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Daily Health Policy Report

Election 2004 | Presumptive Democratic Presidential Nominee Kerry Criticizes Bush for Patients' Rights Stance
[Jun 24, 2004]

      Renewed debate over patients' rights legislation "dominated the presidential campaign" on Wednesday, as presumptive Democratic presidential nominee Sen. John Kerry (Mass.) and President Bush traded "barbed exchanges" over the issue, USA Today reports. The renewed debate over the issue comes in response to a Supreme Court decision on Monday that limited the ability of patients to file suit against HMOs in state court (Kasindorf, USA Today, 6/24). The Supreme Court ruled that patients cannot file suit against HMOs in state court when they experience injuries as a result of administrative decisions related to treatment. In the case, which involved a 1997 Texas law, two state residents separately filed suit in state court against their HMOs, Aetna and Cigna Healthcare, over allegations that the companies made decisions related to treatment that resulted in injuries. In the Aetna case, Juan Davila received a prescription for Vioxx from his physician, but the rules of Aetna Health, a division of Aetna that operated his HMO, required Davila to take two less-expensive medications first. Davila had an adverse reaction to one of the medications that required him to receive care in the emergency department for bleeding ulcers. In the Cigna case, Ruby Calad underwent a hysterectomy, and although Cigna HealthCare of Texas, a division of Cigna that operated her HMO, specified coverage for only a one-day hospital stay, her surgeon recommended a longer stay. A hospital-discharge nurse employed by Cigna did not approve the longer hospital stay, and Calad was readmitted to the hospital several days after her discharge with complications from the hysterectomy. Both Davila and Calad filed suit in state court under state HMO laws. The case involved a dispute over whether the Employee Retirement Income Security Act of 1974 preempts state laws that allow patients to file suit against HMOs for administrative decisions related to treatment that resulted in injuries. According to the Supreme Court, the Aetna and Cigna cases were subject to ERISA, not state law, because they involved administrative, not medical, decisions (Kaiser Daily Health Policy Report, 6/23).

Kerry Address
At a convention in San Francisco attended by about 4,000 Service Employees International Union members, Kerry criticized Bush for his position on the patients' rights issue. An aide to Kerry said that Bush in 2001 helped defeat legislation that would have allowed patients to file suit against HMOs in state court for unlimited damages (USA Today, 6/24). The House and Senate passed separate patients' rights bills in 2001 but could not resolve differences in the legislation (Kaiser Daily Health Policy Report, 6/23). Kerry said that Bush opposed the Texas law involved in the Supreme Court case when he served as governor of the state, praised the law in his 2000 presidential campaign and as president sent the solicitor general to fight the law in the Supreme Court (Wilgoren, New York Times, 6/24). Bush "sent our Justice Department to attack the same legislation that he used to brag about," Kerry said (Kurztman, San Jose Mercury News, 6/24). As governor of Texas, Bush allowed the Texas patients' bill of rights legislation to become law without his signature (Kaiser Daily Health Policy Report, 3/24). Kerry added that Bush "underscored the hypocrisy of this administration and made it clear that's why we need a real patients' bill of rights" (USA Today, 6/24). Aides to Kerry said that as president, he would make patients' rights legislation "an increasing focus" of his health care agenda (New York Times, 6/24). In response, Steve Schmidt, a spokesperson for the Bush re-election campaign, said, "John Kerry and the Senate Democrats could have passed a patients' bill of rights, but they were more interested in making sure that personal-injury lawyers got their cut of American health care costs."

PBS' "NewsHour with Jim Lehrer" on Wednesday reported on the Kerry address. The segment includes comments from Kerry (Holman, "NewsHour with Jim Lehrer," PBS, 6/23). The complete segment is available online in RealPlayer.

Prospects for Patients' Rights Legislation
Lawmakers on Wednesday continued to discuss the prospects for passage of patients' rights legislation in the current legislative session (Rovner, CongressDaily, 6/23). Rep. John Dingell (D-Mich.) on Monday introduced patients' rights legislation identical to the bill that the Senate passed in 2001. The bill would allow patients to file suit against HMOs in state court for unlimited damages or in federal court with damages limited to $5 million (Kaiser Daily Health Policy Report, 6/23). House Energy and Commerce Committee Chair Joe Barton (R-Texas) on Tuesday estimated that the prospects for passage of patients' rights legislation this year at "50-50," adding, "It's a viable issue." House Speaker Dennis Hastert (R-Ill.) said, "We haven't focused on it yet" (CongressDaily, 6/23).

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