HMOs and Your Rights

In Illinois, as in most states, health maintenance organizations and managed care companies call the shots when making decisions about your health care.

But that doesn’t mean you don’t have any recourse if you believe your HMO has denied you proper care. Under a 1999 state Supreme Court ruling, Petrovich vs. Share Health Plan of Illinois, a health care provider can hold a managed care company liable for negligence. “If [HMOs are] influencing a physician’s medical decision, they can be held liable,” says Robert A. Clifford, founding attorney of Clifford Law Offices in Chicago.

But you may not be able to sue an HMO in state court if your employer’s health plan is covered under the federal Employee Retirement Income Security Act (ERISA), in which case federal court will have jurisdiction. That’s a likely prescription for a tougher case to try. According to Clifford, federal law tends to favor business interests over those of consumers. Another factor that complicates your having a day in federal court is the sheer number of cases—both criminal and civil—clogging the system.

“These [civil] cases don’t get their fair due simply because the volume of the criminal docket is so deep in most federal courts,” Clifford says, “and [criminal cases are] given precedence.”

Prior to taking legal action, you also may be able to appeal an HMO’s decision to the Illinois Department of Insurance, under the Managed Care Reform and Patient Rights Act, which provides for a grievance process; however, many policies, including those covered by ERISA and those affiliated with labor unions, are exempt from this option.

While Clifford views both Illinois’ insurance department and the attorney general’s office as sympathetic to consumer concerns on a systemic level, individuals still may find the best forum to resolve their cases is in the courtroom.

“Our experience has been [the appeal system] is not as effective as trying to approach it in the civil-justice system,” Clifford says. “I’d rather be in the court system, where I know the playing field is going to be level, and we have recognized consumer rights.”