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Volumn 29, Issue 9999, 2001, Pages 253-277

Slouching toward managed care liability: Reflections on doctrinal boundaries, paradigm shifts, and incremental reform

(1)  Mariner, Wendy K a  

a NONE

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; FINANCIAL MANAGEMENT; HEALTH INSURANCE; HUMAN; LEGAL ASPECT; LEGAL LIABILITY; MALPRACTICE; PENSION; UNITED STATES;

EID: 0035467777     PISSN: 10731105     EISSN: None     Source Type: Journal    
DOI: 10.1111/j.1748-720x.2001.tb00347.x     Document Type: Article
Times cited : (8)

References (194)
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    • note
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    • Mariner, supra note 18 (discussing insurance policies as standard form contracts and contracts of adhesion, their use in managed care, and the different expectations of managed care organizations and individuals). See, generally, R.H. Jerry II, Understanding Insurance Law, 2d ed. (New York: Matthew Bender, 1996).
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    • About 154.8 million nonelderly Americans had employment-based health benefit coverage in 1998, including 6.2 million federal employees and 22.9 state and local government employees. The remaining 125.7 million nonelderly Americans were covered by private employment-based health plans that are subject to ERISA. Estimates of the proportion of individuals in private employer-based plans that are self-funded (or self-insured), which are more difficult to make, range between 39 percent and 43 percent, which would include from 49 million to 54 million people. C. Copeland, "Nonelderly Individuals with Employment-Based and Individually Purchased Health Care Coverage," EBRI Notes, 20, no. 5 (May 2000): 3-7. In addition, about 15.5 million Americans purchased individual coverage directly from an insurance company or managed care organization, not through an employer.
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    • Engalla v. Permanente, 15 Cal. 4th 951, 64 Cal. Rptr. 2d 843, 938 P.2d 903 (1997) (discussing employer's consideration of efficient arbitration as a desirable element of health plans when acting as agent for their employees). The evidence on how well employers choose health plans for their employees and how well their employees think they are performing is mixed. Some employees welcome an employer's ability to negotiate on their behalf from a position of strength.
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    • Findings from the 2000 Health Confidence Survey
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    • P. Fronstin and R. Helman, "Findings from the 2000 Health Confidence Survey," EBRI Notes, 22, no. 4 (April 2001): 3-6. But employers vary considerably in their knowledge of health plans and the factors on which they base their choices.
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    • Fronstin, P.1    Helman, R.2
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    • Edgman-Levitan, S.1    Cleary, P.2
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    • (1992) University of Pennsylvania Law Review , vol.140 , pp. 1637-1712
    • Hall, M.A.1    Anderson, G.F.2
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    • note
    • The uncontroversial proposition that two people should be able to contract for enforceable terms for future medical care provides scant support for imposing particular rules on patients in a managed care plan.
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    • Few people behave as rational economic beings as economic theory requires. C.R. Sunstein, ed., Behavioral Law and Economics (Cambridge: Cambridge University Press, 2000);
    • (2000) Behavioral Law and Economics
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    • K. Huigens, "Law, Economics and the Skeleton of Value Fallacy," California Law Review, 89 (2001): 537-68. In Western European countries, where the law and economics movement is generally considered an American aberration, the argument is rarely, if ever, taken seriously.
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    • Huigens, K.1
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    • Adherence to freedom of contract can force proponents into awkward positions. For example, if laws against the sale of human beings or body parts infringes on freedom of contract, then trafficking in human beings as well as organs enhances freedom and should not be banned. See, e.g., R.A. Epstein, Mortal Peril (New York: Addison-Wesley, 1997).
    • (1997) Mortal Peril
    • Epstein, R.A.1
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    • Freedom, Freedom of Contract, and the 'Rise and Fall,'
    • M. Pettit, Jr., "Freedom, Freedom of Contract, and the 'Rise and Fall,'" Boston University Law Review, 79 (1999): 263-354.
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    • R.L. Nettleship, ed., London: Longmans, Green, and Company
    • Pettit compares T.H. Green, who defined freedom as being free from natural constraints like the burdens of nature, including weather and wild beasts, T.H. Green, "Lecture on Liberal Legislation and Freedom of Contract," in R.L. Nettleship, ed., Works of Thomas Hill Green, vol. 3 (London: Longmans, Green, and Company, 1906): 365, 371, and Isaiah Berlin, who rejected any positive conception of liberty,
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    • I. Berlin, "Two Concepts of Liberty," in Four Essays on Liberty (Oxford: Oxford University Press, 1969): 118, 133 n.1, 150. This suggests that people may be freer when they join together to accomplish something that no individual can do alone, such as fighting a forest fire, building a bridge, or even creating a mutual insurance group to provide medical care that no one could afford alone.
    • (1969) Four Essays on Liberty , Issue.1-150 , pp. 118
    • Berlin, I.1
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    • note
    • For example, Pettit asks, does it matter to an explorer who has been trapped in a cave that his freedom has been constrained by another person blocking the exit or by an avalanche that seals off the exit? If the only constraints that count as obstacles to freedom are those imposed by other people, then he should feel free if an avalanche traps him and not free if another person traps him. Yet, it is hard to imagine a person feeling free when trapped in a cave, no matter what the cause. Pettit, supra note 44, at 276. Similarly, one might ask whether the explorer feels free after falling rocks break his leg, merely because no person blocks his way.
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    • This is the classic police power question: When does intervention protect an individual's liberty and when does it become paternalistic or coercive? See, e.g., R.L. Rabin and S.D. Sugarman, Smoking Policy: Law, Policy & Culture (New York: Oxford University Press, 1993).
    • (1993) Smoking Policy: Law, Policy & Culture
    • Rabin, R.L.1    Sugarman, S.D.2
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    • Pettit, supra note 44.
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    • Id.
    • Id.
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    • Contracts of Adhesion - Some Thoughts about Freedom of Contract
    • F. Kessler, "Contracts of Adhesion - Some Thoughts about Freedom of Contract," Columbia Law Review, 43 (1943): 629-42, at 640. Kessler noted that freedom of contract developed hand in glove with capitalism and the development of markets with small merchants. While the marketplace and the nature of the contracts in use have changed dramatically, the small merchant and individually negotiated contracts remain the dominant paradigm of freedom of contract.
    • (1943) Columbia Law Review , vol.43 , pp. 629-642
    • Kessler, F.1
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    • Pettit, supra note 44, at 269.
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    • Speculations of Contract, or How Contract Law Stopped Worrying and Learned to Love Risk
    • R. Kreitner, "Speculations of Contract, or How Contract Law Stopped Worrying and Learned to Love Risk," Columbia Law Review, 100 (2000): 1096-138;
    • (2000) Columbia Law Review , vol.100 , pp. 1096-1138
    • Kreitner, R.1
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    • The Emergence of Dynamic Contract Law
    • M.A. Eisenberg, "The Emergence of Dynamic Contract Law," California Law Review, 88 (2000): 1743-814. For suggestions that contract law can be applied to "consumer" issues, such as premiums prices, benefit exclusions, financial caps on benefits, choice-of-technology assessment standards, and procedures for filing grievances, see Mariner, supra note 18.
    • (2000) California Law Review , vol.88 , pp. 1743-1814
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    • W.L. Prosser, Handbook of the Law of Torts, 4th ed. (St. Paul, Minnesota: West Publishing Co., 1971). A modern casebook describes tort law as "a body of legal principles aiming to control or regulate harmful behavior; to assign responsibility for injuries that arise in social interaction; and to provide recompense for victims with meritorious claims. It is commonly said that the main concern of tort is redress for harm done, and that the main job of the law of torts is to determine when loss shall be shifted from one to another, and when it shall be allowed to remain where it has fallen."
    • (1971) Handbook of the Law of Torts, 4th Ed.
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    • Better Living Through Crime and Tort
    • A. Bernstein, "Better Living Through Crime and Tort," Boston University Law Review, 76 (1996): 169-92.
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    • Bernstein, A.1
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    • Medical Malpractice, Tort, Contract, and Managed Care
    • G.T. Schwartz, "Medical Malpractice, Tort, Contract, and Managed Care," University of Illinois Law Review, vol. 1998, no. 3 (1998): 885-907 (noting malpractice law's stability over time).
    • (1998) University of Illinois Law Review , vol.1998 , Issue.3 , pp. 885-907
    • Schwartz, G.T.1
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    • New Torts: Are They Being Developed? if So, Where, When & Why?
    • A. Bernstein, "New Torts: Are They Being Developed? If So, Where, When & Why?," DePaul Law Review, 49 (1999): 413-33.
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    • Bernstein, A.1
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    • Enabling Torts
    • Winter
    • R.L. Rabin, "Enabling Torts," DePaul Law Review, 49 (Winter 1999): 435-53, at 438-39. Of course, the primary reason that plaintiffs claim against these "enablers" is that the immediate wrongdoer (e.g., the drunk driver, rapist, thief) is judgment proof. So allowing liability serves the economic function of providing compensation to which the plaintiff would be entitled, albeit from another party (who may face criminal charges).
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    • The Economics of Vicarious Liability
    • Vicarious liability on the part of managed care organizations can be justified on grounds of economic efficiency - where an employee has insufficient assets to pay damages for injury, where employees lack incentives to avoid injuring others, or where employers lack incentives to control their employees and to internalize the full costs of such injuries. However, law and economics scholars also may conclude that managed care organizations should not bear vicarious liability for physician malpractice, especially where the physician actually made the patient care decision, because physicians who are not employees are generally less subject to managed care organization control and are capable of bearing the financial risk of liability. A.O. Sykes, "The Economics of Vicarious Liability," Yale Law Journal, 93 (1984): 1231-80.
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    • Prosser, supra note 55, at 614. "Where the defendant has done something more than remain inactive, and is to be charged with 'misfeasance,' the possibility of recovery in tort is considerably increased." Id. at 616. However, Prosser noted even in contract cases of nonfeasance, there are several areas in which "the failure to perform a contract may amount to a tort." Id. at 615. These include the obligations of public accommodations and public carriers. They also include cases in which the contract creates a relationship in which the law imposes some affirmative duty on one party, such as an employer who has a duty to furnish a safe workplace. Id. at 616.
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    • Id. at 617
    • Id. at 617.
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    • A Century of Change in Personal Injury Law
    • S.D. Sugarman, "A Century of Change in Personal Injury Law," California Law Review, 88 (2000): 2403-36.
    • (2000) California Law Review , vol.88 , pp. 2403-2436
    • Sugarman, S.D.1
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    • Portland, Maine: National Academy for State Health Policy, March 〈http://www.nashp.org/ GNL37.pdf〉
    • Both the federal and state governments are exploring ways to protect patients against injuries from all sources. Doing What Counts for Patient Safety: Federal Actions to Reduce Medical Errors and Their Impact, Report of the Quality Interagency Coordination Task Force (QuIC) to the President (February 2000), available at 〈http://www.quic.gov/report/toc.htm〉; J. Rosenthal and T. Riley, Patient Safety and Medical Errors: A Road Map for State Action (Portland, Maine: National Academy for State Health Policy, March 2001), available at 〈http://www.nashp.org/ GNL37.pdf〉.
    • (2001) Patient Safety and Medical Errors: A Road Map for State Action
    • Rosenthal, J.1    Riley, T.2
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    • R.R. Bovbjerg, R.H. Miller, and D.W. Shapiro, "Paths to Reducing Medical Injury: Professional Liability vs. Patient Safety - and the Need for a Third Way," Journal of Law, Medicine & Ethics, 29, nos. 3 and 4 (2001): 369-80;
    • (2001) Journal of Law, Medicine & Ethics , vol.29 , Issue.3-4 , pp. 369-380
    • Bovbjerg, R.R.1    Miller, R.H.2    Shapiro, D.W.3
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    • Committee on Commerce, Subcommittee on Health and Environment, U.S. House of Representatives, Feb. 9
    • R.R. Bovbjerg, "Summary of Testimony: Reporting Systems for Medical Error: Options and Issues," to the Committee on Commerce, Subcommittee on Health and Environment, U.S. House of Representatives, Feb. 9, 2000, available at 〈http://www.house.gov/va/hearings/ schedule106/feb00/2-9-00/RBovberg.htm〉;
    • (2000) Summary of Testimony: Reporting Systems for Medical Error: Options and Issues
    • Bovbjerg, R.R.1
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    • Promoting Patient Safety by Preventing Medical Error
    • L.L. Leape et al., "Promoting Patient Safety by Preventing Medical Error," JAMA, 280 (1998): 1444-47;
    • (1998) JAMA , vol.280 , pp. 1444-1447
    • Leape, L.L.1
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    • L. Leape, "Error in Medicine," JAMA, 272 (1994): 1851-57.
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    • The Tort of Bad Faith in First-Party Insurance Transactions after Two Decades
    • R.C. Henderson, "The Tort of Bad Faith in First-Party Insurance Transactions After Two Decades," Arizona Law Review, 37 (1995): 1153-82;
    • (1995) Arizona Law Review , vol.37 , pp. 1153-1182
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    • An Overview of Insurance Bad Faith Law and Litigation
    • D.R. Richmond, "An Overview of Insurance Bad Faith Law and Litigation," Seton Hall Law Review, 25 (1994): 74-140;
    • (1994) Seton Hall Law Review , vol.25 , pp. 74-140
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    • 'Bad Faith Breach': A New and Growing Concern for Financial Institutions
    • S.D. Gresham, "'Bad Faith Breach': A New and Growing Concern for Financial Institutions" (comment), Vanderbilt Law Review, 42 (1989): 891-916.
    • (1989) Vanderbilt Law Review , vol.42 , pp. 891-916
    • Gresham, S.D.1
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    • Comunale v. Traders and General Insurance Co., 328 P.2d 198 (Cal. 1958); Gruenberg v. Aetna Insurance Co., 108 Cal. Rptr. 480 (Cal. 1973); McCorkle v. Great Atlantic Ins., 637 P.2d 583 (Okla. 1981).
    • Comunale v. Traders and General Insurance Co., 328 P.2d 198 (Cal. 1958); Gruenberg v. Aetna Insurance Co., 108 Cal. Rptr. 480 (Cal. 1973); McCorkle v. Great Atlantic Ins., 637 P.2d 583 (Okla. 1981).
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    • The Boundaries of Extracompensatory Relief for Abusive Breach of Contract
    • N.J. Johnson, "The Boundaries of Extracompensatory Relief for Abusive Breach of Contract," Connecticut Law Review, 33 (2000): 181-98.
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    • Johnson, N.J.1
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    • note
    • See, e.g., Code of Ala. § 27-12-24 ("No insurer shall, without just cause, refuse to pay or settle claims arising under coverages provided by its policies in this state and with such frequency as to indicate a general business practice in this state....").
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    • Bad Faith Suits Against HMOs: Finally, a Breakthrough
    • J.B. Stern, "Bad Faith Suits Against HMOs: Finally, A Breakthrough," Whittier Law Review, 20 (1998): 313-23.
    • (1998) Whittier Law Review , vol.20 , pp. 313-323
    • Stern, J.B.1
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    • note
    • Walker v. Group Health Services, Inc., No. 94,380, 2001 Okla. LEXIS 4 (Okla. January 16, 2001); Long v. Great West Life & Annuity Ins. Co., 957 P.2d 823 (Wyo. 1998); Goodrich v. Aetna U.S. Healthcare of California, Inc., No. RCV 20499, 1999 WL 181418 (Cal. App. Dep't Super. Ct. March 29, 1999); McEvoy v. Group Health Cooperative of Eau Claire, 570 N.W.2d 397 (Wis. 1997); Sarchett v. Blue Shield of California, 729 P.2d 267 (Cal. 1987); Williams v. Health America, 535 N.E.2d 717 (Ohio Ct. App. 1987).
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    • Evidentiary Sufficiency in Insurance Bad Faith Claims
    • W.T. Barker, "Evidentiary Sufficiency in Insurance Bad Faith Claims," Connecticut Insurance Law Journal, 6 (1999/2000): 81-147, at 92 ("the abuse forbidden by the law of first-party bad faith is forcing the insured to litigate to collect benefits when no bona fide question justifies litigation").
    • (1999) Connecticut Insurance Law Journal , vol.6 , pp. 81-147
    • Barker, W.T.1
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    • Liability for Managed Care Decisions: The Employee Retirement Income Security Act (ERISA) and the Uneven Playing Field
    • W.K. Mariner, "Liability for Managed Care Decisions: The Employee Retirement Income Security Act (ERISA) and the Uneven Playing Field," American Journal of Public Health, 83 (1996): 863-69.
    • (1996) American Journal of Public Health , vol.83 , pp. 863-869
    • Mariner, W.K.1
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    • note
    • See note 37 supra.
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    • note
    • ERISA § 502(a) authorizes participants in ERISA plans to bring suit against the plan in federal court for denying plan benefits or improper processing of benefit claims. 29 U.S.C. § 1332(a). See, e.g., Velez v. Prudential Health Care Plan of New York, Inc., 943 F. Supp. 332 (S.D.N.Y 1996). However, the remedy for successful suits has been interpreted to be limited to the cost of the benefit - the amount payable to the provider for a diagnostic test, hospitalization, or treatment - and not to include damages for personal injury, such as lost income, additional medical expenses, or non-economic losses. The vast majority of courts have found that ERISA provides an exclusive federal remedy for patient claims of benefit denial. State law causes of action for benefit denials are therefore completely preempted by ERISA, and no claim for additional damages may be brought in state court. See, e.g., Bast v. Prudential Insurance Co. of America, 150 F.3d 1003 (9th Cir. 1998); Turner v. Fallon Community Health Plan, 127 F.3d 196 (1st Cir. 1997), cert. denied, 523 U.S. 1072 (1998). However, what counts as a benefit denial remains controversial. See discussion infra in text accompanying notes 86-91.
  • 122
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    • note
    • Claims of personal injury caused by physician malpractice have been generally held to be actionable under negligence or medical malpractice law in state courts. These are not completely preempted because ERISA provides no remedy for such claims. Managed care organizations that provide benefits under ERISA plans have attempted to dismiss such claims on the grounds that they are subject to conflict preemption under ERISA § 514(a), which preempts any state law that "relates to" an ERISA plan. In other words, § 514(a) provides a defense to a state law cause of action, but does not provide a federal remedy. However, most courts have held that malpractice claims against a physician do not relate to an ERISA plan, but to the quality of care - a subject traditionally regulated by the states. See Dukes v. U.S. Healthcare, Inc., 57 F.3d 350 (3d Cir.), cert. denied, 530 U.S. 1242 (1995) (drawing on New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645 (1995)). Such claims are not preempted and can go forward in state court. A managed care organization can be vicariously liable for the medical malpractice of an employee. See, e.g., Jass v. Prudential Health Care Plan, Inc., 88 F.3d 1482 (7th Cir. 1996); Rice v. Panchal, 65 F.3d 637 (7th Cir. 1995); Pacificare of Oklahoma, Inc., 59 F.3d 151 (10th Cir. 1995); Dukes v. U.S. Healthcare, Inc., 57 F.3d 350 (3d Cir.), cert. denied, 530 U.S. 1242 (1995). However, claims against a managed care organization that are not predicated on employee or agent malpractice and also do not assert any benefit denial under § 502(a) have generally been found to be preempted on the basis of § 514(a) conflict preemption. For example, a claim that a managed care organization delayed approving benefits so that the patient could not receive appropriate treatment charges the managed care organization, not the physician, with negligence or worse, but because benefits (some form of treatment) were ultimately received, the patient has no claim for benefit denial. See, e.g., Hull v. Fallon, 188 F.3d 939 (8th Cir. 1999) (medical malpractice claim for failure to diagnose myocardial infarction found to be claim for denial of benefits - namely, thallium stress test); Kuhl v. Lincoln National Health Plan of Kansas City, Inc., 999 F.2d 298 (8th Cir. 1993). Such cases leave the patient without any remedy, state or federal.
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    • note
    • Dukes v. U.S. Healthcare, Inc., 57 F.3d 350 (3d Cir.), cert. denied, 530 U.S. 1242 (1995).
  • 124
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    • note
    • Bauman v. U.S. Healthcare, Inc. (In re U.S. Healthcare), 193 F.3d 151 (3d Cir. 1999), cert. denied, 530 U.S. 1242 (2000); Lazorko v. Pennsylvania Hospital, 237 F.3d 242 (3d Cir. 2000) (claim that managed care organization's refusal to rehospitalize patient with depression and schizophrenia resulted in patient's suicide was found to be an exercise of medical judgment about what, if any, treatment to provide, even if influenced by financial incentives to physicians, and not preempted by ERISA); Nealy v. U.S. Healthcare HMO, 93 N.Y.2d 209, 711 N.E.2d 621 (N.Y 1999) (claim that physician delayed submitting request to health maintenance organization to authorize referral to out-of-network cardiologist found not to relate to ERISA plan because claim was for physician's own failure to treat patient, not the HMO's delay).
  • 125
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    • note
    • Bauman, 193 F.3d at 162 (plaintiffs claimed that their newborn died of meningitis that was not diagnosed or treated as a result of the MCO's hospital discharge policy and its utilization policies discouraging physicians from readmitting infants, despite acceptable medical standards indicating a need for immediate treatment).
  • 126
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    • note
    • The defendants could raise the defense that ERISA § 514(a) preempts the state law claims of malpractice in the state court action. Id.
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    • Litigating an HMO Bad Faith Case from the Plaintiff's Perspective and the Lessons of Goodrich v. Aetna
    • More specifically, defendants move to remove cases brought in state court to federal court, typically on the grounds that the claim is really for the denial of benefits, which is completely preempted, and must be brought in federal court as an ERISA § 502(a) claim or not at all. See, e.g., M.J. Bidart and R. Echeverria, "Litigating an HMO Bad Faith Case from the Plaintiff's Perspective and the Lessons of Goodrich v. Aetna," Whittier Law Review, 22 (2000): 427-46 (outlining the plaintiff's arguments against ERISA preemption);
    • (2000) Whittier Law Review , vol.22 , pp. 427-446
    • Bidart, M.J.1    Echeverria, R.2
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    • 0032152847 scopus 로고    scopus 로고
    • Emerging Theories of Liability for Utilization Review under ERISA Health Plans
    • S.D. Pomfret, "Emerging Theories of Liability for Utilization Review under ERISA Health Plans," Tort & Insurance Law Journal, 34 (1998): 131-66 (outlining defense arguments for ERISA preemption).
    • (1998) Tort & Insurance Law Journal , vol.34 , pp. 131-166
    • Pomfret, S.D.1
  • 129
    • 19844366205 scopus 로고    scopus 로고
    • note
    • See, e.g., Bast v. Prudential Ins. Co. of America, 150 F.3d 1003 (9th Cir. 1998); Tolton v. American Diodyne, Inc., 48 F.3d 937 (6th Cir. 1995); Kuhl v. Lincoln National Health Plan of Kansas City, Inc., 999 F.2d 298 (8th Cir. 1993); Spain v. Aetna Life Ins. Co., 11 F.3d 129 (9th Cir. 1993) (all including claims for delaying authorization of specific treatment or providers); Hollis v. Provident Life and Accident Insurance Company, 259 F.3d 410 (5th Cir. 2001) (bad faith denial of disability benefits claim).
  • 130
    • 19844379161 scopus 로고    scopus 로고
    • note
    • Pilot Life Insurance Co. v. Dedeaux, 481 U.S. 41 (1987).
  • 131
    • 19844378641 scopus 로고    scopus 로고
    • note
    • New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645 (1995); DeBuono v. NYSA-ILSA Medical and Clinical Services Fund, 520 U.S. 806 (1997); Unum Life Insurance Company of America v. Ward, 526 U.S. 358 (1999). Epstein and Sykes agree that ERISA's failure to allow consequential damages for personal injury resulting from an improper denial of benefits creates a clear incentive to deny benefits. They argue that routine denial of benefits is likely to result in complaints to the employer, who will react by changing health plans. Epstein and Sykes, supra note 33, at 28. That is an empirical question that deserves study.
  • 132
    • 19844364909 scopus 로고    scopus 로고
    • note
    • Lazorko v. Pennsylvania Hospital, 237 F.3d 242 (3d Cir. 2000) (husband argued that the patient's physician was influenced by the MCO's financial penalties on additional hospitalizations).
  • 133
    • 19844369283 scopus 로고    scopus 로고
    • Id. at 250
    • Id. at 250.
  • 134
    • 19844379162 scopus 로고    scopus 로고
    • note
    • Pryzbowski v. U.S. Healthcare, 245 F.3d 266 (3d Cir. 2001). See discussion infra in text accompanying note 115.
  • 135
    • 19844366642 scopus 로고    scopus 로고
    • note
    • Pegram v. Herdrich, 530 U.S. 211, 120 S. Ct. 2143 (2000).
  • 136
    • 19844381428 scopus 로고    scopus 로고
    • note
    • A bad faith claim based on a state statute might still be preempted by ERISA § 514(a) if the court determines that the state statute relates to the ERISA plan but is not saved as insurance regulation.
  • 137
    • 19844366437 scopus 로고    scopus 로고
    • note
    • One might also argue that it may be necessary to refer to the ERISA plan to determine whether the MCO has the discretion to determine which provider provides the care and what, if any, standards it must use to do so, thereby relating the cause of action to the ERISA plan. This argument relies on a somewhat literal interpretation of the phrase "having a connection with or reference to" an ERISA plan, used in Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 97 (1083), and District of Columbia v. Greater Washington Bd. Of Trade, 506 U.S. 125, 129 (1992). This seems a thin reed on which to hang current arguments.
  • 138
    • 19844381857 scopus 로고    scopus 로고
    • note
    • These answers might apply as rebuttable presumptions, but the evidence required to determine whether the presumption applies in the first place should be sufficient to resolve the question on the merits, so that presumptions are not necessary.
  • 139
    • 19844379961 scopus 로고    scopus 로고
    • note
    • Critics of these principles make the point that the abuse-of-discretion standard of review (for ERISA plans that grant plan administrators discretion to interpret the plan) grants excessive discretion to ERISA plan administrators to determine the scope of benefits. To the extent that such discretion has been permitted in cases that should have been allowed to proceed as negligence actions in state court, the personal medical information test may help to reduce the opportunities for overly expansive interpretations of discretion.
  • 140
    • 0007153097 scopus 로고
    • Fiduciary Contracting: Limitations on Bargaining between Patients and Health Care Providers
    • Jacobson and Cahill, supra note 18 (proposing a detailed scheme distinct from existing tort duties); Mariner, supra note 18 (arguing for an extracontractual negligence standard by which to judge MCO patient care decisions); M.J. Mehlman, "Fiduciary Contracting: Limitations on Bargaining Between Patients and Health Care Providers," University of Pittsburgh Law Review, 51 (1990): 365-417 (focusing on patient care decisions that fit most easily into traditional medical professional obligations).
    • (1990) University of Pittsburgh Law Review , vol.51 , pp. 365-417
    • Mehlman, M.J.1
  • 141
    • 19844361813 scopus 로고    scopus 로고
    • Trust Me: Insurers Are Not Fiduciaries to Their Insureds
    • D.R. Richmond, "Trust Me: Insurers Are Not Fiduciaries to Their Insureds," Kentucky Law Journal, 88 (1999/2000): 1-32.
    • (1999) Kentucky Law Journal , vol.88 , pp. 1-32
    • Richmond, D.R.1
  • 142
    • 19844366861 scopus 로고    scopus 로고
    • Fiduciary Status as an Employer's Shield: The Perversity of ERISA Fiduciary Law
    • See D.M. Muir, "Fiduciary Status as an Employer's Shield: The Perversity of ERISA Fiduciary Law," Journal of Labor & Employment Law, 2 (2000): 391-462 (explaining this distinction in the context of ERISA benefit plans).
    • (2000) Journal of Labor & Employment Law , vol.2 , pp. 391-462
    • Muir, D.M.1
  • 143
    • 19844369068 scopus 로고    scopus 로고
    • note
    • Perhaps the most cited formulation is that of Judge Cardozo in Meinhard v. Salmon, 249 N.Y. 458, 164 N.E. 545, 546 (1928): "Many forms of conduct permissible in a workaday world for those acting at arm's length are forbidden to those bound by fiduciary ties. A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior." Law has imposed some conflicting obligations on professionals, such as the reporting duties of attorneys and physicians, but the result has sometimes been to characterize physicians as quasi-fiduciaries.
  • 144
    • 19844370800 scopus 로고    scopus 로고
    • note
    • ERISA § 404, 29 U.S.C. § 1104(a), provides that an ERISA plan fiduciary "shall discharge his duties with respect to a plan solely in the interests of the participants and beneficiaries and - (A) for the exclusive purpose of: (i) providing benefits to participants and their beneficiaries; and (ii) defraying reasonable expenses of administering the plan; (B) with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims; ...." See S. Rep. No. 93-127, at 29 (1973), reprinted in 1974 U.S.C.C.A.N. 4639, 4865 ("The fiduciary responsibility section, in essence, codifies and makes applicable to these fiduciaries certain principles developed in the evolution of the law of trusts."); H.R. Rep. No. 93-533, at 11 (1973); Central States, Southeast & Southwest Areas Pension Fund v. Central Transport, Inc., 472 U.S. 559, 570 (1985).
  • 145
    • 19844363964 scopus 로고    scopus 로고
    • note
    • Ehlmann v. Kaiser Foundation Health Plan of Texas, 198 F.3d 552, 556 (5th Cir. 2000).
  • 146
    • 19844381634 scopus 로고    scopus 로고
    • note
    • See, e.g., Friend v. Sanwa Bank California, 35 F.3d 466 (9th Cir. 1994) ("nowhere in the statute does ERISA explicitly prohibit a trustee from holding positions of dual loyalties").
  • 147
    • 19844383784 scopus 로고    scopus 로고
    • note
    • Schwartz v. Interfaith Medical Center, 715 F. Supp. 1190, 1195 (E.D.N.Y. 1989) (noting that the "'prudent man standard of care' relates primarily to the management of plan assets").
  • 148
    • 19844369650 scopus 로고    scopus 로고
    • note
    • Varity Corp. v. Howe, 516 U.S. 489 (1996); Metropolitan Life Insurance Co. v. Taylor, 438 U.S. 58 (1987).
  • 149
    • 19844383016 scopus 로고    scopus 로고
    • note
    • Pegram v. Herdrich, 530 U.S. 211, 120 S. Ct. 2143 (2000).
  • 150
    • 0035054202 scopus 로고    scopus 로고
    • Breach of Fiduciary Duty Suits Against MCOs: What's Left after Pegram v. Herdrich?
    • A.J. Rosoff, "Breach of Fiduciary Duty Suits Against MCOs: What's Left After Pegram v. Herdrich?," Journal of Legal Medicine, 22 (2001): 55-75. However, several commentators assert that the decision can be used to argue that many patient claims of negligence under state law are not preempted by ERISA § 514.
    • (2001) Journal of Legal Medicine , vol.22 , pp. 55-75
    • Rosoff, A.J.1
  • 151
    • 0035295645 scopus 로고    scopus 로고
    • Doctors, HMOs, ERISA and the Public Interest after Pegram v. Herdrich
    • J.W. Stempel and N. von Magdenko, "Doctors, HMOs, ERISA and the Public Interest After Pegram v. Herdrich," Tort & Insurance Law Journal, 36 (2001): 687.
    • (2001) Tort & Insurance Law Journal , vol.36 , pp. 687
    • Stempel, J.W.1    Von Magdenko, N.2
  • 152
    • 19844383347 scopus 로고    scopus 로고
    • note
    • 105. 29 U.S.C. § 1109(a).
  • 153
    • 19844367690 scopus 로고    scopus 로고
    • note
    • The Court's decision was limited to fiduciary acts pertaining to decisions about health-care benefits. ERISA fiduciaries have other duties, including disclosure, which the Court has recognized in other cases and mentioned in a footnote in Pegram. See Rosoff, supra note 104.
  • 154
    • 19844382459 scopus 로고    scopus 로고
    • note
    • Pegram, 530 U.S. at 228.
  • 155
    • 19844369395 scopus 로고    scopus 로고
    • note
    • Mariner, supra note 2; Rosoff, supra note 104; Stempel and von Magdenko, supra note 104.
  • 156
    • 19844363229 scopus 로고    scopus 로고
    • note
    • The U.S. Supreme Court remanded cases involving state law claims of negligence for reconsideration in light of its decision in Pegram. U.S. Healthcare Systems, PA v. PA Hospital Ins. Co., 530 U.S. 1241 (2000), vacating and remanding Pappas v. Asbel, 724 A.2d 889 (Pa. 1998).
  • 157
    • 19844380403 scopus 로고    scopus 로고
    • note
    • Pegram, 530 U.S. at 237.
  • 158
    • 19844368455 scopus 로고    scopus 로고
    • note
    • Pappas v. Asbel, 768 A.2d 1089 (Pa. 2001) (confirming its decision at 724 A.2d 889 (Pa. 1998), which was vacated and remanded for reconsideration in light of Pegram).
  • 159
    • 19844373880 scopus 로고    scopus 로고
    • note
    • The patient's claims included medical malpractice against the physicians and negligence on the part of Haverford in causing inordinate delay in obtaining a necessary transfer.
  • 160
    • 19844367577 scopus 로고    scopus 로고
    • note
    • Pappas v. Asbel, 724 A.2d 889 (Pa. 1998).
  • 161
    • 19844382908 scopus 로고    scopus 로고
    • note
    • U.S. Healthcare Systems, PA v. PA Hospital Ins. Co., 530 U.S. 1241 (2000).
  • 162
    • 19844367924 scopus 로고    scopus 로고
    • note
    • Pryzbowski v. U.S. Healthcare, Inc., 245 F.3d 266 (3d Cir. 2001) (see discussion supra in text accompanying note 88).
  • 163
    • 19844382688 scopus 로고    scopus 로고
    • note
    • Pryzbowski had undergone "numerous surgeries for her back" and sought treatment in 1993 for back pain from her MCO physicians. They identified an "extra-dural defect compressing the thecal sac, consistent with disc herniation," and concluded that the non-network surgeon, Dr. Barolat, who had done her most recent surgery - to implant a neurostimulator - was the only one who might be able to diagnose or treat the new problem. 245 F.3d at 269. Dr. Barolat insisted on working with other non-network specialists. The treatment was approved and performed seven months later, but Pryzbowski still had back pain. She sued her MCO and its physicians, claiming that the delay in authorizing the surgery had caused her continuing pain. Her claims against the MCO included negligent, arbitrary, and capricious delay; breach of contract; bad faith; and breach of a duty to screen, hire, and train competent employees as decision-makers.
  • 164
    • 19844381737 scopus 로고    scopus 로고
    • note
    • Dr. Barolat, who performed the surgery, said that the delay caused the persistent pain, but his opinion might be discounted by a court or jury.
  • 165
    • 19844380177 scopus 로고    scopus 로고
    • note
    • Havighurst, supra note 26, at 1392.
  • 166
    • 77955524866 scopus 로고
    • 'Most Cases Settle': Judicial Promotion and Regulation of Settlements
    • M. Galanter and M. Cahill, "'Most Cases Settle': Judicial Promotion and Regulation of Settlements," Stanford Law Review, 46 (1994): 1339-91;
    • (1994) Stanford Law Review , vol.46 , pp. 1339-1391
    • Galanter, M.1    Cahill, M.2
  • 167
    • 0347080019 scopus 로고    scopus 로고
    • Bringing Settlement out of the Shadows: Information about Settlement in an Age of Confidentiality
    • B. Fromm, "Bringing Settlement Out of the Shadows: Information about Settlement in an Age of Confidentiality," UCLA Law Review, 48 (2001): 663-741.
    • (2001) UCLA Law Review , vol.48 , pp. 663-741
    • Fromm, B.1
  • 168
    • 19844377198 scopus 로고    scopus 로고
    • note
    • See, e.g., Pryzbowski v. U.S. Healthcare, Inc., 245 F.3d 266 ("It is for Congress and not the courts to decide whether it is sound policy for our health care system to limit or channel the relief available or whether ERISA should allow for broader remedies for beneficiaries in the world of managed care."); Andrews-Clarke v. Travelers Insurance Co., 984 F. Supp. 49 (D. Mass. 1997).
  • 169
    • 19844366641 scopus 로고    scopus 로고
    • note
    • See, e.g., Bipartisan Consensus Managed Care Improvement Act, H.R. 2723, passed by the U.S. House of Representatives on October 7, 1999; S. 889 (introduced by Senators Frist, Breaux, and Jeffords) and S. 283 (introduced by Senators McCain, Kennedy, Chafee, and Graham), both named the Bipartisan Patient Protection Act of 2001, 107th Congress, 1st Session, which were superseded by the Senate and House bills passed in the summer of 2001. See discussion of current bill infra in text accompanying note 131.
  • 170
    • 0012191591 scopus 로고    scopus 로고
    • Coverage Denials in ERISA Plans: Assessing the Federal Legislative Solution
    • See K.A. Jordan, "Coverage Denials in ERISA Plans: Assessing the Federal Legislative Solution," Missouri Law Review, 65 (2000): 405-72.
    • (2000) Missouri Law Review , vol.65 , pp. 405-472
    • Jordan, S.K.A.1
  • 171
    • 19844381973 scopus 로고    scopus 로고
    • note
    • 65 Fed. Reg. 70,245 (November 21, 2000).
  • 172
    • 19844371885 scopus 로고    scopus 로고
    • note
    • Kaiser Family Foundation/Harvard School of Public Health, Update on Americans' Views on the Consumer Protections Debate, Publication No. 1502 (Washington, D.C.: The Henry J. Kaiser Family Foundation, 1999).
  • 173
    • 19844368832 scopus 로고    scopus 로고
    • note
    • Corporate Health Insurance, Inc. v. Texas Dept. of Insurance, 215 F.3d 526 (5th Cir. 2000), petition for cert. filed (October 24, 2000) (finding that ERISA preempted state statute requiring independent review of benefit decisions, but not of medical treatment decisions); Moran v. Rush Prudential HMO, Inc., 230 F.3d 959 (11th Cir. 2000), cert. granted, 121 S. Ct. 2589 (2001) (finding that a state statute requiring independent review of medical necessity disputes affected benefit determinations but was saved from preemption as applied to fully insured MCOs offering benefits as part of a fully insured ERISA plan).
  • 174
    • 19844378514 scopus 로고    scopus 로고
    • note
    • For example, several district courts have found that a state law bad faith claim was saved from ERISA preemption under § 514(b)(2)(A), 29 U.S.C. § 1144(b)(2)(A), because it was a state law that regulated insurance. Gilbert v. Alta Health & Life Insurance Company, 122 F. Supp. 2d 1267 (N.D. Ala. 2000) (the Alabama common law tort duty of good faith in determining insurance benefits was codified in its insurance code and limited to insurance entities; the plaintiff sued his employer-provided health insurer for denying his claim for coverage of his hospital care); Hill v. Blue Cross Blue Shield of Alabama, 117 F. Supp. 2d 1209 (N.D. Ala. 2000) (distinguishing Pilot Life on the grounds that Mississippi's bad faith tort law was not limited to the insurance industry); Lewis v. Aetna U.S. Healthcare, 78 F. Supp. 2d 1202 (N.D. Okla. 1999). However, other district courts, often with little analysis of the facts, have found state law bad faith claims for denial of benefits to be completely preempted because they fell within the scope of ERISA § 510(a). Ginsberg v. Independent Blue Cross and QCC Insurance Company, No. 01-66, 2001 U.S. Dist. LEXIS 2845 (E.D. Pa. 2001); Richardson v. American Nonwovens Corporation, No. 1:99CV-372-B-A, 2000 U.S. Dist. LEXIS 8515 (N.D. Miss. 2000).
  • 175
    • 0033085028 scopus 로고    scopus 로고
    • Physicians as Advocates
    • The Court remanded Pryzbowski's claims against her HMO physicians to the district court for a determination on whether under New Jersey law physicians have a duty to the patient that they did not meet. The Court did decide that physicians do not currently have a legal duty to advocate on patients' behalf when an MCO delays or denies treatment recommended by the physician, although it took no position on whether the state should impose such a duty in the future. See W.M. Sage, "Physicians as Advocates," Houston Law Review 35 (1999): 1529-630 (suggesting that physician advocacy for managed care benefits would entail changes in their roles and applicable law that could be excessive or counterproductive).
    • (1999) Houston Law Review , vol.35 , pp. 1529-1630
    • Sage, W.M.1
  • 176
    • 19844376012 scopus 로고    scopus 로고
    • note
    • See Havighurst, supra note 2 (recommending that MCOs assume vicarious liability, with the option to shift liability downstream to physicians where providers are at fault).
  • 177
    • 19844383346 scopus 로고    scopus 로고
    • note
    • But see Bovbjerg, "Summary of Testimony," supra note 65 (arguing that the fear of liability may discourage physicians from reporting errors).
  • 178
    • 19844374523 scopus 로고    scopus 로고
    • note
    • S. 1052 passed June 29, 2001. H.R. 2563 passed August 2, 2001.
  • 179
    • 19844366862 scopus 로고    scopus 로고
    • note
    • The bills also include a variety of consumer protection provisions, including standards for benefits offered by health insurance and managed care plans, disclosure of information to patients, and procedures for internal and independent external review of benefit decisions. For a comparison of the liability provisions in both bills, see Patient Rights Program White Paper: Different Systems of Liability to Patients - Comparative Analysis of the Senate and House of Representative Bills Entitled "Bipartisan Patient Protection Act" (S. 1052 and H.R. 2563) Provisions on Liability to Patients (Boston: Boston University School of Public Health, Health Law Department, Patient Rights Program, September 7, 2001) (monograph available from the Patient Rights Program).
  • 180
    • 19844366990 scopus 로고    scopus 로고
    • note
    • Congressman Charles Norwood, a key sponsor of the original House bill, agreed with President Bush to amend H.R. 2563 in ways that the President, who had not supported its liability provisions, would accept. Several of Norwood's co-sponsors objected to Norwood's apparently unilateral action.
  • 181
    • 19844365357 scopus 로고    scopus 로고
    • note
    • S. 1052 § 402(a)(1) (adding new § 502(n)(17) to ERISA) and § 402(b)(2) (adding new subsection (d)(1)(A) to ERISA § 514).
  • 182
    • 19844366436 scopus 로고    scopus 로고
    • note
    • S. 1052 § 402(a)(1) (adding new § 502(n) to ERISA).
  • 183
    • 19844367332 scopus 로고    scopus 로고
    • note
    • S. 1052 § 104(d)(2).
  • 184
    • 19844373565 scopus 로고    scopus 로고
    • note
    • H.R. 2563 § 402 (adding new § 502(n) to ERISA).
  • 185
    • 19844383246 scopus 로고    scopus 로고
    • note
    • The House bill does not make clear whether a health plan's decision to use a different treatment or provider than what the patient wants would be considered to be a benefit denial under the new liability provisions. If not, then patients would not have any right to recover compensation if they were injured as a result of a health plan's wrongful refusal to authorize a particular treatment or provider. The Senate bill contains a similar ambiguity that makes it difficult to determine whether federal or state law would apply, but it ensures patients a cause of action either way.
  • 186
    • 19844376234 scopus 로고    scopus 로고
    • note
    • H.R. 2563 § 402 (adding new § 502(n)(9) to ERISA) ("A cause of action that is based on or otherwise relates to a group health plan's determination on a claim for benefits shall not be deemed to be the delivery of medical care under any State law....").
  • 187
    • 19844384001 scopus 로고    scopus 로고
    • note
    • The House bill creates a cause of action against a designated decision-maker who "fails to exercise ordinary care" in making a determination denying a claim for benefits or failing to authorize benefits in compliance with the written determination of an independent medical review where the failure to receive or any delay in receiving benefits is a proximate cause of personal injury or death. H.R. 2563 § 402(a) (adding a new § 502(n)(1) to ERISA). "The term Ordinary care' means, with respect to a determination on a claim for benefits, that degree of care, skill, and diligence that a reasonable and prudent individual would exercise in making a fair determination on a claim for benefits of like kind to the claims involved." H.R. 2563 § 402(a) (adding a new § 502(n)(16)(E) to ERISA).
  • 188
    • 19844383132 scopus 로고    scopus 로고
    • note
    • Although the House bill gives state courts concurrent jurisdiction over such claims, the new ERISA § 502(n) - federal law - would apply.
  • 190
    • 0034528802 scopus 로고    scopus 로고
    • Health Care Reform in the Year 2000: The View from the Front of the Classroom
    • K.R. Wing, "Health Care Reform in the Year 2000: The View from the Front of the Classroom," American Journal of Law & Medicine, 26 (2000): 277-93.
    • (2000) American Journal of Law & Medicine , vol.26 , pp. 277-293
    • Wing, K.R.1
  • 191
    • 23044522382 scopus 로고    scopus 로고
    • The Common Law in the Twentieth Century: Some Unfinished Business
    • J. Gordley, "The Common Law in the Twentieth Century: Some Unfinished Business," California Law Review, 88 (2000): 1815-75 (arguing for governance by fundamental principles rather than specific rules).
    • (2000) California Law Review , vol.88 , pp. 1815-1875
    • Gordley, J.1
  • 192
    • 19844367816 scopus 로고    scopus 로고
    • note
    • The complexity is likely to multiply as the responsibilities of employers, insurers, and managed care organizations that administer self-funded ERISA plans, utilization review companies, and other subcontractors are sorted out.
  • 193
    • 0030610940 scopus 로고    scopus 로고
    • Patients' Rights in Managed Care - Exit, Voice, and Choice
    • G.J. Annas, "Patients' Rights in Managed Care - Exit, Voice, and Choice," N. Engl. J. Med., 337 (1997): 210-15.
    • (1997) N. Engl. J. Med. , vol.337 , pp. 210-215
    • Annas, G.J.1
  • 194
    • 19844373333 scopus 로고
    • On Being an American
    • New York: Knopf
    • "Here, more than anywhere else in the world, the daily panorama of human existence - the unending procession of governmental extortions and chicaneries, of commercial brigandages and throat-slitting, of theological buffooneries, of aesthetic ribaldries, of legal swindles and harlotries - is so inordinately extravagant, so perfectly brought up to the highest conceivable amperage, that only the man who was born with a petrified diaphragm can fail to go to bed every night grinning from ear to ear and awake every morning with the eager, unflagging expectations of a Sunday school superintendent touring the Paris peep-shows." H.L. Mencken, "On Being an American," Prejudices: Third Series (New York: Knopf, 1922).
    • (1922) Prejudices: Third Series
    • Mencken, H.L.1


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