Practice Beat

Practice Beat

Tort Reform: For Oregon doctors, it's back to square one

Just a dozen years ago, Oregon physicians celebrated the state legislature'spassage of a tort reform law. Now, the state Supreme Court has struck downa provision of the law that capped noneconomic damages at $500,000. Rulingin a product liability suit, the high court found that the cap violatedthe state constitution.

The Oregon Medical Association, which had filed an amicus curiae briefin the case in question (in support of the defendant, and thus in favorof the cap), moved quickly to repair the damage. Within 48 hours, two OMA-backedbills were introduced in the state Senate. One measure will ask voters nextMay to approve a constitutional amendment giving the legislature statutoryauthority to limit civil awards; the other would restore the $500,000 capupon passage of the constitutional amendment.

"We spent nearly two years and enormous amounts of resources persuadingthe public to demand tort reform from a hostile legislature in 1987,"says OMA Executive Director Robert L. Dernedde. "This time, we'll haveonly a few months to convince the voters." If the high court's decisionis allowed to stand, he warns, it "will surely drive all liabilityinsurance rates through the roof." According to the OMA, professionalliability insurance costs today are about half what they were in 1987.

Patients' Rights: Congress drags its feet as states rush to protectpatients

While the House moves slowly toward a bipartisan consensus on the rightto sue HMOs, the Senate has passed a measure that the AMA describes as anHMO protection bill. The Republican majority rebuffed Democrats' attemptsto include a provision that would have given patients the right to sue self-insuredhealth plans governed by the Employee Retirement Income Security Act.

State legislators, on the other hand, seem to have had little difficultyreaching a consensus on a wide variety of patient protections. Accordingto the National Conference of State Legislatures, all 50 states have enactedat least one patient protection measure. Among the most common:

• Bans on provider gag clauses (47 states).
• Coverage for ER screening and stabilization (36).
• Direct access to obstetric and gynecologic services (letting women choose an ob/gyn as primary caregiver) (36).
• Prudent layperson standard for reimbursement of ER care (35).
• Independent or external review of adverse decisions (29).
• Mandatory disclosure of restrictive drug formularies (28).
• Mandatory coverage for continuity of care by physicians who've been dropped by a health plan (22).
• Minimum length of stay following mastectomy (19).

Docket Watch: Informed consent takes on a whole new meaning

When an Illinois widow sued her husband's physician for malpractice recently,the state appellate court allowed her to sue the doctor for breach of fiduciaryduty, as well.

The woman contended that her husband's death in a cardiac case resultedfrom the doctor's negligence in relying on preliminary tests alone to decideagainst a specialist referral. In a second count, she claimed that a fiduciaryrelationship existed between the doctor and his patient, and the physicianbreached it when he failed to disclose that his HMO contract included financialincentives to limit care. The court agreed that her claims were distinct,separate causes of action, and allowed both to proceed.

The appeals court said that because patients rely on their doctors' adviceabout treatment options, they must know whether that advice is influencedby financial considerations created by health insurers. The court notedthat the AMA's Council on Ethical and Judicial Affairs supports physiciandisclosure of all material facts affecting a pa-tient's care.

Health Costs: Inching back to double-digit growth?

The pressure on doctors and other health care providers to contain medicalcosts is likely to increase. Insurers surveyed at midyear by Buck Consultants,a human resources advisory firm, expect cost increases to exceed estimatesthey made at the beginning of 1999.

Respondents now predict that premiums for HMOs will rise 6 percent (vsan earlier forecast of 5.6%), point-of-service plans 7.7 percent (vs 7.3percent), and PPOs 10.2 percent (vs 9.8 percent). Not surprisingly, thefastest premium growth among health plans is predicted for traditional fee-for-servicecoverage (12.1 percent).

Companies offering employees prescription drug coverage will pay insurers17.6 percent more for that benefit this year (vs an earlier estimate of14.6 percent), the survey indicates.

Buck attributes the faster-than-expected premium growth to lower Mediplanrates, which prompt health plans to shift costs to private payers; the expansionof mandated benefits; increased regulatory scrutiny of providers; technologicaladvances; and hospital consolidations, which give health systems more leveragein negotiating fees.

Quality Care: Why health plans vary all over the lot

The gap between high- and low-performing health plans is enormous, saysthe National Committee for Quality Assurance. The proportion of plan memberswho receive diabetic eye exams, for example, ranges from less than 10 tomore than 80 percent, while the proportion of members who receive beta-blockersfollowing an acute cardiac event ranges from 40 to 100 percent.

It's hardly surprising that plans with consistently high HEDIS scoresare the same ones that regularly report their data to the public, NCQA adds.Their commitment to performance measurement affects how they deliver allaspects of care, not just those currently being measured.

Some high- and low-performing plans operate in the same market and sharemany of the same physicians, NCQA notes. That led it to conclude that healthplans themselves--not patient demographics or physician networks--are thedetermining factor in whether critical care and service are provided.

Managed Care: Doctors hit hard at denials of service

Though many physicians see positive aspects of managed care, most believeits impact is primarily negative, according to a Henry J. Kaiser FamilyFoundation survey.

On the plus side, doctors credit managed care with increasing the useof practice guidelines and disease management protocols, as well as encouragingpatients to seek preventive services. On the downside, many doctors citeincreased administrative burdens, too little time with patients, and thelack of clinical autonomy.

And almost half say they've had to resort to subterfuge to obtain medicallynecessary care for a patient.

How frequently health plans denied treatment during the past two years*

Weekly or monthly

Every 6-12 months

  Never

61%

18%

9%

42

27

16

31

29

19

29

23

25

18

20

28

*Omits doctors who had no response to question.

Source: Kaiser Family Foundation/Harvard University School of PublicHealth 1999 Survey of Physicians and Nurses

By Joan R. Rose, Senior Editor

Suzanne Duke. Practice Beat.

Medical Economics

1999;18:31.