David A. Hyman

Just what the patient ordered: The case for result-based compensation arrangements

or more than twenty years, Opinion 6.01 of the American Medical Association’s (AMA) Code of F Medical Ethics has specified that “a physician’s fee for medical services should be based on the value of the service provided by the physician to the patient.” In 1994, the AMA amended Opinion 6.01, adding a new statement that “a physician’s fee should not be made contingent on the successful outcome of medical treatment.” We believe that the amendment is wholly indefensible. Therefore, in this essay, we argue that the AMA should lift this prohibition and encourage the use of result-based compensation for medical services in appropriate circumstances. The 1994 amendment dramatically changed the significance and scope of Opinion 6.01. Result-based compensation arrangements clearly satisfy the original version of Opinion 6.01 because they base compensation on the “value of the services provided . . . to the patient.” Yet, it is equally clear that result-based compensation arrangements violate the amended version of Opinion 6.01 because they necessarily make compensation “contingent on the successful outcome of medical treatment.” The AMAs Council on Ethical and Judicial Affairs did not prepare the usual background memorandum explaining the grounds for amending the Code of Medical Ethics; nor did it publicly offer any rationale for dramatically changing the scope of Opinion 6.01. The only justification for the amendment appears in its text, which asserts that contingent fees “imply that successful outcomes from treatment are guaranteed, thus creating unrealistic expectations of medicine and false promises to consumers.” The AMAS assertion reflects a fundamental misunderstanding of result-based compensation. Principals use con-

Aesthetics and Ethics: The Implications of Cosmetic Surgery

The pursuit of physical beauty is as old as human history. Mankind has always admired the youthful and the comely. Human beings recognize the beautiful in their own creations and in nature, but most of all each individual sees it (or its lack) in himself. The health and beauty aids industry reflects this absorption. We are bombarded with advertisements for pills, creams, lotions, and other devices that will smooth our wrinkles, shrink our bulges, and cure our lassitude. Until recently, though, the only way to get close to beauty was to be born beautiful or to marry someone who was. Current events have revealed a new choice— buy it. A new surgical specialty (called variously cosmetic, plastic, or aesthetic) has sprung up to fill an unprecedented but still growing demand.

Five Reasons Why Health Care Quality Research Hasn't Affected Competition Law and Policy

Research on health care quality has become increasingly sophisticated, but the research has not had a major impact on competition law and policy. Five specific translational barriers (relevance/litigation dynamics, complexity, framing, judicial and administrative skepticism, and inadequate demand) are identified. If researchers on health care quality want to have an impact on competition law and policy they must confront and overcome these translational barriers.

Medicaid, managed care, and America's health safety net.

Argues that managed care, by design, is poorly suited as a model to solve the growing problem of financing the health care needs of Medicaid populations.

How Law Killed Ethics

Lawyers, it is said, are best at minding other peoples business—and worst at minding their own. Recent years have provided ample evidence of the truth of this observation, as the law has penetrated every aspect of American life. In this lawyers republic, perhaps this outcome was inevitable. Even professional baseball has been dragged into the legal arena, prompting George F. Will to comment acidly that lawyers are the plague of modern life. Medicine, of course, has not been immune to this disease. If anything, medicine is the best example of a field that has been remade and reformulated in response to legal pressure. One can determine almost exactly when the medical profession confronted specific ethical and structural issues by reading legal opinions. Defining death, treatment termination, competency, confidentiality, peer review, organ transplantation, autonomy, malpractice, cost containment, abortion, treatment of children and neonates—all have had their day in court, and most have had more than one. Lawyers have become an almost indispensable party in routine patient care, let alone in cases involving ethical dilemmas. How should one judge the impact of law on medicine? Measuring the effect of law is extraordinarily difficult because the immediate and dramatic modifications frequently obscure subtler changes. The task is made still more complicated by the unsuitability of the source materials for the task. Legal opinions are incremental works, by their nature dealing only with the facts and issues raised by the parties. Law reviews are written for specialists; comprehension requires knowledge of the very things about which one is trying to learn. Lawyers give only cryptic and guarded opinions about most courses of conduct. A modern Diogenes would probably be looking for a one-armed lawyer, who would not be able to say on the other hand. Finally, few commentators have at-

The Medicalization of Poverty: A Dose of Theory

Is the medicalization of poverty a rational and humane response to an intractable problem, or just the latest in a long series of ineffective and costly attempts to address the problem? Considerable ink has been spilled on the dispute, with each side marshalling heart-rending anecdotes to help make their case — along with the obligatory statistics and regression analyses. Rather than add more verbiage to that dispute, this article sketches out a framework for understanding the phenomenon of medicalization, along with a description of the demand-side and supply-side factors that have brought us to this pass.

Does medicare care about quality

MEDICARE IS A PROGRAM AND NOT A PERSON, so it is hard to know how it can “care” about anything. Once such philosophical (and pedantic) objections are assumed away, harder positive and normative questions arise.Who must demonstrate the requisite amount of care? Is it legislators, acting in their budgetary capacity, their oversight role, or both? Is it Congressional staffers, to whom legislators look for technical assistance? Is it the Centers for Medicare and Medicaid Services (CMS), which administers the program? Is it the intermediaries and carriers, who handle the actual processing of claims? Is it the Office of the Inspector General of the Department of Health and Human Services, charged with assessing program integrity? Is it quality improvement organizations (QIOs),1 who perform utilization review for the Medicare program on a contractual basis? Is it the front-line providers, who are paid by the program? Is it taxpayers, who ultimately foot the bill for the program? Is it the beneficiaries who receive the services?