Deterrence in a Divided World: Emerging Problems for Malpractice Law in an Era of Managed Care
✍ Scribed by David M. Studdert; Troyen A. Brennan
- Publisher
- John Wiley and Sons
- Year
- 1997
- Tongue
- English
- Weight
- 226 KB
- Volume
- 15
- Category
- Article
- ISSN
- 0735-3936
No coin nor oath required. For personal study only.
✦ Synopsis
Growth of managed care in the United States health care market presents a significant obstacle to the capacity of malpractice law to deter injury-causing behavior. Recent case law demonstrates that courts have not been able to develop a coherent analytical framework for assessing the liability of managed care organizations (MCO). Actions against MCOs are typically short-circuited by ERISA preemption, or are brought only in an indirect manner under theories of vicarious liability. Poor ascription of liability thus takes its place on a well-established list of obstacles to effective deterrence. An enticing solution to this problem is to hasten the development of legal standards that are better able to deal with the influence of cost-containment strategies and the role MCOs play in determining the standard of care delivered. However, efforts to refashion malpractice doctrine in this way are likely to face some challenging conceptual problems. The MCO liability problem instead provides new impetus to examine the enterprise liability model as an alternative approach to reform.