February 2000
Government Relations
Practice Directorate

For more information: E-mail

The House-passed Norwood-Dingell health plan liability provision ensures that all persons have a right to bring an action for their injuries. The Goss-Coburn-Shadegg proposal, however, excludes patients with mental injuries from the right to seek relief. Managed care reform conferees should not bar persons with mental illness from seeking relief for their injuries.

The Goss-Coburn-Shadegg proposal (a floor amendment to the Norwood-Dingell bill rejected during House debate) permits only patients who have experienced "substantial harm" to seek legal recourse. Unfortunately, "substantial harm" is defined narrowly to mean "loss of life, loss or significant impairment of limb or bodily function, significant disfigurement, or severe and chronic physical pain." This provision—

• Excludes mental injuries because the concept of "bodily" injury is commonly and legally understood to mean only physical injury, an injury separate and distinct from mental or psychological injury.

• Requires all injured patients to show "substantial harm," a high burden not required under State law and an untested concept in negligence actions.

A proposed compromise should not exclude patients from the right to seek legal recourse for a wide array of potentially life threatening and severely disabling mental injuries if caused by an HMO’s negligent denial or delivery of care. Consider the following:

• John Doe has major depression, but he is still able to work at his job. His psychologist recommends intensive psychotherapy, twice a week for a period of at least 15 weeks. Mr. Doe’s HMO benefit covers him for all medically necessary psychotherapy up to a total of 30 outpatient sessions each year, but refuses, even after numerous appeals, to authorize any services beyond 15 sessions provided every other week. Mr. Doe’s condition deteriorates to the point that he is suicidal. He can no longer work and must go on disability. He also now requires inpatient hospitalization for a minimum of 30 days, but his HMO only will cover him for 15 days. Mr. Doe seeks relief from his HMO for negligently failing to follow the treatment recommendations of his psychologist, to recover his lost wages and additional hospital expenses, and for the psychological injury of a pre-existing depression that has worsened due to the HMO’s denial of benefits.
• Jane Doe never expected that she would develop a phobia of crossing bridges, but now she is afraid of crossing a bridge that leads from her home to her job. She seeks psychotherapy from a social worker affiliated with her plan who diagnoses her as having relatively mild panic disorder, but her HMO denies the social worker’s recommended course of treatment. Over the next several months, her disorder worsens and she can no longer work, grocery shop or leave her house. She now suffers from a very serious condition known as agoraphobia. While her illness is real and debilitating, she would have no recourse for the HMO’s denial of care, since her illness has no physical component.

Patients who suffer mental injuries due to HMO negligence deserve protection. No compromises to the House-passed legal accountability provision should bar those with solely mental injuries from legal recourse.