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BUSCHING-KAPOCHUNAS FINAL

2/4/2009 1:59:19 AM

630

HOFSTRA LABOR & EMPLOYMENT LAW JOURNAL

[Vol. 25:601

malpractice and negligence.212

As stated in the ERISA preemption

Manual for State Health Policy Makers, “most courts now ERISA does not preempt state court lawsuits against health

hold that plans for

their

traditional

legal

responsibility

for

medical

errors

in

diagnosis

or

treatment

of

clinicians

they

employ

or

who

act

as

their

agents.”213

The

courts

reason

that

these

cases

have

to

do

with

the

“quality

of

care,”

not

the “quantity of care,” and therefore they fall within the traditional of state authority: tort suits involving the quality of medical care. 214

area

In Petrovich v. Share Health Plan of Illinois, Inc.,215 the plaintiff filed suit against her doctor, her HMO, and others, alleging medical malpractice.216 The plaintiff went to various doctors under her HMO plan displaying numerous symptoms that indicated oral cancer. Despite sending the plaintiff for numerous tests, including an MRI that imaged the plaintiff’s mouth, but which failed to include the painful, irritated area, the doctors negligently failed to diagnose the plaintiff’s oral cancer until nearly a year after her initial visit.218 The plaintiff died 217

as

a

result.219

The

plaintiff’s

HMO

claimed

named as a defendant in the case because their

that they could not be doctors were considered

independent contractors.220 an HMO could be liable for

The their

court rejected this claim physicians’ negligence. 221

and

held

that

The Petrovich holding was important for two reasons. First, the Supreme Court expressly held that an HMO may be held vicariously liable for the negligence of its independent-contractor physicians under the doctrine of apparent authority,222 a holding that overruled the

precedent set in Raglin v. HMO Illinois.223

Under Raglin, the Illinois

Appellate Court had previously stated that neither a health insurer nor its

212. BUTLER, supra note 190, at 83.

213. Id.

“These cases are based on the tort principle of respondeat superior, [where] the

employer is responsible for the negligence of its employees and agents acting within the scope of their employment or agency.” Id. at 87 n.35. See, e.g., Haas v. Group Health Plan, Inc., 875 F. Supp. 544, 549 (S.D. Ill. 1994); Petrovich v. Share Health Plan of Ill., Inc., 719 N.E.2d 756, 775

(Ill. 1999).

See also Richard A. Epstein & Alan O. Sykes, The Assault on Managed Care:

V i c a r i o u s L i a b i l i t y , E R I S A P r e e m p t i o n , a n d C l a s s A c t i o n s , 3 0 J . L E G A L S T U D . 6 2 5 , 6 2 8 ( 2 0 0 1 BUTLER, supra note 190, at 83. 719 N.E.2d 756 (Ill. 1999). Id. at 760. Id. at 761. Id. Id. at 760. Id. at 760-61. Id. at 760, 775. Id.; see also Boyd v. Albert Einstein Med. Ctr., 547 A.2d 1229, 1235 (1988); supra note ) . 214. 215. 216. 217. 218. 219. 220. 221. 222.

208 and accompanying text. 223. 595 N.E.2d 153 (Ill. 1992).

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