In a statement to the Subcommittee on Health and Environment of the House Commerce Committee, the Health Insurance Association of America (HIAA) discussed issues related to consumer protections in the health care industry, liability among them. The HIAA stated that legislation encouraging litigation in the health care arena would allow consumers to not only sue their physician for malpractice, but pass liability for medical outcomes onto health plans and third party administrators. They claimed that litigation is not a way to improve quality of care, and punitive damages do not improve medical outcomes.
In answer to self-insured employers' fear of being sued as the administrator of a health plan, Norwood introduced H.R. 2960, a stand-alone bill to reform ERISA, on Nov. 8, 1997. It contains measures similar to PARCA, but features amended language to specifically address employers' concerns that reforming ERISA preemption of medical malpractice laws could result in legal liability for them if they provide self-insured health plans to employees.
The new bill, the Responsibility in Managed Care Act, does one thing, John Stone, Norwood's communications director, told Psychiatric Times. "It does not overturn the ERISA preemption of all state law. It simply says that medical malpractice is not preempted by ERISA. If a health insurance company denies, delays or restricts promised care in their contract and that results in damages, the member can sue under state law for medical malpractice. It specifically protects employers from liability."
According to Stone, that is a key point. Only those people making specific medical decisions on an individual case basis would be liable for medical malpractice. The bill is also very clear that it does not mandate any particular coverage of a managed care plan.
"Employers can still design a rock-bottom price policy that covers very few things," said Stone, "but if they promise in their contract to provide a given service and they deny, delay or restrict access to that service, then they are responsible.
"There were a number of conservative members of Congress who said they recognized the need for ERISA reform, but took exception to other parts of [PARCA]. We've broken out the ERISA portion, clarified the language so we can make certain that everybody understands that employers are not to be made liable for this, and further that insurance companies who are sued for medical malpractice are prohibited from seeking damages against the employer through a secondary suit."
Norwood hopes that this new bill will get through committee during the next session of Congress, which began Jan. 27, but makes no prediction on when it will come up before the full House. In a statement to the press supporting his new bill, he said, "Anyone in this country who makes a medical decision concerning the care given to an individual patient should be held accountable."