The clearest conflict between the demands of MCOs and the physician’s
fiduciary duty to the patient arise from the “gag” rules, which are MCO contract
provisions intended to prevent physicians from telling patients medically
significant information, or from indicating that the plan might not be treating
the patient fairly. A typical clause reads as follows:
Physician shall agree not to take any action or make any communication
which undermines or could undermine the confidence of enrollees,
potential enrollees, their employers, their unions, or the public in U.S.
Healthcare or the quality of U.S. Healthcare coverage. Physician shall
keep the Proprietary Information payment rates, utilization-review
procedures, etc. and this Agreement strictly confidential. [Woodhandler
S, Himmelstein DU. Extreme risk—the new corporate proposition for
physicians. N Engl J Med. 1995;333:1706.]
To the extent that gag rules prevent the patient from receiving full information
about treatments and alternatives, they are in direct conflict with informed
consent doctrine. Informed consent, however, is a doctrine that deals with
medical risks, not financial information. This raises the difficult issue whether
the physician or the health plan must disclose nonmedical information that
might influence the physician’s decisions about the patient’s care. The
traditional view is that the physician’s conduct is judged only on the basis of
whether it meets acceptable standards of medical practice. The courts
generally have not allowed the plaintiff to inquire into whether the physician’s
decisions are motivated by financial considerations.
