LAST FEBRUARY DEMOCRATIC SENATOR EDWARD KENNEDY introduced a “patients’ bill of rights.” His proposal instantly became his party’s top priority on health care, attracted the endorsement of Republican senator John McCain, and won the support of a majority of senators. Kennedy introduced the legislation with a flurry of demagoguery that rivaled his accusation in 1987 that Supreme Court nominee Robert Bork favored back-alley abortions and racially segregated lunch counters. In a single sentence, Kennedy summed up the “abuses” health maintenance organizations and other managed care plans have inflicted on patients, creating the need for his Bipartisan Patient Protection Act. Here’s what he said: “Whether the issue is diagnostic tests, specialty care, emergency care, access to clinical trials, availability of needed drugs, protection of doctors who give patients their best possible advice, or women’s ability to obtain gynecological services—too often, in all these cases, HMOs and managed care plans treat the company’s bottom line as more important than the patient’s vital signs.” If Kennedy were correct, the public would have demanded a sweeping patients’ bill of rights years ago and Congress would have swiftly approved one. But of course he’s not correct. The truth is quite different. There’s simply not much empirical evidence, on any of these issues, to justify a patients’ bill of rights. Sure, a decade or so ago there were plenty of examples of care denied as HMOs struggled to accommodate a tidal wave of new patients. But the health care marketplace, public opinion, and state regulation have forced drastic improvements. The result: Today, most patients get more and better medical care in HMOs than they’ve ever had before. Let’s examine Kennedy’s list. Diagnostic tests? Take mammograms. Women are more likely to get them if they’re in HMOs than in fee-for-service health plans. In 1996, 70 percent of women in the vulnerable 52 to 69 age bracket received mammograms as HMO patients. In 1999, 73 percent. Meanwhile, the use of CT scans jumped 15 percent from 1998 to 2000 and MRIs rose 20 percent. There are no contrasting figures on these tests for HMOs and other health plans. But since roughly half the 161 million Americans with private health insurance are in HMOs, the use of these diagnostic tests obviously wouldn’t have soared if HMO patients were being denied them. Specialty care? One of the largest HMOs, UnitedHealthcare, which covers about 8.6 million people, announced recently that patients could go directly to specialists without a referral from a primary care physician. Other HMOs have what are known as “open access products,” which offer quick access to specialists for a slightly higher co-payment. And a Johns Hopkins study found that patients who see a primary care physician at an HMO are 66 percent more likely to be sent to a specialist than are fee-for-service patients. True, the Hopkins survey was based on slightly dated information from 1989 to 1994. But there’s no reason to believe HMO referrals to specialists have declined since then. What about emergency care? The crisis in emergency rooms is not that HMOs are refusing to pay for treatment. The crisis is a lack of capacity. There are too many patients, too little space, and not enough doctors. Federal law already requires emergency rooms to treat all patients who show up. And at least one study found no evidence that HMOs are denying payments for emergency room visits. In fact, most states require HMOs to pay. Emergency doctors in Maryland recently complained that claims were being denied. But a state auditor studied the matter and found no violations. Clinical trials of experimental medicines and treatments? Most insurers handle these on a case-by-case basis, and routine costs are generally covered. Indeed, the Congressional Budget Office found in a 1998 study that health care plans, including HMOs, paid 90 percent of the patients’ costs in clinical trials. Availability of needed drugs? You’re better off in an HMO if paying for prescription drugs is a problem. Heart attack survivors are far more likely to get beta blockers if they’re in HMOs. In the past, HMOs would only pay for drugs, mostly generics, on their preferred list. Now, patients in many HMOs have access to generics as well as branded drugs, even ones that aren’t on a preferred list. The only difference is a higher co-payment for branded drugs. By “protection of doctors” who deliver their best advice, Sen. Kennedy was presumably referring to alleged gag rules that bar doctors from recommending certain costly treatments. The General Accounting Office looked into this in 1997 and found no “explicit gag clauses” in HMO contracts. As for “women’s ability to obtain gynecological services,” it’s greater in HMOs. For starters, women are more likely to have OB/GYN physicians as their primary doctors in HMOs. And women in Medicare HMOs have a better chance of having breast cancer detected at an earlier date, an American Medical Association study concluded in 1999. All this doesn’t mean HMOs have been transformed into lovable organizations whose sole concern is their patients. As often as not, HMOs have expanded coverage and instituted safeguards only under pressure, including pressure generated by the drive for a national patients’ bill of rights. Forty states now require HMOs to allow disgruntled patients to appeal treatment decisions to outside physicians. Would HMOs have done this on their own? Probably not. But the point is that, for whatever reason, HMOs have corrected glitches, abandoned dubious practices, and upgraded their level of medical care. Advocates of a patients’ bill of rights insist these reforms aren’t sufficient. What’s needed are federal mandates to insure the needs of patients trump the quest for profits—mandates backed up by the threat of lawsuits against HMOs and employers. The trouble here is the unintended consequence: higher costs and fewer patients covered as strapped employers drop health coverage. Which is exactly why HMOs were given immunity from most lawsuits in the first place. The idea was to keep costs down and encourage the growth of HMOs, and it worked. More mandates would inject rigidities—and more paperwork—into an HMO system that is working. And lawsuits are bound to cause doctors to treat patients defensively by ordering unneeded treatments and tests just to ward off litigation. The Kennedy-McCain bill is especially egregious in promoting lawsuits. Under current law, doctors in HMOs can be sued in state court, though suits against HMOs themselves usually go to federal court. There, judges can order benefits be paid, but they cannot award punitive damages. Kennedy-McCain would allow federal courts to award punitive damages up to $5 million. But the jackpot for trial lawyers is a provision permitting suits against both HMOs and employers in state courts—with no specific cap on damages against HMOs. Then trial lawyers could sue these deep-pocket defendants in the very courts where, currently, they often win outlandish damages. The White House favors the alternative measure sponsored by GOP senator Bill Frist and Democratic senator John Breaux. It would permit lawsuits against HMOs only in federal court and cap pain-and-suffering damages at $500,000, but allow no punitive damages. But Frist-Breaux looks good only in comparison with Kennedy-McCain. Most Republicans, President Bush included, are running scared on a patients’ bill of rights. They needn’t be. For three election cycles, the issue was supposed to hurt Republican candidates. It didn’t. Now, the good news is that while Senate majority leader Tom Daschle has refused to bargain away any of Kennedy-McCain, the president has promised a veto if it passes. For America’s health care system, stalemate on a patients’ bill of rights is just the right medicine.
