Vested Interest - News and Notes - January 2003 Issue

ERISA Doesn’t Preempt Malpractice Claims

The 9th U.S. Circuit Court of Appeals has joined the 3rd, 5th and 10th Circuits in ruling that the federal Employee Retirement Income Security Act doesn’t preempt medical malpractice claims under state law against employers’ benefit plans. In Bui v. AT&T et al the court wrote "Medical malpractice is one traditional field of state regulation that several circuits have concluded Congress did not intend to preempt…ERISA’s preemption clause…does not preempt actions involving allegations of negligence in the provision of medical care, even if the patient procures the care through an ERISA plan." (Liability & Insurance Week – November 18, 2002)

Cigna Settles Doctors’ Suit in Illinois; Miami Judge Halts Action

Cigna Corp. had agreed to settle a class-action lawsuit originated by an Illinois doctor who complained that the health insurer did not tell physicians upfront how they will be paid. More than 400,000 physicians who contracted with Cigna would divvy up the settlement, money that the health plan owes to settle doctor complaints. Physicians say the contracts do not cover their costs. However, a federal judge in Miami has since ordered the settlement stopped, granting an injunction requested by lawyers representing 700,000 doctors in a class-action case in Miami against the health insurer. (Chicago Tribune – November 27, December 13, 2002)

Intermediate Appeals OKd for Class Actions

The Illinois Supreme Court adopted a rule that will allow interlocutory appeals from rulings to deny or grant class certification in class-action lawsuits. The justices amended Supreme Court Rule 307 to add class certifications to the list of orders that parties may appeal before the conclusion of a trial. The appeals are not automatic: reviewing courts will have discretion on whether to accept the appeals. The measure takes effect January 1, 2003. (Chicago Daily Law Bulletin – November 27, 2002)

Dialysis Center Death Rates Differ

Kidney failure patients treated at for-profit dialysis centers have higher death rates than those treated at nonprofit ones, according to an analysis that blames financial pressures. Pooling results from eight studies of U.S. dialysis centers from 1973 through 1997, the researchers found an 8 percent increased risk of death among patients who received dialysis at for-profit centers, about 2,500 extra deaths nationwide each year. Dr. Sidney Wolfe, of Public Citizen, said the study echoes his research linking for-profit health maintenance organizations with lower-quality medical care. (ATLA Law News Digest – December 5, 2002)

Whistle-Blower says Firm knew Smoking was Deadly

A former Philip Morris tobacco company executive has testified in Sacramento Superior Court that tests linking cigarette smoking with cancer 20 years ago were secretly conducted in Europe and documents destroyed to eliminate a "paper trail." A Philip Morris toxicologist said tests were done in Germany, but in order to conceal evidence of the cancer research, his bosses in the tobacco company’s New York City headquarters sent their test related correspondence to "dummy addresses" in Switzerland. (ATLA Law News Digest – December 5, 2002)

GAO Critical of OSHA Efforts to Target Construction Worksites

The Department of Labor’s Occupational Safety and Health Administration’s efforts to target hazardous worksites for priority inspection should be strengthened, the GAO has reported to the House subcommittee on workforce protections. The GAO Report, OSHA Can Strengthen Enforcement through Improved Program Management (GAO-03-45), concluded OSHA’s "worksite-targeting programs lack the necessary data to effectively identify high-hazard worksites or those with hazards under OSHA’s jurisdiction." It was particularly critical of OSHA’s efforts to target worksites in the construction industry, tending to visit larger worksites which are generally safer than smaller worksites. (Liability & Insurance Week – December 9, 2002)

Medical Errors Not Top Problem

Some 42 percent of the public and more than one-third of U.S. doctors say they or their family members have experienced medical errors in the course of receiving medical care, with significant percentages reporting serious consequences, according to a new survey by the Harvard School of Public Heath and the Henry J. Kaiser Family Foundation. Despite widespread personal experience, neither the public nor physicians name medical errors as a top problem facing health care and medicine today. Although few physicians said that more malpractice suits could be effective in preventing individual errors, a majority believes that surgeons who make errors with serious consequences should be subject to lawsuits. For more information, go to the ITLA website at www.iltla.com and go to the link for ‘Kaiser Family Foundation’ on the Interesting Links page. (Press Release – December 11, 2002)