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What About The HMO? Is Medical Malpractice Only The Crime Of The Doctor?

Managed Care Plans are health plans that currently cover over 85% of Americans.

Hailed as a cure for the health care system, in it’s attempts to control spending, have they instead been worse than the disease of health care waste?

Many Medical malpractice cases can be linked to the restrictions on health care put there by an HMO.

In one case an 80- year old woman complained of chest pains. She was given a minor pill for symptomatic relief.

2 weeks later she took herself to the emergency room, but her HMO would not allow her emergency room doctor see her medical records. Several more days of misdiagnoses followed. It was finally discovered that she had infected valves of the heart and suffered from congestive heart failure. No decisive action was taken and the woman died soon after.

In another case, a man in his 40s was diagnosed with deadly bile duct cancer. There is a surgical treatment but it is complicated and expensive. The surgery was ready to go when his HMO denied payment for the procedure. The patient was forced to mortgage his house to have the life-saving surgery.

The system is also protected largely under federal law. Currently patients can sue doctors for malpractice, but federal law makes it difficult to sue a health insurer for coverage decisions. The near total defensive armor for insurance companies is the ERISA law. ERISA stands for Employment Retirement Security Act of 1974, and it shields most health insurance companies from the consequences of their decisions to limit or deny health care.

It is called a Protected Employee Benefit, and the ERISA law overrides state laws on the subject. Recently a Third Circuit court ruled that malpractice claims are not stopped by the ERISA, so this is still under much litigation.

In the so-called Dukes case 1995, the decision read in part:

"We recognize that the distinction between the quantity of benefits due under a welfare plan and the quality of those benefits will not always be clear in situations like this where the benefit contracted for is healthcare services rather than money to pay for such services".

In the 2004 Davila vs. Aetna case, the ERISA law was upheld. Cuts in Medicaid and Medicare, together with Managed Health care plans will still make it difficult to get good health care.