Statement of Thomas W. Self, San Diego, California;
Linda P. Self, San Diego, California; Miles J. Zaremski, Chicago, Illinois

Dear Members of the Subcommittee on Health of the Committee on Ways and Means:

We hope that our remarks will be able to be part of your record of the hearing that will occur on patient protections in managed care, scheduled for April 24, 2001. While we have endeavored to communicate with several of you, either by letter, phone or by in person conferences with you or your staff over the last several months, we feel our individual, yet collective, wisdom on the underpinnings of this area before you is critical and important. Two of us have a unique experience not shared by other health care providers in our country. The other has considerable expertise based on experience and writings on managed care liability, what our courts have done with ERISA preemption, and what is likely to be done in the future by our judicial system. [One final introductory remark: while this letter comes from the three of us, we refer to each of us in the third person.]

Our plea is not as Democrats, Republicans or members of other political parties. Our plea comes to you as a physician, a nurse and a lawyer. Our plea comes to you as people who are deeply and passionately concerned about the quality and delivery of health care for our patients, all patients, and the legal and legislative efforts to do the right thing-insure fairness and accountability for patients by those delivering health care.

To quote a famous line from a motion picture of some years back, the battle cry of patients is, "We are mad as hell and we are not going to take it anymore!" Patients and providers alike should not be subject to the grave inequities foisted upon them by what managed care has done to the delivery of health care. Linda and Tom Self are fitting, and perhaps, unfortunately, unique examples of what has to occur before managed care moguls will listen.

As a doctor who ran afoul of managed care and was actually fired for spending "too much time" with his patients, Dr. Self is unique in that he fought back against the medical group that fired him and won a three month court battle. This jury victory is the first of its kind in the nation, and was profiled by ABC's "20/20" on August 6, 1999.

Dr. Self s experience, where managed care profit motives infiltrated and contaminated the professional ethics of his medical group, shows clearly the murky and often brutal influences wielded by HMOs which have only profit, not quality of care, as their goal. In this scenario, patients become "cost units" and doctor is pitted against doctor, undermining the very foundation of medicine and throwing to the winds the Hippocratic axiom, "first of all do no harm".

With the art and science of medicine controlled by managed care forces, it is not surprising that the number of patient casualties continues to sore. The ability of a clerk with no medical training, in the employ of a payor thousands of miles away, to overrule the medical decisions of a trained physician is allowed in no other profession, but is the standard of practice under managed care! Futhermore, this type of employee and also the managed care entity which acts as the puppeteer behind the clerk are completely immune from any accountability when their faulty medical decisions cause patient harm. Amazingly, that this situation is allowed to continue is also unique to the medical profession. This is unfair and inequitable!

As an experienced diagnostician with a reputation of being thorough and careful, Dr. Self was criticized and ultimately fired under managed care as a physician who ordered "too many costly tests" and as a "provider" who "does not understand how managed care works." Sadly, this situation continues nationwide as more and more experienced doctors are unjustly censored, dropped from managed care plans or fired from medical groups anxious to conform to managed care dictates, leaving their needy patients feeling confused, frightened and abandoned.

This pillage and waste of medical resources (under the yoke of managed care which destroys the very quality and continuity so necessary for a positive outcome from medical treatment) is running rampant in America. Dr. Self and his wife have put their lives and their careers on the line to combat the wrongs caused by the health care delivery system called managed care. Now, representing, in microcosm, all health care providers, they turn to you as lawmakers, representing all past, present and future patients, to stop the horror and carnage by the HMOs by voting for S.283 (McCain-Kennedy Bill) and restoring quality, decency and humanity to health care for the American people.

Linda Self, a registered nurse, is, like her husband, a healer. Always active in charitable activities, Linda returned to nursing full time 4 years ago to work with her husband when he was fired. After being away from nursing for many years, she realized that her compassion and love for the art of healing was now even stronger, especially after raising two children, one of whom had a serious illness. Devoted to caring for children with chronic diseases and giving support to their families, she was shocked and unprepared for the massive de-emphasis on patient care that had been fostered by the health plans. Linda realized that her commitment to people had not changed nor had the needs of sick children - what had changed, and changed for the worse, was the indifference to patient suffering held by the managed care system. Linda realized that in order to care for sick patients and their families in the 90's, there is, and was going to be, a constant battle with the managed care bureaucracy involving patient referrals, treatment authorizations and, above all, the daily need to appeal treatment plans denied patients by their health plans.

As if in microcosm to what other private medical practitioners face, this office "busy work", in addition to the requirements of providing necessary medical support to sick patients, has created enormous frustrations among health care providers as well as increasing the costs of running a practice. Conversely, the reimbursements from the health plans have steadily diminished, regardless of the severity of the patient's illness or the increased amount of physician and nursing time expended.

Also, in her dual role as nurse and office administrator, Linda works daily to insure that patients receive the appropriate medical care they need and deserve without suffering the indignity and humiliation of having their health plans ignore, delay, or deny health care that is not only medically necessary, but for which the patient has already paid insurance premiums This endless paper shuffle mandated by managed care with its cost cutting mentality further decreases the amount of time that a nurse can devote to patient care. This dilemma has driven competent and caring paraprofessionals from the medical field in droves, thereby further weakening the overall quality of medical care needed by patients nationwide. The resulting upswing in poorly trained, undedicated office personnel hired to replace the nursing flight has created a hemorrhage in medical care delivery which, if not stopped, will hasten the demise of American medicine as far as any vestige of quality of care which still remains.

Meanwhile, Linda has continued to fight side by side with her husband, not only during their lengthy legal battle and during a three month trial, but to preserve the quality of their practice against the current tide of managed care. Her recent experiences with managed care atrocities have been etched in her memory and will be forever carried as emotional scars. Linda fervently believes that no physician or nurse should ever be faced with the ordeal that she and her husband have had to endure to insure quality of care for patients.

Patients must not be considered as commodities to be bartered by HMOs; payors must be held fully and judicially accountable wherever their pressures on physicians to curtail tests, delay or deny treatment plans, or by clogging the wheels of medicine with mountains of paperwork cause patient harm. Therefore, Linda Self, speaking as a mother, a patient, and a nurse brings her experiences to your Subcommittee (through this Statement) and adds her plea to those of Dr. Self and Mr. Zaremski to bring dignity and salvation to the practice of medicine. Those in your Subcommittee, listen, as we have done for years, to the voices of the grass roots populace when they cry out for help and relief from a medical system that harms, not heals.

Additionally, the three of us have seen and heard the disingenuous of opponents of what patients really need and which is embodied in the McCain-Kennedy bill as introduced earlier this year. We have heard that lifting the ERISA preemption will cause employers to terminate health plans for their employees, that lifting this so-called shield will cause premiums to increase and that trial lawyer will gain an avenue to sue. To all of this, and with all the passion we can muster, we bellow, "absolutely not!"

First, the ERISA law that was enacted in 1974 had nothing to do with shielding managed care plans from accountability for their medical decision-making process. There has never been anything in the legislative history on ERISA having to do with this subject. Further, the ERISA preemption was court created, and those same courts are peeling away at an ever rapidly pace, on a case-by-case basis, what was never intended in the first place by the ERISA law.

Next, allowing for accountability by health plans to patients, as contained in S.283, provides for real equity in distributing responsibility to all those persons and entities involved in the medical decision-making process.

As for increased litigation, the status quo of what plans know their exposure to be now will not change in any significant way. Please know that our courts are continually eroding the ability of health plans to escape exposure by finding valid legal theories known as ageny, breach of fiduciary duties, even using the Americans With Disability Act.

Also, realize that S.283 provides for accountability and responsibility of health plans in state court according to state laws. This jurisdiction is where this area of responsibility and accountability for health plans should reside. For example, if your state has caps on the amount of money that an injured person could receive, such as in California, then those caps would equally apply to exposures faced by health plans.

And if the Texas state statute on holding HMOs responsible is any example, fears of increased litigation are totally without any basis in fact. In three plus years, there have been a handful of cases filed against health plans in that state. Also, nine states have now passed legislation recently, providing that HMOs can be held accountable for their medical decision-making. Moreover, the U.S. Supreme Court, with its Travelers Insurance Company and Herdrich cases, opines the proposition that medical professional liability cases, like ones plans are involved in, belong in state court.

In conclusion, we implore each and every one of you to do the right thing. Consider your conscience and critically think about each and every American who has been, or will be, a patient in our health care delivery system. Remember that a person's health is unlike anything that can be bought, traded, negotiated or sold. Don't hold hostage human sickness and injury to a "bottom line" mentality. Or, as a colleague in medicine wrote Dr. Self after his jury verdict, "The rewards of being a doctor are largely measured in identifying what is best for the patient and then having to do what one believes is correct and best for the patient." Finally, recall a quotation by Margaret Mead; "Never doubt that a small group of dedicated people can change the world. Indeed, it is the only thing that ever has." In supporting a bill like S.283, each one of you will heed this message, and, conversely, insure that the tendrils of greed in managed care will not be able to find fertile soil in which to take root and grow.

Thank you for allowing this statement to be presented to your Subcommittee.