Title: Groping for the reins: ERISA, HMO malpractice, and
Citation: American Journal of Law & Medicine, Spring 1996 22 n1 p7-50
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Abstract: Enterprise liability would be an effective way of imposing
liability for health care malpractice in view of the case
management power third party payors and health maintenance
organizations have acquired. Enterprise liability is the
conceptual basis for the American idea that the free market
will be the source for filling all human needs. ERISA's
preemption of health care plan liability is outdated, impedes
competition and robs consumers of remedies they deserve. ERISA
should be amended to include enterprise liability for medical
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Full Text COPYRIGHT American Society of Law & Medicine Inc. 1996
As Canada approaches the end of its first decade of government-run
health care with universal coverage and controlled costs, the majority
in the United States Congress has proposed repealing the federal
guarantee of health coverage to poor and disabled persons embodied in
Medicaid.(1) This somber turn in the history of American health care
comes only a few years after an optimistic President Clinton resurrected
the efforts of Presidents Truman and Nixon to establish universal
coverage. Clinton's own party quashed his Health Security Act prior to
any formal debate. Characterizing the plan as Byzantine government that
would limit choice, health insurance companies, the very industry
President Clinton tried to accommodate by rejecting the Canadian model,
opposed the plan.(2) Ironically, the possibility of such legislation
accelerated the movement by health care insurers and other large-scale
payers to assume control of heal...