Tort Liability: a Minefield for Managed Care?

The restructuring of health insurance contracts and health care delivery systems under managed care is the result of competitive attempts to reduce the inefficiencies that developed in medical markets under traditional indemnity insurance. Liability rules that continue to apply norms of customary care threaten to undermine these potential efficiency gains. Liability rules under managed care should treat claims for denial of coverage as contractual disputes, to be brought against health plans as residual claimants. Where contracts are ambiguous, appropriate coverage should be determined using a cost-benefit criterion based on beneficiaries’ willingness-to-pay. Liability claims for negligent care should be permitted only against providers, not against health plans, except where the plan voluntarily assumes liability by contract. Extending liability for negligent care to health plans is likely to distort liability decisions and constrain the competitive evolution of delivery systems. These principles should apply equally to all plans, regardless of their status under the Employer Retirement Income Security Act.