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Members of the House of Representatives: vote "no" on the Coburn-Shadegg substitute to the Norwood-Dingell bill. The Coburn-Shadegg legal accountability provision is not a "middle-ground" alternative to the Norwood-Dingell accountability provision; it contains so many loopholes that many patients will be prevented from seeking appropriate relief from HMO negligent treatment decision-making.

• Loophole: Under the Coburn-Shadegg substitute, patients lose their available recourse under State laws. The Coburn-Shadegg substitute forces patients to lose available State recourse if they choose the very limited remedy available under this provision. In addition, the provision forces patients to show "substantial harm," a new concept that potentially overturns personal injury law in all States. This new procedural barrier may be particularly onerous for patients in Texas, Georgia and California, where statutes specifically have been passed to provide patients a remedy for HMO negligence.
• Loophole: The Coburn-Shadegg substitute discriminates against persons with mental health injuries by completely excluding them from the right to seek relief, unless they can show an accompanying physical injury. Under the substitute, only patients with "substantial harm" may seek recourse. Unfortunately, the substitute defines "substantial harm" to exclude injuries which arise out of the treatment of a mental disorder, because they are not "bodily" injuries. For example, a person who suffers depression and deteriorates due to denied or poor treatment will have suffered a very real injury for which no relief is afforded, because the person has not suffered "bodily" injury.
• Loophole: Under the Coburn-Shadegg substitute, patients will not be able to seek remedies for an HMO?s negligent delivery of care. While the provision does permit actions for benefits? denials, patients are often injured by a plan?s negligent delivery of care. For example, managed health plan procedures which lead to a misdiagnosis or which delay treatment are instances in which care is delivered in a negligent manner that causes injury. Patients injured by such negligence are not afforded a remedy if this provision passes.
• Loophole: Children and stay-at-home parents, because they are not breadwinners, may not be afforded appropriate relief, since the Coburn-Shadegg substitute places inappropriate limits on non-economic damages. Children and stay-at-home parents rely on non-economic damages for adequate recourse, because they have virtually no economic damages. The Coburn-Shadegg substitute limits non-economic damages to two-times the economic damages award, leaving children and stay-at-home parents with no or very low damages even for devastating injury.
• Loophole: Employers who specify any protocol, procedure, or policy for determining medical necessity of services can not be held liable under the provision, even when these decisions have a direct impact on treatment. If these are negligent decisions, a patient who is harmed has no recourse for the clear negligence of the employer as treatment decision-maker. In fact, employers who make final negligent decisions about the treatment that a patient receives can inappropriately escape liability by tagging the decision on an "agent." Since the legal concept of agency is very broad, employers can escape accountability for their negligence by providing that anyone who acted as their "agent," even under their direction, in a final treatment decision is accountable, not them.
• Loophole: The family of a patient who has died or a patient who suffered injury before exhausting internal and external review procedures should be able to seek accountability from the plan for negligence. The Coburn-Shadegg substitute does not recognize that injury can occur during this time period, and therefore patients so injured are left without recourse.

Vote "yes" for the Norwood-Dingell bill, in which patients are afforded reasonable recourse for HMO negligence, while employers are appropriately protected from frivolous law suits.