Pappas v. Asbel

OPINION

CAPPY, Justice.

Based on the principles the United States Supreme Court articulated in New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995), we issued an opinion in the instant case on December 23,1998, holding that the state law medical negligence claims asserted against third-party defendant United States Healthcare Systems of Pennsylvania, Inc. (“U.S. Healthcare”) are not preempted by the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. 1001 et seq. Pappas v. Asbel, 555 Pa. 342, 724 A.2d 889 (1998) (“Pappas I”). Accordingly, we affirmed the Superior Court’s order, reversing the *1091trial court’s entry of summary judgment in U.S. Healthcare’s favor. Id. at 894.1 On June 19, 2000, the Supreme Court entered an order granting certiorari in Pappas I, vacating the judgment of this court, and remanding the case for our further consideration in light of Pegram v. Herdrich, 530 U.S. 211, 120 S.Ct. 2143, 147 L.Ed.2d 164 (2000). For all the reasons that follow, we adhere to our original opinion and order.

The facts and procedural history, as set forth in Pappas I, bear repeating.

At 11:00 a.m. on May 21, 1991, Basile Pappas (“Pappas”) was admitted to Hav-erford Community Hospital (“Haver-ford”) through its emergency room complaining of paralysis and numbness in his extremities. At the time of his admission, Pappas was an insured of HMO-PA, a health maintenance organization operated by U.S. Healthcare.

Dr. Stephen Dickter, the emergency room physician, concluded that Pappas was suffering from an epidural abscess which was pressing on Pappas’ spinal column. Dr. Dickter consulted with a neurologist and a neurosurgeon; the physicians concurred that Pappas’ condition constituted a neurological emergency. Given the circumstances, Dr. Dickter felt that it was in Pappas’ best interests to receive treatment at a university hospital.

Dr. Dickter made arrangements to transfer Pappas to Jefferson University Hospital (“Jefferson”) for further treatment. At approximately 12:40 p.m. when the ambulance arrived, Dr. Dick-ter was alerted to the fact that U.S. Healthcare was denying authorization for treatment at Jefferson. Ten minutes later, Dr. Dickter contacted U.S. Healthcare to obtain authorization for the transfer to Jefferson. At l:[05]p.m., U.S. Healthcare responded to Dr. Dick-ter’s inquiry and advised him that authorization for treatment at Jefferson was still being denied, but that Pappas could be transferred to either Hahnemann University (“Hahnemann”), Temple University or Medical College of Pennsylvania (“MCP”).

Dr. Dickter immediately contacted Hahnemann. That facility advised Hav-erford at approximately 2:20 p.m. that it would not have information on its ability to receive Pappas for at least another half hour. MCP was then reached and within minutes it agreed to accept Pap-pas; Pappas was ultimately transported there at 3:30 p.m. Pappas now suffers from permanent quadriplegia resulting from compression of his spine by the abscess.

Pappas and his wife filed suit against Dr. David Asbel, his primary care physician, and Haverford. They claimed that Dr. Asbel had committed medical malpractice and that Haverford was negligent in causing an inordinate delay in transferring him to a facility equipped and immediately available to handle his neurological emergency.

Haverford then filed a third party complaint against U.S. Healthcare, joining it as a party defendant for its refusal to authorize the transfer of Pappas to a hospital selected by the Haverford physicians. Dr. Asbel also filed a cross-claim against U.S. Healthcare seeking contribution and indemnity.

U.S. Healthcare filed a motion for summary judgment on all of the third party claims, alleging that the third par*1092ty claims are preempted by § 1144(a) of ERISA.1 The trial court granted the motion.2 The Superior Court on appeal, however, determined that ERISA did not preempt the state law claims. This court subsequently granted U.S. Healthcare’s Petition for Allowance of Appeal in order to determine whether these third party claims fall within the scope of those state actions which are preempted by ERISA.

Pappas I, 724 A.2d at 889-91.

Our legal analysis in Pappas I began with a review of the basic principles of preemption law. We noted that the Supremacy Clause of the United States Constitution, U.S. Const., art. VI, cl. 2, gives the United States Congress the power to preempt state law, and observed that in determining whether state law is preempted by federal law, we were to assume that the historic powers of the states are not superceded unless preemption is the “clear and manifest purpose” of Congress. Id. at 891 (quoting Cipollone v. Liggett Group, 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992)) (citations omitted).

Turning to the express preemption section of ERISA, which states that “the provisions of this subchapter ... shall super-cede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan....”, 29 U.S.C. § 1144(a), we recognized that in the 1980’s and early 1990’s, the Supreme Court had given ERISA preemption a notably expansive scope based on the plain language of this section. Pappas I, 724 A.2d at 891-92. With its 1995 decision in Travelers, however, we determined that the Court had signaled a change in course, instructing the courts to look to the objectives of ERISA, and not solely to the bare, “unhelpful” text of the statute, for guidance in deciding questions of preemption. Id. at 892, (quoting Travelers, 514 U.S. at 656, 115 S.Ct. 1671). We deemed it significant that the Court determined that the “basic thrust of the preemption provision ... was to avoid a multiplicity of regulation in order to permit the nationally uniform administration of employee benefit plans”; that it recognized fairly significant bounds on preemption when it stated that “[preemption does not occur ... if the state law has only a tenuous, remote, or peripheral connection with covered plans, as in the cases with many laws of general applicability”; and that it cautioned that “nothing in the language of [ERISA] or in the context of its passage indicates that Congress chose to displace general health care regulation, which historically has been a matter of local concern.” Id. at 892 (quoting Travelers, 514 U.S. at 661, 115 S.Ct. 1671).

Applying Travelers and its progeny, California Division of Labor Standards Enforcement v. Dillingham Construction NA., Inc., 519 U.S. 316, 117 S.Ct. 832, 136 L.Ed.2d 791 (1997) and De Buono v. NYSA-ILA Medical and Clinical Services Fund, 520 U.S. 806, 117 S.Ct. 1747, 138 L.Ed.2d 21 (1997), to the case sub judice, we determined that the negligence claims in .plaintiffs’ complaint, which Haverford incorporated by reference against U.S. Healthcare in its third party complaint, are not preempted. Pappas I, 724 A.2d at 894.2 We found that they do not “relate *1093to” an ERISA plan within the meaning of 29 U.S.C. § 1144(a), and that local negligence laws, like many laws of general applicability, are only remotely connected to ERISA plans. Id. at 898, 894. In view of the Supreme Court’s determination that Congress did not intend to preempt state laws aimed at regulating health care, we held it would have been inappropriate to conclude that Haverford’s claims, in which the issue of U.S. Healthcare’s allegedly dilatory delivery of contractually-guaranteed medical benefits were intertwined with the question of safe medical care, are preempted by ERISA. Id. at 89S.3

We now turn, as instructed by the Supreme Court, to a reconsideration of our decision in Pappas I in light of Pegram. We start with a somewhat detailed rendition of Pegram’s facts, as they are critical to our present task. The case arose out of a lawsuit brought by Cynthia Herdrich against her treating physician, Dr. Lori Pegram, and the health maintenance organization (“HMO”) that Dr. Pegram and her partners owned and operated. The HMO had contracted with the company that employed Herdrieh’s husband to provide prepaid medical services to its employees and their respective families. Dr. Pegram examined Herdrich for pain in the midline area of her groin, and discovered an inflamed mass in her abdomen. Dr. Pegram did not order an immediate ultrasound at the local hospital, but decided to wait some eight days for an ultrasound at a facility staffed by HMO physicians. Before the ultrasound could be performed, Herdrich’s appendix ruptured, causing peritonitis.

Herdrich sued Dr. Pegram and the HMO in state court for medical malpractice, and later added two counts of state law fraud. Asserting that the fraud counts were preempted by ERISA, Pegram and the HMO removed the case to federal district court, and moved for summary judgment. The district court granted the defendants summary judgment on the first count, but granted Herdrich leave to amend the second. She did, alleging that the provision of medical services under the terms of the HMO, which rewarded its physician owners for limiting medical care, amounted to an inherent or anticipatory breach of ERISA’s fiduciary duties as set forth in 29 U.S.C. § 1109(a), to make decisions with the exclusive interest of plan participants in mind. The HMO moved to dismiss the ERISA count for failure to state a claim upon which relief could be granted. Finding that the HMO was not involved in the events at hand as an ERISA fiduciary, the district court sustained the motion. The Court of Appeals for the Seventh Circuit reversed.

The Supreme Court granted certiorari to determine whether treatment decisions made by an HMO, acting through its physicians, are fiduciary acts within the meaning of ERISA. The Court held that they are not. Pegram, 530 U.S. 211, 120 S.Ct. at 2146.

In the course of doing so, the Court set forth two guiding principles. First, HMO physicians occupy dual roles. They act like plan administrators when they determine, for example, whether a participant’s condition is covered, and as health care providers, when they decide upon the medical treatment a participant will receive. Id. at 2153-54.

Second, HMO physicians make three types of decisions. “[P]ure ‘eligibility deci*1094sions’ turn on the plan’s coverage of a particular condition or medical procedure for its treatment,” id. at 2154, such as “whether a plan covers an undisputed case of appendicitis.” Id. at 2155. “‘Treatment decisions,’ by contrast, are choices about how to go about diagnosing and treating a patient’s condition: given a patient’s constellation of symptoms, what is the appropriate medical response?” Id. at 2154. “Mixed eligibility and treatment decisions” are just what their name implies-decisions in which coverage and medical judgment are intertwined. Id. at 2154-55. In this regard, the Court explained:

[A] great many and possibly most coverage questions are not simple yes-or-no questions, like whether appendicitis is a covered condition (when there is no dispute that a patient has appendicitis), or whether acupuncture is a covered procedure for pain relief (when the claim of pain is unchallenged). The more common coverage question is a when-and-how question. Although coverage for many conditions will be clear and various treatment options will be indisputably compensable, physicians still must decide what to do in particular cases.... In practical terms, these eligibility decisions cannot be untangled from physicians’ judgments about reasonable medical treatment.... •_

Id. at 2154.

To illustrate the wide array of decisions that are of the mixed type, the Court noted the decisions mentioned in Herd-rich’s complaint: “physician’s conclusions about when to use diagnostic tests; about seeking consultations and making referrals to physicians and facilities other than [the HMO’s]; about proper standards of care, the experimental nature of a proposed course of treatment, the reasonableness of a certain treatment and the emergency character of a medical condition.” Id. at 2155.

Turning to the case at hand, the Court found that the HMO, through Dr. Pegram, made a mixed decision, “deciding] (wrongly, as it turned out) that Herdrich’s condition did not warrant immediate action; the consequence of that medical determination was that [the HMO] would not cover immediate care, whereas it would have done so if Dr. Pegram had made the proper diagnosis and judgment to treat.” Id. at 2154.

The Court then held that Congress did not intend that any HMO be treated as an ERISA fiduciary to the extent that it makes mixed eligibility and treatment decisions acting through its physicians. Id. at 2155.4 Observing that under the common law of trusts, which is the source of ERISA’s fiduciary duties, fiduciary responsibility characteristically attaches to financial decisions about managing assets and property, the Court doubted that Congress would have ever thought of a mixed decision as fiduciary in nature. Id. at 2155-56. Because the defense of any HMO of a mixed decision would be that its physician acted for good medical reasons, the plausibility of which would require reference to traditional standards of reasonable medical practice in like circumstances, the Court was concerned that a decision to view a mixed decision as an act of ERISA fiduciary duty would “federalize malpractice litigation”. Id. at 2157-58. Lastly, the Court touched upon (but declined to resolve) the “puzzling issue of preemption” that would be raised by the imposition of ERISA’s fiduciary requirements upon an HMO physician making a pure treatment or mixed decision, in view of its holding in Travelers:

*1095On its face, federal fiduciary law applying a malpractice standard would seem to be a prescription for preemption of state malpractice law, since the new ERISA cause of action would cover the same subject of a state-law malpractice claim.... To be sure, [Travelers] throws some cold water in the preemption theory; there, we held that, in the field of health care, a subject of traditional state regulation, there is no ERISA preemption without clear manifestation of congressional purpose. But in that case the convergence of state and federal law was not so clear as in the situation we are positing; the state-law standard had not been subsumed by the standard to be applied under ERISA. We could struggle with this problem, but first it is well to ask, again, what would be gained by opening the federal courthouse doors to a fiduciary malpractice claim....

Pegram, at 2158 (citations omitted).

While Travelers and Pegram deal with different aspects of ERISA, for our present purposes, they share common ground. Travelers instructs that ERISA does not preempt state law that regulates the provision of adequate medical treatment. Pegram instructs that an HMO’s mixed eligibility and treatment decision implicates a state law claim for medical malpractice, not an ERISA cause of action for fiduciary breach. Thus, if Haverford’s third party claim against U.S. Healthcare arose out of a mixed decision, it is, according to Pegram, subject to state medical malpractice law, which is what Haverford asserted. Moreover, under Travelers, it is not preempted by ERISA.

It follows that we must now determine what the record on summary judgment reveals with regard to the nature of the U.S. Healthcare’s decision. We view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Pennsylvania State University v. County of Centre, 532 Pa. 142, 615 A.2d 303, 304 (1992). Only where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to a judgment as a matter of law will summary judgment be entered. Skipworth v. Lead Industries Ass’n, Inc., 547 Pa. 224, 690 A.2d 169, 171 (1997). Our scope of review of a trial court’s order granting or denying summary judgment is plenary, O’Donoghue v. Laurel Savings Ass’n, 556 Pa. 349, 728 A.2d 914, 916 (1999), and our standard of review is clear: the trial court’s order will be reversed only where it is established that the court committed an error of law or abused its discretion. Cochran v. GAF Corp., 542 Pa. 210, 666 A.2d 245, 248 (1995).

Having looked again at the record, there are facts that are not disputed, in addition to those set forth in Pappas I, that are important to our analysis. Dr. Dickter, the physician who first saw Pappas in the emergency room of Haverford on May 21, 1991, at about 11:00 a.m., received permission from Jefferson to admit Pappas to its spinal cord trauma center. Dr. Dickter chose Jefferson because it, unlike other hospitals, had designated space for spinal trauma eases and was able to determine immediately whether it was in a position to receive a new patient. When Dr. Dick-ter learned at 12:40 p.m. from ambulance personnel that Pappas’ transfer to Jefferson was not HMO approved, he telephoned U.S. Healthcare at 12:50 p.m. and asked that it reconsider its decision. Dr. Dickter spoke to Elaine Norman, a U.S. Healthcare representative, and told her that Pappas’ condition constituted a neurological emergency that needed immediate attention, and for which he had made arrangements with Jefferson. Ms. Norman advised Dr. Dickter that she was not authorized to take action one way or the other, but that she would consult with someone who was. At 1:05 p.m., Dr. Dick-ter spoke with Carol DeLark, another U.S. Healthcare representative. She told "him that Dr. Liebowitz, one of U.S. *1096Healthcare’s physicians who had the authority to decide such matters, reviewed Pappas’ case; that the referral to Jefferson, a non-HMO hospital, continued to be denied; and that a referral to the facilities affiliated with Hahnemann, Temple University or MCP was approved. At about 3:80 p.m., through Dr. Dickter’s efforts, Pappas was admitted to MCP.

Not surprisingly, U.S. Healthcare argues that its decision about Pappas’ referral “constituted a quintessential ‘coverage’ determination”.5 We, however, disagree. In our view, the undisputed facts in this case, and the inferences drawn from them, establish the sort of mixed eligibility and treatment decision that Pegram discussed.6 Dr. Leibowitz, U.S. Healthcare’s physician, reviewed Pappas’ case, and rejected another medical doctor’s opinion based on his clinical judgment that Pappas needed to be referred to Jefferson for treatment of a medical emergency. Instead of referring Pappas to Jefferson, a non-HMO hospital, as Dr. Dickter recommended, Dr. Leibowitz referred Pappas to one of three other facilities for medical care. He did not, in the Supreme Court’s words, only make a “simple yes or no” decision as to whether Pappas’ condition was covered; it clearly was. Rather, Dr. Leibowitz also determined where and, under the circumstances, when Pappas’ epidural abscess would be treated. His was a mixed eligibility and treatment decision, the adverse consequences of which, if any, are properly redressed, as Pegram teaches, through state medical malpractice law. This law as Travelers teaches, is not preempted by ERISA.

We conclude, therefore, that our reasoning and result in Pappas I are consistent with the Supreme Court’s decision in Pe-gram. Accordingly, we confirm our original disposition; the order of the Superior Court, reversing the grant of summary judgment to U.S. Healthcare is affirmed.7 *1097This matter is remanded to the trial court for further proceedings consistent with this opinion.

SAYLOR, Justice,

dissenting.

In response to the United States Supreme Court’s remand directive for this Court to reconsider its prior decision in Pappas v. Asbel, 555 Pa. 342, 724 A.2d 889 (Pa.1998)(“Pappas I "l,1 in light of Pegram v. Herdrich, 530 U.S. 211, 120 S.Ct. 2143, 147 L.Ed.2d 164 (2000)(“Pegram IP’), the majority concludes that Pegram II establishes that the third-party cause of action against Appellant United States Healthcare Systems of Pennsylvania, Inc. (“U.S. Healthcare”) is not preempted by ERISA, and that such cause should therefore be resolved according to state medical malpractice law. In so holding, the majority finds that Pegram II’s conclusion that ERISA does not establish a cause of action for breach of fiduciary duty predicated upon a managed care organization’s “mixed eligibility” decisions, see Pegram II, 530 U.S. at 228-29, 120 S.Ct. at 2154-55, equally establishes that such decisions are fully exposed to state tort law.

While I agree with the majority that nothing in Pegram II requires a full reversal of its prior disposition, I note that other courts have been more circumspect concerning the implications of Pegram II in relation to conflict preemption pursuant to ERISA. See, e.g., Corporate Health Ins., Inc. v. Texas Dep’t of Ins., 220 F.3d 641, 643-44 (5th Cir.2000) (stating that “we do not read Pegram to entail that every conceivable state law claim survives preemption so long as it is based on a mixed question of eligibility and treatment, and [our own precedent] held otherwise”). Accordingly, there remains a division of authority regarding the appropriate construct pursuant to which ERISA preemption of laws regulating the decisions of managed care organizations should be determined,2 although further examination of *1098this divide is beyond the scope of our mandate on remand. I do believe, however, that two points derive from Pegram II that are worthy of present consideration.

First, in my view, Pegram II gives cause for the exercise of a degree of caution on the part of state courts and legislators in terms of defining the duties of managed care organizations (or at least those that are deemed to perform administrative functions under ERISA) for purposes of tort jurisprudence. Second, I question whether a full, fair, and final resolution of the conflict preemption inquiry can be effected unless and until some "more precise definition is afforded to any duties being ascribed to U.S. Healthcare under state tort law.

Regarding the first of these points, if ERISA preemption issues can arise only in connection with a specific exercise of fiduciary duty, the majority is correct that, once U.S. Healthcare’s decision is deemed to be a mixed eligibility determination,3 Pegram II establishes the absence of a fiduciary duty under ERISA, and preemption cannot apply. Certainly, however, the preemptíon clause itself is more broadly phrased; further, ERISA’s civil enforcement provision, 29 U.S.C. § 1132, would appear to have been designed to protect the interests of plan participants more generally. Thus, while it is clear that the United States Supreme Court now subscribes to a narrower concept of preemption than that reflected in its earlier decisions, I am not so certain that the question of whether a state law claim challenges a fiduciary act is the sole, remaining, pertinent inquiry relative to preemption, particularly where the defendant may otherwise perform servicing functions integral to plan administration.

Accordingly, I would examine Pegram II’s analysis more broadly than merely to identify the construct which it ultimately devised to determine fiduciary status. I view as significant the Supreme Court’s deliberate, measured reasoning addressing and rejecting the central conclusions of the Seventh Circuit concerning an HMO’s obligations under federal law,4 with the Court’s analysis subsuming the assessment that the duty of a managed care organization as stated by the Seventh Circuit was *1099inimical to Congressional intent in fostering the health maintenance organization paradigm. See generally Phyllis C. Borzi and Marc I. Machiz, ERISA and Managed Care Plans: Key Preemption and Fiduciary Issues, SF28 ALI-ABA 371 (ALI-ABA Course of Study Oct. 2000)(stating that “[t]he Court in Pegram believed it faced an irreducible challenge to the essence of managed care”). Such rejection should not be overlooked, since, although the United States Supreme Court was discussing the issue of duty according to the federal fiduciary standard embodied in ERISA, state law duties which operate similarly would be no less disruptive. Moreover, the persistence of multiple state law standards broadly affecting otherwise permissible “rationing” decisions of managed care organizations, to the extent that such entities are viewed as serving as an important tool of plan administration, would also operate contrary to a central purpose of ERISA preemption, namely, to “avoid a multiplicity of regulation in order to permit the nationally uniform administration of employee benefit plans.” New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 657, 115 S.Ct. 1671, 1677-78, 131 L.Ed.2d 695 (1995). Thus, although certainly the dicta employed by the United States Supreme Court concerning preemption would appear to evidence its conclusion that ERISA may embody a degree of tolerance for some divergence among the legal standards applicable to managed care organizations across jurisdictions, see, e.g., Pegram II, 530 U.S. at 236-37, 120 S.Ct. at 2158,5 such passages should not be read as completely independent of the Court’s disapproval of standards that would penalize HMOs based solely upon their structure and/or system for doing business.6

As the United States Supreme Court recognized, fundamentally, managed care organizations ration treatment (or at least payment for treatment); assuming treatment is generally of positive effect, less treatment equates to greater risk (also assuming that patients cannot or will not *1100fund treatment for which managed care will not pay);7 and greater risk means higher incidence and more detrimental effect of injury and illness. If state law duties are imposed such that managed care organizations must provide compensation for all harm which can be proximately related to rationing, their viability will be determined by whether the cost of such harm ultimately exceeds the savings achieved by rationing in the first instance. Although certainly this is one form of risk spreading, it would not seem to be the form that Congress likely envisioned by sanctioning the managed care paradigm. Further, assuming that the managed care concept that has become integral as a service to ERISA plan administration is actually beneficial (as Congress appears to have believed), if costs ultimately exceeded savings in this particular equation, such benefit would be undermined. It would be difficult, then, to characterize state laws regulating rationing determinations which do not provide some reasonable mechanism for distinguishing between acceptable and unacceptable decisions as having only a “tenuous, remote, or peripheral connection” with covered plans, Travelers, 514 U.S. at 661, 115 S.Ct. at 1680, assuming that the element of plan administration extends to managed care services to ERISA plans.

This leads to my second point, namely, that before a matter of conflict preemption can be finally determined in relation to a common law duty, the state courts should define, with reasonable particularity, the pertinent duty with which the managed care organization is to be charged.8 Here, the third-party complaint frames a cause of action for “refus[ing] to authorize transfer of husband-plaintiff to a hospital selected by physicians at Haverford Community Hospital as being able to minister to husband-plaintiffs condition.” Pertinent to such claim, the majority merely indicates that the United States Supreme Court has sanctioned the application of general principles of medical malpractice to managed care organizations. The result is to insulate the majority’s holding that preemption is unwarranted within the United States Supreme Court’s analysis from Travelers that “nothing in the language of [ERISA] or in the context of its passage indicates that Congress chose to displace general health care regulation, which historically has been a matter of local concern.” Travelers, 514 U.S. at 661, 115 S.Ct. at 1680. It should be recognized, however, that the asserted obligation of U.S. Healthcare to telephonically preeertify out-of-network care on an emergency basis as selected by Haverford Community Hospital is not easily susceptible to measurement according to the general standard of care prevailing in the medical community pertaining to the rendition of medical services. In the first instance, medical personnel are not generally obligated to pay for medical services.9 *1101Further, U.S. Healthcare’s obligations in respect to payment arise, at least initially, from its written commitments pertaining to the provision of health care services rather than from the general nature of a physician/patient relationship; thus, while managed care coverage is frequently comprehensive and must include access to emergency treatment, an HMO may not always commit (or pre-commit) to provide full payment for any and all services rendered on precisely the terms that may be dictated by the patient, a treating physician, or circumstance.10 Additionally, by virtue of a managed care organization’s assumption of the role of provider of or arranger for medical services, it may in fact assume additional duties giving rise to direct or indirect claims based in tort. In this regard, however, in Pennsylvania, the determination of duty in relation to a negligence cause of action is one of law subject to the following analysis:

[T]he legal concept of duty of care is necessarily rooted in often amorphous public policy considerations, which may include our perception of history, morals, justice and society. The determination of whether a duty exists in a particular case involves the weighing of several discrete factors which include: (1) the relationship of the parties; (2) the social utility of the actor’s conduct; (3) the nature of the risk imposed and foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the actor; and (5) the overall public interest in the proposed solution.

Althaus v. Cohen, 562 Pa. 547, 553, 756 A.2d 1166, 1169 (2000).11 While suggesting *1102the direct application of medical malpractice principles to a non-traditional provider of insurance and medical services making mixed eligibility/treatment decisions, this Court has not undertaken the requisite duty analysis in Pappas I or presently. Indeed, aside from the Court’s general categorization of precertification of emergency care as “intertwined with the provision of safe medical care,” Pappas I, 555 Pa. at 351, 724 A.2d at 893, the question remains one of first impression in this Court.12

Thus, it can be seen that Pennsylvania’s traditional construct for determining duty entails a much more precise inquiry than merely repositing such obligations within the rubric of “negligence laws,” or “general healthcare regulation.” Pappas I, 555 Pa. at 349, 352, 724 A.2d at 892, 894. Once fairly undertaken (and to the extent that the third-party plaintiff is asserting a duty on U.S. Healthcare’s part in favor of the original plaintiff consistent with our join-der rules), the pertinent analysis should inform the conflict preemption determination (assuming, again, that something more is required than the mere identification of whether a fiduciary act was involved), with the final resolution to the question depending ultimately upon the manner in which the jury is charged on the subject.

It cannot escape notice that the above analysis, when applied to managed care organizations, necessarily entails precisely the sorts of judgments about socially acceptable medical risks that the United States Supreme Court declined to make in Pegram II for purposes of ERISA fiduciary analysis. See Pegram II, 530 U.S. at 221-22, 120 S.Ct. at 2150. It is difficult to disagree with the Supreme Court’s assessment that the legislative branch presents a superior forum for the resolution of such duties, particularly in an arena as significant as managed care;13 nevertheless, where scant guidance is presented to courts of general redress, they remain charged with the obligation to address claims according to established paradigms.14 This is particularly the case in *1103the health care arena, since clearly states have a fundamental interest in ensuring quality of care, and it is therefore appropriate for them to implement measures to assure a degree of accountability on the part of managed care organizations. However, given a legislatively sanctioned system which allows for the rationing of treatment, the interest should be balanced against the purpose of managed care organizations to avoid effectively eliminating the infrastructure designed to enhance accessibility to medical resources.15

Contrary to the majority’s footnote 7, I make no suggestion that this Court should presently articulate the duty or standard of care applicable to U.S. Healthcare’s conduct. Rather, my point is that the Court should refrain at this juncture from directing that the cause of action against U.S. Healthcare must necessarily be assessed according to medical malpractice precepts and,16 correspondingly, resolving the preemption inquiry on such basis. I fully acknowledge that any development concerning applicable duties would necessarily occur in the first instance at the common pleas level, see supra note 14, and would simply not foreclose any additional preemption assessment to the extent that a further consideration of duty would be appropriate in this case.

In summary, I agree with the majority that in the aftermath of Pegram II and Travelers, state laws having general application and relating to areas traditionally subject to state regulation are more likely to survive preemption challenges. I am not as certain, however, that the Supreme Court would confine the possibility of preemption solely to those cases involving pure eligibility determinations, and I believe that the reasoning of Pegram II contains at least inferential evidence to the contrary. In my view, Travelers ’ alteration in the course of ERISA preemption jurisprudence, which was emphasized by this Court in Pappas I, may evidence more than the fact of a stricter preemption construct. It may also demonstrate that the preemption inquiry may not be presently capable of distillation into questions answerable in a simple “yes” and “no” fashion. Rather, in absence of an appropriate legislative solution, the inquiry may have to endure a degree of further evolution in *1104the law, perhaps substantial, at both the state and federal levels, particularly as it applies to an industry which occupies a societal role that touches the citizenry at large and is itself rapidly evolving.

In light of the above, I would modify this Court’s original order to be without prejudice to U.S. Healthcare’s ability to assert preemption arguments after such time as the trial court devises appropriate jury instructions.