Responsibility for Medical Decisions

By: The Mystic | 22June2001

Medical Decisions If you are like most Americans, your doctor doesn't make all your medical decisions. This is old news. As of this moment, those who do make those decisions --persons who probably have no medical training at all -- are not held accountable if they screw you over as are most other businesses with low-quality goods or services. This is bad news. The problem began when the cost of health care outpaced inflation to the point where most citizens could no longer afford it. Huge, costly strides in medical technology were taken, and the price of malpractice insurance went through the roof. These all make a visit to an MD an expensive proposition. Doctors can now keep terminal patients alive a lot longer (and this is considered a good thing) and they can literally bring people back from the brink of death, but if the patient who needs medical attention can't afford to pay for it, it does him/her little good. This is why there are Health Maintenance Organizations and other medical insurance providers. These days, an intelligent job hunter will consider the medical benefits of a job offer as much as s/he will consider the paycheck. Notice that insurance companies that controlled the cost of malpractice insurance became the entities in charge of health care. Perhaps that's just a coincidence! Consider what happens if Jane Doe develops what we call a Difficult Condition, maybe an illness that doesn't have a hard and fast cure. Every step of her treatment -- the doctor she sees, the specialist to which she is referred, the medications she tries -- has to be approved by an insurance company. If Jane Doe learns about a doctor who has lots of experience treating her Difficult Condition, but isn't part of "The Plan", her insurance company may compensate her less for seeing him/her, or not at all. If Jane Doe, having experienced conventional treatment, thinks her best chance to get well would be to pursue unconventional treatment, it may be outside The Plan, and she might not be able to afford it. Faceless insurance executives who set policies based on the bottom line are in charge of Jane Doe's quality of life... maybe even whether she lives or dies. When Jane Doe -- a member of a health plan that is supposed to keep her well -- seeks an effective treatment that her insurance provider won't approve, and her Difficult Condition becomes worse, who is responsible? Purpose of Civil Suits The purpose of criminal law is to punish acts which are disruptive of social order and to deter other similar acts. The purpose of civil law, on the other hand, is to settle disputes between individuals, whether private persons or businesses. A civil court may order a party that injures another to do or stop doing certain acts. It may also award a judgment against the party that injured another, in effect making them financially responsible for their actions, and ordering them to pay the injured party. Financial judgments also serve as a deterrent, perhaps even more than a court order. If a manufacturer or service provider knows it might be obligated to pay customers injured by shoddy products or services, it is more likely to provide good service. Those that complain about the cost of large monetary judgments usually have only their own lack of quality to blame. HMOs Lack of Responsibility The problem is not that HMOs and other medial insurance providers can't be sued; they can. The problem is where they can be sued, and how easily. Under current conditions, patients generally have to exhaust their rights to administrative appeals before they can sue for medical treatment the provider doesn't choose to provide. Under current conditions, when HMOs are sued in state court, they argue that they have no liability because of a 1974 federal law on employee benefits. Before the US Senate, there is a "patient bill of rights" which would guarantee patients a wide range of rights: access to emergency care, medical specialists and clinical trials of experimental drugs. It would also make it easier for patients to sue health maintenance organizations and other providers that improperly deny claims for benefits because wronged patients would be able to go directly to court to get benefits fulfilled if they can show they would suffer "immediate and irreparable harm" while pursuing a long and arduous administrative appeal process. The bill also says employers may not be sued for decisions on claims for benefits, unless they have "direct participation" in decisions that cause injury or death. Democrats (with a preponderance of civil suit attorneys among their supporters) say the bill will transfer decision making to doctors and nurses from insurance company clerks. Republicans (supported by insurance companies) say that making insurance companies responsible (liable) for their actions would prompt employers to stop providing health benefits to their workers. Dubya's Stand George W. Bush, of course, stands firmly on the side of the big corporations who paid for the campaign that got him in power. Dubya is threatening to veto the bill because employers should be shielded from "frivolous lawsuits." He says the measure would encourage unnecessary lawsuits and drive up the cost of health insurance. "The president believes that patients should be given care first -- litigation should be the last resort." Dubya claims the bill "could cause at least four to six million Americans to lose health coverage provided by their employers." In other words, Dubya is backing up his threatened veto with precisely the lines that were handed to him by the insurance industry. This shouldn't come as a big surprise. Dubya may owe the Florida election workers who disenfranchised so many minority voters. He may owe a few Supreme Court justices who pulled off an openly illegal decision. He apparently knows he owes corporate America who proved that any village idiot with a little charm can be made president, with enough financial backing. But Bush doesn't owe consumers of health care to see that they get proper treatment. Bush doesn't owe private citizens anything. He knows -- and so do we -- that private citizens never elected George W. Bush in the first place.

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