February 2008 Vol. 106 No. 4 THE REVIEW

Patients as Consumers: Courts, Contracts, and the New Medical Marketplace

Mark A. Hall & Carl E. Schneider

The persistent riddle of health-care policy is how to control the costs while improving the quality of care. The riddle’s once-promising answer—managed care—has been politically ravaged, and consumerist solutions are now winning favor. This Article examines the legal condition of the patient-as-consumer in today's health-care market. It finds that insurers bargain with some success for rates for the people they insure. The uninsured, however, must contract to pay whatever a provider charges and then are regularly charged prices that are several times insurers’ prices and providers’ actual costs. Perhaps because they do not understand the health-care market, courts generally enforce these contracts. This Article proposes legal solutions to the plight of the patient-as-consumer and asks what that plight tells us about market solutions to the health-care quandary.

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