Standards of Care and Standard Form Contracts: Distinguishing Patient Rights and Consumer Rights in Managed Care

Abstract

Current efforts to regulate managed care often conflate patients with consumers, relying on consumer protection measures, such as disclosure of contract terms and consumer choice, to protect patients. This article distinguishes between patient rights and consumer rights in order to clarify the analysis of legal reform proposals. Consumer protection has traditionally focused on buyers' purchasing decisions and issues of contract law. Patient rights have been primarily grounded in tort law to set standards of conduct in providing health care without regard to whether or how it was paid for. Problems with basing reforms solely on the consumer model are discussed, including whether contract terms can supersede patient rights. It is argued that managed care plans are better characterized as a hybrid combining elements of standard form insurance contracts and personal medical care. While some contract doctrines applicable to standard form contracts are appropriate for the financial elements of managed care plans, tort principles are more appropriate for its personal care functions. This characterization calls for the development of extra-contractual standards to protect the rights of patients, as well as consumers, in designing and carrying out managed care pans.