• Taking Chances2:24

Under a new Massachusetts law, believed to be the first of its kind, health insurance companies in the Commonwealth are not allowed to prohibit physicians from informing their patients of alternative treatment options, payment policies, or health plan provisions.

This new legislation, amending several existing laws, comes amidst a storm of recent controversy over the way doctors interact within the HMO framework. The new laws also provide that insurance companies cannot restrict physicians from informing patients about financial incentives that the insurers offer doctors.

The law seems significant in that physicians in Massachusetts need not fear retaliation for fulfilling their duties as a patient advocate, but the Massachusetts Association of Health Maintenance Organizations asserts that such "gag clauses" were never contained in any contracts offered by Massachusetts health plans anyway. There is a second issue involved in these contracts, however, in which the HMO reserves the right to terminate the contract with a provider at any time without cause. A pending New Hampshire case highlights the issues that can arise from the application of such a clause.

The New Hampshire case, the first of its kind, could impact the HMO framework by making it more difficult for insurers to discontinue physicians who spend more on patient care than the insurance company considers necessary. In this case, the insurance company has argued that fundamental economic principles are at stake, since if the plaintiff is successful in his suit, the HMO will ultimately be unable to control health care costs since it could not deselect physicians on this basis.

Neither the plaintiff nor any of the medical societies who filed friend of the court briefs on his behalf advocate a prohibition on insurers' ability to fire bad doctors or from dismissing physicians who spend money wastefully. But they do argue, from a public policy perspective, that a "without cause" provision should be modified by a system of checks and balances that protects both physicians and patients. This would be possible, they say, by utilizing an appeals process that mandates insurers to tell physicians why they are being disciplined and allow those physicians to make the case that the care they ordered was appropriate.

The plaintiff and the medical societies maintain that a physician's primary ethical and legal duty must always be to the patient, no matter what the insurer's contract may call for. The argument continues that, in some cases, these contracts contain disincentives to provide patients with extra care which could result in ethical conflicts. Not only do physicians who spend too much on care face personal fiscal loss, but possible dismissal from their HMO.

Loss of a contract with an HMO, can have major consequences for an individual physician, especially if the state in question has only a few major insurers. The medical societies argue that insurers have become so powerful that contracts between them and the doctors are no longer between equal players. The arbitrary firing of physicians harms not only the doctor, they say, but patients as well, and puts the HMO in control of the doctor-patient relationship.

In response to this line of argument, HMOs counter that a vital part of their societal mandate is to control costs and improve care by making it more efficient. The New Hampshire HMO points out that its contract with the plaintiff was not exclusive and that he was free to sign contracts with other insurers. To this, the plaintiff and the medical societies disagree, noting that physicians who have been dismissed by an HMO are less likely to attract interest from future employers and may well be considered unemployable.

The increasing role of HMOs in the provision of health care is inevitable. This growth has led to increasingly complex relationships between physicians and health care insurers, particularly as physicians strive to maintain their independence in the practice of medicine. Hopefully, these issues will be resolved through a process which recognizes the societal need for managed care as well as the patient's need for a fulfilling doctor-patient relationship.

Massachusetts Removes the Gag

by Attorney Frank E. Reardon

March 1996

Healthcare Law, Litigation & Public Policy   Medical Licensure & Discipline ♦ Employment Board of Registration

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