Patients' Rights: Delay or Veto

Bob Dardinger lost his wife to cancer when his HMO refused to pay for special chemotherapy her doctor ordered. He sued. In 1999 a jury awarded Dardinger $51 million. An appeals court later allowed only $2 million to stand. Dardinger is appealing to the Ohio State Supreme Court. Most of us can't sue our HMOs -- something that would be corrected by the patients' rights bill currently stalled by House Republican leadership. Dardinger could sue because he was a teacher, and his benefits are delivered through the state of Ohio. A Gallup poll conducted earlier this month showed that two-thirds of Americans think there's a need for major changes or an overhaul of the HMO system. An earlier poll showed that the public supports a patient's rights bill by a margin of 5 to 1, with 44% supporting the version advocated by congressional Democrats. Why then did the Republican leadership move to delay a vote on the bill until after Labor Day?

The short answer is that they didn't have the votes for the version they want. Speaker of the House Dennis Hastert told the New York Times it was his "intent" to hold the vote next week, but observers are skeptical. Democratic and Republican versions of the bill both grant a range of rights to patients covered by health insurance. Republicans and the Bush administration object to the wide latitude to sue insurance companies that is part of the bipartisan bill backed by Democrats, which has already passed the Senate. The measure is extremely popular with the public, however. Bush and the Republicans would likely suffer political damage if he had to follow through on his threat to veto the Democrat-backed bill. But the Republicans already look obstructionist by delaying a vote while trying to shore up support for their position.

Bush met on Thursday, July 26 with Representative Charlie Norwood, leading Republican proponent of the bipartisan Democrat-backed bill in the House, but failed to reach a compromise. Norwood and other supporters of the bill complained that the administration proposal retained unacceptable provisions of a 1974 law making it difficult for patients to sue insurance companies for neglect, fraud, and wrongful death. North Carolina Senator John Edwards summarized the situation. "The president's proposal is a step in the right direction, but it is seriously flawed and probably unworkable. We started with the fundamental principle that if HMOs overrule doctors and make medical decisions, they should be treated exactly like doctors. But the president's proposal maintains the privileged status of HMOs."

Adding to the pressure on congressional Republicans is the fact that, although Bush is not up for re-election next year, many members of congress are. Democrats didn't waste the opportunity to score political points earlier this week, as they stood in front of a giant photograph of a hospital emergency room and declared that Republicans had stranded patients in a waiting room by delaying the vote. Representative Martin Frost, Democrat of Texas, said "By postponing this week's vote, Republican leaders have ensured that HMOs and insurance companies, not doctors and patients, will continue making medical decisions."

Some observers see the patients' rights measure as emblematic of the struggle to control the congressional agenda. Since Democrats took control of the Senate last month, the administration has relied on House Republicans to advance its agenda. But unlike the tax cut and education bill, Republicans are not united in support of the remaining Bush domestic agenda. Some House Republicans are expected to side with Democrats next week when portions of the Bush energy program are considered, including a proposal to drill for oil in the Arctic National Wildlife Refuge. Other issues that will present a dilemma for the administration and its supporters include Medicare prescription-drug benefits, a proposed increase in the minimum wage, and hate-crimes legislation. Senate majority leader Tom Daschle plans to introduce each of these in the fall, forcing a choice between measures that are popular with the public, and party platform, ideological, or campaign positions.

Like the latter items, the choice forced by the patients' rights bill will also highlight Bush as beholden to his big business contributors -- in this case the insurance industry. In the 2000 election cycle, the insurance industry contributed over $26 million to Republican candidates, twice as much as to Democrats. Since 1990, insurance industry contributions to Republicans exceeded $96 million in roughly the same proportion. Top insurance industry contributors included HMO operators Blue Cross/Blue Shield, Prudential, and Cigna, among others. During the campaign, health care was considered a potential test for Bush's theme of compassionate conservatism. 25% of Texans did not have health insurance in 2000 -- one of the highest uninsured rate in the country. Bush's health policy team during his campaign included several people with ties to the insurance industry.

  • Deborah Steelman, a lobbyist representing clients such as Aetna/US Healthcare, Prudential, and Cigna. In 1999 as a member of the National Commission on the Future of Medicare, Steelman advocated a plan in which government funds would be used to help seniors pay for private, predominantly managed-care, health plans. At the time Public Citizen accused her of a conflict of interest by representing clients who had a stake in the outcome of issues under consideration by the commission.
  • John Goodman, president of the National Center for Public Policy, a conservative think tank. Goodman is a major proponent of medical savings accounts (MSAs). MSAs allow people to set aside tax free funds for health car expenses so that it is only necessary to purchase insurance for catastrophic illness or injury. MSAs are popular with the insurance industry, but critics contend they will drive up health insurance premiums, since only sick people will buy them
  • Dr. William Roper, who ran the Medicare and Medicaid programs under "Poppy" Bush's administration. He was also a senior vice president of Prudential Health Care.

Even given these contributors and advisers it's not clear why Bush would risk the political fallout from preventing a vote on the patients' rights bill, much less vetoing it over limits on the right to sue. Although it passed without his signature, Texas has one of the strongest patients' rights laws in the country -- a fact Bush proudly pointed out in one of his debates with Al Gore. As of June 21, only 10 lawsuits had been filed in Texas against HMOs. In California, which has had no limits on damages in suits against HMOs since January, there have been no lawsuits filed during the same period. Still, tort reform will be remembered in Texas as one of the lasting effects of the Bush governorship. Columnist Molly Ivins declared it to be Bush's "sole legitimate claim to be a 'reformer with results." The stance on tort reform presents an interesting contradiction, however. As pointed out earlier this year, Bush's penchant for deregulation and free markets stops when it comes to allowing citizens to use the justice system for redress of grievances against corporations.

"The jury is the last line of defense against corporate misconduct," says Craig McDonald, director of the Austin-based public interest group Texans for Public Justice, which monitors the influence of money on politics and the courts. "The corporations are most afraid of 12 people they can't control." Indeed, it is the fear of punitive damage awards by juries that has traditionally inhibited corporate misconduct. Corporate PACs and lobbyists have already severely weakened the public counterbalance provided by legislators, regulators, and judges, says McDonald, leaving only the independent juries. But unlike regulators, legislators or judges, juries can't readily be intimidated, lobbied, elected or bought....


Hollingsworth, Holly "HMO suit headed to Ohio Supreme Court" 7 Jul. 2001

Pear, Robert "G.O.P. Postponing House Vote on Patients' Rights" NY Times26 Jul. 2001

Mitchell, Alison "Rough Ride in House: G.O.P. Hustles on Patients' Rights" NY Times 27 Jul. 2001

Pear, Robert "Bush Gives on Patients Bill, but Democrats Want More" NY Times27 Jul. 2001

Ivins, Molly "Executions and HMOs" Creators Syndicate 21 Jun. 2001

King, Michael "Jury Tampering: The Legacy of Texas 'Tort Reform' Comes to Washington" 8 May 2001