Introduction
The healthcare sector is rife with patients’ complaints about the poor quality of services according to them. This is evidenced by the incidences of medical errors reported such as misdiagnosis, administration of wrong treatment, negligence by the health care providers, all of which have adverse effects on the patients such as death and permanent injuries. It is therefore important for any government to empower patients to enable them to change how services are provided to them.
According to the economist Albert O. Hirschman, “the ability to take one’s business elsewhere may not be enough to empower consumers in markets where all providers act similarly,” (cited in Annas, 1997, p. 212). Thus, rather than just seeking services from different providers, patients should be equipped with effective means of voicing their complaints, to provide the providers with a motive to be more sensitive to patients’ needs (Bondeson & Jones, 2002).
The need for patients’ rights in managed care
In managed care, the need to give patients the voice to assert their complaints has been a major issue. The criticism made against managed care, nevertheless, allows creating valuable alternatives for patients (Verheijde, 2005). Incidentally, issues of conflict and dispute resolution, mechanisms for addressing grievances, and procedures for appeals have in the recent past been addressed with an urgency not only by the courtrooms but also by the legislature which has made several proposals for reform at the state and federal levels.
Even though all health insurers and health plans have difficulties with the resolution of disputes that arise between them and their clients, managed-care organizations (MCOs) receive greater attention. This is because the denial of treatment to patients happens more frequently in MCOs, and physicians are more limited in their roles as patients’ advocates. In addition, patients have limited opportunities to change their health plans.
The failure of managed care organizations has raised public concern and many have called for heightened liability of these organizations. During his January 1998 State of the Union address, the former president of the United States, President Bill Clinton, outlined a Patients’ Bill of Rights that promised to give patients protections against abuses perpetrated by their health plans. Since then, however, the Patients’ Bill of Rights has been the subject of partisan politics.
As a result, the 105th Congress was unable to ratify a Patients’ Bill of Rights. The 106th Congress on the other hand ratified two conflicting editions of the Bill. Although both the Democrats and the Republicans are in favor of a law that increases patient rights, Democrats and Republicans are in disagreement over the question of remedies granted to patients whose rights have been violated by their health plans (Theodos, 2000).
In particular, the disagreement concerns the Employee Retirement Income Security Act of 1974 (ERISA), which fundamentally prohibits patients from making a lawsuit against MCOs in state court through federal preemption. Whereas the versions of the Patients’ Bill of Rights proposed by the Democratic and Bipartisan parties opted to amend ERISA by eliminating this prohibition, the Republican version opted to maintain it (Patel & Rushefsky, 2006).
The enactment of patients’ bill of rights by different states
To different degrees, different states have already ratified their own managed care legislation. The first state to pass a law that enables patients to make a lawsuit against their MCOs was Texas. Theodos (2000) argues that “the Texas Health Care Liability Act allows an individual to sue her MCO for damages proximately caused by the MCO’s failure to exercise ordinary care when making a health care treatment decision (p. 93).
This Act also holds MCOs accountable for decisions regarding treatments made by their healthcare providers, agents, or representatives. Thus, an MCO operating in Texas can be held accountable both directly and vicariously for tort damages caused by treatment decisions made by any of its employees. Following the Texas Health Care Liability Act, other states followed suit in passing legislation that makes clear or increases the liability of MCOS.
These states include Missouri and Georgia which passed legislation that enables patients to sue their managed care plans in state courts for any damages caused (Theodos, 2000). Whereas these states have increased patients’ rights against MCOs, other states have chosen to increase MCOs’ liability without necessarily giving patients the right to sue their MCOs, for instance, by implementing a mandatory legal review process on the treatment decisions of health plans (Verheijde, 2005).
Arguments against and in favor of patients’ rights in managed care
The controversy surrounding the Patients’ Bill of Rights moved swiftly from Congress to the public domain. Opponents of the Patients’ Bill of Rights claim that such legislation would skyrocket the costs of lawsuits which would, in turn, increase the cost of health care to the extent that the majority would not be able to afford even basic health care (Reed, 2000). On the other side of the debate, proponents of the Patients’ Bill of Rights argue that such legislation would not only increase the accessibility of health care more so by the uninsured, but it would also accord patients with a broader range of rights (Mullahy, 2009). This would enable patients to sue their health providers for damages or adverse events caused by denial of care or poor quality care.
Reference List
Annas, G. J. (1997). Patients’ rights in managed care – exit, voice, and choice. The New England Journal of Medicine, 337(3), 210-215.
Bondeson, W., & Jones, J. W. (2002). The ethics of managed care: professional integrity and patient rights. London: Springer.
Mullahy, C. (2009). The case manager’s handbook. Sudbury, MA: Jones and Bartlett Publishers.
Patel, K., & Rushefsky, M. E. (2006). Health care politics and policy in America. Delhi: M.E. Sharpe.
Reed, V. (2000). Employers are concerned about patients’ bills of rights. Business Press, 17(9), 1-3.
Theodos, T. (2000). The Patients’ Bill of Rights: Women’s rights under managed care and ERISA preemption. American Journal of Law & Medicine, 26(1), 89-99.
Verheijde, J. (2005). Managing care: a shared responsibility. London: Springer.