Suing Insurance Companies Not The Answer, Jurist Declares

By John Thomas, Associate Editor
September 1, 1999



BOSTON – A discussion of the appropriate role of the judiciary and legislative branches of government in the reform of health maintenance organizations in particular and health care in general ended inconclusively here during a town meeting at annual meeting of the American Psychological Association.

While there was general agreement by the psychologists and attorneys on a panel that both branches of government should play some role in reform efforts, it was not clear how far either should be ratcheted up during the continuing battle between providers and HMOs.

Perhaps the coldest splash of reality was delivered during the last minute of the two-hour town meeting by U.S. District Court Judge Michael Ponsor, Jr.. J.D., of Springfield, Mass., when he said not to expect a great deal of support from the judiciary.

Although generally sympathetic to the plight of providers in the face of HMO’s intransigence, Judge Ponsor warned that suing insurance companies “will help some, but it will not solve the problem.”

The “problem” as articulated by Executive Director for Professional Practice Russ Newman, Ph.D., J.D., is the legal shield HMOs and insurance companies generally enjoy against accountability due to the Employee Retirement Income Security Act, or ERISA.

The act was created in the 1970s as an incentive for employers to create pension programs, and health insurance was added at the last minute.

And while courts are beginning to gradually relax ERISA’s absolute shield and while Texas has enacted a law that allows patients to sue HMOs in state court, by and large insurance companies continue to be protected from court actions for denial of care that lead to personal injury or death.

Courts generally come down on the side of insurance companies since contract law is the guiding principle, as opposed to product liability in many tort suits alleging wrongdoing.

“Courts have viewed managed care as businesses, not as health care providers,” Newman explained. “On the other hand it is when courts see the primary role of managed care as health care providers, torts and malpractice issues are more likely to be considered.”

The town meeting was conducted by Arthur Miller, J.D., the witty Harvard Law School professor and Court TV commentator. Others on the panel included Ruth Balser, Ph.D., the first psychologist in the Massachusetts House of Representatives; George Young, J.D., who brought the first court action to be filed under the new Texas law; and Randy Johnson, director of North America benefits and global health strategies for Motorola.

The APA has committed significant amounts of money to challenge alleged HMO abuses in three states – New Jersey, California and Virginia. The lawsuits look specifically at the practice of eliminating psychologists who advocate too strongly for their patients off provider panels, false advertising, utilization review process in which managed care firms are essentially making medical decisions, and unilateral rate reductions by HMOs,

Litigation, Newman and Young agreed, should be viewed as last resorts as “more like a surgical knife than a sledgehammer.”

Young said he looked at 14 possible lawsuits before he found one that he thought might have a chance in court under the new Texas law. So far, five suits against managed care companies have been filed. He later noted that he has had to talk many people out of filing lawsuits because they weren’t the kind that addressed issues outside contract law.

Judge Posnor said that his experience has led him to believe that in most lawsuits against HMOs, “there are no good guys and no bad guys. There are few white hats and black hats. I have to support the law, and that means the most deserving of plaintiffs often lose.”

He questioned the ability of the judiciary to decide health care issues when there are so many legal, human and scientific issues to consider.

Motorola’s Johnson said neither the courts nor the legislature should be making medical decisions. “The decisions must be made by health care professionals. But the decisions have to be evidence-based and not by legislative mandate.”

Newman acknowledged that employers should not be sued, but that they are because patients “can’t get to the responsible party.” He noted that the consensus bill in the U.S. House, which may be voted on in September, would exclude employers being sued if it was their managed care firms making medical decisions.

During audience participation, Stephen A. Ragusea, Psy.D., said that managed care has not improved the level of health care and has in too many cases taken away consumers’ right to select their own health care providers.

Young said ERISA has essentially resulted in a two-tier health care system. Those enrolled in health care provided by self-funded employers are shut out of any way to demand accountability. But since public employees are not covered by ERISA, they have more access to the courts to sue managed care for denial of care.

He also noted that managed care premiums have not increased in Texas because of the recent law allowing patients to sue HMOs. He said he had heard that HMOs were easing up somewhat on what treatments they will cover and there seems to be a decrease in the amount of paperwork providers have to complete.

Johnson vowed to work with the APA to identify those behavioral health models that would lead to the best possible system.

“As we improve our mental health services and as we find we have healthier people, we will compete better in the global economy,” Johnson said.

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