Holding Health Care Accountable: Law and the New Medical Marketplace.

• Author: Epstein, Richard A.
• Position: Book Review

By E. Haavi Morreim New York: Oxford University Press, 2001. Pp. 320. $49.95 cloth.

The practice of medicine makes a fundamental distinction between diagnosis and treatment. Unless the former is done, the latter cannot be accomplished. Even if the former is accomplished, the latter may still go awry, either because the condition is untreatable or because the physician has chosen the wrong treatment. What is true of the care provided to individual patients is true of the health care system as a whole. Everyone agrees that today's health care system as a whole is subject to profound ailments, but there is much disagreement about the nature of the underlying malady and about the nature of the cure. The potential pitfalls are many. Some people are troubled by the unequal access to medical resources, which they view as a symptom of a larger form of social injustice. Others are concerned with the impersonal care that is often provided by various forms of managed- or medical-care organizations (MCOs). Still others, including Haavi Morreim, are concerned about the allocation of liability (if any) among the various participants who are responsible for the provision of health care: the physicians who provide the care; the hospitals that supply the facilities; and the insurers and MCOs that administer the plans that determine whether certain conditions or treatments are covered under the policies they provide for their patients.

In dealing with these issues in her book Holding Health Care Accountable, Morreim shows a comprehensive grasp of the subject and a good eye for those results that should raise eyebrows. She does a nice job, for example, in recounting the story of an unfortunate health-maintenance organization (HMO) that was held liable for its refusal to cover an autologous bone marrow transplant for a woman whose breast cancer had spread to her bone marrow (see Fox v. HealthNet, Cal. Super, 1993, at 41). The jury was so unimpressed with the HMO's contention that the treatment was experimental and therefore excluded trader its contract that it awarded the plaintiff $89 million (including $77 million in punitive damages) for her pains. The immediate query is why other plan subscribers should be required to foot the bill for such outlandish verdicts, even if the HMO had been as guilty as sin. The story does not get any better when it is noted that subsequent research proved that the proposed treatment was indeed worthless, after more than $3...