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HOFSTRA LABOR & EMPLOYMENT LAW JOURNAL
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
the “quantity of care,” and therefore they fall within the traditional of state authority: tort suits involving the quality of medical care. 214
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
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
court rejected this claim physicians’ negligence. 221
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.
“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
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).