Commentary: Don't Let Primary Care Physicians off the Hook So Easily

See Friedland B. , “Managed Care and the Expanding Scope of Primary Care Physicians' Duties: A Proposal to Redefine Explicitly the Standard of Care,” Journal of Law, Medicine & Ethics, 26 (1998): 100–12; and Hickson G.B. , “Development of an Early Identification and Response Model of Malpractice Prevention,” Law and Contemporary Problems, 60 (1997): 7–29.

See Friedland , id.

See Employee Retirement Income Security Act of 1974, Pub. L. No. 93–406, 88 Stat. 829 (codified as amended at 29 U.S.C. §§ 1001–1461 (1988 & Supp. V. 1993)).

See Donabedian A. , The Definition of Quality and Approaches to Its Assessment (Ann Arbor: Health Administration Press, 1980); and Newacheck P.W. , “Monitoring and Evaluating Managed Care for Children with Chronic Illnesses and Disabilities,” Pediatrics, 98 (1996): 952–58. Examination of quality in medicine may include studies of patient satisfaction, the process of care, and outcomes. All are difficult to perform and subject to a number of well-documented biases, which make interpretation difficult. Such difficulties are compounded by the tremendous variations on the managed care theme.

See Fuchs V.R. Kramer M.J. , Determinants of Expenditures for Physicians' Services in the United States 1948–1968 (Washington, D.C.: National Center for Health Services Research and Development, 1972); Luft H.S. , Health Maintenance Organizations: Dimensions of Performance (New York: John Wiley, 1981); Hickson G.B. , “Physician Reimbursement by Salary or Fee-for-Service: Effect on Physician Practice Behavior in a Randomized Prospective Study,” Pediatrics, 80 (1987): 344; and Wennberg J. Gittelsohn A. , “Variations in Medical Care Among Small Areas,” Scientific American, 246, no. 4 (1982): 120–34.

See Newacheck , supra note 4; Ray W.A. , “Perinatal Outcomes Following Implementation of TennCare,” JAMA, 279 (1998): 314–16; and Retchin S.M. , “Outcomes of Stroke Patients in Medicare Fee for Service and Managed Care,” JAMA, 278 (1997): 119–24. The results of studies examining quality in managed care are mixed, in part because of difficulties in assessing quality.

See Friedland , supra note 1, at 101.

See Lavelle-Jones C. , “Factors Affecting Quality of Informed Consent,” British Medical Journal, 306 (1993): 885–90; and Stanley B. , “The Elderly Patient and Informed Consent: Empirical Findings,” JAMA, 252 (1984): 1302–06.

See Wickline v. State of California, 239 Cal. Rptr. 810 (Ct. App. 1986); and Hickson G.B. , “Pediatric Practice and Liability Risk in a Managed Care Environment,” Pediatric Annals, 26 (1997): 179–85.

See Hickson , id. Physicians may need professional assistance with contract negotiations.

See Sage W.M. Hastings K.E. Berenson R.A. , “Enterprise Liability for Medical Malpractice and Health Care Quality Improvement,” American Journal of Law & Medicine, XX (1994): 1–28. My recommendation differs in that physicians would not be immune from suits while employed or under contract with a health plan. Physicians must remain at risk because their nontechnical behaviors are responsible for prompting the majority of suits. See Hickson G.B. , “Factors that Prompted Families to File Medical Malpractice Claims Following Perinatal Injuries,” JAMA, 267 (1992): 1359–63; and Hickson G.B. , “Obstetricians' Prior Malpractice Experience and Patients' Satisfaction with Care,” JAMA, 272 (1994): 1583–87.

See Pichert J.W. , “Understanding the Etiology of Serious Medical Events Involving Children: Implications for Pediatricians and Their Risk Managers,” Pediatric Annals, 26 (1997): 160–72. Errors in medicine are most often related to the system of care, not to individual physicians making specific decisions.