The Supreme Court’s decision on patients suing HMOs in state courts was, to be sure, discouraging. But it does offer Dems, and John Kerry in particular, a terrific political opportunity.
If an HMO refuses to treat something that ends up injuring the patient, most of us would like to see that person be able to seek damages in state courts. This decision, obviously, makes that impossible. Patients can still file suit in federal courts, but aren’t eligible to seek punitive damages.
So, where’s the political angle? It’s all about ERISA.
The court ruled, in an opinion by Justice Clarence Thomas, that the laws of Texas and nine other states are pre-empted by the federal law known as Erisa, which applies to the employment-based health care plans that cover some 140 million people.
The law, the Employee Retirement Income Security Act of 1974, allows patients to sue for reimbursement of denied benefits, but not for damages stemming from the denial. A conventional medical malpractice suit, consequently, is not permitted against a typical health maintenance organization or managed-care company under the federal law.
The question for the Supreme Court was whether that prohibition left any maneuvering room for the states, and the court’s answer was no. Any state law that “duplicates, supplements or supplants” the remedy available under the federal law “conflicts with the clear Congressional intent to make the Erisa remedy exclusive,” Justice Thomas said.
So, if ERISA is standing in the way of families holding HMOs accountable, then it’s time to change ERISA. It’s just a federal law; Congress can pass a new one and include necessary provisions in, say, in a Patients’ Bill of Rights.
Bush and the GOP, of course, oppose any changes. It’s as if the high court gift wrapped the issue just for Kerry.
In fact, Bush played a major role in this case. In fact, yesterday’s decision stemmed from a Texas lawsuit filed after the state passed its own Patients’ Bill of Rights — despite then-Gov. Bush’s objections — in 1997. In fact, this might be the most blatant of all Bush flip-flops.
The Texas law voided by the Supreme Court on Monday had been championed during the last presidential campaign by that state’s then-governor, George W. Bush. But it was his administration that took the industry’s side before the high court.
[…]
In October 2000, HMOs emerged as an issue in the presidential campaign. During a debate, Vice President Al Gore said that he, unlike Bush, supported a patients bill of rights.
“Actually, it’s not true,” Bush responded. “I do support a national patients bill of rights…. We’re one of the first states that said you can sue an HMO for denying you proper coverage.
“If I’m president,” Bush said, “people will be able to take their HMO insurance company to court. That’s what I’ve done in Texas, and that’s the kind of leadership style I’ll bring to Washington.”
(I wonder how many times I could write “Bush was lying” before it became obnoxious…)
Shortly after boasting about the wonderful rights patients will have under his leadership, Bush backed the HMOs and insisted that families can’t sue in state courts. It was actually a flip-flop-flip — Bush opposed the Texas PBOR, then he bragged about its greatness, then he opposed it again.
Fortunately, Dems are seizing the opportunity.
[Dems] see an issue against Bush, who claimed credit for a Texas patients’ rights law when campaigning for president but had his administration oppose that same law before the Supreme Court.
“A real patients’ bill of rights has bipartisan support, and it could become law tomorrow if the Bush administration was not standing in the way,” presidential candidate Sen. John Kerry, D-Mass., said.
Sen. John Edwards, D-N.C., who made patients’ rights his signature issue, called on Bush to back a bill he has introduced with Sens. John McCain, R-Ariz., and Edward Kennedy, D-Mass.
“Millions of working people still have nowhere to go when HMO bureaucrats overrule their doctors’ decisions,” he said.
The AMA is siding with the Dems as well.
The issue puts GOP leaders at odds with a frequent ally, the American Medical Association.
“Managed care plans can now practice medicine without a license,” AMA President John Nelson said. “Managed care will now have very little incentive to approve expensive but medically necessary treatments.”
HMOs may be the least popular institutions in America, but they have Bush as their most enthusiastic advocate. Expect the Kerry campaign to remind voters of this fact frequently between now and November.
Update: One alert reader wrote in to clarify an important point.
Actually, [patients] can’t seek any form of damages — compensatory or punitive — under ERISA. All they can get is reimbursement for the cost of the insurance benefit — e.g., the cost of the wrongfully denied medical test, prescription, or additional hospital stay. It’s a subtle distinction, but an important one.
The idea is that health insurance programs have started, in effect, practicing medicine by financially overriding medical treatment decisions by the patient’s physician. The reasoning is that all the insurance company is doing is making a decision about whether to pay out benefits or not. The patient always has the prerogative to pay out-of-pocket and then subsequently sue the insurance plan for wrongful denial of benefits. But, of course, that logic runs into the fundamental problem that most patients cannot afford to pay out-of-pocket and then undertake the litigation expenses to fight the insurance plan to get reimbursed.
The core problem here, as Justice Ginsburg points out in her concurring opinion, is that ERISA has expanded far beyond what it was originally expected to cover when it was promulgated in 1974. (They never expected the advent of HMOs and similar managed health care systems.) Congress really does need to step in to update the ERISA statute to remedy this and many other problems. Otherwise, the gaps are left up to to the courts’ judicial construction. (But, of course, we know the silly old Republican mantra that judges should simply “interpret” the law and not “make it.”)