Patients' Rights

SUSAN DENTZER: Dueling rallies at the Capitol today made it official: The congressional battle has been joined once more over new protections for Americans dealing with their health insurance plans.

SEN. TOM DASCHLE: In most cases, these rights are part and parcel of a good health plan, but when those rights are delayed or denied, the results can be catastrophic. And that's why we need a strong, enforceable patients' bill of rights. The bill the Senate begins debating today is itself a compromise. In fact, we've been willing to compromise on virtually every issue. But the one thing we can't compromise on are on the strong protections Americans need.

SUSAN DENTZER: Opponents at a separate rally voiced a different view.

SEN. RICK SANTORUM: If you're for national health care, you'll love this bill, because you will see massive uninsurance, massive uninsurance. On top of that, you'll see costs go up. Why? Because of these big awards that will occur as a result of these lawsuits where lawyers will get the big chunk of the money. Health care costs will go up, which will lead to even more uninsurance. This is a disaster.

SUSAN DENTZER: These were just the latest salvos in the long debate over patient protections, which dates back to the mid-1990's. At the time, health maintenance organizations and other forms of managed care were becoming the dominant form of private health insurance in America. A stream of anecdotes followed about how some health plans were denying needed care to patients; for example, putting roadblocks in the way of patients' access to specialists, or to treatment in hospital emergency rooms when patients thought they needed it.

By the end of 1999, the Republican-controlled House and Senate had passed radically different versions of patient protection legislation. But differences between those bills couldn't be breached, and the legislation died in a congressional conference committee.

This year, with the Senate newly under Democratic control, the battle is back with a vengeance. This time, two new competing versions of legislation have been introduced in the Senate. Both are nominally bipartisan, having garnered support from at least some members of both parties. The version backed by the Senate Democratic leadership is sponsored by Democrat Edward Kennedy of Massachusetts and Republican John McCain of Arizona. The other version, generally favored by more Republicans, is sponsored by Democrat John Breaux of Louisiana and Republican Bill Frist of Tennessee. Today Senate majority leader Tom Daschle outlined the key points that supporters of both bills essentially agree on.

SEN. TOM DASCHLE: If you have health care, you ought to have rights. (Cheers and applause) you should have the right to see a specialist and the right to go to the closest emergency room. That ought to be a right (Applause ) -- the right to keep the same doctor throughout a medical treatment, whether it's pregnancy, chemotherapy, or any other course of treatment; the right to a fair, independent appeals process when your health plan denies care. That ought to be a right.

SUSAN DENTZER: But there are big differences between the bills on a controversial issue-- how much to expand patients' rights to sue their health plans and recover damages in the event they're denied coverage or care. Some opponents of Kennedy-McCain tried today to erect procedural roadblocks to the bill, but backers vowed to forge ahead.

JIM LEHRER: Now, two key sponsors of the two leading Senate bills: Edward Kennedy, Democrat of Massachusetts, and Bill Frist, Republican of Tennessee. I spoke with them earlier this evening.

Senators, welcome. So, Senator Frist, the Republican leadership strategy is to delay consideration of the Democratic bill, is that correct?

SEN. BILL FRIST: Well, in essence, we're on the bill. I just left the floor a few minutes ago talking about the bill, alternating time back and forth. We just received the final version of this bill a few minutes before we shut down at the end of last week. I, for one, was, at about 10:00 last night, still reading through the 179 pages. In truth, we're on the bill, and we'll be on the bill hopefully until we finish it over the next couple weeks.

JIM LEHRER: So there's no strategy to slow this thing down and try to defeat it that way?

SEN. BILL FRIST: No, no, there's not. And people can, you know, talk about it. In truth, we're on the bill, and we'll stay on the bill. And I suspect amendments either, hopefully, at the end of this week, but if not, the early part of next week.

JIM LEHRER: Senator Kennedy, how do you read what's going on?

SEN. EDWARD KENNEDY: Well, I'm glad we're on the bill. It's taken five years to get on the bill. We clearly had the majority of the Senate at the end of last session, and still we were unable to get a vote on the legislation. This is enormously important legislation. It's basically legislation to protect patients, to make sure that decisions that are being made about patients' health are going to be decisions that are going to reflect the judgment of doctors and nurses and families and not bureaucrats and bean counters that work for HMO's that are many miles away. And this is very important legislation. I welcome the fact that we're on it. We're going to continue, as Senator Daschle said, we're going to continue on it till it's done. I think it'll be one of the most important pieces of health legislation that we will have passed. And I think it's important that we finish it and finish it quickly.

JIM LEHRER: Senator Frist, what is your basic objection to the Kennedy-McCain approach?

SEN. BILL FRIST: Well, there are basically two bills that have been introduced to the United States Senate. One is the bill that is actually on the floor. And that is Senator Kennedy's bill, and Senators McCain and Edwards. The other is mine, the Frist, Breaux, Jeffords-- with John Breaux and Jim Jeffords. I have really three problems with the bill that's on the floor, the Kennedy-Edwards bill. Number one, it does allow employers to be sued. The whole purpose of this bill is to come back and make sure that medical decision-making is at the level of the doctor and the patient, to get HMO's out of the business of practicing medicine. And therefore if they make a mistake or there's injury or harm, they need to be held accountable and be held accountable fully. But that doesn't mean that you go back and then sue the employers.

Number two, this is a windfall for the trial lawyers with these unlimited lawsuits going through, some of which can be frivolous. And that's going to drive the cost of health care up and ultimately come back to the third point, and that is the uninsured. Under this bill, the uninsured in the United States of America will increase markedly. When you drive premiums up high in terms of how much those premiums are going to cost for health care in this country, people simply are not going to be able to afford it. They're going to drop their insurance, the employers will drop the insurance, and the uninsured will increase in this country.

JIM LEHRER: Senator Kennedy, a windfall for the lawyers?

SEN. EDWARD KENNEDY: No, it's not. You know, interestingly there are 63 Republicans in the House of Representatives -- Dr. Norwood, Dr. Ganske -- that supported this measure in the last Congress. This has the support of over 300 medical professional groups, including doctors, nurses, the professional medical personnel. Do we really think that they would be out strongly supporting a trial lawyers' bill? Clearly they wouldn't. Their whole record has been one of resisting the abuses in a trial system. They understand what this is about. And they understand that this is really about protecting patients.

And on the one hand, you have the protecting of the patients. On the other hand, you have the protecting of the HMO's. That's what this is about. The HMO's want special consideration, special privilege. They want to be unique in our country and not bear responsibility for their decisions, and that's basically and fundamentally wrong. The reason that we're... The reason that we are so strong for accountability is for this reason: When you have accountability and responsibility in the HMO's, then the HMO's do the right thing. And we don't have the suits.

If you look at the most recent state -- California -- that has a tough HMO Bill and tough liability provisions, it's been in effect now eight months. There isn't a single case. And the industry itself is rather surprised because the HMO's are doing the right thing, they have effective internal-external fields, and we don't have the proliferation of suits. So 50 million Americans now who are covered that are able to have the right to sue and there's no evidence of any of the abuses that those that are opposed to our legislation have suggested.

JIM LEHRER: Let's make sure that we understand the fine points here, the differences. Now, Senator Frist, what you object to is that you want a cap on the amount of damages that can be gotten in one of these lawsuits.

SEN. BILL FRIST: I want three things. Number one, I don't want employers to be sued.

JIM LEHRER: And when you say "employers," you mean...

SEN. BILL FRIST: I mean that right now there are 170 million Americans… Most people listening to me right now get their insurance through their employers, 170 million Americans. That means instead of suing the HMO, you sue the employer. And that's allowed…

JIM LEHRER: Let me stop right here. Now, Senator Kennedy, why do you want that provision?

SEN. EDWARD KENNEDY: The employers are immune from suit unless they are making the medical decisions that are going to result in the death or injury of the patient. So if the employers, for example -- and this is 99 percent of all small businesses and most of the employers in the country -- they hire... They make these arrangements with companies -- they are not making the decisions themselves. So it's very clear in the legislation, and over the period of this weekend we made it even clearer, and we're glad to work that out with Senator Frist. If the employer is going to be making the medical decision, they should have... they should have some responsibility. If they don't, they won't.

JIM LEHRER: Sen. Frist, what's wrong with that?

SEN. BILL FRIST: The problem with this -- and it may be something that we can work out through the amendment strategy. I think it's important to do. If you read the bill... And it's important that people read the bill because you can say employers can be sued and they can't be sued. We just heard that employers can be sued under certain conditions. The condition is in there if they participate. That's the word "participation." I'll guarantee you a good trial lawyer who knows he can sue for a billion dollars if he wants to and walk away, by the way, with 40 percent of that in his pocket outside of the health care system is going to take an employee -- a small business, somebody who owns maybe some convenience stores -- is going to take them to court and say, "you participated in that process." And that's the whole point. That drives the cost of health care up, premiums go up, and drives people to the ranks of the uninsured.

JIM LEHRER: The other thing... Let me go...

SEN. EDWARD KENNEDY: One quick response on this.

JIM LEHRER: All right.

SEN. EDWARD KENNEDY: Our position, the position I just stated, exactly the position of President Bush. That's exactly the position of President Bush. And if the administration has particular language to carry forward that particular responsibility, we welcome it. But the president has stated that he feels that if employers are going to be making those decisions, they should have responsibility. This bill does it.

JIM LEHRER: Senator Frist, now, the cap on damages.

SEN. BILL FRIST: Yes.

JIM LEHRER: Expand on that.

SEN. BILL FRIST: Number two, our bill, the Frist-Breaux-Jeffords bill in contrast to the Kennedy-McCain-Edwards bill, we require exhaustion of the internal appeals process and the external review process with the final decision made by an independent physician, unbiased, and then you go to court. And so that's the second problem is they allow you to opt out at any time out of this internal-external appeals.

Then the third point, which comes to the point that you mentioned, is the cap itself. We allow that if somebody is harmed or injured after they've gone through the appeals process, they can be fully compensated, that is, for the damages itself, for the drugs if it's required for treatment, for the hospitalization, for the rehabilitation, for lost wages over a week, a month, a year, or the rest of their life, full economic damages. We do cap the... What are called non-economic damages. But we give full economic damages, plus another half a million dollars, and that is the sort of balance that we achieve.

JIM LEHRER: All right, Senator Kennedy?

SEN. EDWARD KENNEDY: Quick answer on that. We believe the states ought to make those judgments. Why not let the states do it? They are dealing with these kinds of issues every single day in courthouses all across this country. Let the states make those judgments and decisions. They have different judgments about it. Let the states make that determination. And I would have thought the president... We hear a great deal about states' rights. This is the golden opportunity to support that. And it isn't only those of us, bipartisan, Senator McCain and John Edwards, that take that position. This has been recommended by the judicial conference. It's been recommended by the Chief Justice Rehnquist.

JIM LEHRER: All right, now that, gentlemen, is another bone of contention here, is it not? Senator Frist, you want... You want these lawsuits to be... If you could only file them in federal court and not state court. Senator Kennedy, you want both state and federal court, correct?

SEN. BILL FRIST: Yeah, that's exactly right. What we've done... Again, first of all, let's say President Bush has endorsed the Frist-Breaux-Jeffords bill and has basically said he's going to veto their bill as written. So let's get that straight in terms of where his principles lie and which bill meets his principles. Number two, you're exactly right. We're creating a new what's called cause of action to sue. It has to do... It applies to a federal law.

Therefore, we say go to a federal court. Federal court means it can be uniform consistent from state to state all around the country. We know insurance plans go from state to state. We know that there are many companies that have employees in multiple states for a new federal cause of action to go to federal court. The Kennedy bill allows you to go to the state court or federal court. If you don't like federal court, go down to the state court. And when you're in state court, you can shop... What's called forum shopping from state to state so those trial lawyers can sue and get as much money as possible.

JIM LEHRER: Senator Kennedy, what's wrong with that?

SEN. EDWARD KENNEDY: Well, Senator Frist knows better than that. That is not what the bill does. There is very specific language to prohibit forum shopping. What it basically says is those decisions that are medical in nature, the injury, for example, should be tried in the state courts. They're more accessible. They're more available. They don't have the delay. They're not as costly. That is the place where people ought to be able to get their remedies. If it's issues from dealing with contract, whether the individual is covered in the contract, that will be in the federal court. This was a compromise.

I'm very surprised that there is such resistance among the Republicans to permit the states to make these judgments and these decisions. We will abide by what the states have in terms of the caps and restrictions. Why not let the states have... This is where this forum has been with regards to negligence cases for years. They have the expertise. The federal courts do not want to have a whole new kind of a range of additional kinds of burdens on them. Let's do it where the... We have done historically, leave it in the states.

JIM LEHRER: What about that, Senator Frist? If this is where it’s always been up till now, why not leave it there?

SEN. BILL FRIST: Well, no, it's not. The prohibition to law we're essentially changing is a federal law. The preemption was a federal law, ERISA, E-R-I-S-A, that is what we're changing. We're saying there's a new cause of action of a federal law, therefore it should be handled in federal court. You have uniformity, you have the standards across the country, you avoid forum shopping.

Any trial lawyer, especially when you say you are going to walk away with 40 percent of whatever multimillion-dollar suit is in your pocket, they're going to clearly pick out the state that has no caps on economic... Non-economic pain and suffering, punitive damages. That's where they're going to do. We're basically saying, let's standardize the process. Let's have ballots. Let's make the patient whole and complete, but let's do it in a way... a responsible way that doesn't drive costs up and doesn't drive people to the ranks of the uninsured.

JIM LEHRER: All right, Senator Kennedy, you heard what Kennedy Frist said, that the president is going to veto your bill if it does pass the Senate and the House. Is that your understanding as well?

SEN. EDWARD KENNEDY: Well, I would hope that he might even let it become law. After all, in Texas that has a protection of patients' bill of rights quite similar to what we're...we've now have before the Senate at the present time. He let it become law. He took credit for it afterwards. I would hope that he would let it become law. We've worked with the president on the education bill. I regret that we didn't have a similar negotiation with him on this bill.

But the final point is this: In the place for 50 million Americans, we don't have these proliferation of lawsuits. In the states that have tough, now liability provisions, we don't even have the increase, any significant increase, even modest increase or any increase at all in terms of premiums. These are smokescreens, about the trial lawyers' bill wouldn't be supported by the medical profession.

This bill is simply a very clear bill about giving the responsibility for health care to the doctors and nurses that are treating the patients. And not... and if the HMO is going to overrule those decisions there, they ought to bear responsibility. They ought to bear the liability. If they kill individuals or if they wound individuals or they hurt individuals, they ought to be responsibility. The HMO's don't want it, even though they've had billions of dollars in profits and the rest over the period of the recent years. They don't want it. And that is what this battle is about. It's to empower the HMO's versus the patients. It's clear as could be.

JIM LEHRER: Senator Frist, where is this headed? Are the differences... We've heard the two of you now. Are these differences insurmountable, non-negotiable, or are you all prepared to work this out, or do you see this thing going down to where the president is going to veto it, this thing is going to be dragged out over a long period of time?

SEN. BILL FRIST: Both Senator Kennedy and I have spent too much time last year going through many of these issues. As you can see, we both talk a lot about them and have debated them before. It is time for us to pass a strong, enforceable, patient bill of rights. The President of the United States outlined his principles. He campaigned on it. He wants a strong, enforceable patient bill of rights. You're going to continue to hear me argue let's get the HMO's out of the business, let's not have frivolous lawsuits coming in, let's not be draining money out of the system and driving up the uninsured.

If we can come to agreement on those basic principles and then write legislation, which I don't believe is in the underlying Kennedy-McCain-Edwards bill right now, then yes, we can pass a bill. And I think that at the end of the day we will pass a bill, after debating this on the floor and having the House send the bill over and then taking it to conference.

JIM LEHRER: All right, gentlemen, thank you both very much.