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By Steven S. Sharfstein, M.D.
In the hit film, "As Good as It Gets," there is a sublime moment when one of the main characters whose son has had pulmonary disorder misdiagnosed by an HMO exclaims (and I paraphrase and clean it up), "That damn HMO!" There was a brief silent pause in the packed theater and then spontaneous applause and shouts from what had been a well-behaved movie audience. Friends and colleagues say they experienced the same outburst when they saw the film. This was my most concrete evidence to date of the consumer backlash against managed care.
A recent survey by the Kaiser Family Foundation and Harvard University found that a significant majority of Americans favored regulations that would protect consumers from managed care. Such measures are contained in the Consumer Bill of Rights of the Presidential Commission on Consumer Protection and Quality in the Health Care Industry and in legislative proposals now before Congress. Close to half of those surveyed reported that they or someone they know had experienced at least one of the problems addressed by the Consumer Bill of Rights, including difficulties in obtaining needed additional information, getting permission to see a medical specialist, being reimbursed for emergency room care, and filing an appeal to an independent agency for a denied claim.
Just who is accountable for quality in the managed care marketplace remains unclear. There are unfair rules and an uneven playing field for health plans and providers. If a health care consumer is damaged by a health plan decision that conflicts with a doctor's recommendation, there are different rules regarding remedies available to the injured party depending on whether these consumers are enrolled in an ERISA or non-ERISA plan.
In this session of Congress, there will be a major effort to modify ERISA so that all consumers are protected when health plan decisions have a detrimental outcome.
The federal Employee Retirement Income Security Act of 1974 (ERISA) governs provisions of employer-provided health and pension benefit plans. There has been, however, a continual stream of court cases over which state laws are "preempted," or overridden, by ERISA and its "remedy" provisions when a plan denies benefits.
The remedy available to a consumer who is enrolled in an ERISA-covered plan and successfully challenges a benefit denial is the actual costs of the coverage for the denied medical services. The law allows for no compensatory or punitive damages to be assessed against an ERISA health plan, creating an uneven playing field when accountability for quality of care is at issue.
In contrast, an individual enrolled in an insurance plan that is not preempted by ERISA can go to court to challenge a plan decision either on the basis of a breach of contract or failure to deliver care at accepted standards. In state courts the remedies for such claims can include compensatory and punitive damages.
As a result of this unfair situation, Congress should amend ERISA to allow recovery of compensatory and other damages in claims-dispute cases.
How have the legal issues played out in the real world? In a 1997 case, Judge William Young in Andrews Clark v. Travelers Insurance Company anguished over the unfairness of the lack of relief or remedy in the death of a young man in which denial of care by an insurer and its contracted behavioral health care company contributed to the death. The deceased patient's wife sued on the basis of breach of contract, medical malpractice, wrongful death, potential and negligent infliction of emotional distress, and violation of consumer protection laws.
As a result of the denial of inpatient care for this patient, the court found in favor of the plaintiff, but was unable to award anything more than the cost of treatment. As the judge opined, "As a consequence of [the insurer's] failure to preapprove, whether willful or the result of negligent medical decisions made during the course of utilization review, Clark never received the treatment he so desperately required, suffered horribly, and ultimately died needlessly at age 41.
"Consider just one of her claims-breach of contract," he continued. "It is the very bedrock of our notion of individual autonomy and property rights and was among the first precepts of the common law to be recognized in the courts of the Commonwealth and has been zealously guarded by the state judiciary from that day to this. Our entire capitalist structure depends on it. Nevertheless, this court had no choice but to pluck Diane Andrews Clark's case out of the state court in which she sought redress and where relief to other litigants is available and then, at the behest of Travelers and Green Spring, just slammed the courthouse door in her face and left her without remedy." The judge goes on to assert that this case is "yet another illustration of the growing need for Congress to amend ERISA to account for the changing realities of the modern health care system."
If, however, you think that this can be easily taken care of in this session of Congress, and despite the bipartisan applause for Clinton's call for a consumer bill of rights in his State of the Union Address, be aware that business leaders have launched a major campaign against proposals by the White House and the Presidential commission to protect consumers. The executives argue that such protections would increase premiums and cause millions of Americans to lose their health insurance. I urge you to follow the new patient protection bills closely. They will help determine the future for managed care into the 21st century.
Don't worry. As physicians, we can always be sued for malpractice regardless of whether the patient has insurance, has been denied benefits through an ERISA or non-ERISA plan, or has no resources to pursue necessary care. As doctors, we remain accountable by law and through our ethical obligations.