Monday, October 11, 1999
PATIENTS' BILL GETS MIXED REVIEWS
FOES CALL MEASURE A KNEE-JERK REACTION, BUT BACKERS SAY IT'S A WATERSHED MOMENT
Immobilized by searing back pain, Ann Gardner was stunned two years ago when her insurer, Humana Health Plans Inc., told her she wasn't sick enough to be treated at her hometown hospital in Sedalia.
"Every time I moved, it set off spasms of pain from my back down my leg. My right foot was paralyzed,'' said Gardner, an attorney for the city of Sedalia.
Calls her doctor made to Humana didn't help. Frustrated, her family sought a neurosurgeon, who found that a herniated disc was pressing against her spinal cord. Emergency surgery was scheduled.
But by then, some of the resulting nerve damage was irreversible, she said.
Now, back at work, Gardner wears a leg brace. "My foot just flops. I don't know if I'm ever going to get it back,'' she said.
Last month, Gardner filed a lawsuit in Pettis County Circuit Court claiming that Humana regularly pressures "participating physicians'' to avoid needed surgical procedures "in an effort to contain costs.''
Humana officials declined to comment on the case.
Similar complaints increasingly are being made against an embattled health insurance industry by frustrated consumers who claim insurers are putting profits over high-quality care.
Last week, fearing the brunt of a national wave of discontent, the House of Representatives approved a broad health-care bill that would expand patients' rights, including making it easier for patients to sue health maintenance organizations.
While insurance representatives call the bill - which still faces a joint House and Senate conference debate - a knee-jerk reaction that will cause premiums to soar, an unprecedented alliance of physicians and patients' attorneys praised the measure as a consumer victory.
"It's a watershed event for America,'' said Richard Hellman, president-elect of the Metropolitan Medical Society of Greater Kansas City and chairman of its governmental relations committee.
"It's very important for the public to have the strongest patient protection possible,'' he said. "Consumers are caught in the middle and are not getting the care they need when they need it.''
Trial lawyer Lynn Johnson, a partner with the Overland Park firm of Shamberg, Johnson & Bergman, said the issue of insurer accountability has "become a major public issue. Politicians are responding to it because they see people are outraged.''
Still, insurers say that money rather than concern is fueling the national debate. "We think it's trial attorneys looking for deeper pockets,'' said Dick Brown, a spokesman for Louisville-based Humana.
The cost of high-quality care is at the center of the debate. For a decade, efforts in the health-care industry have focused on keeping costs down.
Insurers negotiated with caregivers to discount charges for services. And cost-minded employers sought the most economical health plans to offer as benefits to employees.
As a result, insurers, especially health maintenance organizations, assumed a greater role in making care decisions, basing reimbursement fees on what they determined was usual and customary care.
And for years, health-care insurers have received partial protection from malpractice lawsuits under the federal Employee Retirement Income Security Act of 1974.
The law governs employer-funded pension and health plans. It pre-empted state laws governing malpractice and wrongdoing, supplanting them with rules that require employees to pursue their claims in federal court. The law prevents employees from seeking civil damages and it limits awards to the cost of any benefits that were denied.
If it becomes law, the patients' bill of rights passed by the House will allow patients to sue their health insurance plans in state court and obtain damages for injuries.
Some observers were not surprised by the political response. Over the years, the law had begun to erode as some courts found alternative reasons to hold insurers accountable for injuries.
"The trend has been to find any reasonable way to allow a case to go forward,'' said Jim Frickleton, a lawyer with the Kansas City firm of Bartimus, Frickleton & Presley, and the attorney representing Gardner in her lawsuit against Humana.
In the last week, several class-action lawsuits have been filed by patients against HMOs in Florida and Mississippi.
For their part, doctors have complained it is unfair to hold them liable for medical decisions that result in injuries "if you don't hold the health plan responsible for the decision also accountable,'' said Tom Holloway, director of government relations for the Missouri State Medical Association.
The recent pairing on this issue of doctors with lawyers has helped fuel the trend toward holding insurers more accountable.
"It's too bad that we have to hold the insurance industry's feet to the fire,'' said Deborah Jantsch, president of the Metropolitan Medical Society of Greater Kansas City. Still, she said, she doesn't believe insurers will become accountable "without the threat of a lawsuit.''
To Jantsch, the recent furor has become a "national debate over patient rights. It is a consumer issue. There is considerable frustration out there. We applaud Congress for sending a strong message to their constituents and our patients.''
Rep. Dennis Moore, a Kansas Democrat and a supporter of the measure, said it "basically allows doctors and patients, instead of insurance companies, to determine what's medically necessary in terms of treatment.''
Even so, some health officials are wary of the measure. They say Kansas and Missouri already have passed legislation that protects patients. The federal bill, however, would go further than laws in either state in allowing patients to sue insurers.
Jerry Slaughter, executive director of the Kansas Medical Society, said some health-care providers are uncomfortable with a new federal law that might pre-empt an already progressive state law. And Kansas Insurance Commissioner Kathleen Sebelius said she worries that federal standards might be set without enforcement procedures.
The recent round of patient protection proposals has drawn heavy fire from the insurance industry.
"As occasionally happens in Washington, the debate is focusing on the right ends but the wrong means,'' said John P. Mascotte, president and chief executive officer of Blue Cross and Blue Shield of Kansas City.
Instead of giving patients more right to sue, Mascotte recommends greater use of outside panels and experts to settle disputes between patients and managed care companies.
"The net results will be faster, less expensive and will produce better health decisions for the community at large,'' he said.
Cheryl Dillard, a spokeswoman for HealthNet managed care company, said the patients' rights debate is diverting attention from the nation's 44 million uninsured and could worsen the problem by causing premiums to rise.
James Beck, a health-care lawyer at the Shook Hardy Bacon law firm, agreed that the system needs attention, but he said insurers are wrongly portrayed as greedy. "The idea that it's corporate depravation is just nonsense.''
As the debate unfolds, Gardner remembers only the pain and fear she felt two years ago.
"I thought, 'Gee whiz, I should be OK. I'm in a hospital.' In retrospect, I obviously wasn't told what was going on.''
THE KANSAS CITY STAR
Section: NATIONAL/WORLD
Page: A1
By PAUL WENSKE; JULIUS A. KARASH
To reach Paul Wenske, call (816) 234-4454 or send e-mail to pwenske@kcstar.com
To reach Julius A. Karash, call (816) 234-7728 or send e-mail to jkarash@kcstar.com
All content © 1999 THE KANSAS CITY STAR and may not be republished without permission.
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