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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.
Yachts, Jets, Horses & Hooch: Specialized Commercial Leasing Models
Defining commercial real estate asset class is essentially a property explaining how it identifies — not necessarily what its original intention was or what others think it ought to be. This article discusses, from a general issue-spot and contextual analysis perspective, how lawyers ought to think about specialized leasing formats and the regulatory backdrops that may inform what the documentation needs to contain for compliance purposes.
Hyperlinked Documents: The Latest e-Discovery Challenge
As courts and discovery experts debate whether hyperlinked content should be treated the same as traditional attachments, legal practitioners are grappling with the technical and legal complexities of collecting, analyzing and reviewing these documents in real-world cases.
Identifying Your Practice's Differentiator
How to Convey Your Merits In a Way That Earns Trust, Clients and Distinctions Just as no two individuals have the exact same face, no two lawyers practice in their respective fields or serve clients in the exact same way. Think of this as a "Unique Value Proposition." Internal consideration about what you uniquely bring to your clients, colleagues, firm and industry can provide untold benefits for your law practice.
Risks and Ad Fraud Protection In Digital Advertising
The ever-evolving digital marketing landscape, coupled with the industry-wide adoption of programmatic advertising, poses a significant threat to the effectiveness and integrity of digital advertising campaigns. This article explores various risks to digital advertising from pixel stuffing and ad stacking to domain spoofing and bots. It will also explore what should be done to ensure ad fraud protection and improve effectiveness.
Turning Business Development Plans Into Reality
This article offers practical insights and best practices to navigate the path from roadmap to rainmaking, ensuring your business development efforts are not just sporadic bursts of activity, but an integrated part of your daily success.