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Tables of Contents for Holding Health Care Accountable
Chapter/Section Title
Page #
Page Count
Introduction
3
12
PART I JURISPRUDENTIAL PROBLEMS
Physicians and Tort Liability
15
20
Economic Upheaval
17
5
Traditional Fee-for-Service (``Artesian'') Standards
18
1
Specialty Societies
19
1
Managed Standards
19
1
Malpractice Insurers
20
1
Patients' Expectations
21
1
Net Result
21
1
Inadequacies of Current Malpractice Tort Law
22
7
Locality Rule
22
1
Informed Consent
23
1
Medical Custom
24
3
``Respectable Minority,'' ``Accepted Practice,'' ``Reasonable Physician,''
27
2
Net Result
29
1
Recasting Physicians`` Duty of Care
29
4
Diversity Has Supplanted Consensus
29
1
Practices Do Not Always Reflect Professional Judgment
30
1
Physicians No Longer Exercise Unilateral Resource Control
31
1
Physicians Have No A Priori Entitlement to Determine the Values Underlying Health Care Resources
32
1
Conclusion: The Traditional Custom-Based Approach to Setting the Medical Standard of Care Should Be Abandoned, and a New Approach to Physicians' Malpractice Liability Should Be Identified
33
2
Health Plans and Tort Liability
35
10
Historical Overview
36
1
Growth of Liability for Health Plans
37
3
Direct Corporate Liability
38
1
Indirect Liability
38
1
Corporate (Mal)Practice of Medicine
39
1
Challenges in Ascribing Tort Liability to Health Plans
40
5
Health Plans and Contract Liability
45
10
Obstacles to Effective Contracting
47
2
Consequences of Ineffective Contracting
49
6
PART II ADDRESSING THE PROBLEMS: RESHAPING LEGAL STANDARDS
Pinpointing the Issues
55
25
Two Prospective Answers to the Jurisprudential Dilemmas
57
7
Proscribe Interference with Physicians
57
2
Enterprise Liability
59
5
The Real Dispute: Who Should Control What
64
9
Limits on Health Plans' Control
65
5
Limits on Physicians' Control
70
3
Who Should Control What: Seeking a Reasonable Balance
73
7
Health Plans
74
5
Physicians
79
1
The Balance
79
1
A Basic Distinction
80
12
Expertise
82
3
Physicians
83
1
Health Plans
83
2
Resources
85
4
Health Plans
85
1
Physicians
86
3
Litigating Breaches of Duty: Expertise Versus Resources
89
3
Expertise and Tort
89
1
Resources and Contract
90
2
Reshaping Liability for Physicians
92
8
Physicians and Expertise
92
1
Physicians and Resources
93
7
Physicians Lacking Resource Control
93
3
Physicians with Resource Control
96
4
Reshaping Liability for Health Plans: Expertise and Tort
100
26
Duties of Expertise in Four Domains
101
9
Business Duties
101
1
Patterns of Care
102
1
Surveillance for Inadequate Care
102
1
Practicing Medicine
103
7
Reducing Corporations' Practice of Medicine
110
6
Problems of ``Medical Necessity'' for Health Plans
112
1
Problems of ``Medical Necessity'' for Clinical Medicine
113
1
Problems of ``Medical Necessity'' for Patients
114
2
Tort Litigation for Breach of Expertise Duties
116
10
Torts Regarding Administration and Guidelines
116
5
Tort Claims When Health Plans Practice Medicine
121
3
Holding Health Plans Liable for Medical Malpractice
124
2
Reshaping Liability for Health Plans: Resources and Contract
126
13
Conditions for Effective Contracting
127
7
Choice
127
5
Information
132
2
Bargaining Power
134
1
Guidelines-Based Contracting: Choosing and Enforcing Resource Entitlements and Resource Limits
134
5
PART III ASSESSING THE PROPOSED APPROACH: PROSPECTS FOR JUDICIAL ACCEPTANCE
Judicial Acceptability
139
21
Physicians' Liabilities
142
1
Health Plans' Liabilities: Expertise and Tort
142
6
Business Duties
143
1
Patterns of Care
144
2
Surveillance for Inadequate Care
146
1
Practicing Medicine
147
1
Health Plans' Liabilities: Resources and Contract
148
8
Variations in Levels of Care
148
1
Courts' Willingness to Enforce Contractual Limits
149
2
Adequacy of Contract Remedies
151
5
Implications for Litigation
156
2
Summary
158
2
Special Issues in ERISA
160
24
Quality---Quantity: Paralleling the Expertise--Resource Distinction
163
3
Quality---Quantity: A Flawed Distinction
166
10
Confusion Number One: Which Cases Present Which Issues
166
4
Confusion Number Two: A Poorly-Chosen Surrogate Distinction
170
1
Confusion Number Three: What Counts as a Denial of Benefits
171
2
Factual Challenges
173
3
Fixing the Problems: ERISA and Resource Issues
176
3
ERISA and the Standard of Review
177
1
ERISA and Damage Awards
178
1
ERISA's Future
179
5
Reflections
184
3
Notes
187
94
References
281
26
Table of Cases
307
10
Index
317