Slouching Toward Managed Care Liability: Reflections on Doctrinal Boundaries, Paradigm Shifts, and Incremental Reform
Posted: 23 Jan 2002
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.
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