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Jewish World Review June 25, 2001 / 4 Tamuz 5761

Morton Kondracke

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Consumer Reports

Patients Rights' Bill is doctors' overkill in war with HMOs -- A DEBILITATING civil war is under way in the American health care industry and Congress will make it worse by passing the Kennedy-McCain patients' rights bill and inviting trial lawyers to enter the fray.

Kennedy-McCain is the medical profession's effort to counterattack its enemy, the insurance industry, using expensive lawsuits as a weapon. But innocent "civilians," i.e. patients, will pay the ultimate price.

The bill opens the way for patients to sue insurance companies and HMOs in state courts and win big settlements. Inevitably that will drive up the cost of health insurance and swell the ranks of the uninsured.

Some small businesses will drop coverage for employees because of the cost. Others will cut back on benefits and make employees pay a greater share of premiums.

All this would happen at a time when cost squeezing at every level is already undercutting the quality of care given to patients - leading to thousands of deaths every year from medical errors.

What's needed in the short run is a compromise solution on the patients' rights front. In the long run, some heavy thinking must be done to determine how to give patients better information about costs and care and a bigger role in their own health decisions.

The Kennedy-McCain bill in the Senate and its House companion, Ganske-Dingell, basically are doctors' revenge bills - an effort by physicians to seize back control of medicine from insurance companies and also punish them with lawsuits.

Up until the 1970s, doctors were in charge not only of medical decisions but also price decisions. They got rich, tended to support Republicans and were hostile to the trial bar, which sued them for malpractice, raising their insurance rates.

Then came managed care, an effort by employers to contain health insurance costs, which were growing at nearly 20 percent a year.

Managed care put insurance company functionaries and HMO managers in charge of making medical decisions that doctors used to make - invoking physicians' ire, naturally.

In 1974, Congress protected multi-state employers by passing the Employee Retirement Income Security Act, which barred state regulation of and lawsuits against HMOs and other health plans when coverage was denied.

Operating behind this shield, HMOs earned a reputation for making money at patients' expense by denying medically necessary services.

All of this was part of the same unrelenting price squeeze that has hospitals underpaying nurses, overworking medical residents and sometimes ejecting patients when their insurance runs out.

More than 40 state legislatures have stepped into the gap by creating appeals processes and requiring that insurance plans cover certain basic medical services, such as referrals to emergency rooms and obstetricians. Courts also have chipped away at health plans' ERISA protection against lawsuits.

Not content with that progress, in the past few years doctors have been seeking Congress' help to score a decisive coup over insurers by passing a federal patients' rights bill that would not only regulate health plans nationally but also allow unlimited lawsuits in state courts.

The medical profession has switched sides, now teaming up with Democrats and trial lawyers, despite its experience with malpractice suits.

Physicians seem to have the attitude "if we're liable for big damages, the HMOs should be too." According to the publication Medical Economics, injured patients get about 32 percent of the money awarded in malpractice lawsuits, while lawyers get 52 percent.

The Kennedy-McCain bill clearly is a case of civil war overkill in which the ultimate victims will be lower-income employees who will lose insurance coverage.

The Congressional Budget Office estimates that the bill will raise insurance premiums by about 4 percent. A widely credited study suggests that would result in more than 1.2 million individuals losing their insurance.

Doctors surely should have more say in medical decisions than insurance clerks in distant locations manning 800-number phone lines. And patients should be able to appeal when denied coverage and sue when not satisfied.

The Bush administration is backing a compromise bill, sponsored by Sens. John Breaux (D-La.) and Bill Frist (R-Tenn.), that embodies those principles and capping damage awards.

Instead of increasing the ranks of the uninsured, Congress and Bush should be helping lower-income workers afford health insurance.

They should also establish a commission to study longer-range options for ending the health care civil war and empowering patients.

Private employers, for instance, could be encouraged to do as the federal government does - give employees a range of insurance choices. And if they had to make choices, employees would get smarter about medical costs.

Before searching for utopia, however, Congress should observe the famous rule: First do no harm. Kennedy-McCain violates that maxim.

JWR contributor Morton Kondracke is executive editor of Roll Call, the newspaper of Capitol Hill. Send your comments by clicking here.

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