Doctors' Orders?

The political view from John Ashcroft's Washington, D.C., office was probably anything but pastoral on June 22.

For one, the normally conservative American Medical Association (AMA) had unleashed an ad campaign in Missouri that morning accusing Ashcroft of carrying water for the insurance industry by voting against the consumer-tailored patients' bill of rights.

For another, a group of senior citizens picketed his St. Louis office that day, charging that the senator had accepted campaign contributions from the pharmaceutical industry in exchange for his repeated votes against a prescription-drug benefit for Medicare recipients. The protesters arrived just days after The Kansas City Star implied in a report that the drug firm Schering-Plough had made a $50,000 contribution to Ashcroft in exchange for his support of a patent-extension bill that would shower the company with hundreds of millions of dollars at the expense of consumers.

But then the day took a defining turn.

First there was Ashcroft's diplomatic and measured response to a maneuver engineered by Democrats, forcing reluctant Republicans to vote for a prescription-drug benefit for Medicare recipients. "I think its intention is good, and I think many of its proposals appear to be in line with what the people would want and expect," Ashcroft said from the Senate floor, "but without having an opportunity to read it and inspect it, to understand it and understand its costs, I think it is unwise to vote in its favor."

Later that night, Ashcroft told the AMA that after listening to constituents' concerns, he would indeed support the group's patients' bill of rights -- which, among other things, proposed holding insurance companies legally liable for their misconduct. The AMA immediately applauded, proclaiming in a press release the next day that "The Senator last night affirmed his support of the AMA's efforts to pass a bipartisan patients' bill of rights."

Two weeks later, an ad appeared in the St. Louis Post Dispatch, a full-page, full-blown thanks to Ashcroft "for supporting a patients' bill of rights that's right for Missouri." Although neither the AMA nor Ashcroft paid for the ad, its sponsors clearly supported the senator's votes on healthcare reform.

"It's right to improve our health care," the ad stated in bold capital letters. "It's right to help the uninsured.... It's right to stand up to special interests.... It's right to protect businesses and families.

"Thanks, Senator Ashcroft, for working for the right healthcare reform."

Had the senator indeed shed his growing image as a politician owned and operated by big business, a politician who sidestepped Medicare reform and who ignored calls for help from constituents who felt herded and corralled into a managed-care system that wasn't working? On the surface, it appeared Ashcroft's detractors had been all wrong about his positions on two of the most wide-ranging and controversial issues of the healthcare debate.

But, as events after June 22 would show, image became one thing and reality another.During his State of the Union address in January 1998, President Bill Clinton called on Congress for a patients' bill of rights in response to swelling demands that something be done about the disastrous state of managed care. In essence, bean counters, not physicians, were making treatment decisions, and when they made the wrong ones to save money, patients had no recourse.

Despite Congress' foul mood over Monica Lewinsky that year, Representative Charles Norwood (R-Georgia) stood up and wildly applauded the president, even waved at fellow Republicans to do the same. Because many of his peers, particularly Ashcroft, were out of humor at the time, most of them ignored Norwood.

But they couldn't for long. The bipartisan patients' bill of rights Norwood sponsored that session with Representative John Dingell (D-Michigan) -- and cosponsored by 60 Republicans and Democrats -- was hailed by the AMA, the American Association of Retired Persons, the consumer-watchdog group Public Citizen, and Families USA.

It was a sweeping measure. If a patient, for instance, chose to sidestep a gatekeeper physician and use a gynecologist or other specialist within the HMO network as her primary physician, the plan would have to allow that. If a person had severe chest pains and rushed to the nearest emergency room without calling the HMO first, the health plan would still be required to pay for the visit. If a pediatrician decided a child with cancer should see a specialist outside the patient's HMO network, the plan would be required to pay for that too.

By far the bill's most controversial, though, one provision allowed consumers to sue their healthcare plans in state courts for damages resulting from the unnecessary delay or denial of treatment.

The right to sue in state courts was critical. Currently, about one-third of the 161 million Americans covered by private health insurance are in "self-insured plans," which means their employer sets aside a pool of money to pay for the workers' healthcare needs and hires a managed-care company to administer it. Under federal law, these employees cannot sue their employers or managed-care companies in state court if they are denied medically necessary treatment. They can sue only in federal court, and if they win, they can collect only the cost of the denied treatment. Federal law does not allow beneficiaries to sue for punitive damages.