The Debate Over the Patients' Bill of Rights

(CBS)  This week the debate over the patients' bill of rights continues in the Senate. A major sticking point--the right to sue.

Will the Republicans compromise, or can the Democrats pass their bill? We'll ask the Republican senator from Oklahoma, Don Nickles, and Democrat John Edwards of North Carolina.

BOB SCHIEFFER: And good morning, everyone, on a fine summer day. We start in our Washington studio--Democratic Senator John Edwards, who's leading the fight for HMO reform; Senate Republican whip Don Nickles.

Senator Edwards, I want to start right with you and something that is on the front page of the New York Times today, right here their lead story. And I'm going to quote the lead. It says, "It's not about HMOs," but it says, "A group of personal injury lawyers identified a pattern of failures in Firestone tires in 1996 but didn't disclose it to the government for four years out of concern that private lawsuits would be compromised."

Now that's what a lot of people are worried about when you're talking about giving people the right to sue their HMOs--[that] it is just going to become a paradise for trial lawyers. You're a trial lawyer. How can you assure them that's . . .

SENATOR JOHN EDWARDS, DEMOCRAT, NORTH CAROLINA: Well, I'm a senator now, Bob.

[LAUGHTER]

EDWARDS: Well, first of all that should have been disclosed. There's a simple answer to that particular situation.

What we've done, Bob, is set up--John McCain and I have done what the American people have reached a consensus about, and the majority of the Senate and the majority of the House have reached a consensus about, which is putting healthcare decisions back in the hands of patients and doctors, which is where they belong, not with big HMO bureaucrats.

We just want HMOs treated like everybody else. If they're in the business of making healthcare decisions, they ought to be treated just like doctors and hospitals who make healthcare decisions.

But that's what this debate ultimately is about. And that's why our legislation is supported by virtually every healthcare group in America, every consumer group in America, plus a majority of the House and the majority of the Senate.

SCHIEFFER: Now, Senator Nickles, I'm sure you'd agree that's what this debate is about. Why do you take the other side?

SENATOR DON NICKLES, REPUBLICAN, OKLAHOMA: Well, I don't think that's what the McCain-Edwards bill does. I think it puts a lot of medical decisions away from doctors into trial lawyers' hands.

For example, we passed legislation last year, we can pass legislation tomorrow, to mandate internal appeals, external appeals. But we think you have to go through those appeals processes before you go to court.

Under the McCain-Edwards bill, you don't have to go through the appeals process; you can go straight to cort. Somebody can allege harm or injury or something, and, bingo, you're in court. So, it's not doctors making the decision, it's trial lawyers.

And then there is no cap on damages. They can sue for whatever--unlimited pain and suffering and uneconomic harm. The net result is--and it's not just HMOs, it's employers as well. So employers better be liable. This legislation can bankrupt them, and I'm afraid a lot of them would drop healthcare as a result.

SCHIEFFER: Well, let me just ask you the other side of your argument, and that is, is there any other entity, is there any other business, is there any institution in the United States that you can't sue?

NICKLES: Oh, no, and you can sue HMOs. HMOs are sued all the time. I mean, there was a lawsuit in Florida the other day for $80 million, one in California, $120 million. You can sue HMOs to make sure you get the coverage that you're contracted to do.

And we'll support some liabilitybut what we have before us in the Senate right now is open-ended, unlimited, sue federal or state. It's a lottery. And employers, the gun's at your head.

We're going to try to protect that. We have an amendment that would exempt employers just like Texas did. People keep saying, "Well, hey, this didn't hurt. Texas did it, and it doesn't hurt too much. Let's do what Texas did." We're going to give people a chance to do that. Let's exempt employers, let's come up with limited liability, let's come up with something we can afford, and we'll support it.

GLORIA BORGER, U.S. News & World Report: Senator Edwards, what do you think about exempting employer liability? I mean, that seems to be a big issue now. Should employers be responsible for the health coverage if HMOs, say, make a bad decision?

EDWARDS: Gloria, this is actually a subject that the president agrees with us on. The president has said in his written principles that he thinks employers should be exempted from liability unless they actually make individual medical decisions. In other words, unless they're in the business of overruling doctors, which, of course, the vast majority of employers don't do.

BORGER: So you can agree on that?

EDWARDS: This is something that's precisely what our bill says.

Now, Don and others have continued to raise questions about this. And as recently as Friday, I met with a number of senators from across the aisle, Republicans and Democrats. We're working to make sure we reach the right language on this. But we agree with the principle that the president agrees with--I don't know whether Don agrees with it--that employers should be protected.

If I can say one thing about the arguments that Don just made. The problem with these arguments--these are the arguments that have been trotted out by the HMOs, the same old rhetoric that the HMOs have trotted out for years and tha they're spending millions of dollars on television right now. We need to move past that.

We need to focus on patients and provide patient protection. John McCain and I have in fact moved past that.

That's why we have a bill that's a consensus bill in the Senate and the House.

But it's time to finally put the law on the side of patients. We need to quit talking about this and do something for the families of America.

NICKLES: Under the bill that's pending, employers can be sued, and that's not the case in Texas. We're going to have an amendment. Hey, we're going--are we going to exempt employers or not? Or are we going to come up with, well, we sort of exempt them. Under the bill that's pending, you exempt them, and then you come back and sue them. And you can sue them for lots of things--again, unlimited damages.

That will scare--we're talking about real business here. We're talking about--do people have to provide this benefit? No. It's very expensive, in many cases not even appreciated. So I'm afraid the net result is a lot of employers would drop healthcare.

We shouldn't do harm. We shouldn't increase the number of uninsured. We shouldn't make healthcare so expensive that people can't afford it, and increase - we already have 44 million people that don't have health insurance. Let's not make it worse. Let's not add to that number by 2, 3, 4, 5 million, which I'm afraid the bill before us would do.

We can fix it. We have an amendment that I think that would help fix it that we'll be considering on Tuesday. We're going to have other amendments. We want to pass a bill.

We want to pass a real bill that will give patient protections, but not allow this circumvention--skip the doctors, we're going to go straight to court, like the bill that we have pending now.

EDWARDS: Well, just in response specifically to what Don's saying, we agree in principle on protecting employers. We ought to wok out a way to make sure that that's done. That's something we agree on.

As to the lawsuits and the rising number of uninsured, the argument that the HMOs have been making for years and they're continuing to make, what we've learned from experience is that that's simply not true. In the states that have enacted strong patient protection--Texas, California, Georgia--in California and Georgia, there's not been a single lawsuit. Their law is designed just like ours to avoid lawsuits, so that you have an internal appeal, then an external appeal before you go to court. It has in fact worked.

As to the number of uninsured, in those states that have enacted strong patient protection--Texas, California, Georgia--the number of uninsured have gone down, not up. So, unfortunately, the arguments, this rhetoric that the HMOs are spending millions of dollars to put on television is not supported by the evidence.

NICKLES: Well, we're not talking about HMOs. We're talkinabout employers. And, when you refer, "Hey, it doesn't hurt in Texas," Texas exempts employers. Well, if that's good, let's exempt employers nationally.

Texas requires exhaustion of the appeals. Under the McCain-Edwards bill, you don't have to exhaust the appeal. You can allege harm, and you can just bypass the appeal. You don't even have to go to it. Or you can wait 180 days. You don't have to go through the appeals. You can go straight to court.

So you have lawyers making decisions instead of doctors. We want to insist, before there's liability, you have to exhaust the internal, external appeals, which, those decisions are made by doctors. So you have doctors making decisions instead of lawyers.

SCHIEFFER: Let me just point out that there seems to be agreement on so many things now about reforming HMOs, agreement that simply wasn't there even, you know, a year and a half ago.

NICKLES: Sure.

SCHIEFFER: You now agree that people ought to have the right to go into emergency rooms, that they can continue to see their ob-gyn, that they can continue to see specialists.

But to many people from the outside, it looks like you're haggling over something very small. For example, you say only going to federal court to sue. You say you ought to be going to state courts. You're saying, well, you ought to have caps on the amount of damages. So far, you all are talking about a much larger cap.

NICKLES: No caps on noneconomic.

SCHIEFFER: Why? What's the problem here? I mean, what's the difference . . . ?

[CROSSTALK]

SCHIEFFER: Let me just ask you, what's the difference in going to federal court and state court?

NICKLES: Well, there's a lot of differences that you didn't touch.

You said we're in agreement on patient protections, but the bill that Senator Edwards is pushing would pre-empt all the state protections. States, you have to do substantially equivalent and as effective as the federal mandates.

So, basically, what you're doing is taking over state regulation of insurance by the federal government. The federal government can't do it. There's no way, shape, or form the federal government can do it. So that's a big change.

Are we going to have the federal government dictating--just to give you an example, emergency room? Everybody agrees with emergency room. North Carolina, Oklahoma, we have emergency room procedure, but the one that they're trying to mandate on our states is much more extensive and expensive than the one that we've passed in our states. Our states don't require postcare, poststabilization care. Our states don't require ambulance . . .

[CROSSTALK]

SCHIEFFER: Well, let's just stop right there.

Now, let's, we'll come back to you. Okay, what's your side of that?

EDARDS: Well, first of all, what our bill does, Bob, with respect to--Don makes mention of lawsuits and caps.

What he's ignoring is that we send all cases, or most cases, not all cases, most cases to state court which already have caps in place, limitations on damages. We let the state law apply to those cases.

But the most important thing is, it's not an accident that the AMA and most medical groups and most consumer groups in America support our bill.

We have a fundamental decision to make this week, and you raised it in your question just a moment ago. That question is whether we're going to make progress, whether we're going to have real and meaningful HMO reform, or whether we're going to continue to mount these obstacles to progress.

The president issued a written veto threat this past week. Unfortunately, it looks like an HMO press release.

We want to work with the president. We want to work with our colleagues in the Senate.

What we don't want to have is this continuing situation of children who can't get the tests they need, families who can't get the treatment they need.

You mentioned it earlier: HMOs can deny coverage to a family, and they are privileged citizens. No one can do a single thing about it. That's what this debate is about.

We need to get past some of these nuances, and we need to get this legislation passed.

BORGER: Very quickly to Senator Nickles: If Senator Edwards's version of this bill passes, would you recommend that the president veto it as he has threatened that he would do? And would that be a problem for Republicans?

NICKLES: Well, I sure hope this bill doesn't pass. I want to pass a bill the president can sign. The president is exactly right in saying he would veto this bill because this bill would be a disaster for employment. It would be a disaster for employees, because a lot of employers would find, wait a minute, the cost of healthcare is going up so much they can't even afford the copays.

BORGER: Would the veto be a problem for Republicans politically?

NICKLES: Hey, let's not play politics. Let's do what's right. Let's pass a good bill. And not, hey, who scores points?

Everybody has said they want to have a bill that is signable, passable, and becomes law. We've played politics with this issue enough. Let's come up with a real bill that can be signed.

The president is exactly right, and his veto message is exactly right. There are lots of fatal problems with the underlying bill.

SCHIEFFER: Just quickly, do you think a bill of some sort will pass this week?

EDWARDS: I do. And when it's on the president's desk, Bob, he's going to have to make a really important decision: Is he going to be a force for progress, or is he going to be an obstacle to progress, which the American people will be watching.

SCHIEFFER: /STRONG>All right, we have to leave it there. Thanks to both of you. Very enlightening this morning.
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