Washington Insight

Enforcing patients' rights

By Daniel B. Moskowitz

Almost every politician in Washington favors patient's rights. The stumbling block is how to enforce them. Different approaches to enforcement are whirling around Washington, but backers will unlikely see theirs become the law of the land intact. The waxing and waning of each proposal, however, presents a useful primer in how ideas become statutes. It's an exercise in coalition building, and in deciding how to turn an unacceptable half-empty glass into an acceptable half-full one.

In early spring, the Bush White House unofficially took political soundings on an approach in which some agreement is easy: listing basic provisions any health insurance contract should have. That list includes coverage for specialists' care, some form of mandatory review of disputed decisions not to pay, access to nonformulary drugs when needed and reimbursement for emergency room visits—even if the condition that brought the patient to the hospital turns out not to have been a real medical emergency.

The Administration's suggestion was to simply not address consequences if a plan does not meet minimum standards. That silence certainly removed the most contentious issues, and looked to provide an easy and popular compromise. But the tough-issue dodging appeared so transparent—and the emerging measure so toothless—that the proposal gathered little support.

If most lawmakers acknowledge that to get political payoff from a patients' bill of rights law requires giving citizens some way to enforce it, they show no consensus on how to do that. Empowering patients to sue health plans seems to be the key. But that raises many contentious questions:

• Where should such suits be lodged: In state courts, where access might be easier for patients? Or in federal courts, where plans would have a better chance of dealing with uniform rules?

• What damages should a patient be able to collect: The cost of disputed procedures only or also "pain and suffering" costs from denial of treatment?

• Should there be limits on how much patents can collect?

• How can employers who select the plans be protected from liability for the plans' shortcomings?

In May, Bush backed a plan to put suits against managed care plans in federal courts (except in states that specifically authorize such suits in their own courts) and allow them to be filed only after a patient submits to both a plan's internal appeals process and an independent review. But the winnings in such suits could be substantial: The bill lets plaintiffs win damages for both the cost of the rejected treatment and any lost wages from the delay, plus as much as $500,000 for pain and suffering.

The Bush-backed proposal seems positioned midway between two other approaches. One, drafted by Sens. John McCain (R-Ariz.) and Edward Kennedy (D-Mass.) and Reps. Greg Ganske (R-Iowa) and John Dingell (D-Mich.), allows suits against HMOs in state courts—where juries tend to hand out larger awards—and has much higher caps on damages. The Republican Congressional leadership wants a much more limited measure, which not only puts cases in federal courts and limits damages but lets states opt out entirely if local officials decide the extra patient protections would drive costs up too high.

Right now, the political maneuvering focuses not only on attracting allies for different bills but also on sundering opposing coalitions. For instance, House Ways & Means Committee Chairman Bill Thomas (R-Calif.) at a recent hearing tried wooing the American Medical Association into abandoning strong support for the toughest approach and accepting caps on recoverable damages. The lure was to couple the Patients' Bill of Rights legislation with a medical liability measure dear to the hearts of AMA's members: a nationwide cap on damages patients can recover in malpractice suits against doctors.

The more confusion there is about who's on what side and would reward senators and congressmen who vote for which bill, the less chance there is that any approach will muster a majority.

 

Daniel Moskowitz. Enforcing patients' rights. Business and Health 2001;6:10.