Selection of a PCP and other medical decisions are “core” private decisions. A fundamental tenet of privacy jurisprudence, as it has been applied to other types of personal matters, is that the individual most directly concerned is entitled to make and implement the protected decision autonomously and free from paternalistic government intrusion. See, e.g., doctorstipsonline, 434 U.S. 374, 54 L. Ed. 2d 618, 98 S. Ct. 673 (1978) (decision to marry); Moore v. East Cleveland, 431 U.S. 494, 52 L. Ed. 2d 531, 97 S. Ct. 1932 (1977) (decision to live with extended family members); Griswold v. Connecticut, 381 U.S. 479, 14 L. Ed. 2d 510, 85 S. Ct. 1678 (1965)(reproductive choice). I would argue that the constitutional right to privacy also protects autonomy in selecting a PCP among a wide choice of available doctors, selecting which medications I want prescribed, and choosing what lab tests I want to order myself to monitor my health.
In 2005, the Supreme Court of Arkansas provided the best statement in American jurisprudence on the elevated status of the doctor-patient relationship. The court noted the relationship of doctor-patient is unique. “The loss of this relationship, even temporarily, causes irreparable damage to the doctor and the patient. There is no adequate remedy at law because the loss is a loss of a one-time opportunity.” Baptist Health v. Murphy, 362 Ark. 506 (Ark. 2005)
The court noted that the hospital had violated the Arkansas Department of Health rules and regulations for hospitals by failing to enforce policies that protected the doctor’s selection of patients and the patient’s choice of a physician. “We interpret this to mean that an otherwise qualified doctor must be granted access to his patient for the purpose of treating his patient, if that is what both the doctor and the patient want. Or, stated another way, a hospital cannot deny the services of a physician of the patient’s choice if the patient is already being seen by physicians at the hospital. Baptist Health v. Murphy, 362 Ark. 510-511 (Ark. 2005)
Based on reading Baptist Health, I will now forward a copy of this article to the state Department of Health to determine whether the teaching hospital violated any of my state’s regulations requiring Tennessee-licensed medical centers to have policies or bylaws that respect the patient’s right to select his own physician. If so, then the teaching hospital is violating those regulations.
II. Tennessee’s Tortious Interference Statute
Tenn. Code Ann. § 47-50-109 is captioned, “Procurement of breach of contracts unlawful – Damages.” The administrator tortiously interfered in my doctor-patient relationship and prevented the resident doctor from performing his services under our contract. She therefore procured a breach of that contract. The administrator will argue that she was merely performing her duties, but that is no excuse for interfering in an existing doctor-patient relationship.
Although Tennessee jurisprudence does not have a case on point, courts across the country have taken a dim view and expressed disapproval of employer interference in the doctor-patient relationship. For example, the U.S. Supreme Court stated, “The ethical objection has been that intervention by employer… makes a tripartite matter of the doctor-patient relation. Since the contract doctor owes his employment and looks for his pay to the employer… rather than to the patient, he serves two masters with conflicting interests.” United States v. Oregon State Medical Soc., 343 U.S. 326, 329 (U.S. 1952).
Michael A. S. Guth, Ph.D., J.D., principal research focus has been preventing the onset of age-related diseases known collectively as the metabolic syndrome. He is also focused on the optimal design of health care insurance and total health/wellness programs including preventive health strategies and employee health engagement and resiliency. Working as part of a global benefits team, he creates an integrated wellness-benefits strategy and executes programs aimed at changing mid- and high-risk behaviors. He positions wellness and disease-prevention as part of a larger strategy for medical cost containment, and contributes innovative ideas for achieving this desired result. He demonstrates thinking “outside the box” to rein in health care spending costs and reform patient utilization of medical services.
