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Houston Law Review




The principal theme of this Article is that many dimensions of physicians' advocacy in managed care remain to be established, and those dimensions may turn out to be inconsistent with one another or with normative goals for the health care system. Specifically, attempting to map physician behavior onto an advocacy template created for lawyers raises three difficult questions. First, given the undisputed importance of clinical expertise to an efficient health care system, should physicians' primary role be to advocate for causes or to direct the provision of care? Second, would the medical professions' reputation for independent competence withstand the adversarial partisanship that accompanies lawyerly advocacy? Third, would patients be willing to accept procedural justice in lieu of substantive entitlements to limited resources? The Article's goal is to demonstrate that physicians should not aspire to be lawyers when they claim the mantle of "advocate," and the public should not regard them as such. However, the Article's comparative analysis of the medical and legal professions is intended to be provocative, not definitive, and leaves the development of a normative framework for physician advocacy to future work.

The argument proceeds as follows. Part II of the Article sets forth the ways in which the American health care system is adopting a more adversarial posture and simultaneously imposing lawyer-like advocacy duties on physicians. Part III then steps back to consider the milieu necessary to support legal advocacy, as well as the objections to advocacy that have been aired within the community of lawyers and legal scholars. Part IV discusses the professional and structural compatibility of medicine with an advocacy model, and Part V explores the implications of physician advocacy for system performance. The Article concludes that physicians cannot be patients' advocates in the legal sense of the word, and that efforts by both the profession and the public to construct that role for them are fundamentally misguided.

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University of Houston Law Center

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