Such was the case when I read a November 17, 1996 New York Times account of health maintenance organizations' (HMO) assertion that they should be immune from medical malpractice claims, because they are just merely a business supplier of employee benefits and are not involved in the actual practice of medicine.
HMOs, which currently have over 60 million Americans under their care, believe they are protected against medical negligence claims by a 1974 federal law that regulates employee benefits.
The 1974 law, called the Employee Retirement Income Securities Act, was passed to establish a single unified set of federal standards for employee benefit plans so that employers would not have to comply with a multitude of different laws and standards in each state.
HMOs are asserting that they have no liability because they are administering a benefit plan, and, therefore, by law are immune from claims of negligence. What chutzpah!
Former Labor Secretary Robert Reich has called this tactic absurd and spoken of the need for legislation to clarify the rights of workers who are under the HMO umbrella
Doctors all over the country are furious. An American Medical Association spokesman recently said: "HMOs are shifting virtually all of the risk of patient care to physicians, even though the HMO can force doctors to change their clinical decisions by threatening to terminate their contract."
HMOs often determine which tests can be performed, who can have surgery, who can be admitted to the hospital and for how long, which doctor is available to take care of patients, and even what a doctor can tell a patient about healthcare options. Despite this, HMOs are claiming that they are not legally responsible for medical negligence claims when injury or death occurs. HMOs claim that they do not make medical decisions.
The medical malpractice scene is crowded enough today, so I am not advocating adding another deep-pocket player to the table. I am, however, convinced that HMOs that dictate major regulation and rules for physicians concerning patient care shouldnВ’t be able to avoid responsibility for their actions.
HMOs often market their products to attract consumers by claiming to have the best doctors and hospitals available. But then, when it comes time to go to court, these same HMOs claim not to be responsible for the doctors and hospitals they advertised or the quality of care they are dispensing.
HMOs claim that by imposing liability on the health plan itself, the cost of the plan would naturally rise. Well of course! That is exactly what has happened to the cost of healthcare in this country. The large number of malpractice claims made against the medical profession has driven up the cost of doing medical business for everyone.
Spokesmen for HMOs, such as attorney Peter M. Roan, who represents Pacificare and other HMOs in medical malpractice cases, claim that "HMOs normally cannot make medical decisions about the treatment provided to their members. Those determinations must be made by treating physicians under contract with the HMO. The HMO should not be held responsible for the alleged medical negligence of the doctors".
OK, I will agree with Mr. Roan on one condition. Physicians and hospitals will let HMOs off the hook so far as claims of medical malpractice is concerned; however, in return HMOs will have to agree to leave us alone in our attempts to practice what we believe to be quality and compassionate care.
HMOs will have to stop telling us which tests we can order, which patients can be admitted to hospitals and how long they can stay, and what we may say to our patients. Only then will we agree with the premise that HMOs should not be held legally responsible for claims of medical malpractice.
(Frank H. Boehm, MD is a professor of OB/GYN and Director of OB at Vanderbilt Medical Center in Nashville, TN. He can be reached at his web site http://dr-boehm.com. Dr. Boehm resides in Boca).