Pegram v. Herdrich – Oral Argument – February 23, 2000

Media for Pegram v. Herdrich

Audio Transcription for Opinion Announcement – June 12, 2000 in Pegram v. Herdrich

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William H. Rehnquist:

We’ll hear argument now in Number 98-1949, Lori Pegram v. Cynthia Herdrich.

Mr. Phillips.

Carter G. Phillips:

Thank you, Mr. Chief Justice, and may it please the Court:

I think it is no exaggeration to suggest that the future of medical care, both in its delivery and in its regulation, are in some way implicated by the Court’s decision today.

The health care plan involved here is a standard health care plan within the employee benefits plan under ERISA.

Carle offers vanilla, plain vanilla managed care operations.

As Judge Easterbrook said in his denial of rehearing, that if Carle’s set-up violates ERISA, then all managed care does so as well.

Accordingly, the question is whether or not the court needs to have that kind of a dramatic effect on the managed care industry in this particular context, and I suggest to you that the answer to that is no, because there is a perfectly available and valid remedy for the people in Ms. Herdrich’s position, and that is medical malpractice law.

She had–

Sandra Day O’Connor:

Well now, I gather that the Ms. Herdrich did recover in a malpractice action in this very case.

Carter G. Phillips:

–In this very case, Justice O’Connor, she… the defendants were found liable, and she received 35,000 as full compensation for her… for the injuries that she suffered.

There’s no question, based on that determination, that there’s been an error in judgment and that it fell below the standards of care for medical malpractice purposes, and that there are available perfectly valid remedies under State law to her.

The question then is, is there some reason to add over those perfectly complete remedies under State law an ERISA remedy as well, and while I think that question can be posed out of narrowly–

Antonin Scalia:

The question isn’t whether there’s some reason.

The question is whether it’s been added, right?

Carter G. Phillips:

–That’s absolutely true, Justice Scalia.

The question… does Congress intend for–

Antonin Scalia:

I mean, it’s really not a policy question that’s up to us.

It’s either there or it’s not there.

Carter G. Phillips:

–That’s right.

The question is whether Congress intended to add ERISA over and above the malpractice law, and I think it’s important in making that determination to realize that this is essentially a zero-sum situation.

That is, to the extent you expand Federal law under ERISA, the more you have to narrow State law because of the ERISA preemption provision under section 514(a).

That says that every matter that is within plan administration, everything that relates to an ERISA plan, right, and therefore is protected under Federal law, preempts all State law that’s related to it, and it seems to me quite clear under those circumstances that the court should be quite loath to expansively interpret ERISA, and certainly there’s very little evidence that Congress meant to do so.

Ruth Bader Ginsburg:

Mr. Phillips, would you clarify one thing?

You said all HMO’s would fall because this is a plain vanilla scheme, and yet your opponents say that it’s only a particular kind of HMO, one where the physicians have this incentive because of their bonuses, and that not all HMO’s work that way.

Carter G. Phillips:

I think actually Judge Easterbrook, in his dissenting opinion below, had the better of that argument, and he argued, and I think quite rightly, that the allegations in the respondent’s complaint basically lay out the kinds of incentives that are inherent in any managed care operation in terms of questions of medical necessity, experimental treatment… all of the elements that go into trying to control what was in the 1980’s an extraordinarily expensive health care system are embodied in the Carle Clinic’s managed care plan, so in that sense I don’t think it is significantly different from any other managed care operation, Justice Ginsburg.

John Paul Stevens:

Mr. Phillips, could you just clarify one simple point for me?

Perhaps I should ask your opponent, but given the fact that she’s already recovered for the malpractice, what do you understand the nature of her recovery would be?

Assume she’s right and you’re wrong.

Carter G. Phillips:

I think it’s very difficult to know.

Carter G. Phillips:

Maybe you should ask him that question.

My understanding is, first she’s made no claim for damages under ERISA, and for good reason.

There are none available.

There are no benefits that she has not been provided under any plan, however you want to define it, and so there’s no basis for recovery there.

She seeks no injunctive relief, so I don’t know that, and indeed the amended Count III focuses on some kind of a treatment with respect to a pot of money when… and with respect to a plan that simply doesn’t exist, so I have no idea what it is that respondent thinks that she will gain from this, except perhaps attorney’s fees.

Obviously there is a provision for attorney’s fees under ERISA, but in terms of her own stake in this, it seems to me it is quite ephemeral, and… I’m sorry, go ahead.

John Paul Stevens:

You don’t contend there isn’t really a live case here, though?

Carter G. Phillips:

Oh, no.

I don’t contend there isn’t a live case.

What I do contend is that it’s… you know, if you go down this path, at the end of the process you’re going to be hard-pressed to come up with much of a remedy that’s going to make any difference to her at this stage in the process.

Antonin Scalia:

Mr.–

–Well, you agree there’s not a live case if she’s not seeking any remedy?

Carter G. Phillips:

Well, she is… I mean, what she is seeking–

Antonin Scalia:

Is a judgment, but not a remedy.

Carter G. Phillips:

–Is a judgment with–

Antonin Scalia:

A judgment is not a remedy.

Carter G. Phillips:

–No, no, I understand that, Justice Scalia, but what she is seeking is… I mean, her claim is that there is a pot of money and that that pot of money can be moved around.

I don’t think there’s any basis for that logically in terms of how this scheme works out, but that’s not a basis to claim there’s no jurisdiction.

That’s simply a basis to answer Justice Stevens’ question which is, at the end of the day, when it’s all said and done, if she got everything she wanted out of this, what’s likely to come out of it?

My sense is there isn’t much but, again, respondent may be in a better position to analyze that.

Sandra Day O’Connor:

Mr. Phillips, are there any circumstances under which an HMO can be found to be a fiduciary, for instance, in administering claims or benefits to which a covered employee is entitled?

Carter G. Phillips:

I think there are some circumstances in which that would be certainly the case under the narrower of… narrowest of the theories that we put forward in opposition to the judgment below.

We do have one theory in this case regarding the scope of the definition of the term, plan.

Under that, I’m not sure there would be any circumstances where the HMO would be… have fiduciary responsibilities, but under our narrower interpretation we don’t really disagree with the United States that if, in fact, you’re talking about an HMO that’s making coverage or claim determinations wholly apart from medical treatment decisions, and I want to get to that in a second, it could potentially be a situation where there would be some potential fiduciary responsibility, but then that raises a whole slew of questions with respect to what kinds of incentive plans, or incentive arrangements might breach that fiduciary duty and the issues that stem from that inquiry, none of which, I submit to you, is posed in this particular case.

Antonin Scalia:

Why is that?

Do we know that there are no such coverage determinations being made by this HMO?

Carter G. Phillips:

There is no allegation in the complaint as it’s defended before this Court with respect to coverage allegations.

If you look at the respondent’s brief at page 9, she could not be clearer in arguing that the exclusive focus of the case is… let me see if I can find the language here.

The sole focus of attention of amended Count III, which is–

William H. Rehnquist:

Where are you reading from, Mr.–

Carter G. Phillips:

–I’m sorry.

It’s on page 9 of the blue brief.

I mean, of the red brief.

I apologize.

William H. Rehnquist:

–Whereabouts on page 9?

Carter G. Phillips:

It’s sort of in the middle, as I recall.

I’m sorry, the last sentence of the second full paragraph–

William H. Rehnquist:

Thank you.

Carter G. Phillips:

–and I’ll just quote it.

The sole focus of attention of amended Count III is the design and administration of an undisclosed physician incentive to withhold treatment.

I think the only fair way to interpret that language is to say that what we’re talking about here is basically the provision of care, the provision of medical care and the methods of compensation.

Antonin Scalia:

To people who are covered?

Carter G. Phillips:

Yes.

Antonin Scalia:

To people who are covered, not excluding people from coverage?

Carter G. Phillips:

Right, exactly.

Ruth Bader Ginsburg:

Suppose you–

–But Mr. Phillips, maybe… maybe your opponent thought it unnecessary to say anything to that effect because in your very own memorandum in opposition to the plaintiff’s motion to remand to the State court you allege that… and this is on page 24a of the brief in opposition… you allege that Health Alliance was the administrator and fiduciary of the plan within the meaning of ERISA, so if you yourself alleged that Health Alliance was the administrator, then certainly you lull the other side into security on that point.

You had conceded it.

Carter G. Phillips:

Well, I think you have to read that in context, Justice Ginsburg.

I mean, we certainly conceded it for purposes of the disclosure issues and the bad faith claims that were the basis for the remand order, or the remand issue in that context.

We have never conceded that we were a fiduciary for purposes of the amended Count III complaint.

We have consistently argued that we have no fiduciary responsibilities with respect to claims in Count III, and in any event, even if the respondent’s memory lasted long enough to sort of have that uppermost in her mind at the time she filed her brief in this Court, we had clearly laid out our theory of this case, which is that we are not a fiduciary for these purposes.

Her defense of the judgment below is very focused, and I think it spares the Court a significant amount of time and energy having to sort out a variety of the issues that have frankly divided the Solicitor General and the petitioners in this case, questions of what goes into plan design as opposed to fiduciary responsibilities, questions of how broadly do you define the plan and its benefits.

None of those issues are any longer on the table.

What is on the table is whether the provision of medical care and the methods of compensation for medical care, right, are part of, quote, plan administration within the meaning of section 1002(21)(A), which is the definition provision in ERISA for a fiduciary, and it is completely counterintuitive to suggest that plan administration extends to the provision of medical care, just as a matter of simple language of the statute.

And then second, and what I think is really the most driving force in all of this, is the relationship between Federal and State law, because it seems to me absolutely inconceivable that if the Court were to decide that these kinds of medical treatment judgments and the compensation schemes that go into them are, in fact, administration of an ERISA plan, that that then doesn’t preempt all State law that relates to those issues, which means–

Anthony M. Kennedy:

Suppose that you go to your doctor and you give him or his staff your health care policy, your HMO policy and you say, I can’t understand this stuff.

Is my operation covered or not?

And the doctor says, no it isn’t, because he doesn’t want to do it, it’s too expensive, et cetera.

Then you elect not to have it and something happens.

Anthony M. Kennedy:

Is there some gray areas where the doctor may be wearing two hats and really be determining eligibility for you, because you do… I’m sure patients do rely on doctors to tell them this type of thing.

Carter G. Phillips:

–I think there is a possibility of a situation like that arising.

That’s certainly not the allegation in the complaint here.

I think in that situation, though, you still have to take a very careful look at, you know, if we’re just talking about a physician making a statement and making a mistake, I don’t think that’s part of the exercise of discretion in plan administration.

That’s simply potentially a breach of contract that somebody could deal with differently.

You know, the key here is, to what extent do you want to drive in the elaborate mechanisms of ERISA as part of an effort to interfere with the relationship between the physicians and the patients in the HMO context, and my own judgment is the Court would be quite better served by trying to move ERISA back further in the scheme of things, but at a minimum it certainly shouldn’t be intruded into the physician-patient relationship to the extent of deciding what kinds of medical treatment judgments are valid, and what kinds of compensation schemes are permissible.

Anthony M. Kennedy:

Do we talk about the employee or the patient’s legitimate expectation as to what that employee is receiving from the doctors?

They go to the doctor either for medical care or for advice about what the plan means.

Is that the beginning point, the legitimate expectations of the covered employee?

Carter G. Phillips:

I think it would be a mistake to hinge ERISA scope on the subjective intent of the patient under these circumstances.

Anthony M. Kennedy:

Reasonable legitimate expectations.

Carter G. Phillips:

Well, even that I think is probably a mistake, because the question… the question is, you know, you’re in a fiduciary world when you’re administering a plan, and the question is… and then you have… because then you have a whole series of questions, is there a breach of fiduciary duty, and what the remedy for it is, and what I’m suggesting is, I don’t think the Court wants to get into the business of saying that this is, in fact, a fiduciary relationship based on ERISA.

It’s certainly a physician-patient fiduciary responsibility.

Stephen G. Breyer:

But how do we get out of… I mean, the statute says that a fiduciary is a person under ERISA.

An ERISA fiduciary is a person who exercises discretionary authority or control respecting management of a plan who has any discretionary authority or responsibility in the plan’s administration.

That’s what the statute says.

Carter G. Phillips:

Right.

Stephen G. Breyer:

Then what they’ve alleged… whether it’s true or not, they’ve alleged it.

They say that these people here, the HMO, have been given by contract the authority to administer disputed claims.

I take it that they’ve been given by contract the authority to decide, am I covered by the policy that my employer bought, or am I not, and in particular they say that’s true of emergency treatment, that’s true as to whether something is… is it routine, is it experimental, which plans are covered, which claims are covered, which are not.

Now, that’s their allegation, so how in your view is that not administering the discretionary administration of the employer purchase plan itself?

Carter G. Phillips:

Well, there are two answers to that, Justice Breyer.

Under our broader theory none of this is within the… an employer welfare benefit plan, in which case none of this is subject to any kinds of ERISA requirements, but the second, and I think the more pointed answer to that really comes to the question of what has she in fact alleged, and can you read the complaint potentially to embrace what you’ve described–

Stephen G. Breyer:

Oh, I just read, was reading from the–

Carter G. Phillips:

–Justice Breyer, but the question is, what does she mean by those particular words, because all she’s really doing there is alleging how the plan operates and then using the statutory language.

But go back to page 9 of her brief, Justice Breyer, and analyze exactly what it is that she says.

The sole focus of that complaint, that entire count of that complaint, is limited to the question of financial incentives to deprive someone of particular medical treatment.

That’s what she’s defended the judgment of the Seventh Circuit reinstating her claim on, that’s what’s before the Court, and I don’t see why the Court should go beyond that analysis in trying to resolve what otherwise seems to me a very significant thicket that it would other… that it would have to address.

Stephen G. Breyer:

–So you say forget Roman numeral ii, small ii, just focus on i.

Carter G. Phillips:

Just read it in the way the respondent has asked you to read it.

Carter G. Phillips:

I’m not asking you to do any more than the respondent has pitched this argument to you herself.

There’s no reason to start over.

Let’s start where the respondent starts and analyze the case.

Ruth Bader Ginsburg:

But then you’re making of this a pleading case.

You’re saying she didn’t allege it, not that she couldn’t allege it.

Carter G. Phillips:

Right.

Ruth Bader Ginsburg:

So if we accept your position it goes back, and they amend the complaint to say no, we’re talking about the role of this HMO in making eligibility and coverage determinations.

Carter G. Phillips:

You assume, Justice Ginsburg, that she simply somehow made a mistake here rather than a conscious judgment to attack what it is that is the gravamen of her complaint.

Her complaint is not a coverage issue.

Her complaint is the quality of care that she received.

It is bound up in the malpractice claim that she brought, so that’s–

William H. Rehnquist:

In a sense this has to be a pleading case, because the district court granted a motion to dismiss.

Carter G. Phillips:

–Oh, absolutely, Mr. Chief Justice.

On the other hand, it is also a case that comes to the Court as presented by the parties, and the respondent has told you how she defends the judgment below, and I think the Court ought to accept that.

Antonin Scalia:

Mr. Phillips, is it clear that making a determination as to coverage is the exercise of discretion in the administration of a plan?

Carter G. Phillips:

No, it’s not clear.

I mean, there are a whole slew of questions.

Antonin Scalia:

I hate to depart from that as a premise, because I’m not sure that premise is correct.

Carter G. Phillips:

I don’t accept that premise either, but what I’m asking the Court to do is to avoid having to address that issue by reaching what I think is a narrower and much simpler ground for reversal in this particular case.

David H. Souter:

Let me ask you a… it may be a too-simple question, but I understand your answer to Justice Breyer, but I think, like him and maybe some others here, I can’t help but think of what the next case is going to be, depending on how narrowly or broadly we might decide this, if we decide it in your favor.

Is there a kind of a simple-minded administrative answer to some of our problems, and what I’m thinking of is this.

Let’s assume that there can be some decisions about coverage which, if made in bad faith, would, in fact, be decisions about the management of the plan and that would, in fact, if made in bad faith, involve a breach of fiduciary duty.

The assumption that I have made is that characteristically those decisions are not made by physicians, that someone walks into a clinic or an office and gets some treatment.

In an HMO, when they go in the person at the front desk says, the plan doesn’t cover appendixes.

Doctors don’t make decisions like that, by and large.

When there’s a true reimbursement scheme the procedure is done, the claim is submitted to the insurance company, and somebody in an office somewhere says, oh, this plan doesn’t cover appendixes, so most of the decisions which might be called management decisions, which, if made in bad faith could arguably be breaches of fiduciary responsibility, are probably not going to be physician decisions.

Am I being too simple-minded in looking at it–

Carter G. Phillips:

No, Justice Souter, and I don’t have–

David H. Souter:

–If I am, you’re going to be in trouble later.

[Laughter]

Carter G. Phillips:

–I might be in trouble already, but… no, I don’t have any problem with that.

All I’m saying is that in this context what she’s complaining about is the physician decision to withhold treatment.

David H. Souter:

Right.

Carter G. Phillips:

The Court ought to just focus on what it is she has alleged and leave for another day the situation you pose.

I don’t concede it, but I don’t think the Court needs to address it at this time.

Antonin Scalia:

In his hypothetical the person at the front desk may be an employee of the physician’s.

I mean, that’s… that’s the gravamen of this complaint.

Carter G. Phillips:

I assume that was–

Antonin Scalia:

The whole HMO is owned by physicians, so you know, if some secretary at the front desk… it’s the physician’s, because they own the HMO and employ the secretary.

Carter G. Phillips:

–That’s true.

I mean, I understand that, but again, I don’t know why we would go beyond the specific allegations in the complaint, as defended by the respondent here.

I’d reserve the–

Ruth Bader Ginsburg:

Mr. Phillips, wasn’t it emphasized by the other side that if only there were somebody else making the coverage and eligibility decisions, if only that, they would have no complaint?

I thought that that was very clear from the respondent’s presentation, that they weren’t complaining about treatment, that the only thing they were complaining about was having the coverage eligibility determination made by the physician.

Carter G. Phillips:

–Well, I would read page 9 of their complaint once again and tell you what the sole focus of their claim is, which is that the physician-incentive system causes the physician to withhold… I mean, the compensation system causes the physician to withhold treatment.

That’s the allegation that she’s put before the Court.

William H. Rehnquist:

Thank you, Mr. Phillips.

Mr. Feldman, we’ll hear from you.

James A. Feldman:

Mr. Chief Justice, and may it please the Court:

It’s our position that the treatment allegations of the complaint, which regard the incentive to the physicians, to the treating physicians concerning their treatment of their patients, are governed… essentially State claims that are governed by State law but are not governed by ERISA because they don’t have to do with fiduciary duty under ERISA.

On the other hand, the administration allegations of the complaint, if there are any there, and it’s unclear to me whether there are or not, but insofar as the complaint is alleging that there was deficiencies that have to do with the claims processing function of the HMO, that is an activity that is governed by ERISA and not State law.

However, it’s our position that they did not… that the complaint does not allege a violation of ERISA’s fiduciary duties with respect to those issues.

David H. Souter:

It’s also your position, I take it, that not every claim of an error in the claim processing function without more would state a breach of… a claim for breach of fiduciary duty?

James A. Feldman:

That’s true.

David H. Souter:

In other words, if they just get it wrong, if a fiduciary just gets it wrong, that’s not a breach of fiduciary duty without something more.

James A. Feldman:

That’s true, but insofar as the fiduciary is someone… it’s an error that had to do with the exercise of discretion under the plan in deciding what… whether a certain kind of procedure is covered, then it would be a breach of fiduciary duty.

I’m not sure it makes that much difference, because if it’s just an error in construing the plan, the claimant would have a claim under 502(a) for the benefit that was due in any event.

Antonin Scalia:

How do you… you see, I never thought that a judge has discretion in deciding whether the law means this or that.

There’s a right answer and a wrong answer.

The judge tries to find the right answer, and isn’t it the same thing when somebody determines plan coverage?

Antonin Scalia:

It seems to me strange to talk about discretion in determining plan coverage.

Why is that a discretionary administration of the plan?

James A. Feldman:

I think discretion in this sense is used in the terms of applying the plan terms to a wide variety, sometimes fairly vague plan terms to a wide variety of different cases, and that does have something in common with what judges do, and judges do exercise discretion sometimes, but in the Varity Corporation v. Howe, the Court said… I’m reading from page 511, 516 U.S. on 511… a plan administrator engages in a fiduciary act when making discretionary determination about whether a claimant is entitled to benefits under the terms of the plan documents.

So at some point there is a fiduciary, and… who… where that person has some discretion, is making a judgment about applying some broad terms to maybe a particular set of facts, or construing what the terms mean, that person does become a fiduciary under ERISA.

Now, it’s our position that a doctor doesn’t merely by accepting a patient and forming a doctor-patient relationship.

Within a doctor-patient relationship, as it has long been understood, the doctor’s duties are governed by principles of medical ethics and by State law, and ERISA basically has nothing to do with that, whether it’s provided by an HMO or not.

But where… and if… and in this case that’s all that apparently happened, in fact, to the plaintiff, but where there is a claim made, not… which is generally not… may or may not be made to a doctor, it may be some other functionary, but somebody who’s not… doesn’t have a doctor-patient relationship with the plaintiff, if a claim is made that somebody wants something covered, that triggers the claims processing function of the plan and can trigger ERISA’s fiduciary duties.

John Paul Stevens:

May I ask you a question?

The definition of what fiduciary duty is, that they must always discharge the duties solely in the interests of the participants and the beneficiaries, so that if you take this literally, and if you say that’s a fiduciary responsibility, every debatable case would have to be ruled in favor of the beneficiaries.

James A. Feldman:

Right.

I don’t think that’s right.

They have to faithfully apply the terms of the plan.

That’s their primary duty, and I will say that… well, the primary duty is to–

John Paul Stevens:

It doesn’t mean you always have to rule in favor of the–

James A. Feldman:

–That’s right.

In fact, the fiduciary 1104… it’s capital (D) there, I think… specifically says that the fiduciary has to comply with the plan documents and with the plan–

John Paul Stevens:

–If you have an ambiguous plan document, if its duty is to act solely in the interests of the participant or the beneficiaries, it’s a pretty tough standard.

James A. Feldman:

–Well, I… I don’t think it’s, though… I think the sense of, in the interests of the participant or the beneficiary, what that means there is to make determinations under… as to what’s covered and what’s not covered in accordance… strictly in accordance with the terms of the plan, not in accordance with other considerations either for or against the particular individual, because that beneficiary doesn’t have the right to anything, other than what the plan document’s entitles him or her to.

David H. Souter:

But Mr. Feld… that makes perfect sense except when you bear in mind what you said a moment ago to Justice Scalia.

We have language in these plans in which there’s a range in which reasonable judgments can be made and still be faithful to the language, and in that situation I think Justice Stevens, the answer to Justice Stevens’ question has got to be, it’s always got to be made in the patient’s favor.

James A. Feldman:

No, I don’t think that that’s–

David H. Souter:

You’ve always got to choose the point in the reasonable spectrum that gives the plaintiff what the… the patient what the patient wants.

Either that or it’s not a discretionary judgment.

Yeah.

I don’t see… I don’t see any–

James A. Feldman:

–In fact, the Court–

David H. Souter:

–Or it’s not a fiduciary–

James A. Feldman:

–In fact, the Court has held, I think, quite to the contrary, that where a fiduciary under ERISA is given discretion by the plan to make those kinds of determinations, courts will accord deference to the discretion given to the fiduciary–

Ruth Bader Ginsburg:

–Mr. Feldman, I had thought–

James A. Feldman:

–within some range where the fiduciary doesn’t have… isn’t… the plan documents don’t give the fiduciary any discretion and the courts don’t accord it and will decide any legal suits that arise from it based just on the terms of the plan.

Ruth Bader Ginsburg:

–You seem not to be taking the position that I thought would be the one that you would take, which is that the word beneficiaries is plural, and sometimes what may be in the best interests of a particular plaintiff could be against the interests of the class of beneficiaries.

That came up in the former pay-for-services–

James A. Feldman:

The… it’s… there are certainly many circumstances under which ERISA fiduciaries do have a duty to the plan as a whole, where, for example, they are sitting on a trust, on some assets.

How they spend that… which does not… was not true here.

How they spend that money, they have a duty to the plan and to all of the beneficiaries there, but I think when you’re talking about a claims administrator at an insurance company or an HMO, their duty is to apply the plan documents to this individual and however it comes out, it comes out.

They shouldn’t be saying, well, I don’t want to give this individual benefits because it might somehow save money for the employer and the employer might therefore–

William H. Rehnquist:

–Mr. Feldman, couldn’t the administrator say, if I resolve every single debatable point in favor of each beneficiary, other beneficiaries are going to suffer?

James A. Feldman:

–Well, you know, I just don’t think that that’s quite right, because this person, fiduciary, this kind of limited purpose fiduciary… it’s not a general fiduciary who’s a trustee of the plan, but it’s someone who’s just a fiduciary insofar as this person is making… is ruling on a claim for benefits.

This person… all this person should be keeping in mind is, what are the terms of the plan, and how does that apply to this particular claim.

William H. Rehnquist:

Yes, that’s–

James A. Feldman:

And because there’s a contract here the fiduciary is supposed to be applying that contract to the terms of this claim, and whatever it permits–

William H. Rehnquist:

–You yourself had said the terms can be very vague.

James A. Feldman:

–Right, and they should be construing them in a reasonable, consistent way, and so on, not always… certainly not always in favor of the beneficiary, not against the beneficiary.

Stephen G. Breyer:

Well, what we’re talking about here is not a particular decision in relation to a particular beneficiary, I thought.

I thought we were talking… what they allege is that a plan that sets up a certain structure with economic incentives is wrong, and when you decide what kind of a plan, can’t you take the interests of all the beneficiaries into account?

James A. Feldman:

That’s… yes.

Stephen G. Breyer:

And that, isn’t that the issue before us?

James A. Feldman:

That’s correct, except–

Stephen G. Breyer:

All right.

Except–

James A. Feldman:

–Except–

Stephen G. Breyer:

–When you apply it you have to look at this beneficiary, but when you’re deciding specifically whether to have a rule that gives an incentive to doctors to do X, Y, or Z, that’s a matter for all the beneficiaries, isn’t it?

James A. Feldman:

–Except that if the HMO… as far as the treatment, what we call the treatment allocations–

Stephen G. Breyer:

Well, you… yes.

James A. Feldman:

–the HMO is deciding that as a matter of how to pay its employees, and it really has nothing to do with ERISA at that point.

Stephen G. Breyer:

Well, but that’s on your question as to assume–

James A. Feldman:

As far as the other side–

Stephen G. Breyer:

–Assume they are a fiduciary for the sake of argument.

James A. Feldman:

–We’re… and they are a fiduciary insofar as people go and make claims, not in the doctor-patient relationship, but to the–

Stephen G. Breyer:

All right, so your argument is that what gets them out of this is, they’re not fiduciaries in respect to making up the incentive rules under the plan.

James A. Feldman:

–But as far as the doctors are not.

Now, as far as how they are paying the people who are making the claims, when the claims are being processed it’s both the HMO and the individual who’s doing it who become fiduciaries… who become fiduciaries for that purpose, and insofar as they’re doing that, there may be some fiduciary limits that ERISA places on the kinds of incentive structures.

We gave an example in our brief.

If the HMO said to its claims people something which… you know, I’m not suggesting anybody has done this, but we’re going to give you a bounty of 100 for every claim you’ve denied–

Stephen G. Breyer:

Okay.

That’s my question.

James A. Feldman:

–I think that would raise a serious problem.

Stephen G. Breyer:

All right, fine.

If in some circumstances it can, a particular incentive structure, created by some administrators who maybe are a part of the organization they’re suing, could, in fact, violate ERISA, and in other times it wouldn’t violate ERISA, what’s the principle as to when it does and when it doesn’t?

James A. Feldman:

And I would… our position is that the… you start off from the point that ERISA specifically recognizes that benefits can be provided through insurance or otherwise.

Now, an insurer is always in a position, whenever a claim is made against an insurance policy, just like an HMO–

William H. Rehnquist:

Thank you, Mr. Feldman.

Mr. Ginzkey, we’ll hear from you.

James P. Ginzkey:

Thank you, Mr. Chief Justice, may it please the Court:

Mr. Phillips indicated that it’s no exaggeration to indicate that this particular lawsuit is an attack on managed care as a whole, that what we have is a standard plain vanilla HMO.

I beg to differ with that.

We don’t have, in this case, a standard, plain vanilla HMO, and maybe drawing a comparison to another type of HMO is the best example of what I’m trying to describe here.

Take an HMO like Humana.

Humana is a publicly traded corporation.

There are over 167 million outstanding shares of Humana stock.

The owners of the Humana stock, as owners, are a group of people that are separate and distinct from Humana, the company that employs the claims reviewers and the medical directors.

Separate and apart from that group is then the contracted physicians that provide the services, so in many, if not most HMO’s, you’ve got three distinct groups.

You’ve got the owners, separate and apart from the employees of the company making the claims decisions, separate and apart from the doctors who are providing the primary care.

Here, all three groups are one.

They’re all one entity.

Stephen G. Breyer:

But what has that to do with it, because if they had it separate, then your clients or some future clients would simply sue the right group.

I mean, I take it the underlying substantive question is, whoever is making this decision, you’re saying it’s a breach of a fiduciary relationship to have a set of economic incentives that makes them look at costs as well as health.

Now, the separation issue is one, that even assuming you’re right on that, it’s very hard for me to believe in respect to cost incentives that the same Congress that in 1973 wrote an HMO act, and the same Congress that has provided for incentives that encourage HMO’s throughout, in ERISA, without saying anything, wanted to gut its own HMO legislation.

Now, that’s where I start on this, and I put that up front, because I want to know how your theory doesn’t achieve a result that I just find it very hard to believe Congress wanted.

James P. Ginzkey:

The Health Maintenance Organization Act was passed in 1973.

James P. Ginzkey:

ERISA was passed in 1974.

In 1974, we did not have the forms of managed care that we now have.

With respect to the HMO act of 1973, that is enabling legislation.

It does not specify anywhere in that act what cost containment mechanism should or should not be used.

That is not specified, and it to my knowledge is not specified by any… in any regulation by the Department of Labor or any other bureaucracy of the Federal Government.

The phenomenon that we have with respect to these physician bonuses, the physician incentives, is a relatively recent phenomenon.

It first came to the Government’s attention in the 1986 report by the GAO, where they concluded that incentives seem to have a deleterious effect on the health of the patients being treated by the doctors who are incentivized.

Stephen G. Breyer:

What they’re saying is that we think, for example, if you have a group of people who look after a child from the time it’s born to the time it dies, they’ll get interested, through our incentives, in what’s called preventive care, and will end up with a lot less disease.

Now, to do that, you have to have doctors who pay attention to patients all across the board, and you also have to tell those doctors, don’t use the most expensive treatment before you look at what will actually benefit the patient throughout the cost of his life.

James P. Ginzkey:

And we’re not suggest–

Stephen G. Breyer:

The whole course of his life.

Now, that, I take it, is the theory that underlies these kinds of cost incentives that are built into the plan.

Now, if Congress… doesn’t Congress make that judgment with HMO’s, or similar kinds of judgments?

James P. Ginzkey:

–No, I don’t believe that Congress does make–

Stephen G. Breyer:

What is your… but I’m asking not my theory, I’m asking your theory on this.

James P. Ginzkey:

–Well, and I want to come back to the question that you posed immediately before that, and that question was, why does it make a difference that in this particular structure, this corporate structure of this HMO, you’ve got the employees who are making a claims decision, the medical directors, all four of them, being the same doctors who profit from that bonus at the end of the year.

You don’t have an independent third party administrator making those claims decisions.

That’s one of the major distinctions in this case.

It also explains some of the Solicitor General’s, I think misconceptions with respect to various relationships of the parties, because the doctors that are the owners, the sole owners of the HMO, and employ themselves as the primary care physicians, aren’t dealing at arm’s length.

One of the positions of the Solicitor General is that you can’t have any limitations, as we suggest in this particular case, upon an HMO’s right to contract with doctors.

That assumes that the contracting that’s going on is at arm’s length.

It’s not here.

They’re one and the same entity.

Ruth Bader Ginsburg:

How many HMO’s fall in this pattern of physician-owned… you said that you thought most were not that way.

Do you have any idea how many are?

James P. Ginzkey:

I don’t have percentages, Justice Ginsburg.

I can tell you that there are a substantial number of doctor-owned HMO’s, but I’m not aware of one that is structured like this, where the doctors not only are the owners, and employing themselves on the opposite end, they’re also the decisionmakers in the middle.

William H. Rehnquist:

But if you don’t have many doctors, they presumably can’t afford to hire an independent administrator.

I mean, if you’re going to have a small organization.

James P. Ginzkey:

I don’t know what the cost of a third-party administrator would be, but I can tell you that the cost in-house is getting paid for by the premiums being charged in any event.

Antonin Scalia:

Mr. Ginzkey, I didn’t get your response to Justice Breyer’s question about what difference does it make whether there’s separation or not.

Let’s assume that doctors don’t make the decisions, so you have some other organization that makes the decisions.

So long as that organization has the same incentive of keeping costs down, wouldn’t that organization fall prey to the same complaint that you make here?

James P. Ginzkey:

No.

Antonin Scalia:

It isn’t… nothing distinct about doctors making it.

Your complaint is that whoever is making the decision about what treatment ought to be given has a financial incentive that is not necessarily coincident with the best interests of the patient.

That’s going to be the case whether it’s the doctor doing it or somebody further up the line, so long as you have this kind of an HMO.

James P. Ginzkey:

The difference is, Your Honor, that the claims administrators with a third party administration firm aren’t getting paid to deny the claims, and that’s what’s happening here, because the claims administrators of this HMO are the very owners of the HMO that share in the year-end distribution.

The year-end distribution is not something that isn’t controlled by the physicians to a certain extent, because these are actuarially underwritten plans, and by that I mean this.

When the HMO makes a bid to State Farm Insurance that we’re going to cover this particular individual at 100 per month, that’s what it’s going to cost us to provide that health care for that much for that individual, that’s not the premium that is charged.

There’s a premium loading factor that is added in here, and what–

Antonin Scalia:

You say that they have to bring in not only somebody other than the doctors, but somebody other than the doctors who has no financial interest in the whole enterprise.

James P. Ginzkey:

–No, not–

Antonin Scalia:

Hire some firm to make medical decisions of whether you get this operation or not–

James P. Ginzkey:

–Not some–

Antonin Scalia:

–some firm that is not the owning doctors of the HMO and that also has no financial interest in the whole enterprise.

James P. Ginzkey:

–No, Your Honor, that’s not what I’m saying.

Antonin Scalia:

Well then, I don’t know–

James P. Ginzkey:

I’m saying that you’ve got to have somebody that is making those claims decisions that doesn’t have a basis, isn’t receiving money to deny the claims, because that’s what’s going on here.

William H. Rehnquist:

–But that’s–

–Well, supposing you hire–

–That’s what I said.

Supposing a small group of doctors hires an administrator and the administrator administers claims, and then the doctors tell him, you know, you’re just allowing a lot of stuff we don’t think you should allow, and as a result our income is going down.

What’s the result there?

James P. Ginzkey:

Here, if I can draw on the analogy, or the explanation I was trying to give earlier, here what you have is the, let’s say 100 per member per month cost of providing the medical care.

That’s increased.

There’s premium loading factors, generally about 20 percent, that’s added on right on top.

That 120 then is paid on a monthly basis to the HMO.

The 20 profit is taken off the top.

That constitutes profit, administration costs and costs of advertizing, but–

William H. Rehnquist:

Well, but you’re giving your own hypothesis, but I put a hypothesis to you that I wish you would respond to.

James P. Ginzkey:

–And I’m trying to respond to that.

William H. Rehnquist:

Would you respond a little more directly?

James P. Ginzkey:

I think that there is a difference between the scenario that you have suggested and a scenario where the claims determiners are the ones who are doing the determination of the actuarial underwriting so that they know what’s going to be in that risk pool at the end of the year and, to the extent that they can deny claims, there’s more money in the risk pool for distribution at year-end to them.

David H. Souter:

Well, there’s a difference perhaps in degree.

There is a difference in the degree of finesse, but isn’t… at the end of the day, isn’t the operative fact that in any HMO the interest of the HMO and the interest of every employee, whether… of the HMO, whether it be a doctor or a nondoctor administrator, is to hold down health cost, because unless they do so the HMO is going to go out of business?

And it seems to me that that interest is there, whether it is in the stark shape that it takes here, or whether it’s in a more subtle shape which it takes on your hypothesis of what is right, but the same interest is there, and it seems to me that it is equally… if the interest in this case is at odds with fiduciary duty, I don’t see why the interest in the more subtle case isn’t equally at odds with fiduciary duty.

James P. Ginzkey:

It’s the mechanism that we’re focusing on here, Your Honor.

David H. Souter:

But why… I know it is, but why does the mechanism make a difference, because what you say is wrong with the mechanism is that it induces these so-called fiduciaries to say, no care for you, but that same mechanism operating at a perhaps less obvious level is inherent in any HMO, so I don’t see why the mechanism makes the difference.

James P. Ginzkey:

The mechanism makes the difference here because these physicians in their capacity as owners of this HMO are getting paid bonuses to deny care, and let me explain that a little bit further.

Counsel indicates that on page 9 of our red brief we took the position that the sole focus of attention of amended Count III is the design and administration of an undisclosed physician incentive to withhold treatment.

That’s taken out of context.

That entire paragraph on page 9 deals with cost containments, and what we’re saying is, we’re only focusing on one cost containment mechanism.

We’re not arguing about, for instance, pre-certification.

Pre-certification is a cost containment element that can be used, employed by managed care, that is going to lower health care costs, but it’s not going to be a situation where the doctor is getting paid a bonus to look the other way when somebody is sick so–

David H. Souter:

In effect, the… the rule of decision that you want us to come down with I think is, we’ve just got to draw lines here and say, the breach of fiduciary duty is clear when the doctors get a year-end payment and make the decision.

There is, however, no breach of fiduciary duty, or at least not a cognizable one, when the interest between denying coverage and ultimate compensation is more subtle than that.

That’s the rule of decision that you want?

James P. Ginzkey:

–I am not asking this Court to outlaw physician incentives, to declare them illegal.

David H. Souter:

Right, and in order not to do so, aren’t you asking us for a rule of decision something like what I just put to you?

James P. Ginzkey:

There is going to have to be a line drawn, and I think that the line is drawn with reference to incentives reaching the level of undue influence so that it affects patient care.

Stephen G. Breyer:

Now, suppose… you may have a very good answer to this, and I’m on exactly the same track, but take as separate a person as you want, you know, somebody who has nothing to do with doctors, that works for the ERISA trust plan of a company, and that person says, here’s what our plan’s going to do.

We’re going to take a bunch of doctors, and we’re going to pay them 3,300 per patient per year, and we say, doctors, you take on some patients.

Now, we’ll tell you about this money.

What you don’t spend, you keep.

All right?

That’s our rule.

And now what’s sort of… what’s bothering me is that the rule that you want would outlaw the rule that I just said, and why isn’t that so?

James P. Ginzkey:

Because the rule that we’re suggesting here is not that broad, Your Honor.

Stephen G. Breyer:

I know, but what I… see, my rule draws its strength from the fact that we know there are a group of ethical rules governing medicine, and doctors, we believe, governed by this when they take the 3,300, will try to look for the best way of saving the patient anyway, and if they can do so with a little saving extra money, that’s to their benefit.

Stephen G. Breyer:

So that’s why my rule sounded okay.

Maybe it’s true, maybe it’s not, but your role sounds as if it abolishes my rule, so now, how… why not?

James P. Ginzkey:

Because that type of incentive doesn’t rise to the level of undue influence that is going to have a deleterious effect, necessarily, on patient health care, and let me point the Court to the study that was performed in 1998 out in California.

Excuse me.

It was published in 1998, in the New England Journal of Medicine.

It was 766 primary care physicians in the State of California.

A questionnaire went out.

I believe it was anonymous.

A questionnaire goes out, do you have any incentives in your managed care or HMO plan?

Yes.

40 percent of them have incentives.

Do they influence you, at least to some degree?

Over 50 percent say, yes, they influence us to some degree.

Third question, are they unduly influencing you, and that’s not the word that’s used in the report.

What they say is, or what the doctors say, 17 percent of them in that study, and I think that that study is probably representative of health care in the United States, what 17 percent of those doctors in California say is that those incentives are high enough, large enough that they feel it does compromise quality of care.

That’s what the physicians say.

That’s what they’re telling us.

We don’t have to hypothecate.

William H. Rehnquist:

Well, do you think they all attributed the same meaning to the word unduly, which is extremely vague?

James P. Ginzkey:

That was my term, Your Honor, and that was a bad term.

The–

William H. Rehnquist:

What did the questionnaire say?

James P. Ginzkey:

–Are the incentives high enough that it is having a significant, deleterious effect on health care that you’re providing, and 17 percent of them said yes, so–

William H. Rehnquist:

Well then, I take your answer to be that you’re saying that I thought what was a good legal rule isn’t, and you don’t mind that if I decide for you we also make unlawful under ERISA the rule that I talked about, the 3,300 per patient, or are you going to distinguish it?

James P. Ginzkey:

–I think you have to distinguish it.

William H. Rehnquist:

All right.

Now, can you tell me… maybe you’ve said this already, and I’m sorry if I’m asking you to repeat it, but the distinction precisely between the one I had and the one you want is?

James P. Ginzkey:

Depending on what the rate of capitation is in your hypothetical, it might be a violation of the rule that I’m suggesting, but what I’m suggesting is that the courts should make that determination on a case-by-case basis and just not exempt entire groups–

Sandra Day O’Connor:

Well, Mr. Ginzkey–

James P. Ginzkey:

–from ERISA.

Sandra Day O’Connor:

–why should the courts get into this slippery slope problem that you’re posing for us when Congress has designed a scheme that’s built on private furnishing of health care through health maintenance organizations that are privately owned, and where there are inherently incentives to keep costs down at the HMO in order to provide the care and make it pay for itself?

And that’s the scheme Congress has authorized, and they are served by doctors that have ethical obligations in the treatment of patients, and I suppose Congress relied on the ability of the enforcement of those ethical obligations to curb what otherwise might appear to be an unfortunate financial incentive to cut costs, and I… why should the courts get involved in this messy business of deciding what scheme is an undue infringement and what isn’t?

James P. Ginzkey:

Let me respond firstly by saying I’m only aware of one case where a Federal court specifically addressed the issue of whether or not the ethical opinions promulgated by the American Medical Association are enough to counterbalance an incentive that a doctor might have to cut care, and that decision I cited in my… I believe it was the reply at the writ stage, and that court decided that the ethical opinions aren’t enough to counterbalance strong financial incentives, and therefore we can’t rely on the physicians’ ethics in situations like this.

But let me get also to the question that you posed concerning why should you get involved.

This Court in Varity v. Howe said that Congress, when it passed ERISA, adopted the common law principles of trusts.

Congress didn’t specify what the courts were supposed to do in each and every case.

Congress said that the courts across this land should look at pension benefit funds, or pension benefit programs, or welfare, health care programs, applying the law of trusts, and try to determine, using the principles of equity under the law, common laws of trust, what is acceptable and what’s not acceptable.

John Paul Stevens:

Can I ask you the question I asked your opponent at the beginning of the case?

What’s really at stake for your client in this case, at this stage?

James P. Ginzkey:

My client does not stand to profit individually or personally from this case.

What we are seeking is to recoup the bonuses that we believe are paid in violation of fiduciary duties under ERISA.

William H. Rehnquist:

Recoup it for the plan?

James P. Ginzkey:

For the plan, and hopefully a couple of different things happen.

Premiums come down for a period of time, or coverage is broadened for a period of time, or a combination of the two for a period of time, but with reference to a broad attack on managed care, that can’t happen under ERISA, because under ERISA the plaintiff can sue only on behalf of the plan, unless it’s a denial of benefits, and then you get the cost of the benefits back, but under no circumstances do plaintiffs get compensation for pain and suffering, mental anguish, and there’s no compensation or payment for–

John Paul Stevens:

And who would the… if there’s this money that should… that’s been accumulated, who would get the fund?

Would it go back into the HMO, or would it go to the–

James P. Ginzkey:

–To the risk pools.

To the risk pools.

Antonin Scalia:

–Is that–

–I thought she was suing on her own behalf.

James P. Ginzkey:

No, on behalf of the plan.

Antonin Scalia:

On behalf of the plan?

Well, let me… I’m a little confused by some of your presentation, because you talked about coverage determinations, and as I understand what occurred here, there was no denial of coverage to your–

James P. Ginzkey:

That’s correct.

Antonin Scalia:

–To your client.

James P. Ginzkey:

That’s correct.

Antonin Scalia:

It was acknowledged that what she was suffering from was covered by the plan, and what her complaint was is that she got procedure A whereas she should have had procedure B, which was more expensive, and they didn’t give her B because of the cost.

Isn’t that right?

So how do we get into the coverage determination question at all?

Why is that even involved in the case?

James P. Ginzkey:

This is not a denial of benefits case.

What–

Antonin Scalia:

So we don’t have to consider that, then, right?

James P. Ginzkey:

–It’s not a denial of coverage case.

That’s not what we’re alleging.

Antonin Scalia:

Okay.

James P. Ginzkey:

The benefits, or excuse me, the expenses that were incurred for her hospitalization and emergency surgery were paid in full.

We’re not seeking to recover those.

Antonin Scalia:

You say she should have had some other kind of treatment, which would have been more expensive, right?

James P. Ginzkey:

No.

Antonin Scalia:

No?

James P. Ginzkey:

No.

Antonin Scalia:

I thought it was.

James P. Ginzkey:

This is not a medical malpractice case.

There is no individually named physician that’s a defendant in amended Count III.

This is not about quality of care.

This is exclusively–

John Paul Stevens:

But explain something else to me, if you would.

The HMO here contracted with State Farm Mutual, is it, and who would get the money if there is… the doctors had to pay some money?

The HMO wouldn’t get it, because they are the doctors.

James P. Ginzkey:

–It would go back into the risk pools.

John Paul Stevens:

To the risk pool?

James P. Ginzkey:

If I can go back to the analogies example that I was trying to draw previously, say you have somebody in relatively good health, and the per member per month charge for the cost of–

John Paul Stevens:

I have a… forgive my stupidity, but what is the risk pool?

Who… what fund of money… who owns that?

Is that the insurance company’s property?

James P. Ginzkey:

–That’s plan assets.

John Paul Stevens:

It’s a plan asset.

James P. Ginzkey:

That’s a plan asset.

William H. Rehnquist:

Well, who would physically… supposing you get this money, who actually gets title to it?

James P. Ginzkey:

It’s managed by the HMO.

William H. Rehnquist:

So it goes back to the HMO.

James P. Ginzkey:

Well, it goes back into the risk pool–

William H. Rehnquist:

Well, but–

James P. Ginzkey:

–but it’s for the benefit, for the health benefit of the participants, as opposed to being available for bonuses for physicians.

Ruth Bader Ginsburg:

–And what qualifies you as a representative of the people in the risk pool?

James P. Ginzkey:

ERISA specifically states that any plan participant can bring a suit on behalf of the plan.

David H. Souter:

Mr. Ginzkey, may I go back to your answer to Justice Scalia?

You were telling him what this case was not.

You said, it’s not a malpractice case.

James P. Ginzkey:

It’s not.

David H. Souter:

It’s not a coverage case.

It’s not a denial of benefits case.

What is it?

James P. Ginzkey:

It’s a breach of fiduciary duty case.

David H. Souter:

Resulting in what kind of harm?

I mean, in a malpractice case we know what the harm is.

In a coverage case, we… and so on.

What exactly is the harm?

The harm is simply that the risk pool is smaller than it otherwise would be?

James P. Ginzkey:

The harm is that the money that is paid into the risk pool by State Farm and the employee… because this is a contributory plan.

50 percent of the premium is paid by the employee.

The harm here is that that money, which is supposed to be used exclusively for health care, is not being used exclusively for health care.

David H. Souter:

So you’re basically making a financial management claim.

You’re saying, they’re misapplying funds?

James P. Ginzkey:

Yes, absolutely.

They are breaching their fiduciary duties with respect to the management of the risk pools.

The risk pools have exclusively in them money to be used for the funding of medical expenses.

And you asked what the harm is.

What strikes me about this case, unusual about this case is that the courts zealously protect money for money’s sake with respect to pension plans, and let me explain that.

James P. Ginzkey:

If you look at the John Hancock v. Harris Trust case that this Court decided in 1993, or some other cases that are dealing with pension benefits, any fiduciary under one of those plans has never been able to deal with the funds in that plan in profit, self-profit from the dealing of… with those funds.

David H. Souter:

Well, I will… you know, I will assume that, but may I just come back to a follow-up question.

Assuming, and you know your case, this is a mismanagement of funds case–

James P. Ginzkey:

Yes.

David H. Souter:

–am I right that in order for you, which I think we’ve all been assuming, am I right that in order for you to make out your case that there has been mismanagement of funds, it’s necessary for us to accept the proposition that whenever a physician in an HMO has a strong financial incentive to make a medical decision, that that medical decision is therefore a fiduciary decision, and is therefore… and therefore a claim against him is preempted from State malpractice law in favor of ERISA fiduciary law?

James P. Ginzkey:

No, you do not make that assumption.

David H. Souter:

Then it’s not the median term.

Why isn’t it the median term in order to get your result?

James P. Ginzkey:

We’re confusing a couple of two different issues, because there’s more than one level involved in this case.

One of the lower levels that is involved, if I can use that terminology, is the determination by the primary care physicians as to what is and what is not medically necessary.

That not only is a treatment decision, but based upon the wording of this plan, it’s also a coverage decision, so–

David H. Souter:

And that kind of decision was involved in this case?

James P. Ginzkey:

–But we’re not–

David H. Souter:

Isn’t it?

I mean, isn’t that your understanding of what you’re claiming, that that kind of decision was crucial to your claim in this case?

James P. Ginzkey:

–No, because there was nothing that the physician felt that was medically necessary that was denied.

David H. Souter:

Are you saying that it just happens to be a coincidence that you are bringing this financial mismanagement claim under the same… with the… joined with the same pleadings that happen to make malpractice claims?

Are you saying that out of the blue, even if your client had lived a totally healthy life and never been denied an immediate appendectomy, that you could bring this claim, and it’s a mere coincidence that you happen to be here in the context of this case?

James P. Ginzkey:

Essentially that’s correct, Judge.

David H. Souter:

Okay.

James P. Ginzkey:

That’s correct, because–

Antonin Scalia:

I didn’t realize–

James P. Ginzkey:

–Because–

Antonin Scalia:

–I didn’t realize you were making any ERISA claim.

I thought you were making State claims, and the reason all of this comes up is that the objection to your Count III and Count IV State claims was that they were preempted by ERISA.

James P. Ginzkey:

–No.

We’re making an ERISA claim.

Antonin Scalia:

Where does that appear in your–

James P. Ginzkey:

It’s amended Count III.

That’s in the joint appendix.

Stephen G. Breyer:

–Amended Count III.

So we’ve actually… now, your client’s appendectomy is irrelevant, the malpractice is irrelevant, has nothing to do with it, it’s entirely… which is… I mean, and then it’s going to come down to either the fiduciary issue, or if you are fiduciaries, we have to figure out what the standard is on what incentives could be so extreme that they violate the obligation to everybody.

Is that basically where we are?

James P. Ginzkey:

That’s exactly right, Judge.

Stephen G. Breyer:

And what in your view is the standard for determining whether… because you concede that some incentive plans could be okay, so what’s the standard for determining… and I think the Government concedes that there could be some that weren’t okay.

James P. Ginzkey:

And I agree.

Stephen G. Breyer:

All right.

I know.

James P. Ginzkey:

I agree.

Stephen G. Breyer:

So now we’ve got a lot of agreement here, and what we’ve got to–

[Laughter]

What, in your view, is the difference in the standard, then, as to when they’re okay when they’re not okay?

James P. Ginzkey:

That’s going to be a difficult line to draw.

It’s kind of like the line that the Court’s going to have to draw with respect to the Webster Hubbell case that was argued yesterday.

It’s going to be a difficult line to draw, but the fact that it’s difficult to draw doesn’t mean we don’t draw it.

Stephen G. Breyer:

All right.

How would you draw it?

James P. Ginzkey:

The phrase that I have used is undue influence, because again, drawing on the study from California, the median incentive was 10,400, but some of those incentives got up to 40 to 50,000.

If I’m a physician, and I have a 100,000 annual salary by contract, and I’ve got two kids in college, and I can make another 50,000, that’s a lot of incentive.

That’s an improper… that’s an undue influence.

That’s an improper incentive.

William H. Rehnquist:

Thank you.

Thank you, Mr. Ginzkey.

The case is submitted.