A narrow right to sue

Maine’s largest health-insurance problem is not the ability of the insured to sue their managed-care company but the fact that more than 160,000 residents have no health-care insurer at all. While there is no particularly good reason for the managed-care industry to get a free ride when it comes to lawsuits, lawmakers were right this week to keep an eye on the potential cost increase that allowing lawsuits could bring.

As in Congress, the debate over a Patients Bill of Rights in the Legislature focused on this right to sue. Gov. Angus King had considered a veto of the bill as passed by the Legislature because of the broadness of the bill’s language. For instance, an insurance carrier might be held liable if it merely had the right to exercise control or influence in a health care treatment decision.

The new proposal restricts that liability to carriers that actually exercised control or influence. Presumably, it will be up to lawyers to argue whether a carrier that makes a decision not to act in a case is exercising its influence. Nevertheless, the half-dozen proposed changes in the bill generally strengthen it by making it more specific, so that suits are based not only on treatment decisions but on “treatment decisions that affect the quality of the diagnosis, care or treatment provided to an enrollee. …”

These are reasonable restrictions given the number of important provisions that remain in the proposal, originally presented by Rep. Jane Saxl of Bangor. The bill, LD 750, improves access to prescription drugs and to specialists, including allowing specialists to serve as primary care physicians in certain cases. It provides for some out-of-network care and makes it easier for women to receive obstetrical or gynecological care. LD 750’s continuity of care provisions ensure that patients won’t have to switch providers in mid-treatment, if the provider is willing to continue to work under the terms of the carrier.

Each of these elements erodes a little of the control insurers count on to keep down costs, and there is a direct connection between the cost of insurance and the ability of people to obtain it. But anyone reading the proposal for the first time might be surprised that these “rights” have to be listed at all; until patients find out otherwise, they very well may assume they have simple access to specialists and prescription drugs. In the old fee-for-service model, they would have. In the managed-care model, they need this sort of legislation to get what they thought they were paying for.

The restrictions on the right to sue won’t make everyone happy. However, given the state of health insurance in Maine, they should be a small concern in what generally is a strong bill.