HEALTH CARE/Joan Retsinas

Lawsuit Mania

Twenty-first-century Americans aren't the first people afflicted with "lawsuit mania." The 19th-century Italian physician Cesare Lombroso coined the term to describe "a continual craving to go to law against others." We Americans, though, have a bad case of it.

We make the "ability to sue" a cornerstone of patient rights, a bulwark against the greedy HMOs 'R Us that say "no" too often to too many of us.

We trust in litigation, and litigators stand ready to meet our trust. Imagine the cable channel 60-second spot advertisements: "Has your HMO said 'no' to a bone marrow transplant? acupuncture? a consult with a neurologist for your headache? a prescription for that new medication your neighbor takes? Then call 1-888-SUE-THEM."

Until recently, patients could sue physicians for malpractice, but could not sue the health plans.

State legislators are changing that.

"Right-to-sue" legislation is the cause du jour. Four states (Georgia, Louisiana, California, Texas) allow it. Last year 40 states debated the legislation; and analysts expect 17 states to take it up this year. As for Congress, President Clinton has vowed to veto any "patients' bill of rights" that does not empower patients to sue their HMOs.

This is good news for tort lawyers. In fact, the Congressional Budget Office estimated that "right-to-sue" legislation would ultimately boost the costs of annual premiums by 4 percent as plans factor attorneys, court time, and settlements into their budgets.

This is not necessarily great news for patients. The essence of a malpractice suit is grievous and irreparable harm: Patients sue after the harmful act. In the most egregious cases, the patient dies. While a hefty settlement may assuage the family's anguish, it won't resuscitate the victim. Nor will a settlement restore a patient's damaged kidney, or brain, or limb. The damage, once done, is not easily undone. Otherwise, there would be no strong case.

Proponents believe that the threat of litigation will deter HMOs from saying "no" to procedures, tests, and medications that patients need. Certainly the threat of litigation will make plans reluctant to say "no" at all -- a factor likely to raise costs, but not necessarily quality. Every HMO's "no" is not dictated by costs: Conscientious plans often weigh decisions against clinical guidelines. Aetna, for instance, recently stopped paying for bone marrow transplants for breast cancer patients because the evidence did not show that transplants were more effective than traditional chemotherapy. A "no" does not always and inevitably mark malpractice.

Admittedly, patients do need protection from the HMOs 'R Us. And states have passed some measures that merit attention:

* External appeals. Fourteen states mandate an expanded external appeal process, so that the patient can question the HMO physician's decision before the "grievous harm" stage of litigation. The external appeal stipulates that the arbiter is not an employee of the HMO -- one of those conflicts that mock the notion of "impartial."

* Continuity of care. Nine states allow patients in selected instances to continue to receive care from their original physician, even if that physician leaves the HMO. In the other 41 states, a patient in the midst of chemotherapy may need to switch doctors if a doctor leaves the patient's HMO.

* Authority for physicians. Who decides what is "medically necessary?" The physician or the plan that employs the physician? Eight states give more power to physicians to determine what their patients need.

* Reimbursement for non-formulary drugs. Every plan has a formulary -- a list of drugs that the plan will reimburse; and physicians, cognizant of that formulary, try to stay within it. Sometimes, though, a patient would fare better with a drug outside the formulary -- but without insurance coverage, the patient often can't pay for the non-formulary drug. Ten states make it easier for patients to force plans to cover non-formularly drugs.

These are useful patient protections. Lawsuit mania, though, has obscured these more solid bulwarks against exploitive HMOs.

Joan Retsinas is a sociologist who writes about health care in Providence, Rhode Island.

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