Imwinkelried, E. J., “Expert Testimony by Ethicists: What Should be the Norm?” Journal of Law, Medicine & Ethics 33, no. 2 (2005): 198–221.Google Scholar

“Managed care organization” is also a slippery term. In the contemporary situation, there are very few health insurers that refrain from any involvement in the delivery of care. Still, some insurers are more involved than others. In 1992, John Iglehart defined a managed care system as one that integrates the financing and delivery of medical care by means of the following features: “contracts with selected physicians and hospitals that furnish a comprehensive set of health care services to enrolled members, usually for a predetermined, monthly premium; utilization and quality controls that contracting providers agree to accept; financial incentives for patients to use the providers and facilities associated with the plan; and the assumption of some financial risk by doctors, thus fundamentally altering their role from serving as agent for the patient's welfare to balancing the patient's needs against the need for cost control.” Iglehart, J. K., “Managed Care,” N. Engl. J. Med. 327 (1992): 742–747.CrossRefGoogle Scholar

29 U.S.C. §§ 1001–1461.Google Scholar

18 U.S.C. §§ 1961–1968.Google Scholar

Humana Health Insurance Company of Florida, Inc. v. Chipps, 802 So.2d 492 (Fla. Ct. App. 2001).Google Scholar

The amount of punitive damages matched the amount Humana allegedly sought to save by cutting Caitlyn and other catastrophically ill children from the case management program.Google Scholar

The primary reason for the reversal was a pleading error on the part of the plaintiffs. Humana argued that the plaintiffs' complaint never clearly alleged that damages were due Caitlyn for intentional infliction of emotional distress. If this was true, and the appeals court agreed that it was, then compensatory damages should not have been awarded to Caitlyn. Further, evidence concerning Caitlyn's distress should not have been admitted, with possible implications for the large punitive damages award. The appeals court also found that the trial court erred in its rulings on certain evidentiary matters. Chipps, supra note 5. The case was ultimately settled for $2 million. See Amon, E., “$79M Managed Care Suit Settles for $2M,” National Law Journal, February 11, 2002, A4.Google Scholar

Fed. R. Evid. 702.Google Scholar

Spielman, B. and Agich, G., “The Future of Bioethics Testimony: Guidelines for Determining Qualifications, Reliability, and Helpfulness,” San Diego Law Review 36 (1999): 1044–75, at 1051.Google Scholar

In re Diet Drugs Products Liability Litigation, 2001 U.S. Dist. LEXIS 1174 (E.D. Pa. 2001). For a more extensive analysis of the Diet Drugs ruling, see Spielman, B. J., “Professionalism in Forensic Bioethics,” Journal of Law, Medicine & Ethics 30, no. 3 (2002): 420–433, at 422–23, 424.CrossRefGoogle Scholar

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).Google Scholar

Direct Examination of Dr. Linda Peeno, Transcript of Chipps v. Humana Health Insurance Company of Florida, Fifteenth Judicial Circuit Court in and for Palm Beach County, Florida, Civil Division, Case No. CL 96–00423 AE, Jury Trial before the Hon. James T. Carlisle (December 8, 1999-January 4, 2000) (“Chipps trial transcript”), Vol. 10, at TR 1605, available at <www.bestevidence.com/Clips/PDF-Hum/T10.pdf> (last visited March 28, 2005).+(last+visited+March+28,+2005).>Google Scholar

Cross Examination of Dr. Linda Peeno, Chipps trial transcript, Vol. 11, at TR 1796–1797, available at <www.bestevidence.com/Clips/PDF-Hum/T11.pdf> (last visited March 28, 2005).+(last+visited+March+28,+2005).>Google Scholar

Id. at TR 1798.Google Scholar

Id. at TR 1791–1792.Google Scholar

Fed. R. Evid. 702; Spielman, and Agich, , supra note 9, at 1065.Google Scholar

Agrawal, G. B. and Hall, M. A., “What If You Could Sue Your HMO? Managed Care Liability Beyond the ERISA Shield,” St. Louis Law Journal 47 (2003): 235–298, at 290.Google Scholar

Id. at 292. Agrawal and Hall comment that relevant evidence would include standards of practice drawn from regulatory and accreditation sources. E. Haavi Morreim also gravitates toward a process standard that may set the bar higher than industry custom in some circumstances. See Morreim, E. H., Holding Health Care Accountable: Law and the New Medical Marketplace (New York: Oxford University Press, 2001): at 119–120.Google Scholar

The appeals court ruled that the trial court “improperly prevented Humana from introducing mitigating evidence to rebut testimony that Humana's managed care practices violated industry standards.” This testimony “reflected on the egregiousness of Humana's conduct, and, thus, may have impacted the amount of damages the jury awarded.” Chipps, supra note 5, at 496. The Humana attorneys did get in testimony such as the following: “Q. The operation by Humana of an incentive bonus program – in this case it's only been discussed in connection with the reduction of unnecessary medical bed days, hospital bed days – the operation of such a program is in line with industry standards? A. Yes, sir….Q. Is the operation, Doctor, based on your experience, education, and background, of an incentive bonus program that comports with industry standards an ethical practice? A. Yes, sir.” Direct Examination of Dr. Michael Henderson, Chipps trial transcript, Vol. 20, TR 3404–3405, available at <www.bestevidence.com/Clips/PDF-Hum/T20.pdf>..' href=https://scholar.google.com/scholar?q=The+appeals+court+ruled+that+the+trial+court+“improperly+prevented+Humana+from+introducing+mitigating+evidence+to+rebut+testimony+that+Humana's+managed+care+practices+violated+industry+standards.”+This+testimony+“reflected+on+the+egregiousness+of+Humana's+conduct,+and,+thus,+may+have+impacted+the+amount+of+damages+the+jury+awarded.”+Chipps,+supra+note+5,+at+496.+The+Humana+attorneys+did+get+in+testimony+such+as+the+following:+“Q.+The+operation+by+Humana+of+an+incentive+bonus+program+–+in+this+case+it's+only+been+discussed+in+connection+with+the+reduction+of+unnecessary+medical+bed+days,+hospital+bed+days+–+the+operation+of+such+a+program+is+in+line+with+industry+standards?+A.+Yes,+sir….Q.+Is+the+operation,+Doctor,+based+on+your+experience,+education,+and+background,+of+an+incentive+bonus+program+that+comports+with+industry+standards+an+ethical+practice?+A.+Yes,+sir.”+Direct+Examination+of+Dr.+Michael+Henderson,+Chipps+trial+transcript,+Vol.+20,+TR+3404–3405,+available+at+.>Google Scholar

Heinrich v. Sweet, where the issue was the viability of a negligence theory in connection with an experimental treatment, boron neutron capture therapy, for terminal brain cancer. Heinrich v. Sweet, 308 F.3d 48 (1st Cir. 2002), cert, denied, Heinrich v. Sweet, 2003 U.S. LEXIS 4433 (June 9,2003).Google Scholar

Regarding informed consent, the court in In re Diet Drugs stated that the standard was “legal,” i.e., relevant testimony would concern the legal standard of informed consent as defined within each applicable jurisdiction. In re Diet Drugs, supra note 10, at 28–29.Google Scholar

Id. at 29–30. Testimony from an expert should not be admitted if the trier of fact is equally competent to draw the inference in question. See Imwinkelried, , supra note 1, at 108–9.Google Scholar

State Farm Mutual Automobile Ins. Co. v. Campbell, 538 U.S. 408, 423 (2003). However, were the attorney for a defendant to put character at issue by introducing evidence that the client is a good corporate citizen, the door would be open for the plaintiff's attorney to introduce rebuttal evidence on this point.Google Scholar

See Spielman, and Agich, , supra note 9, at 1057–64; Spielman, , supra note 10, at 421–22, 424–25; Imwinkelried, , supra note 1, at 100.Google Scholar

In re Diet Drugs, supra note 10, at 31.Google Scholar

Cross Examination of Dr. Linda Peeno, Chipps trial transcript, Vol.11, TR1824–1830.Google Scholar

In the vivid phrase coined by Morreim, Haavi E., bioethicists are “intellectual cross dressers.” Morreim, E. H., “At the Intersection of Medicine, Law, Economics, and Ethics: Bioethics and the Art of Intellectual Cross-Dressing,” in Carson, R. A. and Burns, C. R., eds., Philosophy of Medicine and Bioethics (Dordrecht, Germany: Kluwer Academic Publishers, 1997): At 300.Google ScholarPubMed

For example, the expert should specify how opinions were derived, e.g., from personal experience, a synthesis of the peer-reviewed or other literature or particular sources, or generally accepted professional opinion in the field (and how this was ascertained). See Spielman, B. J., supra note 10, at 425.Google Scholar

See Morreim, E. H., “Confusion in the Courts: Managed Care Financial Structures and Their Impact on Medical Care,” Tort & Insurance Law Journal 35 (2000): 699–728.Google Scholar

Direct Examination of Dr. Michael Henderson, Chipps trial transcript, Vol. 20, TR 3402–3403.Google Scholar

The appeals court faulted the trial judge for characterizing Humana's conduct in these terms in its instruction to the jury versus leaving it to the jury to determine the egregiousness of Humana's conduct. The appeals court also suggested that the trial court favor slightly less colorful language in instructing the jury on punitive damages in the future. Chipps, supra note 5, at 496.Google Scholar

Peeno testified that this was true at the macro level, in terms of decisions about what programs to establish or emphasize, and also at the micro or individual patient level, with decisions related to the children terminated from case management. So, for example, as to the latter: “Q. Did you ever see anywhere in the documents, any of the depositions, where there was ever a consideration, a discussion, about what would happen to the catastrophically-ill child that was terminated from the medical case management when they went back on the regular plan? A. No. I mean absolutely nothing where anybody expressed any kind of concern about the consequences of these sort of decisions to these extremely vulnerable little kids.” Direct Examination of Dr. Linda Peeno, Chipps trial transcript, Vol. 10, TR I671–1672. Also: “A. It is unethical to create a program to focus on savings, to create a chart where your goal is to produce 78 and a half million dollars of savings and to have nothing, absolutely nothing in any of those reports that we looked at that talked about quality of care, or outcome, or specific consequences to the individual patients whose lives are going to be saved [sic] in order to produce that savings. That's unethical.” Re-direct of Dr.Peeno, Linda, Chipps trial transcript, Vol. 11, TR 1818.Google Scholar

Cross examination of Dr.Peeno, Linda, Chipps trial transcript, Vol. 11, TR 1794–1794.Google Scholar

Cross Examination of Dr.Peeno, Linda, Chipps trial transcript, Vol. 11, TR 1814–1815.Google Scholar

530 U.S. 211 (2000).Google Scholar

Brief of Health Law, Policy, and Ethics Scholars as Amici Curiae in Support of Respondent, 1998 U.S. Briefs 1949 (December 20, 1999) (LEXIS). The amici were M. Gregg Bloche, Peter P. Budetti, Norman Daniels, Carola Eisenberg, Leslie Pickering Francis, Eliot Freidson, Ruth D. Gaare, Eli Ginzburg, Lawrence O. Gostin, Eugene C. Grochowski, Michael A. Grodin, Alan L. Hillman, Joel D. Howell, Patricia Illingsworth, Peter D. Jacobson, Timothy Stoltzfus Jost, Jeffrey P. Kahn, Sheldon F. Kurtz, Wendy K. Mariner, Thomas Wm. Mayo, Jonathan D. Moreno, Thomas R. Oliver, Edmund D. Pellegrino, Mark A. Peterson, Thomas Rice, John A. Robertson, Marc A. Rodwin, Marjorie M. Shultz, Andrew W. Siegel, Anita Silvers, Roy G. Spece, Jr., Alan A. Stone, Richard Scott Stuart, Walter Wadlington, and Susan M. Wolf.Google Scholar

Id. at 1–2.Google Scholar

Id. at 2.Google Scholar

Id. at 3.Google Scholar

Id. at 4.Google Scholar

Id. at 14–15.Google Scholar

In most circumstances, these articles will be culled from the literature available through LEXIS or Westlaw. These databases include journals that bridge law and ethics (e.g., the Journal of Law, Medicine & Ethics, the Yale Journal of Health Policy, Law, and Ethics), but not core bioethics journals (e.g., the Hastings Center Report, the Kennedy Institute of Ethics Journal). However, the American Journal of Bioethics is available through the Health News and Information source file in LEXIS/NEXIS.Google Scholar

154 F.3d 362 (7th Cir. 1998).Google Scholar

Id. at 375 (quoting from Greene, J., Has Managed Care Lost Its Soul? Health Maintenance Organizations Focus More on Finances, Less on Care, Am. Hosp. Publishing Inc., May 20, 1997.)Google Scholar

In a more conventional dissent, Judge Flaum cited a number of articles authored by scholars that straddle the law-ethics divide, including E. Haavi Morreim, Frances H. Miller, David Orentlicher, and Edward B. Hirshfeld (none of whom, incidentally, signed on to the Brief of Health Law, Policy, and Ethics Scholars).Google Scholar

“The adequacy of professional obligation to counter financial self-interest has been challenged no matter what the form of medical organization. HMOs became popular because fee-for-service physicians were thought to be providing unnecessary or useless services; today, many doctors and other observers argue that HMOs often ignore the individual needs of a patient in order to improve the HMOs’ bottom lines [citations omitted]. There are, of course, contrary perspectives, and we endorse neither side of the debate today.” Pegram v. Herdrich 530 U.S. 211, 220 (2000).Google Scholar

Id. at 221.Google Scholar

Id. at 233.Google Scholar

“While the incentive of the HMO physician is to give treatment sparingly, imposing a fiduciary obligation upon him would not lead to a simple default rule, say, that whenever it is reasonably possible to disagree about treatment options, the physician should treat aggressively. After all, HMOs came into being because some groups of physicians consistently provided more aggressive treatment than others in similar circumstances, with results not perceived as justified by the marginal expense and risk associated with intervention….[W]hether under the Court of Appeals's rule or a straight standard of undivided loyally, the defense of any HMO would be that its physician did not act out of financial interest but for good medical reasons, the plausibility of which would require reference to standards of reasonable and customary medical practice in like circumstances…. Thus, for all practical purposes, every claim of fiduciary breach by an HMO physician making a mixed decision would boil down to a malpractice claim, and the fiduciary standard would be nothing but the malpractice standard traditionally applied in actions against physicians.” Id. at 235.Google Scholar

Aetna Health Inc. v. Juan Davila, 542 U.S. 200, 124 S.a. 2488 (2004).Google Scholar