Almost unnoticed, the lawsuit is becoming a primary weapon against managed care. To rationalize costs, the medical world is trying to say no to procedures that seem futile, borderline or unproven. But when doctors decline to operate and insurers refuse to pay, patients are going to court to get a second opinion. And they’re turning up laws that can force the medics to obey.
So far, most of the lawsuits boil down to contract disputes, where the patients say they’re covered and insurers say they aren’t. The most visible issue is the bone-marrow transplant for women with advanced breast cancer (basic cost: $60,000 to $150,000, plus follow-up care and the cost of frequent complications). A transplant can arrest leukemia or Hodgkin’s disease. But doctors disagree about how well it works on cancer of the breast, and research hasn’t offered an answer yet. Some insurers cover these cases, but others don’t, because the therapy is unproven. Many dying women who seek this procedure are being turned down.
Go sue:But the desperately ill may want every treatment, proven or not. And women who sue have often won. Take Nelene Fox of Temecula, Calif., whose HMO, Health Net, denied her a transplant in June 1992. It said that the treatment was experimental and unsuitable in her case (although her lawyer, Mark Hiepler, points out that other cases were paid for). Fox raised the money and was treated in August, but died eight months later. Her family sued for damages and won a record $89 million judgment – later settled for an undisclosed sum. In the jury’s opinion, Fox should have qualified for coverage and was turned down simply to raise Health Net’s profits.
In other lawsuits, insurers have won – usually when their contract language explained what was covered in detail. They still might cave when a lawyer calls, to avoid the publicity of a trial. But given the low odds of success, should everyone get transplants just to rescue a lucky few?
Good social policy would say no, but the patients (and many juries) say yes. AIDS patients, too, are successfully suing for controversial treatments that their doctors hope might help. Next up, says internist Dr. Alan Garber of the Palo Alto Veterans Administration Medical Center, will be urgent demands for new therapies that can manage chronic genetic disorders but at a seven-figure price. Note that these lawsuits are brought by patients with health insurance. If they win the right to any costly treatment they want, it will be tough to find money for the uninsured.
A startling case decided in February by the federal Court of Appeals in Richmond, Va., may further undermine managed care. It forces hospitals to treat – and insurers to cover – even hopeless cases, if the family insists.
The patient at issue is a 20-month-old infant known to the courts as Baby K. She was born without part of her brain and will never reach consciousness. Her brain stem runs her reflexive functions but can’t keep her breathing all the time. Most such babies die within a few days.
But Baby K’s mother is praying for a miracle, and wants the infant resuscitated every time her breathing stops. The court says the hospital has to do it under the anti-dumping law, which was originally passed to protect the uninsured. This law requires hospitals to treat all emergency patients – and when Baby K stops breathing (a condition known as apnea), that’s an emergency. The doctors aren’t allowed to decide which patients ought to be revived. If Congress thinks money shouldn’t be spent on hopeless cases, the judges said, Congress should amend the law.
The hospital will appeal the decision, so this issue isn’t settled yet. Through mid-June, the insurer Kaiser Permanente had paid $246,600 for Baby K, most of it in hospital bills. Medicaid covers much of the cost of the nursing home where the infant lies, but the mounting sum hasn’t been disclosed.
This troubling case may also affect treatment rights beyond the emergency room. Baby K is clearly disabled, a lower-court judge has pointed out. Therefore, she’s protected by the 1990 Americans with Disabilities Act (ADA), which prohibits discrimination based on physical condition. No matter how meager her life, she must be treated on request if her emergency (apnea) would be treated in a functioning person.
Futile care: That opinion throttles another line of attack on runaway medical costs. At some hospitals, guidelines have been developed to end the practice of futile care – defined (in the words of the Santa Monica Hospital Medical Center) as treatment that ““cannot, within a reasonable possibility, cure, ameliorate, improve or restore a quality of life that would be satisfactory to the patient.’’ Both of the courts that have passed judgment on Baby K would apparently throw those guidelines out. Under yet another law – the federal Child Abuse Act – doctors are pressured to treat seriously damaged or premature infants even when their prognosis is poor.
Any decision not to treat is illegal under the ADA if treatment is withheld because of the patient’s presumed low quality of life, says Robert Griss, director of the Center on Disability and Health in Washington D.C. Griss plays down the ADA’s link to the Baby K decision, for fear it might influence Congress to weaken the rights of the disabled. But the ADA is looking like a stealth route to guaranteed medical care. ““It’s a civil-rights law, so you can’t get around it on the ground of cost control,’’ Griss says.
Absent cost control, however, universal care is out of reach. In this clash between private wants and the public good, does Congress have the guts to put the public first?
