So far, 54 senators have publicly endorsed the legislation, with another five or six reportedly privately indicating support, according to aides. The American Medical Association also backs the McCain-Kennedy bill.
According to the American Benefits Council, a draft of the Kennedy-McCain appears to be based on Norwood’s proposal circulated last October 2000. The bill would:
- allow individuals to sue in state court for causes of action related to health claims that involve “medically reviewable” decisions
- allow damages as high as the individual state law allows, including punitive damage awards
- give federal courts jurisdiction over administrative coverage issues as well as disputes that do not involve medical judgment issues
- permit uncapped economic and noneconomic damages in the federal courts along with up to an additional $5 million for “bad faith” actions that disregard patient rights
- give patients the right to choose their own doctors
- ensure that external reviews of medical decisions are conducted by independent and qualified physicians
- allow states to develop their own patient protection laws; If the state law is comparable to those at the federal level, the state law will remain in effect.
Employers would not be protected from liability in either federal or state courts if they are alleged to have had “direct participation” in a matter that is subject to court review. The court will decide on the level of participation, based on the facts/circumstances of the case.
According to the Council, direct participation would include the employer’s involvement in “making the actual decision” or “the exercise of control in making such decision or in the conduct constituting the failure”.
Bush Proposal Coming
The Bush Administration has already expressed concerns about the size of the caps, though the punitive damages cap was viewed favorably. The White House is expected to outline its plan later this week.
White House spokesman Ari Fleischer said that an acceptable bill should not drive up health care costs, or force employers to drop coverage – both of which are likely results of the McCain-Kennedy bill, according to opponents.
President Bush is also said to support the right to sue in federal courts, not under state laws.
– Nevin Adams firstname.lastname@example.org
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