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Patients' Rights Standoff Continues

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The debate over a patients bill of rights heated up both in the Senate and the House.

The main bone of contention remains the extent to which patients would be able to sue their employers and health plans over adverse coverage decisions that cause death or significant harm.

The Senate began debate on S. 872, the legislation introduced by Sens. Edward Kennedy, D-Mass., and John McCain, R-Ariz., that would allow patients to sue both health plans and plan sponsors in state courts over adverse decisions that cause death or significant injury.

Opponents of S. 872 are expected to offer a variety of amendments aimed at easing the liability provisions.

Opponents support legislation, S. 889, backed by President Bush, that would require patients to exhaust all administrative remedies before going to court.

However, if patients do file suit, S. 889 requires the suit to be filed in federal court. The bill caps non-economic damages at $500,000.

Meanwhile, House Republican leaders were expected at press time to introduce a compromise plan allowing patients to sue their health plans in state courts under certain circumstances.

Specifically, a patient could sue a plan in state court if he or she receives a favorable decision by an independent external review panel, and if the health plan fails to abide by the panels decision.

As part of the debate, the Health Insurance Association of America released a study last week arguing that S. 872 amounts to a “pot of gold” for trial lawyers.

The legislation would subject insurers and employers to virtually unlimited damages, according to Mark A. Behrens, a Washington attorney with the firm of Shook, Hardy & Bacon, who produced the study for HIAA.

However, the American Medical Association, which strongly supports S. 872, accused health insurers of spreading “myths” about the impact of the legislations liability provisions.

Behrens argues that S. 872 contains no real limits on the amount of damages that could be assessed against insurers and employers.

Moreover, he says, even though the bill says employers will face liability only if they “directly participate” in health care decisions, this protection is illusory. Indeed, he says, employers are not shielded from being sued–the language only provides them with a defense to raise in court.

But Thomas Reardon, immediate past president of the AMA, says the Congressional Budget Office has estimated the liability portion of S. 872 would raise health insurance premiums by less than 1%, about 42 cents a week.

Meanwhile, the sponsors of S. 872 agreed to a change in the liability language aimed at mollifying insurance agents.

Under this new provision, an agent cannot be named as a party to a lawsuit against a health plan if he or she did not participate in the health care decision-making process.

Reproduced from National Underwriter Life & Health/Financial Services Edition, June 29, 2001. Copyright 2001 by The National Underwriter Company in the serial publication. All rights reserved.Copyright in this article as an independent work may be held by the author.

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