The decision, also hailed by patients’ rights advocates across the state, impacts some 2.4 million members of HMOs or about 25 percent of the Chicago health-care market and nearly 20 percent of health insurance in Illinois, according to industry and analysts.

In Petrovich v. Share Health Plan of Illinois, No. 85726 (decided Sept. 30, 1999), Inga Petrovich complained about mouth pain to her doctor. In 1990 a magnetic resonance imaging diagnostic test was recommended; but the HMO, Share Health Plan of Illinois, at first refused to approve the procedure.

When Petrovich was tested nearly a year later, doctors found that cancer had invaded the base of her tongue and surrounding tissue. She died a year ago, but her malpractice action against the HMO is being continued by her husband.

At first the lawsuit was thrown out of court, the trial court ruling that the company could not be held responsible for the actions of doctors who are not Share employees but rather are considered independent contractors. The Illinois Supreme Court’s decision, finding that HMOs act as health-care providers and not just as insurers, means that Petrovich is entitled to a trial on the issue of negligence.

HMOs have always arrogantly presumed legal protection against malpractice suits, while their non-medical staff make life-and-death medical decisions for doctors who participate in their plans. It is imperative, though, that those who make medical decisions should be held accountable for them.

And that’s just what Justice Michael Bilandic found when writing for a unanimous court:

"The principle that organizations are accountable for their . . . actions and those of their agents is fundamental to our justice system. . . . There is no exception to this principle for HMOs."

The court noted that this is particularly essential because the HMO is a for-profit entity with the goal of cost containment.

HMOs generally provide customers medical services for a fixed monthly fee but limited most services to doctors and hospitals in their networks. Physicians must get approval through the HMO before authorizing certain types of care.

The court acknowledged the power of HMOs to influence a physician’s medical decisions. It also noted how Share’s marketing strategy prided itself on being the patient’s source of "all your health care needs" and a "good partner in sickness and health."

The decision comes on the heels of California Gov. Gray Davis’ signing a health reform package into law that allows patients to sue HMOs for malpractice, a right now allowed in Texas. Georgia and Louisiana provide patients a mechanism to appeal HMO decisions.

Naturally, the immediate cry from HMOs and hospitals is that such lawsuits would have a substantial adverse effect on health care and force higher costs. To me, it sounds like the boy who cried wolf too often.

Anytime a decision is rendered in favor of consumers or patients, there is an immediate reaction of "you’re gonna pay." It’s all part of the calculated marketing technique of big business to shift blame to trial lawyers for any increase in medical care costs and insurance premiums. But, once again, there is just no proof to substantiate these hollow claims.

In August Gov. George Ryan signed a new managed care and patient rights law that forbids gag rules that prevent doctors from informing patients of treatment options, gives greater access to specialists and creates new ways to appeal insurance decisions. The Legislators intentionally left out any mention of whether a patient had a right to sue an HMO.

The Supreme Court of the United States, though, is expected to enter the HMO fray when it decides sometime next year whether it is legal for doctors to cut back on treatment to save money for an HMO. It agreed to answer the question whether an Illinois HMO breached a legal duty to a patient, given its financial structure to award bonuses to physicians who hold down costs. Pegram v. Herdrich, No. 98-1949. The high court’s decision could affirm the Illinois Supreme Court’s recent ruling or render the decision moot.

In Pegram, a patient’s appendix burst during an eight-day wait for a test to diagnose her abdominal pain. That case is based on the 1974 Employee Retirement Income Security Act, which governs employee benefits such as pensions and medical care. Some 160 million people receive medical coverage through their employers.

The 7^th U.S. Circuit Court of Appeals ruled in that case that because doctors are bound by ERISA to act as a patient’s fiduciary, the HMO might have placed doctors’ interests in conflict with the interests of their patients by rewarding physicians for holding down medical costs. Herdrich v. Pegram, 154 F.3d 362 (7^th Cir. 1998), reh’g denied, 170 F.3d 683 (7^th Cir. 1999). It is a conflict that patients, the medical profession and trial lawyers have found troublesome since the advent of managed care.

Congress, too, is working on expanding patients’ rights to sue health care providers.

The bottom line is the bottom line: Is managing health care really an issue of managing costs? Insurers already have spent millions of dollars through intensive lobbying efforts across the country to defeat the idea of allowing doctors to make medical decisions.

To have that right, though, HMOs should stand up in court and defend their decisions; and, if they can’t, then it is they who should pay the price. That’s what the civil justice system is all about.

No less than the health of all Americans is at stake.