Texas offers insight on health-care quandary

Today, Congress ponders whether to let patients sue their HMOs. Texanshave had that right for two years.

Washington's all abuzz about health-care reform, and the most talked-about bill in Congress this week aims at giving patients the right to sue their health-maintenance organizations.

Proponents say it would bring better health care and hold HMOs accountable for decisions that harm patients. Critics counter that it will lead to "landslides of litigation" and higher costs of insurance.

But to get an indicator of how such a law affects health care, the Beltway crowd might want to take a look at Texas - the first state to allow patients to sue HMOs.

Passed in 1997, the measure has resulted in only five lawsuits against HMOs. While some observers say it's far too early to draw any conclusions, the law is nonetheless encouraging state and federal lawmakers across the country. To them, Texas' nascent experience shows that patients won't necessarily lay siege to managed-care providers if they're given the right to sue.

"Critics told us that within a matter of months, you'd see thousands of lawsuits tie up the court system," says state Rep. John Smithee, a Republican from Amarillo who sponsored Texas' patients' rights bill. "That didn't happen." A lawyer himself, Mr. Smithee still scratches his head about the law's results. "It exceeded my expectations."

On Capitol Hill, the House of Representatives is considering several bills, but the broadest and most controversial bill, which would give patients the right to sue, appears to have the most support. The bill is scheduled to come up for a vote later today.

Hold on

But some observers warn that Texas is not yet a good test case for how patients' rights will play out nationally. For Texas' tradition-bound courts, which often view trendy laws the way parents view body-piercing, two years may not be an adequate testing period, they say.

"To say nothing has happened is kind of like passing a criminal-justice bill in the statehouse, waiting seven months, and saying that crime has gone down," says Jerry Patterson, a former Republican state senator and now executive director of the HMO lobby, the Texas Association of Health Plans. "I think there are many more cases to come."

In some ways, the most remarkable fact about the patients' rights law in Texas is that it passed at all. The Lone Star State has always been pro-business, but since 1994, it has become even more so, as first the governor's mansion, the state Supreme Court, and then the remaining state agency positions shifted from Democratic to Republican hands.

Some pundits predicted that the new Republican establishment, led by Gov. George W. Bush, would bring an end to the populist old days, when juries demanded Robin-Hood-like punitive damages against some of the state's largest employers. But the activists who led a major tort-reform effort that limited the amount of such damages, turned to reining in HMOs next.

Leading the charge in the Texas Senate was David Sibley, a conservative Republican from Waco. Under the previous law, Senator Sibley says, doctors could be sued for malpractice, even if an HMO had ordered that doctor to withhold a certain treatment in favor of something cheaper. For Sibley, patients' rights was really just a way to share the responsibility for medical mishaps.

"All I'm saying is that if HMOs are making medical decisions, they need to be held accountable," says Sibley, a former oral surgeon. "If they are going to stand in the shoes of doctors in the treatment room, they ought to stand in the doctors' shoes in the courtroom."

The new law actually discourages lawsuits, Sibley adds, by creating an independent review process that allows patients to get a second hearing after doctors and HMOs have made a decision. A similar provision exists in the controversial congressional bill.

In the past two years, half the independent review panels have decided in favor of the patient, half for the health-care provider. But even those patients who lose may feel satisfied that their concerns were heard, Sibley says.

Quality of health care

Some supporters say that giving patients an independent review and the power to sue HMOs, is having an unexpected effect: better health care.

"I believe the quality of care has improved," says Paula Sweeney, former president of the Texas Trial Lawyers Association and now a medical-malpractice attorney in Dallas. "We're still hearing HMO horror stories, but this law has reduced the number of incidents."

Others, including the HMO lobby and the Texas Association of Business and Chambers of Commerce, are less sanguine and have fought patients' rights in court long after its passage.

After a year-long court battle, the law's review-panel provision was ruled to be an unconstitutional delegation of authority. It was reinstated just seven months ago, and only as a voluntary provision.

David Morehead, president of a small HMO in central Texas, also says the mere threat of lawsuits will cause problems. Some hospital medical directors who receive his HMO's services, for instance, are now simply giving their approval for procedures, rather than taking the time to search for alternatives.

"I think that Americans are in a quandary over health care - we don't know whether to protect the individual, to protect choices, or to limit costs," says Dr. Morehead, head of Scott & White Health Plan of Temple, Texas. "To be honest, I don't think you can do all of them."

(c) Copyright 1999. The Christian Science Publishing Society