Americans want the right to sue for negligent care

By Scott Sleek
Monitor staff

More than three-quarters of Americans questioned in a recent APA poll said they want Congress to change federal law so that patients can sue their managed-care insurers when they?re harmed by negligent treatment decisions or cost-containment measures.

In fact, two-thirds of the consumers polled say they?re willing to pay an extra $10 a month in insurance premiums if Congress passes the proposed Patient Access to Responsible Care Act (PARCA) introduced by Rep. Charles Norwood (R-Ga.) and Sen. Alfonse D?Amato (R-N.Y.). The PARCA bill, which APA actively supports, requires that managed-care companies allow patients to see specialists and receive emergency services without prior authorization. It also requires insurers to permit patients to see providers outside of the health plan at a reasonable cost.

At APA?s urging, Norwood included in the bill a provision that will allow health plans to be sued for their decisions that adversely affect their enrollees? treatment. About 125 million individuals are now covered by self-insured health plans, which are exempt from lawsuits under the Employee Retirement Income Security Act (ERISA) of 1974. PARCA would erase that ERISA protection for those companies.

The consumer responses reflect the public?s escalating disenchantment with managed-care cost-containment strategies that result in limited or inadequate care, said Russ Newman, PhD, JD, APA?s executive director for practice, during a May 7 press conference held to announce the poll results. In addition to commissioning its own survey, the Practice Directorate has reviewed about 50 other public opinion surveys dating back to 1991 and has found that the sentiments toward managed-care have grown increasingly hostile in the last seven years, Newman said.

'From these polls, what comes out for us is that the more experience people have with managed care, the more negative their reaction to it,' he said.

Norwood, who also appeared at the Capitol Hill press conference, said the poll results mirror what he?s been hearing verbally from people throughout the country.

'It?s clear the American public is with us on this issue,' Norwood said. 'Though they may not have experienced any problems with managed care personally, all of them have known someone in a situation?in which the denial of care has caused great harm.'

Penn, Schoen & Berland Associates, Inc., a New York?based firm, conducted the poll for the APA Practice Directorate, interviewing a random sample of 1,000 adults via telephone on April 23 through April 26. The results show that 77 percent of respondents support a change in federal law to allow managed-care companies to be sued, and 86 percent support the specific consumer-protection guarantees contained in PARCA.

APA announced the poll just a week after the Kaiser Family Foundation released calculations that indicate the major provisions of the PARCA bill, if passed, would cost consumers only $1.30 a month in increased premiums. This is similar to earlier studies which have indicated premiums would jump only .7 percent to 3 percent as a result of PARCA. That would raise a $170 monthly insurance premium by no more than $5. Seventy-seven percent of the respondents to the APA poll said they?d be willing to pay that extra money in order to receive the protections listed in the PARCA bill. And 63 percent said they?d pay as much as $10 more a month for PARCA protections.

PARCA?s opponents charge that the bill would expose the health insurance industry to frivolous lawsuits and would financially benefit providers and trial lawyers while forcing consumers to pay higher insurance premiums.

'Many businesses consequently would be forced to drop health coverage for their employees and their families,' Chip Kahn, chief operating officer and president-designate of the Health Insurance Association of America, said in a recent written statement.

But PARCA supporters say the insurance industry?s projections are based on erroneous and distorted interpretations of PARCA provisions that ignore Norwood?s intent in drafting them. Norwood has altered the bill to address the business lobby?s complaints. For instance, the amended bill now specifies that, while health plans must grant providers due process before removing them from a panel, the plans do not have to seek new providers on an annual basis or accept providers who lack minimum licensing and certification. And it states that consumers must base their lawsuits against a managed-care company on medical injuries, not just financial harm.

'It continues to baffle me that the managed-care industry says that costs will skyrocket if they are required to provide basic quality health care,' says Terre McFillen-Hall, executive director of the nonprofit Center for Patient Advocacy. 'To those plans I ask, what type of care are you providing now?'

Newman and other proponents of the bill say that even the provisions that protect providers are ultimately designed to address patient needs, since many managed-care companies retaliate against providers who vigorously advocate for their patients.