Re: FW: NYTimes article on Suing HMOs
From: art fougner, md (evsono@pipeline.com)
Tue Sep 7 11:05:48 1999
Terry
i would suggest that docs having probs with denial of service contact
the medical directors doc to doc. if this is unsatisfactory, simply
recording the medical director's name in the chart and notifying this
physician of this may work. while an insurance company may claim not to
practice medicine, the medical director does and should therefore have
some exposure should litigation arise. have gotten fetal echo's covered
before using this line of reasoning.
Art
At Fri, 27 Aug 1999, DuboseTerryJ@exchange.uams.edu wrote:
>
>Many in the USA will find this article interesting. It relates to a thread
>we had going on the Ultrasound Section a week or so ago.
>
>Terry J. DuBose, M.S., RDMS
>Director, Diagnostic Medical Sonography Program
>CHRP, University of Arkansas for Medical Sciences
>Little Rock, Arkansas, USA
>501-686-6510
>http://www.io.com/~dubose/ <http://www.io.com/~dubose/>
>http://www.uams.edu/CHRP/dmshome.htm <http://www.uams.edu/CHRP/dmshome.htm>
>
>http://www.obgyn.net/us/panel/panel.htm
><http://www.obgyn.net/us/panel/panel.htm>
>
>-----Original Message-----
>From: Donald Haydon [SMTP:dhaydon@sdms.org]
><mailto:[SMTP:dhaydon@sdms.org]>
>
>Subject: NYTimes article on Suing HMOs
>
>August 15, 1999
>
>Series of Rulings Eases Constraints on Suing H.M.O.'s
>
>--
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>Related Articles
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>Issue in Depth: Health Care
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>----
>------------------------------------------------------------------------
>
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>By ROBERT PEAR
>
>WASHINGTON-In a string of rulings over the last 20 months, judges across the
>country have begun allowing patients to sue health maintenance organizations
>for medical malpractice, after years in which such claims were repeatedly
>rejected by the courts.
>In the past, Federal and state judges often allowed H.M.O.'s and other
>managed-care companies to avoid liability for their decisions, saying
>patients had no right to sue for damages. But rulings by judges on Federal
>District Courts and appeals courts in recent months show that they have
>become more receptive to lawsuits attacking the quality of care provided by
>health plans.
>
>The suits have become common as patients chafe under the cost-control
>restraints of managed care, now the dominant form of health insurance in the
>United States.
>Whether patients should have the right to sue their health insurance
>companies has been the most divisive issue before Congress as the Senate and
>the House debate legislation known by its backers as the patients' bill of
>rights.
>The Senate recently passed a bill that would expand protections for a
>limited number of Americans in managed-care plans, after rejecting
>Democratic efforts to guarantee the right to sue. President Clinton said he
>would veto the measure because it offered "toothless, half-hearted
>protections." A move is afoot in the House to draft a version that would
>include new rights to sue.
>
>The Federal law that regulates employee benefits has long formed a
>protective shield around H.M.O.'s. The law, the Employee Retirement Income
>Security Act of 1974, known as Erisa, made it difficult for consumers to win
>liability claims for the denial of benefits, partly because Congress wanted
>employers to establish health and pension plans without being exposed to
>expensive litigation.
>Patients and their lawyers have recently found ways to get around a
>provision of the law that allows patients to recover only the value of
>denied benefits, not punitive damages or compensation for lost wages or pain
>and suffering.
>For example, a Federal District Court in Urbana, Ill., ruled this year that
>a woman could sue a health plan, Health Alliance-Midwest, on the ground that
>its nurses failed to diagnose her husband's cardiac distress over the
>telephone. A nurse told the 42-year-old man, Gary L. Crum, that his chest
>pain was probably a result of "excess stomach acids," the lawsuit said, but
>Crum died of a heart attack a few hours later.
>His wife, Kelly A. Crum, is challenging the "quality of medical care," not a
>denial of benefits, so she may press her claim under Illinois's wrongful
>death statute, Judge Michael P. McCuskey said.
>
>Until 1995, the Supreme Court emphasized the broad reach of Erisa, which
>pre-empts "any and all state laws insofar as they may now or hereafter
>relate to any employee benefit plan." But since 1995, the Court has
>emphasized its presumption that states may exercise their "historic police
>powers" in "fields of traditional state regulation," including health care
>and insurance.
>In an effort to hold health plans more accountable, state insurance
>commissioners recommended this month that all states establish appeal
>procedures for people who want to contest the denial of care by H.M.O.'s.
>Model legislation, issued by the National Association of Insurance
>Commissioners, would allow consumers to appeal to an independent panel of
>medical experts.
>Legal experts say that without a change in Federal law, it is difficult to
>sue an insurer for denying care to a patient under the terms of an employee
>benefit plan. But plaintiffs are already using novel arguments to win
>damages for inadequate quality of care-in short, for malpractice.
>In the past, when a patient sued for malpractice, the target was usually a
>doctor. But Promutual Group, a malpractice insurer based in Boston, says
>"managed care organizations are being held liable in more and more medical
>malpractice cases."
>Daly D. E. Temchine, a Washington lawyer who represents managed care
>organizations, said patients and their lawyers liked to name H.M.O.'s as
>defendants because the health plans were seen as having "deep pockets." In
>recent months, judges in more than 15 states, from California to Texas to
>New York, have forced H.M.O.'s to defend their actions in cases involving
>suicide, heart attacks, sudden infant death syndrome, cancer and other
>illnesses.
>The Federal judges, appointed by Presidents of both parties over many years,
>have said H.M.O.'s can be sued on a variety of legal theories. Some courts
>have held H.M.O.'s legally responsible for the negligence of their doctors,
>especially if the doctors act like agents of the H.M.O. Other courts have
>allowed patients to sue H.M.O.'s for "breach of fiduciary duty," meaning
>their obligation to act in the interest of participants and beneficiaries.
>
>In Connecticut, Judge Christopher F. Droney of Federal District Court ruled
>recently that one of the state's largest H.M.O.'s could be sued for
>negligence by a man whose son had committed suicide.
>The plaintiff, Stewart R. Moscovitch, said the H.M.O. had stopped paying for
>psychiatric care at Danbury Hospital for his severely depressed son, Nitai,
>and arranged for the youth to be transferred to a drug treatment center,
>where he hanged himself.
>
>The judge said the lawsuit could go forward in state court because it
>involved "claims for medical negligence, not claims for the improper denial
>of plan benefits."
>In an interview this week, Moscovitch said: "I felt that the H.M.O. in this
>case had to be held accountable. I do believe, and know in my heart, that
>they killed my son by making a medical decision for profit."
>Alice C. Ferreira, a spokeswoman for the H.M.O., Physicians Health Services
>of Shelton, Conn., said, "The tragic outcome of this case saddens us all."
>But she added, "Once all the facts are presented in court, they will prove
>that P.H.S. fulfilled its obligation" to the Moscovitch family.
>President Clinton, Democrats in Congress and some House Republicans say the
>right to sue is an essential element of any managed-care legislation,
>because health plans often decide what kind of care patients receive.
>But
>Senate Republicans, H.M.O.'s, insurance companies and employers adamantly
>oppose any new right to sue, saying it would increase the cost of insurance
>and lead to an increase in the number of Americans without health insurance.
>Justice Ralph J. Cappy of the Pennsylvania Supreme Court addressed such
>concerns in a recent ruling. "We acknowledge that by allowing negligence
>claims, there will be a financial impact on H.M.O.'s," he wrote. But, he
>insisted, "patients enjoy the right to be free from medical malpractice."
>
>David L. Trueman, a New York lawyer who has represented scores of patients,
>said, "The courts' willingness to protect the consumer is consistent with
>changing public attitudes toward managed care and the need to hold H.M.O.'s
>responsible for actions that harm patients."
>The Supreme Court of Pennsylvania this year allowed a lawsuit against an
>H.M.O. by a man who said he had become a permanent quadriplegic because of a
>three-hour delay in his transfer to a university hospital for treatment of
>an infection in his spinal column.
>The health plan said the Federal law on employee benefits barred such
>claims, and to support its contention it cited several decisions of the
>United States Supreme Court in the 1980's and early 90's.
>
>But Justice Cappy of the Pennsylvania Supreme Court said the United States
>Supreme Court "noticeably changed tack" in 1995. As a result, he concluded,
>"Congress did not intend to pre-empt state laws which govern the provision
>of safe medical care," nor did it intend to block lawsuits making negligence
>claims against an H.M.O.
>
>In January, a California jury returned the largest verdict to date against
>an H.M.O.: $120.5 million for a woman whose husband had died of stomach
>cancer. The woman, Teresa Goodrich, was allowed to sue because her husband,
>David, had been a county prosecutor, and Erisa's limits on damages do not
>apply to health plans for government employees. The recent rulings have
>pleased consumer advocates and caused concern among managed care
>organizations.
>Health plans say the court decisions show there is no need for changes in
>Erisa, because patients can vindicate their rights under existing law.
>But patients' rights and judges' rulings are, at the moment, somewhat
>unpredictable, and patients often must shuttle back and forth between
>Federal and state courts.
>Trueman, the New York lawyer, said that despite recent court victories for
>consumers, "the law in this area is in flux, often limited and at times
>confusing."
>
>Prof. Timothy S. Jost, an expert on health law at Ohio State University,
>said: "It's still pretty clear that you cannot directly sue a plan for
>denial of benefits, no matter how egregious the denial is. That protects
>much of what health plans do."
>
>Jamie Court, director of Consumers for Quality Care, a consumer group based
>in Santa Monica, Calif., said Congressional action was needed to clarify
>patients' rights.
>
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--
"Of course, that's just my opinion. I could be wrong."
-----Dennis Miller
art fougner, md
SonoScan/Genetic Sciences
forest hills, ny
evsono@pipeline.com
