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Copyright 2000 The Denver Post Corporation  
The Denver Post

November 5, 2000 Sunday 1ST EDITION


LENGTH: 707 words

HEADLINE: Another win for trial lawyers

BYLINE: Al Knight,

It has been largely unnoticed that Congress won't be passing a  Patients' Bill of Rights this year. That's a surprise. Not too  many months ago, it was considered a sure bet that President  Clinton and his Democratic allies in Congress would be able to  force the Republican-controlled Congress to act this year.

The prevailing theory was that the issue would become  one of the most important in the current election campaign and  that the Republicans would have to compromise and approve some  version of the legislation before the election.

Vice President Al Gore, the Democratic presidential  nominee, tried mightily tomake a national issue of HMOs, claiming  the major insurers are insensitive to patient interests and should  be subject to greater regulation.

In the end, however, it wasn't enough to make anything  happen, although negotiations over the issue continued until late  last month when it became obvious that the measure was dead for  this session. In the lame-duck session of Congress that will  follow Tuesday's general election, there won't be either time or  inclination to revive the issue.           What is remarkable  about this outcome is the reason it occurred.

The effort to pass a bill collapsed largely because the  country's trial lawyers and their allies in Congress refused to  accept any version of the bill that would have limited the right  of plaintiffs to sue health maintenance organizations. The  Republican leadership refused to accept any bill that didn't  contain some limitation.

Republican congressional leaders had offered a  compromise that would have required an aggrieved patient to first  submit a complaint to an independent panel. The panel would rule  whether the HMO had acted improperly. Private lawsuits would have  been permitted only if the panel ruled the HMO had acted improperly.

The trial lawyers' lobby insisted that there be no  limitation on the right to sue. According to the Wall Street  Journal, the lawyers were supported in this position by an  unlikely ally, the American Medical Association.

The right to sue is likely to remain a major sticking  point in this issue, regardless of who is elected president. Texas  Gov. George W. Bush has taken the position that there ought to be  an administrative review before a case can be filed in court. He  has pointed out that Texas has such a provision, and claims that  it has cut down on the number of lawsuits while also making sure  the patient has a right to appeal an insurer's adverse decision.

Even if Gore - who supports the trial lawyers' position  - is elected president, the opposing point of view will be carried  forward by the Republican congressional leadership.

It should be pointed out that in the early days of  HMOs, there were admittedly some abuses in which patients' claims  were denied. In the most egregious cases, the insurer simply  stone-walled the patient or set up an in-house arbitration system  designed to greatly delay consideration of patient claims.

Publicity about such abuses, especially in California,  led to policy changes by most insurers.

What remains to be decided in Washington is which of  these opposing interests will blink first?

There is a kind of delicious irony in the fact that  it was the trial lawyers, longtime friends and financial  supporters of the Democratic Party, who are principally  responsible for delaying passage of a Patients' Bill of Rights. By  their insistence on an unlimited right to litigate patient  complaints, they have delayed the enactment of a statute that was  supposed to quickly aid millions of Americans who are enrolled in  HMOs.            Trial lawyers, given the choice of aiding these  patients or helping themselves to a new and rich area of  litigation, unsurprisingly chose to aid themselves.

They are betting that they may be able to get what  they want from Congress next year and have thus refused the  half-a-loaf offer available now. Next Tuesday's election will help  to determine if their gamble pays off.

Al Knight ( is a member of The Denver Post  editorial board.

LOAD-DATE: November 07, 2000

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