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Patient Bill of
Rights - Q & A
from Tricia Luker
For more articles visit
www.bridges4kids.org.
Question:
I was under the impression that it is impossible to sue
insurance companies and that is one reason why legislators
were pushing for a patients bill of rights. Is this
true?
Answer:
Insurance law typically is regulated by state contract law
rather than by federal law. If health care insurance is
provided by an employer, federal law does apply. The problem
is that state and federal law now look at health
insurance questions from a purely economic position. The
insurance contract promises payment for "approved" medical
care and services. If recommended services are provided
and the insurance company refuses to reimburse for those
services, the measure of damages under contract law is
the cost the family paid out of pocket for those services.
The real
problem comes when insurance companies refuse to authorize
prescribed medical care or services and the person either does
not receive the services or encounters a delay in receiving
the services while finding other means to pay for them. As
things currently stand, most if not all state and federal law
would not allow families to sue insurance companies for the
human damages the individual suffered while delaying or being
unable to obtain the prescribed medical care.
Consider these
examples. A man cuts his leg with a chain saw and goes to the
nearest hospital, hospital A for treatment. The bleeding is
stopped, (he is medically stabilized) but the hospital refuses
to do more because the insurance company has refused to
authorize payment because the hospital is not part of the
insurance companies care network. The insurance company tells
hospital A and the family that the insurance company will
authorize and pay for treatment at hospital B. The patient's
family take the patient from hospital A to hospital B, but by
the time hospital B can give the leg more attention the damage
has been done and the leg must be amputated.
The man has no
right to sue the insurance company for the loss of his leg
even though its obvious that the delay created by the
insurance companies refusal to authorize hospital A to fully
treat the leg caused its loss.
Another
example we have heard of is an OB/GYN ordered newborn
screening for an infant who was perceived to be at risk for
rare disorders. The insurance company refused to authorize or
pay for the newborn screening tests.
The family
chose to pay for the tests themselves and they were performed,
however there was a several day lag between the date the
doctor prescribed the tests and the date the family authorized
and paid for them. The delay was due to the insurance
companies processing time and ultimate rejection of the
prescribed testing. The newborn screening disclosed a rare
disorder which could have been treated if disclosed in time.
The tragedy, however, is that the newborn screening test
results came back two days after the infant died. The family
had no right to sue the insurance company for the infants
death.
In the food
example, given below, thankfully the family was able to pay
for the prescribed medical food, and does stand some chance
way down the road of recovering the cost of the prescribed
food from the insurance company. But what if they couldn't
afford to pay for the food and therefore had to give their
child regular food, which harmed or perhaps even killed the
child. Under most if not all state and federal law the parents
would not be to sue the insurance company for the damages the
child suffered while being forced to eat unhealthy food while
access to the prescribed medical food was being wrongfully
denied by the insurance company.
These examples
help show the box that families -- and their physicians -- get
stuck in when dealing with insurance companies. The insurance
company controls the economics of medical care and makes
decisions - often against medical advice -- to reject
proposed or prescribed care based on economic rather than
human considerations. The insurance industry can afford to
limit its consideration to purely economic issues because it
knows that current laws insulate it from having to answer in
court for the human tragedies its economic decisions produce.
This is why we can not stop until we have a strong patient
bill of rights that creates a federal right for families to
sue insurance companies for the human costs of the industries
economic decisions.
We have found
that physicians and other medical professionals are among the
key supporters of a strong patient bill of rights. This is
because the medical professionals are exposed to malpractice
suits by families
who -- through no fault of the physician -- suffer human
tragedy because the physicians prescribed treatment was
rejected by the insurance industry.
The physician
has no right to sue the insurance company for the damages that
might be assessed against the physician in those cases. The
system as it presently stands leaves families fighting doctors
over outcomes that both the families and the doctors worked to
prevent, only to be stymied by insurance company rejections.
As the message
below emphasizes, we all must take advantage of every
opportunity to challenge erroneous or incorrect insurance
company payment decisions, even though these fights are taxing
to the families human spirit and difficult to carry through to
the end. The companies control the process and in many
instances also control the ultimate decision. But we cannot
lose sight of the greater injustice of being forced to settle
for economic or no damages for outcomes created by arbitrary
and capricious insurance rejections. Many members of
Congress know about these types of stories and support a
strong patient bill of rights that gives legally empower
families to sue insurance companies for non economic damages.
Our Michigan Senator Debbie Stabenow has a assumed key role in
trying to enact a strong patient bill of rights. We
believe it is essential that the millions of American families
who have children with special needs support the legislation
advanced by Senator Stabenow and others that will lead to
strong federal laws that elevate people above money when
medical care and treatment is the issue.
I am pasting a
link below that you can connect to and email your legislators
from this link -- you can even click one button and your email
will go to all members of Congress. Please write your
legislators and let them know you support a strong patient
bill of rights and share your stories with them. -- And let
Senator Stabenow know too that you appreciate her efforts.
Tricia Luker
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