The Supreme Court and Managed-Care Liability
http://www.100md.com
《新英格兰医药杂志》
To the Editor: Two articles in the September 23 issue, by Bloche1 and Mariner,2 give the impression that the issue of managed-care liability is settled — that the Supreme Court has "made up its mind" to immunize managed-care organizations (MCOs) from legal liability stemming from benefit or treatment decisions. In reality, the decision in Aetna Health Inc. v. Davila is not such a clear departure from the pattern of judicial interpretation of the relation of the federal Employee Retirement Income Security Act (ERISA) to managed care. In fact, this Supreme Court decision is part of a continuing debate in all branches and levels of government over whether to support or restrain managed-care plans.3 Between 1990 and 2004, at the Supreme Court level alone, there were 3 cases that were supportive and 5 that were restrictive of managed-care plans; in the federal circuit courts, there were 71 supportive and 65 restrictive cases; and at the state-court level, there were 8 supportive and 10 restrictive cases.4 It is clear that Congress must take steps to develop a more just, consistent, and fair system for the administration and regulation of health care benefits.
Christopher T. Erb, B.A.
Robert F. Rich, Ph.D.
University of Illinois at Urbana–Champaign
Urbana, IL 61801
cerb@uiuc.edu
References
Bloche MG. Back to the '90s -- the Supreme Court immunizes managed care. N Engl J Med 2004;351:1277-1279.
Mariner WK. The Supreme Court's limitation of managed-care liability. N Engl J Med 2004;351:1347-1352.
Rich RF, Erb CT. The two faces of managed care regulation and policymaking. Stanford Law Policy Rev 2004;16:101-49.
Rich RF, Erb CT. The 900 pound gorilla and the changing landscape of consumer choice. In: Rich RF, Erb CT, eds. Consumer choice and health care policy challenges. New Brunswick, N.J.: Transaction, 2005:241-95.
To the Editor: Bloche's and Mariner's discussions of the Supreme Court's ruling on managed-care liability paint a misleading picture of the Bush administration's position. Bloche's article alleges that the administration would perpetuate the immunity of health plans. Bloche neglects to mention that the administration, while opposing liability under the Texas statute that the patient-plaintiffs relied on, proposed liability under the federal ERISA statute the Court applies to these cases. As both Justice Clarence Thomas's opinion for the unanimous court1 and Justice Ruth Bader Ginsburg's concurring opinion2 noted, the government's amicus curiae brief argued that patients could receive "make whole" relief under section 502(a)(3) of ERISA, as currently written. The Court did not consider this remedy because the patient-plaintiffs declined the opportunity to amend their complaints to bring such a claim.1 But Justice Ginsburg described this as "an effective remedy others similarly circumstanced might fruitfully pursue."
After endorsing make-whole relief, Mariner states that the administration supported it in 2001 "but then opposed liability in an amicus curiae brief." She never explains that the 2003 brief opposed state liability but continued to support this ERISA remedy.
Joel M. Zinberg, M.D., J.D.
Mount Sinai Medical Center
New York, NY 10029
jmzinberg@hotmail.com
References
Aetna Health v. Davila, 124 S.Ct. 2488, 2502, n.7 (2004).
Aetna Health v. Davila, 124 S.Ct. 2488, 2504 (2004).
Dr. Mariner replies: Dr. Zinberg suggests that the Bush administration supported a make-whole remedy under ERISA. But the U.S. amicus brief emphasized that ERISA does not provide what Davila and Calad, like most patients, sought and state law provides — compensation for physical injury resulting from an MCO's negligence in making medical judgments.1 A vague suggestion in a footnote that, hypothetically, the Supreme Court might change its interpretation of the word "equitable" to include some other, unspecified remedy in "some" rare and different circumstance cannot be considered support for such compensation.2 The brief concluded that it is justifiable to limit and deny remedies (both current and hypothetical) in order to encourage "the formation and growth of employee benefit plans."3 Interpreting equitable remedies to include compensation for personal injury would represent a dramatic departure from the Court's view of the law governing fiduciary duties, remedies, and employee benefit plans, and there is no reason to believe that the Court would adopt it. Moreover, reliance on the Court to change the law supports the conclusion in my article that "the administration will not initiate reforms on its own."
No one would suggest that the Davila case resolved all managed-care or liability concerns. As Mr. Erb and Dr. Rich note, the case "is part of a continuing debate" over the merits of managed-care plans. The Supreme Court has avoided taking a substantive position on that public-policy issue. Its narrow interpretations of ERISA have not been wholly consistent, but they have preserved private employer-sponsored health benefit plans as a category apart. Everyone deserves "a more just, consistent, and fair system." The real question is whether Congress will act without strong encouragement from thoughtful constituents like the three correspondents.
Wendy K. Mariner, J.D., M.P.H.
Boston University School of Public Health
Boston, MA 02118
References
Brief for the United States as amicus curiae supporting petitioners Aetna Health Inc. et al., 2002 U.S. Briefs No. 02-1845, p. 7, 8.
Brief for the United States as amicus curiae supporting petitioners Aetna Health Inc. et al., 2002 U.S. Briefs No. 02-1845, p. 27, note 13.
Brief for the United States as amicus curiae supporting petitioners Aetna Health Inc. et al., 2002 U.S. Briefs No. 02-1845, p. 26.
Dr. Bloche replies: Erb and Rich are right to point out that the question of managed-care liability is hardly "settled" — and that the Supreme Court has issued varied rulings with respect to regulation of health plans. Over the past few years, for example, the Court has upheld state laws mandating independent review of denials of coverage and requiring insurers to include "any willing provider" in their networks. But the Court's decision last June, in Aetna v. Davila, to immunize employer-provided health plans against tort liability for wrongful denial of coverage is likely to stand for a long time.
Congress could, in theory, nullify the decision by allowing patients to seek damage awards in state or federal court for the consequences of coverage that has been denied, but after last year's election results, the chances of this happening are minimal. Alternatively, as Zinberg points out, federal courts could reinterpret ERISA, the labyrinthine statute that governs employment-based health coverage, to permit federal suits against health plans for harm resulting from denial of coverage. But this would require a wholesale rewriting of existing case law, something judges are disinclined to do.
A large body of federal-court decisions treats ERISA as precluding such suits. The Bush administration's brief in Aetna v. Davila did not propose that ERISA be reinterpreted to permit them. On the contrary, the administration has argued, in its Aetna v. Davila brief and elsewhere, that allowing damage suits against health plans would increase the cost of medical coverage and thereby discourage employers from offering it. To be sure, a footnote in the brief alludes vaguely to the possibility that ERISA "allows at least some forms of `make whole' relief" against plan administrators. Justices Ruth Bader Ginsburg and Stephen Breyer (in a concurring opinion in Aetna v. Davila) encouraged future plaintiffs to pursue this prospect. But a Supreme Court majority in support of this view — and in favor of health-plan liability for the consequences of care that has been denied — is unlikely in the foreseeable future.
M. Gregg Bloche, M.D., J.D.
Georgetown University Law Center
Washington, DC 20001
Christopher T. Erb, B.A.
Robert F. Rich, Ph.D.
University of Illinois at Urbana–Champaign
Urbana, IL 61801
cerb@uiuc.edu
References
Bloche MG. Back to the '90s -- the Supreme Court immunizes managed care. N Engl J Med 2004;351:1277-1279.
Mariner WK. The Supreme Court's limitation of managed-care liability. N Engl J Med 2004;351:1347-1352.
Rich RF, Erb CT. The two faces of managed care regulation and policymaking. Stanford Law Policy Rev 2004;16:101-49.
Rich RF, Erb CT. The 900 pound gorilla and the changing landscape of consumer choice. In: Rich RF, Erb CT, eds. Consumer choice and health care policy challenges. New Brunswick, N.J.: Transaction, 2005:241-95.
To the Editor: Bloche's and Mariner's discussions of the Supreme Court's ruling on managed-care liability paint a misleading picture of the Bush administration's position. Bloche's article alleges that the administration would perpetuate the immunity of health plans. Bloche neglects to mention that the administration, while opposing liability under the Texas statute that the patient-plaintiffs relied on, proposed liability under the federal ERISA statute the Court applies to these cases. As both Justice Clarence Thomas's opinion for the unanimous court1 and Justice Ruth Bader Ginsburg's concurring opinion2 noted, the government's amicus curiae brief argued that patients could receive "make whole" relief under section 502(a)(3) of ERISA, as currently written. The Court did not consider this remedy because the patient-plaintiffs declined the opportunity to amend their complaints to bring such a claim.1 But Justice Ginsburg described this as "an effective remedy others similarly circumstanced might fruitfully pursue."
After endorsing make-whole relief, Mariner states that the administration supported it in 2001 "but then opposed liability in an amicus curiae brief." She never explains that the 2003 brief opposed state liability but continued to support this ERISA remedy.
Joel M. Zinberg, M.D., J.D.
Mount Sinai Medical Center
New York, NY 10029
jmzinberg@hotmail.com
References
Aetna Health v. Davila, 124 S.Ct. 2488, 2502, n.7 (2004).
Aetna Health v. Davila, 124 S.Ct. 2488, 2504 (2004).
Dr. Mariner replies: Dr. Zinberg suggests that the Bush administration supported a make-whole remedy under ERISA. But the U.S. amicus brief emphasized that ERISA does not provide what Davila and Calad, like most patients, sought and state law provides — compensation for physical injury resulting from an MCO's negligence in making medical judgments.1 A vague suggestion in a footnote that, hypothetically, the Supreme Court might change its interpretation of the word "equitable" to include some other, unspecified remedy in "some" rare and different circumstance cannot be considered support for such compensation.2 The brief concluded that it is justifiable to limit and deny remedies (both current and hypothetical) in order to encourage "the formation and growth of employee benefit plans."3 Interpreting equitable remedies to include compensation for personal injury would represent a dramatic departure from the Court's view of the law governing fiduciary duties, remedies, and employee benefit plans, and there is no reason to believe that the Court would adopt it. Moreover, reliance on the Court to change the law supports the conclusion in my article that "the administration will not initiate reforms on its own."
No one would suggest that the Davila case resolved all managed-care or liability concerns. As Mr. Erb and Dr. Rich note, the case "is part of a continuing debate" over the merits of managed-care plans. The Supreme Court has avoided taking a substantive position on that public-policy issue. Its narrow interpretations of ERISA have not been wholly consistent, but they have preserved private employer-sponsored health benefit plans as a category apart. Everyone deserves "a more just, consistent, and fair system." The real question is whether Congress will act without strong encouragement from thoughtful constituents like the three correspondents.
Wendy K. Mariner, J.D., M.P.H.
Boston University School of Public Health
Boston, MA 02118
References
Brief for the United States as amicus curiae supporting petitioners Aetna Health Inc. et al., 2002 U.S. Briefs No. 02-1845, p. 7, 8.
Brief for the United States as amicus curiae supporting petitioners Aetna Health Inc. et al., 2002 U.S. Briefs No. 02-1845, p. 27, note 13.
Brief for the United States as amicus curiae supporting petitioners Aetna Health Inc. et al., 2002 U.S. Briefs No. 02-1845, p. 26.
Dr. Bloche replies: Erb and Rich are right to point out that the question of managed-care liability is hardly "settled" — and that the Supreme Court has issued varied rulings with respect to regulation of health plans. Over the past few years, for example, the Court has upheld state laws mandating independent review of denials of coverage and requiring insurers to include "any willing provider" in their networks. But the Court's decision last June, in Aetna v. Davila, to immunize employer-provided health plans against tort liability for wrongful denial of coverage is likely to stand for a long time.
Congress could, in theory, nullify the decision by allowing patients to seek damage awards in state or federal court for the consequences of coverage that has been denied, but after last year's election results, the chances of this happening are minimal. Alternatively, as Zinberg points out, federal courts could reinterpret ERISA, the labyrinthine statute that governs employment-based health coverage, to permit federal suits against health plans for harm resulting from denial of coverage. But this would require a wholesale rewriting of existing case law, something judges are disinclined to do.
A large body of federal-court decisions treats ERISA as precluding such suits. The Bush administration's brief in Aetna v. Davila did not propose that ERISA be reinterpreted to permit them. On the contrary, the administration has argued, in its Aetna v. Davila brief and elsewhere, that allowing damage suits against health plans would increase the cost of medical coverage and thereby discourage employers from offering it. To be sure, a footnote in the brief alludes vaguely to the possibility that ERISA "allows at least some forms of `make whole' relief" against plan administrators. Justices Ruth Bader Ginsburg and Stephen Breyer (in a concurring opinion in Aetna v. Davila) encouraged future plaintiffs to pursue this prospect. But a Supreme Court majority in support of this view — and in favor of health-plan liability for the consequences of care that has been denied — is unlikely in the foreseeable future.
M. Gregg Bloche, M.D., J.D.
Georgetown University Law Center
Washington, DC 20001