Managed Care Litigation: Legal Doctrine at the Boundary of Tort and Contract

Medical Care Research and Review, Vol. 57, Pp. 440-463, 2000

Posted: 20 Dec 2000

See all articles by Peter D. Jacobson

Peter D. Jacobson

University of Michigan School of Public Health

Neena M. Patil

Bond, Schoeneck & King, LLP

Abstract

The new conditions underlying the delivery of health care in the United States, namely the shift from fee-for-service medicine to managed care, have necessitated changes in thinking about how legal doctrine should be developed in the managed care environment. At issue is whether litigation against managed care organizations (MCOs) will be resolved by tort or contract principles. Since health care is rapidly becoming just another market commodity, should the relationship be guided, as most market transactions are, by contractual arrangements and concepts? Or, does this market reality require greater oversight through tort concepts? As an alternative, are there legal strategies for bridging the gap between tort and contract that would more effectively guide the judicial response to managed care?

This article synthesizes the vast literature discussing the legal system's ability to adapt to the changing health care delivery system, and various proposals for how the law should assign responsibility in the managed care system. Our specific focus is on the legal debate over whether litigation against MCOs should be governed by tort doctrine, contract law, or by some combination of these two approaches?

For the most part, the published work by health law scholars resoundingly supports a contract driven regime, with medical decisions guided by private agreements. Recently, however, scholarly commentary has begun to critique the proposed shift toward private choices in medical care decisionmaking and to offer arguments in favor of retaining a tort law presence and perhaps bridging the gap between tort and contract.

In this article, we summarize the case for contracts, identify the limitations of the contract argument, and discuss the emerging tort-based arguments. The debate between tort and contract has significant practical implications for patients, along with significant policy considerations. We explain the nature of the debate and why it matters.

Note: This is a description of the article and not the actual abstract.

JEL Classification: K1

Suggested Citation

Jacobson, Peter D. and Patil, Neena M., Managed Care Litigation: Legal Doctrine at the Boundary of Tort and Contract. Medical Care Research and Review, Vol. 57, Pp. 440-463, 2000, Available at SSRN: https://ssrn.com/abstract=254032

Peter D. Jacobson (Contact Author)

University of Michigan School of Public Health ( email )

109 Observatory
Ann Arbor, MI 48109-2029
United States
734-936-0928 (Phone)
734-764-4338 (Fax)

HOME PAGE: http://www.sph.umich.edu/~pdj/

Neena M. Patil

Bond, Schoeneck & King, LLP ( email )

1 Lincoln Center
Syracuse, NY 13202
United States
(315) 422-0121 Ext. 165 (Phone)

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