Thanks to the emergence of a Democratic majority in the Senate, a patients' bill of rights is now up for debate in Washington, which means the nation may be closer to managed care health reforms. But the cure shouldn't be worse than the sickness.
The most controversial part of the reform plan - enhancing patients' rights to sue HMOs for denied or delayed care - ought to balance the need to hold health plans accountable and encourage better care with the need to hold down health insurance premium costs and avoid forcing more Americans into the ranks of the uninsured.
What is needed is a new set of rules that seeks to solve differences over health care decisions with appeals to an outside review panel, a Medicare-like provision already provided by New York and many other states, while allowing patients the ultimate right to sue. But that doesn't mean there shouldn't be limits or guidelines to head off the legal feeding frenzy HMOs and other critics fear.
While there's room for discussion on just what financial limits should be set on lawsuits, compromise measures backed by President Bush and some Republicans, which would cap lawsuit awards, merit consideration. A law that makes health insurance increasingly unaffordable ultimately helps neither patients nor the health care and health insurance industries.
Federal laws now offer a broad legal shield to HMOs. While there is agreement in Congress on some needed reforms - requirements that HMOs offer better access to specialists and cover treatment at the nearest emergency room for patients who feel they need it, for example - disagreement over right-to-sue issues has held up a patients' bill of rights for years.
Currently, two major approaches simmering in Congress have now been brought to a boil by the Democrats' sudden ascent to Senate power. A bipartisan bill favored by most Democrats and some influential Republicans would allow patients to sue their health plans for damages in both state and federal courts, capping federal court judgments at $5 million but leaving economic damages unlimited and allowing states to set their own limits. According to the Congressional Budget Office, the plan would raise annual insurance premiums by about 4.2 percent.
A more conservative compromise measure would allow only federal court suits, cap noneconomic "pain and suffering" awards at $500,000, and allow unlimited economic damages but bar punitive damages awards. The bill offers reasonable caps, but the American Medical Association and others bristle at the ban on state court action.
Studies by the nonpartisan Kaiser Family Foundation indicate one in every two HMO-covered patients had a problem with their health care plan within the last year, and although most were minor and easily solved, a "significant minority" involved serious consequences and were difficult to settle. The foundation also found that reform is popular - overwhelming public support for specific proposals dropped about 20 percentage points when cost arguments were made, but still retained a favorable majority.
Even more significantly, neither Texas nor Missouri has reported major difficulties with measures that opened HMOs to lawsuits. Texas even created an explicit new right to sue HMOs for failing to use "ordinary care" in denying or delaying payment for physician-recommended treatment. Bush, who now threatens to veto the toughest Senate plan, was governor when the Texas bill was enacted, and touted it on the campaign trail even though he vetoed a bill providing protections for HMO patients in 1995 and let the measure become law without his signature in 1997.
In this debate, however, the president has it right. Reasonable financial limits on awards from lawsuits can offer patient protection without driving up the cost of insurance, making it either unaffordable or unavailable to millions of Americans.
Safeguards should be part of any package to ensure that costs aren't driven up unnecessarily. But the bottom line is that patients or their families, especially in cases involving death or permanent disabilities, should have the same right to sue HMOs for botched decisions as they now have to sue physicians - or any other business that harms them through negligence, bad products or bad decisions.