This page has the following materials:
- General notes about HMO Liability
- Notes about ERISA pre-emption of HMO liability
Florida has recently joined Illinois in applying a more expansive version of vicarious liability to network model HMOs. Villazon v. Prudential Health Care Plan, _________ (Fla. 2003). The court commented: “The thought of visiting a private and independent office of a totally independent physician may now be one more of history and cultural conditioning than current reality. The economic structures alone may so impact the relationships that the prism through which we consider and evaluate issues of control must be honed for this current reality.”
Following the denial of class certification in the patients’ large class action suits against major HMOs, In re Managed Care Litigation, 209 F.R.D. 678 (S.D. Fla. 2002), the claims were settled for minor amounts. However, the class actions by physicians, where the classes were certified, were settled for more substantial amounts.
An important article that analyzes the full range of liability
issues
regarding managed care, from a law and economics perspective, is
Jennifer
Arlen & Wm. MaCleod, Malpractice Liability for Physicians and
Managed
Care Organizations, 78 NYU L. Rev. 1929 (2003).
One court held that an HMO has a duty to patients to avoid payment
arrangements to its providers that are likely to result in substandard
care. Pagarigan v. Aetna, Cal.
Ct. App., No. B167722, 10/25/05
Consumer-driven health care opens up an entirely new arena of potential
health plan liability, in the form of failure to provide full or
accurate information about health care options, according to the
extenstive analysis by Kristin Madison in ERISA and Liability for
Provision of Medical Information, 84 N.C. L. Rev. 471-546 (2006).
Extensively developing the point made in note 2, p. 264, that ERISA
pre-emption should not apply to claims under insurance "plans," only to
employers' promise to purchase insurance, see Russell Korobkin, The
Failed
Jurisprudence of Managed Care, and How to Fix It, UCLA L. Rev. (March
2003).
Exploring the possibility raised in the concurrence of extending consequential damages under ERISA itself to include personal injury, see Sarah Spisich, The Aftermath of Davila: Are Healthcare Enrollees Now in a Sinking Ship Without a Paddle?, 17(4) Health Lawyer 22 (Aug. 2005). For additional commentary and analysis of the case generally, see Leonard A. Nelson, Aetna v. Davila/CIGNA v. Calad: a missed opportunity, 31 Wm. Mitchell L. Rev. 843-896 (2005), Note, 84 Tex. L. Rev. 1347-1383 (2006).
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