Bush Turns His Back on Fight for Patients’ Rights

M. Gregg Bloche teaches law and health policy at Georgetown and Johns Hopkins universities and is at work on a book about conflict between medicine's therapeutic and public purposes.

Four years ago, then-Gov. George W. Bush cast himself as a champion of patients’ rights. Pressed by Al Gore in their final presidential debate on whether patients should be allowed to sue health plans for wrongfully withholding care, he pointed to a pioneering Texas law passed on his watch. “I brought Republicans and Democrats together

But President Bush, it seems, has changed his mind. The Texas law he championed is now before the U.S. Supreme Court, and this week the administration will ask that the justices strike it down. More broadly, the administration will ask the court to abandon a body of recent precedents that expose the managed-care industry in many states to negligence suits for withholding of coverage and care. Legal accountability for denying coverage, it contends, could prevent the creation of “innovative health plans.”

At the center of the dispute is a 30-year-old federal law, the Employee Retirement Income Security Act, or ERISA, enacted to safeguard workers’ fringe benefits. Because the vast majority of Americans younger than 65 obtain their health insurance through the workplace, the law applies to nearly all private medical coverage.

Because ERISA nullifies state laws that conflict with it, health insurers try to use it as a shield against state laws they don’t like. Above all, they dislike being sued for damages when they deny coverage. In the early 1990s, some lower courts accepted health insurers’ claim that ERISA bars such suits in state courts. Because ERISA lacks an alternative tort remedy, health insurers were thereby insulated from damage suits.

But that outraged consumer groups, doctors and public officials who demanded accountability for managed care. Texas and nine other states, including California, passed “right-to-sue” laws to get around the ERISA shield. Meanwhile, federal courts, beginning in the mid-1990s, chipped away at insurers’ ERISA protections.


Then, four years ago, the Supreme Court weighed in, asserting that because HMO coverage decisions involve medical judgment, ERISA doesn’t shield managed care from suits filed in state courts. Because healthcare is “a subject of traditional state regulation,” the court said, coverage decisions that entail medical judgment are fair game for malpractice suits. Lower courts read this statement as a directive to end managed care’s immunity from suits charging wrongful denial of coverage. In the case the justices will hear this week, Aetna vs. Davila, the 5th Circuit Court of Appeals relied upon the Supreme Court statement to uphold the Texas law championed by candidate Bush but now targeted by his administration.

Managed-care lawyers claim that the Supreme Court’s statement four years ago applies only to clinical decisions made by physicians who both provide care and act as treatment gatekeepers for health plans. Medical judgments made by plan employees who aren’t hands-on caregivers, they argue, should be immune from suits, despite their decisive effect on coverage and care.

By backing this claim in the current case before the Supreme Court, the Bush administration has given new life to insurers’ quest to restore their lost immunity. Its intervention -- administration lawyers filed a brief and will share time with managed-care lawyers at Tuesday’s oral arguments -- jeopardizes the survival of managed-care liability laws in Texas, California and elsewhere.

What’s at stake in managed care’s bid to regain its immunity? For one thing, there is the risk of a return to cost control on the sly, through the promise of all “medically necessary” care but the provision of less without fear of legal consequences. Legal accountability pushes health-insurance plans toward honesty about how they go about saying no to treatment requests. This, in turn, forces patients and physicians to confront hard choices between rising costs and the sacrifice of clinical benefits.

For health plans, cost control on the sly is an unhappy long-term proposition. Exposure of gaps between what plans promise and what they deliver is inevitable, as the consumer backlash against managed care in the late 1990s showed. That protest gained strength despite the industry’s malpractice immunity. Press coverage, legislative hearings, political speeches and even movies and TV spotlighted (and caricatured) stingy HMO bureaucrats. Americans responded by abandoning managed care -- or, more commonly, pushing their employers to do so.

Health-plan immunity from damage suits for denying coverage would fall especially hard on the least well-off. Consider two patients, one without savings, the other wealthy. Each is told by her doctor that a $75,000 breast-cancer treatment could save her life. If her HMO refuses to authorize the treatment, the well-off patient can pay for it herself, get care, then sue the HMO (under ERISA) to recover the treatment’s cost. But unless the patient without savings takes extraordinary measures -- say, a fund drive at work or in her community -- she won’t be able to afford the treatment out of pocket. She’ll thus go without -- and be barred from suing her HMO for the consequences.

The Bush administration’s legal argument for restoring managed care’s immunity would make acceptance of this unfair result explicit. HMO-coverage denials aren’t medical decisions, the administration contends, because patients can pay for treatment with other funds. Most people, though, can’t pay out-of-pocket for hospital care -- or even for pricey outpatient therapies. Acknowledging that coverage decisions dictate treatment for all but the wealthiest forces the conclusion that coverage denials are medical judgments, for which HMOs can be held accountable under state law.

There’s a case to be made against looking to medical malpractice suits when managed care yields bad results. Our tort system rewards some injured patients handsomely, in nearly random fashion, while leaving the vast majority with nothing. This makes for Russian roulette for doctors, hospitals and health insurance plans -- and no assurance that injured patients will be made whole.

But if we get rid of lawsuits, we need a substitute, short of immunity, to ensure that health plans honor their coverage obligations. National debate about how to balance medical care’s benefits against its costs -- and how to maximize quality of care within limited health plan budgets -- is urgently needed.

Researchers have developed a variety of quality-control measures, monitoring methods and other ways to achieve accountability for care and coverage decisions. Courts, regulators and buyers of medical coverage have been slow to take advantage of them. There’s much that the federal government could do to encourage their use -- and to make trade-offs between cost and quality more visible.

But instead, the administration is trying to shield health plans by stealth from accountability for denying coverage.

Were Bush to propose publicly that Congress immunize HMOs from suits for withholding care, there would surely be a firestorm of public anger. But his administration is on the verge of achieving the same result from the Supreme Court, almost without notice, veiled by the arcane language of the law.