Plans could be sued not merely for the denied benefit, as under current law, but also for economic losses and noneconomic damages, and they would be subject to punitive damages intended to punish the plan. Tort law is designed to provide compensation where one person has inflicted harm on another with whom he does not have a contractual relationship. Perhaps even more troubling is the degree to which it expands opportunities for litigation. It is premised on the unexamined assumption that litigation is the way to resolve disputes. But, as Americans increasingly understand, litigation should be a last resort, not a favored goal.
Litigation is complicated and expensive, and requires skilled lawyers on both sides.
More money is spent in the friction of the process than in compensating injured victims. It also is time-consuming and delays recovery for injured plaintiffs. And it is an emotionally wrenching experience for individuals who are not accustomed to the adversarial process - a process that is particularly difficult for a sick patient concerned about getting treatment. The patient does not want to go through litigation to establish what is covered. The possibility that a few claimants may last out the process and win the lottery of large noneconomic damages is no consolation to most patients, who simply want to get the treatment they believe is covered by their plan.