Abstract

As the shield preempting state suits under the Employee Retirement Income Security Act has been successfully pierced and Duke v. U.S. Healthcare, Inc., 57 F.3d 350 ), plaintiff attorneys have begun to use the ERISA statute itself to further litigation against managed care organizations. The court in Shea v. Esensten, 107 F.3d 625, held in a landmark decision that an HMO's failure to disclose financial incentives that discourage a treating physician from providing essential health care referrals for conditions covered under the plan benefit structure is a breach of ERISA's fiduciary duties.