Hidden Incentives
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.