Hmos Must Take Dose Of Reality

Sometimes I have to read a newspaper article twice, merely to believe I had actually read what I just read. Such was the case, when I read a Nov. 17, 1996, New York Times account of assertions from health maintenance organizations that they should be immune from medical malpractice claims, because they are merely a business supplier of employee benefits and were not involved in the actual practice of medicine.

HMOs, which have more than 60 million Americans under their care, believe they are protected against medical negligence claims by a 1974 federal law that regulates employee benefits. The 1974 law called the Employee Retirement Income Securities Act was passed to establish a single, unified set of federal standards for employee benefit plans, so that employers would not have to comply with a multitude of different laws and standards in each state.

HMOs are asserting they have no liability because they are administering a benefit plan, and therefore, by law, are immune from claims of negligence. What chutzpah!

Labor Secretary Robert Reich has called this claim absurd and is considering legislation prior to leaving his position to clarify the rights of workers who are under the HMO umbrella.

Reich is not the only one who is upset about this claim by HMOs. Doctors all over the country are furious. An American Medical Association spokesperson recently stated that HMOs are shifting virtually all of the risk of patient care to physicians, even though the HMO can force doctors to change their clinical decisions by threatening to terminate their contract.

HMOs often determine which tests can be performed, who can have surgery, who can be admitted to the hospital and for how long, which doctor is available to take care of patients, and even what a doctor can tell a patient about health-care options. Despite this, HMOs claim they are not legally responsible for medical negligence claims when injury or death occurs.

The medical malpractice scene is crowded enough today, so I am not advocating adding another deep-pocket player to the table. I am, however, convinced that HMOs that dictate major regulation and rules for physicians concerning patient care should not be able to avoid responsibility for their actions.

HMOs often market their products to attract consumers by claiming to have the best doctors and hospitals available, as well as being accredited by such groups as the National Committee for Quality Assurance. Then, however, when it comes time to go to court, these same HMOs claim not to be responsible for the same doctors and hospitals they advertised or the quality of care they are dispensing.

HMOs claim that by imposing liability on the health plan itself, the cost of the plan would naturally rise. Well of course! That is exactly what has happened to the cost of health care in this country. The large number of malpractice claims made against the medical profession has driven up the cost of doing medical business for everyone.

HMOs control costs by taking fixed monthly premiums from their patients, using that money to provide comprehensive medical care and then controlling their cost for that care in a variety of ways - including refusal to authorize tests, procedures and admissions they believe are unnecessary.

Yet, representatives for HMOs like Peter M. Roan, an attorney who represents Pacificare and other HMOs in medical malpractice cases, claim HMOs normally cannot make medical decisions about the treatment provided to their members. Those determinations must be made by treating physicians under contract with the HMO. The HMO should not be held responsible for the alleged medical negligence of the doctors.

I will agree with Roan on one condition: Physicians and hospitals will let HMOs off the hook as far as claims of medical malpractice are concerned; however, in return HMOs will have to agree to leave us alone in our attempts to practice what we believe to be quality and compassionate care.

HMOs will have to stop telling us which tests we can and cannot order, which patients can or cannot be admitted to hospitals, how long we can keep our patients in the hospital, and what we can or cannot say to our patients. Then, and only then, will we agree with their premise that HMOs should not be held legally responsible for claims of medical malpractice.

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