Standards of Care and Standard Form Contracts: Distinguishing Patient Rights and Consumer Rights in Managed Care

The Journal of Contemporary Health Law and Policy, Vol. 15, No. 1, Fall 1998

Posted: 8 Apr 1999 Last revised: 3 Mar 2011

See all articles by Wendy K. Mariner

Wendy K. Mariner

Boston University School of Law; Boston University School of Public Health

Date Written: 1998

Abstract

Current efforts to regulate managed care often conflate patients with consumers, relying on consumer protection measures, such as disclosure of contract terms and consumer choice, to protect patients. This article distinguishes between patient rights and consumer rights in order to clarify the analysis of legal reform proposals. Consumer protection has traditionally focused on buyers' purchasing decisions and issues of contract law. Patient rights have been primarily grounded in tort law to set standards of conduct in providing health care without regard to whether or how it was paid for. Problems with basing reforms solely on the consumer model are discussed, including whether contract terms can supersede patient rights. It is argued that managed care plans are better characterized as a hybrid combining elements of standard form insurance contracts and personal medical care. While some contract doctrines applicable to standard form contracts are appropriate for the financial elements of managed care plans, tort principles are more appropriate for its personal care functions. This characterization calls for the development of extra-contractual standards to protect the rights of patients, as well as consumers, in designing and carrying out managed care pans.

Suggested Citation

Mariner, Wendy K., Standards of Care and Standard Form Contracts: Distinguishing Patient Rights and Consumer Rights in Managed Care (1998). The Journal of Contemporary Health Law and Policy, Vol. 15, No. 1, Fall 1998. Available at SSRN: https://ssrn.com/abstract=159048

Wendy K. Mariner (Contact Author)

Boston University School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States

Boston University School of Public Health ( email )

715 Albany Street
Boston, MA 02118
United States
617-638-4626 (Phone)
617-414-1464 (Fax)

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