New Patient's Bill of Rights Draws Fire From All Sides

May 16, 2001 ( - A new patient's bill of rights was formally introduced Tuesday with support from the White House, but it was already drawing fire from both sides of the aisle.

The “Bipartisan Patients’ Bill of Rights Act of 2001” was introduced by Republican Sens. Bill Frist of Tennessee and James Jeffords of Vermont, as well as Democratic Sen. John Breaux of Louisiana. 

Designated “Driver”

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The Frist-Breaux-Jeffords legislation claims to protect employers who do not make medical decisions, from lawsuits. This includes the statutory authority to designate parties, such as the insurance carrier or the third-party administrator, as “designated decision-makers”, that will have “clear and exclusive authority” to make determinations that could give rise to legal causes of action.

Designated decision-makers must demonstrate that they can fulfill their responsibilities, including financial obligations that stem from liability, by obtaining liability insurance or by meeting certain capital and surplus requirements.

The bill would:

  • require patients to exhaust an independent medical review process before seeking damages against health maintenance organizations and health insurers in federal court
  • cap civil penalties at $100,000 when a patient files an appeal and the external reviewer determines that the appeal is not subject to independent medical review, if a federal court finds the denial causes substantial harm to the patient
  • limit noneconomic damages to $500,000
  • allow for unlimited economic damages
  • not permit punitive damages.

Taking Sides

The White House supports the breadth of coverage, as well as the caps imposed on most damage recoveries.  However, Democrats said the bill didn’t go far enough to end HMO abuses, while some Senate Republicans were concerned that the end result would increase health-care costs and impede state’s rights by moving medical malpractice cases against providers into federal courts.

The American Benefits Council expressed concern that the Frist-Breaux-Jeffords bill would reportedly permit lawsuits against health plans and employers at the federal level for “wrongful” coverage.  The Council also expressed concerns that the new proposal would permit independent external review entities to rely on criteria for making final, binding coverage decisions that differs from the criteria agreed to in contracts between employers and health plans. 

At the same time, the legislation retains the current law distinction with respect to remedies in the areas that the courts have determined are traditional areas of state concern, such as the “quality of health care” and “treatment” standards. 

Doctor Bill

The legislation bans so-called “gag rules” in providers’ contracts that might restrict health care professionals from communicating with their patients about treatment options.

The bill’s authors claim that the legislation expressly states that any harm resulting from treatment and health care delivery activities will continue to be subject to state law remedies.

The Frist-Breaux-Jeffords bill also expressly provides that health care professionals who directly deliver care or treatment, or who provide services to patients, can not be sued for coverage decisions as designated decision-makers unless they expressly agree in writing to that status.

– Nevin Adams

A summary of the Frist-Breaux-Jeffords bill is available on Senator Frist’s Web site