US HMOs Using 1984 Law As Malpractice Defense

US health maintenance organizations including US Healthcare, Kaiser Permanente, Prudential and Pacificare are using the 1984 Employee Retirement Income Security Act to protect themselves against malpractice suits, reports the New York Times. The HMOs say they cannot be held responsible for quality of care provided through employer-sponsored health plans, because their care decisions are administrative rather than medical.

Labor Secretary Robert Reich, who enforces the law, replies that this argument is absurd since it would deprive many consumers of the right to sue for injuries caused by an HMO's negligence. The Clinton Administration is thinking about legislation to clarify the rights of those covered by HMOs; in the last three years, the NYT noted, the federal government has filed friend-of-the-court briefs disagreeing with HMOs in six cases.

A Pacificare spokesman said its contract is with doctors and hospitals, and any litigation should be directed towards them, not the HMO. Courts have split on this issue; recently, it seems patients have a better chance of winning against HMOs when they charge substandard care rather than an outright denial of health plan benefits. A spokesman for the American Medical Association said HMOs are shifting all the risk of patient care to doctors, even though they can force doctors to change their clinical decisions by threatening to terminate their contracts.