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The Pursuit Of Proceeds By Plans, Participants And Plaintiffs' Lawyers: Dissonant Solutions To An Alliterative Problem, John R. Cella Jr.
The Pursuit Of Proceeds By Plans, Participants And Plaintiffs' Lawyers: Dissonant Solutions To An Alliterative Problem, John R. Cella Jr.
Campbell Law Review
With emphasis on developments in the Fourth Circuit, this Article first describes the pursuit's origination in plan language and ERISA's statutory provisions; it then explores ERISA preemption and cases in which injured participants invoke state statutory and common law to contradict plan terms. A review of the attorney's role follows, including an inquiry into issues concerning attorney fees. With consideration of policies behind ERISA, the Article concludes that adherence to well-drafted plan terms legitimizes the parties' bargain, avoids development of disparate federal common law, and facilitates the allocation of proceeds.
A Call To Congress To Amend Erisa Preemption Of Hmo Medical Malpractice Claims: The Dissatisfactory Distinction Between Quality And Quantity Of Care, Angela M. Easley
A Call To Congress To Amend Erisa Preemption Of Hmo Medical Malpractice Claims: The Dissatisfactory Distinction Between Quality And Quantity Of Care, Angela M. Easley
Campbell Law Review
This Comment begins with an overview of the Employee Retirement Income Security Act (ERISA) and the preemption clause found therein. Section III explains the distinction between quality and quantity of care, the test many courts have relied on to determine whether ERISA preempts a medical malpractice claim. Section IV examines state common law theories of liability which are asserted against managed care organizations, specifically claims of direct and vicarious liability. Section V addresses the HMO's role in medical decision making, and Section VI describes recent legislation regarding ERISA and HMO liability. This Comment contends that the more active role an …