High Court To Hear Cases On Managed Care Suits

In the other case, Juan Davila, who suffers from diabetes and arthritis, was covered by an Aetna managed care plan. His physician prescribed the medication Vioxx for Davilas arthritis pain. According to the Fifth Circuit Court of Appeals, studies show that Vioxx has a lower rate of gastrointestinal toxicity than other drugs on Aetnas formulary.

However, Aetna required Davila to try two different medications first. Aetna said it would evaluate him for Vioxx use only if he suffered a detrimental reaction to the two other drugs. After three weeks on one of the drugs, Davila was rushed to the hospital suffering from bleeding ulcers. He is now unable to take any medication absorbed through the stomach.

Both Calad and Davila sued their respective health plans under the Texas Health Care Liability Act, alleging that the plans acted negligently in making medical necessity decisions.

The health plans challenged the lawsuits in federal court, claiming state law actions are preempted by ERISA, and a United States District Court agreed.

However, the Fifth Circuit said the lawsuits are not preempted. Citing U.S. Supreme Court precedents, the Fifth Circuit said HMOs generally make three types of decisionseligibility decisions, treatment decisions and mixed eligibility and treatment decisions.

It is unlikely that ERISA was intended to preempt mixed decisions because to do so would effectively preempt state medical malpractice law, the Fifth Circuit said.

There is no clear evidence Congress ever intended that ERISA create a federal common law of malpractice, the Fifth Circuit said.

Thus, it continued, a lawsuit based on state medical malpractice law that involves a mixed decision is not preempted.

Reproduced from National Underwriter Life & Health/Financial Services Edition, November 7, 2003. Copyright 2003 by The National Underwriter Company in the serial publication. All rights reserved.Copyright in this article as an independent work may be held by the author.