This Comment begins with an overview of the Employee Retirement Income Security Act (ERISA) and the preemption clause found therein. Section III explains the distinction between quality and quantity of care, the test many courts have relied on to determine whether ERISA preempts a medical malpractice claim. Section IV examines state common law theories of liability which are asserted against managed care organizations, specifically claims of direct and vicarious liability. Section V addresses the HMO's role in medical decision making, and Section VI describes recent legislation regarding ERISA and HMO liability. This Comment contends that the more active role an HMO has regarding the quality of care they offer, the more they should be subject to vicarious and direct liability for negligent provision of care under state law. It further argues that the distinction between quantity of care or benefit determinations and decisions about the quality of care is unclear among the courts, and Congress must step in to amend ERISA and resolve the confusion.



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