To Sue or Not to Sue?
Erisa
A wrinkle in the federal law makes it harder than ever to win a claim
for medical malpractice
From Newsweek - December 9, 1996
A managed-care company in Baltimore refuses an obstetrician's request
to hospitalize his patient, a woman with a high-risk pregnancy. Instead,
it authorizes 10 hours of daily home-nursing care. The fetus goes into
distress while the nurse is off duty and dies.
An HMO in Kansas City,
Mo. , denies a heart-attack victim's a request for
surgery that could be performed only at Barnes Hospital in St. Louis.
Sorry, the plan said, that hospital is out of our service area. By the
time the patient challenges the decision and gets approval for the needed
surgery, it's too late. His heart is damaged beyond repair, and he dies
awaiting a transplant.
In the olden days, before managed care, there was a crude but proven
redress for such blunders: suing for medical malpractice. You might
not collect
enough money to make up for what went wrong. But you'd probably get some
compensation -- and the satisfaction of having delivered a kick to the
pocketbook of those responsible. Nowadays, forget it. Most Americans
don't
yet realize it, but a wrinkle in federal law makes it much more difficult
to win a malpractice suit against a managed care company. If you've
been
given shoddy or negligent care, you may be able to sue its doctors, but
you have little effective remedy against the HMO itself. and if there's
no financial penalty when health plans are negligent, what's to stop
theses
profit-driven creatures from delivering inadequate medical care.
"HMO's are using an obviously remedial law against the people it's designed
to protect," says Stephen Pokiniewski, a Philadelphia attorney. The
legal loophole is from the ERISA act drafted in 1974 to protect employees
from
pension mismanagement.
The HMO's reason that they shouldn't be sued for
malpractice. They are not healthcare practitioners. True, but the
doctor or hospital often
has
to work under rules set by the HMO.
Last modified on Oct 20 1997
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