Author ORCID Identifier

0000-0003-0490-4843

Document Type

Article

Publication Date

1994

Keywords

Physician-associated risk, Patients, Regulation of risk, Health services, HMO, Disclosure obligations, Malpractice, Provider-associated risks, Informed consent

Abstract

Whom do physicians serve first: themselves, their patients, insurers, or society-at-large? This article constitutes the first scholarly exploration of the legal system's sometimes conflicting attempts to resolve this issue in the context of provider-associated risk. Courts and commentators are reflexively reacting to physician risks by uprooting and transplanting regulatory concepts from other areas, often without considering either the legal basis or the likely consequences for patients, physicians and society. In fact, these risks require a novel, and to some extent counterintuitive, judicial and legislative response.

There is a new perception that patients can be injured by physician self-interest. Part II of this article describes two major types of physician-associated risks: those arising out of the provider's economic arrangements with others, and those arising out of some other personal characteristic of the physician. Part III of the article considers the use of prospective or retrospective prohibition, accomplished either through regulation or malpractice litigation. Disclosure obligations are the major alternative to transaction bars, and are considered in Part IV. In Part V, this article analyzes the application of prohibitions and disclosure obligations to provider-associated risks.

First Page

291

Publication Title

University of Pittsburgh Law Review

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