In celebrating the conclusion of his first 100 days in office, President Bush expressed his desire to "change the tone in Washington" and to promote bipartisan solutions to the nation's problems. But, on a major problem - the need to limit the power of HMOs and managed care entities - he appears to be tone deaf.

I am part of a bipartisan coalition of health-care providers and patients that supports the patients' bill of rights sponsored by U.S. Reps. Greg Ganske (R., Iowa) and John Dingell (D., Mich.) in the House and Sens. John McCain (R., Ariz.) and Ted Kennedy (D., Mass.) in the Senate. Our coalition voices the concerns of Americans of all political stripes who have had enough of the micromanagement of their health care by insurance companies.

Although the President has yet to produce or embrace any bill, he has made clear his intention to veto any bill that does not include "reasonable" caps on damage awards won by injured patients who successfully sue their HMOs.

The McCain-Kennedy Bill contains a $5 million cap on punitive damages - an amount evidently too high for the President's liking. While there may well be room for compromise on the amount of this limitation, the President's apparent insistence on a cap on consequential damages will derail any chance for agreement.

The President's rhetoric would please any focus group: "We want to protect patients, not enrich trial lawyers." But his position undermines patient protection in three ways:

Liability limits do not make injured people whole. Why should a person injured by an exploding toaster be fully compensated for his or her loss, but a person injured by an arbitrary decision by an HMO to deny care be limited to partial recovery?

Liability limits undercut the deterrent power of patient protections. The value of liability is not the lawsuits that are won - it is the value of lawsuits that never have to be brought because the HMO chooses to avoid the risk of liability for a denial of care by providing the care. Imposing anything less than the true cost of an injury upon the responsible party dilutes the disincentive to inflict the harm.

Liability limits bar many people from the courthouse because they cannot afford a lawyer. Most people cannot afford a lawyer unless the lawyer is paid through a contingency fee arrangement. Artificial limits on recovery create smaller settlements and judgments. Smaller settlements and judgments reduce the legal fee payable to the attorney and therefore decrease the probability that the attorney can justify his or her time spent on the case. The result is inevitable: People of modest means do not receive representation.

The health insurance industry is no doubt gleeful that the President has not stood with the bipartisan majority of the House and Senate. The industry would be well advised, however, to consider the consequences of thwarting any action. For the industry, the prospect of dealing with a well-defined and predictable body of law based in one statute may compare very favorably with the hydra-headed body of common law evolving in patient protection under the guise of unauthorized practice
statutes, racketeering statutes and other legal theories.

The President's rhetoric in the campaign reflected a position mandated by the demands of the voters: Pass a patients' bill of rights.

His shift of position since taking office falls far short of the promise of his rhetoric. Patient rights are worthless if they are not enforceable. The position the President
has taken shuts the courthouse door for many patients, denies complete compensation for many others, and fails to turn the tables in favor of patient protection in the
dailydecision-making practices of health insurers.

In the spirit of bipartisanship touted during his campaign and his first 100 days in office, President Bush should rejoin those of us who support a strong law for patient
protection. 
 

U.S. Rep. Rob Andrews, a Democrat, represents parts of Camden and Gloucester Counties.