TURN ON the television, and one thing is clear: America wants a Patients' Bill of Rights. Numerous surveys show overwhelming support for a Patients' Bill of Rights and overwhelming hatred of health maintenance organizations. Of course, such polls are completely worthless when one begins to ask the question of what specifically voters want in their legislation.
Surveys rarely ask in-depth questions of policy and usually just repeat the titles of the relevant program. Thus, a bill called the Orphaned Kitty Protection Act that also happened to nationalize the automobile industry would probably enjoy around 60 percent support in a Zogby poll.
Currently, two Patients' Bill of Rights proposals have a chance of passage out of the Senate, one endorsed by the Democrats, the other by the Republicans. In most ways, both proposals are identical. Both require the creation of independent review boards to hear appeals when an HMO denies coverage for a drug or procedure. Both give patients greater access to their own medical history and increase accessibility to specialists within an HMO plan.
The differences lie in each bill's approach to giving patients the right to sue HMOs and employers after an adverse medical decision. In examining the Democratic proposal, the floodgates for gratuitous and needless litigation will be opened to such an extent that one should rename the bill as the Patients' Lawyers' Bill of Rights.
One should make the initial point that making HMOs susceptible to suit for bad decisions is logical and just. The problem with the Democratic approach is that it gives trial attorneys a free hand to harass HMOs and, to a lesser extent, employers, to the point where they may not have the incentive to provide health care to employees in the future.
Firstly, the Democratic bill places no caps on court awards, except for a $5 million cap on punitive damages. While the Republican bill allows for unlimited economic damages, it places a $500,000 cap on "pain and suffering" damages and prohibits punitive damages. As trial attorneys generally take 30 to 40 percent of a damage award, those attorneys will have a much greater incentive to sue under the Democratic plan than the Republican one.
Furthermore, the Democratic bill allows litigants to sue in state courts rather than federal court, as the Republican bill does. State court systems have their own procedural rules and regulations - dealing with filing deadlines, filing fees, payment of legal fees, etc. - that make certain states much more favorable for suit than other states. Additionally, in contrast to federal court, some districts in certain states are notorious for producing jury pools that do not like organizations that make more than $1000 a year. Federal jury pools, although not in any way friends of big business, do not have such a reputation. These two factors suggest that plaintiffs' attorneys will be quick to sue HMOs in supportive states and clog up those states' court systems.
Finally, the Democratic bill does not shield employers from suit. While it requires that employers make health-related decisions before a lawyer may bring suit, lawyers are a rather resourceful bunch. One only needs to find a judge who agrees that an employer's selection of a particular HMO plan constituted a health-related decision before that employer gets slapped with a multi-million dollar verdict.
Naturally, in any human-created system, HMOs and employers likely do bad things. Suits in such instances would make sense and would be just. Placing limitations on how those suits may be filed may increase the likelihood that legitimate suits make their way to the courts. For example, capping pain and suffering damages places pressure on trial attorneys to take cases that are more likely to be successful. To the contrary, the Democratic bill encourages trial attorneys to take a chance, in the hopes that they might hit the lottery and win a multi-million dollar judgment.
Such increased, largely gratuitous suits will harass and potentially financially cripple HMOs and employers to the extent that they may decide to get out of the business entirely. Nothing requires HMOs to exist. Nothing requires employers to provide health plans directly. As HMOs increase their costs to respond to increased litigation, patients will suffer. As employers refuse to purchase group health care plans, employees will be forced to buy health care on their own, at increased prices.
The Patients' Lawyers Bill of Rights will not benefit the patient. The president should veto anything that has similar lawsuit-friendly provisions in it.
(Seth Wood is a Cavalier Daily columnist. He can be reached at swood@cavalierdaily.com.)
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