Senate ponders two patients' rights bills

By From Rea Blakey
CNN Medical Correspondent

WASHINGTON (CNN) -- Nearly half of all Americans "trust" congressional Democrats with a patient's bill of rights, while about one-third say they trust President Bush, according to a Gallup poll.

And while some 170 million Americans have private health insurance, both Congress and the White House agree they should have a patients' bill of rights, too.

"The bottom line is creating more power and putting the law on the side of patients instead of on the side of the big HMOs and giving them a way to enforce that right," said Sen. John Edwards, D-North Carolina.

According to the Gallup poll, 80 percent of respondents said a patients' bill of rights is very important to them. Proponents of such a bill say such legislation is needed to give patients the right to sue their insurance company for what they view as bad coverage decisions.

The Senate is considering two bills, similar to bills in eight states. Both Senate bills call for the creation of independent panels to review HMO decisions denying care. Beyond that, the similarities end.

A bill sponsored by Sens. Bill Frist, R-Tennessee, James Jeffords, I-Vermont, and John Breaux, D-Louisiana, calls for exhausting of the review process before a lawsuit can be initiated. Such a suit would have to be filed in federal court, and pain and suffering awards would be capped at $500,000.

Under their bill, there would be no punitive damage awards.

A competing bill, drafted by Sens. Edwards, Edward Kennedy, D-Massachusetts, and John McCain, R-Arizona, would allow patients easier access to courts, even if the independent review process has not been exhausted. Their cases could be heard in federal court, or in state court where jury awards tend to be higher.

The competing bill also would not place a cap on pain and suffering awards, and punitive damages up to $5 million could be meted out.

Health providers are concerned about the Edwards-Kennedy-McCain legislation.

"Where we have concerns with McCain-Kennedy is in the area where the sub-text says, 'If you have a problem, get a lawyer,'" said President Karen Ignagni of the American Association of Health Plans. "And in the malpractice arena, the safety arena, everything we know in health care -- that is the wrong direction."

Opponents say the Edwards-Kennedy-McCain legislation will inflate health-care costs and cause some businesses to stop offering health insurance to their employees. "I believe that the Kennedy bill leans toward protecting trial lawyers not protecting patients," Frist said.

Trial lawyers counter by arguing that fewer than 20 lawsuits have been filed in states where patients' rights laws have been passed. That includes Texas, which enacted such legislation in 1997.

There is already talk of a veto in this showdown between the Senate and the White House. President Bush maintains the Edwards-Kennedy-McCain version would increase insurance premiums. According to a report from the Congressional Budget Office, enactment of Edwards-Kennedy-McCain would increase insurance premiums by 4.2 percent after five years. The Frist-Jeffords-Breaux bill, the CBO estimated, would boost premiums by 2.9 percent after five years.

But other advocates respond that those figures don't represent much beyond a typical raise in premiums. This year, they say, premiums increased by an average of 8 percent from last year.

"When the managed care companies increased their premiums to pad their profits, they're stone silent," said Ron Pollack of Families USA.