San Francisco Chronicle - Thursday, June 21, 2001
Debra J. Saunders

Having an unresponsive low-level bureaucrat uphold a bonehead decision that is harmful to your health is, well, harmful to your health. U.S. Sen. John Edwards, D-N.C., tells the story of Steve Grissom, a Republican constituent who developed leukemia several years ago, then was treated with HIV-tainted blood. An AIDS-related lung infection required Grissom to take oxygen round the clock. When his wife's employer changed health plans, the new HMO stopped paying for his oxygen.

Both bills before the Senate provide remedies for what ails the HMO system - - it is too easy and cost-efficient for HMOs to deny care. The bill favored largely by Democrats and sponsored by Republican John McCain and Democrats Ted Kennedy and Edwards (call it McKendwards) and the bill sponsored by GOPer Bill Frist, independent Jim Jeffords and Democrat John Breaux (or Frifordeaux), largely favored by Republicans, would mandate independent review boards that would allow aggrieved patients to petition for the care they want. A board's decision would be binding for the HMO, but if a finding does not satisfy a patient, the patient could sue the HMO.

Grissom was forced to deal with oxygen-bill collectors and undergo a battery of tests, until his HMO saw the light. If either bill were in force, Grissom's HMO would have felt the real threat of an external review by medical professionals who believe in treating sick people. If that didn't scare the HMO, the threat of a lawsuit would. Grissom might never have had to fight his reputed health-care provider when he should have been directing all his energy to battle his leukemia, AIDS and the lung infection.

Both bills allow patients to sue their HMOs with no cap on economic damages. McKendwards would cap noneconomic damages (read: pain and suffering) at $5 million, Frifordeaux would set a $500,000 cap.

Either bill would improve on the status quo. The provisions over which partisans are arguing could be hammered out in one afternoon. Repubs want to limit lawsuits to federal courts (as they've been handled for years). Dems want to allow state suits too. Let states (like California) that already allow some suits to continue to do so, but don't expose federally regulated health plans to a new legal venue. Cap civil damages at $1 mil or so, attach an inflation rider, and both sides can tell their people they fought the good fight.

Meanwhile, I have a few words for my fellow Republicans.

First: It is conservative to insist that institutions deliver what they're supposed to deliver. HMOs should not be allowed to not treat people because it costs money.

Second: Bargain premiums are no bargain when sick people don't get needed treatment. Too many Republicans say they oppose the McKendwards bill because it will drive up health-care costs and doom more Americans to be uninsured. Be still my stomach. The Congressional Budget Office figures the Frifordeaux bill would increase insurance premiums by 2.9 percent, compared to 4.2 percent under McKendwards.

Third: Enough with "frivolous lawsuits."

Asked how often he takes on frivolous cases, San Francisco attorney Jim Bostwick answered, "The only time I do that is when I need my head examined. The entire pure economics of this business drives you from taking anything but the clearest cases."

Take a more libertarian view: More lawsuits mean less government as the fear of lawsuits is the market's way of improving corporate behavior, which reduces calls for more regulations.

Without a federal bill, the economics make it too easy for HMOs to deny care. The Senate has before it two bills that would change the equation. I understand senators of both parties want to preen on C-SPAN; the Dems want sick people to know they care and Repubs want businesses to know they're fighting to keep premiums down.

Enjoy your camera time, senators. Then pass a good bill. E-mail Debra J. Saunders at dsaunders@sfchronicle.com.

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