§ 4.3.6.5.11 PROFESSIONAL NEGLIGENCE CLAIMS

• Jurisdiction: Arizona

§ 4.3.6.5.11 Professional Negligence Claims. The question of ERISA preemption with respect to malpractice or professional negligence claims has proven to be fertile ground for the continuing exploration of the scope of ERISA preemption. Frequently, the issue arises in the context of managed care, and the question becomes whether the health care professional was involved in plan administration or was instead the actual provider of the care. Another context exists when the professional is providing services to the plan and the question becomes whether the fiduciary duties apply or whether the provider remained within the scope of its administrative capacity and thus outside the scope of the ERISA fiduciary duty.¹⁴⁹

Although the analysis used by the courts is far more complex, as a general rule, the malpractice claim will escape preemption if the professional avoids ERISA fiduciary status. Thus, where lawyers for the plan are not deemed to be fiduciaries of the plan by conduct, the malpractice claim against the professional for misdeeds injuring the plan should escape preemption.¹⁵⁰ A court may find that the plan's accountant was not a fiduciary, and in so doing the court will likely find that the action against the accounting firm for...