State Law Malpractice Suit Based on Mixed Eligibility and Treatment Decision

In Cicio v. Does, 321 F.3d 83 (2d Cir. 2003), the circuit court held that "a state law malpractice action, if based on a 'mixed eligibility and treatment decision,' is not subject to Employee Retirement Income Security Act (ERISA) preemption when that state law cause of action challenges an allegedly flawed medical judgment as applied to a specific patient's symptoms." Id. at 102. The court's decision correctly recognizes that HMO plan administration is often inextricably intertwined with treatment decisions, and that ERISA does not preempt viable state law causes of action arising from such decisions. The Cicio decision is consistent with and reflective of the current state of the law in Florida.