Although scholars and policymakers increasingly accept the need to ration health care, physicians doing so at the bedside remains controversial. Underling this debate is how to characterize the duty of care physicians owe their individual patients. Ethically, physicians are under strict fiduciary obligations that require them to give primacy to individual patients' best interests. However, new health care delivery models that hold providers financially accountable for health care costs assign to physicians a gatekeeping role, with physicians obliged to balance individual patients' needs with the competing societal goal of controlling costs. This Article explains that the choice between the traditional patient-centered duty of care and a dual duty of care that balances patient and societal concerns turns on which paradigm best promotes the public interest. It then argues that the public interest would be better served by a dual duty of care because bedside rationing is essential if the U.S. is to successfully control health care costs. In addition, a dual duty of care furthers the policy goals underlying recent federal and state health policy initiatives. This Article concludes by identifying several tenets of health law and ethics biased toward a patient-centered duty of care--physicians' duty of advocacy, the medical malpractice system, and informed patient consent--and contends that each should be reformed to accommodate physicians' dual duty of care.
A Defense of Physicians’ Gatekeeping Role: Balancing Patients’ Needs with Society’s Interests,
42 Pepp. L. Rev.
Available at: http://digitalcommons.pepperdine.edu/plr/vol42/iss4/1