Patients' Bill of Rights
Myths and Realities

Myth: The House passed patients bill of rights would strip away existing patient protections passed by the states.

Reality: The House bill establishes, for the first time, a major expansion of patient protections that would apply to all individuals enrolled in private health plans regardless of where they live or what type of coverage they elect.

At the same time, the bill includes a provision that explicitly and clearly leaves in place remedies under state laws that involve the "delivery of medical care," which is the area of traditional state jurisdiction in the health care field. (State laws have traditionally applied to instances involving harm from the delivery of medical care. Federal law has traditionally applied to issues involving coverage matters and plan administration.)

The bill specifically states that nothing in the remedies provision: "shall be construed to preclude any action under state law against a person or entity for liability or vicarious liability with respect to the delivery of medical care."

In addition, the House bill protects:

Myth: The Senate bill would protect state laws that allow patients the right to sue their health plans.

Reality: The Senate bill creates an extraordinarily complex liability scheme that purports to allow individuals to bring lawsuits under state laws, but only when a state law meets numerous new federal conditions. In addition, the Senate bill contains no provision that explicitly protects state liability laws that relate to the delivery of medical care. This is highly likely to lead to litigation over whether existing state liability laws would be saved or preempted if this bill were enacted.

Specifically, the Senate bill imposes new federal requirements for bringing a lawsuit in state court under a particular state law. For example:

Myth: The House bill diminishes the internal and external review protections that have been enacted by many states.

Reality: The House bill does preempt state internal and external review provisions, but it assures a uniform federal claims procedure for all employer-provided group health plans. This allows employers that operate in many different states to provide consistent protections to all of their employees. Also, because state insurance laws cannot apply protections to employees who are enrolled in self-insured plans, the provisions of the House bill would provide immediate safeguards for these employees as well as those who are enrolled in insured health plans. It also preserves state law application to the individual insurance market.

The Senate bill, by contrast, creates a much more complicated scheme since it would supercede state claims procedure laws that "prevent application" of federal law. States would then be required to apply to the federal government for certification that their state laws are "substantially compliant" with federal law. Finally, since the state laws would never apply to individuals enrolled in self-insured plans, there would inevitably be two sets of standards for individuals residing in the same state, one for those enrolled in insured health plans and another for those in self-insured plans.

Myth: The $1.5 million cap on damages in the House bill is too low to help patients.

Reality: Under the House bill, patients can sue for more than $1.5 million. The $1.5 million limit applies to non-economic damages, which are often referred to as "damages for pain and suffering". However, the House bill places no limit at all on "economic damages," which the court can award for losses where a direct monetary amount can be determined, such as lost wages or medical bills. In addition, the House bill allows patients to sue for another $1.5 million in punitive damages if a health plan fails to abide by the decision of an independent external review panel. So, the House bill does not limit the total damage award that a patient might receive to $1.5 million and that figure is still much higher than caps passed by many states for medical malpractice actions of physicians or other health professionals. Under the House bill, patients can receive:

It's enough to make reasonable people ask at what point is enough, enough? But it's still not enough to satiate trial lawyers who want the unlimited lawsuits in the Senate bill:

At some point, the costs of new health care lawsuits become too much for businesses, workers, our health care system and the economy to bear. Unlimited lawsuits in the Senate bill will cause health care costs to skyrocket even further-spelling the end of affordable health insurance and adding millions more to the ranks of the uninsured.

Myth: The House-passed bill is a partisan bill with watered-down patient protections.

Reality: Both the House and Senate bills passed with bipartisan support. Both bills contain identical patient protections. For example:

The White House, the House and the Senate agree on 99 percent of the provisions in the patients' bill of rights. The only thing standing in the way of this bill becoming law is the trial lawyers' demand for unlimited liability-or a blank check for trial lawyers.

It's time for a reality check, not a blank check. A Patients' Bill of Rights-Not a Lawyers' Right to Bill.