HOLDING HEALTH PLANS ACCOUNTABLE:
A COMPARISON OF THE
Bipartisan Norwood/Dingell Bill
(H.R. 2723)
and the
Coburn/Shadegg Bill (H.R. 2824)
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Bipartisan Bill (H.R. 2723) | ||||||
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Before filing suit |
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File Lawsuit |
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Trial/ |
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Patient recovers damages |
| Complete internal and external review except when injury or death has already occurred. |
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Patient wins if patient can prove his/her case in court.1 | No federally set limit on compensatory or punitive damages. Punitive damages cannot be recovered if plan complies with external review. | |||
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Coburn/Shadegg Bill (H.R. 2824) | |||||
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Before filing suit: Complete internal and external review in all cases, even when injury or death has already occurred. |
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File Lawsuit2 Patient who is injured or killed due to a timely denial of care can only sue if the case involves a claim that the plan negligently failed to follow the plan's own "requirements" or definitions regarding what care is medically necessary or appropriate (or experimental), no matter how inconsistent with best medical practice the plan's definitions may be. | |||
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| Case automatically dismissed if: another external review - obtained by the plan - concludes that the patient isn’t injured or the plan’s conduct did not cause the injury. This means that a determination normally made by a court would be made by a private entity hired by the plan.3 | Evidence/Trial
In the trial, patient must be careful not to submit any evidence that is relevant only to whether punitive damages are appropriate, no matter how difficult it would be to separate evidence relevant to liability and damages generally from evidence relevant to punitive damages.4 |
Evidence/Trial
Patient loses case if patient fails to prove by "clear and convincing" evidence that initial external review (decided in favor of plan) is incorrect. (Generally, patients need only prove their own case by a majority of the evidence (a "preponderance" of the evidence).) | |||
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If the previous hurdles are overcome, patient wins, and: | |||||
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Recovers compensatory damages Economic damages -- not capped. Non-economic damages -- capped at greater of 2 times the amount of the economic loss or $250,000. |
May be able to recover punitive damages in limited circumstances 1. Punitive damages are available only when the lawsuit is based upon the plan’s negligent failure to meet the decisional time frames specified in the bill, not when the dispute concerns the wrongful (but timely) denial of care. 2. Punitive damages would be decided in a separate legal proceeding. 3. As a matter of federal law, a heightened standard for recovery is established: proof of "conscious, flagrant indifference to the rights or safety of others." Common standards like reckless indifference or malice would apparently not suffice. 4. Punitive damages are available only when the plan fails to follow the initial external review. 5. Punitive damages are capped at the greater of 2 times the amount awarded for economic loss or $250,000. Special lower caps for defendants who are individuals or small businesses.5 | ||||
1Generally, patients must prove their case by
a majority of the evidence (a *preponderance* of the evidence). Since the
bipartisan bill opens the door to suits based on state law, the
type/amount of evidence could be higher if the state chose to require more
(or different) evidence from the patient.
2The Coburn/Shadegg bill creates a shorter
time frame for initiating a lawsuit than is generally the case under
existing state laws.
3Recourse to this second external review is at
the option of the plan.