Patients’ bill of rights

The patients’ bill of rights, a long-sought remedy for a health care system ruled by insurance agencies and health maintenance organizations, is finally before the Senate. Working to give patients better control as they navigate though the health care system, Sens. Edward Kennedy, John McCain and John Edwards have written the Patient Protection Act of 2001. This is in contrast to the Patients’ Bill of Rights Act of 2001, sponsored by Sens. Bill Frist and John Breaux, which is supported by a majority of Senate Republicans as well as President George W. Bush. Both bills provide patients with an expanded set of rights, but the bill sponsored by Kennedy is more comprehensive and should be passed by the Senate.

One of the contrasts between the two bills is the extent to which employers can be sued. The bill sponsored by Kennedy would allow employers to face lawsuits if they participate in making medical decisions. Frist is worried because he foresees lawyers twisting the word “participate” and filing lawsuits across the country against employers who might have little or no influence in decisions made by health plans. Kennedy is right to point out that if an employer takes part in medical decisions, it should be held accountable. To clarify what “participate” means, an amendment should be added specifically defining it along the lines of an employer that takes a direct and active part in medical decisions.

Another point of contention also revolves around money. The Kennedy bill does not cap economic and non-economic damages that a patient could receive. Punitive damages are capped at $5 million. It would also allow the option of suing insurance agencies or HMOs in federal or state court. This allows the widest set of options for patients to redress grievances they may have. Frist’s bill places caps on damages a patient can collect and wants lawsuits to remain in federal court. The worry Frist has is that numerous lawsuits with high monetary awards could drive premiums up and even force some workers to lose their insurance. However, this is based on the assumption, as yet unproven, that there will be a flood of lawsuits.

The system set up by Kennedy’s bill, though, provides for a complex set of internal and external checks before a patient can go to court. Though not as strict as Frist’s version, it still requires the patient to go through rigorous reviews. One disadvantage of Frist’s bill is it operates on business days. For example, an insurer would have 14 to 28 business days to respond to a review under Frist’s bill. Kennedy’s bill would require insurers to respond faster, giving them only 14 to 28 calendar days. It is unreasonable to ask HMOs and insurance agencies to only be operational on a business day schedule. Medical problems do not only occur during the work week and then take a break on the weekend. When it comes to a person’s health, insurers need to be working around the clock.

Beyond the pure policy issues of the two bills, there are wider political implications. For Democrats now in control of the Senate, this is the first major piece of legislation they are trying to push through. If they do not stand firm in defending this bill, the power they gained in the Senate realignment means nothing. Bush has threatened to veto the Democratic version because it does not contain what he is looking for. A recent poll has shown the president’s approval rating slipping, partially because Americans do not feel he is in tune with their everyday concerns. By vetoing a popular piece of legislation, his popularity would undoubtedly continue in a downward slide. The Democrats have a golden opportunity right now to either force Bush to make a politically unpopular decision or to allow the legislation to pass. For the sake of his political survival as well as the good of the American populace, Bush would be wise to sign the bill sponsored by Kennedy and give patients the rights they need to control their health care.