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  • Strangers in the Night: Law and Medicine in the Managed Care Era
  • Ellen Waldman (bio)
Peter D. Jacobson. Strangers in the Night: Law and Medicine in the Managed Care Era. New York: Oxford University Press, 2002. 296 pp. $36.00 cloth.

Conventional wisdom has managed care on the ropes or two shoulders to the canvas. Patient frustrations with managed care bureaucracies, combined with physician anger at institutional incursions on clinical autonomy, have led to popular rebellion and subsequent industry retooling. Media accounts of medical neglect driven by health plan penury have inspired legislative initiatives that clip managed care's wings, and a previously protective judiciary has taken an increasingly dim view of many [End Page 1241] of the industry's basic practices. In the face of such hostility, health maintenance organizations (HMOs), preferred provider organizations (PPOs), and other managed care entities have gutted their most unpopular cost-control measures—loosening preauthorization requirements, expanding definitions of medical necessity, and reducing physician incentives to deny care. Unsurprisingly, health care spending is once again rising at record levels (Pear 2004). Looking out at this bleak landscape, supporters and detractors alike have called it a match, pronouncing "the death of managed care" (Jacobson 2003: 365).

Peter Jacobson believes such pronouncements to be premature and unduly pessimistic. While no fan of managed care in its current form, Jacobson argues that initiatives to cabin health care expenditures need not entail patient abandonment, and his book, Strangers in the Night: Law and Medicine in the Managed Care Era, is an effort to sketch out how this might be so. The problems—evisceration of the physician-patient relationship, limitations on patient choice, arbitrary denials of care, and trust-eroding institutional arrangements rife with conflicts of interest—can be solved, he says, by resurrecting the fiduciary duty concept rejected by the Supreme Court in Pegram v. Herdrich (530 U.S. 211 [2000]). Strangers begins and ends with stirring admonitions to physicians and attorneys to put differences aside and work toward the construction of medically responsive and fiscally sound health care delivery systems. Although one might legitimately wonder if the fiduciary framework alone is a sufficiently robust catalyst for the sorts of transformations Jacobson foresees, we are nonetheless enriched by his wide-angled perspective and challenged to imagine a medical system that better balances the needs of individual patients with communal needs for fiscal restraint.

Geared primarily to render the complex relationship between law and medicine accessible to nonlawyers, Strangers would be useful reading for students of medicine or public health seeking to better understand the legal forces that help shape transformations in health care organization, finance, and delivery. Although health care lawyers would likely be familiar with the basic outline of the cases presented, Jacobson approaches the courts' gyrations over managed care with the practiced eye of a historian and thus imparts a richer, more nuanced assessment than is available to practitioners mired in the emerging case law thicket.

Strangers, despite its often hortatory tone, is two parts description and one part prescription. Part I traces the genealogy of the sometimes hostile, sometimes symbiotic interactions of the legal and medical professions. It charts the evolution of health care delivery systems from the nineteenth [End Page 1242] century, when health care was largely a private-sector enterprise, through New Deal and Great Society initiatives that broadened government involvement and oversight. Managed care's ascendance in the past two decades receives particular attention as bringing a big-business model of operations to health care delivery, changing medical practice from "a local industry dominated by medical professionals and non-market-based considerations into an industry increasingly guided by traditional market rules and arrangements" (53).

Jacobson shows law and medicine in a contrapuntal duet—with legal change facilitating shifts in health care delivery, which in turn prompt new legal reforms. For example, the creation of Medicare and Medicaid led to the growth of a large body of fraud and abuse law. Changes in antitrust doctrine facilitated market-driven mergers and contractual alliances, which then led state legislators to enact laws designed to police the newly created medical monoliths. In the past, legal norms have supported physician autonomy and dominance in the...

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