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The Oregonian ICU: Multi-Tiered Monetarized Morality in Health Insurance Law

Published online by Cambridge University Press:  01 January 2021

Michael A. Rie
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Extract

Resource finitude, cost containment, and a purchaser monopsony market have created public concern-about the moral and legal responsibility for quality assurance in health plans. Resource allocation and standards of care represent a clash of moral values in intensive care treatment. This essay advances a procedural model, based on legislation passed in Oregon, that could govern the incorporation of private sector health insurance plans in Oregon to assure democratic input from consumers, providers, and employers into a limited vision of individual entitlement to consume futile or inappropriate care in intensive care units (ICUs). The model, which I call the Oregonian ICU, presumes that rationing of care is implicit and not publicly disclosed under managed care. It focuses on maximizing the quality of limited benefits available in the basic managed care insurance tier. Limitations to futile and inappropriate care are developed on the basis of morally weighted prognostic scoring systems that inform the creation of negotiated private sector contracts.

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Article
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Journal of Law, Medicine & Ethics , Volume 23 , Issue 2 , Summer 1995 , pp. 149 - 166
Copyright
Copyright © American Society of Law, Medicine and Ethics 1995

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References

Callahan, D., Setting Limits: Medical Goals in an Aging Society (New York: Simon and Shuster, 1987); Callahan, D., What Kind of Life? The Limits of Medical Progress (New York: Simon and Shuster, 1990); and Hiatt, H., “Protecting the Medical Commons: Who is Responsible?,” N. Engl. J. Med., 293 (1975): 235–41.Google Scholar
The term is Engelhardt's, who explains:Google Scholar
An egalitarianism of altruism appeals to the sympathy of others to help those suffering. An egalitarianism of altruism holds that a second world is worse than the first if one of the inhabitants of the second world experiences pain, deformity, disability, or an unwelcome earlier death which is not experienced in the first world. Egalitarianism of this genre is not concerned whether some have more, only whether some suffer. Inequalities are not in themselves disvalued. What is disvalued is suffering or that some lack an important good. Equality in goods, abilities, possessions, and experience is not valued for its own sake. Rather, what is valued is the good to be achieved through a particular intervention. In terms of an egalitarianism of altruism, one is concerned to provide an expensive treatment to those who need it, not to withhold from the rich who might be able to purchase it. Such an egalitarianism can legitimately, with the constraints set by the principle of permission, motivate choices regarding the use of commonly owned resources.Google Scholar
See Engelhardt, H.T. Jr., The Foundations of Bioethics 2nd Edition (New York: Oxford University Press, 1995): In press; also appearing as Engelhardt, H.T. Jr., Los Fundamentos de la Bioéthica (Barcelona: Paidós Básica, 1995).Google Scholar
Lohr, K.N., Yordy, K., Harrison, P.F., “Health Care Systems: Lessons from International Comparisons,” Health Affairs, 11, no. 4 (1992): 239–41.CrossRefGoogle Scholar
Society of Critical Care Medicine, “The Society of Critical Care Medicine Ethics Committee Consensus Statement on the Triage of Critically Ill Patients,” JAMA, 271 (1994): 1200–03; Council on Ethical and Judicial Affairs, American Medical Association, “Ethical Issues in Health Care Reform; The Provision of Adequate Care,” JAMA, 272 (1994): 1056–62; and Wolfe, S., “Health Care Reform and the Future of Physician Ethics,” Hastings Center Report, 24, no. 2 (1994): 28–41.Google Scholar
Marmot, M.G. et al., “Health Inequalities Among British Civil Servants: The Whitehall II Study,” The Lancet, 337 (1991): 1387–93.CrossRefGoogle Scholar
Bioethics Committee, Union of American Hebrew Congregations, Allocation of Scarce Medical Resources. Program Guide VII (Cincinnati: Union of American Hebrew Congregations, 1994).Google Scholar
Cullen, D.J. Chernow, B., “Predicting Outcome in Critically Ill Patients,” Critical Care Medicine, 22 (1994): 1345–47.Google Scholar
Murphy, D.J. Barbour, B., GUIDe (Guidelines for Intensive Care in Denver), A Community Effort to Define Futile and Inappropriate Care (Anaheim: New Horizons/Society of Critical Care Medicine, 1994): at 326–31; Murphy, D.J., “Commentary: The Public and the Profession: Meeting at the Right Place,” Journal of Law, Medicine & Ethics, 22 (1994): 161–62; and Brody, Baruch, personal communication, Mar. 1995, concerning the Harris County, Texas, Draft Guidelines on Institutional Policies on the Determination of Medically Inappropriate Interventions.Google Scholar
National Center for State Courts, Guidelines for State Court Decision Making in Life Sustaining Medical Treatment Cases (St. Paul: West, 1993); and In the Matter of Baby K, 16 F.3d 590 (4th Cir. 1994), cert. denied, 115 S. Ct. 91 (1994).Google Scholar
Hadorn, D., “Setting Health Care Priorities in Oregon: Cost Effectiveness Meets the Rule of Rescue,” JAMA, 265 (1991): 2218–25; and Eddy, D., “What Do We Do About the Costs?,” JAMA, 264 (1990): 1161–70.CrossRefGoogle Scholar
Reinhardt, U.E., “Managed Competition in Health Care Reform: Just Another Dream or the Perfect Solution?,” Journal of Law, Medicine & Ethics, 22 (1994): at 117, 115 (original emphasis).CrossRefGoogle Scholar
Reinhardt, U.E., “Turning Our Gaze from Bread and Circus Games,” Health Affairs, 14, no. 1 (1995): at 33.CrossRefGoogle Scholar
Annas, G.J. Miller, F.H., “The Empire of Death: How Culture and Economics Affect Informed Consent in the U.S., the U.K., and Japan,” American Journal of Law & Medicine, XX (1994): at 357.Google Scholar
Oregon Health Services Commission, Report to the Governor and Legislature, Prioritization of Health Services (Salem: State of Oregon, 1991).Google Scholar
Morreim, E.H., “Justice and Health Care Rationing: Lessons from Oregon,” in Strosberg, M.A., Wiener, J.M., and Baker, R., eds., Rationing America's Medical Care: The Oregon Plan and Beyond (Washington, D.C.: Brookings Institution Press, 1991): 159–84; and Rosenbaum, S., “Poor Women, Poor Children, Poor Policy,” in Strosberg, M.A., Wiener, J.M., and Baker, R., eds., Rationing America's Medical Care: The Oregon Plan and Beyond (Washington, D.C.: Brookings Institution Press, 1992): 91–106.Google Scholar
Kitzhaber, J., “The Oregon Health Plan: Creating Moral Authority in Public and Private Health Insurance,” delivered at the University of Kentucky Forum, Apr. 6, 1994. (Videotape transcripts available from the Dept. of Anesthesiology.)Google Scholar
1993 Or. Basic Health Care Act, ch. 835. “Any health care provider or plan contracting to provide services to the eligible population under this Act shall not be subject to criminal prosecution, civil liability or professional disciplinary action for failing to provide a service which the legislative assembly has not funded or has eliminated from its funding pursuant to Section 8 of this Act” (id., ch. 835, § 10).Google Scholar
1993 Or. Basic Health Care Act, ch. 838.Google Scholar
1993 Or. Basic Health Care Act, ch. 381.Google Scholar
Amundsen, D.W., “The Physician's Obligation to Prolong Life: A Medical Duty Without Classical Roots,” Hastings Center Report, 8, no. 4 (1978): 23–30.CrossRefGoogle Scholar
Engelhardt, H.T. Jr. Rie, M.A., “Morality for the Medical Industrial Complex: A Code of Ethics for the Mass Marketing of Health Care,” N. Engl. J. Med., 319 (1988): 1086–89; and Engelhardt, H.T. Jr. Rie, M.A., “Selling Virtue: Ethics as a Profit Maximizing Strategy in Health Care Delivery,” Journal of Health and Social Policy, 4 (1992): 27–35.CrossRefGoogle Scholar
Starr, P., The Social Transformation of American Medicine (New York: Basic Books, 1982).Google Scholar
See Morreim, , supra note 15; Angell, M., “The Doctor as Double Agent,” Kennedy Institute of Ethics Journal, 3 (1993): 279–86; Abrams, F.R., “The Doctor with Two Heads: The Patient versus the Costs,” N. Engl. J. Med., 328 (1993): 975–76; and Frankel, J.J., “Medical Malpractice Law and Health Care Cost Containment: Lessons for Reformers from the Clash of Cultures,” Yale Law Journal, 103 (1994): 1297–1331.Google Scholar
It is easy to understand this impetus when you consider that approximately 72 percent of the annual national health expenditures are allocations for high-technology treatments for 10 percent of the population. See Berk, L. Monheit, A.C., “The Concentrations of Health Expenditures: An Update,” Health Affairs, 11, no. 4 (1992): 145–49.CrossRefGoogle Scholar
Enthoven, A.C. Singer, S.J., “Market Based Reform: What to Regulate and by Whom,” Health Affairs, 14, no. 1 (1995): 105–19.CrossRefGoogle Scholar
The University Community Hospital, Tampa, Florida, was found by the Health Care Finance Administration to have provided institutional care below the standard defined in the Social Security Act. The finding came after media disclosure of a series of deaths and iatrogenic injuries in a period of three months. See Navarro, M., “Florida Agency Halts Elective Surgery at Hospital Where Errors Occurred,” New York Times, Apr. 14, 1995, at A6; and United States Health Care Finance Administration, Statement of Deficiencies with Corrective Action Plan (Baltimore: Health Care Finance Administration, Provider #100173, Mar. 10, 1995).Google Scholar
In California Nurses Association v. Alta Bates Medical Center, a nursing organization alleged that workforce reengineering by the hospital corporation created an environment of decreasing safety standards for patients. The defendant sought dismissal on grounds that a labor-management dispute was at issue. The court rejected this argument and remanded the issue of unethical business practices to a state court. See California Nurses Association v. Alta Bates Medical Center, No. C-94-03555CW (N.D. Cal. Mar. 25, 1995).Google Scholar
Darling, H., “Market Reform: Large Corporations Lead the Way,” Health Affairs, 14, no. 1 (1995): 122–24.CrossRefGoogle Scholar
Rapoport, J. et al., “A Method of Assessing the Clinical Performance and Cost Effectiveness of Intensive Care Units,” Critical Care Medicine, 22 (1994): 1385–91; and Rapoport, J. et al., “Explaining Variability of Cost Using Severity of Illness Measures for ICU Patients,” Medical Care, 28 (1990): 338–48.CrossRefGoogle Scholar
Shabot, M.M. et al., “Quality Assurance and Utilization Assessment: The Major By Products of an ICU Clinical Information System,” in Proceeding of the XV Symposium on Computer Applications in Medicine (Bethesda: American Medical Informatics Association, 1992): 554–59.Google Scholar
Rogers, M.C., Synderman, R., and Rogers, E.L., “Cultural and Organizational Implications of Academic Managed Care Networks,” N. Engl. J. Med., 331 (1994): 1374–77.CrossRefGoogle Scholar
MacLeod, G.K., “Health Care Financing Reform in New Zealand,” Health Affairs, 13, no. 4 (1994): 210–15; and Streat, S. and Judson, J.A., “New Zealand,” in Cost Containment: A Multicultural Approach (Anaheim: New Horizons/Society of Critical Care Medicine, 1994): 392–403.CrossRefGoogle Scholar
Zimmerman, J.E. et al., “Patient Selection for Intensive Care: A Comparison of New Zealand and United States Hospitals,” Critical Care Medicine, 16 (1988): 318–26; and Gordon, S. and Baer, E.D., “Fewer Nurses to Answer the Buzzer,” New York Times, Dec. 6, 1994, at A23.CrossRefGoogle Scholar
Millman, and Actuaries, Robertson, Health Care Management Guidelines (Seattle: Millman and Robertson, 1994).Google Scholar
See Holder, A.R., “Funding Innovative Medical Treatment,” Albany Law Review, 57 (1994): 795–810; Fox v. Health Net of California, No. 219692 (Cal. Super. Ct. 1993); Goepel v. Mail Handlers Benefit Plan, 1993 WL 384498 (D.N.J. 1993); Barnett v. Kaiser Foundation Health Plan, Inc. _ F.3d _1994 WL 400819 (9th Cir. 1994); and Von Stetina v. Florida Medical Center, 2 Fla. Supp. 2d 55 (17th Cir. 1982), 436 So. 2d 1022 (1983), 10 Fla. L. Weekly 286 (Fla. May 24, 1985).Google Scholar
Rie, M.A., “A Social Responsibility to Die? Freedom Aging and AIDS,” Journal of Clinical Anesthesia, 1 (1989): 222–27; and Battin, M., Ethical Issues in Suicide (Englewood Cliffs: Prentice Hall, 1982).CrossRefGoogle Scholar
Meyer, M. and Mure, A., “Not My Health Care,” Newsweek, Jan. 10, 1994, at 36–38.Google Scholar
Levinsky, N.G., “The Organization of Medical Care: Lessons From the Medicare End Stage Renal Disease Program,” N. Engl. J. Med., 329 (1993): 1395–99.CrossRefGoogle Scholar
See supra note 21 and accompanying text.Google Scholar
See Morreim, supra note 15. See also Daniels, N., “Just Caring: Health Care Reform and Health Care Rationing,” Journal of Medicine and Philosophy, 19 (1994): 425–33; Mariner, W.K., “Medical Technology Assessment—Intended For Whom?,” American Journal of Public Health, 83 (1993): 1525–26; Havighurst, C., “Altering the Applicable Standard of Care,” Law and Contemporary Problems, 49 (1986): 265–76; Havighurst, C., “The Changing Locus of Decision Making in the Health Care Sector,” Journal of Health Politics, Policy and Law, 11 (1986): 697–735; Morreim, E.H., “Stratified Scarcity: Redefining the Standard of Care,” Law, Medicine & Health Care, 17 (1989): 356–67; Hall, M.A., “Informed Consent to Rationing Decisions,” Milbank Quarterly, 71 (1993): 645–68; Anderson, G.F., Hall, M.A., and Steinberg, E.P., “Medical Technology Assessment and Practice Guidelines: Their Day in Court,” American Journal of Public Health, 83 (1993): 165–71; Morreim, E.H., Balancing Act: The New Medical Ethics of Medicine's New Economics (Boston: Kluwer Academic, 1991); and Miller, F.H., “Denial of Health Care and Informed Consent in English and American Law,” American Journal of Law & Medicine, XVIII (1992): 37–71.Google Scholar
Engelhardt, H.T. Jr. and Rie, M.A., “Intensive Care Units, Scarce Resources and Conflicting Principles of Justice,” JAMA, 253 (1986): 1159–63.CrossRefGoogle Scholar
Teres, D. and Lemeshow, S., “Severity of Illness Modeling,” in Rippe, J., ed., Intensive Care Medicine (Boston: Little Brown, 3rd ed., 1995): In press; Knaus, W.A. et al., “The APACHE-III Prognostic Scoring System: Risk Prediction of Hospital Mortality for Critically III Hospitalized Adults,” Chest, 100 (1991): 1619–36; Lemeshow, S. et al., “Mortality Probability Models (MPM-II) Based on an International Cohort of Intensive Care Patients,” JAMA, 270 (1993): 2478–86; LeGall, J., Lemeshow, S. and Saulnier, F., “A New Simplified Physiology Score (SAPS-II) Based on a European-North American Multicenter Study,” JAMA, 270 (1993): 2957–63; and Birnbaum, M.L., “Cost Containment in Critical Care,” in Rippe, J.M. et al., eds., Intensive Care Medicine (Boston: Little Brown, 2nd ed., 1991): 1977–97.Google Scholar
See Society of Critical Care Medicine, supra note 4.Google Scholar
Shortell, S.M. and Reinhardt, U.E., Improving Health Policy and Management: Nine Critical Research Issues for the 1990's (Ann Arbor: Health Administration Press, 1992).Google Scholar
The figures for mortality and time in this paragraph are fictitious. Specific quantification of the variables would be negotiated. Negotiations would permit buyers and sellers to meet in a morally contentful insurance market place.Google Scholar
See Morreim, , supra note 15; and Morreim, , supra note 39.Google Scholar
See Engelhardt, and Rie, , supra note 40.Google Scholar
Some readers will be concerned about a hospital's ability to guarantee care to a patient in a basic tier entitlement status when that patient could be displaced by another who had previously purchased an enhanced benefit to marginally beneficial care. The Oregonian ICU applies to actuarially valid health systems with a minimum of 50,000 covered lives. In these systems, patients would be moved if necessary, and sufficient beds within the system will guarantee that the entitlement of the basic tier will not be violated by patients in a higher entitlement tier. Properly executed, mesoallocatory ICU health policy protects the least well off members of society by assuring quality delivery of the basic minimum benefits.Google Scholar
See Teres, and Lemeshow, , supra note 41.Google Scholar
See Engelhardt, and Rie, , supra note 40.Google Scholar
The SUPPORT project's definition of futility uses a mathematical definition of futility at the 1 percent survival rate. But such analysis itself is another articulation of the national health care ideology. Futility is a subjective value where consumers, providers, and the courts already disagree. The relevant question addressed by the Oregonian ICU is: What goals are worth pursuing with our collective health insurance funds, given the finite resources of the group and the infinite demand from the financially sheltered patient and the death-denying health professionals? See Teno, J.M. et al., “Prognosis Based Futility Guidelines: Does Anyone Win?,” Journal of the American Geriatric Society, 42 (1994): 1202–07; and Lynn, J. and Knaus, W.A., “Background for SUPPORT,” Journal of Clinical Epidemiology, 43, Supp. (1990): 1S–4S.CrossRefGoogle Scholar
See supra note 50.Google Scholar
Annas, G., “Informed Consent, Cancer and Truth in Prognosis,” N. Engl. J. Med., 330 (1994): 223–25.CrossRefGoogle Scholar
See supra note 21 and accompanying text.Google Scholar
See Society of Critical Care Medicine, supra note 4.Google Scholar
See supra note 9 and accompanying text.Google Scholar
See Morreim, , supra note 15; and Morreim, , supra note 39.Google Scholar
Rie, M.A., Ackerman, F. and Callahan, D. “Helga Wanglie's Ventilator,” Hastings Center Report, 21, no. 4 (1991): 23–35.Google Scholar
Scitovsky, A.A., “‘The High Cost of Dying’ Revisited,” Milbank Quarterly, 72 (1994): 561–91.CrossRefGoogle Scholar
Wildes, K.W., Critical Care and Critical Choices: Catholic Studies in Bioethics (Dordrecht: Kluwer Academic, 1995): In press; and Bioethics Committee, supra note 7.CrossRefGoogle Scholar
See Teres, and Lemeshow, , supra note 41.Google Scholar
See Levinsky, , supra note 37.Google Scholar