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Patients' rights: Q & A

Posted: Wednesday, July 25, 2001

WASHINGTON -- House Republicans remained split on the issue of patients' rights Tuesday, with the Bush administration trying to rein in party members who want to expand lawsuits that could be filed against errant health plans.

''We have 43 million uninsured in America. Do we need any more?'' asked Health and Human Services Secretary Tommy Thompson, who urged undecided Republicans to reject a sweeping patients' rights bill that the president opposes.

House GOP leaders, like the president, favor fewer avenues to patient lawsuits against their HMOs and other health plans. A bloc of moderates led by Rep. Charlie Norwood, R-Ga., back a far-reaching package passed in the Senate last month. The bill passed by the Democrat-led Senate would extend patients' rights to clinical trials, give patients more opportunities to sue over denied care and grant more damages for injuries.

President Bush is seeking to draw Republicans who voted for sweeping patients' rights bills in the past, and persuade them to back a new measure sponsored by Rep. Ernie Fletcher, R-Ky., a family practitioner. He said his bill would allow some lawsuits but keep small businesses from dropping coverage out of fear of large jury awards.

Norwood's spokesman John Stone confirmed that closed-door negotiations continue between the congressman and the White House, but the two sides have yet to reach an agreement on how to proceed with patient lawsuits.

Some questions and answers about the issue:

Q: Where is Congress so far this year on the issue?

A: Last month, the Democrats in the Senate took advantage of their new majority and passed a patients' rights bill. It would lift a ban on lawsuits for people in health plans governed by federal law, and people in other types of plans got a new guarantee that they could sue over denied care.

Some compromises were made to satisfy Republican moderates. Among them were sheltering nearly all employers from the threat of lawsuits and making it clear that HMOs can't be forced to provide treatment excluded under their insurance contract.

Q: Is that what is being considered in the House?

A: There are two competing plans. One bill, virtually identical to what the Senate passed, is sponsored by Norwood and a bipartisan group of Democrats and Republicans who have historically supported wider rights to sue.

The newer bill, supported by Bush and the House GOP leadership, is sponsored by Fletcher. Fletcher says he is drawing Republicans who voted for the far-reaching bill because they didn't have a good alternative until now.

Q: So what's the big difference?

A: The two bills do share common objectives. They both have a set of basic rules that require health plans to pay for services such as reasonable emergency room visits, direct access to obstetricians, gynecologists and other specialists, and overnight hospital stays for mastectomies. They also give patients a guaranteed right to appeal a health plan's decision not to pay for such care. And in both bills there are new ways patients can seek compensation in court if they are harmed.

The main differences are over the type of lawsuits allowed and the damages juries could award.

The Norwood bill allows injured patients to sue in federal court over contract disputes, such as eligibility or co-payments, and win unlimited awards for losses and suffering. Punitive damages meant to send insurers a message are capped at $5 million.

In state court, injured patients could sue insurers over medical decisions that prove harmful. Patients could win unlimited awards for lost wages and other economic damages; unlimited pain and suffering awards and other non-economic damages; and unlimited punitive damages. The exception would be in about 30 states, where laws limit such awards or damages.

The Fletcher bill backed by President Bush and Republican leaders guarantees basic coverage rights. But their plan would restrict many patient lawsuits to federal courts. It does not allow punitive damages. Pain and suffering awards would be capped at $500,000. There also would be no limits on awards for lost wages and other economic damages. Survivors' benefits, life insurance and other sources of compensation can be counted against a plaintiff trying to demonstrate what the injury has actually cost.

Q: What about the outside reviews before court?

A: Once again, the bills have similarities in patient appeals. Under both bills, patients initially denied coverage are entitled to a review by a medical doctor. For instance, a clerk or other person without medical training cannot have the final say, even at the health plan. Virtually all health plans employ doctors in their review departments.

The Norwood bill says plans that refuse to abide by an appeal panel's ruling are subject to unlimited fines, beginning at $1,000 a day. The Fletcher bill caps such fines at $500,000.

The Norwood bill requires patients to wait for a final ruling in the appeals process, and then they can proceed to court based on whichever court would have jurisdiction. In one exception, dying patients can sue to get needed care before the appeals process is finished, but they can't seek damages.

The Fletcher bill also requires patients to wait for a final ruling in the appeals process. Patients must prove they were harmed and receive a favorable ruling from the outside reviewers before proceeding to federal court. Patients must prove they were harmed, receive a favorable ruling from outside reviewers and have the health plan ignore such a ruling before they could proceed in state court.



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