Do HMO Patients Deserve Second Opinions And Access To Courts?
27 Jul 2007
Every patient would want the opportunity to have a second opinion within his or her managed care plan. Unfortunately, our present laws do not uniformly protect this right.
Every patient would want the opportunity to seek compensation against a health care provider or HMO responsible for providing care below the accepted standards. Unfortunately, HMO's remain largely immune from suit for their misconduct.
The national debate over patient rights within HMO's continues in Congress. Many of our representatives understand why there must be a way for the rights of the patient to be preserved. The disagreement between our two parties is largely over how to protect and enforce these rights.
It is interesting to note that even the members of Congress who oppose the fullest rights for patients appreciate how HMO's have interfered with normal medical decisions and opinions to the detriment of the patient.
A Statement Worth Reading
The following is taken from a statement released by a Republican member of the Commerce subcommittee on health and environment:
"Long before managed care came into existence, second opinions were a key element of quality health care. The practice of medicine is certainly a science, but it is also an art. There are always situations in which judgment calls play the primary role in determining if specific treatments are necessary, regardless of who is paying the bill.
"Many responsible doctors in fact recommend and voluntarily seek a second opinion when faced with these types of decisions. As a private practice dentist for 25 years, I frequently sought second opinions. In many cases, all the purely scientific evidence still does not conclusively determine a specific course of treatment, and, in fact, may point to a treatment that you feel in your bones is just not right. Sometimes treatment is medically necessary - sometimes not. Second, and even third, opinions are invaluable in making the right call.
"When I began practicing in 1969, managed care was nonexistent. Physicians and dentists alike made their own calls, including whether to seek a second opinion on questionable cases, and whether to follow it. Accountability was two-fold - free market controls and malpractice law.
"If we made a bad decision and injured a patient, we knew we would have to answer for it in state court. If we charged too much or prescribed unnecessary treatment, patients were free to walk out the door. The vast majority used that privilege responsibly, following the Hippocratic Oath. A few bad apples took advantage of the situation, in which, for all practical purposes, providers were given a "blank check" to bill insurance companies for whatever they unilaterally determined was necessary.
"Beginning in the early 1970s, however, the massive infusion of federal Medicare dollars into the health care system sent prices skyrocketing, and spurred the growth of managed care insurance. Today, managed care has all but eliminated over-treatment problems, and reined in, at least for now, health care inflation.
"But while managed care's influence on these judgment calls has been good for costs, it has come at a terrible price in terms of quality of care. When an unscrupulous doctor calls for unnecessary and expensive treatments, HMOs bring it to a rapid halt, by comparing statistics on recommended treatments and prices for similar cases. That protects patients from undergoing needless and sometimes risky medical procedures while holding down the cost of health care. That's good.
"The problem is that under current federal law, who provides a second opinion on the judgment of the HMO? The answer is no one, unless the patient goes to federal court and sues for the value of the disputed treatment, which costs thousands in legal fees and frequently takes years to resolve.
"If they suffer injury or death in the meantime, too bad - the Employee Retirement Income Security Act shields the HMOs from the same medical malpractice laws that at least provided some degree of accountability when doctors called the shots.
"Those realities have led to mirror-opposite abuses to those unscrupulous providers calling for unnecessary treatments - unscrupulous HMOs denying treatments that are truly medically necessary. And that's bad.
"The situation is aggravated by the fact that the HMOs usually allow personnel with no medical training or license, who have never examined or seen the patient, to make that critical judgment call. Their decision is based on statistics and costs - all elements of science and mathematics, ignoring the specific case, the patient and the art of medicine. We have taken the "blank check" away from the medical community and given it to the insurance industry.
"No one in our health care industry should hold a "blank check" on health care determinations. We have seen the pendulum swing from one excess to the other, and now patients are dying from lack of medically necessary, covered benefits as a result of this reversed imbalance." - Rep. Charlie Norwood (R-Ga.)
Conclusion
When a knowledgeable Republican member of Congress can make such a statement, one that fully appreciates the terrible wrongs being committed by HMO's, why should patients be denied full access to our nation's system of justice to enforce their rights?
