Consumer expectations and access to health care: a commentary.

• Author: Menzel, Paul T.
• Position: Response to Leslie Pickering Francis, University of Pennsylvania Law Review, vol. 140, p. 1881, May 1992 - The Law and Policy of Health Care Rationing: Models and Accountability

Expectations play a significant and widespread role in the morality of ordinary life. Leslie Francis has drawn a helpful and largely accurate picture of the conditions of their moral relevance: their reasonableness, encouragement, longevity, centrality in a person's life, and consistency with background justice.(1) In health care in particular it is important to keep these limits on the moral force of expectations clearly in mind, for it is virtually inevitable that a rational and decent system of care will disappoint patients' and subscribers' expectations at critical and disputed points. The main reason is simply the oft-rehearsed point about the effect of insurance: a sharp escalation of people's desire to use services regardless of increasing cost relative to statistical marginal benefit. Add to this either employer or societal provision of insurance and people naturally come to expect coverage of a wide range of care whose cost is little object. Any medical economy with a high incidence of insurance will need to find some way to bring expectations under control.

The combination of these expectations with the need to control them constitutes an extremely explosive mixture for any legal system that tries to see its justification as largely moral. Take the combination of two of Francis's moral factors, the reasonability of expectations and their encouragement.(2) It may have not been reasonable, in the most comprehensive sense, for plaintiffs to have had the expectations that they did (coverage of some debatably costworthy service, let us say). Yet those expectations will often have been encouraged, if not by the actual behavior of a defendant employer or insurer, then at least by the larger context of an insured and assisted medical economy. In tort law we should want to keep the heat on the defendant whenever it is she, not just the larger societal situation, who has encouraged the unreasonable expectations; legal dispute will then primarily focus on the alleged fact of encouragement. Our inclination against the defendant here is the strongest when we can think of the thing that is unreasonable as not only the expectations that were encouraged, but the encouragement itself.

Perhaps this can be used to clarify Professor Francis's treatment of Firestone Tire & Rubber Co. v. Burch,(3) Adams v. Blue Cross/Blue Shield,(4) and Brown v. Blue Cross & Blue Shield.(5) Since the creation of inflated expectations is so inherent and significant a...