TJ: The relationship between the patient and physician has traditionally been viewed as one of trust. Patients entrust themselves to their doctors, who have an obligation to put the patients’ interests first. At least, that’s the ideal. The vision for consumer-driven health plans assumes that the physician and other care providers are merchants and patients are consumers. So let the buyer beware. This change threatens the welfare of patients who now cannot trust their doctors to look after their medical needs. Trust is an important aspect of healing. If you approach your doctor as you would a used car dealer, he or she probably won’t be able to help you as much.
TL: What legal issues do these plans raise?
TJ: They raise a host of legal issues that we have not even begun to sort out. Does the duty of a doctor to secure informed consent to treatment now include an obligation to provide information about cost as well as risks and benefits? Might a doctor who withholds medically necessary care because a patient cannot afford to cover deductibles, coinsurance, and copayments be liable for malpractice, or for breaching a fiduciary obligation? Do state managed care bills of rights apply to insurers when they are deciding whether or not the cost of a service counts against a deductible? Are there any limits on how much a provider can charge a patient who is paying for a service out-of-pocket if both have not agreed on a price beforehand? (They almost never do.) Are insurers liable to patients or providers if they provide incorrect information in their quality rankings?
TL: How important are these plans in the so-called individual market, where people have to assume the entire cost of the policy?
TJ: They will take over an even larger part of the individual and small group market if nothing is done to reform health care. They won’t be very important if Obama is successful in creating a public plan, like Medicare, that people can join. If that happens, nobody in his or her right mind would choose a high deductible plan if they can buy a comprehensive and cheaper policy through a public plan.
TL: How will this dynamic threaten sellers of these plans in the context of health reform?
TJ: If Congress can pass legislation offering Americans affordable care with reasonable cost-sharing, I would not expect Americans to choose consumer-driven plans instead of a public option.
TL: How robust is this market in general?
TJ: Both the employer and the individual have grown significantly since 2003, when these plans were first authorized on a large scale. But there are signs that growth has leveled off. Whether the market will continue to grow depends a lot on whether health reform is adopted and whether there will be a public plan. That will be a major sticking point in reform.