Employer May Be Liable for Medical Advice

Published January 1, 2003

The Employee Retirement Income Security Act (ERISA) does not prevent a plaintiff from suing her deceased husband’s employer and the employer’s medical services provider for advising the employee to stay in Saudi Arabia for dangerous surgery, according to the federal Court of Appeals for the Ninth Circuit.

The widow sued her husband’s employer, Lucent Technologies, and its medical services provider, SOS, for alleged negligence regarding failed medical surgery that resulted in the husband’s death.

The employee worked in Saudi Arabia at the time he learned he needed surgery. Upon learning that the type of surgery he required had never been performed in Saudi Arabia, the employee asked SOS whether he should be treated in another country. SOS and a Lucent doctor advised him to remain in Saudi Arabia. Evidence suggested the Lucent doctor based his advice at least in part on Lucent’s inability to return the employee’s passport in time for his required surgery. The employee complied with the advice, but then died as a result of the surgery.

A federal trial court in Oregon determined the widow could not sue Lucent or SOS because ERISA preempted the widow’s claims. However, the court of appeals reversed most of the trial court’s decision.

According to the appellate court, the claim against Lucent for choosing SOS as its medical services provider is preempted by ERISA. However, Lucent could be sued for negligently handling the employee’s passport in a manner that prevented him from receiving proper medical care. Additionally, the widow could sue SOS and Lucent for negligently advising the employee to remain in Saudi Arabia for his surgery.

The court of appeals remanded the case for a jury trial in the Oregon trial court.

James M. Taylor is an attorney and managing editor of The Heartland Institute publication, Environment & Climate News.