Strangers in the Night: Law and Medicine in the Managed Care Era.

• Author: Miller, Frances H.
• Position: Book Review

STRANGERS IN THE NIGHT: LAW AND MEDICINE IN THE MANAGED CARE ERA. By Peter D. Jacobson. New York: Oxford University Press. 2002. Pp. xvii, 296. $36.

1. INTRODUCTION

   Health care in America is an expensive, complicated, inefficient, tangled mess--everybody says so. Patients decry its complexity, (1) health care executives bemoan its lack of coherence, (2) physicians plead for universal coverage to simplify their lives so they can just get on with taking care of patients, (3) and everyone complains about health care costs. (4) The best health care in the world is theoretically available here, (5) but we deliver and pay for it in some of the world's worst ways. (6) Occam's razor ("Among competing hypotheses, favor the simplest one") (7) is of little help here. There are no simple hypotheses--everything seems to conspire to make a bad situation worse. Moreover, despite abundant speculation, no one has yet come up with the silver bullet for reform, (8) So why don't doctors and lawyers, who consume health care themselves, get their act together and do something about it?

   Into this morass comes Peter D. Jacobson (9) to offer cold comfort and a fiduciary band-aid with Strangers in the Night: Law and Medicine in the Managed Care Era, which illuminates why doctors and lawyers often have a hard time working with each other. The book promises to "explain ... how the legal system helps shape health care delivery and policy, explore ... new ways of looking at the relationship between law and medicine, and reflect ... on why it all matters" (book jacket). Professor Jacobson does manage to do that in the course of this purportedly limited examination of law and managed care, which he defines as "the generic name for the new health care delivery system ... characterized by large patient populations within integrated [i.e., combining financing and provisions of health services in one entity] delivery systems" (p. 7). By the end of the book, however, one is left with a depressed sense that things could get a whole lot worse for all of us, not just for doctors and lawyers, before we just might--with luck--restructure the whole shooting match into a more humane and efficient health care delivery system. (10)

2. HISTORY

   Managed care is not the only battleground on which legal dilemmas involving doctors and lawyers have played out over the years, and Strangers in the Night traces these other controversies in brief historical are to show that medical and legal professionals have sometimes worked in concert (i.e., on public health issues and ridding the profession of charlatans) (p. 33), whereas at other times they have been at swords' point (i.e., during malpractice lawsuits or antitrust litigation) (p. 28). Too often overlooked, they have also long worked in relative harmony on routine contract and other legal matters. Professor Jacobson points out that notwithstanding the ebb and flow of various legal problems over the years, relationships between the two professions had more or less stabilized by 1965, with clearly understood rules relating primarily to medical malpractice litigation. But then Medicare and Medicaid interjected a monumental federal presence into health care financing through the Social Security Act of 1965, (11) and that "changed everything" (p. 57).

   Strangers in the Night explores the way the relationship between law and medicine evolved as regulation designed to protect the government's substantial post-1965 financial investment in health care proliferated over the intervening years. The book shows how, in response to the massive influx of federal money into health-service reimbursement, accompanied by increasing government oversight over expenditures, the law's focus on health issues has shifted from its former preoccupation with liability questions to its present focus on issues more related to the functioning of a $1.7 trillion dollar business sector. (12) Professor Jacobson opines that law itself has "become a central force in the development of health care" in the process (p. 35).

   Both doctors and lawyers are inevitably involved in many of the controversies associated with managed care in general and Medicare and Medicaid in particular. These problems tend to play out primarily and often uncomfortably for doctors on legal and political turf, and therein lies much of the problem so far as cooperative problem solving is concerned. Doctors, educated to exercise control in medical environments, feel understandably ill-at-ease, vulnerable, and often resentful because lawyers control the rules of the legal games in which they are forced to participate. In fact, one especially aggrieved member of the American Medical Association's House of Delegates introduced a policy resolution for debate at the 2004 annual meeting stating that, notwithstanding the Hippocratic Oath, a physician's outright refusal to provide medical care for plaintiffs' lawyers and their spouses should not rise to the level of unethical conduct. (13)

   Although physicians usually have little problem dealing with the kinds of ambiguity and uncertainty inherent in medical practice that make patients anxious, doctors feel acutely at risk when unfamiliar legal processes and strange legal rules govern their own destinies. (14) The lawyer's stock answer of "that depends" when queried about what "reasonable" professional conduct or patient expectations means does not reassure them. This physician uneasiness in alien professional territory is not irrational given medical training encouraging them to take control of illness, and it can be downright disabling when doctors have a personal stake in the medical controversy at hand. Moreover, a plaintiff's allegation of carelessness regarding human life and health cuts far more deeply into a defendant-physician's psyche in medical malpractice litigation than does a garden-variety negligence claim alleging mere disregard of responsibilities relating to property. For these and many other reasons, doctors do not usually regard lawyers as their natural allies when it comes to problem solving, and lawyers often return the compliment.

   Although Professor Jacobson's introduction forthrightly professes a restricted scope for his book, don't let that deceive you. He states that his inquiry "is concerned with the cases brought by patients to recover damages after the failure to receive expected health benefits or after medical intervention went awry" (p. 1), but the scope of the book extends far beyond the cases themselves. Intentionally or not, it spotlights the inadequacies of our fragmented and competitive system for delivering health care in the course of proffering a way to balance the conflicting claims of individuals and societal groups for limited health care resources.

3. COMPETITION IN HEALTH CARE

   For better or for worse, the United States has structured its health care delivery system on the competitive model. Once the command-and-control regulatory measures the government passed in the 1970s as an exercise in fiscal self-preservation when Medicare and Medicaid were enacted failed to tame rapidly escalating health care costs, competition was seen as the answer. (15) Instead of performing according to the neoclassical paradigm to drive the price of health care services down and the quality up, however, health care competition has been famously unsuccessful in its attempt to rein in still relentlessly increasing costs. (16) Moreover, widely publicized medical-systems errors, (17) among other problems, testify to...