Bringing to national attention a battle already being fought in Texas, a leading federal healthcare quality bill would allow patients to sue managed-care plans for malpractice.
The Patient Access to Responsible Care Act, sponsored in the House by Rep. Charlie Norwood (R-Ga.), a dentist, and in the Senate by Sen. Alfonse D'Amato (R-N.Y.), would amend the Employee Retirement Income Security Act of 1974, which exempts self-insured employer health plans from many state insurance mandates.
Managed-care plans frequently use ERISA as a shield in lawsuits brought in state courts when enrollees in ERISA plans claim that HMO personnel made decisions that contributed to a patient's injury.
The Norwood-D'Amato bill would amend ERISA to allow malpractice lawsuits to be brought against HMOs, as well as let states impose stricter standards on health plans than ERISA itself imposes.
It could become an explosive issue as Congress considers the legislation this winter and spring, according to both Republican and Democratic congressional staffers.
"That's probably the biggest powder keg in the whole bill," a Senate Democratic aide said last week.
The bill follows the lead of Texas, which last May became the first state to allow patients to sue group health plans for malpractice. Aetna has sued the state, saying the law violates ERISA.
In testimony during an October hearing on his bill, Norwood argued that the liability provision is necessary because health plans have significant influence over healthcare practitioners' decisionmaking and should be held responsible for their actions that result in patient injury.
Managed-care groups noted, however, that to open managed-care plans to malpractice lawsuits is in contrast to state activities to reform malpractice law.
"We basically do not think that it's a good idea to use what most policymakers agree is a failed tort system for reimbursing people injured by the medical-care delivery system," said Donald White, spokesman for the American Association of Health Plans.
Malpractice reform advocates, meanwhile, said the provision could sow the seeds of a comprehensive malpractice reform measure because it would force insurers and health plans to begin advocating in favor of such legislation.
The Norwood-D'Amato bill is not the only healthcare-quality bill on Capitol Hill, but it is likely to be among the legislation debated in the coming session, which resumes at the end of January.
Joining it is likely to be a set of recommendations known as the "Consumer Bill of Rights and Responsibilities" drafted by the White House Advisory Commission on Consumer Protection and Quality in the Health Care Industry.
President Clinton endorsed that document in November and called on Congress to pass "appropriate" legislation to reinforce those protections.