The class action suit as a method of patient empowerment in the managed care setting.

INTRODUCTION The American health care system has undergone tremendous transformation over the past few decades. The fee-for-service (FFS) health care system in which physicians enjoyed a great deal of autonomy has become a managed care system in which cost and utilization considerations play a larger role in physician decision making. Although physicians and other health care professionals are still patient advocates, this role often results in a conflict between their own economic interests and their duties to their patients. Rather than depending on self-sacrificing health care professionals to advocate for them, patients need to assert their own power in the managed care arena.1 One way to gain such power is to use the class action device in litigation aimed at improving medical care quality, cost and access. Class actions, in fact, are likely to proliferate as managed care organizations (MCOs) grow and affect more patients' lives. There are well-recognized dangers to using the class action device, but if used properly, it could prove a valuable remedy for patients. This Article will explore the possible use of the class action device in health care litigation. It will examine the changes in the U.S. health care system in an effort to explain partially why patients need more power in the evolving managed care system. It also will examine the drawbacks of class actions and explain why, despite these drawbacks, class actions can better serve patient-plaintiffs in managed care litigation than other remedies. The Article will conclude that the class action can be a powerful tool for asserting patients' political power on certain health care issues. II. HEALTH CARE LITIGATION AS A REFLECTION OF THE CHANGING INDUSTRY Health care suits are not the types of cases one typically thinks of in class action terms. When asked to define a health care claim, most people think in terms of personal injury allegedly resulting from caregiver negligence. Such cases, which address quality of care,2 generally do not lend themselves to class action treatment. Arguably, they are not even the types of cases the drafters of Federal Rule of Civil Procedure 23(3) intended to qualify for class action treatment.4 Rather than alleging millions of like claims, litigators of typical personal injury claims usually want to make them appear unique. In cases of severe physical injury, for example, an attorney may not want her client sharing the spotlight, and thus a portion of a large recovery, with other plaintiffs. In more mundane disputes, an attorney may not want a jury or court to consider how much imposition of liability will cost in the aggregate. Cases in which these considerations are paramount conflict with the major, overriding requirement of class actions-that the parties banding together as a class have enough in common that representation of all by a few does not offend the notion of due process.5 Nevertheless, class action claims are surfacing in a variety of health care cases,6 in part because of changes in the health care industry. Despite the concerns noted above, class actions appear to be a natural response to industry changes, and this response can help patients assert their concerns with inequities in the system. Through class actions, patients can band together to better their position via impact litigation 7 addressing the health care system in which they find themselves. Although class actions have experienced pendulum swings in public and judicial opinion over the years,8 they remain the classic method of empowering "groups of people who individually would be without effective strength to bring their opponents into court at all."9 Power, after all, "is typically more effective when it is articulated by a group."10 Class actions also offer private parties the opportunity to redress wrongs that affect the public.11 Finally, if nothing else, class certification may help plaintiffs by so increasing defendants' potential liability and litigation costs that they decide to settle cases they otherwise might have litigated. …