Unfortunately, last week, on August 2, just one month after Washington state's Patient's Bill of Rights kicked in, the United States House of Representatives passed its own "Patient's Bill of Rights." If this federal version is signed into law, it will override the guidelines of our far superior state version. You can thank George W. Bush for the bad news.
Indeed, last week, at the behest of President Bush, who had threatened to veto an earlier Congressional bill (one that mirrored the Olympia law), the U.S. House narrowly passed a new health-care bill to the president's specifications. To the chagrin of local legislators like former Tacoma state Senator Lorraine Wojahn--the main sponsor of the Olympia bill--the federal version would undermine the rights of local health-care consumers.
"I'm disappointed," Wojahn says. "If they hobble our legislation, put it in a straitjacket so we can't enforce our legislation--it'll be a 'no law' law. Bush is amoral, I believe."
In addition to putting a cap on damage awards, there are three significant ways that the Bush version differs from Wojahn's Olympia version.
The first important difference between Bush's "Bill of Rights" and the Olympia bill (SB 6199) involves liability. Under the White House version, an HMO can only be held accountable for a bad health-care decision if it was the sole cause of the injury. For example, say a patient is in the hospital with pneumonia, but his or her insurer won't let the patient stay an extra day. If the patient goes home and collapses and dies, the HMO was not the sole cause of the death, according to the Bush version, because the patient already had pneumonia. In turn, the HMO cannot be sued. "That destroys the whole liability concept," says Larry Shannon, government affairs director for the Washington State Trial Lawyers Association. "[The insurer] could never be held liable under that standard." Under the Olympia version, the HMO can be held accountable if it was simply one of the causes.
A second dramatic difference between the Olympia bill and the Bush bill is the way the bills govern the third-party independent review process. Under the Washington state bill, Olympia "must adopt rules for the selection and operation of independent organizations."
"Our law makes sure that the review process is truly independent," says Bill Hagens, the staffer at the Washington State Insurance Commissioner office assigned to oversee the Patient's Bill of Rights. "In the Bush version, the insurance company can go with anyone they want."
Indeed, the Bush version does not spell out any regulatory guidelines.
A third giant difference between the two bills would hurt Washington health-care consumers' prospects in court. Under the Bush version, the findings of the independent review are only admissible in court if the review ruled in favor of the insurer. If the review sided with the patient, that finding would be inadmissible in the follow-up court proceedings. "It creates a legal presumption against the plaintiff," says Shannon. "Under our state statute," Shannon adds, "the independent review findings are admissible either way. The U.S. House passed an HMO protection bill, not a patient protection bill."