For years, Congress has been clucking about ways to improve medical care, but ideological differences have prevented it from getting much done. But hold on to your old Harry & Louise videotapes. This year, lawmakers may put down their partisan scalpels long enough to actually do something about one part of the problem. Moved by an election-year urge to pacify voters, Congress is going forward with legislation that creates a "bill of rights" for enrollees in managed-care plans, including the power to sue.
After months of inaction, efforts to mesh the Senate's industry-backed measure with a House-passed bill have picked up speed. Demo- crats have been beating the drums over the issue ever since President Clinton promised labor unions in his '96 reelection campaign that he would fight for a patient's bill of rights. And this year, leery Republicans seem less inclined to fight. Says Larry L. Levitt, an analyst at the nonpartisan Kaiser Family Foundation in Menlo Park, Calif.: "This has enormous populist appeal." Indeed, a Feb. 4-8 Kaiser poll found that 66% of Americans think it's important that patients be allowed to sue their health plan.
OPEN DOOR. So far, House and Senate negotiators have agreed to such basic protections as allowing parents to choose from among a health plan's pediatricians for their child's primary-care doctor. But legal liability has always been the big hang-up. Supporting a right to sue are some 300 physician and consumer groups, plus Clinton, labor unions, and trial lawyers. The principal opponents are health insurers and employers. But with likely GOP Presidential nominee George W. Bush supporting lawsuits if patients exhaust an independent appeals process, industry lobbyists concede the door is open to a compromise that includes the right to sue. Even Senator Don Nickles (R-Okla.), who in the past has led the charge against health-care lawsuits, is talking rapprochement. "I will take a look at people's proposals," he asserts.
Over the next few weeks, House and Senate lawmakers will meet to map out a compromise between the House's bill, which allows lawsuits against health plans and employers in state courts, and the Senate version, which allows no lawsuits. While business groups and managed-care companies publicly object to even a limited right to sue, privately they are resigned to the idea of legal liability.
Business Roundtable lobbyist Paul R. Zurawski says one possible compromise is a measure that lets patients sue in federal court, where large jury awards are less common--but only after completing a mandatory out-of-court appeals process. Such appeals would go before independent groups of physicians who would determine if patients have been improperly denied benefits. Business lobbyists also want to cap or ban punitive damages.
But employer opposition is a problem. The current House bill lets patients sue employers if they exercise "discretionary authority," which could include a decision to deny a covered benefit. Those two words "will make it a snap for trial lawyers to include employers in their complaints," says Zurawski. "This is what employers should really worry about."
Business lobbyists still hope to wrangle a liability exemption for employers, says Neil Trautwein, director of employment policy at the National Association of Manufacturers. But even if they win, "our members will ultimately pay" any damages awarded by juries in the form of higher premiums, he frets. Employer groups warn that if exposed to a rash of lawsuits, more companies will cancel their health plans--throwing more workers onto the heaps of the uninsured. But with an election looming and lawmakers listening carefully to constituents, that warning may fall on deaf ears.