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Oct 20, 2000
by JAMIE COURT and FRANK SMITH Guest columnists
A PATIENTS' BILL OF RIGHTSWhen the U.S. Senate votes again in the next few days on a bipartisan patients' bill of rights - which failed by one vote this summer - the vote of Washington's U.S. Sen. Slade Gorton will be decisive for more than 125 million Americans who are without a remedy against their health maintenance organization.
These patients are denied a right to sue for damages by a federal law called ERISA because they have health coverage through a private employer. This includes more than 1 million patients in Washington state.
It's rare that one man, even a senator, can determine the fate of so many. It's even more rare, though, when that man, as a government employee, is not subject to the same restrictions as his constituents and that he refuses to amend the law to help them.
ERISA does not apply to government employees such as Gorton. There is no legal ruling precluding Gorton from recovering damages against his HMO or insurer, as ERISA patients face. Unless Gorton is willing to submit himself to same restrictions as his constituents, he must not oppose the bipartisan reforms know as the Norwood-Dingell legislation - named after its authors, Republican Rep. Charlie Norwood and Democratic Rep. John Dingell.
What's good enough for public servants should be good enough for the public.
The Norwood-Dingell bill passed the House of Representatives with 68 Republicans in support last fall. When the reform failed in the Senate this June by one vote, Gorton opposed it. A conversion by the senator from Washington this month would send the bill to the president, who has sworn to sign it.
The eyes of the nation will be on Gorton and three other senators in rocky re-election races from Missouri, Montana and Minnesota - who are the most likely targets to change their votes.
One of the principal reasons HMOs behave irresponsibly is that they are not subject to the same liability as every other industry in America. If car manufacturers, credit companies and meat packers did not face liability for the vast majority of their customers, these industries might be just as lawless as the HMOs.
HMOs too often put money ahead of medicine simply because they can do it with impunity. Under ERISA, the most these companies are liable for is the cost of the denied benefit itself, no damages. That is the equivalent of asking convicted bank robbers to simply give back the money. Under the current system, HMOs have every financial incentive to delay and deny care.
The Norwood-Dingell legislation allows damages against HMOs in all cases when the companies stonewall. Patients would still have to prove their cases in court against well-heeled defense attorneys and punitive damages would be available only if HMOs showed wanton disregard for patients.
Other individuals and corporations in the United States have personal liability under those conditions; why should HMOs be exempt? HMOs argue that without their shield of immunity health care costs will skyrocket. The reality is that government employees and others not subject to ERISA do not pay higher premiums and are not litigious. In a study of 1 million public employees in California - people who can sue their managed care plans already - the Kaiser Family Foundation found the cost of lawsuits and settlements was minimal - no more than 13 cents per member per month. The Congressional Budget Office reported that giving all patients the right to sue would add up to only 1.2 percent to health care premiums, including costs of so-called defensive medicine. HMO premiums have also been rising lately (with many double-digit increases) of their own accord, partly because of mismanagement by HMOs. If patients are delayed medically necessary care early in their disease, as many HMO patients are, their treatment becomes far more expensive when their conditions becomes chronic.
Gorton must ultimately recognize that voting for the Norwood-Dingell bill is both a matter of dollars and common sense. It is unfair for a pubic servant to have more remedies than the constituents he serves.
Jamie Court is executive director of the Los Angeles-based Foundation for Taxpayer and Consumer Rights. Frank Smith is a senior fellow at the Boston-based Institute for A Civil Society.
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