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August 31 - Newsblog #1
Your Injury Attorneys in the News: Homeowner and Wife Sue over Police Shooting
September 7 - Newsblog #2
Your Injury Attorneys in the News: Homeowner’s Possession of Handgun Legal Under 2nd Amendment
September 14 - Newsblog #3
Your Injury Attorneys in the News: if a Government or Government Agency is at Fault, You Can Sue
September 21 - Newsblog #4
Your Injury Attorneys in the News: Lawsuit Against Police Department Invokes the Civil Rights Act
September 28 - Newsblog #5
Your Injury Attorneys in the News: a Clear Line from the Action – or Inaction – to the Injury
October 12 - Newsblog #6
Your Injury Attorneys in the News: Police Insensitivity Turns Traffic Stop into a Travesty
October 19 - Newsblog #7
Your Injury Attorneys in the News: Police Who Abuse Power Must Be Held Accountable, Law Professor States
October 26 - Newsblog #8
Your Injury Attorneys in the News: Holding Overly Aggressive Police Accountable
November 2 - Newsblog #9
Your Injury Attorneys in the News: Brown Vs. Impd Case About Much More Than Punishment or Money
November 9 - Newsblog #10
Your Injury Attorneys in the News: Improper Medical Diagnosis and Care Resulted in Loss of an Eye
November 16 - Newsblog #11
Your Injury Attorneys in the News: Medical Malpractice Claims Have a Front End and a Back End
November 30 - Newsblog #12
Your Injury Attorneys in the News: Truths About Medical Malpractice
December 7 - Newsblog #13
Your Injury Attorneys in the News: Yes, You Can Sue City Hall
December 14 - Newsblog #14
Your Injury Attorneys in the News: Slip and Fall Changes Two Lives Forever
December 28 - Newsblog #15
In the News: Ramey & Hailey Year in Review
January 4 - Newsblog #16
In the News: Teen’s Sexual Abuse Case Calls Attention to the Problem
January 11 - Newsblog #17
In the News: Parents of Survivor Sue Parents of Shooter
January 18 - Newsblog #18
In the News: Erin Brockovich Teams Up with Indiana Moms
January 25 - Newsblog #19
Your Injury Attorneys in the News: Case Settled in Favor of Catastrophic Slip and Fall Injury Victim
January 31 - Newsblog #20
In the News: Wrongful Death Lawsuit Filed Against Rehab Facility
February 8 - Newsblog #21
In the News: Nurse Arrested in Sexual Abuse Case
February 15 - Newsblog #22
In the News: Running the Clock on Indiana Medical Malpractice
February 22 - Newsblog #23
In the News: to Repeal or Not to Repeal – Indiana Legislators Rule “not”
March 1 - Newsblog #24
In the News: Helping Physicians Keep Helping
March 8 - Newsblog #25
In the News: Parents of Brain-damaged Infant Sue Hospital
March 15 - Newsblog #26
In the News: Owner of Gun Wins Decision
March 22 - Newsblog #27
In the News: Indiana House Passes Long Term Care Protections Bill
April 5 - Newsblog #28
In the News: Slip-and-fall Victim Wins Right to Sue Dollar Tree
April 12 - Newsblog #29
In the News: Inspection Report Shows Vets Harmed at 52 Nursing Homes
April 19 - Newsblog #30
In the News: Sandwich Diversion Causes Fatal Two-semitrailer Crash
April 26 - Newsblog #31
In the News: Does Premises Liability Cover Goose Attacks?
May 10 - Newsblog #32
Two-week-old N.y. Verdict Offers Takeaways for Slip and Fall Victims
May 17 - Newsblog #33
In the News: Barrel Blast Triggers Wrongful Death Lawsuit
May 24 - Newsblog #34
In the News: when a Product Manufacturer is Not at Fault
May 31 - Newsblog #35
In the News – College Doc’s Sexual Abuse of Students Coming to Light
June 7 - Newsblog #36
In the News – One Week, Four Motorcycle Accidents
June 14 - Newsblog #37
List of Troubled Nursing Homes Released
June 21 - Newsblog #38
In the News: Kansas No-caps Ruling Changes Personal Injury Climate
June 28 - Newsblog #39
In the News: Jury Awards $10.5 Million for Pain and Suffering in Birth Injury Case
July 5 - Newsblog #40
In the News: More Indicted in Last Year’s Duck Boat Tragedy
July 17 - Newsblog #41
In the News: Richard Hailey on Litigation Team for Lawsuit Vs. Tesla
July 24 - Newsblog #42
In the News: Malpractice Lawsuit Yields Largest Award in History
August 28 - Newsblog #43
In the News: Trucks V. Passenger Cars – Score 18:116. Everybody Loses

Medical Malpractice Newsletter

Medical Malpractice Immunity for HMOs

Some state medical malpractice laws granted patients the right to sue their Health Management Organizations (HMOs) for actions which injured them. As a result of their active roles in medical care decisions, HMOs have been held liable for medical malpractice in state court for negligently administering health care benefits. However, when an HMO is not the employer of the treating physician and it denies coverage for a recommended treatment in favor of an alternative treatment, the Employment Retirement Income Security Act of 1974 (ERISA) preempts state law tort claims. Thus, actions against HMOs must be brought in federal courts, where remedies for such actions are limited.

Claims Against HMOs That Refuse to Pay for Recommended Care

In Aetna Health v. Davila, a U.S. Supreme Court case decided on June 21, 2004, two plaintiffs brought actions against their HMOs for refusing to pay for physician recommended treatment:

  • Plaintiff Juan Davila’s doctor prescribed Vioxx for his arthritis pain but his HMO, Aetna, refused to pay for the medication. Davila took Naprosyn instead and suffered a severe drug reaction.
  • Plaintiff Ruby Calad’s doctor recommended an extended hospital stay after surgery, but her HMO, CIGNA, would not pay for the extension. Calad was discharged and she later suffered complications.

Both plaintiffs asserted their cause of action under a Texas state tort law, alleging that the denial of coverage by their HMOs proximately caused their injuries. The HMOs sought to remove the case to Federal court and moved to dismiss on grounds that the state law was preempted by the Employee Retirement Income Security Act of 1974 (ERISA).

ERISA Preempts State Law Tort Claims Against HMOs

Some states, including Texas, had provided individuals with a state law action for breach of duty of care against HMOs that denied coverage of recommended medical care. However, in Davila, the U.S. Supreme Court eliminated that option. Section 514 of ERISA declares that all state laws will be void to the extent that they “relate to” employer-sponsored health plans. Consistent with the Court’s prior broad interpretation of that section, Davila held that ERISA prohibits individuals from suing their HMOs in state court.

The Court reasoned that the purpose behind ERISA was to protect the interests of individuals with employment benefits and to ensure a uniform application of its standards. Thus, the Davila Court concluded that it was Congress’ intent for ERISA to completely preempt the field of employee benefit plans. Remedies under ERISA are exclusive and limited.

ERISA Provisions Limit Remedies Against HMOs

HMOs have less potential liability under ERISA because it precludes recovery of compensatory and punitive damages. Patients denied coverage under their employment HMO plans can either:

  1. Pay for the treatment themselves and sue under ERISA for reimbursement; or
  2. Appeal or contest the HMO’s decision and seek a preliminary injunction.

Thus, even where an HMO wrongfully denied plan benefits, the only real recovery available under ERISA is the cost of the denied benefit. In her concurrence, Justice Ginsburg acknowledged this problem, echoing the Court’s past concerns with ERISA’s regime that “virtually all state law remedies are preempted but very few federal substitutes are provided.”

Plans Covered By ERISA

An increasing number of Americans are enrolled in HMO plans which are part of employment benefit packages. Davila and other Supreme Court decisions have made ERISA’s preemptive reach vast and powerful. It is therefore important to get a clear understanding of the employer-sponsored pension, health, and other benefit plans that are covered by ERISA.

ERISA applies to ALL:

  • Plans offered by private employers
  • Plans offered by employee organizations (such as unions)

ERISA does not apply to the following exceptions:

  • Plans offered by federal, state, local government employers
  • Plans offered by church employers
  • “Special benefit plans” established solely to meet workers’ compensation, unemployment compensation, or disability insurance laws
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