Patients Are the Losers When Medical Practice Is Free of Liability

Imagine entrusting your life to a doctor who can do whatever he or she wants without concern for the consequences. Would you submit to surgery by the hands of someone who could never be sued for making a wrong cut? Most of us cringe at the idea, because we want our doctors to be accountable for what they know, what they do, the decisions they make, the effects they have on our bodies.

When I was a medical director working for a managed care company, I used to worry about the decisions I made. My job, as the company doctor, was to decide what patients could and could not have, and what their physicians could and could not do. This is what the industry calls making “medical necessity” determinations. I had the final medical word. Call it what you will, couch it in whatever language you want, it simply means that I practiced medicine on patients I never saw, touched or heard.

This troubled me. There were areas of medicine that I did not know about. Even if it was an area of my own knowledge and expertise, I rarely had enough information to make good decisions. Keeping numbers low defined the success of my job. That meant denials--surgeries, admissions to the hospital, additional days once there, X-rays, lab tests, visits to specialists. And when I denied a service or procedure that a treating physician requested, I did not have to look into the eyes of a frightened, suffering patient whose very life might depend upon the medical need I withheld with the stroke of a pen.

Who watched the medicine I practiced? No one, I discovered, not even lawyers.

Early into this work, I received a call from a physician seeking authorization for surgery for cancer in an elderly patient. At first, I approved it. However, my supervisor--another physician--reprimanded me for this, telling me that it was clear that the man was old and was nearly dead from his cancer. Surgery would do no good. I should have denied this.

I made many kinds of arguments against this kind of thinking, including a concern about my liability when the man died. The other doctor’s response stunned me. He said: “We don’t have to worry about that. HMOs and company doctors can’t be sued for malpractice. We have a shield called ERISA.”

So I learned early into my work that ERISA was the magic term.

I had left my managed health care insurance jobs and was enrolled in law classes before I discovered that “ERISA” refers to the misleadingly titled Employee Retirement Income Security Act, a 1974 federal law that prevents nearly 125 million Americans from collecting damages for denial of medical treatment that results in death, injury or economic loss. ERISA allows people to recover only the benefits they were entitled to in the first place. For example, if they were denied an MRI test that would have diagnosed their cancer, and then died for lack of treatment, their families would be entitled to sue only for the cost of the MRI.

Little wonder then that health plans can, with no regard for effects on patients, send a patient to a substandard facility or to an incompetent physician; deny or delay access to necessary specialists or treatments; write ill-founded medical guidelines and hire non-medical persons to apply them, and pay physicians in ways that cause him or her to deny or limit care.

These are just some of the ways money is saved at the expense of life and well-being of real people. With ERISA protection, health plans and medical directors never have to confront their patients. They never have to account for the consequences of their medical decisions. If any decisions result in harm or death, so be it. Patient lives and experiences are “just anecdotes,” just the price of doing business. And to compound the indignity, they take the patients’ own premium money to cover up their acts with self-promotional public relations campaigns.

In my current work as a health care consultant, I review plans and patient experiences every day. Even with my inside knowledge about how HMOs work, I continue to be surprised at what is done to unsuspecting patients by unregulated, cavalier, negligent health plans. Incompetent, cruel medical directors. Cold, calculated elimination of expensive patients. Employees with little more than high school education making complex, urgent medical decisions. You name it, I have seen it. Nothing in any patient protection bill yet proposed, except ensuring that patients have the right to sue managed care plans, will prevent these unconscionable acts of violence against patients.

Let’s be honest: The heart of managed care is the practice of medicine by corporations and their company doctors. Their distance from the patient does not mute the damage done when their medical decisions are negligent, dangerous or simply ignorant. To continue to allow them to practice behind the ERISA shield is like giving our physicians the freedom to do, or not do, whatever they want, with no recourse against them for our harm or death. Surely we will not continue to be that foolish.