HMO ARBITRATION: Federal Employees Fight For Right To Sue
Federal employees, who are allowed to sue their health plans under federal law, are filing a rash of legal complaints over arbitration agreements which bar them from doing so, the Washington Times reports. Leading the charge are five suits brought in Washington, D.C., by members of the George Washington University Health Plan, all of whom are claiming malpractice by their doctors. "What the cases have in common is that all the patients suing the health plan were federal employees at the time they sought care," the Times reports. The 1974 Employee Retirement Income Security Act (ERISA) normally prohibits private malpractice suits against an HMO; however, this provision "doesn't apply to the federal employee benefits program." The GW plan forces its members to submit to an arbitration process in malpractice cases before they may sue. "GW health plan attorneys have offered the same defense in all cases, saying the suits should be dismissed" given the arbitration requirement.
Not Quite That Simple
GW's detractors see many problems with their arbitration requirement, both legal and practical. "Why would the federal government want to deny its employees their constitutional right to a trial by jury?" asked malpractice attorney Patrick Regan. Moreover, critics of arbitration assert that the deck is often stacked in favor of the health plan. Law professor Barry Furrow wrote in the University of Georgia Law Review, "All the purported advantages of arbitration evaporate if the win rate for injured patients is distinctly worse than it would be in the traditional tort system." The example often cited to prove this claim is that of Kaiser Permanente in California, where a court ruled that the HMO's "arbitration process was designed to favor the health plan." The Times reports that the court found that Kaiser "routinely delayed appointing independent arbitrators" and that the average case took 863 days to reach a hearing" (Goldreich, 3/23). Today's Washington Times business section contains a feature entitled "Focus on Health Care," which examines, among other things, the effects of the increasing government mandates on health plans.