Law prof's research reaches high court

David Orentlicher's words, many of them written at the IUPUI campus, have been heard nationally, resonating all the way to the U.S. Supreme Court.

On June 12, an article titled "Paying Physicians More To Do Less: Financial Incentives To Limit Care," written by Orentlicher and published in the

"The case was important in holding that, at least under federal law, an HMO was not liable just because it employed financial incentives that encouraged physicians to limit their use of tests," Orentlicher said.

Those in the legal community - academic and private practice - say Orentlicher, a professor at the Indiana University School of Law at Indianapolis, is fast making a name for himself in the area of medical ethics. Orentlicher, who has the distinction of holding both law and medical degrees, was cited once before by the U.S. Supreme Court, on the subject of assisted suicide in 1997.

"The fact that he was cited by the Supreme Court really doesn't surprise me," said Norman Lefstein, dean of the IU School of Law at Indianapolis. "He truly has a national reputation in bioethics and the law. That's not to say this is an everyday occurrence."

Orentlicher, who does a small amount of private consulting, gets only a small marketing boost from being cited by the nation's highest court. But the IU School of Law gets a big one, local attorneys said.

Orentlicher's reputation as a legal scholar, particularly regarding health care, is rising dramatically, said Syd Arak, a partner at the Indianapolis office of Barnes & Thornburg.

"He's a nationally recognized health care ethical expert," Arak said. "Those in that field do know him and hold him in high regard. Central Indiana as well as the IU School of Law are fortunate to have him."

John Schaibley, a partner with local law firm Baker & Daniels and a clerk in 1983 for U.S. Supreme Court Justice John Paul Stevens, said Orentlicher could be putting himself in line for a judgeship. "It's always an honor for a scholar to be cited by the Supreme Court," Schaibley said.

Over the last 25 years, there has been a trend to put more academics into judge positions, Schaibley said, and the recognition Orentlicher is garnering could make him a prime future candidate. "Many judges, before they came on the bench, were heavily cited," Schaibley said.

There is more at stake, contended Orentlicher, than financial payoffs or political positioning. "Your goal is to influence the court and to shape the law," he said. "You feel very fortunate when that happens."

In his most recent work cited by the Supreme Court, Orentlicher argued that while many people might not like HMO incentive programs that pay doctors bonuses for cost-saving practices, in themselves, they are not wrong or illegal.

The U.S. Supreme Court, using Orentlicher's arguments as a point of reference, said patients can't sue an HMO for providing doctors with financial incentives under the federal employee benefits law.

"These financial incentives are very controversial, but they may be unavoidable," said Orentlicher, sitting amid 3-foot-tall stacks of papers at his desk in his IUPUI office. "If you want doctors to think about cost, you either give them a budget or give them these incentives."

While Orentlicher said physician incentives play an important role in controlling costs, he said there are ways to assure they don't unduly affect patient service.

Orentlicher said incentives must be diluted over a number of physicians serving a large number of patients, with incentives being figured annually instead of monthly. Orentlicher also urged that not too great a percentage of the doctor's income be tied to the incentives.

"The Supreme Court ruling doesn't settle it once and for all, but it is an important statement," Orentlicher said.

Orentlicher conceded there are plenty of gray zones when it comes to HMOs and the kind of service managed care affords patients. "If you spend less, you get less," he said. "You're cutting out the marginally advantageous care. With HMOs, there are trade-offs. There's no obvious answer."

Orentlicher, 45, a Maryland native who joined the IU School of Law faculty in August 1995, has traveled an unusual career path that makes him uniquely qualified to speak and teach on medical law issues.

After graduating from Harvard University Medical School, completing a oneyear internship and nine months in private practice, Orentlicher decided to pursue a law degree at Harvard. "My heart was in law," Orentlicher said. "The type of thinking you do in law fits me."

But Orentlicher always stayed close to his roots in medicine. He had a short stint with a private law firm in Washington, D.C., in the area of health-law policy, before taking a post with the American Medical Association, where he supervised the development of the AMA's Code of Medical Ethics. After six years with the AMA, Orentlicher pursued a career in education. He was eager to work with young, aspiring law students.

"I like shaping the students," he said. "But it's an exchange, and they also help shape me."

Orentlicher also sought the opportunity to research topics in-depth and write about them independently. It was a luxury he was not afforded at the AMA.

"I was looking to write some things and express some views that the AMA didn't agree with," Orentlicher said. "While teaching, you have the freedom to advocate for important issues and you have the opportunity to think about issues and research them carefully."

Orentlicher said the officials at the IU School of Law have never put pressure on him or swayed his writing.

"If you stifle people's thinking, you stop progress," Orentlicher said. "It's important for academics to rock the boat."