"Health care delivered through managed care plans would not be improved by diverting millions of dollars to the trial lawyer industry," said John H. Sullivan, Civil Justice Association of California president. "Some of the current patient care problems in managed care plans can be addressed by making sure medical decisions are made by qualified medical personnel.

"This does not mean redefining the 'practice of medicine' in order to turn coverage decisions made by health care service plans into medical decisions. Trial lawyers like this approach because it would let them turn alleged contract violations into torts where the relentless search for contingency fees and punitive damage jackpots leads to more lawsuits and higher costs."

Sullivan observed that if health plans must add additional tort litigation to their underwriting expenses, higher health plan costs will inevitably follow, without doing a thing to expand medical care or solve the concerns that are driving reform of managed care.

The Managed Care Task Force in early January rejected opening health plan contract decisions to medical malpractice suits. But the lawsuit approach re-emerged January 5 in the form of a proposed constitutional amendment which appears to include a way to turn health coverage decisions into medical decisions, and so make health plans directly liable for medical outcomes.

"There is an important legal distinction between deciding whether a particular procedure or treatment should be provided to a patient and whether it will be paid for under the plan's terms," Sullivan said. "Medical decisions are made every day in doctors' offices, clinics, and hospitals. They are subject to California medical malpractice law, and appropriately subject to tort liability claims if negligence occurs."