Editorial: Patients harmed by federal law

In an effort to prevent expensive litigation, Congress passed a law in 1974 that made health plans virtually immune to lawsuits. Twenty-five years later that immunity has become one of the key sticking points that has prevented the passage of a patient's bill of rights, with many contending that those harmed by an HMO's denial of benefits should be given the right to sue their health insurers for actual and punitive damages. President Clinton and Democrats in Congress have insisted that the right to obtain damages be part of any reform package, but the insurance industry and most Republicans in Congress are fighting this.

While this battle continues in Congress, the New York Times reported last week that attorneys are finding some judges receptive to using novel approaches, discovering loopholes that allow some lawsuits against insurers. For instance, a U.S. District Court in Illinois earlier this year ruled that a woman could sue her health plan on the allegation that the plan's nurses failed to diagnose her husband's cardiac distress over the phone. The nurse taking the call told Kelly Crum's husband that the pain in his chest was likely the result of "excess stomach acids." Only a few hours after being told this, Gary Crum died of a heart attack. While she can't sue for a denial of benefits, the court decided she could use the state's wrongful death statute to sue the health plan.

There are at least 14 other states in addition to Illinois where lawsuits are going forward against HMOs using this and other approaches, according to the Times. While it is promising to see that judges are willing to allow some limited legal avenues to hold HMOs accountable, the reality is that unless you find the right judge in the right state, in all likelihood you're going to be shut out of getting compensation. Instead of relying on this legal roulette, when Congress returns from its August recess it should pass legislation giving Americans the right to sue their HMOs if they've been harmed. Otherwise HMOs will be allowed to carry on as they have been, with some placing profits over patient care when making medical decisions.

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