Pegram and Preemption: Patients' Rights and the Case for Doing Nothing

Abstract

In this article, Professor Zelinsky discusses the recent decision of the U.S. Supreme Court in Pegram v. Herdrich. Most advocates of broader patients' rights view Pegram as a signal that Congress should pass legislation amending ERISA to establish patients' rights against health maintenance organizations. Professor Zelinsky, however, concludes otherwise and contends that Pegram counsels advocates of patients' rights that, in terms of federal legislation, they should do nothing.

The principal argument for federal patients' rights legislation, says Zelinsky, is that the Court has construed ERISA section 514(a) so as to preempt state law causes of action against HMOs and other medical care providers hired pursuant to employers' fringe benefit plans. Pegram suggests that, notwithstanding its prior case law, the Court is unwilling to construe ERISA as nullifying state law malpractice actions. Thus, substantively, the issue posed by the federal legislation Congress is now considering is whether there should be a single nationwide standard for patients' rights or whether there should be a diversity of state remedies.