President George W. Bush and members of Congress have been trading barbs on the right-to-sue provision in a federal patient's bill of rights. Will patients truly flood the courts if such a bill is enacted? State officials from California, Maryland and Texas say the answer is no.
In 1997 Texas became the first state in the country to allow its citizens to sue their health plans. George W. Bush, who was governor at the time, raised concerns that the measure would open the floodgates on lawsuits by patients against HMOs, just as Bush the President has done on a patient's bill of rights being debated in Washington, D.C.
Back in '97 Bush relented a bit after lawmakers added an independent review process to the legislation and he allowed it to become law even though he didn't sign it. At the time he said, "the potential for good outweighs the potential for harm."
What medical rights can Texans claim? Women may go to an OB/GYN specialist without a referral, for example, and patients unhappy with their HMO's decisions can sue if they feel their problem hasn't been solved. That's right--patients in Texas can sue their HMOs. But do they sue, as Bush has predicted in the current debate?
Since the launch of the review process in November 1997, a little more than 1,300 requests for treatment reviews have been received, says Insurance Department spokesperson Jim Davis. "We have resolved nearly all those cases or 1,349. [Reviewers] ruled for the insurance company in 42 percent of the cases and for the patient in 50 percent. The total number partially overturned, where the reviewer said the patient doesn't need this treatment but here's another option, happened in 110 cases or 8 percent," says Davis.'s Connie Barron. "Part of the reason why the independent review works as well as it has is that it encourages health plans to be a little more cautious about their decisions because they know someone will be looking at the facts. The [right-to-sue] part has got to be there to make sure they send patients to the independent review," she says.
Indeed, Barron believes that some of the 17 lawsuits might have been avoided if the appeals system had been used.
"Nearly all the cases were situations where the independent review wasn't utilized, in some cases because the health plan failed to make the process available. It's unfortunate that there's been a misrepresentation of the federal patient's bill of rights to make it sound like, 'do you want decisions made by doctors or in the courtroom?' Both measures being debated in Congress have independent review and you get the care or you don't get the care," she says.says the Golden State is "light years ahead" of what's now being debated in Washington.
As part of a four-stage complaint system, workers and computers now field around 15,000 complaint calls a month. Half the calls are from people trying to find out how to contact an HMO about a complaint and the other half are handled by operators, sometimes with the HMO on the other line to resolve problems. The third stage of the system is a more formal complaint, in which the department reviews a patient's medical records, and the final step is an independent medical review. Two hundred disputes have been sent so far to the review process and 65 percent have gone in favor of HMOs. "We're resolving things quickly," Fisher says.
Maryland does not have a right-to-sue law, but its two year-old appeals and grievances system has produced similar results. More than 1,500 patients or doctors have filed complaints through the state's Insurance Administration. Of the cases that end up going through with a review (some fall outside the agency's jurisdiction, others are sent to the Attorney General's Health Education Advocacy Unit) the breakdown is close to a 50-50 split in decisions between the health plan and the patient.
"The system is working quite well and we're pleased. We weren't quite sure what initial expectations should be and we did see an increase in complaints from 1999 to 2000 after we did a fair amount of PR, but it wasn't a huge increase," says Steve Larsen, the state's Insurance Commissioner.
Are Maryland consumers missing out on not having the option to sue? Larsen doesn't think so.
"Most consumers are simply interested in trying to get benefits or services they think they're entitled to. Going to court is not the most efficient way to do that. Our process shows you can have a timely, cost-effective review in 30 days and in looking at the types of cases we've had, a lot of people aren't going to go to court over that," Larsen says.