Patients' bill of rights: House version falls short

The House-passed version of patient protection legislation is too much like the earlier law that it was meant to fix.

Editorial. Aug. 27, 2001.

What's the best way to fix the patient-unfriendly provisions of an old law that helps health plans duck responsibility for the treatment decisions they make? How about putting patient-unfriendly provisions in a new law, one that still lets insurers retain the upper hand when dodging accountability. At least that's how a slim majority of the U.S. House sees a patients' bill of rights. The issue of health plan accountability lies at the heart of an effective patients' rights law. The Senate wisely understood that, and in June passed a strong version of this necessary legislation. However, this month the House faltered, hurriedly passing a much weakened version. It will now be up to a House-Senate conference committee to set the matter right. Congress itself planted the seeds of this problem in 1974 when it enacted the Employee Retirement Income Security Act. One consequence, probably unintended, was that health plans have been exempt from being sued in state courts over the treatment decisions they make. It has been an enormous gift to health plans, while leaving patients little leverage when denied coverage for proper medical care. Both the Senate and House versions of the patients' rights bill create the right to sue in state court (and both contain welcome provisions such as access to ob-gyn and other specialist care and to prescription drugs). However, the House version contains major restrictions that put patients at a distinct disadvantage in court. The House version sets award limits of $1.5 million for noneconomic damages and $1.5 million for punitive damages, pocket change for health plans. It also puts a significant procedural hurdle before patients, in which an independent review panel's finding could be used in court by a plan against a patient -- but, oddly, not by a patient against a health plan. Another plan-friendly loophole in the House version shifts the wording so that the plan must be "the" negligent party in a patient's death or injury in order to be sued, rather than "a" negligent party -- serious wiggle room for plans to confuse and evade responsibility. In addition, the House version also bars class-action lawsuits against health plans. If all this weren't bad enough, this legislation would supercede state laws -- there are already 10 so far -- that are patient-friendly. It's the same situation that made ERISA so powerful for so long. It is only now just beginning to crumble under legal challenges. President Bush skillfully maneuvered bill co-sponsor Rep. Charles Norwood, DDS (R, Ga.) -- a sad disappointment given this lawmaker's previous strong record on patients' rights -- and then a simple majority of the House to accept this version. The final count was 226-203, with all Republicans and five Democrats in favor of the final bill. The president's timing was excellent. This issue has dragged on for years, the House was facing its August recess, and many members were apparently anxious to pass something -- it turns out, anything -- with patients' rights in the title. Meanwhile, Bush has threatened a veto if a final bill based on the stronger Senate version reaches his desk. Yet that move is politically risky given that a clear majority of Americans -- more than 70% in a recent poll -- want a patients' bill of rights. Bush's position is that he wants to avoid an explosion of litigation. Yet the experience in his own home state, Texas, shows that fewer than 20 lawsuits have been filed since a similar law was enacted there in 1997. Far more common are internal and external appeals, and both are provided for in the House and Senate versions. The AMA has been a strong supporter of the Senate version of this bill. Physicians know the dangerous games health plans play, the uneven playing field the plans favor, and what it can take to get an insurer to cover the treatment the doctor ordered. Yet it's a good bet that most Americans have never heard of ERISA and have little understanding of the impact that a weak patients' rights law might have on their lives or the well-being of their families. In fact, a June Gallup Poll found that only 12% of Americans were aware that the right to sue was part of a patients' rights bill. So what you don't know can't hurt you? Not quite. In this version, it's the health plans that won't be feeling any pain. Back to top