Continuing Editorial Comment on Patients’ Rights

As the Senate debates patients' rights legislation, editorials continue to surface in newspapers nationwide, weighing in on the two bills under consideration. The first bill (S 283), sponsored by Sens. John McCain (R-Ariz.), Edward Kennedy (D-Mass.) and John Edwards (D-N.C.), would allow patients to sue HMOs in state court for denial of benefits or quality of care issues and in federal court for non-quality of care issues. The bill would cap damages awarded in federal court at $5 million, but state courts could award as much money in damages as the state allows (Kaiser Daily Health Policy Report, 2/7). The second bill, backed by President Bush and sponsored by Sens. John Breaux (D-La.), Bill Frist (R-Tenn.) and Jim Jeffords (I-Vt.), would allow patients with private health insurance to sue health plans after exhausting an appeals process by an outside review panel. Patients could only sue health plans in federal court, not state court, with damage awards capped at $500,000 (Kaiser Daily Health Policy Report, 5/16). Today's editorial reactions -- all of which either endorse the Frist bill or call for a compromise -- are summarized below.

Favoring Frist-Breaux-Jeffords

• Atlanta Journal- Constitution: While it is "admirable" that Congress is addressing the issue of patients' rights, lawmakers must act "without devastating the [insurance] industry or employers," according to a Journal-Constitution editorial. The editorial says that under McCain-Kennedy-Edwards, trial lawyers would see the "biggest benefits" and insurers would be forced to raise premiums, leading to "fewer options for consumers and more people without health insurance." Noting that supporters of McCain-Kennedy-Edwards use patients' rights laws enacted in Georgia and Texas as evidence that their bill would not increase litigation, the editorial says the state laws have not been in effect "long enough for the repercussions to be felt." The editorial concludes: "The key to patient protection legislation is to ensure health care remains affordable and accessible. Lawmakers ought not listen to Kennedy-Edwards-McCain's ode to trial lawyers" (Atlanta Journal-Constitution, 6/21).
• Dallas Morning News: The "more appealing approach" to patients' rights legislation is the Frist-Breaux-Jeffords bill, as it attempts to "avoid worsening the seemingly insatiable appetite for litigation" by restricting lawsuits to federal court, a Morning News editorial says. Urging legislators to reach a compromise, the editorial says Republicans should "aggressively" try to amend the McCain-Kennedy-Edwards bill to "incorporate their concerns" that the Democratic-backed measure will increase lawsuits, premiums and the ranks of the uninsured, in hopes of creating a final product that can pass the GOP-controlled House and "decreas[e] the likelihood of a presidential veto." The editorial concludes, "Americans don't ask much of their elected officials. But on this issue, they ask their representatives to obey the same commandment that binds physicians to the Hippocratic Oath: First do no harm" (Dallas Morning News, 6/21).
• Denver Post: The McCain-Kennedy-Edwards plan "goes too far" by allowing patients to sue employers and "encouraging lawsuits," while also "driving up costs," according to a Post editorial. Instead, legislation should "encourag[e] quick, early resolution of disputes." The editorial "find[s] fault with" the punitive damages permitted under the Democratic-backed bill and calls the Frist-Breaux-Jeffords bill a "sensible compromise" to the question of "how wide to open the doors to the courts." The editorial concludes: "We favor something closer to the president's position than to that endorsed by the Democratic leadership, but remain optimistic that -- given the high political stakes -- the nation will see a bill signed this year" (Denver Post, 6/21).
• New York Daily News: The Frist-Breaux-Jeffords bill "recognizes [the] delicate balancing act" between "empower[ing]" doctors and patients while at the same time "safeguard[ing]" the industry, a Daily News editorial says. Saying the bill "set[s] responsible limits on punitive damages," the editorial adds: "Credit the president for continuing to hold firm on that critical element of the legislation." In opposing McCain-Edwards-Kennedy, the editorial says the bill would "release a tsunami of litigation" on the insurance industry, which is "already terrorized by lawsuits" that are increasing the cost of health care. Saying that "quality care should not be crippled by ill-conceived feel-good legislation, the editorial concludes: "A patients' bill of rights sounds pretty. What the Democrats are offering is a bill of goods" (New York Daily News, 6/21).
• Wall Street Journal: In opposing the bill sponsored by the "irrepressible John McCain," a Journal editorial says the legislation was produced from the belief of the "entire Democratic Party ... that no private institution will act in good faith absent the possibility of being torn to pieces by a lawsuit." Calling the McCain-Kennedy-Edwards bill part of former President Clinton's "legacy" that tied the Democratic Party to the "unseemly world of the trial lawyers," the editorial says the bill will act to "transfer money via the courts out of HMOs and into [trial lawyer] bank accounts, and from there into accounts for various Democratic election campaigns." Noting that the "perceived fixes for HMO horrors" have bipartisan support, the editorial says a bill would be law by now, "were it not for the trial lawyers' insistence that [Sen.] Tom Daschle (D-S.D.) cut them a side of beef." The editorial calls Frist-Breaux-Jeffords a "sensibl[e] ... alternative" (Wall Street Journal, 6/21).

Room For Compromise

• Los Angeles Times: As both sides in the debate have "legitimate gripes," the Times editorial says "a dose of compromise" is needed. To keep the Senate debate from "degenerating into a Politicians' Battle of Self-Righteousness," lawmakers should "agree on a few basic rights," including the right to appeal decisions to an independent panel and "ultimately the courts." The editorial also says "all insured people" should have such rights, not just those insured by federally regulated plans. The editorial concludes: "Each side wants more than it can politically get. The real question is whether consumers will get anything. If Congress can put aside politics on any issue, it should be this" (Los Angeles Times, 6/21).
• Milwaukee Journal Sentinel: Noting that both McCain-Kennedy-Edwards and Frist-Breaux-Jeffords "could make health insurance unaffordable for those who barely can afford it now," the editorial acknowledges that "no worthwhile remedy is cost-free." While President Bush and Senate Democrats are "in no mind to compromise" over the two bills, the editorial says, "The makings of a deal are clearly there." This opportunity should be taken "for the health of ... constituents," the editorial says. "Daschle is right when he argues the GOP bill is too limited, but he and Bush are doing the public a disservice in their refusal to compromise," the editorial says (Milwaukee Journal Sentinel, 6/20).
• Omaha World-Herald: Calling for lawmakers to exercise "patience" when debating patients' rights legislation, the editorial praises Nebraska Sens. Ben Nelson (D) and Chuck Hagel (R) for voicing "concerns" over both McCain-Kennedy-Edwards and Frist-Breaux-Jeffords. While HMOs have "acquired" the "often unfair" reputation of being "heartles[s]," the editorial says the issue needs "special attention" to determine "how widespread" problems are and if they could be solved "by a more modest level of government intervention." Noting that Nelson has said both bills "usur[p]" state authority, and that Hagel has said McCain-Kennedy-Edwards has "all kinds of trial lawyer goodies," the editorial commends both senators for "expressing concerns." This "questioning attitude" can force both sides to express the "best arguments and defenses." After that, "an informed course of action should be easier to chart," the editorial concludes (Omaha World-Herald, 6/21).