Patients' Bill of Rights Might Be Last Rites for Woody

When you win this thing, Andre Carson, send some champagne to David O.

He did you a huge favor. Specifically, he aired a TV ad attacking Andre Carson for taking special interest money. “Whaaaa?!?” you asked, perplexed? How does that help? Because, in the same ad, he hits Woody with the most salient criticism of the entire election - that Dr. Myers worked against the Patient’s Bill of Rights in 1999. David O. even loaned his campaign more money early in the week, so expect the ad to get airtime.

Before I get to the specifics of the allegation against Myers, let's talk the politics of it. With Carson’s unshakeable lock on 28-30% of the vote, the only chance Dr. Myers’ had for victory was a mass and uniform defection from David O. supporters who realized their man couldn’t win. (Myers also would need a good chunk of Mays’ supporters as well). With this attack, David O. has scorched Dr. Myers as a tolerable alternative to Carson. I predict most people who see this ad will stay where they are now because their enthusiasm for a “compromise” candidate has been deep-sixed.

Don’t get me wrong. I’m not saying David O.’s intent was to keep Carson in office (though given Carson’s youth and lack of independent wealth, he’d probably be the easier one to chip off in two years). I’m saying the expected tactic of attacking both the top guys was also the ingenious one for a candidate looking for a rematch or seeking another office. If you were David O., wouldn’t you do everything you could to hold your own numbers, even if you couldn’t win?

Dr. Myers is irate about the charge. So irate, in fact, that the blog Bilerico Project received an e-mail from attorney Justin Leverton threatening a defamation lawsuit. Dr. Myers also threatened to sue David O.’s campaign. I was reluctant to put Mr. Leverton’s "business in the street" (as the young kid's say), but when he threatened legal action in the midst of a hotly contested primary, he moved to the grown folks’ table.

I don’t care what honors you have from IU-Indy School of Law, when you graduate in 2005 and don’t even practice in litigation (he's in Bowes McKinney’s business services group), nobody is going to take your threat seriously. There’s a big difference between getting a letter from an associate and a letter from, say, Ron Elberger. The former says “saber-rattling bluff by a guy helping his candidate in his spare time,” while the latter says, “Holy crap! They’re putting serious firm resources behind this request, and they might actually follow through!”

Every lawyer “saber rattles.” I do it for friends who think a threat “on letterhead” works better. They’re right. But I don’t pull the bluff on a congressional candidate! You come off as desperate and/or half-cocked, in particular, when there's no chance the suit can succeed.

Defamation requires proving a "reckless disregard for the truth." I’ve reviewed the transcript of Dr. Myers’ testimony in February of 1999, a portion of his testimony in March of 1999, and some related stories, and I’m still not completely sure what he favors and what he opposes.

The Patient’s Bill of Rights consisted of several protections for patients, many of which are so uncontroversial nobody could oppose them. As a result, to say Dr. Myers is against the “Patient’s Bill of Rights” is clearly a falsehood. However, he was certainly against any system where individuals (and their trial lawyers) could sue HMOs and get punitive damages for improperly denying coverage. This was part of the Democrats' proposed bill.

republicans.edlabor.house.gov/archive/hearings/106th/eer/erisa22499/myers.htm

Dr. Myers appeared in Congress again in March of 1999 to testify on the issue of "medical necessity.". Here’s a quote from Physicians Weekly:

“Employers –a powerful lobbying group – are also leery. “We fear a congressionally mandated definition of medical necessity and therefore do not support it,” says Ford’s Dr. Woodrow Myers Jr.

http://www.physiciansweekly.com/archive/99/04_12_99/twf.html

Admittedly, Physicians Weekly favors the doctors who pushed this legislation. (You can see the bias where they write that employers are a "powerful" lobbying group, as if the American Medical Association's thousands of millionaire doctors are hurting for political power).

Chris, you ask, "I see Dr. Myers doesn't favor Congress tinkering with 'medical necessity, but what is that all about?"

Most insurance contracts state that health insurance coverage is based on professional standards of practice (i.e., doctors alone decide if you need the care, and if it is required, insurers pay for it). BUT insurers were trying to reserve the medical necessity decision exclusively to themselves by stipulating that the insurer will pay only for care “as determined by us” or “at our sole discretion.”

This “medical necessity” issue is a bit more complicated than you might expect. Unfortunately, in politics, we can’t countenance these complexities. But somebody has to explain it, so I’ll try to split the difference.

If you create a congressional definition of medical necessity that gives the right to decide solely to physicians, you invite a lot of physicians to continue offering outdated or unnecessary care. Patients certainly wouldn’t know they’re being bilked because the insurers are paying their bills, and they don't know what care is "up-to-date." Also, it’s not as if we don’t periodically hear about medical providers hosing the government through different billing scams, so the notion that some bad eggs wouldn’t try it with insurance companies is hardly inconceivable.

But on the other side, if you leave the ability to decide "medical necessity" with insurance companies with an incentive to jimmy the bottom line, you are at least as likely (and I'd say a HELLUVA lot more likely) to have patients deprived of necessary care because the medical reviewers don’t know the individual patients like their physicians do.

And when Dr. Myers cited concerns over “unfettered physician autonomy” in his March testimony, it’s pretty clear he trusts insurance companies more than people’s individual physicians. So, with apologies to Indiana Jones: The Last Crusade…..

Dr. Myers…

“You have chosen…POORLY!"

Patients' Bill of Rights Might Be Last Rites for Woody