Patient Advocacy and Termination from Managed Care Organizations: Do State Laws Protecting Health Care Professional Advocacy Make Any Difference?

Abstract

This article examines the impact of state laws aimed at protecting health care professionals. During the last decade, as managed care has profoundly changed the way that health care is delivered in the U.S., many patients have complained about denial of care and their inability to challenge those denials. At the same time, some physicians have taken on the role of advocate, arguing on their patients' behalf for more and better care. More than fifteen states have enacted laws declaring that health care professionals (HCPs) cannot be terminated from or otherwise penalized by managed care organizations (MCOs) because of their advocacy. The article explores the history, implementation, and impact of these state advocacy protection statutes, looking at both substantive and procedural obstacles to their enforcement. The article is in four parts. The first section provides an introduction to the concept of advocacy and fiduciary duty, both at common law, and as presently interpreted. This introduction also looks at the phenomenon of HCPs' "deselection," i.e., the termination or non-renewal of HCP contracts with MCOs, emphasizing that the plural of anecdote is not data. The second section surveys the legislative and common law landscape surrounding HCP advocacy, and then examines state statutes that either explicitly or implicitly protect HCP advocacy on behalf of patients. The article next considers whether advocacy protection laws have achieved their purposes, given the substantial theoretical and practical barriers to their implementation, and discusses both ERISA and Medicare preemption as potential hurdles to successful litigation. I conclude that advocacy protection laws have had only a limited in terrorem effect, making it somewhat harder for MCOs to terminate HCPs who advocate for their patients. I argue that current laws are inadequate to ensure that health care professionals will vigorously advocate for their patients, and suggest alternative means to encourage and support patient advocacy, in order to enhance the quality of health care. Because this work is not yet published, the author welcomes all feedback and other suggestions for improvement.