Key to patients' bill: Will suits clog courts?

As House prepares for vote, the states say answer so far is 'no.'

Whether Americans get a patients' bill of rights this year may depend on which side wins this debate: Will such legislation prompt a surge of lawsuits, driving up healthcare costs and the number of uninsured?

It's an emotional issue and - more than any legislating in Congress this session - one that's been driven by anecdote. Supporters of patients' rights cite case after case of insurers denying people access to specialists and emergency rooms.

Opponents, meanwhile, invoke the prospect of zealous lawyers converting those cases to huge settlements. Just the threat of a big lawsuit could frighten employers out of providing health coverage, they say.

But as the House prepares to vote this week, experience in the states already suggests that many patient-insurer disputes are resolved without lawsuits.

For years, state legislators had been hearing anguished stories about health maintenance organizations. As a result, patients in 41 states and the District of Columbia already have the right to challenge HMO decisions, which is what the federal legislation now under consideration would do. In nine states, that includes the right to sue HMOs or employers in court.

Yet in only a few cases have patients turned to courts for redress.

"There have been very few lawsuits filed under these new state laws - a couple of suits in Oklahoma, one in Maine, and between 17 and 22 in the four years the law has been on the books in Texas," says Patricia Butler, a lawyer and health-policy analyst in Boulder, Colo., who is about to publish a new study on state liability laws. "There has certainly not been a flood of successful litigation with enormous awards."

A long and costly process

One reason is that such suits are complicated and expensive - so much so that many attorneys are wary of taking them.

"This is not cookie-cutter litigation. These cases are very difficult to prepare, and we turn down 20 for every case we take," says George Parker Young, a lawyer in Fort Worth, Texas, who has filed most of the lawsuits under the Texas law.

"You can spend $50,000 to $100,000 on experts, deposition, and discovery before you even get to attorney fees," he adds. "If trial lawyers are indiscriminate about lawsuits, they'll be out of business very soon."

Currently, ambiguities in federal law preempt many potential lawsuits in state courts. (Six of Mr. Parker's 17 cases involving patients' rights, for instance, are tied up in disputes over whether they should be tried in state courts or moved to federal courts, where damage awards are more limited.)

Setting boundaries for lawsuits

If federal law changes, critics say that big-damages suits in state courts are much more likely.

"This liability issue opens up a whole new realm of activity for trial lawyers," says Chuck Luchok, spokesman for the Health Insurance Association of America in Washington.

Insurance and employers' groups opposing the bill say it could add $16.3 billion a year to the nation's health costs and add 9 million to the ranks of the uninsured.

This week, the House plans to take up two versions of a patients' bill of rights. The GOP leadership and the White House are backing a bill sponsored by Reps. Ernie Fletcher (R) of Kentucky and Collin Peterson (D) of Minnesota. A second bill, sponsored by Reps. Greg Ganske (R) of Iowa and John Dingell (D) of Michigan, is close to the version that passed the House in 1999 (with 68 Republican votes) and a bill that cleared the Senate on June 29. The outcome in the House is still too close to call, but President Bush has already said he will not sign the Senate version.

In the runup to this debate, both bills were revised and now converge on many points, including guaranteed access to specialty and emergency care, some protection for employers from frivolous lawsuits, and an internal and external appeals process that must be exhausted before patients go to court.

The biggest difference remains the extent of a patient's right to sue. The Fletcher-Peterson bill restricts liability and caps damages in federal court at $500,000. The Ganske-Dingell version allows for a wider range of litigation and penalties of as much as $5 million in federal court.

Both bills, though, will involve the courts in tough decisions about appropriateness of care and medical necessity. And one result could be more pressure on insurers to avoid lawsuits by approving additional medical treatments.

Critics say that's ironic, because Congress began encouraging the creation of HMOs in the 1970s as a way to control health costs that had soared to 7.4 of GNP by 1971.

"Health care inflation today is much more reminiscent of the 1970s, with double-digit inflation and no end in sight," says Paul Dennett, vice president for health policy at the Washington-based American Benefits Council, which represents large employers.

(c) Copyright 2001. The Christian Science Monitor