The Secretary's Amicus Briefs on ERISA Preemption of
Medical Malpractice Claims Against HMOs
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.
- 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.
- Visconti v. U.S.
Healthcare, 57 F.3d 350 (3d Cir.), cert. denied, 116 S.
Ct. 564 (1995). Same as Dukes (see above).
- 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.
- Ravenel v. Kaiser
Foundation Health Plan of Texas, C.A. No. 3-94CV-2239H (N.D. Tex.
1995). Same as Rice.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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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