Copyright 2000 St. Louis Post-Dispatch, Inc.
St.
Louis Post-Dispatch
April 10, 2000, Monday, FIVE STAR LIFT
EDITION
SECTION: EDITORIAL, Pg. B7
LENGTH: 669 words
HEADLINE:
PATIENTS MAY BE GIVEN THE RIGHT TO PAY
BYLINE: Richard
J. Mahoney
BODY:
HEALTH CARE
THE Clinton administration and our presumptive presidential nominees --
Al Gore and George W. Bush -- favor giving medical plan members the right to sue
health-care providers if they "withhold services and injury results." Today,
only a few states allow suits against health coverage providers and, while the
candidates differ in their criteria for allowing lawsuits, the net effect will
be about the same when the courts, as they often do, expand legislative intent.
This can hardly be called a "patients' bill of rights,"
as it is often referred to in campaign speeches, when more than one-third of
large employers surveyed recently said they would probably cut off health-care
benefits if Congress passed a law allowing patients to sue managed-care
providers under these conditions.
With thousands of medical procedures
every day, the potential for unhappiness with outcomes is endless. Without
question, a number could have been prevented by having a provision for timely
and independent medical review of critical insurer decisions -- and this is an
appropriate legislative remedy.
But legislation currently before
Congress goes well beyond that. Health maintenance organizations are easy
targets. Legislative bashing of managed care caused a bipartisan group in the
House to pass relief recently under "The Patients' Bill of
Rights Act" -- a bill complete with lawsuits, including punitive
damages when the HMOs misbehave. As usual in laws proposing expanded legal
liability, there is logic -- abuses needed correction. And as usual there is
enormous potential for abuse in the name of correction. But with all the
negative HMO vignettes that are repeated endlessly, we haven't heard much so far
from the president or the candidates about "heartless employer" stories --
"companies who withhold necessary services and therefore cause harm and need
punishing by lawsuits and punitive damages awards." Be assured that those
stories are coming if provisions of the House-passed Norwood-Dingle Bill are
enacted into law after Senate conference.
NORWOOD-DINGLE provides for
suing employers as plan sponsors if "employers . . . exercise discretionary
authority to make a decision on a claim . . . and such . . . authority resulted
in personal injury or death."
With only a few deep-pocket HMOs to go
after, the trial lawyers will inevitably bring the employers into the suits by
arguing that any action by the HMO or other managed-care provider is imputed to
be an action of the employer because of a fiduciary relationship. They will
argue: The employers funded the plan and knew its limitations and are therefore
accountable for the result just as if they had personally denied care.
Sympathetic juries will receive the time-honored and familiar barrage of
trial lawyer allegations simply adjusted to the new law: We've got to send a
message to this big out-of-state corporation that it can't abuse employees in
our city with its wanton, heartless acts, denying this new treatment that might
-- just might -- have worked -- and my unfortunate client as you can see . . .
etc., etc.
The corporation will be depicted as having had its agent, the
HMO or other managed-care provider, withhold the treatment for cost and profit
reasons.
The outcome of this new liability for corporations is
predictable. A few plaintiffs will hit Big Casino. The real losers will be the
employees hit with higher co-pays, lowered coverage or no coverage at all if
companies drop health-care benefits because of the liability passed back to them
from HMOs. When the employers say to the trial lawyers, "You win, we quit, we're
out of here," the true effect of "The Patients' Bill of Rights"
will be felt -- the patients will have the right to foot the bill themselves.
Let's hope the Senate will see through the trial lawyers' plan to bash
HMOs for public effect -- but then go after the real targets, the corporations
that provide the coverage. At least for now they provide the coverage!
LOAD-DATE: April 10, 2000 
