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21 Am. J.L. & Med. 383 (1995)
Implications of Negligent Selection and Retention of Physicians in the Age of ERISA

handle is hein.journals/amlmed21 and id is 385 raw text is: Implications of Negligent Selection
and Retention of Physicians
in the Age of ERISA
Torin A. Dorrost and T. Howard Stone:
Enormous and fundamental changes are currently taking place in health care
delivery. These changes include the consolidation of health care providers-from
hospitals, physicians, and insurance companies, to medical supply businesses, man-
aged care networks, and other health care providers-and numerous health care and
insurance reform efforts by government at all levels.1 These changes pose signifi-
cant implications for the delivery of health care in the United States,2 and will impact
the manner, cost, and accessibility of health care delivery.3 These changes will al-
most certainly affect the quality of health care services as well.4 The quality of
health care in the United States has for many years been a central concern of gov-
t B.A., Colgate University; J.D., University of Houston Law Center.
T Faculty Associate; Director of Research, Program on Legal and Ethical Issues in Correctional
Health, Institute for the Medical Humanities, University of Texas Medical Branch at Galveston.
B.A., University of California, Los Angeles; J.D., New York Law School; LL.M., University of
Houston Law Center.
The authors would like to thank the faculty and staff at the University of Houston Law Center,
Health Law & Policy Institute, especially Professor Mary Anne Bobinski and Diana Huezo for their
considerable assistance.
I See, e.g., Arnold S. Relman, Foreword to ANNE M. STOLINE & JONATHAN P. WEINER, THE
NEW MEDICAL MARKETPLACE at vii-ix (rev. and updated ed. 1993) (describing the social, political,
and legal forces that are affecting the practice of medicine as a revolution that has taken most of
the medical profession by surprise); Business Coalition Urges Congress to Pass Targeted Reform
Bill in 1995, Daily Rep. for Executives (BNA) No. 14, at G-6 (Jan. 23, 1995) [hereinafter Business
Coalition] (describing a business coalition's effort to have Congress pass a targeted reform bill in
1995 that would, for example, provide full deductibility of insurance premiums, medical savings
accounts, and portability of insurance coverage); Employers Cut Health Costs in 1994, Shift to Man-
aged Care, Survey Finds, Daily Rep. for Executives (BNA) No. 30, at A-20 (Feb. 14, 1995)
(indicating that employee enrollment in managed care plans increased to 63% of all covered em-
ployees in 1994 from 52% in 1993); Milt Freudenheim, Doctors, on Offensive, Form H.M.O. 's, N.Y.
TIMEs, Mar. 7, 1995, at DI, D7 (reporting that numerous physicians have formed both large groups
offering services directly to employers as well as their own health maintenance organizations
2 See generally Adam Yarmolinsky, Sounding Board: Supporting the Patient, 332 NEW ENG. J.
MED. 602, 602 (1995).
3 See sources cited supra note 1.
4 See Yarmolinsky, supra note 2, at 602 (arguing that with consolidations in the health care in-
dustry, physicians become subject to the direction and control of entities that have not taken the Hippo-
cratic Oath, for which stock prices and earnings per share may matter more than patient welfare).

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