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• W1549351683 abstract "I. INTRODUCTION Many health experts argue that American health system is a work in progress; it can and ... will get better.(2) Unfortunately, for individuals like Barbara Garvey, the health care system had not progressed fast enough to save her life.(3) In 1994, Barbara Garvey was vacationing with her husband in Hawaii when large bruises began to appear on her body.(4) She immediately went to a local clinic and was admitted into the oncology department at the Queen's Medical Center in Hawaii.(5) After trying remedial procedures, her doctors diagnosed her with aplastic anemia and recommended that she undergo a bone-marrow transplant.(6) Several days into Mrs. Garvey's treatment, her Health Maintenance Organization (HMO), a third-party payor (like self-insured employers),(7) conducted a prospective utilization review process--in which the third-party payor determines whether or not it will reimburse the patient for a medical procedure.(8) Upon completing the procedure, her HMO refused to pay for her treatment in Hawaii and furthermore, ordered that she return to Chicago where she could be treated by one of the HMO-designated providers (doctors). Following a last-ditch plea by Mrs. Garvey's husband, their HMO reiterated its refusal to pay for her bone-marrow transplant in Hawaii and she was forced to fly back to Chicago on a commercial airline.(9) Mrs. Garvey's condition left her without a functional immune system. As Mr. Garvey testified at a roundtable sponsored by President Clinton on Patient's Bill of Rights legislation: We had to take her from isolation, put her on a commercial flight and expose her to all the impurities of recirculated air [and] the pressure changes, which most people here it wouldn't affect at all, but [to] somebody in her condition could, and may have, proved fatal.(10) Due to her weakened state, Mrs. Garvey suffered a stroke in mid-flight. Nine days later she died, never becoming stable enough to receive the bone-marrow transplant in Chicago.(11) While Mrs. Garvey's HMO's acts were reprehensible, even more disturbing is the fact that Mrs. Garvey's surviving family was denied any and all state law claims because of a preemption clause in the 1974 Employment Retirement Income Securities Act (ERISA). The preemption clause denied Mrs. Garvey's family all state remedies and affords her family only those remedies set forth in ERISA. The clause states, in part, that ERISA itself supersede[s] any and all State laws as they relate to health-benefit plans.(12) In Pilot Life Insurance Co. v. W. Dedeaux, the U.S. Supreme Court held that a state law cause of action is preempted by [the 1974 Employment Retirement Income Securities Act] if [the action] relates to an employee-benefit plan.(13) The Court held that because ERISA already includes a civil enforcement mechanism--which affords patients the ability to bring a civil action to obtain compensation for plan benefits refused, injunctions against refusals by plans to pay benefits, and attorney's fees--Congress did not intend to permit other remedies such as punitive damages in state courts for tortious claims by plan participants.(14) Compounding this disturbing situation, the lower federal courts maintain that while they are troubled by apparent injustices being committed against patients like Mrs. Garvey, it is not their responsibility to remedy the situation. They suggest, rather, it is Congress' responsibility to revisit ERISA and to reevaluate the preemption clause and its adverse effect on patients.(15) Although unjust and highly controversial, the Garvey incident is not unique within the American health care system experience.(16) Incidents like this have prompted serious debate in Congress as to whether immunity for third-party payors from state law actions is a form of immunity with which a country with arguably the best health care and legal systems in the world can live. In response to the Garvey ordeal and incidents like it, many entities--doctors, lawyers, patients, and politicians (Republican and Democrat)--argue that a patient's bill of rights law must be passed that includes a measure eliminating the preemption clause so as to protect patients from third-party payors who are sacrificing medical ethics to business profits. …" @default.
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• W1549351683 date "2001-02-24" @default.
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• W1549351683 title "ERISA preemption: will the elimination of the ERISA preemption clause help or harm America's ability to deal with its pending health care crisis?" @default.
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