[Congressional Record Volume 145, Number 133 (Tuesday, October 5, 1999)]
[House]
[Pages H9307-H9308]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                        PATIENTS' BILL OF RIGHTS

  The SPEAKER pro tempore. Under the Speaker's announced policy of 
January 19, 1999, the gentleman from New Jersey (Mr. Pallone) is 
recognized during morning hour debates for 5 minutes.
  Mr. PALLONE. Madam Speaker, we are expecting that tomorrow we will 
have a debate on the Patients' Bill of Rights on HMO reform. We do not 
have the rule yet coming out from the Committee on Rules, and I have 
expressed many times on the floor of the House my concern that this 
rule, this procedure that may be adopted would allow the Republican 
leadership in the House to add poison pills, extraneous issues to the 
Patients' Bill of Rights in an effort to defeat it.
  But I do not want to dwell on that today because I am still hopeful, 
still optimistic that that will not be the case and we will be allowed 
to have a clean vote on the Patients' Bill of Rights and provide for 
patient protections for those Americans who have their health insurance 
through HMOs or managed care.
  But I am concerned, Madam Speaker, about the fact that, in the last 
few weeks and certainly the last 2 days, we have had a barrage of ads 
and articles that are basically put out by the HMO industry, by the 
insurance companies in an effort to defeat and spread erroneous 
information about the Patients' Bill of Rights, about the bipartisan 
Norwood-Dingell bill.
  One that I think that we have basically disputed effectively but 
keeps coming up is the argument that, under the Patients' Bill of 
Rights, there will be too many lawsuits because now patients will be 
able to sue their HMO if they suffer damages; and, secondly, that the 
cost of health insurance will skyrocket because of the fact that there 
will now be the ability to sue the HMO as well as the various patient 
protections that are in place.
  I think that the Texas law which has been on the books now in the 
State of Texas for 2 years, very similar to the Norwood-Dingell bill, 
effectively disputes the cost argument as well as the HMO liability or 
ability to sue the HMO argument.
  Over 2 years now in Texas, there have only been four lawsuits filed 
against HMOs. In addition, the costs of health insurance premiums for 
those in managed care have not gone up at all. In fact, Texas rates 
have actually been less than a lot of other States. The increases have 
been actually less in Texas than a lot of other States where they do 
not have patient protections, where they do not have the Patients' Bill 
of Rights.
  But, today, I hear another argument which I think needs to be 
effectively refuted as well, and that is that, somehow, employers, not 
the HMOs, but employers are going to be liable to suit under the 
Norwood-Dingell bill and that because employers will be sued, a lot of 
employers will drop health insurance, and the ranks of the uninsureds 
will increase. Well, nothing could be further from the truth.
  The fact of the matter is that under the Norwood-Dingell bill, under 
the Patients' Bill of Rights, we have specific language that shields 
the employer from being sued in almost every circumstance. An employer 
would actually have to actually be involved in the very decision about 
whether or not one is going to have a particular operation or be able 
to stay in the hospital before they could be liable for suit, which is 
simply not the case.

[[Page H9308]]

  In every case, the insurance company or a third party administrator 
handles those decisions for employers pursuant to their insurance 
policy. We have very effective shield language in the bill that 
effectively precludes the employer from being sued.
  Now, I want to say I thought there was a very interesting article in 
today's Washington Post, an op ed by Anthony Burns where he tries to 
say and he admits that we do have shield language in the bill that 
would effectively preclude an employer from being sued.
  But it goes on to say, essentially, in the article, and this is sort 
of a new twist on this theme, that even though the shield language is 
there, it will not matter because crafty trial lawyers will find a way 
to get around it.
  He talks about, first, that plaintiffs could argue that insurance 
companies or third-party administrators are merely the agents of the 
employer, or a crafty lawyer could argue that, by selecting one health-
care provider over another, the employers' discretionary decision 
played a role in a decision or an outcome with regard to patient care. 
Well, that is totally bogus.
  Any trial lawyer, of course, can make any argument, and anybody can 
be sued and make an argument. But the bottom line is, if one has 
effective shield language, those arguments are not going to work.
  One of the things that disturb me the most is that, if one sees what 
is happening around the country, one will see in a recent Illinois 
Supreme Court decision, or even a case that is now being obtained by 
our own U.S. Supreme Court, that the courts increasingly are getting 
around the prohibition on the right to sue.
  But just because that is happening does not mean that we, when we 
pass legislation, which we are hopefully going to consider in the next 
few days, that if we put specific language in that says the employers 
cannot be sued, that should be sufficient for those who are concerned 
about this issue. Because any lawyer can make any argument. Any court 
can overturn any decision or any Federal language. But the bottom line 
is that we are putting that protection in the bill. I think that that 
should be sufficient. It is a recognition of the fact that the 
employers cannot be sued.
  Please support the Norwood-Dingell bill. Do not be persuaded by these 
false arguments.

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