Smithy gets frequent dialysis because of kidney failure. His doctors told him that a renal transplant is needed. Without it, he'll die while still in his productive years.

"Smithy" isn't his real name, but he's a real person who registered in the national program to get a kidney if an appropriate match should become available. He also sought a relative who might be a kidney donor. Successful matches are more likely from blood relatives. Luckily, Smithy had such a relative whom we'll call Jonesy. Imagine Smithy's relief when he learned that Jonesy's immunological profile matched.The next step was for Jonesy to undergo evaluation to determine if anything in his own medical profile would make the surgery too risky.

Now imagine the disappointment at finding that Jonesy has a renal aneurysm (a ballooned area in the main artery going to one of his kidneys) and could not be a donor.

This explanation was conveyed to Smithy by functionaries of his managed care plan. They offered to let Smithy remain on the registry of names of people needing kidneys. Smithy, Jonesy and their respective families accepted the decision at first because they relied on the system. But when they decided to seek a second opinion, the malignancy of managed care shoved a stake into the family's trusting heart.

The consultant, associated with a major teaching hospital, said that what the managed care plan called an "aneurysm" was only an anatomical variant - and that Jonesy could safely donate his kidney to Smithy. In fact, the consultant would be glad to undertake the operation at the teaching hospital.

The families asked for reconsideration. The HMO administrators reconsidered, then replied that they would stick to their original opinion. If the families were to insist on the operation by surgeons at the other hospital, well, then, they would have to pay for it themselves.

While Smithy slides toward death, while Jonesy wonders whether he'll be allowed to save his relative's life, the managed care juggernaut careens onward, this time in the form of an HMO that denies benefits even though doctors outside their system have agreed to undertake the surgery.

Smithy and Jonesy have learned, as have other Americans, that Catch-22 has arrived in American health care. Die, or pay twice: Once to maintain managed care coverage, then again out of pocket when the prepaid managed care plan bosses deny benefits.

That is why the battle in Congress over patients' rights is crucial. Patients need to be able to sue their HMOs when it can be shown that delays or denials of care were made for business reasons, not on a medical or scientific basis.

In Congress, the issue has become partisan. Republicans are willing to allow patients to appeal denials or delays of treatment to panels of experts, but they don't offer the right to sue HMOs even for wrongful denials of treatment. Their solution won't help Smithy, who'll find it a tad difficult to appeal anything once he's dead.

Democrats argue that expert panels are insufficient because they delay action and thereby protect the corporate interests of insurance companies. Sick people need to expend energy getting well, but if they have to sue to get care, they should be allowed to do so.Injured patients should have the right to sue their HMOs and other managed care plans.

Anybody who delays or denies treatment and causes injury to patients should be fair game for a lawsuit.

One solution to the problem is to appoint review panels with authority to levy stiff financial penalties against managed care plans that deceive their clients by unfair delays or denials of health care. Suing should be a last resort, but one that should be allowable nonetheless.