Managed care, liability, and ERISA

Congress originally passed ERISA to secure the contractual benefits negotiated between employers and employees. In 1974, when the statute quickly moved through Congress, no one realized what its eventual significance for health care would be. Certainly no one expected that ERISA preemption would allow MCHPs to reduce professional standards of care while being protected from liability. The Department of Labor believes that it was never the intention of Congress to preempt ordinary damage claims for malpractice. There are now chinks in the legal armor of ERISA created by activists' courts as in the Dukes case. Even conservative Judges recognize the injustice of results, such as Corcoran. The American medical profession has traditionally complained about malpractice litigation and the wastefulness of defensive medicine. Perhaps ERISA will make the profession recognize that malpractice liability can serve a useful purpose.