By Jake Rossen
By Jesse Marx
By Michelle LeBow
By Alleen Brown
By Maggie LaMaack
By CP Staff
By Jesse Marx
"Somewhere between ten days and two-and-a-half weeks later, you go to a temporary-injunction hearing. Sometimes the hearing is just like a trial, with evidence and witnesses; sometimes the judge just wants written documents. When the hearing is over, the judge doesn't rule for a period of hours, or maybe even a few days. That is torture for everyone. Then, when the judge finally gives the injunction, the patient is whisked into the hospital for treatment and the case is over. Only a few times has the insurer ever taken the injunction hearing to trial."
Often, recalls Hatch, he and his staff would negotiate with an insurer even as they were preparing for the hearing--especially when their opponent was a smaller firm that paid its own health-care bills through what is known as self-insurance. "Say it was a breast cancer patient. We'd talk to the CEO and tell him that he's going to spend about $40,000 on chemotherapy, which has a 28 percent survival rate when the patient is at a stage-two risk. That's not much bang for the buck. On the other hand, for $70,000 we can get the bone marrow transplant, the hospitalization, all the pharmaceuticals, everything, and have an 80-percent chance of his employee's long-term survival.
"We also tell him that his employees will really respect the fact that he did this. So he's not going to blow 40 grand on chemotherapy that probably won't work. He's not going to blow another 30 grand in lawyers' fees and 50 grand in bad press after we sue him. Finally, we tell him that if he denies this coverage and his wife gets sick under the same policy, he can't cover her with experimental treatments. Often, at the end of the day, he decides it isn't worth trying to save a little money to deprive somebody of their life."
But, adds Hatch, with the big managed-care companies, such personal appeals rarely worked. He would negotiate with administrators who had little or no connection to the patient. And because people enrolled in HMOs tend to change plans frequently, Hatch says, "there is more incentive to realize short-term savings" by paying for some portion of a long chemotherapy treatment rather than a quicker, more expensive bone marrow transplant.
Between the injunction hearings and the negotiated settlements, Hatch says, his firm secured coverage for all of the more than 100 patients who sought his assistance. Ultimately, however, he was struck by the realization that for every patient who walked through his door, many others were left behind. "After a while, you think, 'My God, what is going on here?' Because nobody was doing a goddamn thing about it. The Health Department didn't do a goddamn thing. The Commerce Department didn't do a goddamn thing. The attorney general's office didn't do a goddamn thing. Washington didn't do it, either. And it just makes me sick. We shouldn't write letters saying, 'Well, gee, this looks like a contractual dispute between you and your [insurer] and there is nothing we can do.' And believe me, that was the party line coming out of every government agency."
Two years ago, with Hatch and Swanson leading the lobbying effort, the Legislature required insurers to include coverage of bone marrow transplants for women with breast cancer." But by then, Hatch says, "They'd made me so goddamn mad that I decided I was going to run."
The difference between Hatch's race for attorney general and his previous campaigns for governor was palpable. As his sister Kathy puts it, "I was not ever sure what his politics were in the beginning when he was running for governor. I think he is much more focused now. It was like this time he was running for an issue instead of an office."
Hatch says his years away from the Capitol had him taught a key lesson about public service: "I had been involved in health issues quite a bit when I was in Commerce, but not from the human side," he says. "I mean, it is real easy; you get over into government and start thinking on this great macro level--it is an ivory tower. You sit there and think you are doing great things, and you are dealing with a flurry of paper and statistics and figures, and you worry great thoughts about what is going to happen 20 years from now.
"Then you leave government and open an office, and one day somebody walks in the door, a human being who needs you right now, where the rubber hits the road, and you realize there is a personal impact. It is an experience you don't forget."
Indeed, Hatch's "Fairness in Health Care" bill is almost a blow-by-blow response to his experience representing patients. The measure would make it easier to file malpractice lawsuits against insurers who deny or circumscribe the treatment a doctor recommends. It would give doctors more latitude in determining "medically necessary" care: Before a health plan could refuse to pay for a drug or procedure prescribed by a physician, it would have to demonstrate that the treatment is unsafe or ineffective. Another provision in the bill would prohibit insurers from financially rewarding physicians based on which treatments they prescribe or how often they refer patients to outside specialists.