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With Great Power Comes No Responsibility: The Tragedy And The Irony Of Erisa Preemption, Jessica Frenkel

University of Colorado Law Review

Under the current health care financing regime, managed care organizations have significant power to determine patients' care but no legal responsibility when they use that power to pursue profits and harm patients. Managed care organizations are shielded from liability because the Employee Retirement Income Security Act of 1974 (ERISA) preempts state causes of action and does not provide a comparable remedy. This Comment attempts to restart a conversation about the dangers of allowing managed care organizations to retain significant power over patient care without any risk of liability of an especially vulnerable subgroup of patients: the severely mentally ill. It …