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This article examines the ethics of medical practice under managed care from a pragmatic perspective that gives physicians more useful guidance than do existing ethical statements. The article begins with a framework for constructing a realistic set of ethical principles, namely, that medical ethics derives from physicians' role as healers; that ethical statements are primarily aspirational, not regulatory; and that preserving patient trust is the primary objective. The following concrete ethical guidelines are presented: Financial incentives should influence physicians to maximize the health of the group of patients under their care; physicians should not enter into incentive arrangements that they are embarrassed to describe accurately to their patients; physicians should treat each patient impartially without regard to source of payment, consistent with the physician's own treatment style; if physicians depart from this ideal, they should inform their patients honestly; and it is desirable, although not mandatory, to differentiate medical treatment recommendations from insurance coverage decisions by clearly assigning authority over these different roles and by physicians advocating for recommended treatment that is not covered.

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The market competition paradigm assumes that health plans will compete on many factors, including quality of care. Unfortunately, for many reasons health plans have not made a substantial effort to distinguish themselves on quality. The antitrust laws that are designed to protect competition allow selective collaboration among competitors for various purposes, including quality improvement. Within antitrust constraints, specific opportunities exist for competing health plans to collaborate to improve quality. Their success will depend on purchasers' ability to demand such collaborative efforts as part of their overall purchasing strategy.

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Managed care organizations often cannot be easily differentiated on the basis of organizational characteristics. Even the provider networks that competing health plans use may be virtually identical in response to employee pressure for broad provider choice. In markets with many undifferentiated networks, current approaches to quality improvement may be more intrusive than helpful. Health plans should delegate quality improvement activities to constituent provider groups and need to explore collaborative approaches to quality improvement. Although many are uncomfortable with using financial incentives to influence professional behavior, the use of capitation to restrain costs is inevitable. Instead of arbitrarily limiting financial incentives, consumers should be protected in market-compatible ways. In particular, expansive disclosure requirements and risk adjustment of both premiums and capitation payments are recommended as approaches that will reward high-quality care.

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This article examines the ethics of medical practice under managed care from a pragmatic perspective that gives physicians more useful guidance than existing ethical statements. The article begins by stating the authors' starting premises and framework for constructing a realistic set of ethical principles: namely, that bedside rationing in some form is permissible; that medical ethics derive from physicians' role as healers; that actual agreements usually trump hypothetical ones; that ethical statements are primarily aspirational, not regulatory; and that preserving patient trust is the primary objective. The authors then articulate the following concrete ethical guides: financial incentives should influence physicians to maximize the health of the group of patients under their care; physicians should not enter into incentive arrangements that they would be embarrassed to describe accurately to their patients or that are not in common use in the market; physicians should treat each patient impartially, without regard to source of payment, and in a manner consistent with the physician's own treatment style; if physicians depart from this ideal, they must tell their patients honestly; and it is desirable, although not mandatory, to differentiate medical treatment recommendations from insurance coverage decisions by clearly assigning authority over these different roles and by having physicians to advocate for recommended treatment that is not covered.

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Largely because of its indifference to spiraling costs, the professional domination model is being replaced by a market model based on competition among managed care plans and integrated delivery systems. In general, the more fully integrated previously competing providers become--for instance, by assuming financial risk together--the less legal risk is present, because of a decreased possibility of improper conspiratorial or collective behavior. Nevertheless, provider joint ventures and integrated delivery systems face a complex interaction of practical challenges and various legal and regulatory risks. This chapter explores ways in which laws involving fraud and abuse, self-referral, private inurement, corporate practice of medicine, Medicare reimbursement policy, and antitrust enforcement affect typical integrated delivery systems. From a legal standpoint, it might seem logical that the laws regulating health care providers would support and promote integration. A permissive legal environment to foster development of an integrated service network model assumes its development in a delivery system in which networks are at financial risk for the services provided. However, many of the laws and regulations governing integrated provider development were established at a time when joint ventures and other alliances were organizing in a predominantly fee-for-service environment and were generating significant increases in health care costs without producing demonstrable efficiencies or quality enhancements. The results is a fundamental inconsistency in government policy. The demand for collaboration by purchasers and legislatures does not necessarily cause the vast body of health care regulators to revise their concerns that many of the very collaborative activities being encouraged trigger potentially illegal acts and relationships. In a market model, the application of federal and state antitrust laws is especially important. In 1993 and 1994, the Department of Justice and the Federal Trade Commission jointly issued "Statements of Antitrust Enforcement Policy" in a number of areas of provider uncertainty. For integrated delivery systems, the primary focus of antitrust analysis is "market power." Systems without market power (i.e., the ability to force a purchaser to do something that the purchaser would not do in a competitive market) cannot harm consumers and should be free from serious antitrust risk. Where a network may have market power, its activities may be limited only if demonstrable anticompetitive effects outweigh the benefits of the efficiencies claimed by the new arrangement. The chapter concludes that vigorous antitrust enforcement may be required to promote market competition among integrated networks of providers and the managed care plans they serve.

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KIE: In this case study, a general practitioner is offered the chance to invest in a free-standing radiology center. His return will be calculated based on the amount of his investment, not on his volume of referrals. The physician is concerned about the legal and ethical aspects of the arrangement . Berenson, a physician, comments that the proposed deal is "wholesome" compared to other kinds of economic practices in health care, and does not involve kickbacks for patient referrals. He concludes that, providing certain safeguards are in place, the physician should have no ethical qualms about investing in the radiology center. Hyman, an attorney and a medical student, comments on the likely effect of such arrangements on physicians' professionalism and on the cost of health care in general, and on the possible conflict between patients' medical needs and physicians' economic interests. He argues against entrepreneurial activities by physicians.^ieng

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