Wake forest

COMMENT
A CONSTITUTIONAL RIGHT TO SUE MANAGED
CARE ORGANIZATIONS
illions of Americans rely on Managed Care Organizations M(“ MCOs”) for their health insurance, and every day MCOs make administrative decisions that deny necessary medical treatment to those in need.1 In the case of “wrongful” withholding of treatment, Americans would normally turn to the courts for help, but the Supreme Court of the United States has held that the Employee Retirement Income Security Act (“ERISA”) completely preempts state claims for negligent denial of care.2 This note argues that the ERISA preemption provision is unconstitutional because Americans have a constitutional right to the redress of private wrongs under the Due Process Clause of the Fourteenth Amendment, and this right extends to suits against MCOs for negligent denial of care. I. CURRENT STATUS OF A RIGHT TO SUE MCOS MCOs, and particularly their subgroup, Health Maintenance Organizations (“HMOs”), are health insurance plans that provide comprehensive health care to individuals with † Michael Cardi is a graduate of Wake Forest University’s School of Law and the Graduate School's Center for Bioethics, Health, and Society. He is now an associate at Bowles Rice, LLP. His interest in this topic stems from his pre-medical studies as an undergraduate and his studies in bioethics. He would like to extend his thanks to his brother, Professor Jonathan Cardi, as well as the Journal’s editorial staff. 1. James W. Kim, Managed Care Liability, ERISA Preemption, and State “Right to Sue” Legislation in AETNA Health, Inc. v. Davila, 36 LOY. U. CHI. L.J. 651, 652 (2005); see also Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001–1461 (2006). 2. AETNA v. Davila, 542 U.S. 200, 209 (2008). WAKE FOREST JOURNAL OF LAW & POLICY [Vol. 3:S.S. limited referral to outside specialists.3 Congress established MCOs with the passage of the Health Maintenance Act of 1973 in an attempt to lower health care costs with cost-containment mechanisms that reduce the quantity and availability of medical treatments accessible to participants.4 While somewhat effective in decreasing health care costs, the rationing of care under MCOs often leads to the denial of necessary medical treatments and medications. With the passage of ERISA, Congress created an exclusive remedy for wrongful denial of care claims in federal court, preempting state claims brought against HMOs.5 ERISA was enacted in 1974 to provide “comprehensive federal regulation of employee benefits.”6 Because a majority of Americans receive health care through their employers, ERISA regulates the provision and administration of the health plans of millions of Americans. ERISA was passed in part to protect private pension plans from being mismanaged and abused, but it was also enacted to allow multistate corporations to more efficiently manage their employee benefit plans.7 Courts have determined that these Congressional goals indicate that ERISA was intended to preempt claims brought under state statutes concerning employer-based insurance.8 Specifically, courts have held that sections 502(a) and 514 of ERISA preempt a variety of claims brought in state court.9 Section 502(a)(3) applies to tort suits for wrongful denial of care; it limits recovery of damages for wrongful denial of treatment claims to the cost of the denied benefit and provides for injunctive 3. Kim, supra note 1, at 651–52. 6. Andrew M. Campbell, Annotation, Construction and Application of Employee Retirement Income Security Act of 1974 (29 U.S.C.A. §§ 1001 et seq.) by United States Supreme Court, 150 A.L.R. FED. 441, § 2, at 455 (2004). 7. See 29 U.S.C. § 1001(a) (2006); Lorraine Schmall & Brenda Stevens, ERISA Preemption: A Move Towards Defederalizing Claims for Patients' Rights, 42 BRANDEIS L.J. 529, 542 (2004). 8. See Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 45–46 (1987). 9. Kim, supra note 1, at 654; 29 U.S.C. §§ 1132, 1144 (2006). RIGHT TO SUE MANAGED CARE ORGANIZATIONS relief.10 Section 514 establishes a defense against laws enacted by state legislatures that conflict with ERISA.11 These two sections have been interpreted to preempt most state claims against MCOs.12 Section 502 preempts state claims that conflict with or enhance the remedial scheme provided by ERISA and precludes state jurisdiction over wrongful denial of treatment claims.13 Section 514 embodies the doctrine of conflict preemption and preempts claims that “relate to” the determination of benefits under an employee benefit plan.14 Complete preemption of state claims and the restriction of claims to ERISA is a problem if states determine that the remedial scheme provided by ERISA does not sufficiently protect patient rights. Congress and several states considered passing so-called “Patients’ Bill of Rights” statutes that expressly provide the right to sue an HMO for negligent denial of treatment.15 Texas was the first state to pass such a statute, resulting in the Supreme Court decision of AETNA v. Davila.16 In AETNA v. Davila, an individual sued his HMOs for alleged failure to exercise ordinary care in the handling of coverage decisions in violation of a duty imposed by the Texas Health Care Liability Act (“THCLA”).17 Juan Davila was a participant in ERISA-regulated employee benefit plans, the sponsors of which had entered into an agreement with petitioners, AETNA Health, Inc. and CIGNA HealthCare of Texas, Inc., to administer their plans.18 Davila suffered injuries allegedly arising from AETNA and CIGNA’s decisions not to provide coverage for 10. 29 U.S.C. § 1132(a)(1)(B) (2006) (“A civil action may be brought . . . to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan . . . .”). 14. Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 45 (1987). 15. See Robin Cheryl Miller, Annotation, Construction and Application of State Patient Bill of Rights Statutes, 87 A.L.R. 5TH 277 (2001) (considering federal court interpretations of various attempts by states to expressly provide for state claims for treatment denials). 16. Kim, supra note 1, at 673; see also AETNA v. Davila, 542 U.S. 200 (2004). WAKE FOREST JOURNAL OF LAW & POLICY [Vol. 3:S.S. certain treatments and services recommended by his physician.19 According to Davila, once AETNA refused to pay for his Vioxx prescription, he began taking Naprosyn, from which he suffered a severe reaction that required treatment and hospitalization.20 After the injury, Davila brought suit in Texas state court.21 He invoked THCLA section 88.002(a) and argued that petitioners’ refusal to cover the prescription “violated their ‘duty to exercise ordinary care when making health care treatment decisions,’ and that [this refusal] ‘proximately caused’ [his] injur[y].”22 Once the respondents successfully had the case removed to federal district court, the district court dismissed the complaints with prejudice because Davila refused to amend his complaint to bring explicit ERISA claims.23 On appeal to the Fifth Circuit, the Court of Appeals determined that Davila’s claim could possibly fall under only two provisions of ERISA—section 502(a)(1)(B) and section 502(a)(2)—neither of which encompassed Davila’s cause of action.24 On writ to the Supreme Court, Justice Thomas explained: [W]here the individual is entitled to such coverage only because of the terms of an ERISA-regulated employee benefit plan, and where no legal duty (state or federal) independent of ERISA or the plan terms is violated, then the suit falls “within the scope of” ERISA § 502(a)(1)(B). . . . [T]he individual’s cause of action is completely pre-empted by ERISA § 502(a)(1)(B).25 Davila claimed that AETNA’s actions violated legal duties that arise independently of ERISA, specifically the duty of ordinary care in diagnosis, care, and treatment.26 However, the Court held that the duties imposed by the THCLA do not arise independently of RIGHT TO SUE MANAGED CARE ORGANIZATIONS ERISA or the plan terms; hence Davila’s cause of action was completely preempted.27 The Court reasoned: The THCLA does impose a duty on managed care entities to “exercise ordinary care when making health care treatment decisions,” and makes them liable for damages proximately caused by failures to abide by that duty. § 88.002(a). However, if a managed care entity correctly concluded that, under the terms of the relevant plan, a particular treatment was not covered, the managed care entity’s denial of coverage would not be a proximate cause of any injuries arising from the denial.28 The Court also supported its holding with an evaluation of section 503 of ERISA, which requires plans to “afford a reasonable opportunity to any participant whose claim for benefits has been denied for a full and fair review by the appropriate named fiduciary of the decision denying the claim.”29 This was interpreted to suggest that the ultimate decision-maker in a plan regarding benefits must be a fiduciary, in this case AETNA.30 As explained previously, Davila had the effect of barring most claims against MCOs for wrongful denial of treatment. This poses a problem to Americans because it largely silences their voices concerning their health care treatment decisions. The majority of Americans cannot afford most prescriptions and procedures without the assistance of insurance, and the majority of Americans receive their health care through their respective employers. The result is that employer-provided plan beneficiaries have no say in what should be covered under their insurance. The power is completely in the hands of the insurance company. II. A CONSTITUTIONAL RIGHT FOR THE REDRESS OF WRONGS In order to conclude that Americans have a constitutional right to sue MCOs and HMOs, a constitutional right for the 29. Id. at 220 (citing 29 U.S.C. § 1133(2) (2006)). WAKE FOREST JOURNAL OF LAW & POLICY [Vol. 3:S.S. redress of wrongs must first be established. Professor John C.P. Goldberg, in his article The Constitutional Status of Tort Law: Due Process and the Right to a Law for the Redress of Wrongs,31 argues that American citizens have a right to a body of law that empowers individuals to seek tort claims under the Fourteenth Amendment’s Due Process Clause.32 Professor Goldberg further argues that this right generates the prima facie duty of each state to provide a body of tort law.33 Finally, Professor Goldberg develops a set of guidelines for judicial review of the constitutionality of particular tort reforms that is more robust than the traditionally employed rational basis test.34 Professor Goldberg’s argument is complex; thus, it deserves a thorough analysis. A. The History and Evolution of the Right In Parts I and II of his article, Professor Goldberg demonstrates the roots of the right to a law of redress in Anglo-American law and discusses the reception of this right in the Founding Era, specifically showing that the Due Process Clause of the Fourteenth Amendment was likely meant to guarantee the right.35 Although a historical justification for constitutional principles is sufficient for many legal scholars to justify recognition of the right for the redress of wrongs, Goldberg does not rely solely on an originalist approach to constitutional interpretation. First, Professor Goldberg traces the concept that individuals enjoy a right to a law of redress for private wrongs back to the work of influential seventeenth- and eighteenth-century English jurists.36 Common lawyers of the era drew on natural law theory to support an argument for the availability of redress to victims of wrongs committed by individuals and the King, referring to this mode of political organization as “the Ancient Constitution.”37 In the Ancient Constitution, English law was 31. John C.P. Goldberg, The Constitutional Status of Tort Law: Due Process and the Right to a Law for the Redress of Wrongs, 115 YALE L.J. 524 (2005). 37. Id. at 533 (citing Alan Cromartie, The Constitutionalist Revolution: The Transformation of Political Culture in Early Stuart England, 163 PAST & PRESENT 76, 84 (1999)). See generally DAVID J. BEDERMAN, THE CLASSICAL FOUNDATIONS OF THE AMERICAN RIGHT TO SUE MANAGED CARE ORGANIZATIONS structured to ward off tyranny, help ensure prosperity through property laws, and provide remedies for wrongful deprivations of life, liberty, and property.38 Authority for this Ancient Constitution was claimed by “customa concept that invoked notions of habituation, wisdom, and consent.”39 Most importantly for our purposes, common lawyers believed that these customs called for concern with, and denied the legality of, “monarchial attempts to interfere with the ordinary operation of law for the redress of wrongs.”40 In defense against monarchial impositions, common lawyers advocated for the autonomy of other political institutions from the monarch, the autonomy of the courts, and also for limits on the King’s power to exempt particular persons from legal rules and penalties.41 Over time, English common law began to limit the King’s power to interfere in many spheres of the law of redress.42 For example, the King could not suspend the application of laws applicable to whole classes of persons, he could not exempt individuals from common law obligations, he could not grant immunity from liability for an action to recover debt, he could not annul a victim’s right to prosecute an appeal of felony as redress for the wrong done to him,43 and he could not govern the behaviors of Englishmen abroad.44 In sum, the Ancient Constitution embodied a common law theory that included an obligation to establish courts and not to interfere with their ability to provide for the redress of wrongs. Professor Goldberg also explains that John Locke took a similar position from a normative social contract perspective in his Second Treatise on Government.45 Locke maintained that “[w]ith the transition from the state of nature to civil society, individuals delegate to government the task of defining wrongs and of CONSTITUTION (2008); John Cairns, Blackstone, The Ancient Constitution and the Feudal Law, 28 HIST. J. 711 (1985) (Gr. Brit.). 38. Goldberg, supra note 31, at 534. 44. Daniel J. Hulsebosch, The Ancient Constitution and the Expanding Empire: Sir Edward Coke’s British Jurisprudence, 21 AM. SOC’Y FOR LEGAL HIST. 439, 446 (2003). 45. Goldberg, supra note 31, at 541; see also Ann Woolhandler & Caleb Nelson, Does History Defeat Standing Doctrine?, 102 MICH. L. REV. 689, 696–97 (2004). WAKE FOREST JOURNAL OF LAW & POLICY [Vol. 3:S.S. responding to them.”46 He rejected outright the idea that the relationship between ruler and ruled is one of subordination, because he said it is a law of nature that persons are equal and free to pursue any course of action so long as they do not harm another’s “life, health, liberty, or possessions.”47 When individuals transgress from this law of nature, Locke recognized that punishment is in the public interest, but he also recognized that victims of wrongdoing stand in a special relationship to wrongdoers.48 This contrasts sharply with the modern view of tort law discussed below—namely, that tort law is detached from any notion of wrongdoing, and that its main purpose is to provide a form of structural government regulation. With the help of William Blackstone, by the end of the eighteenth century these common law and social contract theories would join forces in support of a right to a body of law for the redress of private wrongs.49 Blackstone’s Commentaries referred to all the laws that he thought conferred on natural persons certain rights, statuses, privileges, or powers.50 After discussing the rights and powers conferred by English common law, Blackstone describes the prohibitory and remedial parts of the law arising from these rightsareas of law that enjoin or demand certain conduct and provide remedies to victims of misconduct.51 He also defines a private wrong as “a breach of a duty owed by the wrongdoer to the victim and, hence, a mistreatment of (‘injury to’) the victim by the wrongdoer.”52 Later in the Commentaries, Blackstone declared that each person enjoys absolute rights to security of person, freedom of movement, and the use of property; he insisted that these rights would be “in vain” if the “constitution had provided no other method to secure their actual enjoyment.”53 Therefore, Blackstone maintained, the constitution has established certain other auxiliary subordinate rights: 46. Goldberg, supra note 31, at 543. 50. Id. at 545–46; see also WILLIAM BLACKSTONE, 1 COMMENTARIES *38–62 (section entitled “The Nature of Laws in General”). 51. Goldberg, supra note 31, at 547. 53. Id. at 550 (quoting 1 BLACKSTONE, supra note 50, at *141). RIGHT TO SUE MANAGED CARE ORGANIZATIONS (1) the right to parliamentary government; (2) the right to clear limits on the royal prerogative; (3) the right to apply to the courts of justice for redress of injuries; (4) the right to petition the King, or either house of Parliament, for the redress of grievances; and (5) the right of the individual to bear arms for self defense.54 Professor Goldberg makes clear that the third auxiliary subordinate right expresses the well-settled laws of England that every right infringed upon must have a remedy, and every injury must have a proper redress.55 Professor Goldberg notes that “[a]lthough Blackstone thus did not confer on the English constitution the status of fundamental law, he nonetheless did regard it as setting standards against which to evaluate parliamentary enactments and royal conduct.”56 Therefore, Blackstone’s work fully articulated the notion of common lawyers and Locke that Englishmen enjoy the right to redress of wrongs.57 B. Recognition in American Constitutional Law of the Right It is unsurprising that the right to a law for the redress of private wrongs appears in early American lawcolonists justified their revolution on principles of English constitutionalism.58 In the Founding Era, the majority of the original states explicitly incorporated this right into their respective state constitutions.59 The right to a law for the redress of private wrongs also appeared in some important early cases, most notably Marbury v. Madison60 and Corfield v. Coryell.61 However, this right was omitted when 54. Id. at 550–51 (paraphrasing 1 BLACKSTONE, supra note 50, at *141–55) (emphasis 55. Id. at 551 (quoting 3 BLACKSTONE, supra note 50, at *109). 58. Id. at 559. See generally JACK P. GREENE, THE CONSTITUTIONAL ORIGINS OF THE 59. Goldberg, supra note 31, at 560. 61. 6 F. Cas. 546 (E.D. Pa. 1823) (No. 3230); Goldberg, supra note 31, at 563. WAKE FOREST JOURNAL OF LAW & POLICY [Vol. 3:S.S. incorporation through Section 1 of the Fourteenth Amendment was being discussed. Proponents of Section 1 argued that its Privileges and Immunities Clause should be considered in light of the auxiliary subordinate rights that Blackstone had listedspecifically the right to bear arms and the right to petition.62 While it seems odd that Blackstone’s third auxiliary right, the right to a law for the redress of wrongs, was omitted, Professor Goldberg explains that the right was excluded because critics were worried that its adoption would destroy federalism.63 However, the result was largely in the opposite, as evinced by ERISA’s preemption of the THCLA in Davila. It should also be noted that the lack of incorporation of the right to redress of private wrongs does not prohibit it from being considered an individual right by virtue of citizenship, as other rights not specifically incorporated have been so considered.64 From 1875 to 1920, federal courts ruled on the extent to which the Fourteenth Amendment Due Process Clause limited a state’s options as to its laws of redress.65 The Court in this era insisted that due process “provides not just a ceiling but a flooran affirmative duty grounded in federal law to provide a law of redress.”66 This framework was invoked on several occasions between 1885 and 1915, but each of the cases involved “ceiling rather than floor challenges.”67 And finally, the recognition of an affirmative duty to provide a law of redress began to disappear with the arrival of rational basis review and hard-look enforcement of the due process floor, as well as a refusal to consider rights-based theory in tort law.68 During most of this period, the Court simply refused to consider due process objections to tort statutes.”69 62. Goldberg, supra note 31, at 565. 64. Saenz v. Roe, 526 U.S. 489, 503 (1999) (regarding the right to interstate travel protected by the Privileges or Immunities Clause of the Fourteenth Amendment). 65. Goldberg, supra note 31, at 568; see also, e.g., Munn v. Illinois, 94 U.S. 113 (1876); Mo. Pac. Ry. Co. v. Humes, 115 U.S. 512 (1885); Guy v. Donald, 203 U.S. 399 (1906). 66. Goldberg, supra note 31, at 568. RIGHT TO SUE MANAGED CARE ORGANIZATIONS Professor Goldberg believes that the rational basis paradigm emerged in this era out of “inherent regressivity of the idea of individual rights against government” and popular belief that courts were not properly situated to second-guess legislatures.70 He also believes that the rational basis paradigm emerged as a result of an “attack on the idea that tort law ought to be understood as law for the redress of private wrongs.”71 Instead, scholars were beginning to view tort law as just another form of regulation.72 Legal scholars such as William Prosser viewed tort cases as occasions for public lawmaking.73 Additionally, under rational basis review, tort law was only entitled to minimal judicial protection. Although some courts still regard the right to sue in tort as a right,74 tort law is no longer seen as law for the redress of private wrongs, nor is the redress of private wrongs viewed as a fundamental right. C. A Call for Recognition of the Right for the Redress of Wrongs According to Professor Goldberg, recent developments in constitutional law and theory suggest that now is the time to bring back recognition of the right to a law for the redress of wrongs.75 This is especially important with regards to ERISA preemption because courts have held that that the Fourteenth Amendment limits the powers of the national government as well as the states.76 The mid-1970s ushered in an era where race, criminal procedure, and sexual liberation became prominent social issues, making it difficult to ignore these rights in constitutional law.77 Rights discourse was reinvigorated and the rights to liberty, privacy, and equal treatment became focal points in constitutional law.78 The idea of tort law as a law for the redress of private wrongs 73. Id. (citing, among others, WILLIAM L. PROSSER, HANDBOOK OF THE LAW OF 74. See McMillan v. City of N.Y., 253 F.R.D. 247 (E.D.N.Y. 2008). 75. Goldberg, supra note 31, at 583. 77. Goldberg, supra note 31, at 584. WAKE FOREST JOURNAL OF LAW & POLICY [Vol. 3:S.S. began to emerge as well.79 Courts began to recognize access to redress for wrongs as a constitutional norm or value.80 Even the Court’s preemption analysis has reflected concerns about redress of wrongs.81 For example, the Court has held that the Fifth Amendment’s preemption power; and the Court has also held a presumption against preemption.82 In turning to Professor Goldberg’s argument in favor of recognition of the right for the redress of wrongs, it is important to note that his historical, originalist argument for this right is sufficient proof in the minds of many legal scholars. However, Professor Goldberg has a normative argument as well, which in effect calls for a return to natural law principles in Fourteenth Amendment interpretation, much like Justice Thomas employs with interpretation of the Privileges or Immunities Clause.83 He begins by arguing that tort law makes more sense when understood as related to wrongdoing than when understood as a form of regulation.84 The modern evolution of tort law illustrates this well. Tort doctrine has pulled back from strict liability, and statutory torts alleging intentional wrongs have flourished.85 More importantly, tort doctrine can only be explained with reference to the ideas of relational duty and injury.86 For example, defamation and trespass causes of action can only be proven if the plaintiff proves that the defendant’s action was directed at her.87 And no tort cause of action can pass muster unless there is a person who suffers an injury as a result of being wronged.88 Finally, Professor Goldberg explains that tort law must be understood as a law for the redress of wrongs because its purpose is to “empower victims,” 80. Id. at 585–86; see also, e.g., Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59 (1978); Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). 81. Goldberg, supra note 31, at 588. 82. Id.; see also Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1012 (1984). 83. Clarence Thomas, The Higher Law Background of the Privileges or Immunities Clause of the Fourteenth Amendment, 12 HARV. J.L. & PUB. POL’Y 63, 68 (1989); see also Saenz v. Roe, 526 U.S. 489, 521 (1999) (Thomas, J., dissenting). 84. Goldberg, supra note 31, at 597. RIGHT TO SUE MANAGED CARE ORGANIZATIONS and “the decision to complain about an alleged wrong lies uniquely with the victim.”89 No other area of law encompasses this same set of features as tort law. “The core claim of redress theory is that tort law’s distinctiveness resides in conferring on individuals (and entities) a power to pursue a legal claim alleging that she (or it) has suffered an injury flowing from a legal wrong to her (or it) by another.”90 Finally, Professor Goldberg turns to why the right to redress of wrongs should be recognized as a constitutional right. Referring back to Locke and individual rights theory, Professor Goldberg points out that the government has taken away certain powers of its citizens that they would otherwise be able to exercise by assuming the duty of maintaining civil society.91 A victim of a wrong is blocked by the law from turning to self-help, so the government is obligated to provide an alternate path for the redress of wrongs.92 Tort law as a redress for wrongs also empowers victims to demand response for their mistreatment and affirms the ideal that a victim is a person entitled to make demands on the government.93 These facts, according to Professor Goldberg, show that tort law contributes to political legitimacy.94 Professor Goldberg also explains that tort law, as understood in this sense, helps to maintain a liberal version of civil society through the formation of recognized norms of appropriate conduct.95 The formation of these norms is distinctly liberal for several reasons. First, the created norms of appropriate conduct consist mainly of negative obligations (preferred in a liberal society).96 Second, these articulated duties that are specific to roles and activities are “compatible with our relatively open and fluid 93. Id. at 607; see also Benjamin Zipursky, A Theory of Punitive Damages, 84 TEX. L. REV. 105, 151 (2005) (“Our political system forbids violent actions against others, even in response to a wrongdoing by them. But in forbidding this course of action, the state assumes a duty to provide some avenue through which the aggrieved party may at least respond to the wrong. The right of action is what the state affords the citizen after his raw liberty to take is diminished.”). 94. Goldberg, supra note 31, at 607. WAKE FOREST JOURNAL OF LAW & POLICY [Vol. 3:S.S. society.”97 Third, the imposition of obligations under this scheme operates by reinforcing known social norms, thereby enhancing the legitimacy of the system.98 Fourth, tort law in this sense “treats actors as agents who are responsible to others for the consequences of their actions.”99 Fifth, “the responsibilities identified by tort law are owed by persons and entities to other persons and entities.”100 And finally, “tort law is recognizably liberal in how it factors causal contingencies into assignations of responsibility.”101 III. ERISA AND A LIMITED RIGHT TO HEALTH CARE Professor Goldberg puts forth a quite compelling argument for the recognition of the right to a law for the redress of private wrongs. If his argument is accepted, there will not only be a presumption against preemption (as already exists in a limited form), but also a presumption against congressional legislation that limits one’s right to seek redress for a private wrong. Professor Goldberg does not argue that the Constitution provides the right to a specific version of tort laws, but I argue, as others have argued with regards to various federal statutes,102 that Goldberg’s three-step framework for due process floor challenges103 unconstitutional. Finally, I will argue that a court-determined limited right to health care and a rights-based argument for a limited right to health care cement the argument for the constitutional right to sue MCOs. 100. Id. 101. Id. at 610. 102. See, e.g., Opening Brief for Plaintiffs, Ileto v. Glock, Inc., 565 F.3d 1126 (9th Cir. 2009) (Nos. 06-56872, 07-15403, 07-15404), 2007 WL 4266471 at *8 (“[T]he PLCAA also violates the Fifth Amendment’s Due Process Clause by eliminating all remedies for a class of injured victims.”). 103. Goldberg, supra note 31, at 613. RIGHT TO SUE MANAGED CARE ORGANIZATIONS Professor Goldberg believes that courts should abandon the search for a single test for ceiling and floor cases.104 Thus, he formulates guidelines for judicial review of due process floor challenges that would allow courts to more intelligently determine the constitutionality of particular tort reform.105 Specifically, he calls for courts to consider the following three steps: (1) What is the wrong that stands to be redressed by the tort cause of action? (a) Does the tort cause of action really aim to redress a wrong? (b) What sort of interest of the victim does the tort action vindicate? (c) What sort of interference does the tort identify as wrongful? (2) What is the effect of the reform legislation on the tort cause of action? (3) What are the stated or implicit justifications for the legislation?106 In Davila, the Court determined that ERISA preempted the plaintiff’s claim—failure to exercise ordinary care in the handling of coverage decisions in violation of a duty imposed by the THCLA.107 This cause of action satisfies Step 1(a) of Professor Goldberg’s guidelines because its aim is to redress a wrong (negligence). Step 1(b) is also satisfied because the ordinary care provision108 of the THCLA protects a valid interest of the victima plan beneficiary’s interest in protection from negligent treatment coverage determinations. Step (1)(c) is satisfied as well because the tort in question was provided for injuries caused by negligence. Professor Goldberg affirmed that this type of interference satisfies step (1)(c) in his analysis of workers’ compensation statutes.109 104. Id. 105. Id. 106. Id. 107. AETNA Health Inc. v. Davila, 542 U.S. 200, 221 (2003). 108. TEX. CIV. PRAC. & REM. CODE ANN. §§ 88.001(10), 88.002(a) (2011). 109. Goldberg, supra note 31, at 616. WAKE FOREST JOURNAL OF LAW & POLICY [Vol. 3:S.S. Turning to step (2), the next consideration is the severity of the legislation’s interference with the plaintiff’s tort action. Notably, Professor Goldberg states that “[o]utright abolition is the most significant form of interference.”110 ERISA functions as an outright abolition of a plaintiff’s claim for failure to exercise ordinary care in the handling of coverage decisions, because the Court held in Davila that ERISA preempts this sort of claim.111 More importantly, ERISA does not itself allow claims to be brought under negligence in the handling of coverage decisions.112 ERISA only allows a plaintiff to bring a claim “to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.”113 For these reasons, ERISA’s preemption provision functions as the most significant form of interference. Under step (3), the court should consider the purposes served by the legislation.114 ERISA was passed for two purposes: to protect private pension plans from mismanagement and abuse, and to allow multistate corporations to more efficiently manage their employee benefit plans.115 The first purpose could not be considered one of the specific goals of ERISA’s preemption provision, and the second purpose of ERISA does not automatically validate the constitutionality of ERISA. Professor Goldberg explains that tort reforms passed in an effort to weed out false claims are entitled to relatively greater deference, while “legislation that is predicated on the notion that the tort system is functioning properly, but that it has become too expensive for society to maintain, should invite more searching review.”116 Promoting efficient management for multistate corporations is just another way of saying that such corporations wish to save on expenses. 110. Id. at 615. 111. Davila, 542 U.S. at 212, 221. 112. 29 U.S.C. § 1132(a) (2006). 113. 29 U.S.C. § 1132(a)(1)(B) (2006). 114. Goldberg, supra note 31, at 615. 115. Campbell, supra note 6, § 2, at 455–61. 116. Goldberg, supra note 31, at 615–16. RIGHT TO SUE MANAGED CARE ORGANIZATIONS B. A Limited Right to Health Care As illustrated above, Professor Goldberg’s test requires a balancing of interests. After a review of ERISA and the types of claims it preempts, ERISA’s preemption provision clearly violates the constitutional right for the redress of private wrongs. However, a discussion of the value of the preempted claims at issue will further cement this conclusion. Health care costs in this country are astronomical, and only a small percentage of Americans can afford significant health care treatments without insurance. The majority of Americans that do have insurance receive it through their employers. In an attempt to decrease health care costs, MCOs have been rationing care, resulting in the denial of necessary medical treatments. Unfortunately, ERISA restricts claims for negligent treatment coverage decisions. As I have discussed, a constitutional right to the redress of wrongs would likely render ERISA’s preemption provision unconstitutional. But there is also a compelling argument that a right to health care would render ERISA’s preemption provision unconstitutional, as well. A complete and fully inclusive right to health care is hard to swallow for many lawmakers. As a result, the United States has yet to come to a conclusion regarding whether Americans have a complete right to health care. Although common law has not fully recognized a constitutional right to health care, courts have recognized a limited right to health care,117 as has Congress with the passage of the Patient Protection and Affordable Care Act.118 For example, the United States Court of Appeals for the First Circuit has affirmed state statutes requiring hospitals to provide free medical services to low-income patients (free care laws).119 Courts have also held that the government is required to provide 117. See, e.g., Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C. § 1395dd (2006) (establishing the right to emergency medical treatment); Estelle v. Gamble, 429 U.S. 97, 104–05 (1976) (finding the right to health care for prisoners); Franklin Mem’l Hosp. v. Harvey, 575 F.3d 121, 130 (1st Cir. 2009) (affirming free care laws). 118. Pub. L. No. 111-148, 124 Stat. 119 (2010), amended by Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-152, 124 Stat. 1029 (2010); see also Noa Ben-Asher, Obligatory Health, 15 YALE HUM. RTS. & DEV. L.J. 1 (2012) (praising the Affordable Care Act as an embodiment of the right to affordable health care). 119. Franklin Mem’l Hosp., 575 F.3d at 130. WAKE FOREST JOURNAL OF LAW & POLICY [Vol. 3:S.S. medical care for prisoners.120 Congress has even supported a limited right to health care with the passage of the Emergency Treatment and Active Labor Act, which requires hospitals to provide care to anyone needing emergency medical treatment, regardless of citizenship, legal status, or the ability to pay.121 Taken together, it seems fair to say that our government believes in a limited right to health care. In turn, if Americans have a limited right to health care, Americans should, at the very least, be able to challenge negligent treatment coverage decisions. They have the right to obtain basic education, and the government would certainly not restrict individuals from bringing suit for wrongful denial of education.122 Finally, Americans may be entitled to a constitutional right to health care similar to the way in which they are entitled to redress of wrongs. Locke recognized a law of nature that persons are equal and free to pursue any course of action so long as they do not harm another’s “life, health, liberty, or possessions.”123 If an MCO has a duty to provide health insurance to beneficiaries, these beneficiaries are harmed when the MCO negligently denies treatment coverage. The beneficiary’s possessions are harmed because he is forced to pay for care in spite of the MCO’s duty. Moreover, the beneficiary’s life could be harmed, as in Davila, as well as his liberty. If the beneficiary suffers a stroke as a result of the MCO’s negligence, he may not be able to walk, eat, drive, or speak. This is an infringement of liberty. Similarly, Blackstone declared that each person enjoys an absolute right to security of person, freedom of movement, and the use of property, and he insisted that these rights would be “in vain” if the constitution did not provide a method to secure the enjoyment of these rights. 124 He argued that the constitution had established certain auxiliary subordinate rights, such as the right for redress of grievances, which were necessary to secure the aforementioned primary rights. Although he did not list health care as an auxiliary subordinate right, an argument can be made 120. See Estelle, 429 U.S. at 104–05. 121. 42 U.S.C. § 1395dd (2006). 122. See Laurence A. Turka & Arthur L. Caplan, The Right to Health Care, 120 J. CLINICAL INVESTIGATION 934, 934 (2010). 123. Goldberg, supra note 31, at 541–42. 124. Id. at 550 (quoting 1 BLACKSTONE, supra note 50, at *141). RIGHT TO SUE MANAGED CARE ORGANIZATIONS for its inclusion. Just as these auxiliary subordinate rights were necessary for the enjoyment of security, movement, and property, health care is necessary for the enjoyment of life, liberty, and the pursuit of happiness. Thus, the aforementioned stroke victim, who cannot walk, eat, drive, or speak, is at a serious disadvantage in his enjoyment of life, liberty, and the pursuit of happiness. Our nation aspires to achieve liberty, justice, and opportunity for all. But not everyone will be able to achieve these lofty aspirations if they do not have the right to health care or the right to challenge health care decision makers. Every day MCOs make administrative decisions that deny necessary medical treatment to those who need it, to those who have paid for medical insurance. Professor Goldberg has shown that Americans have a constitutional right to the redress of private wrongs with a thorough examination of the history of our country’s legal system and an examination of rights-based legal theory. Once applied to Professor Goldberg’s guidelines, ERISA’s preemptive provisions cannot pass constitutional muster. This conclusion is further supported by our nation’s recognition of a limited right to health care and the necessity of health care for the enjoyment of life, liberty, and the pursuit of happiness.

Source: http://lawpolicyjournal.law.wfu.edu/files/2013/06/Vol.3-SS-Cardi.pdf