Comment: Vigilantes can’t fix health care; this reform would

By Jamie Court / For theLos Angeles Times

The shocking killing of UnitedHealthcare’s chief executive, Brian Thompson, reopened a national wound inflicted by the delay and denial of health coverage to countless Americans.

This was a violent crime that won’t solve anything. But the ensuing organic and spontaneous outpouring of populist anger underscored how many Americans have been cruelly and unjustly denied medical treatment.

After an election that showed widespread discontent with the status quo, this should be a wake-up call for Washington. Despite progress on health care coverage and rights, protecting American patients is unfinished business.

In the 1990s, California pioneered a patients’ rights movement that gave those covered by HMOs a right to second opinions, independent medical reviews of coverage denials and guaranteed coverage of certain commonly denied procedures. Many states adopted California’s model, and President Obama’s Affordable Care Act took important steps to insure the uninsured and prevent companies from denying coverage to people who want it.

But America’s patients never got equitable access to justice when claims are denied. People who buy their own insurance or get it through a government job or program such as Medicare have the right to sue for damages if they believe they have been harmed by an unreasonable denial. But most of us get health insurance through our jobs and have no such right to go to court, no matter how outrageous the denial or tragic the consequences. More than 100 million Americans have no legal recourse if a health insurance company messes up our claim.

In the 1987 case Pilot Life Insurance Co. vs. Dedeaux, the Supreme Court ruled that people with employer-provided coverage do not have a right to sue their insurer for damages but rather only for the value of the denied benefit. If the covered person dies, any suit is rendered moot.

Despite many attempts to change this, including through Obamacare, the ruling has stood. That’s why insurance companies often act as if they have a license to kill: They face scant legal consequences for any harm they cause by delaying or denying payment for needed care.

A 17-year-old Angeleno, Nataline Sarkisyan, became a poster child for addressing this injustice. Nataline, who had recurrent leukemia, had to wait too long for insurance approval of a liver transplant that doctors considered likely to save her life. Her mother, Hilda Sarkisyan, protested with nurses at the headquarters of their health insurance plan, Cigna. When the company finally approved the surgery under pressure, it was too late: Nataline died in 2007, hours after the approval was granted. And because of the Pilot Life decision, the family had little legal recourse.

The Sarkisyans have crusaded to have the Pilot Life ruling overturned and to spare others their daughter’s fate. Congress has made it easier to obtain coverage but has yet to give patients the leverage they need once they have insurance: the right to collect damages from companies that behave horribly.

This shouldn’t be hard. Congress — whose members do enjoy a right to sue over denials of their own health insurance claims — has many options for limiting the extent of insurers’ exposure to lawsuits, such as making them liable only when they show gross indifference to a patient’s suffering.

Insurance companies pay attention to whether patients can take them to court. At least one company, Aetna, even had a training tape showing how to process claims differently for those with and without a right to sue.

If insurance companies have no legal incentive to approve a claim, they will too often deny or delay it. It’s time for Congress to restore the possibility of justice for millions and answer the urgent calls for reform.