Unification Theory of Health Care
Section 5 - Portrait of a modern HMO
Keeping the bucks - Controlling physician behavior (3)
destruction of the doctor-patient relationship legally binding - The Gag
Gekko is happy with the results of his 18 month plan, but wishes to reinforce and formalize the message he has successfully delivered to FTP’s physicians. He wishes to make that message legally binding. When it is time for him to rework his physician contracts, Gekko asks his attorneys to come up with language that does just that, and they are happy to accommodate him:
“The physician agrees not to take any action or make any communication with patients or patients’ families, potential patients or potential patients’ families, employers, unions, the media or the public that would tend to undermine, disparage, or otherwise criticize FTP or FTP’s health care coverage. The physician further agrees to keep all proprietary information such as payment rates, reimbursement procedures, utilization-review procedures, etc., strictly confidential.”
Gekko likes the language. It is plain and straighforward.
His physicians, completely without choice, sign the new contracts with nary a peep of complaint.
Gekko has made an assertion to his doctors. He has asserted, “You work for me, and me alone. You’re all mine.” His doctors, by their legally-affixed signatures, have acknowledged that assertion.
Gekko has sought a place at the table with FTP doctors and patients, and now he has it. In fact, he is at the head of the table.
What Gekko has just done is to add a classic “gag clause” to his physician contracts. The final insult to a doctor’s professional integrity, a gag clause prohibits the doctor from disclosing certain types of information to his or her patients. The forbidden information is likely to be material to the patient’s ability to accurately assess the doctor’s medical advice, and therefore the lack of that information may impact on the patient’s health. So from a purely practical standpoint, gag clauses are a threat to patients.
But from a more philosophical standpoint, what the gag clause represents – by the fact that HMOs use them with impunity and physicians sign them with little more than a whimper – is a formal death certificate for the physician-patient relationship. It officially and legally certifies that the doctor’s first loyalty is to the integrity and reputation of the HMO, which supercedes any loyalty that might exist toward the patient.
Gag clauses have attracted a fair amount of criticism in the past few years, but essentially only from the standpoint of whether they really “gag” physicians from telling their patients what they need to know. Little has been said about the implications of HMOs including and physicians signing such statements in a legal document.
In response to the voiced concerns over gag clauses, HMOs now say they have done away with them. Indeed, the General Accounting Office recently conducted a study to assess their prevalence in HMO contracts, and concluded that gag clauses are not a problem, and for the most part they don’t even exist any more.The reason “gag clauses” don’t exist anymore is that the HMOs, feeling the heat, have converted them to “business clauses.
Generically, business clauses require the signee (usually an employee) to agree not to disparage the business, not to encourage clients to use some other business instead, and not to break confidentiality with the business. In other words, business clauses are merely gag clauses relabelled.
In this manner, HMOs have asserted that, since they are a business, they have a right to the same protections as any other business. And if assertion of those business rights require the business’ contractors (i.e., doctors) to forego previous arrangements and understandings (i.e., the doctor-patient relationship), well, that’s business. The GAO, apparently, was swayed by this argument.
Various proposed Patients Bills of Rights require striking gag clauses from HMO-physician contracts. Presumably (now that they are just business clauses), that has already been accomplished. But even if all such clauses – whatever they are called – are struck from every contract tomorrow, the damage has been done.For HMOs have asked physicians for a declaration of loyalty that superceded all other loyalties. Removing gag clauses from contracts at this point doesn’t change the fact that, when asked, physicians gave. The HMOs have more than made their point.
Next: But what about outcomes?
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