Eric M. Eusanio

Managed Care Organizations ("MCOs") subject their consumers to the detrimental effects of rationing, such as the delay or denial of live-saving treatment. However, there is no vehicle through which consumers may seek to redress any injuries incurred as a result of this rationing by MCOs. This result violates any concept of fairness rooted in the law. The Employee Retirement Income Security Act of 1974 ("ERISA") has caused this unfairness because it destroys a consumer's right under state law to obtain redress from the negligent conduct of MCOs within the context of private sector, employer-provided health plans. This is because courts have applied sections 502 and 514 of ERISA strictly, by interpreting those provisions as an intent by Congress to preempt any and all state laws that interfere with federal regulation of employer-provided health plans.

As a consequence of the judicial interpretation of ERISA, any state law remedy to redress the negligence of an MCO has been preempted by ERISA as an attempt to supersede federal law. Accordingly, federal legislation, as opposed to ad hoc court-imposed remedies, is necessary to cure the defects in the health care system caused by ERISA preemption, such as consumer distrust in the health care market and their impaired access to effective, reasonable care. This Note concludes that the enactment of the Patient Bill of Rights Act of 1998, or other federal legislation containing similar provisions amending ERISA's preemption clauses (sections 502 and 514), is the superior method to reform these defects caused by ERISA as legislative reform of statutory preemption, as opposed other methods of reform, does not contravene the constitutional doctrines of stare decisis and separation of powers.