Managing Care in the New Era of “Systems-Think”: The Implications for Managed Care Organizational Liability and Patient Safety

Kohn L.T. Corrigan J.M. Donaldson M.S. , eds., Committee on Quality of Health Care in America, Institute of Medicine, To Err is Human: Building a Safer Health System (Washington, D.C.: National Academy Press, 2000 [originally released Nov. 1999]), available at <http://books.nap.edu/books/0309068371/html/R1.html#pagetop> [hereafter cited as IOM Report]. The interest in error reduction is not new. In fact, part of the medical ethic is improving safety. For many years, physicians and regulators, among others, have been addressing the problem of iatrogenic injury.

For a fuller discussion, see Brennan T.A. , “The Institute of Medicine Report on Medical Errors — Could It Do Harm?,” N. Engl. J. Med., 342 (2000): 1123–25.

See, e.g., Pegram v. Herdrich, 530 U.S. 211 (2000).

Bauman v. U.S. Healthcare, Inc. (In re U.S. Healthcare, Inc.), 193 F.3d 151 (3d Cir. 1999), cert. denied, 530 U.S. 1242 (2000).

Lazorko v. Pennsylvania Hospital, 237 F.3d 242 (3d Cir. 1998), cert. denied, Aetna U.S. Healthcare v. Lazorko, 2001 U.S. Lexis 4732 (June 25, 2001).

Lancaster v. Kaiser Foundation Health Plan, 958 F. Supp. 1137 (E.D. Va. 1997).

Ouellette v. Christ Hospital, 942 F. Supp. 1160 (S.D. Ohio 1996). For cases addressing the duty to disclose incentives to patients, see, e.g., Shea v. Esensten (Shea II), 208 F.3d 712 (8th Cir. 2000).

Neade v. Portes, 739 N.E.2d 496 (Ill. 2000).

See also note 60, infra; Denniston L. , “Patients Challenge HMOs in Wave of Medical Lawsuits; At Least 20 Cases Pending amid Fears That Finances Determine Health Care,” The Baltimore Sun, February 20, 2000, at 3A.

Mello M. Brennan T.A. , “Lessons from the Controversy over High-Dose Chemotherapy Plus Autologous Bone Marrow Transplant for Breast Cancer,” Health Affairs, 20, no. 5 (2001): 101–17.

Studdert D.M. Brennan T.A. , “The Problem of Punitive Damages in Lawsuits against Managed-Care Organizations,” N. Engl. J. Med., 342 (2000): 280–84.

Hiatt H.H. ., “A Study of Medical Injury and Medical Malpractice,” N. Engl. J.Med., 321 (1989): 480–84;.

Brennan T.A. ., “Incidence of Adverse Events and Negligence in Hospitalized Patients — Results of the Harvard Medical Practice Study I,” N. Engl. J. Med., 324 (1991): 370–76;.

Leape L. , “The Nature of Adverse Events in Hospitalized Patients: Results of the Harvard Medical Practice Study II,” N. Engl. J. Med., 324 (1991): 377–84;.

Localio A.R. , “Relation between Malpractice Claims and Adverse Events Due to Negligence: Results of the Harvard Medical Practice Study III,” N. Engl. J. Med., 325 (1991): 245–51.

Thomas E.J. , “Incidence and Types of Adverse Events and Negligent Care in Utah and Colorado,” Medical Care, 38 (2000): 261–71;.

Thomas E.J. , “Costs of Medical Injuries in Utah and Colorado,” Inquiry, 36 (1999): 255–64.

See Brennan , supra note 1.

IOM Report, supra note 1, at 179.

Leape L. , “Error in Medicine,” JAMA, 23 (1994): 1851–57, at 1857.

IOM Report, supra note 1, at 7–14 (summary of recommendations).

Id. at 111.

Id. at 10.

Bowman C. , “Medical-Error Proposals Proliferate as Lawmakers Seek Reporting Systems,” Health Law Reporter (BNA), 9 (2000): 535.

Booth B. , “IOM Report Spurs Momentum for Patient Safety Movement,” American Medical News, January 24, 2000.

See also Kilborn P.T. , “Ambitious Effort to Cut Mistakes in U.S. Hospitals,” New York Times, December 26, 1999, at 1.

Quality Interagency Coordination (QuIC) Task Force, Report to the President, Doing What Counts for Patient Safety: Federal Actions to Reduce Medical Errors and Their Impact (February 2000), available at <http://www.quic.gov/report/toc.htm>.

Prager L.O. , “Mandatory Reports Cloud Error Plan,” American Medical News, March 13, 2000;.

Altman L. , “The Doctor's World: Getting to the Core of Mistakes in Medicine,” New York Times, February 29, 2000, at F1.

Editorial, “Exposing Medical Mistakes,” New York Times, February 24, 2000, at A26.

42 U.S.C.S. § 299 et seq. (2001).

42 U.S.C.S. § 299b-1 (2001).

See, e.g., Voluntary Error Reduction and Improvement in Patient Safety Act, S. 2743, 106 Cong., 2d Sess. (2000).

Patient Safety and Errors Reduction Act, S. 2738, 106th Cong., 2d Sess. (2000).

Stop All Frequent Errors (SAFE) in Medicare and Medicaid, S. 2378, 106th Cong., 2d Sess. (2000).

Medical Error Reduction Act of 2000, S. 2038, 106th Cong., 2d Sess. (2000).

Medication Error Prevention Act of 2000, H.R. 3672, 106th Cong., 2d Sess. (2000).

See also National Conference of State Legislatures, AFI Health Committee, “Medical Errors,” Issues in Brief (August 1, 2000), available at <http://www.ncsl.org/statefed/health/mederrib.htm>. As of this writing, these bills have not been reintroduced during the 107th Congress.

“Senators Agree on Need to Address Errors, Disagree over Appropriate Legislative Vehicle,” Health Law Reporter (BNA), 9 (2000): 697.

National Conference of State Legislatures, “Medical Errors,” State Health Policy Brief, 1, no. 10 (2000): 1–2.

See also IOM Report, supra note 1, at 254 (describing characteristics of adverse-event reporting systems in thirteen states).

Bowman , supra note 13 (noting that, e.g., Pennsylvania (28 Pa. Code § 51.3 (2001)) reported 259 adverse events and that New Jersey receives 500 combined complaints and hospital reports each year; a more detailed reporting requirement (31 N.J. Reg. § 4327 (1999)) went into effect in June 2001)

See “Most States Call for Error Reports, Have Pending Reporting Legislation,” Health Law Reporter (BNA), 9 (2000): 643.

N.Y. Pub. Health Law § 2995-a (Consol. 2001).

Hernandez Raymond , “Pataki Orders State Records on Doctors to Be Posted,” Health Law Reporter (BNA), 9 (2000): 2.

See National Conference of State Legislatures, supra note 20, at 2.

Id., citing as an example a proposed Massachusetts law (S.B. 2187).

Brennan T.A. , “Hospital Peer Review and Clinical Privileges Actions: To Report or Not to Report,” JAMA, 282 (1999): 381–82.

See also Chassin M. , “Benefits and Hazards of Reporting Medical Outcomes Publicly,” N. Engl. J. Med., 334 (1996): 394–98.

Drake D.F. , “Managed Care: A Product of Market Dynamics,” JAMA, 277 (1997): 560–63, at 563.

Robinson J. , The Corporate Practice of Medicine (Berkeley and Los Angeles, California: University of California Press, 1999): at 3.

Id. at 3.

See also Robinson J. , “The Future of Managed Care Organization,” Health Affairs, 18, no. 2 (1999): 7–24.

Id. See also Gabel J. , “Ten Ways HMOs Have Changed During the 1990s,” Health Affairs, 16, no. 3 (1997): 134–45, at 136.

Zelman W.A. Berenson R.A. , The Managed Care Blues and How to Cure Them (Washington, D.C.: Georgetown University Press, 1998): at 65.

Gabel , supra note 32, at 136–37.

Robinson , supra note 30, at 13.

Havighurst C.C. , “Vicarious Liability: Relocating Responsibility for the Quality of Medical Care,” American Journal of Law & Medicine, 26 (2000): 7–29, at 12.

Robinson , supra note 30, at 86.

Latham S.P. , “Regulation of Managed Care Incentive Payments to Physicians,” American Journal of Law & Medicine, 22 (1996): 399–432;.

Zelman Berenson , supra note 33, at 65.

Zelman Berenson , supra note 33, at 80–82.

See Latham , supra note 37, at 408–11;.

Zelman Berenson , supra note 33, at 80–82.

See, e.g., Pegram v. Herdrich, 530 U.S. 211 (2000), and discussion at notes 58–69, infra.

Compare with G.P. Young, “ERISA Federal Preemption of HMO Lawsuits: New Case Law,” Health Law Reporter (BNA), 9 (2000):1267;.

Hall M. , Making Medical Spending Decisions: The Law, Ethics, and Economics of Rationing Mechanisms (New York: Oxford University Press, 1997): at 179.

Zelman Berenson , supra note 33, at 124–25.

See Pegram, 530 U.S. at 218–22;.

Danzon P. , “Tort Liability: A Minefield for Managed Care?,” Journal of Legal Studies, 26 (1997): 491–519, at 504–10.

29 U.S.C.S. §§ 1001–1461 (2001).

See 29 U.S.C.S. §§ 1002 (32), (33); 1003(b)(1), (2) (2001).

Studdert D.M. , “Expanded Managed Care Liability: What Impact on Employer Coverage?,” Health Affairs, 18, no. 6 (1999): 7–27, at 15.

See Studdert Brennan , supra note 4.

“State Legislatures to Focus on Privacy, Drug Coverage for Seniors, BCBSA Says,” Health Law Reporter (BNA), 9 (2000): 1131 (noting that although managed care liability bills passed in some states, liability legislation is facing increasing opposition in many states).

See Rubin A.J. , “Bush Tells of Goals in Patients' Rights Bill,” Los Angeles Times, February 8, 2001, at A18;.

Pear R. , “Ruling Sends Call for Action to Congress and the States,” New York Times, June 13, 2000, at A23.

See Massachusetts Mutual Life Ins. Co. v. Russell, 473 U.S. 134 (1985).

Bast v. Prudential Life Ins. Co., 150 F.3d 1003 (9th Cir. 1998).

See also Corcoran v. United Healthcare, Inc., 965 F. 2d 1321, 1333–34 (5th Cir. 1992).

Corcoran, 965 F.2d at 1333–39.

See, e.g., Pilot Life v. Dedeaux, 481 U.S. 41, 46 (1987) (ERISA preemption provisions “deliberately expansive”).

Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 739 (1985).

See also Shaw v. Delta Airlines, Inc., 463 U.S. 85, 96 (1983).

New York State Conference of Blue Cross & Blue Shield Plans v. Travelers, 514 U.S. 645 (1995).

California Division of Labor Standards Enforcement v. Dillingham Construction, NP, Inc., 519 U.S. 316 (1997) (California prevailing wage law not preempted by ERISA).

DeBuono v. NYSA-ILA Medical and Clinical Services Fund, 520 U.S. 806 (1997).

Dukes v. U.S. Healthcare, Inc., 57 F.3d 350 (3rd Cir. 1995).

Dukes, 57 F.3d at 356–57. Two types of preemption can occur under ERISA. “Complete” preemption invokes federal subject matter jurisdiction, whereas “conflict” preemption provides a defense to state law claims. Complete preemption is a basis for removal of a case from state to federal court. The question to be considered is whether the particular state law claim can be characterized as a claim falling under ERISA's civil enforcement provisions, 29 U.S.C. § 1132(a). Under these provisions, a participant or beneficiary of an ERISA plan may bring a civil action “to recover benefits due to him under the terms of his plan.” 29 U.S.C. § 1132(a)(1)(B). Conflict preemption does not confer federal jurisdiction, but when alleged, the state court determines whether the federal law preempts the state law action. The question under conflict preemption is whether the particular state law “relates to” an ERISA plan under 29 U.S.C. § 1144(a)

Thus, a finding that ERISA does not completely preempt a state law cause of action does not necessarily satisfy the “conflict” preemption analysis. For a more detailed description of complete and conflict preemption, see Mahon v. Cyganiak Planning, Inc., 41 F. Supp. 2d 910, 913–14 (E.D. Wis. 1999) (and cases cited therein).

Liang B.A. , “Patient Injury Incentives in Law,” Yale Law & Policy Review, 17 (1998): 1–93, at 23–24;.

Manos T.J. , “Take Half an Aspirin and Call Your HMO in the Morning — Medical Malpractice in Managed Care: Are HMOs Practicing without a License?” (comment), University of Miami Law Review, 53 (1998): 195–240, at 220–29.

See, e.g., Bauman v. U.S. Healthcare (In re U.S. Healthcare, Inc.), 193 F.3d 151 (3d Cir. 1999),

cert. denied, 530 U.S. 1242 (2000).

Crum v. Health Alliance-Midwest, 47 F. Supp. 1013 (.D. Ill. 1999).

Ouellette v. The Christ Hospital, 942 F. Supp. 1160 (S.D. Ohio 1996).

See, e.g., Jass v. Prudential Health Care Plan, 88 F.3d 1482 (7th Cir. 1996).

Lancaster v. Kaiser Foundation Health Plan of Mid-Atlantic States, Inc., 958 F. Supp. 1137, 1147 (E.D. Va. 1997).

Andrews-Clarke v. Travelers Insurance Company, 984 F. Supp. 49 (D. Mass. 1997).

Pegram v. Herdrich, 530 U.S. 211 (2000).

Two post-Pegram cases illustrate this point. See Pappas v. Asbel (Pappas II), 768 A.2d 1089 (Pa. 2001), where following the vacating and remanding of the original Pappas v. Asbel (Pappas I), 724 A.2d 889 (Pa. 1998), by the U.S. Supreme Court in United States Healthcare Systems v. Pennsylvania Hospital Ins. Co., 530 U.S. 1241 (2000), for further consideration in light of Pegram v. Herdrich, the Pennsylvania Supreme Court adhered to its original holding that ERISA did not preempt a state tort law claim against an HMO for negligent failure to approve a timely emergency transfer to an out-of-network facility.

But see text accompanying notes 79–80, infra, discussing Corporate Health Ins., Inc. v. Texas Department of Ins. (Corporate Health I), 215 F.3d 526, 534–35 (5th Cir. 2000).

See also Young, supra note 40;.

McLean T.R. Richards E.P. , “Managed Care Liability for Breach of Fiduciary Duty after Pegram v. Herdrich: The End of ERISA Preemption for State Law Liability for Medical Care Decision Making,” Florida Law Review, 53 (2001): 1–47, at 29–30;.

Bloche M.G. Jacobson P.D. , “The Supreme Court and Bedside Rationing,” JAMA, 284 (2000): 2776–79.

Pegram, 530 U.S. at 229.

Id. at 231–32

However, the court expressly did not address whether a fiduciary duty exists under ERISA to disclose the existence and terms of physician incentives to reduce or limit care. Id. at 228 n.8

The circuit courts are divided on this issue. Compare Shea v. Esensten (Shea I), 107 F.3d 625 (8th Cir.) cert. denied, 522 U.S. 914 (1997) (duty to disclose),

with Ehlmann v. Kaiser Foundation Health Plan of Texas, 198 F.3d 552 (5th Cir. 2000) (no duty to disclose).

Pegram, 530 U.S. at 219.

Id. at 220.

Id. at 221.

See note 40 and accompanying text, supra. See also Pimley D.W. , “States Tell Health Plans That Incentives May Not Limit Medically Necessary Care,” Health Law Reporter (BNA), 7 (1998): 1581.

Pegram, 530 U.S. at 220–21.

Id. at 221.

Id. at 235–36.

Id. at 235.

Jacobson P.D. , “The Supreme Court's View of the Managed Care Industry's Liability for Adverse Patient Outcomes” (letter) JAMA, 284 (2000): 927.

White E. Combs J. , “Patients' Rights Battle Moves to House Where GOP Seeks Support for Fletcher Bill,” Health Law Reporter (BNA), 10 (2001): 1051.

For example, the Bipartisan Patient Protection Act, S. 1052, 107th Cong., 1st Sess. (2001), requires exhaustion of remedies prior to filing suit; and a bill proposed in the House of Representatives, the Patient Bill of Rights Act of 2001, H.R. 2315, 107th Cong., 1st Sess. (2001), includes an exhaustion requirement, a cap on non-economic damages, and a prohibition of punitive damages. A Bush administration proposal would limit suits to federal court, require exhaustion of the health plan's appeal processes, and limit damages.

“President's Letter to Congressional Majority Leaders on the Patients' Bill of Rights,” Weekly Compilation of Presidential Documents, 37 (2001): 269–70.

Robinson , supra note 30, at 13–15.

See Butler P.A. , Managed Care Plan Liability: An Analysis of Texas and Missouri Legislation (Menlo Park, California: Kaiser Family Foundation, 1997): at 5–6.

Id., citing National Health Lawyers Association, Corporate Practice of Medicine: 50-State Survey (Washington, D.C.: National Health Lawyers Association, 1996). For a more detailed discussion of the corporate practice of medicine,

see Manos , supra note 54, at 195–240.

See, e.g., Williams v. Good Health Plus, 743 S.W.2d 373 (Tex. App. Ct. 1988).

Harrell v. Total Health Care, 781 S.W.2d 58 (Mo. 1989).

See also Manos , supra note 54, at 230 n.292 (collecting cases).

1999 Ohio Op. Atty. Gen. No. 99-044, 1999 WL 8998 (August 31, 1999) (doctors performing utilization review are not practicing medicine).

1999 La. Atty. Gen. Op. No. 98-491, 1999 WL 288869 (April 27, 1999) (medical necessity determinations that affect diagnosis or treatment constitute the practice of medicine). For a similar result, see Murphy v. Board of Medical Examiners of Arizona, 949 P.2d 530 (Ariz. Ct. App. 1997).

See also Fernandez K. , “State to Oppose Federal Jurisdiction over Challenge to Discipline of Medical Director,” Health Law Reporter (BNA), 9 (2000): 625.

See, e.g., Ariz. Rev. Stat. § 20–3153 (2000).

Cal. Civ. Code § 3428 (Deering 2001).

Ga. Code Ann. § 51-1-48 et seq. (2000).

La. Rev. Stat. Ann. § 22:3085 (2000).

Me. Rev. Stat. Ann. tit. 24-A, § 4313 (2000).

Mo. Rev. Stat. § 538.205–538.3036 (2000).

Okla. Stat. tit. 36, § 6593 (2000).

Tex. Civ. Prac. & Rem. Code Ann. § 88.001–88.003 (2000).

Wash. Rev. Code § 48.43.545 (2001).

W. Va. Code § 33.25C7 (2001). See also Butler P.A. , Key Characteristics of State Managed Care Organization Liability Laws (Menlo Park, California: Kaiser Family Foundation, 2001).

Corporate Health Ins., Inc. v. Texas Department of Ins. (Corporate Health I), 215 F.3d 526, 534–35 (5th Cir. 2000).

Id.

See also Corporate Health Ins., Inc. v. Texas Department of Ins. (Corporate Health II), 220 F.3d 641, 644 (5th Cir. 2000).

Calad v. Cigna Healthcare of Texas, 2001 U.S. Dist. LEXIS 8538 (N.D. Texas 2001).

See generally Furrow B.R. , “Managed Care Organizations and Patient Injury: Rethinking Liability,” Georgia Law Review, 31 (1997): 451–64;.

Havighurst C.C. , Health Care Law and Policy: Readings, Notes, and Questions, 2d ed. (New York: Foundation Press, 1998): 630–55.

See generally DiCicco D.C. Jr. , “HMO Liability for the Medical Negligence of Member Physicians,” Villanova Law Review, 43 (1998): 499–527, at 505–16.

Havighurst , supra note 81, at 1183–96.

Liang , supra note 54, at 48–56.

Petrovich v. Share Health Plan, 719 N.E.2d 756 (Ill. 1999).

Darling v. Charleston Community Memorial Hospital, 211 N.E.2d 253 (Ill. 1965).

See, e.g., Pedroza v. Bryant, 677 P.2d 166 (Wash. 1984) (en banc).

Elam v. College Park Hospital, 183 Cal. Rptr. 156, 165 (Cal. Ct. App. 1982).

Insinga v. LaBella, 543 So. 2d 209, 211 (Fla. 1989).

Johnson v. Misericordia Community Hospital, 301 N.W.2d 156, 164 (Wis. 1981).

Rodriguez v. Miriam Hospital, 623 A.2d 456, 462–63 (R.I. 1993).

See, e.g., Thompson v. Nason Hospital, 591 A.2d 703, 707 (Pa. 1991).

Denton Regional Medical Center v. LaCroix, 947 S.W.2d 941, 950 (Tex. App. 1997). But see Gafner v. Down East Community Hospital, 735 A.2d 969, 979–80 (Me. 1999) (court declined to recognize a theory of hospital corporate liability for the failure to have explicit policies in place controlling the actions of independent physicians, noting that the area is “replete with the possibility of unexpected or unintended consequences,” implicating quality of care and economic considerations).

Jones v. Chicago HMO, 730 N.E.2d 1119 (Ill. 2000).

See also Shannon v. McNulty, 718 A.2d 828 (Pa. Super. Ct. 1998).

See, e.g., Havighurst , supra note 36.

Boyd v. Albert Einstein Medical Center, 547 A.2d 1229 (Pa. Super. Ct. 1988).

See also McClellan v. HMO, 604 A.2d 1053 (Pa. Super. Ct. 1992) (facts sufficient to withstand a demurrer on the issues of whether the patient relied on the HMO to provide care and whether the HMO held the physician out as its employee).

Decker v. Saini, No. 88-371768 NH, 1991 WL 277590, at *4 (Mich. Cir. Ct. September 17, 1991) (holding independent practice association-model HMO to ostensible agency principles).

Dunn v. Praiss, 656 A.2d 413 (N.J. 1995) (recognizing liability based on respondeat superior, vicarious liability, and contract)

But see, e.g., Chase v. Independent Practice Association, Inc., 583 N.E.2d 251 (Mass. App. Ct. 1991) (finding independent practice association did not retain right to control physician, nor was there evidence establishing apparent or ostensible agency).

Petrovich, 719 N.E.2d at 762, citing Ill. Rev. Stat. 1991, ch. 111 1/2, para. 1402(9), now 215 Ill. Comp. Stat. Ann. 125/1-2(9) (West 1998).

Id. at 763–64, citing 215 Ill. Comp. Stat. Ann. 125/1-2(7) (West 1998).

Id. at 764.

Id.

Id.

Gilbert v. Sycamore Municipal Hospital, 622 N.E.2d 788 (Ill. 1993).

Petrovich, 719 N.E.2d at 766.

Id. at 767.

Id. at 769.

Id. at 770, citing John Gabel Manufacturing Co. v. Murphy, 62 N.E.2d 401 (Ill. 1945).

Id. at 771.

Id

As noted above, this issue is currently being debated in other contexts as well. See notes 76 and 77 and their accompanying text, supra.

Id. at 771.

Id.

Id. at 773.

Id.

Id. Compare with Chase v. Independent Practice Association, 583 N.E.2d 251, 254 (Mass. App. Ct. 1991) (independent practice association, functioning in effect as a third-party broker, arranging for services for plan members, did not “control” the professional activities of the defendant doctor, even though the association did have some utilization-management and cost-control responsibilities).

Petrovich, 719 N.E.2d at 774. The court distinguished this quality assurance program from the purely retrospective records review of a hospital peer review process.

Id.

Id. at 774–75.

Raglin v. HMO Illinois, Inc., 595 N.E.2d 153 (Ill. App. Ct. 1992).

See notes 61–69 and their accompanying text, supra.

Havighurst , supra note 36, at 24 n.67.

Id.

Morreim E.H. , “Confusion in the Courts: Managed Care Financial Structures and Their Impact on Medical Care,” Tort and Insurance Law Journal, 35 (2000): 699.

See notes 76 and 77 and their accompanying text, supra.

See Studdert , supra note 44, at 24 (concluding that “the direct costs of liability are uncertain but that the prospects of litigation may have other important effects on coverage decision making, information exchange, risk contracting, and the extent of employers' involvement in health coverage”);.

Danzon P. , supra note 41, at 514 (opining that imposition of vicarious liability on plans may increase litigation costs and/or findings of liability, thereby obstructing the evolution toward more efficient forms of health insurance and delivery).

Jones, 730 N.E.2d at 1123–24.

Darling v. Charleston Community Memorial Hospital, 211 N.E.2d 253 (Ill. 1965).

Jones, 730 N.E.2d at 1128

citing Darling, 211 N.E.2d at 257.

Shannon v. McNulty, 718 A.2d 828 (Pa. Super. Ct. 1998).

Jones, 730 N.E.2d at 1128–29.

Id. at 1129.

Id. at 1131–32.

Id. at 1133.

Id. at 1134 (citations omitted).

Id.

It is not clear whether the HMO would have a duty to ascertain the entire number of patients assigned to the physician by all payers. In this case, Dr. Jordan had over 1,500 additional patients from plans other than Chicago HMO.

Jones, 730 N.E.2d at 1134.

Id., citing Petrovich, 719 N.E.2d at 764.

Robinson J. , “The End of Managed Care,” JAMA, 285 (2001): 2622–28.

Id.