Congress Can Cure This

An earthquake shattering the foundations of more than a dozen state right-to-sue laws -- that’s how some trial lawyers denounced the Supreme Court’s ruling Monday that patients cannot take their HMOs to court over treatment denials. The ruling, however, is more of a distraction than a convulsion. Far from calling for a constitutional prohibition on the right to sue HMOs, the justices merely clarified that a law passed three decades ago by Congress, called ERISA, bars states from authorizing such litigation.

The ruling has reignited an old and polarizing debate over which Americans should be allowed to sue their managed care companies, and for how much, when treatment is wrongly denied. In so doing, it has obscured the question that should matter most: What can government do now to ensure that patients get timely, competently delivered, medically necessary care in the future?

California, Texas and other states tried to tackle the problem on their own in the late 1990s, passing laws setting up independent medical boards that patients could appeal to after their insurers denied them care recommended by their doctors. By casting new doubts on states’ regulatory authority, the ruling should force Congress to fix the mess it created when it passed ERISA in 1974.

To begin addressing the underlying issues, members of Congress, as well as the presidential candidates, need to first acknowledge that all Americans should have access to a basic, core package of medically necessary benefits, such as the one that the nation’s two largest public health programs, Medicaid and Medicare, already define.

Congress is wrestling with a variety of proposals seeking to create a patients’ bill of rights. Many of them, such as a new bill from Sen. John D. Dingell (D-Mich.), hinge on amending ERISA to address a fundamental unfairness. ERISA gives the president, members of Congress and some other government or church employees the right to sue their health plans in state courts, but denies that right to patients insured through private employers. The Dingell bill would let patients sue for unlimited damages. But lawsuits, permissible or not, are an arbitrary and inefficient way of encouraging the ideal practice of medicine.

Congress should consider regulatory alternatives, such as the independent medical review boards that California set up in the 1990s. The state gave teams of medical specialists the power to mediate disputes about denial of treatment.

The right to sue may always be a hallowed privilege in America. But suing does nothing to help patients get what they need most: timely, competent, medically necessary care.