With media attention in the 2001 legislative session focused predominantly on education funding and sprawl control, another political hot potato -- referred to by some as the rhinoceros in the legislative living room everyone pretends not to notice -- went to a quick and quiet death in committee.
The bill (HB-1302), a Patients' Bill of Rights, was introduced by Rep. Lois Tochtrop (D-Westminister) and by Rep. Dan Grossman (D-Denver) and would have given consumers the right to sue their HMOs for negligent denial of doctor-recommended medical treatment.
The bill was heard by the Health, Environment, Welfare and Institutions Committee and killed on a straight party-line vote, with all seven Republicans on the committee opposing it and all five Democrats in support.
"Health care has evolved over the past two decades from a doctor-dominated to an insurance-dominated system," said Tochtrop, who was a nurse for 38 years and has a bachelor's degree in nursing and in health care management. "More and more, treatment decisions are made by insurers. There's a growing sense that medical decisions are being driven by what's best for profits instead of what's best for patients.
Who rules the state?
Under current law, HMOs cannot be sued if denial of treatment results in the injury or even the death of a patient.
"Something is askew when doctors can be sued, hospitals can be sued, but HMOs can't," said Grossman. "This bill would make HMOs liable for negligence in the same way that doctors and hospitals are held liable."
So why was the bill killed?
"The insurance lobby all but owns this state," said Tochtrop. "I knew from the start that the chances of this bill getting out of committee were nil and none, but I introduced it anyway as a means to force discussion and let voters see who's aligned with the insurance industry.
"Down and dirty," she said, "the vote to table this was anti-consumer, pro-insurance. Colorado will never have a Patients' Bill of Rights until people elect a more consumer-oriented legislature."
The Republicans who stamped out the bill included Colorado Springs Reps. Mark Cloer and Dave Schultheis, and Lauri Clapp, Debbie Stafford, Bill Crane, Pam Rhodes and John Witwer. The Democrats in support included Grossman, Tochtrop, Betty Boyd, Andrew Romanoff and Desiree Sanchez.
Opponents argued that legislation in recent years has given patients far more ability to appeal treatment denials by HMOs and insurers.
A bill carried two years ago by former Rep. Marcy Morrison, a Manitou Springs Republican, set up a mechanism whereby patients denied coverage by an insurance company or HMO can appeal the decision to independent, outside review.
Cloer argues that that review mechanism mitigates the need for consumers to sue carriers. "Many of the complaints that generated this bill were made before the external review process was in place," he said. "It's been in place for about a year now and it's working very well. In the best of scenarios, 1302 is obsolete. At worse, it's just bad legislation."
Insurance and HMO lobbyists testified, meanwhile, that making HMOs vulnerable to consumer lawsuits would lead to a glut of litigation that would cause premiums to soar and swell the ranks of the uninsured.
Dave Diepenbrock of the Colorado Trial Lawyers Association insists that that argument has "absolutely zero basis in fact or precedent."
According to Diepenbrock, who supported Tochtrop's efforts, the bill is modeled closely on a 1977 Texas law that also gave consumers the right to sue HMOs for negligent denial. A study of the effects of the bill conducted by the Texas Medical Association reports that "only three lawsuits are known to have been filed under the new law."
"There is no evidence whatsoever to support the claim made by HMOs and insurers that passage of this law would be a windfall to trial lawyers," said Deipenbrock.
Something to beef about
Offering her theory about the dearth of post-Patients' Bill of Rights litigation, Morrison said, "I've seen from personal experience that the mere threat of PBR laws is enough to make carriers more consumer-oriented."
Morrison says that studies of states that adopted external review mechanisms similar to Colorado's show that external reviews find in favor of the patients 50 and 60 percent of the time. "Clearly," she said, "policyholders did have something to beef about."
Tochtrop agrees that the external review process was a giant step in the right direction, but she insists that consumers need to the right to sue.
"HMOs are going to be far less prone to deny doctor-recommended treatment if they know the patient has recourse to litigation. The threat alone will make them more consumer-responsive -- especially since external reviews rule for the patient's over half the time.
"Ironically, giving patients the right to sue will reduce the likelihood they'll ever have to exercise the right."
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