ANNAPOLIS Maryland patients could be given the right to sue their managed care organizations for the first time under legislation backed by more than a dozen legislators.
Senators and delegates say the issue is whether health maintenance organizations and managed care groups should be liable for the decisions they make regarding a patient’s medical treatment, particularly if that patient suffers from serious or permanent physical damage as a result of those decisions.
In Maryland, only physicians can be sued for medical malpractice not managed care companies, which sometimes make the treatment decisions.
“It seems to me that if you are done harm, you should have legal recourse, whether it’s an indemnity company or a health maintenance organization,” said Delegate Shane E. Pendergrass, D-Howard, a co-sponsor of the House bill.
“We’re raising the conscience level. I think patients should have the right to go to courts based on not receiving basic quality care,” said Sen. Leo E. Green, D-Prince George’s, chief Senate sponsor of the bill.
Health care liability bills have been introduced in both chambers. Both would hold responsible the agents, employees or representatives of a managed care company if a health treatment decision they make harms a member.
Green’s bill differs from the House bill, sponsored by Delegate Leon G. Billings, D-Montgomery, in that it stipulates a patient must first go through an appeals and grievance process before filing a suit. Last year, the General Assembly passed a law that created a procedure for patients to appeal treatment decisions made by health maintenance organizations.
If the proposed legislation were to become law, opponents say, the costs of health care would be driven up and already-clogged court systems would be flooded with more litigation.
Delegate Sharon Grosfeld, D-Montgomery, a co-sponsor, disagrees.
“We shouldn’t get caught up in this fear propaganda that our insurance rates will go up. I think what liability laws do is make companies more accountable and responsible,” she said.
Pendergrass said she believes the legislation would force managed care companies to provide better care for patients.
“If someone knows there is liability, they will take more time and make more well-rounded decisions,” she said.
But D. Robert Enten, a lobbyist for the Maryland Association of Health Maintenance Organizations, said the legislation would force managed care companies to make coverage decisions based not on quality, but liability.
“You can’t look at this issue in a vacuum. Increased liability does not equal increased quality care,” Enten said.
The Maryland State Medical Service backs the concept of both bills. Jay Schwartz, a legislative representative for the group, said physicians have been “micromanaged” long enough by HMOs, and the time has come to hold managed care companies not just physicians accountable.
The legislation also has gained support from a new organization called the Maryland Patient Advocacy Group.
“The ability to sue HMOs puts the fear of God into the medical profession and insurers and that will make a world of difference for patients,” said Pearl Lewis, vice president of the nonprofit organization.
Speaker of the House Casper Taylor, D-Allegany, an opponent of both bills’ concept, said he is uncertain of their future, adding that not enough time has been given to analyze the effectiveness of the appeals and grievance process.
“The general consensus from both bodies of this legislature is to allow this very strong appeals and grievances procedure to take place,” and see how it works, he said.
But Sen. Paula Hollinger, D-Baltimore County, said there are serious flaws in the procedure, the most obvious being that about 40 percent of Marylanders do not qualify under the appeals and grievance law because they are self- insured or are covered by federal Medicaid or Medicare. Many people also don’t know the process exists.
Supporters said they hope the momentum building nationally for patients’ rights legislation will help get a liability bill passed this year.
Some legislators said they also are worried that a recent decision by a Texas judge could have an impact on Maryland patients. Last year, the judge upheld the right of patients to sue their HMOs, but overturned a provision mandating an independent external review process.
“Lobbyists are working real hard to shoot this legislation down,” Green said. “And now that the appeals and grievance process has been declared unconstitutional in Texas, it’s only a matter of time before HMOs get an adverse decision and challenge it here too.”