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The Secretary's Amicus Briefs on ERISA Preemption of Medical Malpractice Claims Against HMOs

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During the past several years, the Secretary of Labor has filed amicus curiae briefs arguing that ERISA does not preempt negligence or medical malpractice claims (outside the context of benefit denials) against HMOs and other managed care programs where the patient's health care is paid for through an employer-sponsored health plan covered by ERISA. The Secretary's briefs address preemption of such claims under ERISA 514(a), 11 U.S.C. 1144(a), which preempts all state laws that "relate to" an ERISA plan. The Secretary's briefs also address whether such claims can be removed from state court to federal court under a doctrine of federal question jurisdiction known as "complete preemption," a concept which is distinct from preemption of a state claim under 514(a).

Here is a list of the cases. Click on case name to get the Secretary's brief. Note: These "plain text" documents should be downloaded to your word processor for manipulation and/or printing.

  1. Dukes v. U. S. Healthcare, 57 F.3d 350 (3d Cir.), cert. denied, 116 S. Ct. 564 (1995). No preemption of: (1) vicarious liability claims against HMO based on medical malpractice of doctors (as actual or ostensible agents of HMO) or (2) direct liability claims for HMO's negligent selection and supervision of doctors. The Secretary's opening brief is only available in paper copy; write to Bill Scott, U.S. Department of Labor, P.O. Box 1914, Washington, D.C. 20013. Click here to get Secretary's reply brief.
  2. Visconti v. U.S. Healthcare, 57 F.3d 350 (3d Cir.), cert. denied, 116 S. Ct. 564 (1995). Same as Dukes (see above).
  3. Rice v. Panchal, 65 F.3d 637 (7th Cir. 1995). Vicarious liability claims against HMO based on medical malpractice of doctors (as actual or ostensible agents of HMO): (1) are not completely preempted and, therefore, not removable from state court and (2) are not preempted under ERISA 514.
  4. Ravenel v. Kaiser Foundation Health Plan of Texas, C.A. No. 3-94CV-2239H (N.D. Tex. 1995). Same as Rice.
  5. Robbins v. HIP of New Jersey, C.A. No. 94-1395 (GEB) (D. N.J. 1994). HMO serving state employee's health plan has no basis to allege preemption because governmental plans not covered by ERISA.
  6. Bledsoe v. Brown, No. A334764 (Dist. Ct., Clark Cnty, Nev.) Claims of negligence in arranging for medical care, in this case negligently failing to have a referral procedure to insure that patients are seen by specialists in a timely fashion, are not preempted by ERISA 514.
  7. Shea v. Esensten, 1997 U.S. App. Lexis 3378 (8th Cir. 1997). In support of petition for rehearing, the Secretary argued that ERISA does not preempt state claims against an HMO for fraud and misrepresentation and tortious interference with contract arising from an incentive compensation arrangement whereby doctors were paid more if they did not refer patients to specialists and paid less if they did.
  8. Nascimento v. Harvard Community Health Plan, No. 942534 (Mass. Super. Ct.). The Secretary argued that ERISA does not preempt state claims against an HMO for negligence, intentional tort, and breach of contract arising from the HMO's provision or arrangement of medical care.
  9. Henderson v. Kaiser Foundation Health Plan of Texas, No 96-5690-A (Tex. 14th D. Ct.). No preemption of state claims for tortious conduct by an HMO in its delivery of medical care, including claims related to cost containment measures and incentive compensation arrangements.
  10. Lancaster v. Kaiser Foundation Health Plan of the Mid-Atlantic States, Case Nos. 97-1683 and 97-1690 (4th Cir.). The brief argues that state law claims against an HMO for negligently imposing an incentive fee arrangement on doctors, under which the doctors are rewarded if they do not order diagnostic tests or refer patients to specialists and penalized if they do and for fraudulently concealing the incentive fee, are not removable to state court because they are not completely preempted by ERISA.
  11. Shea v. Esensten, Civil No. 3-96-406: The Secretary argued that fraud claims premised on the state law duty of doctors and their employer clinic to disclose incentive agreements with HMO's were not preempted. Also addressed are the issues of non-preemption of malpractice claims and the distinction between medical treatment decisions and benefits decisions. The brief misstates the holding Weiss v. CIGNA (SDNY), which was corrected in a later submission to the court.
  12. Health Plan of Nevada, Inc. v. Bledsoe, Nevada Supreme Court Case No. 31112 (Dec. 1997). The Secretary's brief argues that the Bledsoes' claims of medical malpractice and negligence under Nevada's wrongful death statute (arising from the HMO's procedure for referring patients to specialists) are not preempted by section 502 or section 514(a) of ERISA.
  13. Giles v. NYLCare Health Plans, Inc., App. No. 97-20840 (5th Cir.), The brief argues that ERISA section 514(a) does not preempt state claims against an HMO for vicarious liability for the medical malpractice of doctors who are the actual or ostensible agents of the HMO and does not preempt direct claims against an HMO for negligently selecting and monitoring such doctors.

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