# Petition for Writ of Certiorari — Corcoran v. United Healthcare, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1370%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1992 - **Citation:** 506 U.S. 1033 ## Text aad - 92-547 | NO | SEP 23 Wade In the Supreme Court of the United States OCTOBER TERM, 1992 FLORENCE B. CORCORAN, WIFE OF/AND WAYNE D. CORCORAN Petitioners Vv. UNITED HEALTHCARE, INC. AND BLUE CROSS AND BLUE SHIELD OF ALABAMA, INC. Respondent PETITION FOR A WRIT OF CERTIORARI SCOTT LaBARRE Gauthier & Murphy 3500 North Hullen Street Metairie, Louisiana 70002 Telephone: (504) 456-8600 A B Letter Service, Inc., 327 Chartres St., New Orleans, La. (504) 581-5555 ¢ ; . i QUESTIONS PRESENTED 1. Whether § 514(a) of the Employee Income Security Act (“ERISA’”’), 29 USC § 1144(a), preempts state law causes of action for the wrongful death of an unborn child based on medical negligence? 2. Whether § 502(a)(3) of ERISA, 29 USC § 1132(a)(3), permits plan beneficiaries to recover extracon- tractual damages for the wrongful death of their unborn child due to the medical negligence of a plan fiduciary? il PARTIES TO THE PROCEEDINGS Florence Corcoran Wayne Corcoran United HealthCare Incorporated Blue Cross and Blue Shield of Alabama, Inc. iil TABLE OF CONTENTS QUESTIONS PRESENTED PARTIES TO THE PROCEEDINGS pe OP Se) 8 vy 4 yy. TABLE OF AUTHORITIES ..... ee | OPINIONS BELOW. JURISDICTIONAL STATEMENT ....... Page No. li ill STATUTES AND REGULATIONS INVOLVED ..... x STATEMENT OF THE CASE ............. REASONS FOR GRANTING THE WRIT... I. II. TO RESOLVE A CONFLICT IN THE CIRCUITS OVER WHETHER PRO- FESSIONAL MALPRACTICE AC- TIONS SUCH AS THIS ONE ARE PREEMPTED BY 29 USC § 1144(a) . THE FIFTH CIRCUIT’S DECISION CONFLICTS WITH 1) THIS COURT’S PRIOR DECISIONS CON- STRUING 29 USC § 1144(a), AND 2) THE LEGISLATIVE PURPOSE EM- BODIED IN ERISA...... ese iv TABLE OF CONTENTS (continued) Page No. Ill. TO RESOLVE A SPLIT IN THE CIR- CUITS OVER WHETHER EXTRACON- TRACTUAL MONEY DAMAGES ARE RECOVERABLE UNDER 29 USC § 1332(a)(3)(B) AS “OTHER AP- PROPRIATE EQUITABLE RELIEF” ..... 18 PEE ees wd ar ee eee 27 APPENDIX I BN sev vena: Ficca cea ehh eae me ..A-1 PN 5S ar cca Ae ee ee A-39 fk I rn re ee ern rary re ers A-48 PE Ga eee eee ee ee ....A-5l ET 5s os, wea ee eo Poe ae A-53 PE i A EO re Cee ee eee eee A-54 Vv TABLE OF AUTHORITIES CASES: Page No. Albemarle Paper Co. v. Moody, 422 U.S. 405, 418, 96 S.Ct. 2973 (1975) ..... 2. ec eee. Pee: Albert Einstein Medical Center v. Action Manu- facturing Company, 697 F.Supp. 883, 885 (E.D. ee ree ere 13 Alessi v. Raybestos-Manhattan, Inc., 451 U.S.504, §22, 101 S.Ct. 1895, 1905 (1981) ............... 15 Bishop v. Osborn Transp., Inc., 838 F.2d 1173 (11th Cir.), cert. denied, 488 U.S. 832, 109 S.Ct. 90, 102 L.Ed.3d 66 (1968)... ..... 22... cece 19 Cipolione v. Liggett Group, Inc., __.. U.S. ___, nacumety LAM . BOO, Owe LIGSL). cs on ec eee 16 Danos v. St. Pierre, 402 So.2d 633 (La. 1981) ........ 10 Drinkwater v. Metropolitan Life Ins. Co., 846 F.2d 821 (1st Cir.), cert. denied, 488 U.S. 909, 109 S.Ct. 261, 102 L.Bd.2a 369 (1966)... 2 6 6 iv cee eens .19 Firestone Tire and Rubber Company v. Bruch, 489 US. » 100 BAK. OSS COO .. «ob eens tens 17,24 Fort Halifax Packing Co., Inc. v. Coyne, 482 U.S. 1, B, TOT DAS. TRAE Bere Cee oe ho ee eevee 15 Franklin v. Gwinnett County Public Schools, U.S. —__, 112 S.Ct. 1026, 1033 (1907) ............ 26 vi TABLE OF AUTHORITIES (continued) CASES: Page No. Green v. Walker, 910 F.2d 291, 296 (5th Cir. 1990) ...11 Harsch v. Eisenberg, 956 F.2d 651 (7th Cir. 1992), petition for cert. filed, 60 U.S.L.W. (U.S. May 11, 1992) (no. 91-1835) .............. oer ae, 19 Independence HMO, Inc. v. Smith, 733 F.Supp. 983 (.D. Pa. 1000)......... RAM Teter se rae 13 Ingersoll-Rand Co. v. McClendon, 498 U.S. umns 111 S.Ct. 478, 462 (11900)... ...... ..15, 23-25 Mackey v. Lanier Collections Agency & Service, 486 U.S. 825, 108 S.Ct. 2182 (1988) .............12,14,18 Massachusetts Mutusl Life Ins. Co. v. Russell, 473 U.S. 134, 105 S.Ct. 3085 (1985) ...............18-24 Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 738, 740, 105 S.Ct. at 2380, 2388-9 NED hc 6 ee cs eh ee ee ee ae ees ee Novak v. Anderson Corp., 962 F.2d 757 (8th Cir. RR kine en eee ee eae ee eee oe 19 Painters of Philadelphia District Council No. 21 Welfare Fund v. Price Waterhouse, 879 F.2d 1146 gt eee ty Tre 11,12 frappas v. Buck Consultants, Inc., 923 F.2d 531 (7th Ot EAA ere Ast a Sng yh Ss a. 12 a Vil TABLE OF AUTHORITIES (continued) CASES: Page No. Pickett v. Cigna Healthplan of Texas, Inc., 742 F.Supp. 946 (S.D. Tex. 1990) . 7 12 Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 107 S.Ct. 1549 (1987) Mahe bree oats PS oanls 10,16 Pitre v. Opelousas General Hospital, 530 So.2d 1151, 1157 (La. 1988) | | eras i 10 Schultz v. National Coalition of Hispanic M.H.H.S. Org., 678 F.Supp. 936, 938 (D.D.C. 1988)..........15 Shaw v. Delta Airlines, Inc., 463 U.S. 85, 90, 103 OE Bee Be Chee oc Os ke oe ce ea be eee ee 15 Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 104 S.Ct. 615 (1984)... | | 16-17 Singer v. Black & Decker Corp., 964 F.2d 1449, Cig 8S i er Sokol v. Bernstein, 803 F.2d 532 (9th Cir. 1986)......19 Walters v. Marathon Oil Co., 642 F.2d 1098, 1100 (7th Cir. 1982).... rep paar . , 26-27 Warren v. Society Nat. Bank, 905 F.2d 975 (6th Cir. 1990), cert. denied, 11] S.Ct. 2256 (1991) .... ee Pee ... es O21, 24,26 viil STATUTES: Page No. 29 USC § 1132(a)(3B)............. v1i,6,7,9,16,18-24,26 ee re ko SE ee Be Ue @ bi6e Oe). i... oe x,10,11,14,15,16,18,25 sce he a eo eee OTHER AUTHORITIES: Page No. Gregory, “The Scope of ERISA Preemption of State Law: A Study of Effective Federalism,’’ 48 U. Pitt. Law Rev. 427, 457 (1987) .............. Mellas, Adopting the Judicial Approach to Medical Malpractice Claims Against Physicians to Reflect Medicare Cost Containment Measures, 62 U.Colo.L.Rev. 287, 316 (1991) ................. Note, Paying the Piper: Third Party Payor Liability for Medical Treatment Decisions, 25 Ga.L.Rev. eng TEE CERN Ss site he ce ee ees cee aa ks Note, ‘‘Participant and Beneficiary Remedies Under ERISA: Extracontractual and Punitive Damages After Massachusetts Mutual Life Ins. Co. v. Russell,’’ 71 Cornell Law Review 1014, 1226 Pare ene ayaa aie Say ye ne en U.S. Dep’t of Labor, Labor Management Services Admin., Pension and Welfare Benefits Programs, Estimates of Participant and_ Financial Characteristics of Private Pension Plans at 1 Ds eee ik) pe ae ae ee Ra ein ix OTHER AUTHORITIES: (continued) Page No. U.S. Dep’t. of Labor, Bureau of Labor Statistics, Employee Benefits in Medium and Large Firms, Se ee ee ee ee ei ks 8 4 Health and Population Study Center, Battelle Human Affairs Research Centers, Employee Welfare Benefits Plans and Plan Sponsors in the Private Nonfarm Sector in the United States, Pr te re a as Se a x OPINIONS BELOW The opinion of the United States Court of Appeals for the Fifth Circuit is reported at 965 F.2d 1321 (5th Cir. 1992), and is reproduced in the appendix at A-1 - A-38, The minute entry of the United States District Court for the Eastern District of Louisiana granting summary judgment to Respondent on preemption grounds, and that Court s minute entry denying Petitioners’ motion for reconsidera- tion pursuant to Federal Rule of Civil procedure 59 are unreported, and are reproduced in the appendix at A-48. JURISDICTIONIONAL STATEMENT The judgment of the Court of Appeals for the Fifth Circuit was entered on June 26, 1992. This Court has jurisdiction under 28 USC § 1254(1). STATUTES AND REGULATIONS INVOLVED This case involves §§ 502(a) and 514(a) of the Employee Retirement Income Security Act of 1974 (“ERISA’’), as amended, 29 USC §§ 1132(a), 1144(a) (1990), and Louisiana Civil Code article 2315. These provisions are reproduced in the appendix at A-51 - A-54. 1 STATEMENT OF THE CASE This case raises two related questions concerning the effect of ERISA on the quality of health care provided through employee benefits plans established pursuant to ERISA. The Petitioners, Wayne and Florence Corcoran, alleged that the medical negligence of United HealthCare, Inc. caused the wrongful death of their unborn son, Lloyd. The Court of Appeals for the Fifth Circuit concluded that, although there was evidence that ‘‘a serious mistake”’ had been made, ERISA afforded the Corcorans neither a state nor federal remedy for medical malpractice — in essence holding that when Congress passed ERISA in 1974, it in- tended to deprive beneficiaries of their state law causes of action for medical negligence, and all remedies for wrongful death occasioned by such negligence. The Fifth Circuit’s conclusion is clearly at odds with Congress’ express legislative purpose of securing employee rights in their pension plans, 29 USC § 1001, and results from an overly broad construction and application of ERISA’s preemption provision without adequate regard for the purpose of the statute as a whole and its other provisions. 1. In approximately February, 1989, petitioner, Florence Corcoran, became pregnant with what would have been her third child. Mrs. Corcoran was an employee of South Central Bell at the time, and was covered by a health plan funded by Bell and administered by Blue Cross and Blue Shield of Alabama, Inc. Several medical factors made Mrs. Corcoran’s third pregnancy a complicated and dif- ficult one. Dr. Jason Collins, her obstetrician, felt that the pregnancy was sufficiently complicated to require Mrs. Corcoran to have complete bed rest during the final months of the pregnancy. 2 This was not Mrs. Corcoran’s first high risk pregnan- cy. Her daughter, Amanda, aged six months, was also the result of a high risk pregnancy. Dr. Collins was Mrs. Cor- coran’s treating obstetrician for that pregnancy, and was well acquainted with the medical problems posed by Mrs. Corcoran’s condition. As Mrs. Corcoran approached her delivery date, Dr. Collins ordered her hospitalized so her condition could be monitored around the clock. This was precisely the same course of action he had taken during her previous pregnan- cy, which resulted in the healthy birth — albeit by caesarean section — of Amanda Corcoran. One component of the Blue Cross insurance plan was known as the Quality Care Program (‘‘QCP’’), which was operated by defendant, United HealthCare, Inc. United HealthCare, Inc. contracted with Blue Cross to provide this service, which was essentially a medical review or utilization review service. Mrs. Corcoran was a member of the Quality Care Program during the pregnancy at issue. United HealthCare set forth the features of the Quality Care Program in a booklet. On page 1 of that booklet, United HealthCare made the following representa- tions concerning the services provided to members of the program, such as Florence Corcoran: WHAT QCP DOES Whenever your doctor recommends surgery or hospitalization for you or a covered dependent, QCP will provide an independent review of your condition (or your covered dependent’s). The pur- pose of the review is to assess the need for the surgery or hospitalization and to determine the appropriate length of stay for a hospitalization, 3 based on nationally accepted medical guidelines. As part of the review process, QCP will discuss with your doctor the appropriateness of the treatments recommended and the availability of alternative types of treatments - or locations for treatment - that are equally effective, involve less risk, and are more cost effective. INDEPENDENT, PROFESSIONAL REVIEW United HealthCare, an independent professional medical review organization, has been engaged to provide services under QCP. United’s staff in- cludes doctors, nurses, and other medical profes- sionals knowledgeable about the health care delivery system. Together with your doctor, they work to assure that you and your covered family members receive the most appropriate medical care. Similar representations are made at page 2 of the booklet, in response to the query ‘““What does It Do?”’: Provides independent, professional review when hospitalization is recommended — to assist you in making an enlightened decision regarding your treatment. (emphasis added). In the same section, the participant is in- formed that failure to follow the medical advice of United HealthCare could result in increased health risks. Elsewhere in the booklet, United HealthCare informs participants that much of the care recommended by their own doctors is unnecessary. For example, at pages 5 and 6 of the booklet, in a section entitled, ‘Quality Care’ The What and The Why’, the following information is provided: 4 ONE-THIRD OF SURGERY MAY BE UNNECESSARY Recent studies suggest about one-third of all surgery performed in the U.S. may be medically necessary. Why is there all this unnecessary surgery? UNNECESSARY HOSPITAL STAYS It used to be that the hospital was the only place for many kinds of treatments and tests. That’s not the case any longer. Today, many kinds of treatments — even many surgeries — can be per- formed in a doctor’s office or a free-standing clinic. The advantage? You’re in and out the same day and there’s no hospital stay which can be dangerous and can cost as much as $300 per day just for room and board. Review by United HealthCare is not elective. At page 8 of the QCP booklet, United HealthCare plainly states that it must be called as a condition of every propos- ed hospitalization, so that United HealthCare could pre- certify the treatment to be received. Pursuant to these pro- visions, United HealthCare was notified when Dr. Collins ordered Mrs. Corcoran to be hospitalized for the remainder of her pregnancy. Upon notification, United HealthCare made its own determination of Mrs. Corcoran’s medical needs. It deter- mined that hospitalization was not medically necessary, despite the fact that the same course of treatment had proved successful during Mrs. Corcoran’s prior pregnancy, and despite the further fact that two medical doctors — Dr. Collins and independent medical examiner, Dr. Ward, hired by South Central Bell! — agreed that Mrs. Corcoran’s 1 When Dr. Collins first ordered bed rest for Mrs. Corcoran, she applied namie 5 medical condition was dangerous. Indeed, Dr. Ward ex- plicitly stated that Dr. Collins’ recommendation should be followed. Dr. Collins personally and specifically advised personnel of United HealthCare that, if Mrs. Corcoran were not hospitalized as he had ordered, both she and her baby could die. Nevertheless, United HealthCare made the medical judgment that 10 hours of home nursing care a day would be adequate treatment for Mrs. Corcoran’s condition. Consequently, Mrs. Corcoran was discharged from the hospital on October 12, 1989. On October 25, 1989, dur- ing a period of time when no home nurse was on duty, the Corcorans’ unborn son went into distress and ultimately died. Dr. Collins believed that, had the fetus been monitored around the clock as he had ordered, he would have been able to intervene and save the child, as he had done the year before when the same thing happened to Amanda. 2. The Corcorans brought this wrongful death action alleging medical negligence in Louisiana state court. The Corcorans contended that United HealthCare, through the statements made in the QCP booklet, held itself out as a medical professional, and that its negligent medical judg- ment subjected it to tort liability for Lloyd’s death under Louisiana tort law. The Corcorans distinguished United HealthCare’s actions as a medical professional from those undertaken as an ERISA plan administrator. The suit was not premised on improper claims processing or coverage determination, but rather upon United HealthCare’s Footnote 1 continued. for temporary disability benefits, which Bell promptly denied. When Dr. Collins complained that no obstetrician was on the benefits review panel, Bell secretly sent her file to Dr. Ward for review. Even though Dr. Ward agreed with Dr. Collins, Bell did not pay disability benefits until Lloyd died. 6 negligence in failing to determine the appropriate medical care for Mrs. Corcoran. The Corcorans sought damages for the lost love and affection of their son, as well as medical expenses, lost wages and general damages for Mrs. Cor- coran’s depression triggered by Lloyd’s wrongful death. United Healthcare removed the suit to the United States District Court for the Eastern District of Louisiana, and pled ERISA preemption as a defense. United Healthcare then moved for summary judgment. 3. The district court granted summary judgment in favor of United Healthcare on preemption grounds. Without actually analyzing the nature and source of the Corcorans’ claim, the district court held that ‘“‘but for the ERISA plan, the defendants would have played no role in Mrs. Corcoran’s pregnancy,” and thus held the claim preempted because it ‘‘related to’’ an ERISA plan. The Corcorans then moved for reconsideration on the grounds that the preempted remedies were available as ‘other appropriate equitable relief,’’ pursuant to 29 USC § 1132 (a)(3), for violations by ERISA fiduciaries of their responsibilities under the plan. A contrary conclusion would leave the Corcorans without a remedy for the wrongful death of their son, a result directly at odds with ERISA’s stated purpose of protecting employees and their families. The district court denied the motion, holding that the only monetary relief recoverable under ERISA was ‘medical expenses covered by the plan’’; that is, contrac- tual damages. Further, the court appeared to conclude that United Healthcare had no substantive duty to make cor- rect medical decisions, and thus could not be responsible for damages in any event. The Corcorans appealed to the Fifth Circuit. EEE EE en 7 4. The Court of Appeals affirmed in a lengthy and detailed opinion. Finding the facts to be undisputed, the Fifth Circuit agreed with the Corcorans’ position that United HealthCare made medical decisions and gave medical advice concerning appropriate care for Mrs. Cor- coran in the last month of her pregnancy. Further, the court recognized that the context in which such medical ad- vice was given — a prospective utilization review — was calculated to induce reliance by the participant upon the advice. The court noted and discussed the coercive effect such a procedure produces, and is designed to produce. Finally, the court acknowledged evidence that a serious medical mistake resulted in the death of Lloyd Corcoran. Nevertheless, the Fifth Circuit held that the Cor- corans’ medical malpractice claim against United HealthCare was preempted because it ‘‘related to’’ an ERISA plan. The court felt that United HealthCare’s medical decision-making was too closely intertwined with its coverage determinations to avoid preemption. The court also determined that compensatory money damages were unavailable under 29 USC § 1132(a)(3). Although the court suggested that an award of money damages would be ap- propriate in certain cases as ‘“‘make whole’’ relief, and would not conflict with the legislative purposes of ERISA, it concluded that the type of damages sought by the Cor- corans was not recoverable. The court acknowledged that its result left the Corcorans without a remedy for the wrongful death of their son. The Court of Appeal found its holding ‘‘troubling”’ for several reasons. First, it realized that the absence of a damage remedy for medical negligence eliminated an im- portant check on substandard medical decisions. Second, it exacerbated the inherent tension between the beneficiary and the plan over entitlement to plan funds (although the a) .e) court also acknowledged that liability in this case would not compromise plan funds, since United HealthCare would be directly responsible), and further tilted the scales in favor of the plan. Finally, the court believed that the widespread institution of prospective utilization review programs, subsequent to ERISA’s enactment and operating in a field where no liability rules applied to deter negligent conduct, undermined ERISA’s purpose of protec- ting beneficiaries. The Corcorans now seek review of the court’s decision. REASONS FOR GRANTING THE WRIT As the current presidential campaign reflects, health care and the current system for providing it are issues of national importance. Much of the health care received by Americans is provided through health plans established as part of a benefit plan governed by ERISA. Studies by the Department of Labor indicate that in the United States there are approximately 500,000 private pension plans, which alone cover over 50,000,000 individuals, as well as an estimated 1.6 million sponsors of private employee welfare benefit plans. See U.S. Dep’t of Labor, Labor Management Services Admin., Pension and Welfare Benefits Programs, Estimates of Participant and Financial Characteristics of Private Pension Plans at 1 (1983); 4 Health and Population Study Center, Battelle Human Affairs Research Centers, Employee Welfare Benefits Plans and Plan Sponsors in the Private Nonfarm Sector in the United States, 1978-79 at 24 (1980). More recently, it has been estimated that 81% of all workers in medium and large firms were covered by at least one retirement plan in 1989. See U.S. Dep't. of Labor, Bureau of Labor Statistics, Employee Benefits in Medium and Large Firms, 1989 at 2 (1990). The Court of Appeals held that there is no remedy aa aan intact ital 9 available for the consequences of negligent medical judgments made by those affiliated with ERISA plans. In other words, under ERISA liability rules are ‘generally in- applicable’ to acts of medical malpractice. The Court of Appeals recognized that its holding would have a deleterious effect on the quality of health care provided under the auspices of ERISA plans, because liability rules are one deterrent to arbitrary medical decision-making. Note, Paying the Piper: Third Party Payor Liability for Medical Treatment Decisions, 25 Ga.L.Rev. 861, 907-11 (1991) (arguing that without liability for negligence in utilization review decisions, third party payors have incen- tives to control costs but not to use reasonable care in the decision making process); Mellas, Adopting the Judicial Approach to Medical Malpractice Claims Against Physi- cians to Reflect Medicare Cost Containment Measures, 62 U.Colo.L.Rev. 287, 316 (1991) (liability will reduce possibility that poor medical decisions will be made in order to cut costs). When one recalls the vast number of Americans covered by benefit plans, many if not most with health plan components, it becomes evident that the issue presented in this case — whether state or federal law pro- vides a remedy for medical negligence committed by an ERISA fiduciary — is one of pressing national significance. There is a split in authority over whether ERISA preempts professional malpractice claims. The Fifth Cir- cuit said yes in this case, but the Third Circuit and the Seventh Circuit have indicated otherwise. Several district courts have held that ERISA does not preempt medical negligence claims. The Courts of Appeals are also divided over whether § 1132(a)(3) authorizes an award of money damages as ‘other appropriate equitable relief.’’ The Sixth Circut held such relief was permitted where necessary to do complete justice, but numerous other circuits have disagreed. This 10 issue is ripe for resolution, but it only becomes pressing in this case if the Petitioners’ tort claims are held preempted. Both issues present the critical question whether ERISA allows a remedy for wrongful death due to the medical negligence of an ERISA fiduciary, and its answer will substantively impact the quality of health care received in America today. I. | TORESOLVE A CONFLICT IN THE CIR- CUITS OVER WHETHER PROFES. SIONAL MALPRACTICE ACTIONS SUCH AS THIS ONE ARE PREEMPTED BY 29 USC § 1144(a) The Fifth Circuit characterized the Corcorans’ claim as one for ‘‘malpractice,’’ and expressly concluded that United HealthCare’s actions with regard to Florence Cor- coran constituted medical decision-making. In so holding, the Court of Appeals specifically rejected United HealthCare’s position, maintained throughout this litiga- tion, that it did nothing more than process the Corcorans’ claim for health benefits, and that consequently the suit should be summarily dismissed under Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 107 S.Ct. 1549 (1987), as one for im- proper claim processing. The Fifth Circuit further noted that Louisiana law did not foreclose a tort action for malpractice against a utilization review company such as United HealthCare that dispensed erroneous medical judgments.* However, the Court of Appeals held that any 2 Indeed, Louisiana law favors such a cause of action. Louisiana law already recognizes a cause of action under Louisiana Civil Code article 2315 for the wrongful death of an unborn fetus. Danos v. St. Pierre, 402 So.2d 633 (La. 1981). Moreover, Louisiana jurisprudence places heightened obligations upon those possessing medical skills. Pitre v. Opelousas General Hospital, 530 So.2d 1151, 1157 (La. 1988) (persons with medical expertise ‘‘owe a heavy moral obligation to use them carefully and to avoid foreseeable harm ...’’). Inasmuch as United HealthCare made specific representations of medical expertise to 1] state law causes of action for malpractice arising from United HealthCare’s negligent medical decisions were preempted by 29 USC § 1144(a). The Third Circut reached the opposite conclusion with respect to professional malpractice actions generally in Painters of Philadelphia District Council No. 21 Welfare Fund v. Price Waterhouse, 879 F.2d 1146 (3rd Cir. 1989). The plaintiff in Painters of Philadelphia was an employee welfare fund who brought an action under ERISA against the fund’s former auditor, the accounting firm of Price Waterhouse. The fund sought to hold Price Waterhouse liable for excessive fees charged in connection with audits performed for the fund. One of the fund's arguments was that, in the absence of an express cause of action for profes- sional malpractice under ERISA, the court should find an implied right of action for professional malpractice under ERISA. The fund’s implied right of action theory ap- parently was premised on its assumption that 29 USC § 1144(a) would preempt any state law malpractice action. The Third Circuit refused to find an implied right of action for professional malpractice under ERISA. 879 F.2d at 1153. The court first found that an implied right of ac- tion was not consistent with ERISA’s legislative scheme. 987 F.2d at 1152. Then the court noted that ‘‘state law has traditionally prescribed the standards of professional liability and in the absence of clear indicia in the act or legislative history we are reluctant to ascribe to Congress an intention to intrude in this area.”’ Id. (emphasis added). Footnote 2 continued. Florence Corcoran, it follows as a matter of Louisiana law that its ac- tions should be judged by applicable medical standards of care. See also Green v. Walker, 910 F.2d 291, 296 (5th Cir. 1990) (person ‘‘held out to the world as skilled in a medical profession’’ has duty of due care) (apply- ing Louisiana law). 12 The court then addressed and rejected the fund’s argument that ERISA preempted ‘‘state professional malpractice claims as they related to ERISA.”’ 879 F.2d at 1153 n.7. Relying upon this Court’s decision in Mackey v. Lanier Collections Agency & Service, 486 U.S. 825, 108 S.Ct. 2182 (1988), which acknowledged that torts commit- ted by an ERISA plan were not preempted, 486 U.S. at 833, 108 S.Ct. at 2187, the Third Circuit stated: ... in the absence of an explicit corresponding pro- vision in ERISA allowing a professional malprac- tice cause of action, Conyress did not intend to preempt a whole panoply of state law in this area. Thus, we conclude that ERISA does not general- ly preempt state professional malpractice actions. Painters of Philadelphia, 879 F.2d at 1153 n.7 (emphasis added). The court premised its conclusion upon the facts that 1) professional malpractice liability was a matier of traditional state regulations, and 2) there was no ex’ it provision in ERISA to permit such actions under its .ovi- sion if state law were preempted.® Numerous district courts have concluded that medical malpractice actions are not preempted by ERISA. In Pickett v. Cigna Healthplan of Texas, Inc., 742 F.Supp. 946 (S.D. Tex. 1990), the court remanded a medical malpractice case brought against the administrator of an ERISA plan (Cigna) and three doctors, alleging no specific act of malpractice but rather claiming that a doctor rota- tion system devised by Cigna was an unreasonable medical 3 See also Pappas v. Buck Consultants, Inc., 923 F.2d 531 (7th Cir. 1991), where the Seventh Circuit relied in part on Painters of Philadelphia to conclude state law malpractice actions are not preemp- ted by ERISA. 13 procedure. The case had originally been brought in state court and was removed to federal court on the basis that it was actually an ERISA claim raising questions of plan ad- ministration. The district court remanded the case because it presented no question under ERISA but instead raised ‘‘a question of medical care not claims administration.” 742 F.Supp. at 946. The court recognized that Cigna, although an ERISA plan manager, was being sued for medical negligence, and that the suit sought tort damages which were unavilable under ERISA, and not plan benefits. The court plainly held that medical malpractice actions were not preempted by ERISA. In Independence HMO, Inc. v. Smith, 733 F.Supp. 983 (E.D. Pa. 1990), the court similarly concluded that a medical malpractice action brought by an ERISA plan beneficiary against her HMO, who was an ERISA plan fiduciary, was not preempted. The court concluded that the state law tort action did not ‘‘affect the scheme carefully devised by Congress in the ERISA statute,” 733 F.Supp. at 988, even though the claim was made by an ERISA plan beneficiary against an ERISA entity for negligent medical decisions. The court determined that: The congressional purpose underlying’ the breadth of ERISA’s preemption provision — to secure uniform federal laws regulating employee benefit plans — is not advanced by preemption of state common law claims which are not premised on the violation of duties imposed by ERISA. Id., quoting Albert Einstein Medical Center v. Action Manufacturing Company, 697 F.Supp. 883, 885 (E.D. Pa. 1988). This Court should grant a writ in this case to resolve 14 the conflict in the circuit courts over whether medical malpractice actions are preempted by ERISA, particularly in view of the impact the question has on the quality of health care received by Americans covered by ERISA plans. Il. THE FIFTH CIRCUIT'S DECISION CON- FLICTS WITH 1) THIS COURT'S PRIOR DECISIONS CONSTRUING 29 USC § 1144(a), AND 2) THE LEGISLATIVE PUR- POSE EMBODIED IN ERISA A second reason for granting the writ in this case is that the Fifth Circuit's decision that ERISA preempts a traditional state law tort claim like medical malpractice conflicts with this Court’s decision construing 29 USC § 1144 (a), and frustrates the legislative purpose in enacting ERISA. In Mackey, supra, 486 U.S. 825, 108 S.Ct. 2182 (1988), this Court considered whether ERISA § 514(a), 29 USC § 1144(a), preempted state garnishment laws as they applied to plan funds. In so doing, the Court identified a range of state law claims left undisturbed by ERISA, stating: ERISA plans may be sued in a second type of civil action, as well. These cases — lawsuits against ERISA plans for run-of-the-mill state-law claims such as unpaid rent, failure to pay creditors, or even torts committed by an ERISA plan — are relatively commonplace. Petitioners and the United States (appearing here as amicus curiae) concede that these suits, although ob- viously affecting and involving ERISA plans and their trustees, are not pre-empted by ERISA § 514(a). 486 U.S. at 833, 108 S.Ct. at 2187 (emphasis added). 15 The Mackey court, after noting that ERISA contain- ed a ‘‘sue and be sued”’ provision, held that state garnish- ment law was not preempted because to hold otherwise would produce an absurd result: an ERISA plan could be sued but a money judgment against it could not be col- lected. The Fifth Circuit’s decision, finding preemption of a run-of-the-mill tort claim for medical malpractice against an ERISA fiduciary, produces similarly absurd results. The Court of Appeals erred in failing to construe § 1144(a) in light of ERISA as a whole, notably § 1132(a)(3)(B), and the purposes for which it was enacted. Although § 1144(a) may be “‘conspicuous for its breadth,’ Ingersoll-Rand Co. v. McClendon, 498 U.S. ____, ____, 111 S.Ct. 478, 482 (1990), this Court has never applied it to frustrate the purposes of Congress in enacting ERISA.4 Whether or not a federal statute preempts state law depends upon ‘Congress’ intent in enacting the federal statute at issue.’ Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 738, 106 S.Ct. 2380, 2388 (1985); Fort Halifax Packing Co., Inc. v. Coyne, 482 U.S. 1, 8, 107 S.Ct. 2211, 2216 (1987). Congress enacted ERISA “to promote the interests of employees and their beneficiaries in employee benefits plans.’’ 29 USC § 1001; Shaw v. Delta Airlines, Inc., 463 U.S. 85, 90, 103 S.Ct. 2890, 2896 (1983). The preemption analysis ‘“‘must be guided by respect for the separate spheres of governmental authority preserved in our federalist system.’’ A/essi v. Raybestos- Manhattan, Inc., 451 U.S. 504, 522, 101 S.Ct. 1895, 1905 (1981). In this regard, the Court must presume that Con- 4 Or as one district judge succinctly stated, “the cases stressing the broad reach of ERISA preemption clause also stress that common sense should not be left at the courthouse door.’’ Schultz v. National Coalition of Hispanic M.H.H.S. Org., 678 F.supp. 936, 938 (D.D.C. 1988). 16 gress did not intend to preempt areas of traditional state regulation. Metropolitan Life, supra, 471 U.S. at 740, 105 S.Ct. at 2389. The preemption provision must not be read in a vacuum. This Court has explained that ‘‘in expounding a statute, [it] must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.”’ Pilot Life, 481 U.S. at 51; 107 S.Ct. at 1555 (1987). Accordingly, § 1144(a) must be read in light of the statute as a whole — including the remedies available at § 1132(a)(3)(B), and those not available — in order for it to be applied in a manner consis- tent with Congress’ intent to pretect the rights and welfare of beneficiaries. The Fifth Circuit concluded that ERISA provided no remedy for wrongful death due to medical negligence under § 1132(a)(3)(B). If correct, that conclusion strongly sug- gests that Congress did not intend to preempt state law medical malpractice claims. In Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 104 S.Ct. 615 (1984), this Court held that the Atomic Energy Act did not preempt state law punitive damage claims, even though Congress intended through the Act to establish nuclear regulation and safety as a solely federal concern. In holding state tort claims not preempted, the Court relied heavily on the absence of any federal remedy for persons injured by conduct governed by the Act. Justice White wrote, ‘“‘[i]t is difficult to believe that Congress would, without comment, remove all means of judicial recourse for those injured by illegal conduct.”’ Silkwood, 464 U.S. at 251, 104 S.Ct. at 623. See also Cipollone v. Liggett Group, Inc., ___, U.S. ___, ___, 112 S.Ct. 2608, 2628, 112 (1991) (BLACKMUN, J., concurring in part and dissenting in part) (‘‘The Court in the past has hesitated to find preemption where federal law provides no 17 comparable remedy’’). The same difficulty described in Silkwood obtains in this case. It is difficult to believe that Congress, who sought to protect beneficiaries like the Corcorans through ERISA, intended to deprive them of all remedies for wrongful death due to medical negligence. There is no sug- gestion in the legislative history of ERISA that Congress intended to make medical malpractice one of the acceptable costs of securing workers’ pension plan rights. Congress’ failure to provide a remedy for medical negligence under ERISA reinforces the initial presumption that Congress did not intend to preempt traditional state control of the field of medicine. Nor is this conclusion altered by the fact that ERISA contains a civil enforcement scheme. This Court has characterized the ERISA enforcement scheme as ‘““comprehensive,’’ and so it may be where an entitlement to plan benefits is concerned. But the Corcorans’ claim lies beyond the pale of the ERISA enforcement scheme. The Corcorans do not seek plan benefits, but rather an award of money damages for wrongful death, previously available under state law prior to ERISA’s enactment, and, accord- ingly to the Fifth Circuit, not recoverable under ERISA.° Moreover, the Atomic Energy Act at issue in Silkwood, supra, also contained a civil enforcement scheme, but this Court rejected the argument, advanced by the United States as amicus curiae, that state law tort claims were preempted because they conflicted with that scheme. The Court found no such conflict in Silkwood, and there is none 5 This Court in Firestone Tire and Rubber Company v. Bruch, 489 U.S. ____, 109 S.Ct. 948 (1989), cautioned against a construction of ERISA that would ‘afford less protection to employees and their beneficiaries than they enjoyed before ERISA was enacted.”’ 109 S.Ct. at 956. The Fifth Circuit’s decision does just that. 18 in this case. An application of § 1144(a) in this case consistent with the legislative purpose of ERISA, the remedies authorized by § 1132(a)(3)(B), and the presumption against preemption of traditional state areas of control such as medical and tort law, results in the conclusion that Peti- tioners’ claim for medical malpractice must not be pre- empted. Indeed, United HealthCare apparently con- templated the potential for malpractice suits against it for, as the Fifth Circuit noted at 965 F.2d 1338 n.20, its con- tract with Blue Cross provided that it would bear the cost of its negligence. Accordingly, the Petitioners’ claim does not threaten any fund assets. This case falls within the dicta in Mackey that state law claims like torts committed by an ERISA plan — here the tort of medical malpractice — are not preempted. To hold otherwise frustrates Congress’ purpose of protecting worker's rights. III. TO RESOLVE A SPLIT IN THE CIR- CUITS OVER WHETHER EXTRACON- TRACTUAL MONEY DAMAGES ARE RECOVERABLE UNDER 29 USC § 1332(a(3(B) AS “OTHER APPROPRIATE EQUITABLE Re&LiEF” If the Fifth Circuit properly concluded that Peti- tioners’ medical negligence claims were preempted, then this application squarely presents the question specifically reserved by this Court in Massachusetts Mutual Life Ins. Co. v. Russell, 473 U.S. 134, 105 S.Ct. 3085 (1985): whether extracontractual money damages are available as ‘‘other appropriate equitable relief’’ under 29 USC § 1132(a)(3)(B). The lower courts are divided over the question. The 19 Sixth Circuit held such damages were available in Warren v. Society Nat. Bank, 905 F.2d 975 (6th Cir. 1990), cert. denied, 111 S.Ct. 2256 (1991). Every other circuit which has considered the question determined that such extracon- tractual damages were available under ERISA. Drinkwater v. Metropolitan Life Ins. Co., 846 F.2d 821 (1st Cir.), cert. denied, 488 U.S. 909, 109 S.Ct. 261, 102 L.Ed.2d 249 (1988); Harsch v. Eisenberg, 956 F.2d 651 (7th Cir. 1992), petition for cert. filed, 60 U.S.L.W. (U.S. May 11, 1992) (no. 91-1835); Novak v. Anderson Corp., 962 F.2d 757 (8th Cir. 1992); Sokol v. Bernstein, 803 F.2d 532 (9th Cir. 1986); Bishop v. Osborn Transp., Inc., 838 F.2d 1173 (11th Cir.), cert. denied, 488 U.S. 832, 109 S.Ct. 90, 102 L.Ed.2d 66 (1988). The Fifth Circuit in this case did not decide the question because it concluded that, even if extracontrac- tual damages were available, the type of tort damages sought by petitioners would nevertheless be barred. 1. In Russell, supra, this Court held that extracon- tractual damages were unavailable under 29 USC § 1109, which authorized suits by beneficiaries or plans to recover for losses suffered by the plan. The Court specifically reserved the question whether such relief would be available under § 1132 (a)(3)(B) for a fiduciary’s breach of a duty owed to the beneficiary. Jd., 473 U.S. 139 n.5, 105 S.Ct. 3088 n.5. Four justices concurred in Russell, however, in an opinion by Justice Brennan, and indicated that the decision should not be applied beyond its narrow holding under § 1109. The concurrence explicitly stated that an ex- tension of the Court’s reasoning beyond § 1109 to support a conclusion, advanced by United HealthCare below, that extracontractual damages were nowhere authorized by ERISA would be ‘“‘simply incompatible with the structure, legislative history, and purposes of ERISA.” /d., 473 U.S. at 152, 105 S.Ct. at 3095 (Brennan, J., concurring). 20 Justice Brennan especially emphasized throughout his concurring opinion Congress’ intent to impose strict fiduciary obligations upon plan administrators. ERISA § 404(a), codified at 29 USC § 1104(a), provides in part that ‘“‘a fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and — (A) for the exclusive purpose of (i) pro- viding benefits to participants and beneficiaries.’’ The con- currence then analyzed the legislative history of ERISA, noting that ‘‘Congress intended federal courts to develop federal common law in fashioning the additional ‘ap- propriate equitable rellief’,’’ explicitly provided as a remedy under § 1132(a)(3). Russell, 473 U.S. 156, 105 S.Ct. 3097 (Brennan, J., concurring).6 Justice Brennan conclud- ed that extracontractual damages were available as ‘’ap- propriate equitable relief’’ under 29 USC § 1132(a) in ap- propriate cases for violations of the fiduciary respon- sibilities set fort at § 1104(a). In fashioning an appropriate remedy, Justice Bren- nan stated that courts should first look to trust law. Russell, 473 U.S. 157, 105 S.Ct. 3098. But he noted that to resort to trust law was not the only step, but merely the first in considering remedies. At footnote 17 of his opinion, Justice Brennan wrote: 17 The absence of such relief under tradi- tional trust law is not necessarily dispositive, however, because ‘‘in enacting ERISA, Congress made more exacting the requirements of the com- mon laws of trust relating to employee benefit funds.”’ 6 Federal courts may look to preempted state law in developing federal common law for ERISA. Singer v. Black & Decker Corp., 964 F.2d 1449, 1452-3 (4th Cir. 1992). | 21 (citations omitted; original emphasis). Such damages are necessary to make beneficiaries whole, especially if all state law causes of action providing relief have been preempted. The Sixth Circuit Court of Appeals in Warren, supra, relied extensively on Justice Brennan’s Russell concur- rence in expressly holding that § 1132(a)(3)(B) authorized extracontractual money damages as ‘other appropriate equitable relief.’’ The Warren court first noted that the Supreme Court in Russell expressly left open the question of extracontractual damages under § 1132(a)(3), Warren, 905 F.2d at 981, then proceeded to rely upon Justice Bren- nan’s concurring opinion in concluding they were available. Id., 905 F.2d at 982 (‘‘... a beneficiary is entitled to a remedy that will put him in the position he would have been in if the fiduciary had not committed a breach of trust, and ... such a remedy included monetary damages.’’). The Warren court also relied on Justice Brennan's opinion in Russell in determining the type of remedy to allow. 905 F.2d at 982. In concluding that § 1132(a)(3) authorized a payment of money damages, Judge Lively wrote: ..equitable relief includes monetary damages where required to afford complete relief. It is the histeric purposes of equity to secure complete justice, and courts may adjust their remedies so as to grant the necessary relief. Equitable relief may include monetary damages if necessary to do complete justice. The term ‘’other appropriate equitable relief” implies a broad range of remedies. We adhere to the principle ‘‘endorsed repeatedly ... by the federal judiciary,’’ that ‘“‘when Congress uses broad generalized language in a remedial statute, 22 and that language is not contravened by authoritative legislative history, a court should interpret the provision generously so as to effect- uate the important congressional goals.” Id. (citations omitted). Inasmuch as Congress enacted ERISA as a remedial statute to protect and advance the in- terests of workers and plan beneficiaries, a narrow con- struction of ERISA impedes Congressional intent that courts develop a federal common law to shape relief. See: Note, ‘Participant and Beneficiary Remedies Under ERISA: Extracontractual and Punitive Damages After Massachusetts Mutual Life Ins. Co. v. Russell,’’ 71 Cornell Law Review 1014, 1226 (1986). See also: Russell, supra, 473 U.S. 157, 103 S.Ct. 3098 (Congress intended the courts to undertake the process of delineating appropriate rights and remedies) (Brennan, J., concurring). A narrow construction of available remedies to ERISA beneficiaries under the Act would stand in ironic contrast to the broad application of the ERISA preemption clause, in that both have the effect of limiting the rights of the workers Congress sought to protect. The scholarly literature also supports a finding that extracontractual damages should be available under § 1132(a)(3), in the wake of Russell. See, generally, Note, supra, 71 Cornell Law Review, 1014-1036, July 1986, which concluded that extracontractual but not punitive damages under § 1132(a)(3) were consistent with the purposes and language of ERISA, and not foreclosed by Russell. Accord: Gregory, ‘““The Scope of ERISA Preemption of State Law: A Study of Effective Federalism,’ 48 U. Pitt. Law Rev. 427, 457 (1987). Gregory discusses the breadth of the preemption clause in the context of decisions limiting remedies under ERISA. His conclusion is that ‘if ERISA preempted all state law relating to employee benefit plans, 23 a dangerous vacuum would result.’ Gregory, supra, at 457 (emphasis added). If this court concludes that ERISA preempts plaintiffs’ state law wrongful death claim, this ‘dangerous vacuum”’ can only be filled by finding that ex- tracontractual damages are available in this case under 29 USC § 1132(a)(3). This Court denied an application for certiorari filed by the ERISA plan, 111 S.Ct. 2256 (1991), and the Solicitor General filed a brief on behalf of the United States endors- ing the Sixth Circuit's decision. In Ingersoll-Rand, supra, 498 U.S. ____, 111 S.Ct. 478 (1990), this Court considered § 1132 (a)(3) and clearly suggested that extracontractual money damages were recoverable thereunder. Although the Court in /ngersoll- Rand did not discuss in detail what remedies are available as ‘‘other appropriate equitable relief’’ under § 1132 (a)(3), the Court, in reversing the judgment below, held that ‘there is no basis in § 502(a)’s language for limiting ERISA actions to only those which seek ‘pension benefits’.”’ 111 S.Ct. at 486. The Court added: “‘it is cleer that the relief re- quested’’ — which included a prayer for compensatory damages — “‘is well within the power of federal courts to provide.” Jd. Thus, the Court acknowledged that remedies beyond benefits were available under § 1132 (a), and could include compensatory damages. The Courts of Appeals that have held extracontrac- tual damages unavailable under § 1132 (a)(3) have essential- ly applied the rationale of Russell, developed for a section authorizing suits to recover for plan losses, to § 1132 (a)(3), which authorizes suits for losses suffered by the beneficiary. Justice Brennan’s concurrence in Russell warned against this approach, noting that the sections serve different interests and warrant differing analyses. 24 Further, the holdings of these courts limit remedies under § 1132 (a)(3) to plan benefits and the traditional equitable remedies of injunction and declaratory relief (under the term ‘‘other appropriate equitable relief’’). This construction of the statute is implausible. First, this Court in Ingersoll-Rand plainly stated that the language of § 1132(a) could not be limited to provide only for benefits as a remedy, intimating a broader range of remedies. Second, this construction of the ‘“‘other ap- propriate equitable relief’ language virtually reads it out of the statute. § 1132 (a)(1)(B) authorizes declaratory judg- ment actions and coercive relief by providing that any par- ticipant or beneficiary may bring suit ‘‘to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.’ In addition, § 1132(a)(3)(B) authorizes courts ‘‘to enjoin any act or prac- tice which violates any provision of this [title] or the terms of the plan.’’ Thus, the phrase ‘‘other appropriate equitable relief.’’ if it is to have any significance, must authorize equitable remedies in addition to injunctions and declaratory judgments. Finally, the statute’s heavy reliance on principles of trust law, recognized by this Court in Firestone, 489 U.S. at , 109 S.Ct. at 954, forecloses a reading of § 1132(a)(3) which does not at least include ‘‘make whole’’ relief, for the reasons set forth by Justice-Brennan in his Russell concur- rence, and by Warren. Thus, the Sixth Circuit in Warren correctly determined that an award of money damages is available under 29 USC § 1132(a)(3). 2. The range of remedies available under § 1132(a)(3) as ‘‘other appropriate equitable relief’’ should include, in a wrongful death action due to a fiduciary’s medical negligence, traditional tort compensatory damages. The 25 purpose of compensatory damages in a tort suit is the same as that of ‘make whole’”’ relief under equitable principles: to restore the victim as nearly as possible to the position he occupied prior to the wrongful act. This Court signalled in Ingersoll-Rand, supra, that federal courts had broad power in ERISA suits to grant compensatory relief. The Court held plaintiff's claims, in- cluding a demand for compensatory damages such as men- tal anguish as well as punitive damages, preempted by ERISA. One justification given by Justice O’Connor for finding the state law claims preempted was that “‘it is clear that the relief requested here is well within the power of the federal courts to provide.” Jd., 111 S.Ct. at 486 (emphasis added). Such a holding is critical to the efficacy of ERISA if § 1144(a) continues to receive indiscriminatively broad application, or beneficiaries such as the Corcorans will routinely find themselves without a remedy for breaches of fiduciary duty. The Fifth Circuit concluded that, assuming the availability of extracontractual damages under ERISA, the Corcorans would still be unable to recover. The court reached this result by assuming that any such damages recoverable under ERISA would be limited to damages for breach of trust or contract. But as Justice Brennan ex- plained in his concurring opinion in Russell, ‘‘Congress made more exacting the requirements of the common laws of trusts relating to employee benefit funds.’’ Jd., 473 U.S. at 157 n.17, 105 S.Ct. at 3098 n.17 (emphasis added). Thus, the consideration of appropriate remedies is not limited, as the Fifth Circuit assumed, to remedies available under trusts or contract law, but must be determined with reference to ‘’whether allowance or disallowance of par- ticular relief would best effectuate the underlying purposes of ERISA.” Russell, 473 U.S. at 158, 105 S.Ct. 3098. 26 Under this standard, a remedy for wrongful death due to breach of a fiduciary’s duty is clearly necessary to the ‘’enforcement of strict fiduciary standards of care in the administration of all aspects of pension plans and pro- motion of the best interests of participants and beneficiaries.’’ Jd. If ERISA is broad enough to include a utilization review company making medical decisions as a fiduciary, then it should also allow a remedy broad enough to correspond to potential damages caused by breach of the fiduciary’s high duty. Otherwise the underlying purpose of ERISA will be thwarted, and a perversely anomalous situa- tion will arise: those upon whom ERISA imposes high and exacting standards of care will be effectively relieved from any obligations to perform those duties responsibly. A remedy for a breach of duty is necessary to ERISA’s purpose. The terminology of § 1132(a)(3)(B) also reinforces this result. The statute speaks in terms of equitable relief. The foregoing demonstrates that this term is to be applied broadly, not literally. It has long been the law that ‘‘where legal rights have been invaded, and a federal statute pro- vides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done.”’ Franklin v. Gwinnett County Public Schools, , U.S. ___, 112 S.Ct. 1028, 1033 (1992). This is so, this Court continued in Franklin, because the existence of a statutory right implies the existence of all necessary and appropriate remedies. /d., 112 S.Ct. at 1034. Equitable relief encompasses the necessary money damages required to do complete justice. Albemarle Paper Co. v. Moody, 422 U.S. 405, 418, 95 S.Ct. 2372 (1975); War- ren, supra. Further, because it is the historic purpose of equity to secure complete justice, courts may adjust their remedies so as to grant necessary relief. Walters v. 27 Marathon Oil Co., 642 F.2d 1098, 1100 (7th Cir. 1982). Ac- cordingly, where the wrong done results in the death of an unborn child, a court awarding equitable relief may fashion a money damage award as necessary to ‘‘make whole’ the victim, to the extent money can. The purposes of ERISA to secure the welfare of covered employees require that an adequate remedy be provided for whatever breach of fiduciary duty might occur, and that remedy must include the type of damages sought herein. CONCLUSION The ‘’troubling”’ result the Fifth Circuit felt compell- ed by ERISA to reach — that the Corcorans were afforded no remedy for the wrongful death of their unborn son — was required by neither the statute itself, nor Congress’ purpose in enacting it. Instead, the Fifth Circuit's decision frustrates the intent of ERISA by depriving the beneficiaries Congress sought to protect of remedies they enjoyed prior to ERISA’s passage. Further, the effect of the decision will be to reduce the quality of health care pro- vided through plans governed by ERISA by removing all incentives for correct medical decision-making — an absurd result in light of express Congressional intent to secure the welfare of employees and their families through ERISA. 28 Petitioners’ application for a writ of certiorari to the Court of Appeals for the Fifth Circuit should be granted. Respectfully submitted, SCOTT LaBARRE (BAR NO. 17659) GAUTHIER & MURPHY 3500 North Hullen Street Metairie, Louisiana 70002 Phone: (504) 456-8600 ATTORNEYS FOR PLAINTIFF | A-1 APPENDIX A IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Filed JUN 26 1992 No. 91-3322 FLORENCE B. CORCORAN Wife of/fand WAYNE D. CORCORAN, Plaintiffs-Appellants, V. UNITED HEALTHCARE, INC., and BLUE CROSS and BLUE SHIELD OF ALABAMA, INC., Defendants-Appellees. Appeal from the United States District Court for the Eastern District of Louisiana Before THORNBERRY, KING, and DeMOSS, Circuit Judges. KING, Circuit Judge: This appeal requires us to decide whether ERISA pre-empts a state-law malpractice action brought by the beneficiary of an ERISA plan against a company that pro- vides ‘utilization review”’ services to the plan. We also ad- dress the availability under ERISA of extracontractual damages. The district court granted the defendants’ mo- tion for summary judgment, holding that ERISA both pre- empted the plaintiffs’ medical malpractice claim and A-2 precluded them from recovering emotional distress damages. We affirm. I. BACKGROUND The basic facts are undisputed. Florence Corcoran, a long-time employee of South Central Bell Telephone Com- pany (Bell), became pregnant in early 1989. In July, her obstetrician, Dr. Jason Collins, recommended that she have complete bed rest during the final months of her pregnancy. Mrs. Corcoran applied to Bell for temporary disability benefits for the remainder of her pregnancy, but the benefits were denied. This prompted Dr. Collins to write to Dr. Theodore J. Borgman, medical consultant for Bell, and explain that Mrs. Corcoran had several medical problems which placed her “in a category of high risk pregnancy.’ Bell again denied disability benefits. Unbeknownst to Mrs. Corcoran or Dr. Collins, Dr. Borgman solicited a second opinion on Mrs. Corcoran’s condition from another obstetrician, Dr. Simon Ward. In a letter to Dr. Borgman, Dr. Ward indicated that he had reviewed Mrs. Corcoran’s medical records and suggested that ‘“‘the company would be at considerable risk denying her doctor’s recommendation.’’ As Mrs. Corcoran neared her delivery date, Dr. Collins ordered her hospitalized so that he could monitor the fetus around the clock.! Mrs. Corcoran was a member of Bell’s Medical Assistance Plan (MAP or ‘“‘the Plan’). MAP is a self- funded welfare benefit plan which provides medical benefits to eligible Bell employees. It is administered by 1 This was the same course of action Dr. Collins had ordered during Mrs. Corcoran’s 1988 pregnancy. In that pregnancy, Dr. Collins intervened and preformed a successful Caesarean section in the 36th week when the fetus went into distress. A-3 defendant Blue Cross and Blue Shield of Alabama (Blue Cross) pursuant to an Administrative Services Agreement between Bell and Blue Cross. The parties agree that it is governed by ERISA.? Under a portion of the Plan known as the ‘Quality Care Program’”’ (QCP), participants must obtain advance approval for overnight hospital admissions and certain medical procedures (‘‘pre-certification’’), and must obtain approval on a continuing basis once they are admitted to a hospital (‘concurrent review’’), or plan benefits to which they otherwise would be entitled are reduced. QCP is administered by defendant United HealthCare (United) pursuant to an agreement with Bell. United performs a form of cost-containment services that has commonly become known as “‘utilization review.’’ See Blum, An Analysis of Legal Liability in Health Care Utilization Review and Case Management, 26 Hous. L. Rev. 191, 192-93 (1989) (utilization review refers to ‘‘exter- nal evaluations that are based on established clinical criteria and are conducted by third-party payors, pur- chasers, or health care organizers to evaluate the ap- propriateness of an episode, or series or episodes, of medical care’’). The Summary Plan Description (SPD) ex- plains QCP as follows: The Quality Care Program (QCP), administered by United HealthCare, Inc., assists you and your covered dependents in securing quality medical care according to the provisions of the Plan while helping reduce risk and expense due to un- necessary hospitalization and surgery. They do this by providing you with information which will permit you (in consultation with your doctor) to . Employee Retirement Income Security Act of 1974, Pub. L. 93-406, 88 Stat. 829, 29 U.S.C. §§ 1001-1461. A-4 evaluate alternatives to surgery and hospitaliza- tion when those alternatives are medically ap- propriate. In addition, QCP will monitor any cer- tified hospital confinement to keep you informed as to whether or not the stay is covered by the Plan. Two paragraphs below, the SPD contains this statement: When reading this booklet, remember that all decisions regarding your medical care are up to you and your doctor. It goes on to explain that when a beneficiary does not con- tact United or foilow its pre-certification decision, a ‘““QCP Penalty” is applied. The penalty involves reduction of benefits by 20 percent for the remainder of the calendar year or until the annual out-of-pocket limit is reached. Moreover, the annual out-of-pocket limit is increased from $1,000 to $1,250 in covered expenses, not including any ap- plicable deductible. According to the QCP Administrative Manual, the QCP penalty is automatically applied when a participant fails to contact United. However, if a partici- pant complies with QCP by contacting United, but does not follow its decision, the penalty may be waived following an internal appeal if the medical facts show that the treat- ment chosen was appropriate. A more complete description of QCP and the services provided by United is contained in a separate booklet. Under the heading “WHAT QCP DOES” the booklet explains: Whenever your doctor recommends surgery or hospitalization for you or a covered dependent, QCP will provide an independent review of your condition (or your covered dependent’s). The pur- pose of the review is to assess the need for surgery or hospitalization and to determine the appropriate length of stay for a hospitalization, ” A-5 based on nationally accepted medical guidelines. -As part of the review process, QCP will discuss with your doctor the appropriateness of the treatments recommended and the availability of alternative types of treatments — or locations for treatment — that are equally effective, involve less risk, and are more cost effective. The next paragraph is headed “INDEPENDENT, PRO- FESSIONAL REVIEW” and states: United Health Care, an independent professional medical review organization, has been engaged to provide services under QCP. United's staff in- cludes doctors, nurses, and other medical profes- sionals knowledgeable about the health care delivery system. Together with your doctor, they work to assure that you and your covered family members receive the most appropriate medical care. At several points in the booklet, the themes of ‘‘independ- ent medical review’ and ‘‘reduction of unnecessary risk and expense”’ are repeated. Under a section entitled ‘THE QUALITY CARE PROGRAM...AT A GLANCE” the booklet states the QCP ‘Provides independent, profes- sional review when surgery or hospitalization is recom- mended — to assist you is making an enlightened decision regarding your treatment.’’ QCP “provides improved quality of care by eliminating medically unnecessary treat- ment,’’ but beneficiaries who fail to use it ‘‘may be exposed to unnecessary health risks. . . ."’ Elsewhere, in the course of pointing out that studies show one-third of all surgery may be unnecessary, the booklet explains that programs such as QCP “‘help reduce unnecessary and inappropriate care and eliminate their associated costs.’’ Thus, ‘‘one im- portant service of QCP will help you get a second opinion when your doctor recommends surgery.”’ A-6 The booklet goes on to describe the circumstances under which QCP must be utilized. When a Plan member’s doctor recommends admission to the hospital, [iIndependent medical professionals will review, with the patient's doctor, the medical findings and the proposed course of treatment, including the medically necessary length of confinement. The Quality Care Program may require additional tests or information (including second opinions), when determined necessary during consultation between QCP professionals and the attending physician. When United certifies a hospital stay, it monitors the con- tinuing necessity of the stay. It also determines, for certain medical procedures and surgeries, whether a second opin- ion is necessary, and authorizes, where appropriate, certain alternative forms of care. Beneficiaries are strongly en- couraged to use QCP to avoid loss of venefits: ‘‘ ‘fully us- ing’ QCP means following the course of treatment that’s recommended by QCP’s medical professionals.”’ In accordance with the QCP portion of the plan, Dr. Collins sought pre-certification from United for Mrs. Cor- coran’s hospital stay. Despite Dr. Collins’s recommenda- tion, United determined that hospitalization was not necessary, and instead authorized 10 hours per day of home nursing care.? Mrs. Corcoran entered the hospital on Oc- tober 3, 1989, but, because United had not pre-certified her stay, she returned home on October 12. On October 25, dur- ing a period of time when no nurse was on duty, the fetus went into distress and died. 3 The record does not reveal the name of the person or persons at United that made the decision concerning Mrs. Corcoran. = Ll A-7 Mrs. Corcoran and her husband, Wayne, filed a wrongful death action in Louisiana state court alleging that their unborn child died as a result of various acts of negligence committed by Blue Cross and United. Both sought damages for the lost love, society and affection of their unborn child. In addition, Mrs. Corcoran sought damages for the aggravation of a pre-existing depressive condition and the loss of consortium caused by such ag- gravation, and Mr. Corcoran sought damages for loss of consortium. The defendants removed the action to federal court on grounds that it was pre-empted by ERISA‘ and that there was complete diversity among the parties. Shortly thereafter, the defendants moved for sum- mary judgment. They argued that the Corcorans’ cause of action, properly characterized, sought damages for im- proper handling of a claim from two entities whose respon- sibilities were simply to administer benefits under an ERISA-governed plan. They contended that their relation- ship to Mrs. Corcoran came into existence solely as a result of an ERISA plan and was defined entirely by the plan. Thus, they urged the court to view the claims as “relating to’’ an ERISA plan, and therefore within the broad scope of state law claims pre-empted by the statute. In their op- position to the motion, the Corcorans argued that ‘‘[t]his case essentially boils down to one for malpractice against United HealthCare. .. .’’ They contended that under this court’s analysis in Sommers Drug Stores Co. Employee Profit Sharing Trust v. Corrigan Enterprises, Inc., 793 F.2d 1456 (5th Cir. 1986), cert. denied, 479 U.S. 1034 (1987), their cause of action must be classified as a state law of 4 See Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 66 (1987) (because ERISA pre-emption is so comprehensive, pre-emption defense provides sufficient basis for removal to federal court notwithstanding ‘“‘well-pleaded complaint”’ rule). A-8 general application which involves an exercise cf tradi- tional state authority and affects principal ERISA entities in their individual capacities. This classification, they argued, together with the fact that pre-emption would con- tavene the purposes of ERISA by leaving the Corcorans without a remedy, leads to the conclusion that the action is premissible notwithstanding ERISA. The district court, relying on the broad ERISA pre- emption principles developed by the Supreme Court and the Fifth Circuit, granted the motion. The court noted that ERISA pre-emption extends to state law claims “ ‘of general application,’ including tort claims where ERISA ordinarily plays no role in the state law at issue.’’ (citing Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58 (1987) and Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41 (1987)). The court found that the state law claim advanced by the Cor- corans ‘‘relate[d] to’’ the employee benefit plan (citing the statutory pre-emption clause, ERISA § 514(a)), and therefore was pre-empted, because [bjut for the ERISA plan, the defendants would have played no role in Mrs. Corcoran’s pregnan- cy; the sole reason the defendants had anything to do with her pregnancy is because the terms of the ERISA plan directed Mrs. Corcoran to the defendants (or at least to United HealthCare) for approval of coverage of the medical care she in- itially sought. The court held that, because the ERISA plan was the source of the relationship between the Corcorans and the defendants, the Corcorans’ attempt to distinguish United's role in paying claims from its role as a source of profes- sional medical advice was unconvincing. A-9 The Corcorans filed a motion for reconsideration under Rule 59 of the Federal Rules of Civil Procedure. They did not ask the district court to reconsider its pre-emption ruling, but instead contended that language in the district court’s opinion had implicitly recognized that they had a separate cause of action under ERISA’s civil enforcement mechanism, § 502(a)(3).° They argued that the Supreme Court’s decision in Massachusetts Mutual Life Ins. Co. v. Russell, 473 U.S. 134 (1985), did not foreclose the possibili- ty that compensatory damages such as they sought con- stituted ‘“‘other appropriate equitable relief’’ available under § 502(a)(3) for violations of ERISA or the terms of an ERISA plan. The district court denied the motion. Although the court recognized that there was authority to the contrary, it pointed out that “‘[t]he vast majority of federal appellate courts have . . . held that a beneficiary under an ERISA health plan may not recover under section 509(a(3) [sic] of ERISA compensatory or consequential damages for emotional distress or other claims beyond medical expenses covered by the plan.”’ (citations omitted). Moreover, the court pointed out, a prerequisite to recovery under § 502(a)(3) is a violation of the terms of ERISA itself. ERISA does not place upon the defendants a substantive responsibility in connection with the provision of medical advice which, if breached, would support a claim under § 502 (a)(3). The court entered final judgment in favor of Blue Cross and United, and this appeal followed. ° The district court had stated that “‘[blecause the plaintiffs concede that the defendants have fully paid any and all medical expenses that Mrs. Corcoran actually incurred that were covered by the plan, the plain- tiffs have no remaining claims under ERISA.”’ In a footnote, the court indicated that Mrs. Corcoran could have (1) sued under ERISA, before entering the hospital, for a declaratory judgment that she was entitled to hospitalization benefits; or (2) gone into the hospital, incurred out-of- pocket expenses, and sued under ERISA for these expenses. A-10 Il. STANDARD OF REVIEW Because this case is on appeal from the district court’s grant of summary judgment, our review is plenary. Dorsett v. Board of Trustees for State Colleges & Univer- sities, 940 F.2d, 121, 123 (5th Cir. 1991). We view the evidence in the light most favorable to the nonmoving par- ty, id., and must affirm if ‘‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”’ Fed. R. Civ. P. 56(c). As this case currently stands, the parties dispute not the relevant facts, but the legal conclusions that must be applied to those facts. As the Corcorans put it, “‘[t]he ques- tion on appeal is whether the plaintiffs are afforded any relief, under state law or ERISA, for damages caused by {the defendants’ actions].”’ Ill. PRE-EMPTION OF THE STATE LAW CAUSE OF ACTION A. The Nature of the Corcorans’ State Law Claims The Corcorans’ original petition in state court alleg- ed that acts of negligence committed by Blue Cross and United caused the death of their unborn child. Specifically, they alleged that Blue Cross wrongfully denied appropriate medical care, failed adequately to oversee the medical deci- sions of United, and failed to provide United with Mrs. Cor- coran’s complete medical background. They alleged that United wrongfully denied the medical care recommended by Dr. Collins and wrongfully determined that home nurs- ing care was adequate for her condition. It is evident that the Corcorans no longer pursue any theory of recovery against Blue Cross. Although they mention in their A-11 appellate brief the fact that they asserted a claim against Blue Cross, they challenge only the district court’s conclu- sion that ERISA pre-empts their state law cause of action against United.® We, therefore, analyze solely the question of pre-emption of the claims against United. See Hulsey v. State of Texas, 929 F.2d 168, 172 (5th Cir. 1991) (issues stated but not briefed need not be considered on appeal). The claims against United arise from a relatively re- cent phenomenon in the health care delivery system — the prospective review by a third party of the necessity of medical care. Systems of prospective and concurrent review, rather than traditional retrospective review, were widely adopted throughout the 1980s as a method of con- taining the rapidly rising costs of health care. Blum, supra, at 192; Furrow, Medical Malpractice and Cost Contain- ment: Tightening the Screws, 36 Case Western L. Rev. 985, 986-87 (1986). Under the traditional retrospective system (also commonly known as the fee-for-service system), the patient obtained medical treatment and the insurer review- ed the provider's claims for payment to determine whether they were covered under the plan. Denial of a claim meant that the cost of treatment was absorbed by an entity other than the one designed to spread the risk of medical costs — the insurer. Congress's adoption in 1983 of a system under which hospitals are reimbursed for services provided to Medicare patients based upon average cost calculations for patients with particular diagnoses spurred private insurers to in- stitute similar programs in which prospective decisions are made about the appropriate level of care. Although plans vary, the typical prospective review system requires some 6 They also do not mention Blue Cross when arguing that extracontrac- tual damages are available under § 502(a)(3). A-12 form of pre-admission certification by a third party (e.g., the HMO if an HMO.-associated doctor provides care; an outside organization such as United if an independent physician provides care) before a hospital stay. Concurrent review involves the monitoring of a hospital stay to deter- mine its continuing appropriateness. See generaily, Blum, supra, at 192-93; Tiano, The Legal Implications of HMO Cost Containment Measures, 14 Seton Hall Legis. J. 79, 80 (1990). As the SPD makes clear, United performs this sort of prospective and concurrent review (generically, ‘‘utiliza- tion review’’) in connection with, inter alia, the hospitaliza- tion of Bell employees. The Corcorans based their action against United on Article 2315 of the Louisiana Civil Code, which provides that ‘‘[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.’ Article 2315 provides parents with a cause of action for the wrongful death of their unborn children, Danos v. St. Pierre, 402 So. 2d 633, 637-38 (La. 1981), and also places liability on health care providers when they fail to live up to the applicable standard of care. Chivleatto v. Divinity, 379 So. 2d 784, 786 (La. App. 4th Dist. 1979). Whether Ar- ticle 2315 permits a negligence suit against a third party provider of utilization review services, however, has yet to be decided by the Louisiana courts. The potential for im- posing liability on these entities is only beginning to be ex- plored, with only one state exnlicitly permitting a suit bas- ed on a utilization review company’s allegedly negligent decision about medical care to go forward. Wilson v. Blue Cross of So. California, 22 Cal. App. 3d 660, 271 Cal. Rptr. 876, 883 (1990) (reversing summary judgment for utiliza- tion review company which determined that further hospitalization was not necessary; ERISA not A-13 implicated);’ see also Wickline v. State of California, 192 Cal. App. 3d 1630, 239 Cal. Rptr. 810, 819 (1986) (stating, in dicta, that negligent implementation of cost contain- ment mechanisms such as utilization review can lead to liability; ERISA not implicated), cert. granted, 727 P.2d 753, 231 Cal. Rptr. 560, review dismissed, cause remanded, 741 P.2d 613, 239 Cal. Rptr. 805 (1987).8 ’ The case went to trial, but the plaintiff settled with Western Medical, the provider of utilization review services. See Milt Freudenheim, When Treatment and Costs Collide, N.Y. Times, Apr. 28, 1992, at C2 col. 1. 8 Numerous commentators have weighed in on the propriety of liability for utilization review decisions. See e.g, Macaulay, Health Care Cost Containment and Medical Malpractice: On a Collision Course, 19 Suffolk U.L. Rev. 91, 106-107 (1986) (arguing for higher standard of negligence in ‘‘Wickline suits’’); Morreim, Cost Containment and the Standard of Medical Care, 75 Calif. L. Rev. 1719, 1749-50 (1987) (arguing that liabili- ty should be limited because patient's physician makes the ultimate decision about treatment); Note, Paying the Piper: Third Party Payor Liability for Medical Treatment Decisions, 25 Ga. L. Rev. 861, 907-911 (1991) (by David Griner) (arguing that without liability for neglizence in utilization review decisions, third party payors Lave incentives to con- trol costs but not to use reasonable care in the decisionmaking process); Mellas, Adapting the Judicial Approach to Medical Malpractice Claims Against Physicians to Reflect Medicare Cost Containment Measures, 62 U. Colo. L. Rev. 287, 316 (1991) (liability will reduce possibility that poor medical decisions will be made in order to cut costs). Even if courts put their imprimatur on negligence actions against utilization review organizations, plaintiffs would face difficulties in proving that the organization’s decision was a significant cause of an in- jury. See Wickline, 239 Cal. Rptr. at 819 (decision of doctor to discharge patient after Medi-Cal (state utilization review body) would not authorize additional hospital stay, not decision of Medi-Cal on ap- propriate length of stay, is act upon which liability should be premised); Note, supra, 25 Ga. L. Rev. at 902-05 (discussing problem of proving that utilization review organization’s decision is proximate cause of in- jury); but see Wilson, 271 Ca. Rptr. at 883 (find.ng that plaintiffs had adduced enough evidence as to causal effect of utilization review com- pany’s decision on decedent's suicide to avoid summary judgment). A-14 In the absence of clear Louisiana authority for their lawsuit, the Corcorans rely on Green v. Walker, 910 F.2d 291 (5th Cir. 1990). We held in Green that Article 2315 im- poses a duty of due care upon physicians hired by employers to conduct employment-related exams on employees. Jd. at 296. The cause of action recognized in Green, however, is not analogous to the cause of action brought against United because Green involved an actual physical examination by a doctor hired by an employer, not the detached decision of a utilization review company. Despite the lack of clear Louisiana authority supporting the Corcorans’ theory of recovery against United, we can resolve the pre-emption question presented in this appeal. The law in this area is only beginning to develop, and it does not appear to us that Louisiana law clearly forecloses the possibility of recovery against United. Thus, assuming that on these facts the Corcorans might be capable of stating a cause of action for malpractice,? our task now is to determine whether such a cause of action is pre-empted by ERISA. B. Principles of ERISA Pre-emption The central inquiry in determining whether a federal statute pre-empts state law is the intent of Congress. FMC Corp. v. Holiday, 111 S. Ct. 403, 407 (1990); Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 208 (1985). In performing this analysis we begin with any statutory language that ex- presses an intent to pre-empt, but we look also to the pur- pose and structure of the statute as a whole. FMC Corp., 111 S. Ct. at 407; Ingersoll-Rand Co. v. McClendon, 111 S. Ct. 478, 482 (1990). 9 1f the Corcorans could sue United on a negligence theory, it would ap- pear that they could recover damages incurred in connection with the death of their unborn child. Danos, 402 So. 2d at 637. rein pence amen A-15 ERISA contains an explicit pre-emption clause, which provides, in relevant part: Except as provided in subsection (b) of this sec- tion, the provisions of this subchapter and sub- chapter III of this chapter shall supersede any . and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003(a). . . . ERISA § 514(a).!° It is by now well-established that the ‘deliberately expansive’ language of this clause, Pilot Life Insurance Co. v. Dedeaux, 481 U.S. 42, 46 (1987), is a signal that it is to be construed extremely broadly. See FMC Corp., 111 S. Ct. at 407 (‘[t]he pre-emption clause is con- spicuous for its breadth’’); Jngersoll-Rand, 111 S. Ct. at 482.1! The key words “‘relate to’’ are used in such a way as 10 Statutory, decisional and all other forms of state law are included within the scope of the preemption clause. ERISA § 514(c)(1) (“The term ‘State law’ includes all laws, decisions, rules, regulations, or other State action having the effect of law, of any State’’). Section 514(b)(2)(A) ex- empts certain state laws from pre-emption, but none of these exceptions is applicable here. 11 The legislative history indicates that Congress intended the preemp- tion provision to be applied expansively. In Shaw v. Delta Air Lines, Inc., 463 U.S. 85 (1983), the Court explained: The bill that became ERISA originally contained a limited pre- emption clause, applicable only to state laws relating to the specific subjects covered by ERISA. The Ccnference Committee rejected those provisions in favor of the present language, and in- dicated that section’s pre-emptive scope was as broad as its language. See H.R. Conf. Rep. No. 93-1280, p. 383 (1974); S. Conf. Rp. No. 93-1090, p. 383 (1974). 463 U.S. at 98. Senator Williams, one of ERISA’s sponsors, remarked: It should be stressed that with the narrow exceptions specified in the bill, the substantive and enforcement provisions of the con- ference substitute are intended to preempt the field for Federal ee A-16 to expand pre-emption beyond state laws that relate to the specific subjects covered by ERISA, such as reporting, disclosure and fiduciary obligations. Jd. at 482. Thus, state laws “‘relate[] to’’ employee benefit plans in a much broader sense — whenever they have ‘‘a connection with or reference to such a plan.”’ Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97 (1983). This sweeping pre-emption of state law is consistent with Congress’s decision to create a com- prehensive, uniform federal scheme for the regulation of employee benefit plans. See Ingersoll-Rand, 111 S. Ct. at 482; Pilot Life, 481 U.S. at 45-46. The most obvious class of pre-empted state laws are those that are specifically designed to affect ERISA- governed employee benefit plans. See Mackey v. Lanier Collection Agency & Serv., Inc., 486 U.S. 825, 829-30 (1988) (statute explicitly barring garnishment of ERISA plan funds is pre-empted); Jngersoll-Rand, 111 S. Ct. at 483 (cause of action allowing recovery from employer when discharge is premised upon attempt to avoid contributing to pension plan is pre-empted). But a law is not saved from pre-emption merely because it does not target employee benefit plans. Indeed, much pre-emption litigation involves laws of general application which, when applied in par- ticular settings, can be said to have a connection with or a reference to an ERISA plan. See Pilot Life, 481 U.S. at 47-48 (common law tort and contract causes of action seek- (footnote 11 continued) regulations, thus eliminating the threat of conflicting or inconsis- tent State and local regulation of employee benefit plans. This principle is intended to apply in its broadest sense to all actions of State or local governments, or any instrumentality thereof, which have the force or effect of iaw. 120 Cong. Rec. 29933 (1974). See also Pilot Life, 481 U.S. at 46. A-17 ing damages for improper processing of a claim for benefits under a disability plan are pre-empted); Shaw, 463 U.S. at 95-100 (statute interpreted by state court as prohibiting plans from discriminating on the basis of pregnancy is pre- empted); Christopher v. Mobil Oil Corp., 950 F.2d 1209, 1218 (5th Cir. 1992) (common law fraud and negligent misrepresentation claims that allege reliance on agreements or representations about the coverage of a plan are pre-empted), petition for cert. filed 60 U.S.L.W. 3829 (U.S. May 26, 1992) (No. 91-1881); Lee v. E.J. DuPont de Nemours & Co., 894 F.2d 755, 758 (5th Cir. 1990) (same). On the other hand, the Court has recognized that not every conceivable cause of action that may be brought against an ERISA-covered plan is pre-empted. ‘“‘Some state actions may affect employee benefit plans in too tenuous, remote or peripheral a manner to warrant a finding that the law ‘relates to’ the plan.’’ Shaw, 463 U.S. at 100 n.21. Thus, “run-of-the-mill state-law claims such as unpaid rent, failure to pay creditors, or even torts committed by an ERISA plan” are not pre-empted, Mackey, 486 U.S. at 833 (discussing these types of claims in dicta). C. Pre-emption of the Corcorans’ Claims Initially, we observe that the common law causes of action advanced by the Corcorans are not that species of law ‘‘specifically designed’’ to affect ERISA plans, for the liability rules they seek to invoke neither make explicit reference to nor are premised on the existence of an ERISA plan. Compare Ingersoll-Rand, 111 S. Ct. at 483. Rather, applied in this case against a defendant that provides benefit-related services to an ERISA plan, the generally applicable negligence-based causes of action may have an effect on an ERISA-governed plan. In our view, the pre- emption question devolves into an assessment of the significance of these effects. ee A-18 1. United’s position — it makes benefit determina- tions, not medical decisions United’s argument in favor of pre-emption is ground. ed in the notion that the decision it made concerning Mrs. Corcoran was not primarily a medical decision, but instead was a decision made in its capacity as a plan fiduciary about what benefits were authorized under the Plan. All it did, it argues, was determine whether Mrs. Corcoran qualified for the benefits provided by the plan by applying previously established eligibility criteria. The argument’s coup de grace is that under well-established precedent, !? participants may not sue in tort to redress injuries flowing from decisions about what benefits are to be paid under a plan. One commentator has endorsed this view of lawsuits against providers of utilization review services, arguing that, because medical services are the ‘‘benefits’’ provided by a utilization review company, complaints about the quality of medical services (i.e., lawsuits for negligence) ‘‘can therefore be characterized as claims founded upon a constructive denial of plan benefits.’’ Chittenden, Malprac- tice Liability and Maraged Health Care: History & Prog- nosis, 26 Tort & Ins. Law J. 451, 489 (1991). In support of its argument, United points to its ex- planatory booklet and its language stating that the com- pany advises the patient's doctor ‘‘what the medical plan will pay for, based on a review of [the patient’s] clinical in- formation and nationally accepted medical guidelines for the treatment of [the patient’s] condition.’’ It also relies on statements to the effect that the ultimate medical decisions are up to the beneficiary’s doctor. It acknowledges at various points that its decision about what benefits would be paid was based on a consideration of medical informa- 12 Pilot Life, 481 U.S. at 47-48. A-19 tion, but the thrust of the argument is that it was simply performing commonplace administrative duties akin to claims handling. Because it was merely performing claims handling functions when it rejected Dr. Collins’s request to approve Mrs. Corcoran’s hospitalization, United contends, the prin- ciples of Pilot Life and its progeny squarely forecloses this lawsuit. In Pilot Life, a beneficiary sought damages under various state-law tort and contract theories from the in- surance company that determined eligibility for the employer’s long term disability benefit plan. The company had paid benefits for two years, but there followed a period during which the company terminated and reinstated the beneficiary several times. 481 U.S. at 43. The Court made clear, however, that ERISA pre-empts state-law tort and contract actions in which a beneficiary seeks to recover damages for improper processing of a claim for benefits. Jd. at 48-49. United suggests that its actions here were analogous to those of the insurance company in Pilot Life, and therefore urges us to apply that decision. ; 2. The Corcorans’ position — United makes medical decisions, not benefit determinations The Corcorans assert that Pilot Life and its progeny are inapposite because they are not advancing a claim for improper processing of benefits. Rather, they say, they seek to recover solely for United’s erroneous medical deci- sion that Mrs. Corcoran did not require hospitalization dur- ing the last month of her pregnancy. This argument, of course, depends on viewing United’s action in this case as a medical decision, and not merely an administrative deter- mination about benefit entitlements. Accordingly, the Cor- corans, pointing to the statements United makes in the QCP booklet concerning its medical expertise, contend that sialetiie le A-20 United exercised medical judgment which is outside the purview of ERISA pre-emption. The Corcorans suggest that a medical negligence claim is permitted under the analytical framework we have developed for assessing pre-emption claims. Relying on Sommers Drug Stores Co. Employee Profit Sharing Trust v. Corrigan Enterprises, Inc., 793 F.2d 1456 (5th Cir. 1986), cert. denied, 479 U.S. 1034 (1987), they contend that we should not find the state law under which they proceed pre- empted because it (1) involves the exercise of traditional state authority and (2) is a law of general application which, although it affects relations between principal ERISA en- tities in this case, is not designed to affect the ERISA relationship.!3 3. Our view — United makes medical decisions inci- dent to benefit determinations 13 Amicus curiae Louisiana Trial Lawyers Association (LTLA) argues that United is not an ERISA fiduciary, and that therefore the tort claims against it cannot be pre-empted. The parties, however, agree that United is a fiduciary, and we have no reason to dispute this. United's contract with Bell would appear to give it ‘“‘discretionary authority or discretionary control respecting management of [the] plan”’ or ‘“‘authori- ty or control respecting management or disposition of its assets. . . [,]"’ thus satisfying the statutory definition of a fiduciary. 29 U.S.C. § 1002(21)(A)(i). In any event, all courts of appeals to have considered the issue have held that ERISA pre-emption may apply regardless of whether the defendant is a plan fiduciary. Consolidated Beef Indus., Inc. v. New York Life Ins. Co., 949 F.2d 960, 964 (8th Cir. 1991); Gibson v. Prudential Ins. Co., 915 F.2d 414, 417-18 (9th Cir. 1990); Howard v. Pari- sian, Inc., 807 F.2d 1560, 1564 (11th Cir. 1987). Despite the suggestion in Howard that this circuit so held in Light v. Blue Cross and Blue Shield of Alabama, 790 F.2d 1247 (5th Cir. 1986), there is no indication that the defendant in Light was not a fiduciary, and even if it was not, no part of the opinion considers the precise question whether ERISA pre-empts suits against nonfiduciaries. A-21 We cannot fully agree with either United or the Cor- corans. Ultimately, we conclude that United makes medical decisions — indeed, United gives medical advice — but it does so in the context of making a determination about the availability of benefits under the plan. Accordingly, we hold that the Louisiana tort action asserted by the Cor- corans for the wrongful death of their child allegedly resulting from United’s erroneous medical decision is pre- empted by ERISA. Turning first to the question of the characterization of United’s actions, we note that the QCP booklet and the SPD lend substantial support to the Corcorans’ argument that United makes medical decisions. United’s own booklet tells beneficiaries that it ‘‘assess[es] the need for surgery or hospitalization and . . . determine[s] the appropriate length of stay for a hospitalization, based on nationally accepted medical guidelines.’’ United ‘‘will discuss with your doctor the appropriateness of the treatments recommended and the availability of alternative types of treatments.”’ Fur- ther, ‘‘United’s staff includes doctors, nurses, and other medical professionals knowledgeable about the health care delivery system. Together with your doctor, they work to assure that you and your covered family members receive the most appropriate medical care.’’ According to the SPD, United will ‘‘provid[fe] you with information which will per- mit you (in consultation with your doctor) to evaluate alter- natives to surgery and hospitalization when those alter- natives are medically appropriate.”’ United makes much of the disclaimer that decisions about medical care are up to the beneficiary and his or her doctor. While that may be so, and while the disclaimer may support the conclusion that the relationship between United and the beneficiary is not that of doctor-patient, it does not mean that United does not make medical decisions etl A-22 or dispense medical advice. See Wickline, 239 Cal. Rptr. at 819 (declining to hold Medi-Cal liable but recognizing that it made a medical judgment); Macaulay, Health Care Cost Containment and Medical Malpractice: On a Collision Course, 19 Suffolk U.L. Rev. 91, 106-107 (1986) (‘‘As il- lustrated in [Wickline], an adverse prospective determina- tion on the ‘necessity’ of medical treatment may involve complex medical judgment.’’) (footnote omitted). In response, United argues that any such medical determina- tion or advice is made or given in the context of administer- ing the benefits available under the Bell plan. Supporting United’s position is the contract between United and Bell, which provides that ‘‘[United] shall contract the Partici- pant’s physician and based upon the medical evidence and normative data determine whether the Participant should be eligible to receive full plan benefits for the recommended hospitalization and the duration of benefits.” United argues that the decision it makes in this, the prospective context, is no different than the decision an in- surer makes in the traditional retrospective context. The question in each case is ‘‘what the medical plan will pay for, based on a review of [the beneficiary's] clinical information and nationally accepted medical guidelines for the treat- ment of [the beneficiary's] condition.’’ See QCP Booklet at 4. A prospective decision is, however, different in its im- pact on the beneficiary than a retrospective decision. In both systems, the beneficiary theoretically knows in ad- vance what treatments the plan will pay for because coverage is spelled out in the plan documents. But in the retrospective system, a beneficiary who embarks on the course of treatment recommended by his or her physician has only a potential risk of disallowance of all or a part of the cost of that treatment, and then only after treatment has been rendered. In contrast, in a prospective system a beneficiary may be squarely presented in advance of treat- A-23 ment with a statement that the insurer will not pay for the proposed course of treatment recommended by his or her doctor and the beneficiary has the potential of recovering the cost of that treatment only if he or she can prevail in a challenge to the insurer’s decision. A beneficiary in the latter system would likely be far less inclined to undertake the course of treatment that the insurer has at least preliminarily rejected. By its very nature, a system of prospective decision- making influences the beneficiary's choice among treat- ment options to a far greater degree than does the theoretical risk of disallowance of a claim facing a beneficiary in a retrospective system. Indeed, the percep- tion among insurers that prospective determinations result in lower health care costs is premised on the likelihood that a beneficiary faced with the knowledge of specificially what the plan will and will not pay for will choose the treatment option recommended by the plan in order to avoid risking total or partial disallowance of benefits. When United makes a decision pursuant QCP, it is making a medical recommendation which — because of the financial ramifica- tions — is more likely to be followed. !4 Although we disagree with United’s position that no 14 It is the medical decisionmaking aspect of the utilization review proc- ess that has spawned the literature assessing the application of mal- practice and other negligence-based doctrines to hold these entities liable for patient injuries. See Blum, supra, at 199 (‘‘The overriding in- centive for [utilization review] may be cost containment, but the process itself is triggered by a medical evaluation of a particular case, an evalua- tion that requires a clinical judgment.’’) (footnote omitted); Tiano, supra, at 80 (‘‘The patient faces conflicting judgments by two medical profes- sionals: the treating physician and the utilization review consultant’ ’); Chittenden, supra, at 476 (‘‘negligent implementation of cost-control mechanisms may affect the medical judgment of the physician or other provider resulting in physical injury to the patient’’). 2 —— A-24 part of its actions involves medical decisions, we cannot agree with the Corcorans that no part of United’s actions involves benefit determinations. In our view, United makes medical decisions as part and parcel of its mandate to decide what benefits are available under the Bell plan. As the QCP Booklet concisely puts it, United decides ‘‘what the medical plan will pay for.’’ When United’s actions are viewed from this perspective, it becomes apparent that the Corcorans are attempting to recover for a tort allegedly committed in the course of handling a benefit determina- tion. The nature of the benefit determination is different than the type of decision that was at issue in Pilot Life, but it is a benefit determination nonetheless. The principle of Pilot Life that ERISA pre-empts state-law claims alleging improper handling of benefit claims is broad enough to cover the cause of action asserted here. Moreover, allowing the Corcorans’ suit to go forward would contravene Congress’s goals of ‘‘ensur[ing] that plans and plan sponsors would be subject to a uniform body of benefit law’’ and ‘‘minimiz[ing] the administrative and financial burdens of complying with conflicting direc- tives among States or between States and the Federal Government.” Ingersoll-Rand Co., 111 S. Ct. at 484; see also Fort Halifax Packing, 482 U.S. at 9-10. Thus, statutes that subject plans to inconsistent regulatory schemes in different states, thereby increasing inefficiency and poten- tially causing the plan to respond by reducing benefit levels, are consistently held pre-empted. See Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 524 (1981) (strik- ing down law which prohibited plans from offsetting benefits by amount of worker compensation payments); Shaw, 463 U.S. at 105 n.25 (striking down law which com- pensation payments); Shaw, 463 U.S. at 105 n.25 (striking down law which prohibited plans from discriminating on basis of pregnancy); FMC Corp., 111 S. Ct. at 408 (striking eT A-25 down law which eliminated plans’ right of subrogation from claimant’s tort recovery). But in Jngersoll-Rand, the Court, in holding pre-empted the Texas common law of wrongful discharge when applied against an employer who allegedly discharged an employee to avoid contributing to the employee’s pension plan, made clear that a state com- mon law cause of action is equally capable of leading to the kind of patchwork scheme of regulation Congress sought to avoid: It is foreseeable that state courts, exercising their common law powers, might deveiop different substantive standards applicable to the same employer conduct, requiring the tailoring of plans and employer conduct to the peculiarities of the law of each jurisdiction. Such an outcome is fun- damentally at odds with the goal of uniformity that Congress sought to implement. 111 S. Ct. at 484. Similarly, although imposing liability on United might have the salutary effect of deterring poor quality medical decisions,!° there is a significant risk that state liability rules would be applied differently to the con- duct of utilization review companies in different states. The cost of complying with varying substantive standards would increase the cost of providing utilization review ser- vices, thereby increasing the cost of health benefit plans of including cost containment features such as the Quality Care Program (or causing them to elirninate this sort of cost containment program altogether) and ultimately decreasing the pool of plan funds available to reimburse 15 See Comment, A Cost Containment Malpractice Defense: Implica- tions for the Standard of Care and for Indigent Patients, 26 Hous. L. Rev. 1007, 1021 (1989) (by Leslie C. Giordani). A-26 participants. See Macaulay, supra, at 105.16 It may be true, as the Corcorans asert, that Loui- siana tort law places duties on persons who make medical judgments within the state, and the Louisiana courts may one day recognize that this duty extends to the medical decisions make by utilization review companies. But it is equally true that Congress may pre-empt state-law causes of action which seek to enforce various duties when it deter- mines that such actions would interfere with a carefully constructed scheme of federal regulation. See Pilot Life, 481 U.S. at 48. The acknowledged absence of a remedy under ERISA’s civil enforcement scheme for medical malpractice committed in connection with a plan benefit determination does not alter our conclusion. While we are not unmindful of the fact that our interpretation of the pre- emption clause leaves a gap in remedies within a statute 16 We find Independence HMO, Inc. v. Smith, 733 F. Supp. 983 (E.D. Pa. 1990), cited by the Corcorans, distinguishable on its facts. In Smith, the district court did not find pre-empted a state court malpractice ac- tion brought against an HMO by one of its members. The plaintiff sought to hold the HMO liable, under a state-law agency theory, for the alleged negligence of a surgeon associated with the HMO. The case ap- pears to support the Corcorans because the plaintiff was attempting to hold an ERISA entity liable for medical decisions. However, the medical decisions at issue do not appear to have been made in connection with a cost containment feature of the plan or any other aspect of the plan which implicated the management of plan assets, but were instead made by a doctor in the course of treatment. We also find Eurine v. Wyatt Cafeterias, No. 3-91-0408-H (N.D. Tex. Aug. 21, 1991), cited in the Corcorans’ reply brief, irrelevant to this case. In Eurine, an employee of Wyatt Cafeterias sued after she slipped and fell at work. Wyatt had opted out of Texas’s workers’ compensation scheme, but provided benefits for injured employees pursuant to an ERISA plan. The court held that a tort suit against the employer for its negligence in failing to maintain the floor in a safe condition had nothing to do with the ERISA relationship between the parties, but instead arose from their distinct employer-employee relationship. en caaeanaaeeaninieneiainetaiacecaaeaeenimaiiiiaaaneiiil A-27 intended to protect participants in employee benefit plans, see Shaw, 463 U.S. at 90; Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 113 (1989), the lack of an ERISA remedy does not affect a pre-emption analysis. Memorial Hosp., 904 F.2d at 248 & n.16; Lee, 894 F.2d at 757. Con- gress perhaps could not have predicted the interjection into the ERISA ‘‘system’”’ of the medical utilization review process, but it enacted a pre-emption clause so broad and a statute so comprehensive that it would be incompatible with the language, structure and purpose of the statute to allow tort suits against entities so integrally connected with a plan. We are not persuaded that Sommers Drug, on which the Corcorans rely heavily, commands a different outcome. In Sommers Drug, we observed that courts are less likely to find pre-emption when the state law involves an exercise of traditional state authority than when the law affects an area not traditionally regulated by the states. Jd. at 1467. The Corcorans contend that they easily pass this hurdle, as tort law traditionally has been reserved to the states, but this victory only puts them back at the starting line again. We went on to say in Sommers Drug that we were ‘‘not con- vinced”’ that the traditional or nontraditional nature of the state law properly bears upon the initial question whether it is pre-empted by § 514(a), because the distinction had no support in the statutory language. /d. at 1468. We continue to adhere to this view. As cases such as Ingersoll-Rand and Christopher illustrate, the fact that states traditionally (footnote 16 continued) Finally, to the extent that two other decisions cited by the Cor- corans, Kohn v. Delaware Valley HMO, Inc., No. 91-2745 (E.D. Pa. Dec. 20, 1991 and Feb. 5, 1992), and Cooney v. South Central Bell Tel. Co., No. 91-3870 (E.D. La. March 5, 1992), conflict with our holding, we decline to follow them. A-28 have regulated in a particular area has functioned as no im- pediment to ERISA pre-emption. See Ingersoll-Rand, 111 S. Ct. at 483 (wrongful discharge action pre-empted); Christopher, 950 F. 2d at 1218 (fraud action pre-empted). ERISA’s pre-emption section itself contains an explicit ex- emption for state laws that regulate in at least one area of traditional state function — insurance. ERISA § 514(b)(2)(A). There is no reason to believe that Congress in- tended implicitly to exempt a whole range of state laws when it showed itself perfectly capable of carving out specific exemptions. The second factor identified in Sommers Drug as bearing on pre-emption — whether the state law affects relations among principal ERISA entities — continues to be relevant in this circuit, see Memorial Hospital Systems v. Northbrook Life Insurance Co., 904 F.2d 236, 245, 248-50 (5th Cir. 1990), but it does not help the Corcorans. In the case before us, of course, the cause of action affects rela- tions between principal ERISA entities. Nevertheless, the Corcorans argue, Sommers Drug holds that the claim will not be pre-empted where the state law is one of general ap- plication and it does not affect relations among the prin- cipal ERISA entities ‘‘as such,”’ but in their capacities as entities in another kind of relationship. They analogize to Sommers Drug, where we held that a pension plan, acting in its ‘“‘non-ERISA”’ capacity as a shareholder in a com- pany, could invoke the state common law of corporate fiduciary duty against an officer and director of the com- pany and a plan fiduciary to redress an alleged breach of fiduciary duty. 793 F.2d at 1468-70. The short answer to this argument is that the cause of action in this case is not between parties acting in the kind of non-ERISA context we found in Sommers Drug. Although the claims in Som- mers Drug nominally affected relations between ERISA entities, the lawsuit had nothing to do with the plan. Here, A-29 however, the central purpose of the lawsuit is to hold United liable for actions it took in connection with its duties under the plan. Sommers Drug does not mitigate the pre-emptive force of ERISA § 514(a). IV. EXTRACONTRACTUAL DAMAGES The Corcorans argue in the alternative that the damages they seek are available as ‘‘other appropriate equitable relief’’ under ERISA § 502(a)(3). That section provides: (a) A civil action may be brought — (3) by a participant, beneficiary, or fiduciary (A) to enjoin, any act or practice which violates any provision of this subchapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan; Although the Corcorans did not assert a cause of action under § 502(a)(3) in their original state court complaint, they asked the district court in their motion for recon- sideration to award damages pursuant to this section. The defendants agreed at oral argument that the issue was properly raised and preserved for appeal, and we proceed to consider it. Section 502(a)(3) provides for relief apart from an award of benefits due under the terms of a plan. When a beneficiary simply wants what was supposed to have been distributed under the plan, the appropriate remedy is ieee A-30 § 502 (a)(1)(B). See, e.g., Cathey v. Dow Chemical Co. Medical Care Program, 907 F.2d 554, 555 (5th Cir. 1990), cert. denied, 111 S. Ct. 964 (1991). Damages that would give a beneficiary more than he or she is entitled to receive under the strict terms of the plan are typically termed ‘‘ex- tracontractual.’’ Section 502(a)(3) by its terms permits beneficiaries to obtain ‘‘other appropriate equitable relief”’ to redress (1) a violation of the substantive provisions of ERISA or (2) a violation of the terms of the plan. Although the Corcorans have neither identified which of these two types of violations they seek to redress nor directed us to the particular section of the Plan or ERISA which they claim was violated, we need not determine this in order to resolve the issue before us. As outlined below, we find that the particular damages the Corcorans seek — money for emotional injuries — would not be an available form of damages under the trust and contract law principles which, the Corcorans urge, should guide our interpretation of ERISA’s remedial scheme. Thus, we hold that even under the interpretation of § 502(a)(3) urged by the Corcorans, they may not recover. The question whether extracontractual or punitive damages are available to a beneficiary under § 502(a)(3) has been left open by the Supreme Court ever since Massachusetts Mutual Life Insurance Co. v. Russell, 473 U.S. 134 (1985). In Russell, the beneficiary of a plant sought compensatory and punitive damages under ERISA §§ 502(a)(2) and 409(a)!7 for the improper processing of her claim for disability benefits. Jd. at 136, 138. The Court re- jected the argument that such damages were available under § 409(a), holding that §409(a) (1) authorized only ac- tions on behalf of the plan as a whole, not individual 17 Section 502(a)(2) permits ‘‘the Secretary. . .a participant, beneficiary or fiduciary’’ to sue for appropriate relief under § 409. A-31 beneficiaries, for losses to the plan; and (2) provided no im- plied cause of action for extracontractual damages caused by improper claims processing. Russell, 473 U.S. at 140, 147. Because the beneficiary expressly disclaimed reliance on § 502(a)(3), however, the Court had no occasion to con- sider whether the damages the plaintiff sought were available under that section. Jd. at 139 n.5. In a concurrence joined by three other Justices, Justice Brennan emphasized that he read the court’s reasoning to apply only to § 409(a), and that the legislative history of ERISA suggested that courts should develop a federal common law in fashioning ‘other appropriate equitable relief’’ under § 502(a)(3). Jd. at 155-56 (Brennan, J., concurring in the judgment). Justice Brennan argued that Congress “‘intended to engraft trust-law principles on- to the enforcement scheme”’ of ERISA, including the prin- ciple that courts should give to beneficiaries of a trust the remedies necessary for the protection of their interests. Jd. at 156-57. Consequently, he encouraged courts faced with claims tor extracontractual damages first to determine to what extent state and federal trust and pension law pro- vide for the recovery of damages beyond any benefits that have been withheld, and second to consider whether ex- tracontractual relief would conflict with ERISA in any way. /d. at 157-58. With respect to the first inquiry he in- dicated that any deficiency in trust law in the availability of make-whole remedies should not deter courts from authorizing such remedies under § 502(a)(3), for Congress intended in ERISA to strengthen the requirements of the common law of trusts as they relate to employee benefit plans. Jd. at 157 n.17. Finally, Justice Brennan suggested, courts should keep in mind that the purpose of ERISA is the ‘‘enforcement of strict fiduciary standards of care in the administration of all aspects of pension plans and pro- motion of the best interests of participants and A-32 beneficiaries.’’ Jd. at 158. The Corcorans urge us to apply Justice Brennan’s concurrence and hold that the damages they seek amount to ‘‘other appropriate equitable relief.’’ The defendants, on the other hand, urge us to interpret ‘“‘other appropriate equitable relief’’ to include only declaratory and injunctive relief. Under the defendants’ view of § 502(a) (3), which has been adopted by a number of circuits,!8 no money damages would be awardable and our discussion would be at an end. However, even assuming that Justice Brennan's view of ‘‘other appropriate equitable relief’’ as potentially encompassing make-whole relief is a proper construction of that section, the damages the Corcorans seek would not be available. The characterization of equitable relief as encom- passing damages necessary to make the plaintiff whole may well be consistent with the trust law principles that were incorporated into ERISA and which guide its inter- pretation. See Firestone, 489 U.S. at 110-11 (because ERISA is largely based on trust law, those principles guide interpretation); H.R. Rep. No. 533, 93d Cong., Ist Sess. _ (1973), reprinted in 1974 U.S. Code Cong. & Admin. News 4639; S. Rep. No. 127, 93d Cong., Ist Sess., reprinted in 1974 U.S. Code Cong. & Admin. News 4838 (indicating in- tent to incorporate the law of trusts into ERISA). Section 205 of the Restatement (Second) of Trusts allows for monetary damages as make-whole relief, providing that a beneficiary has ‘‘the option of pursuing a remedy which will 18 Drinkwater v. Metropolitan Life Ins. Co., 846 F.2d 821 (1st Cir.), cert. denied, 488 U.S. 909 (1988); Harsch v. Eisenberg, 956 F.2d 651 (7th Cir. 1992), petition for cert. filed, 60 U.S.L.W. 3816 (U.S. May 11, 1992) (No. 91-1835); Novak v. Andersen Corp., No. 91-1957 (8th Cir. April 9, 1992); Sokol v. Bernstein, 803 F.2d 532 (9th Cir. 1986); Bishop v. Osborn Transp., Inc., 838 F.2d 1173 (11th Cir.), cert. denied, 488 U.S. 832 (1988). A-33 put him in the position in which he was before the trustee committed the breach of trust”’ or ‘“‘of pursuing a remedy which will put him in the position in which he would have been if the trustee had not committed the breach of trust.”’ In the context of the breach of a trustee’s investment duties, “‘the general rule [is] that the object of damages is to make the injured party whole, that is, to put him in the same condition in which he would have been if the wrong nad not been committed. .. .Both direct and consequential damages may be awarded.’’ G. Bogert & G. Bogert, The Law of Trusts and Trustees § 701, at 198 (2d ed. 1982). See also Estate of Talbot, 141 Cal. App. 309, 296 P.2d 848 (1956); In re Cook’s Will, 136 N.J. Eg. 123, 40 A.2d 805 (1945). This view may also be consistent with the common law contract doctrine which assists us in interpreting ERISA. As the Court observed in Russell, ERISA was enacted ‘‘to protect contractually defined benefits.’’ 473 U.S. at 148. Prior to the enactment of ERISA, the rights and obligations of pension beneficiaries and trustees were governed not only by trust principles, but in large part by contract law. Firestone, 489 U.S. at 112-13; see also Rochester Corp. v. Rochester, 450 F.2d 118, 120-21 (4th Cir. 1971); Audio Fidelity Corp. v. Pension Benefit Guaranty Corp., 624 F.2d 513, 517 (4th Cir. 1980); Hoefel v. Atlas Tack Corp., 581 F.2d 1, 4-7 (1st Cir. 1978). It is well- established that contract law enables an aggrieved party to recover such damages as would place him in the position he would have occupied had the contract been performed, Restatement (Second) of Contracts § 347 & comment a (1981), including those damages that could reasonably have been foreseen to flow from the breach. Jd. § 351; see Warren v. Society Nat. Bank, 905 F.2d 975, 980 (th Cir. 1990) (§ 502 (a)(3) allows for recovery of beneficiaries’ in- creased tax liability after plan administrators failed to A-34 follow instructions regarding distribution), cert. denied, 111 S. Ct. 2556 (1991). However, the Corcorans seek a form of extracontrac- tual damages that is never, as far as we can tell, awarded for breach of trust duties, and is granted only in the most limited of circumstances for a breach of contract. Certainly, patients and their physicians can enter into contracts and physicians may incur liability for breach. The cases are uniform, however, in holding that there can be no recovery against a physician on a contractual theory, as opposed to the usual recovery on a tort theory of medical negligence, unless there is an express agreement to perform a par- ticular service or to achieve a specific cure. E.g., Bobrick v. Bravstein, 497 N.Y.S.2d 749, 751, 116 A.D.2d 682 (App. Div. 1986); Cirafici v. Goffen, 85 Ill. App. 3d 1102, 407 N.E.2d 633, 635, 41 Ill. Dec. 135 (1980); Depenbrok v. Kaiser Foundation Health Plan, Inc., 79 Cal. App. 3d 167, 144 Cal. Rptr. 724, 726 (1978). In a few cases, courts, recognizing a distinction between commercial contracts and contracts for the performance of personal services, have found inapplicable the general rule that emotional distress damages are not available in contract actions! and have allowed damages for emotional injuries within the contemplation of the parties. Stewart v. Rudner, 349 Mich. 459, 84 N.W.2d 816, 824 (1957) (‘‘the parties may reasonably be said to have contracted with reference to the payment of [emotional distress] damages therefor in event of breach’); Sullivan v. O’Connor, 363 Mass. 579, 296 N.E.2d 183, 188-89 (1973) (although mental anguish damages are not available for breach of a commercial con- tract, psychological injury may be contemplated in a con- 19 See J. Calamari & J *Perillo, The Law of Contracts §§ 14-3, 14-5(b), at 595-96 (3d ed. 1987); 11 W. Jaeger, Williston on Contracts § 1341, at 214 (3d ed. 1968); 5 Corbin on Contracts § 1076, at 426 (2d ed. 1964). A-35 tract for an operation) (citing Stewart). The Stewart rule, however, has not been widely adopted, and the Michigan courts recently have characterized its holding concerning damages as applying only to contracts involving deep, per- sonal relationships, Chrum v. Charles Heating & Cooling, Inc., 121 Mich. App. 17, 327 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1370%3A1. Public record. Not legal advice.