Doctors take fight over ER bills to state high court

A dog bite, a broken leg, a car accident: Such events often bring patients to emergency rooms.

If you're "lucky" — read conscious — you might be able to pick a hospital that's in your insurer's network.

Later, the hospital's bill comes and goes, mostly paid by your insurer. But then you get a second bill — from the emergency doctors who treated you. As it turns out, they don't actually work for the hospital and aren't in your insurer's network. Their bill is often really big.

That bill, and who should pay, is at the heart of legal action filed Thursday by two doctors' groups with the Washington State Supreme Court.

They want the court to make the state's insurance commissioner force insurers to pay emergency doctors' bills — whatever the amount — for an insured patient. They say they have a 1997 law on their side.

"We respectfully disagree," said Beth Berendt, deputy insurance commissioner.

What happens now is that insurers pay the non-contracted doctors what they pay in-network doctors, who have agreed to accept a negotiated amount. But non-contracted doctors bill the patient for the balance, a so-called "balance billing."

The issue has become so contentious that a work group convened by Rep. Eileen Cody, D-West Seattle, has been meeting all summer to try to resolve it, bringing together doctors, insurers, legislators, hospitals and state regulators.

Cody said doctors and insurers both say the other side has all the power in the deal.

"Who gets caught in the middle is the patient," Cody says. "I kept telling them: 'I don't care about you guys. You both agree that this is a fight between doctors and the (insurance) carriers, but who gets the brunt is the patient.' "

The doctors who filed the legal action — the Washington State Medical Association and the state chapter of the American College of Emergency Physicians — say non-contracted ER doctors can't tell if the insurers are paying them a fair rate. "I have no way of verifying it," said Dr. John Milne, president of the emergency group.

Milne said insurers should tell patients which hospitals' ER doctors are in-network, just as they do with surgeons or orthopedists. "They shift that responsibility they have to take care of that member to either the physicians or the hospital, and as a result they're putting the patient in a precarious position."

Insurers say that having to fully pay the billed charges of non-contracted ER doctors would drive up costs for all. Eric Earling, spokesman for Premera Blue Cross, called that a bad deal for patients and "very unhelpful to our ongoing efforts to control costs."

The insurers, backed by the insurance commissioner, say the law was never intended to prevent non-contracted doctors from balance billing patients.

Former Insurance Commissioner Deborah Senn interpreted the law to mean that the insurers must pay all emergency-services costs for insured patients, other than usual co-payments, coinsurance or deductible amounts.

After Mike Kreidler was elected insurance commissioner, insurers challenged that interpretation, and Kreidler agreed.

"We really do believe that patients may be held hostage in this situation, and it's very unfortunate," Berendt said. However: "We believe the law is clear, and we believe our carriers are administering it appropriately."

Cody has drafted legislation she will introduce in the next session. "What I'm trying to do is eliminate balance billing," she said. Her bill incorporates provisions in the federal health law specifying how such non-contracted doctors should be paid.

If the doctors' legal action resolves the issue, Cody said, great. "But it's not going to keep me from going forward with legislation."

Carol M. Ostrom: 206-464-2249 or costrom@seattletimes.com