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First of two parts on patients' rights
If an HMO harms you by denying or delaying treatment that your health plan should cover, what can you do? In most states, almost nothing, when you have an employee plan. You can sue doctors and hospitals, but federal law prevents you from suing the plan itself.

Advocates of "patients' rights" are fighting an uphill battle in Congress to give injured people (or their survivors) a right to sue their HMOs. Advocates of insurance companies are successfully blocking them, saying that lawsuits would increase everyone's health insurance costs.

Lawsuits are just a means to an end. Patients want (1) strong incentives for HMOs to make careful medical decisions and (2) fast and proper recompense, for anyone harmed by an HMO decision.

Right now, the market incentives are wrong. By denying treatment, HMOs increase their profits with almost no risk of loss if they make a mistake. Whether you appeal to the law or to arbitration, the deck is generally stacked against you.

What's the best way to give patients more protection? Congress has been arguing over two possibilities:

Malpractice lawsuits. Yes, they increase medical costs because the price of malpractice insurance is passed on to you. The Congressional Budget Office estimates that this feature, contained in the Democrats' Patients' Bill of Rights, would add 1.2 percent to the cost of the average employer-sponsored plan.

Put another way, 1.2 percent is the price of your personal "patient insurance." Everyone pays, in order to create a right to sue and to give the few injured people a chance to recover damages.

The threat of big lawsuits should, in theory, make HMOs more careful, achieving the first of the two consumer goals. Today's malpractice lawsuits fail on the second count. They aren't compensating most of the patients who are injured.

The Harvard Medical Practice Study in the early 1990s concluded that, out of 40 million patients hospitalized every year, about 400,000 are negligently injured.

But fewer than 50,000 malpractice suits are filed, two-thirds of which are rejected for various reasons. Only about 4 percent of injured patients actually collect. Those damaged the most get the least relative compensation for their losses, says Harvard Law School professor Paul Weiler.

It's a lottery, not a fair system for repairing wrongs. You imagine that if it's a lottery you'd win, but the odds are way against you.

In the past three years, patients received the right to sue HMOs for malpractice in 11 states: Colorado, Delaware, Kansas, Missouri, New Jersey, New Mexico, Oklahoma, Pennsylvania, Texas, Utah and Wyoming. The change came about either legislatively or through the federal courts.

Members of Congress, by the way, enjoy the same right. They can sue health plans that injure them, wherever they live. But the proposal to let you sue, too, isn't going to pass.

External, review panels, to which patients can appeal an adverse HMO decision. But how independent would these panels be? Not very, under the Senate Republicans' Patient Protection Act.

Those panels could be controlled by the HMOs. The health plans would select the reviewing group and pay the reviewers. The HMOs would even decide whether your case could be appealed.

You couldn't submit new medical information to the review panel, even if your original request for treatment was incomplete. The panel's decision would be binding. You couldn't take the HMO to court.

The panels in the Senate bill don't fulfill either of the two consumer objectives. They don't get all the injured people paid, and they don't create strong incentives for HMOs to root out mistakes.

The version of the Patient Protection Act that recently passed the House gives patients somewhat more. The outside review is more independent, and you could introduce fresh evidence to support your side.

If you still lose, you could ask a federal court whether the HMO made a reasonable decision, based on the medical information it had at the time. If not, you could collect the value of the treatment, attorney's fees and a penalty. Suits like this, however, have been difficult to win.

There's a better solution than lawsuits or more review panels: namely, no-fault health insurance. Under no-fault, everyone injured would be compensated by the medical plan's insurer, with no lawsuits involved. The medical plan's premiums would be linked to the claims paid.

This approach satisfies both patient goals: fair compensation and incentives for HMOs to take more care. But the lawyers would fight it and Congress wouldn't give it the time of day.

SATURDAY: How no-fault could help.

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