What may happen in MCOs is a variant on the dual capacity doctrine. The dual capacity doctrine evolved as an aspect of workers’ compensation law. A worker who is injured by a fellow workers’ negligence is usually limited to a worker’s compensation recovery. Some courts created an exception to this rule if the negligent worker was a licensed professional who was expected to exercise independent judgment: “According to the dual-capacity doctrine, an employer who is generally immune from tort liability may become liable to his employee as a third- party tortfeasor; if he occupies, in addition to his capacity as employer, a second capacity that confers on him obligations independent of those imposed on him as an employer.” [ Weber v. Armco, Inc., 663 P.2d 1221 (Okla. 1983).] Physicians have been specific targets of this doctrine, based on their independent license and duties to the patient. [Glenn. Employer’s Liability to Employee for Malpractice of Physician Supplied by Employer, 16 A.L.R. 3d 564 (1968 & Supp. 1996).]

The issue will not be a workers’ compensation bar, but the unwillingness, or in the case of ERISA plans, inability of the courts to hold MCOs responsible for decisions to deny care. As plaintiffs search for additional defendants, especially those whom they can portray as concerned only with the bottom line, they will sue physician medical directors and other physician administrators in MCOs. The courts may hold as follows: “Once a physician, always a physician”—that is, every physician who reviews the patient’s care or chart, or supervises those that do, or in any other way has the authority to affect care decisions, has independent liability for injuries to the patient. If the medical director’s compensation includes any component tied to reduction in services, the medical director would be in a Shea conflict of interest position.

Such a judicial construct would be consistent with courts’ ambivalence about medicine as “just another business.” The physician’s role in MCOs should be as a conscience, ensuring that patients are properly treated. It is also the best posture to assume in attempting to convince courts to reject employment terms in MCO contracts that prevent physicians from exercising independent medical judgment.