Patients as Consumers: Courts, Contracts, and the New Medical Marketplace

Abstract:     
It has come to light recently that most hospitals and some doctors commonly charge patients two to four times more if patients are uninsured or seek care outside discounted networks. This is one reason that medical costs contribute to over half of personal bankruptcies. This article explains how this dysfunctional market arose and what courts should do about it. Using both standard and behavioral economic analysis, we survey the range of common law doctrines that should allow courts to supervene contracts for the price of medical care. Along the way, we have much to say about whether law in general should regard patients as consumers, and whether the newly emerging idea of consumer-driven health care will work well.

Number of Pages in PDF File: 48

Keywords: medical bills, unconscionability, health care pricing

Accepted Paper Series