Law.com Subscribers SAVE 30%
Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.
Door Opens for Malpractice Claims to Outlast Preemption Disputes
Until recently, state medical malpractice claims against HMOs were almost universally subject to federal preemption in light of the Supreme Court's expansive interpretation of the preemption provisions of the Employee Retirement Income Security Act of 1974 [ERISA], 29 USC ' 1144[a], which states in sweeping language that ERISA supersedes 'any and all State laws [that] … relate' to benefits plans governed by ERISA. The effects of such preemption include federal subject matter jurisdiction and avoidance of state tort law and tort law damages.
The 'Pegram' Case
The Supreme Court took steps that altered this approach in Pegram v. Herdrich when it held that mixed eligibility and treatment decisions made by HMOs acting through their physician employees are not fiduciary acts within the meaning of ERISA. The Court in Pegram, a unanimous decision, noted that it has already held that 'in the field of health care, a subject of traditional state regulation, there is no ERISA preemption without clear manifestations of congressional purpose.' Seizing on this language, the U.S. Court of Appeals for the Second Circuit in Cicio v. Vytra Healthcare2 has gone a step further, holding that if a state law malpractice action is based on a 'mixed eligibility and treatment decision,' defined in Pegram as a decision with both coverage and medical treatment determinations, it is not subject to ERISA preemption so long as the state law cause of action involves allegations of faulty medical judgment.
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Anti-Assignment Override Provisions
UCC Sections 9406(d) and 9408(a) are one of the most powerful, yet least understood, sections of the Uniform Commercial Code. On their face, they appear to override anti-assignment provisions in agreements that would limit the grant of a security interest. But do these sections really work?