- The Washington Times - Friday, February 9, 2001

President George W. Bush has proposed an outline for a patients' bill of rights with a provision that only Washington could find quirky. He wants Congress to send him legislation that protects patients in practice, not just in theory. To that end, he has asked lawmakers to cap damages in lawsuits brought under the act, the better to protect health plans, employers and ultimately the patients themselves from frivolous lawsuits.

It's an important point. Both past and current patients' rights bills have allowed for huge jury awards. Legislation introduced by Sen. John McCain, Republican of Arizona, and by Sen. Edward Kennedy, Democrat of Massachusetts, provides for "civil assessments" of up to $5 million. On the face of it, that seems reasonable enough. A health maintenance organization or employer that denies promised benefits, that commits in effect malpractice, should pay a price.

The problem here is that companies often find it simpler and cheaper to resolve cases by writing a big check in an out-of-court settlement, even when they know they committed no crime or violation. Such a system encourages frivolous lawsuits and rising insurance premiums to cover the cost of dealing with them. What's a good cap? Mr. Bush didn't say, but his aides pointed out that he signed legislation as governor of Texas establishing a limit of $750,000.

Better still would be for Mr. Bush and Congress to recognize and undo the federal intrusion that contributed to "patients' wrongs" in the first place. It was the federal government after all, that decided to provide tax breaks to employers, a "third party," who offered health insurance to their employees. It may have seemed like a good idea at the time, but as the cost of the plans grew, employers leaned on health maintenance organizations to hold down costs. Employers also cut back on the number of health plans they offered. By making the purchase of health care insurance 100 percent tax deductible, the Bush administration and lawmakers could allow all Americans tax advantages now reserved to employees and give them the opportunity to choose the amount and kind of health insurance they want. Such a change would go a long way to improving customers' satisfaction with their health plans and perhaps to reducing the number of related lawsuits.

There is one other important matter with respect to patients' rights that neither Mr. Bush nor Mr. McCain has mentioned: federal workers. A spokesman for the senator said Thursday that his bill makes no provision for guaranteeing their health care rights, in part because those rights are already protected under the Federal Employees Health Benefits Program. But this program does not provide for the kind of damages private citizens could obtain under the McCain-Kennedy bill. Why not? It almost certainly would be more expensive to include federal workers in the legislation, but it would have the salutary effect of forcing Congress and the administration to abide by the same good intentions they impose on everyone else.

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