Mark D. Abruzzo, J.D.

Mark D. Abruzzo, J.D.

It's been suggested that, in order to battle obesity, HMOs should use their collective information and knowledge to change their members' behavior.

Are they ethically or morally responsible for doing anything? That's one question. Here's another: Assuming, for the moment, that they are ethically and morally responsible for acting, should they be held legally accountable for failure to act?

Certainly, one can argue that HMOs are morally and ethically responsible for acting and that taking the initiative might make good business sense as well.

At this time, the law generally recognizes that HMOs do not practice medicine and therefore are not legally responsible for the medical care, or lack thereof, provided to enrollees. The law does, however, recognize that there are instances where, although they do not practice medicine, HMOs can influence the care that is provided to enrollees and, as a result, should be legally accountable. For example they can and are being held legally liable in instances where they have:

  • Adversely influenced physicians' decision-making processes (i.e., through the use of financial incentives or deterrents);
  • Failed to disclose to enrollees financial incentives offered physicians;
  • Negligently selected physicians to serve on their provider panels (i.e., through faulty credentialing processes);
  • Denied treatment in "bad faith";
  • Carried out utilization review in negligence;
  • Ostensibly created an agency relationship between themselves and their physicians (i.e., through marketing materials and representations made to members);
  • Actually created an agency relationship by controlling their physicians (i.e., restricting their freedom to accept or reject patients, make specialist referrals, etc.).

These situations all involve HMOs doing something wrong or negligently, not merely failing to proactively improve the quality of their enrollees' health (arguably, what the name "health maintenance organization"implies).

The lawsuits against HMOs will continue — if not increase — particularly if Congress opens the floodgates to health plan liability. These cases usually depend on the application of traditional legal theories of liability to nontraditional fact patterns, such as the ones above. What would happen if we supposed a new theory of liability?

Seinfeld's finale

Immediately, the Good Samaritan laws come to mind. Remember the "Seinfeld" finale where Jerry and his friends are hauled into jail, and convicted, for doing nothing (of course) in a situation where they could have assisted? The fictional statute required them to act. No actual law is that far-reaching. Good Samaritan statutes typically protect the person who acts in the event that he worsens the condition of the person he seeks to assist.

What if the law did really require, for example, that all HMOs actively assist obese enrollees in weight loss — not just providing discounts for health club memberships, but by notifying patients about risks or suggesting treatment plans? What if the law required HMOs to compile and analyze their data and put their findings to use?

No doubt such a law will not come to pass — at least, not in our lifetimes. That's not necessarily a bad thing. We, as individuals, must become more accountable for our own health. Were HMOs to be made legally accountable for failure to become involved in the health of enrollees, then the health insurance that we depend on would become unaffordable.

Moreover, just how intrusive and big-brother like do we want our health plans to be? While HMOs could stand to benefit some from the potential success of their involvement, who really benefits?

The enrollee does — directly from the improved health that he might enjoy and indirectly from the improved "health," so to speak, that the federal government would enjoy. My hunch is that no HMO — maybe not even all of them collectively — is more fiscally affected by the health consequences of obesity than is Medicare.

Financial benefits

That said, I believe HMOs should become more involved and be somewhat less passive, particularly since they, too, could benefit financially. So, then, what needs to happen legally to force their involvement?

For starters, the federal government needs to chip in. Perhaps it can offer funding and/or tax breaks designed to encourage HMO involvement. Then, we need to expand tort reform. To truly and effectively beat obesity and other self-inflicted diseases of our age, we need HMOs and physicians to work collaboratively.

With the pressures on our health care system to provide more and better quality care to more patients for less money, we need tort reform to limit liability. This generally hasn't happened because most state courts have declared damage caps as unconstitutional. So, physicians, and HMOs too, are being subjected to an enormous, and expanding, amount of litigation.

Without the federal government's involvement and a significant limitation on provider liability, however, we will surely struggle to meet any goals and objectives that are HMO- or physician-driven.

Mark D. Abruzzo, J.D., specializes in health care law at the Berwyn, Pa.-based law firm of Wade, Goldstein, Landau & Abruzzo, P.C.

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