Author : Lorraine A. Schmall
Publisher :
ISBN 13 :
Total Pages : 0 pages
Book Rating : 4.:/5 (137 download)
Book Synopsis Erisa Preemption by : Lorraine A. Schmall
Download or read book Erisa Preemption written by Lorraine A. Schmall and published by . This book was released on 2009 with total page 0 pages. Available in PDF, EPUB and Kindle. Book excerpt: The dissatisfaction with the Court's broad interpretation of the preemption provisions of ERISA, without specifically articulating what remedies existed to replace preempted state remedies, has been often brought to the attention of Congress by those who believed that the Court's construction of the preemption provisions of ERISA, without a recognition of some rights and remedies to take the place of preempted state rights and remedies, went beyond what the Congress intended. But the Supreme Court may never have intended for ERISA to preempt health care claims in most instances, and recently reiterated: "in the field of health care, a subject of traditional state regulation, there is no ERISA preemption without clear manifestation of congressional purpose." Federal and state courts have followed that lead by finding ways for state laws to protect their citizens. Apparently, there is a medical malpractice crisis which is caused by too much malpractice by doctors, too greedy plaintiffs, or unwarranted but uncontrolled insurance premiums. But this paper is concerned with how patients who have suffered from poor or inadequate medical care can seek redress. Health care costs continue to skyrocket, and one of the concomitants of cost containment is the creation of legal hurdles for patients who have been injured by a failure to provide, or negligent provision of, health care. Since most health insurance is tied to employment, ERISA, the federal law that regulates all employee benefit plans, including health insurance, complicates patients' medical malpractice claims. Many federal courts have concluded that if the quality or denial of care is considered part of the administration an employee benefit plan, all state actions may be preempted. If an employee wants to bring a claim against the physician or the managed health care organization, the employee must consider whether the claim will fall under state law, or whether the state cause of action will be preempted by ERISA. Because state law may offer employees greater protections than ERISA, broad federal preemption of state law under ERISA is also a part of the problem for an employee seeking protection against employer discharges and other acts that interfere with her rights to benefits. Rather than wait for Congress to amend a complicated tax and labor statute, plaintiffs can begin to look toward resolution in state common and statutory law.
