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Patients’ Care

The Senate adopted new patients' rights legislation late Friday night. Four policy experts assess whether the proposal will improve health care in America.

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  • RAY SUAREZ:

    For more on the bill and how it fits into the overall picture of healthcare in America, Dr. Marcia Angell is a senior lecturer in social medicine at Harvard Medical School and a former editor in chief of the "New England Journal of Medicine"; Michael Weinstein is a former economics columnist for the New York Times who specialized in healthcare issues– he is now a senior fellow at the Council on Foreign Relations; Sarah Rosenbaum is a professor of health law and policy at George Washington University's School of Public Health; and Robert Moffit is the director of domestic policy studies at the Heritage Foundation, a Washington think tank– he was Deputy Assistant Secretary for Health and Human Services during the Reagan administration.

    Robert Moffit, let me start with you. Do you find anything to like in the Kennedy-McCain bill?

  • ROBERT MOFFIT:

    I think that the Kennedy-McCain bill is probably going to make the current problems of the health care system worse. Right now we have 43 million people who are uninsured. That's in the best economy we've had in 20,000 years. If we have a slowdown in the economy, there are going to be more people who are going to be uninsured.

    The other concern that I have is the cost of the bill. The Congressional Budget Office is talking about a 4 percent increase in premiums. We have no idea what the increase is going to come from, from the regulatory regime that is in the bill. We do know this, Ray, and, that is every time you have an increase in health care costs more and more Americans lose their coverage. So the Congress thinks that they have calculated well on this, and I hope they did. But if they have miscalculated, millions of Americans are going to be hurt.

  • RAY SUAREZ:

    Sarah Rosenbaum, same question: Given what you think the problem is, is this an answer or part of an answer to the problem?

  • SARAH ROSENBAUM:

    I think this bill is a very important step in the evolution of American law in response to a changing health care system. For those of your viewers who watched Vice President Cheney the other night talking about his heart treatment, this bill essentially attempts to insure that all Americans can continue to do what Vice President Cheney did, which is to decide on a proper course of treatment during serious illness in consultation with their physicians whom they trust and in whom they've put their lives and their futures and without undue interference from insurers. And it does this in two ways: One, by establishing some basic rules about second opinions and access to specialty care; and the other by establishing an external prospective appeals process, essentially a second opinion, for all Americans.

  • RAY SUAREZ:

    Michael Weinstein, if we assume that the future includes HMO's for us in the provision of health care, does this help or hinder their ability to do what they're interposed in the market to do?

  • MICHAEL WEINSTEIN:

    I think this proposal includes a smart, modestly useful idea. The mandatory external review gives the patient an out, gives them an ability to challenge their health plan, and in a way that will, should reduce litigation, expensive litigation and often beside-the-point litigation. So in that sense mandatory review, you give the patient an option to challenge the health plan reviewed by medical experts and it keeps it out of the courts.

  • RAY SUAREZ:

    Those are outsiders, that mandatory to external review, they're not people from the HMO itself?

  • MICHAEL WEINSTEIN:

    Absolutely. They are physicians or medical experts outside the plan. You appeal your denial of care to those medical experts. And if it works right, there should be very little litigation thereafter. If the patient wins before the medical reviewers, then the health plan is going to provide the service and not risk going to court when independent reviewers said it should be providing the service. And if the patient loses, very few patients, that is to say, their lawyers, are going to proceed to court because independent review has already said that the health plan has acted responsibly. So again if this works, we should have very little of this litigation. And, of course, the whole debate last week was about litigation, of course.

  • RAY SUAREZ:

    In effect it's like getting a second opinion on the opinion you got from your HMO?

  • MICHAEL WEINSTEIN:

    Absolutely. In a non-litigious environment.

  • RAY SUAREZ:

    Dr. Angell, when you look at the bill, what do you think it does to the process and does it do anything that helps us toward where we need to be?

  • DR. MARCIA ANGELL:

    Unfortunately I think it does make a very bad situation worse. We have a profoundly irrational system in which managed care companies make more in profits and executive salaries if they stint on medical services, and that's exactly what they do. But a patients' rights bill does anything about these perverse incentives. It will probably raise managed care costs and employers, rather than pay higher premiums, will be more likely to drop health coverage altogether or shrink the benefit package or pass more of the cost back to their employees who will find that they can't afford it. So what we will have, I'm afraid, is more uninsured or more underinsured. And if you look on health insurance, the existence of health insurance at all as the fundamental primary patients' right, then there will be far less patients' rights, unfortunately.

  • RAY SUAREZ:

    But when you talk about irrational incentives, —

  • DR. MARCIA ANGELL:

    Yes.

  • RAY SUAREZ:

    — wasn't managed care supposed to be an arbiter that would limit medical inflation, turn down unneeded or unnecessary procedures? Isn't, rather than being irrational, wasn't that what the system was designed to do?

  • DR. MARCIA ANGELL:

    Well, the system was designed to hold down premiums for employers. This was a system that was devised to help the third-party pairs and mainly employers. But what you have to remember about the employment-based system is that it's entirely voluntary. Any time premiums get too high, employers will simply drop health benefits altogether. That's something that Americans don't really appreciate, that this is a voluntary system. So that the managed care companies– it's true– were trying to keep premiums down to try to get business from the employers, to compete for employers' business, and the best way to do that was to stint on medical services. That's exactly what they did. And the employers, too, wanted the premiums down. So you have a system in which the financial interests of the managed care companies and the employers are at odds with the interests of patients. Now that's crazy.

  • RAY SUAREZ:

    Robert Moffit, it sounds like the patient comes last in Dr. Angell's schematic.

  • ROBERT MOFFIT:

    Dr. Angell's diagnosis is right on target, actually. She is correct that this remedy is an insignificant remedy to a broader systemic problem. Today in the United States because of law and regulation, your health insurance is tied to your place of work. This is not true with auto insurance or homeowners' insurance or life insurance or any other type of insurance but it is true with regard to health insurance. So as a result, individuals and families have absolutely no control in the system, except where the employer may give them some choice. In many cases employees have no choice. They just simply get what the employer gives them.

    The difficulty has been that the managed care executives and employers have been making the key decisions in the system, not individuals and families. If we wanted to make the system better, the way we would do that is to give individuals and families a chance to pick and choose the kinds of plans they want, the kind of benefits they want, the medical treatments they want at the price they wish to pay. We ought to start moving in that direction and develop policies to do that. If we did that, if we expanded choice and personal control, a lot of these problems that are trying to be addressed by Congress would start to disappear.

  • RAY SUAREZ:

    Sarah Rosenbaum?

  • SARAH ROSENBAUM:

    I actually think we're talking about apples and oranges here. I am sure that the biggest single problem facing the American health care system– and here I agree completely with Dr. Angell and Mr. Moffit– is 43 million uninsured Americans, and a system that essentially is so fragile that we don't know in the next economic downturn how many more people will lose their coverage. But in my view, that is a very different issue from the question of whether the system that we have for those of us who are insured, who are actually most Americans still today, ought to be accountable. And I think that what this debate was about, recognizing absolutely the structural dilemma that Dr. Angell has pointed out, this debate was all about assuring that for those of us, 180 million of us who hold private insurance, that we can be guaranteed that arbitrary base list decisions about our medical treatment will not be made and that we will have no way to respond rapidly.

  • RAY SUAREZ:

    Well, Michael Weinstein, you keep hearing your colleagues using words like irrational, contradictory. Are we getting closer, inching closer, to having a different kind of national conversation about how we get our health care?

  • MICHAEL WEINSTEIN:

    Well, not judging from last week's debate. Last week's debate, if you listen to the Senators on the floor, they talked about how this bill was going to be important for improving the quality of health care for typical Americans. That's a hard argument to swallow. External review and the other protections are modest. They apply to relatively few people. We have experience with external review in the Medicare program and other programs — it's used by very few people — Medicare, fewer than two in a thousand Medicare enrollees will use external review. This is not going to have an important impact on the quality of care. And the quality of care is, needs great improvement.

    The studies tell us, Lucian Leap (ph) at Harvard tells us that preventable medical errors at hospitals account for up to 100,000 fatalities a year. That's equivalent, he says, to three jumbo jets crashing every two days. That's a quality issue. The reasons that hospitals lack the systems to protect patients from preventable errors, sometimes deadly, often deadly, that's a health care crisis issue, and these bills… The bill that was passed in the Senate doesn't even begin to attack that problem. We're flitting around at the margins. And we're pretending it has a big impact on health care. It does not.

  • RAY SUAREZ:

    Well, if someone is victimized or feels they've been victimized by one of those errors, if a family member has a negative result, should they be able to sue either the company that provided it, the doctor that oversaw the treatment, Robert Moffit?

  • ROBERT MOFFIT:

    I think that there should be suits for people who are injured by insurance companies just like there should be suits for people who are injured by doctors. My fundamental point is, is that we have got to get beyond the current structure to develop a system where people have more control and can pick and choose the plans they want. I mean, if you have an opportunity to make benefit decisions up front, you're going to have less of a difficulty. It is far better to fire a poorly performing health insurance plan than to go out and hire a lawyer and sue them. I'm not saying we shouldn't have a right to sue when people are damaged by terrible decisions by managed care plans.

    What I am saying is that we have got to get beyond the structure of simply relying upon what employers and managed care executives say. Now as far as the whole question of external review and improving the current system with the current bill, we're focusing on litigation, but there's another side of this. And the other side of this is that the Senate bill creates an enormous regulatory structure. If you actually read the bill, the bill provides for the federal government to control virtually every aspect of health care plan delivery: Utilization review, appeals procedures, even the delivery of prescription drugs through formularies.

    Now we have that experience with Medicare where we have the HHS bureaucracy making a lot of decisions about how plans operate. And the consequence is that we actually are spending and wasting more resources that should go to patient care and at the expense of the patient. Back just a few weeks ago the American Hospital Association produced a report that for every hour of care delivered to a Medicare patient, hospital officials have to spend at least a half hour complying with Medicare paperwork. The last thing we need to do, Ray, is to import into the private sector the regulatory regime that is causing so much trouble in the Medicare system.

  • RAY SUAREZ:

    Dr. Angell, let me close with you. You've talked a little bit about where incentives, in your view, are misled. What about liabilities?

  • DR. MARCIA ANGELL:

    We have to look at the motivations, the incentives that cause care to be denied. If you talk, if you focus too much on the suits after the care has been denied, it's like trying to put a band-aid on a gaping wound. You have to look at why the care was denied in the first place. It's a little late in the day when you get to the point of suing. Now, let me answer Mr. Moffit because while he and I agreed on the diagnosis of patients' rights bills and the fact that it would increase the number of uninsured we certainly disagree on the remedy. And I'm appalled to hear him imply that Medicare is somehow inefficient. It has far lower overhead costs than the private managed care system, far lower, 2 or 3 percent as compared with about 30 percent, and in fact, his solution that you would throw individuals out into this treacherous private healthcare insurance market is a recipe for disaster. What we need, in essence, is Medicare for everyone. We need a single payer system, Medicare for everyone. Medicare is the most efficient part of our health care system and it's certainly the most popular. That's what we ought to be looking toward.

  • RAY SUAREZ:

    Well, that places the debate on a very, very different footing, and we're not going to be able to have that one right now, but thank you all for joining us tonight.

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