Slouching Toward Managed Care Liability: Reflections on Doctrinal Boundaries, Paradigm Shifts, and Incremental Reform

Posted: 23 Jan 2002

See all articles by Wendy K. Mariner

Wendy K. Mariner

Boston University School of Law; Boston University School of Public Health

Abstract

The author recommends a test to clarify the classification of managed care liability disputes between tort claims, which should be decided in state court, and contract claims, which are preempted by ERISA. While others have recommended adopting new torts, such as a new fiduciary duty, to hold managed care organizations liable for their own wrongdoing, the author believes that we are likely to slouch toward liability, subjecting an expanding number of managed care functions and decisions to tort law principles, without fundamental change in underlying legal doctrine, and eroding (if not entirely eliminating) ERISA's preemptive effect on state law causes of action. This is because longstanding doctrine is more likely to endure (and evolve) than targeted statutory regimes like ERISA, so that where ERISA preemption is incompatible with fundamental principles of common law, ERISA is the more vulnerable to change.

Suggested Citation

Mariner, Wendy K., Slouching Toward Managed Care Liability: Reflections on Doctrinal Boundaries, Paradigm Shifts, and Incremental Reform. Journal of Law, Medicine & Ethics, Vol. 29, Nos. 3 & 4, 2001. Available at SSRN: https://ssrn.com/abstract=298016

Wendy K. Mariner (Contact Author)

Boston University School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States

Boston University School of Public Health ( email )

715 Albany Street
Boston, MA 02118
United States
617-638-4626 (Phone)
617-414-1464 (Fax)

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