It could be argued that the history of the United States is the history of checks and balances playing out against the backdrop of current events. There are times when a strong executive takes the reins: the Civil War, the Depression. At other moments, the legislature calls the shots: the GOP's recent "Contract With America." At times the courts, somewhat insulated from electoral concerns, go where other branches fear to grow: the beginning of the civil rights movement, for instance.
Senior Editor Frank Diamond's cover story on HMO liability touches on how these players try to harmonize with the chorus of public opinion demanding more HMO accountability. The courts seem to be stumbling at the fore of a muddled charge as Congress and the president debate whether patients should be allowed to sue employer-sponsored plans for denial-of-coverage decisions.
Meanwhile, HMOs have been dragged to the position, "Come to think of it, maybe external-review processes aren't all that terrible." Put simply, solid external-review processes — and no more, for now — answer public demand for plan accountability.
The tort system will create a lottery where only a few win and everybody else -- including patients and physicians — loses. No group knows this better than doctors, who needed statutory relief to cap malpractice awards in the 1980s.
Congress — not states — needs to install uniform external-review processes. While we applaud the AAHP's call that members do this voluntarily, this is one instance where national administrative standards will guarantee that Plan X plays by the same rules as Plan Y, and that neither can be outdone because Plan Z hires better lawyers or a friendlier review board.
In a few years, we'll look at this issue again. If the national external review process is seen as ineffectual, then legislators have a right — are, in fact, honor-bound — to extend liability to HMOs. We don't believe that will happen. HMOs will find a way to make external review work.