The Downside of Accountability

Many adventurers wandering through the forest of health care reform find themselves much akin to Goldilocks. They are looking for solutions that are not too hot and not too cold. Unfortunately, many of the answers being offered aren’t just right.

Such is the case with those trumpeting unbridled litigation as a way to resolve disputes with managed health care plans. These zealots steadfastly wager that only through more stringent judicial accountability can consumers be assured ultimate salvation. Although such a position easily seduces its sorority of cheerleaders, the reasoning behind it is alarmingly shortsighted and, if followed, would create an undertow of unwanted results. Among these could be smaller provider networks, greater health plan involvement in medical decisions, increased premiums, more uninsured and continued erosion of trust in our nation’s health care system.

For the past decade, consumers have been relentlessly urging health plans to construct the largest networks possible--more doctors, more hospitals, more choices for care. Bigger is better and biggest is best. Just as small market teams in sports find it increasingly arduous to compete, small network health maintenance organizations are soon buried by plans aglow with thousands, if not tens of thousands, of doctors from which members may choose.

Once these contracted networks are assembled, consumers demand that plans “remove themselves” and delegate all delivery of care decisions to the doctors and their medical groups. In fact, every step health plans have taken to remain engaged--from the establishment of drug formularies to utilization review boards--has been viewed as an unwanted encroachment on the hallowed relationship between patient and physicians. Mattering little that substantial evidence supports such interactions as actually increasing care and promoting wellness, such efforts have fostered a lingering, uneasy resentment among members.

These same people argue that health plans should be held legally accountable for every action taken in any corner of the plan. If care is denied and the member suffers as a result, the HMO should be liable. If care is given but later deemed to have been inappropriate, the HMO should be liable as well. Beyond the inherent contradiction in demands, what do you think would happen, given such a state of affairs? Networks would shrink--it is easier to oversee 500 than it is 5,000 physicians--and health plans would become more directly engaged in all decisions. The exact opposite of what the public wants.

If plans were liable for decisions made by any one of thousands of contracted physicians, it would create a chilly atmosphere that would encourage attorneys and their clients to, like Ahab, turn every minnow into a whale: Every dispute would become an opportunity to petition for large financial damages.

In self-preservation, health plans would do what you or I would do--and what physicians have been doing through increased malpractice insurance: They would increase their professional liability coverage.

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Such action could translate into higher premiums to employers through whom 64% of non-elderly Americans receive their health insurance. This increase might, in turn, cause some employers to drop coverage, and that would lead to even more uninsured (every 1% raise in premiums results in 40,000 Californians losing their coverage). Already, 7 million Californians are uninsured, and it is predicted that 53 million to 60 million non-elderly Americans, or one-fourth of the population, will be uninsured by 2007. Ultimately we all pay both financially and morally as this societal tragedy proliferates absent strong public policy regarding the unalienable right to health care.

Perhaps understandably, the issue of liability has taken center stage recently in wake of the $100-million-plus judgment against a California health plan. But a comprehensive study by the renowned Kaiser Family Foundation reports that members’ ability to sue their HMO ranks only fourth in consumer concerns, behind ability to access a specialist, a fair system of independent review and easier access to emergency care.

This is strikingly significant because it points out another drawback of a reliance on litigation: the ticking clock. Patients must get the care they need today, not after a lengthy legal dispute. Litigation may serve attorneys and family members tomorrow, but for someone deprived of care and treatment, a two- or three-year wait for adjudication is too little, too late. The public understands this, which is why many people favor other forms of health plan accountability, such as external review, as far more responsive.

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Public trust is sadly missing from much of our nation’s health care system. Encouraging litigation won’t build trust, it will diminish it. Other than trial lawyers, no one likes to go to court or wants to transform every dispute into a cumbersome, combative and costly lawsuit. Litigation carries with it an aroma of distrust and is the quickest way to stamp “canceled” on any effort to build confidence and understanding.

Some managed care reform should be embraced, and many items contained in a proposed patients’ bill of rights are to be applauded. If the proponents of litigation believe they have a strong case to make, let’s have an intelligent debate about that as well. But let’s not blindly march through the woods on a road cobblestoned with rhetoric and unintended consequences. For when weighing all of the arguments, we just may find that extended liability for HMOs falls far short of consumer expectations and is not the best way, after all, to assure that all of us live happily ever after.