taking Your Medicine: Drug Regulation in the United States 103, 105 (Harvard, 1980)..

43 Paul Clay Sorum, Ethical Decision Making in Managed Care, 156 Arch Intern Med 2041 (1996).

44 Pegram v. Herdrich, 530 US 211 (2000).

45 A plan without burst appendices is performing unnecessary appendectomies, which have their own risks.

46 Reinhardt, 26 J Health Politics, Policy & L at 967 (cited in note 18).

47 Jacobson, 47 SLU L Rev at 374 (cited in note 35).

48 For a failure described at length, see Hall and Schneider, 106 Mich L Rev at 643 (cited in note 22).

49 Doe v. HCA Health Services of Tennessee, 46 SW3d 191, 194 (Tenn 2001).

50 Hospital charge masters are described in Gerard Anderson, From “Soak the Rich” to “Soak the Poor”: Recent Trends in Hospital Pricing, 26 Health Affairs 780, 786 (2007); Uwe E. Reinhardt, The Pricing of U.S. Hospital Services: Chaos Behind a Veil of Secrecy, 25 Health Affairs 57, 58-59 (2006); Allen Dobson, et al, Medicare Payment Advisory Commission, A Study of Hospital Charge Setting Practices (2005), online at http://www.medpac.gov/publications/contractor_reports/Dec05_Charge_setting.pdf (visited Feb 10, 2009). For examples, see http://www.treas.gov/offices/public-affairs/hsa/.

51 On the impossibility of all this, see Hall and Schneider, 106 Mich L Rev at 643 (cited in note 22).

52 Ha T. Tu and Jessica H. May, Self-Pay Markets In Health Care: Consumer Nirvana Or Caveat Emptor?, Health Affairs w217, w223 (2007 – Web Exclusive), online at http://content.healthaffairs.org/cgi/content/full/hlthaff.26.2.w217v1/DC1 (visited Feb 11, 2009).

53 Anderson, 26 Health Affairs at 786 (cited in note 50).

54 “[F]ew of these initiatives provide health plan enrollees the data they might need to make informed choices among available providers or treatments.” Mark Merlis, National Health Policy Forum, Health Care Price Transparency and Price Competition (2007), online at http://www.nhpf.org/library/background-papers/BP_PriceTransparency_03-28-07.pdf (visited Feb 11, 2009).

55 Perhaps consumers shouldn't even want this information published, since publication of prices might inhibit discounts. See Margaret K. Kyle, and David B. Ridley, , Would Greater Transparency and Uniformity of Health Care Prices Benefit Poor Patients? 26 Health Affairs 1384 (2007); Paul B. Ginsburg, Shopping for Price in Medical Care, 26 Health Aff w208 (2007);Google Scholar Symposium, 23 Frontiers of Health Service Management 3 (2007).

56 Reinhardt, 26 J Health Politics, Policy & L at 987 (cited in note 18).

57 Fronstin and Collins, 315 EBRI Issue Brief at 29 (cited in note 23).

58 Reinhardt, 26 J Health Politics, Policy & L at 986–87 (cited in note 18).

59 Deborah Haas-Wilson, , Arrow and the Information Market Failure in Health Care: The Changing Content and Sources of Health Care Information, 26 J Health Politics, Policy & L 1031, 1040 (2001).Google Scholar

60 Id at 1041.

61 Brown, 56 Med Care Res & Rev at 160 (cited in note 36).

62 Ha T. Tu and Johanna R. Lauer, Word of Mouth and Physician Referrals Still Drive Health Care Provider Choice, 9 Center for Studying Health System Change 1, 5 (2008), online at http://www.hschange.org/CONTENT/1028/ (visited Feb 11, 2009).

63 Tu and May, Health Affairs (2007 – Web Exclusive) at w222 (cited in note 52).

64 Charles L. Bosk, Occupational Rituals in Patient Management, 303 NEJM 71, 72 (1980).

65 Jay Katz, The Silent World of Doctor and Patient 166 (Free Press, 1984).

66 Eric J. Cassell, The Changing Concept of the Ideal Physician, Daedalus 185, 186 (1986).

67 Id at 191. On clinical uncertainty, see Schneider, The Practice of Autonomy at 48-75 (cited in note 20).

68 Brown, 56 Med Care Res & Rev at 149 (cited in note 36).

69 Tu and May, Health Affairs (2007 – Web Exclusive) at w221 (cited in note 52). LASIK “is widely regarded as the self-pay market with the most favorable conditions for consumer shopping: It is an elective, nonurgent, simple procedure,” so consumers should have time and capacity to shop for it, “screening exams are not required to obtain initial price quotes, which keeps the dollar and time costs of shopping reasonable; and easy entry of providers (ophthalmologists) into the market has stimulated competition and kept prices down.”

70 Dominick L. Frosch, et al, Creating Demand for Prescription Drugs: A Content Analysis of Television Direct-to-Consumer Advertising, 5 Annals Family Med 6 (2007).

71 Alan Lyles, Direct Marketing of Pharmaceuticals to Consumers, 23 Annual Rev Public Health 73 (2002).

72 Steven Morgan, et al, The Economics of Direct-to-Consumer Advertising of Prescription Advertising of Prescription-Only Drugs: Prescribed to Improve Consumer Welfare?, 8 J Health Services Res & Policy 237 (2003).

73 Kimberly A. Kaphingst, and William DeJong, , The Educational Potential of Direct-Toconsumer Prescription Drug Advertising, 23 Health Affairs 143, 145 (2004)Google Scholar.

74 David S. Zingmond, et al, Information Superhighway or Billboards by the Roadside? An Analysis of Hospital Web Sites, 175 Western J Med 385 (2001).

75 Mark A. Hall, , The Theory and Practice of Disclosing HMO Physician Incentives, 65 L & Contemp Prob 207, 227 (2002).Google Scholar Similarly, lending disclosure requirements may “create incentives for lenders to draft contract terms that … continue to obscure the actual contract terms.” Susan Block-Lieb and Edward J. Janger, The Myth of the Rational Borrower: Rationality, Behavioralism, and the Misguided “Reform” of Bankruptcy Law, 84 Texas L Rev 1481, 1560 (2005-2006).

76 Amy B. Bernstein, and Anne K. Gauthier, , Choices in Health Care: What Are They and What Are They Worth?, 56 Med Care Res & Rev 5, 13 (1999).Google Scholar

77 James S. Lubalin and Lauren D. Harris-Kojetin What Do Consumers Want and Need to Know in Making Health Care Choices?, 56 Med Care Res & Rev 67, 72 (1999).

78 For example, B. McKinstry, et al, Do Patients and Expert Doctors Agree on the Assessment of Consultation Skills?, 21 Family Practice 75 (2004), found “no meaningful association” between patients’ and experts’ assessments of doctors’ skills. John T. Chang, , et al, Patients’ Global Ratings of Their Health Care Are Not Associated with the Technical Quality of Their Care, 144 Annals Intern Med 665, 671 (2006)Google Scholar, “found that patient reports about interpersonal quality were distinct from technical quality of care as measured by medical records and patient interviews.”

79 For a brief description, see J.D. Kleinke, Vaporware.com: The Failed Promise of the Health Care Internet: Why the Internet Will Be the Next Big Thing Not To Fix the U.S. Health Care System, 19 Health Affairs 57, 66-67 (2000).

80 Anderson, 26 Health Affairs at 786 (cited in note 50).

81 Laurence Baker, et al, Use of the Internet and E-Mail For Health Care Information: Results From a National Survey, 289 JAMA 2400, 2402 (2003).

82 Yaniv Hanoch and Thomas Rice, Can Limiting Choice Increase Social Welfare? The Elderly and Health Insurance, 84 Milbank Q 37, 54 (2006).

83 Baker, et al, 289 JAMA at 2405 (cited in note 81).

84 Piero Impicciatore, et al, Reliability of Health Information for the Public on the World Wide Web: Systematic Survey of Advice on Managing Fever in Children at Home, 314 British Med J 1875, 1878 (1997). Similarly downbeat is Angela Fagerlin, et al, Patient Education Materials About the Treatment of Early-Stage Prostate Cancer: A Critical Review, 140 Annals Intern Med 721, 724 (2004).

85 Hanoch and Rice, 84 Milbank Q at 54 (cited in note 82).

86 “Accessing health information using search engines and simple search terms is not efficient. Coverage of key information … is poor and inconsistent …. High reading levels are required to comprehend Web-based health information.” Gretchen K. Berland, et al, Health Information on the Internet: Accessibility, Quality, and Readability in English and Spanish, 285 JAMA 2612 (2001).

87 Kleinke, 19 Health Affairs at 67 (cited in note 79).

88 G. Caleb Alexander, et al, Barriers to Patient-Physician Communication About Outof- Pocket Costs, 856 J Gen Intern Med 19 (2004).

89 Hall and Schneider, 106 Mich L Rev at 655 (cited in note 22).

90 Sara R. Collins, et al, The Commonwealth Fund, Gaps in Health Insurance: An All-American Problem 20 (2006), online at http://www.commonwealthfund.org/usr_doc/Collins_gapshltins_920.pdf.

91 Hall and Schneider, 106 Mich L Rev at 655-56 (cite in note 22).

92 Even when doctors spoke with sophisticated patients (San Francisco AIDS patients) about an important topic (CPR), conversations were brief, doctors did most of the talking, and they “dominated the discussions.” James A. Tulsky, et al, How Do Medical Residents Discuss Resuscitation with Patients?, 10 J Gen Intern Med 436 (1995).

93 For a historical view of the ethics and practice of fees, see Fridolf Kudlien, Medicine as a “Liberal Art” and the Question of the Physician's Income, 31 J History Med 448 (1976).

94 Alex D. Federman, , Don't Ask, Don't Tell: The Status of Doctor-Patient Communication About Health Care Costs, 164 Arch Intern Med 1723, 1723 (2004).Google Scholar

95 See, for example, Berkeley Rice, How to Market Your Practice, Med Econ 53 (Mar 4, 2005), online at http://medicaleconomics.modernmedicine.com/memag/Medical+Practice+Management:+Pra ctice+Pointers/Practice-Pointers-How-to-market-yourpractice/ ArticleStandard/Article/detail/148876 (visited Feb 13, 2009). “[P]hysician price advertising continues to be quite rare,” and “physicians are strongly opposed to price advertising.” John A. Rizzo, & Richard J. Zeckhauser, , Advertising and the Price, Quantity, and Quality of Primary Care Physician Services, 27 J Human Resources 381, 388-89, n 12 (1992)Google Scholar.

96 John Fabre, Medicine as a Profession: Hip, Hip, Hippocrates: Extracts from The Hippocratic Doctor, 315 British Med J 1669 (1997).

97 Howard F. Stein, The Money Taboo in American Medicine, 7 Med Anthropology 1, 11 (1983).

98 G. Caleb Alexander, et al, Patient-Physician Communication About Out-of-Pocket Costs, 290 JAMA 953, 955 (2003).Google Scholar

99 Thomas P. O'Toole et al, Full Disclosure of Financial Costs and Options to Patients: The Roles of Race, Age, Health Insurance, and Usual Source for Care, 15 J Health Care Poor & Underserved 52, 56 (2004).

100 Fronstin and Collins, 315 EBRI Issue Brief at 33 (cited in note 23).

101 Derjung M. Tarn, et al, Physician Communication About the Cost and Acquisition of Newly Prescribed Medications, 12 Am J Managed Care 657, 657 (2006).Google Scholar

102 Michele Heisler et al, Clinician Identification of Chronically Ill Patients Who Have Problems Paying for Prescription Medications, 116 Am J Med 753, 753 (2004).

103 Herman Miles Somers and Anne Ramsay Somers, Doctors, Patients, and Health Insurance 209, 209 (1961).

104 Peter Temin, Taking Your Medicine: Drug Regulation in the United States 103, 105 (1980).

105 G.M. Allan et al, Physician Awareness of Drug Cost: A Systematic Review, 4 PLoS Med 1486, 1486 (2007).

106 Reichert et al, 160 Arch Intern Med at 2802 (cited in note 42). Nor did a third of them realize that Medicare did not (then) cover medications.

107 See generally John D. Goodson, Unintended Consequences of Resource-Based Relative Value Scale Reimbursement, 298 JAMA 2308 (2007).

108 Giridhar Mallya et al, 14 Am J of Managed Care at 666 (cited in 25).

109 Mark A. Hall and Carl E. Schneider, 106 Mich L Rev at 657 (cited in note 22) (quoting Atul Gawande, Piecework: Medicine's Money Problem, New Yorker, Apr. 4, 2005, at 44).

110 Kleinke, 19 Health Affairs at 61 (cited in note 79).

111 For an introduction to this unexpectedly challenging problem see Gro Jamtvedt et al, Audit and Feedback: Effects on Professional Practice and Health Care Outcomes, 1 Cochrane Database Syst Rev 259 (2006); Peter J. Greco and John M. Eisenberg, Changing Physicians’ Practices, 17 NEJM 1271, 1271 (1993); Jacqueline Kosecoff et al, Effects of the National Institutes of Health Consensus Development Program on Physician Practice, 258 JAMA 2708, 2712 (1987);Lee A. Green, and Colleen M. Seifert, , Translation of Research Into Practice: Why We Can't “Just Do It”, J Am Bd Family Prac 541, 541 (2005)Google Scholar; Lee Green and David R. Mehr, What Alters Physicians’ Decisions to Admit to the Coronary Care Unit?, 45 J Family Prac 219, 223 (1997).

112 For a helpful discussion of this issue, see E. H. Morreim, High-Deductible Health Plans: New Twists on Old Challenges from Tort and Contract, 59 Vanderbilt L Rev 1207, 1224- 32 (2006).

113 For more on the difficulties patients face resisting medical bills, see Hall and Schneider, 106 Mich L Rev at 643 (cited in note 22).

114 Magan Medical Clinic v. California State Board of Medical Examiners, 57 Cal Rptr 256, 263 (Ct App 1967).

115 Hall and Schneider, 106 Mich L Rev at 652 (cited in note 22).

116 For this history, see Mark A. Hall and Carl E. Schneider, Learning From the Legal History of Billing for Medical Fees, 23 J Gen Intern Med 1257 (2008).

117 “[M]any studies have suggested … that physicians’ decisions are influenced by a wide variety of factors that are unrelated to a patient's specific medical problem. These factors include practice setting, degree of specialization, and physician age.” Lachlan Forrow et al, Science, Ethics, and the Making of Clinical Decisions: Implications for Risk Factor Intervention, 259 JAMA 3161, 3165 (1988). Furthermore, “[w]ide variations in the incidence of medical and surgical services are the norm, not the exception,” Bradford H. Gray, The Profit Motive and Patient Care: The Changing Accountability of Doctors and Hospitals 252 (Harvard U Press, 1991) (emphasis in original), although much of this variation is concentrated in areas where there is professional disagreement about the treatment. Further, “as much as 25 percent or more of expenditures for medical care is for unnecessary or inappropriate services.” Id at 253. For vivid demonstrations of how much medical practices vary geographically, see John E. Wennberg et al, Are Hospital Services Rationed in New Haven or Over-Utilized in Boston?, 1987 Lancet 1185; Mark R. Chassin et al, Variations in the Use of Medical and Surgical Services by the Medicare Population, 314 NEJM 285 (1986).

118 For the background, see Hall and Schneider, 106 Mich L Rev at 643 (cited in note 22).

119 “[P]hysicians provided some of the most vociferous opposition to managed care ….” Jacobson, 47 SLU L Rev at 371 (cited in note 35).

120 Id at 366.

121 David A. Hyman, , Accountable Managed Care: Should We Be Careful What We Wish For?, 32 U Mich J L Reform 785, 801-02 (1999).Google Scholar

122 Nor can we count on organized medicine for constructive alternatives. “[P]roviders have spent too much of their time complaining about managed care and too little time considering whether alternatives to existing payment arrangements might make everyone better off.” David A. Hyman, Medicine in the New Millennium: A Self-Help Guide for the Perplexed, 26 Am J L & Med 143, 147 (2000).

123 M. Gregg Bloche, The Market for Medical Ethics, 26 J Health Politics, Policy & L 1099, 1108-09 (October 2001).

124 The depth of their feeling is suggested by their occasional willingness to deceive insurance companies to obtain coverage. This superficially appealing but also destructive practice is discussed in Rachael M. Werner et al, Lying to Insurance Companies: The Desire to Deceive among Physicians and the Public, 4 Am J Bioethics 53 (2004); Victor G. Freeman et al, Lying for Patients: Physician Deception of Third-Party Payers, 159 Arch Intern Med 2263 (1999); Matthew K. Wynia et al, Physicians Manipulation of Reimbursement Rules for : Between a Rock and a Hard Place, 283 JAMA 1858 (2000).

125 However, we have tolerated a sharp dissonance between medical ethics’ professed adherence to a rule of absolute patient loyalty and the reality of myriad violations of the rule. For example, physicians routinely make pragmatic decisions in public institutions operating under fixed budgets that may compromise individual patients’ optimal medical benefit. In clinical practice, physicians regularly compromise individual patient welfare to a small but discernible extent because of competing demands for their time and limits on available specialized facilities and technology. They also comfortably adopt prudent clinical heuristics that avoid extravagant expenditures for very small increments of medical benefit. Mark A. Hall and Robert A. Berenson, Ethical Practice in Managed Care: A Dose of Realism, 128 Ann Intern Med 395, 396 (1998).

126 Robert Zussman, Intensive Care: Medical Ethics and the Medical Profession 192 (U Chicago Press, 1992).

127 Schneider, The Practice of Autonomy 4-9 (cited in note 20).

128 Gail Weiss, A Patient's Coverage Takes a Back Seat to Clinical Factors, Say Most Respondents to our Ethics Policy, Med Economics (Dec 1, 2006) online at http://medicaleconomics.modernmedicine.com/memag/Physician+Surveys:+2006/Whatwould-you-do-Testing-and-insurance/ArticleStandard/Article/detail/387515 (visited February 25, 2009).

129 See also Samia A. Hurst, et al, Physicians’ Responses To Resource Constraints, 165 Arch Intern Med 639, 641-42 (2005)Google Scholar.

130 Hoangmai H. Pham et al, Physician Consideration Of Patients’ Out-Of-Pocket Costs In Making Common Clinical Decisions, 167 Arch Intern Med 663, 663 (2007). In one small survey, doctors considered patients’ insurance status in 47% of patients’ visits. David S. Meyers et al, Primary Care Physicians’ Perceptions of the Effect of Insurance Status on Clinical Decision Making, 4 Ann Fam Med 399, 401 (2006). In another study, 31% of the doctors questioned sometimes or often did not offer “a useful service to patients because of health plan coverage rules.” Matthew K. Wynia et al, Do Physicians Not Offer Useful Services Because Of Coverage Restrictions?, 22 Health Affairs 190, 190 (2003).

131 Reichert et al, 160 Arch Intern Med at 2800 (cited in note 42).

132 Elizabeth A. Mort et al, Physician Response To Patient Insurance Status in Ambulatory Care Clinical Decision-Making: Implications For Quality Of Care, 34 Med Care 783, 783 (1996), for example, finds that patients’ insurance status influences doctors’ clinical decisions more for discretionary than for necessary services.

133 Sherry Glied and Joshua Graff Zivin, How Do Doctors Behave When Some (But Not All) of Their Patients are in Managed Care?, 21 J Health Economics 337, 353 (2002). See also Rajesh Balkrishnan et al, Capitation Payment, Length of Visit, and Preventive Services, 8 Am J Managed Care 332, 332 (2002) (finding that “[p]hysicians spent 5.6% less time … with patients in capitated plans that with those in noncapitated plans.”).

134 Similarly, the designers of Medicare's “diagnostic-related groups” imagined that they would cause hospitals to treat more and less profitable services differently. Instead, hospitals essentially economized across the board, even for non-Medicare patients. David M. Frankford, The Medicare DRGs: Efficiency and Organizational Rationality, 10 Yale J Reg 273, 293-96 (1993).

135 Mallya et al, 14 Am J Managed Care at 665 (cited in note 25).

136 Id at 666.

137 Id at 665.

138 David Mechanic and Donna D. McAlpine, “Fifteen Minutes of Fame”: Reflections on the Uses of Health Research, the Media, Pundits, and the Spin, 20 Health Affairs 211, 213 (2001).

139 Goodson, 298 JAMA at 2308 (cited in note 107).

140 Kimberly S. H. Yarnall et al, Primary Care: Is There Enough Time for Prevention?, 93 Am J Public Health 635, 637 (2003).

141 Truls Ostbye et al, Is There Time for Management of Patients With Chronic Diseases in Primary Care?, 3 Ann Fam Med. 209, 209 (2005).

142 “Why should it be simple, when it can so easily be complicated?”

143 Ad Hoc Committee on Health Literacy for the Council on Scientific Affairs, American Medical Association, Health Literacy: Report of the Council on Scientific Affairs, 281 JAMA 552, 552 (1999).

144 Id.

145 On the word and the problem, see John Allen Paulos, Innumeracy: Mathematical Illiteracy and Its Consequences (Hill and Wang, 2001).

146 Judith H. Hibbard, et al, Consumer Competencies and the Use of Comparative Quality Information: It Isn't Just About Literacy, 64 Med Care Res & Rev 379, 388 (2007).Google Scholar

147 Id at 380.

148 Id at 388.

149 Lisa M. Schwartz et al, The Role of Numeracy in Understanding the Benefit of Screening Mammography, 127 Ann Intern Med 966, 966 (1997).

150 Id.

151 Block-Lieb and Janger, 84 Texas L Rev at 1538 (cited in note 75).

152 Jessica Greene et al, 14 Am J Managed Care at 374 (cited in note 26).

153 Lubalin and Harris-Kojetin, 56 Med Care Res & Rev at 72 (cited in note 77).

154 Worse, people's view of the information they need for choosing a health care plan or treatment changes rapidly as they acquire information.

155 Ginsburg, 26 Health Affairs at w213 (cited in noted 55). This disclosure was also abandoned because it created “pressure for price increases from hospitals identified as low cost.” Id.

156 Dewey K. Ziegler et al, How Much Information About Adverse Effects of Medication Do Patients Want from Physicians?, 161 Arch Intern Med 706, 708 (2001) (emphasis added).

157 Reinhardt, 25 Health Affairs at 59 (cited in note 39).

158 Judith H. Hibbard et al, Informing Consumer Decisions in Health Care: Implications from Decision-Making Research, 75 Milbank Q 395, 398 (1997). 159 Ziegler et al, 161 Arch Intern Med at 708 (cited in note 156) (emphasis added).

160 On the travails of IRBs with informed consent, see Simon Whitney and Carl E. Schneider, The Stop of Truth: The Case Against the IRB System (forthcoming).

161 Apparently this is an old problem. “According to the statutes of the university, every student before he is matriculated must subscribe his assent to the Thirty-nine Articles of the Church of England, which are signed by more than read them, and read by more than believe them.” Edward Gibbon, The Autobiography of Edward Gibbon 82 (Meridian Books, 1961).

162 Hibbard et al, 75 Milbank Q at 397–98 (cited in note 158) (emphasis added).

163 Hanoch and Rice, 84 Milbank Q at 41 (cited in 82).

164 The complexity to which health-insurance can descend is exemplified by Medicaid, a “horribly complicated law” that is “almost unintelligible to the uninitiated.” So unintelligible that “millions of eligible people are not enrolled.” Melissa B. Jacoby, The Debtor-Patient: In Search of Non-Debt-Based Alternatives, 69 Brooklyn L Rev 453, 467-68 (2004).

165 Brown, 56 Med Care Res & Rev at 161 (cited in note 68) (footnotes omitted). “‘We can tell people whether we have a withhold, bonus payments or capitation,’ remarked Paul Langevin, president of the New Jersey HMO Association, ‘but there are literally over 100,000 ways to pay, and these systems are very proprietary. And, quite frankly, the plans change them all the time.’” Id.

166 Mark A. Hall, The Theory and Practice of Disclosing HMO Physician Incentives, 65 L & Contemp Prob 207, 229 (2002). “Similarly, under the Medicare rules, regulators and plans reported that beneficiaries who are told that they have the right to request information about physician incentives rarely or never do so.” Id.

167 William M. Sage, Accountability Through Information: What the Health Care Industry Can Learn from Securities Regulation 22 (Milbank Memorial Fund, 2000).

168 Peter J. Cunningham et al, Do Consumers Know How Their Health Plan Works?, 20 Health Affairs 159, 165 (2001).

169 Id at 163. Another example: “approximately one-third of patients correctly identified their physicians’ payment method, one-third were incorrect, and one-third did not know.” Tracy E. Miller and Carol R. Horowitz, Disclosing Doctors’ Incentives: Will Consumers Understand and Value the Information?, 19 Health Affairs 149, 150 (2000) (describing Audrey C. Kao et al, The Relationship Between Method of Physician Payment and Patient Trust, 280 JAMA 1708 (1998)). Another study agreed that most patients know “little about how their health plan” compensates doctors. Anne G. Pereira and Steven D. Pearson, Patient Attitudes Toward Physician Financial Incentives, 161 Arch Intern Med 1313, 1316 (2001).

170 Sage, Accountability Through Information 22 (cited in note 167).

171 S. Walfish, and K.M. Watkins, , Readability Level Of Health Insurance Portability And Accountability Act Notices Of Privacy Practices Utilized By Academic Medical Centers, 28 Eval Health Prof 479, 479 (2005).Google Scholar

172 M.K. Paasche-Orlow, et al, Notices of Privacy Practices: A Survey of the Health Insurance Portability and Accountability Act of 1996 Documents Presented to Patients at US Hospitals, 43 Med Care 558, 558 (2005).Google Scholar

173 M.K. Paasche-Orlow et al, Readability Standards for Informed-Consent Forms as Compared with Actual Readability, 20 NEJM 348, 348 (2003).

174 Lauren A. McCormack et al, Measuring Beneficiary Knowledge in Two Randomized Experiments, 23 Health Care Financing Rev 47, 60 (2001).

175 On some of the barriers to success, see Michele Heisler, Helping Your Patients With Chronic Disease: Effective Physician Approaches to Support Self-Management, 8 Seminars Med Prac 43, 49 (2005); Kimberley Koons Woloshin et al, Patients’ Interpretation of Qualitative Probability Statements, 3 Arch Fam Med 961, 965 (1994).

176 Marshall B. Kapp, Patient Autonomy in the Age of Consumer-Driven Health Care: Informed Consent and Informed Choice, 28 J Legal Med 91, 102 (2007).

177 Judith H. Hibbard et al, Can Medicare Beneficiaries Make Informed Choices?, 17 Health Affairs 181, 190-91 (1998).

178 Id at 185.

179 Id at 186.

180 Cunningham et al, 20 Health Affairs at 165 (cited in note 168).

181 Lubalin and Harris-Kojetin, 56 Med Care Res & Rev at 73 (cited in note 77).

182 Deborah W. Garnick et al, How Well Do Americans Understand Their Health Coverage?, 12 Health Affairs 204, 206 (1993).

183 Id at 207.

184 Id at 209.

185 Colleen E. Medill, Challenging the Four “Truths” of Personal Social Security Accounts: Evidence From the World of 401(K) Plans, 81 NC L Rev 901, 947-48 (2003). On the scant knowledge about Social Security benefits, see Ruth Helman et al, Encouraging Workers to Save: The 2005 Retirement Confidence Survey, 280 EBRI Issue Brief 1, 27 (2005).

186 One literature suggests that people are happier and choose better when options are not too numerous. See e.g., Sheena S. Iyengar and Mark R. Lepper, When Choice is Demotivating: Can One Desire Too Much of a Good Thing?, 79 J Personality & Social Psych 995 (2000).

187 These things are complicated enough that high schools now teach courses covering them. Alas, with dismal success. See Block-Lieb and Janger, 84 Texas L Rev at 1561 (cited in note 75).

188 Barry Schwartz, The Paradox of Choice: Why More is Less (HarperCollins, 2004), develops many of these points.

189 Howard Margolis, Dealing With Risk: Why the Public and the Experts Disagree on Environmental Issues 33 (U Chicago Press, 1996).

190 This reluctance to make medical decisions is discussed and defended in Schneider, The Practice of Autonomy (cited in note 20). Chapter 2 scrutinizes the empirical data with tiresome thoroughness.

191 Jack Ende et al, Measuring Patient's Desire for Autonomy: Decision Making and Information-Seeking Preferences Among Medical Patients, 4 J Gen Intern Med 23, 26-27 (1989).

192 Benson B. Roe, , The UCR Boondoggle: A Death Knell for Private Practice?, 305 NEJM 41, 43 (1981)Google Scholar. And twenty years ago Judith H. Hibbard and Edward C. Weeks, Consumerism in Health Care: Prevalence and Predictors, 25 Med Care 1019 (1987), questioned whether patients would be willing to be consumers.

193 Fronstin and Collins, 315 EBRI Issue Brief at 15 (cited in note 23).

194 Ende et al, 4 J Gen Intern Med at 26 (cited in note 191). This remarkable contrast between an information score of 80 and a participation score of 33 is typical.

195 Fronstin and Collins, 315 EBRI Issue Brief at 29 (cited in note 23).

196 Lisa M. Schwartz et al, How Do Elderly Patients Decide Where to Go for Major Surgery?, 331 BMJ 821, 821 (2005).

197 Katherine M. Harris, How Do Patients Choose Physicians? Evidence from a National Survey of Enrollees in Employment-Related Health Plans, 38 Health Services Res 711, 712 (2003).

198 Id at 729.

199 Ha T. Tu and Johanna R. Lauer, Word of Mouth and Physician Referrals Still Drive Health Care Provider Choice, 9 Center Studying Health System Change 1, 5 (2008).

200 Judith Hibbard and L. Gregory Pawlson, Why Not Give Consumers a Framework for Understanding Quality?, 30 Joint Commission Journal Quality & Safety 347, 349 (2004).

201 James J. Choi et al, Defined Contribution Pensions: Plan Rules, Participant Choices, and the Path of Least Resistance, prepared for Tax Policy and the Economy 32 (2001).

202 Ruth Helman et al, 280 EBRI Issue Brief at 6 (cited in note 185).

203 Id at 25.

204 Shlomo Benartzi, and Richard H. Thaler, , Naive Diversification Strategies in Defined Contribution Saving Plans, 91 Am Econ Rev 79, 79 (2001).Google Scholar

205 Id at 95. “Perhaps the most disturbing aspect of 401(k) participants’ asset allocation choices is the large fraction of balances invested in employer stock…. For firms that offer company stock in their plans … about 33 percent of plan assets are held in this asset class.” Choi et al, Defined Contribution Pensions at 27 (cited in note 201). Investing heavily in your employer's stock flouts the diversification principle, partly because you already rely on your employer for your economic welfare. (The consequences are sadly shown by the fate of the Enron employees whose pensions were invested in Enron stock).

206 Stephen J. Choi, and A.C. Pritchard, , Behavioral Economics and the SEC, 56 Stanford L Rev 1, 12 (2003).Google Scholar

207 Brown, 56 Med Care Res & Rev at 151 (cited in note 68).

208 Id.

209 Id at 145.

210 Id at 146.

211 Philip Rieff, The Triumph of The Therapeutic: Uses of Faith After Freud 26 (Harper & Row, 1966).

212 Arthur L. Caplan, Informed Consent and Provider/Patient Relationships in Rehabilitation Medicine, in If I Were a Rich Man Could I Buy a Pancreas? and Other Essays on the Ethics of Health Care 245 (Indiana U Press, 1992).

213 Irving L. Janis, The Patient as Decision Maker, in W. Doyle Gentry, ed, Handbook of Behavioral Medicine 326, 333 (Guilford, 1984).

214 Id at 1531.

215 The vast literature on the sadly abundant defects in human reasoning is still well described in two classics: Richard Nisbett & Lee Ross, Human Inference: Strategies and Shortcomings of Social Judgment (Prentice-Hall, 1980); Daniel Kahneman et al, Judgment Under Uncertainty: Heuristics and Biases (Cambridge U Press, 1982). A more recent summary of evidence that was written for lawyers is Paul Slovic, Rational Actors and Rational Fools: The Influence of Affect on Judgment and Decision-Making, 6 Roger Williams U L Rev 163 (2000). Daniel Gilbert, Stumbling on Happiness (Alfred A. Knopf, 2006), surveys the issues with welcome wit. Barak Richman, Behavioral Economics and Health Policy: Understanding Medicaid's Failure, 90 Cornell L Rev 705 (2005), applies the literature to health care policy. Block-Lieb and Janger, 84 Texas L Rev 1481 (cited in note 75), applies this literature to a problem with important parallels to the consumerism question. Howard Margolis, Dealing With Risk: Why the Public and the Experts Disagree on Environmental Issues 33 (cited in note 189), applies the literature to a broader set of issues.

216 Lee Clarke, Context Dependency and Risk Decision Making, in James F. Short, Jr., and Lee Clarke, Organizations, Uncertainties and Risk 28 (Westview, 1992).

217 Paul Slovic, The Construction of Preference, 50 Am Psychologist 364, 365 (1995).

218 Hibbard et al, 75 Milbank Q at 402 (cited in note 158).

219 Frank A. Sloan, Arrow's Concept of the Health Care Consumer: A Forty-Year Retrospective, 26 J Health Politics, Policy & L 899, 899 (October 2001).

220 Fried, Terri R. et al, Inconsistency Over Time in the Preferences of Older Persons with Advanced Illness for Life-Sustaining Treatment, 55 J Am Geriatrics Society 1007, 1010 (2007)Google Scholar. Angela Fagerlin and Carl E. Schneider, Enough: The Failure of the Living Will, 34 Hastings Center Rep 30, 33 (March/April 2004), reviews the literature on the instability of patient's preferences

221 Fagerlin and Schneider, 34 Hastings Center Rep at 33 (cited in note 220) (quoting J. J. Christensen-Szalanski, Discount Functions and the Measurement of Patients’ Values: Women's Decisions during Childbirth, 4 Med Decision Making 47 (1984)).

222 Ellen Peters, et al, Less Is More In Presenting Quality Information To Consumers, 64 Med Care Res & Rev 169, 170 (2007).Google Scholar

223 Francis Bacon, Of Truth, in The Essays 61 (Penguin, 1985).

224 Garrison and Schneider, The Law of Bioethics at 306-307 (cited in note 27), reviews this research.

225 For fascinating applications of these ideas to medical situations, see Peter Ubel, You’re Stronger Than You Think (McGraw-Hill, 2006).

226 Linda S. Gottfredson & Ian J. Deary, Intelligence Predicts Health and Longevity, But Why?, 13 Current Directions Psych Sci 1, 2 (2004).

227 Linda S. Gottfredson, Intelligence: Is It the Epidemiologists’ Elusive “Fundamental Cause” of Social Class Inequalities in Health, 86 J Personality & Social Psych 174, 175 (2004).

228 Roberta G. Simmons, et al, Gift of Life: The Social and Psychological Impact of Organ Transplantation 241 (Transaction Books, 1987) (emphasis in original).

229 Lubalin and Harris-Kojetin, 56 Med Care Res & Rev at 88 (cited in 77).

230 Hanoch and Rice, 84 Milbank Q at 41 (cited in note 163).

231 Penny F. Pierce, , Deciding on Breast Cancer Treatment: A Description of Decision Behavior, 42 Nursing Res 20, 23 (1993).Google Scholar

232 Schneider, The Practice of Autonomy 94-95 (cited in note 20). For an extended development of these points, see id at 92-99.

233 Judith H. Hibbard et al, Choosing a Health Plan: Do Large Employers Use the Data?, 16 Health Affairs 172, 177 (1997).

234 Id at 177.

235 Id.

236 Id at 175.

237 Id at 179.

238 Block-Lieb and Janger, 84 Texas L Rev at 1539 (cited in note 75).

239 Fronstin and Collins, 315 EBRI Issue Brief at 33, 40 (cited in note 23).

240 Joseph P. Newhouse, Free For All?: Lessons from the Rand Health Insurance Experiment 339 (Harvard U Press, 1993). 241 Id.

242 Judith H. Hibbard et al, Does Enrollment in a CDHP Stimulate Cost-Effective Utilization?, 65 Medical Care Research and Review 437, 445 (2008).

243 Irving L. Janis and Leon Mann, Decision Making: A Psychological Analysis of Conflict, Choice, and Commitment 230 (Free Press, 1977).

244 T.P. Hackett and N.H. Cassem, Psychological Management of the Myocardial Infarction Patient, 1 J Human Stress 25, 27 (1975).

245 This is long established. See, e.g., B. Kutner et al, Delay in the Diagnosis and Treatment of Cancer: A Critical Analysis of the Literature, 7 J Chronic Diseases 95 (1958).

246 Janis and Mann, Decision Making at 230 (cited in note 243).

247 Richard P. Brickner, , My Second Twenty Years: An Unexpected Life 197 (Basic Books, 1976).Google Scholar

248 Peter J. Neumann et al, 12 Am J Managed Care at 30 (cited in note 41).

249 John Hsu et al, Unintended Consequences of Caps on Medicare Drug Benefits, 354 NEJM 2349, 2356 (2006).

250 Id at 2356-2357.

251 Thomas Rice & K.Y. Matsuoka, The Impact of Cost-Sharing on Appropriate Utilization and Health Status: A Review of the Literature on Seniors, 61 Med Care Res & Rev 415, 415 (2004).

252 As one reviewer says of one zealot and her book, “She and the majority of her 92 contributors … are convinced that a new age is dawning. As a consequence, this book projects an almost messianic fervor; it brims with the confidence and enthusiasm of converts to a great cause.” Arnold S. Relman, Review of Regina E. Herzlinger, ed, Consumer-Driven Health Care: Implications for Providers, Payers, and Policy-Makers (2004), 350 NEJM 2217, 2217 (2004).

253 Callahan and Wasunna, Medicine and the Market at 77 (cited in note 12).

254 Nichols et al, 23 Health Affairs at 8 (cited in note 19).

255 For an acidulous argument that Congress had it wrong, see David A. Hyman, Drive- Through Deliveries: Is “Consumer Protection” Just What the Doctor Ordered?, 78 NC L Rev 5 (1999).

256 “After condemnation of such clauses by every member of Congress who spoke on the subject, the General Accounting Office determined that there were no true gag clauses in any of the 1,150 contracts they examined …. Opponents of managed care also have yet to produce a single true gag clause ….” David A. Hyman, Consumer Protection in a Managed Care World: Should Consumers Call 911?, 43 Vill L Rev 409, 409 n142 (1998). Nor have providers presented any “proof that any of these provisions are being enforced in a way that systematically restricts communications between providers and patients.” David A. Hyman, Managed Care at the Millennium: Scenes from a Maul, 24 J Health Politics, Policy & L 1061, 1064 (1999).

257 Jacobson, 47 SLU L J at 381 (cited in note 35).

258 Callahan and Wasunna, Medicine and the Market at 50 (cited in note 12).

259 Brown, 56 Med Care Res & Rev at 151-52 (cited in note 68).

260 For a sobering example, see Theda Skocpol's analysis of the collapse of the Clinton reform – Boomerang: Health Care Reform and the Turn Against Government (Norton, 1997).

261 For the history, see Paul Starr, The Social Transformation of American Medicine: The Rise of a Sovereign Profession and the Making of a Vast Industry (Harper Collins, 1982).

262 As the dying Cardinal Wolsey famously lamented, “[b]ut if I had served God as diligently as I have done the King, he would not have given me over in my grey hairs. Howbeit this is the just reward that I must receive for my worldly diligence and pains that I have had to do him service, only to satisfy his vain pleasures, not regarding my godly duties.”

263 For a discussion of what patients want and what they get in today's bureaucratized medicine, see Schneider, The Practice of Autonomy at 181–231 (cited in note 20).

264 Barry Eisenberg, Customer Service in Healthcare: A New Era, 42 Hospital & Health Services Admin 17, 20 (1997).

265 Raj Arora et al, Influence of Key Variables on the Patients’ Choice of a Physician, 13 Quality Management Health Care 166, 166 (2004).

266 This argument is made in detail in Mark A. Hall and Clark C. Havighurst, Reviving Managed Care With Health Savings Accounts, 24 Health Affairs 1490 (2005).

267 Asked to describe the few “most important health care problems,” people first mentioned the “cost of health care services, the lack of or inadequate health insurance coverage, and the cost of prescription drugs. In combination, costs were the top issue for approximately half of respondents.” Robert J. Blendon et al, Americans’ Health Priorities: Curing Cancer and Controlling Costs, 20 Health Affairs 222, 227-228 (2001).

268 People praise health care reform. But their support can “be quickly tempered by messages implying that personal sacrifices might be required to deal with the broader problems.” Support “plummeted if Americans heard that reform would limit their choice of doctors or hospitals, would require rationing, would reduce the quality of care most persons now receive, or would require more than a modest tax increase.” Robert J. Blendon et al, What Happened to Americans’ Support for the Clinton Health Plan?, 8 Health Affairs 7, 12 (1995).

269 For some specifics, see Jessica H. May and Peter J. Cunningham, Tough Trade-Offs: Medical Bills, Family Finances and Access to Care, 85 Issue Brief Center Studying Health System Change 1, 1 (2004).

270 David Mechanic, Disadvantage Inequality and Social Policy: Major Initiatives Intended to Improve Population Health May Also Increase Health Disparities, 21 Health Affairs 48, 49 (2002).

271 The 2006 median household income was $48,201. U.S. Census Bureau, Current Population Survey, online at http://pubdb3.census.gov/macro/032007/hhinc/new04_001.htm (visited Mar 16, 2009).

272 For a forceful statement of ways the health care system already favors the well-to-do, see Havighurst and Richman, 69 L & Contemp Prob at 7 (cited in note 1).

273 Carl E. Schneider, 41 Wake Forest L Rev at 443 (cited in note 30).

274 Jessica Greene et al, 14 The American Journal of Managed Care at 370 (cited in note 26).

275 Ad Hoc Committee on Health Literacy for the Council on Scientific Affairs, American Medical Association, Health Literacy: Report of the Council on Scientific Affairs, 281 JAMA 552, 553 (1999).

276 Judith H. Hibbard et al, Is The Informed-Choice Policy Approach Appropriate For Medicare Beneficiaries?, 20 Health Affairs 199, 200 (2001).

277 Id at 200-01.

278 Id at 201.

279 Hibbard et al, 17 Health Affairs at 185 (cited in note 177).

280 Jessica H. May et al, Most Uninsured People Unaware of Health Care Safety Net Providers, 90 Center for Studying Health System Change Issue Brief 1, 1 (2004).

281 Sage, Accountability Through Information at 23 (cited in note 167).

282 Judith H. Hibbard et al, 65 Medical Care Research & Review at 447 (cited in note 242).

283 Sidney D. Watson, , The View from the Bottom: Consumer-Directed Medicaid and Cost-Shifting to Patients, 51 Saint Louis University Law Journal 403, 430 (2007).Google Scholar

284 David Mechanic, 21 Health Affairs at 51 (cited in note 270).

285 “All health care systems are a mixture of public and private elements: the rise of the market in healthcare involves an incremental shift and the selected application of various market ‘tools’ or instruments to different parts of the health system, rather than a wholesale move from one kind of system to another.” Callahan and Wasunna, Medicine and the Market at 42 (cited in note 12). 286 Id at 261.