Disclosure of Unavailable Treatment Options to Patients

One of the most important aspects of a doctor-patient relationship is open communication. Withholding information on either side may impair that relationship. A study by the American Medical Association (AMA), released in July 2003, revealed that as many as one in three doctors withholds information from patients about medical services not covered by health insurance companies and/or beyond the patient's personal resources. However, guarantees of full disclosure by physicians may be only the first hurdle in the pervasive health care issues that continue to plague patients today.

"Gag Clauses" for Doctor-Patient Communications

Years ago, some managed health care companies included "gag clauses" in doctor contracts prohibiting physicians from discussing medical options or services not covered by the patient's plan. However, in response to public protest, most companies have dropped such clauses and many states have banned them from health insurance contracts.

Reasons Why Physicians May Withhold Information

The AMA study demonstrates that, even without gag clauses, some physicians still fail to discuss all alternative treatments and procedures with patients. There are numerous explanations for this, including:

• Fear of being asked by patients to help cheat the insurance companies to receive care for which they are not eligible under their health care plans
• Physicians are now usually paid by the insurance company or a managed care plan, not the patient, leading to divided loyalties
• The physician may feel it is unfair to discuss certain medical procedures or treatments when the patient has no reasonable expectation of access to such options (for financial, coverage, or other reasons)
• Physicians are frequently expected to explain complicated medical information in a short period of time – there is only so much that the physician can discuss with the patient

The surprising results of the study are in conflict with the AMA's Code of Medical Ethics, stating that "physicians have an obligation to assure the disclosure of medically appropriate treatment alternatives, regardless of cost."

Patient Options

As the problem of withholding information from patients is tied to larger problems of health care in the U.S., patients are well advised to take a more active and informed role in their own health care. Patients are encouraged to directly ask physicians about all of their treatment options. Patients may also conduct their own research regarding the nature and treatment of their conditions via the Internet or local libraries, and by consulting with "medical advocates." Patients can even inquire whether the physician is following one of the profession's 1,200 clinical guidelines, designed to standardize care. If still unsatisfied, a patient should obtain a second opinion.

Further Implications

While the AMA study appears discouraging, a positive interpretation of its results would be that some of the treatment options or information withheld from patients pertains to services which are less crucial or necessary than others.

However, even with perfect physician-patient communication and full disclosure, patients still face the issue of health insurance coverage and affordability. If the withheld information concerns procedures and treatment options which the physician knows is not covered under the patient's insurance plan, and the doctor knows the patient cannot otherwise afford the treatment, what does full disclosure actually provide?

Full Disclosure is Not the End of the Problem – Aetna Health, Inc. v. Davila

On June 21, 2004 the U.S. Supreme Court decision in Aetna Health, Inc. v. Davila makes it virtually impossible for patients to sue their managed health care providers in state court for damages caused by the failure to pay for physician recommended treatment. In Davila, two plaintiff patients brought their original actions against their respective employer-provided HMO plans under a Texas state tort law. The plaintiffs alleged that denials of coverage for physician recommended treatments by their HMOs were improper decisions which caused them injury. The HMOs sought to remove the case to federal court arguing that the state tort law was preempted by the Employee Retirement Income Security Act of 1974 (ERISA), and the Supreme Court agreed.

The Davila decision makes ERISA's preemptive force crippling for state tort laws regarding HMOs. Since HMO membership is usually tied to employee benefits plans, patients are left without sufficient recourse because ERISA severely limits available remedies. Under ERISA, remedies are limited to reimbursement for out-of-pocket payments patients make for their treatments and equitable relief. The critical dilemma is that some patients cannot afford to pay out-of-pocket or to wait for equitable relief, and therefore must go untreated.

Thus, despite full disclosure of treatment options by their doctors, the Davila plaintiffs were denied coverage for the recommended treatments. In other words, although these physicians recommended unavailable options to their patients, the patients did not benefit from those disclosures since they were forced to take alternative treatments. The Davila case illustrates that simply giving patients the full range of their treatment options is not the end of the story.