Quishenberry v. UnitedHealthcare (Sept. 21, 2021, B303451) unpublished, review granted Jan. 5, 2022 (S271501)

Quishenberry v. UnitedHealthcare (Sept. 21, 2021, B303451) unpublished, review granted Jan. 5, 2022 (S271501)

California Supreme Court to decide whether claims for negligence, elder abuse, and wrongful death against entities providing Medicare benefits and services are preempted by Medicare Part C (42 U.S.C. § 1395w-26(b)(3)).

Larry Quishenberry sued UnitedHealthcare entities, which provided a Medicare Advantage plan to his father Eugene, and Healthcare Partners entities, which provided physician services to Eugene, alleging negligence, elder abuse, bad faith, and wrongful death causes of action.  Quishenberry claimed that UnitedHealthcare and Healthcare Partners allowed Eugene to be prematurely discharged from a nursing facility contrary to Medicare rules. The trial court sustained the entities’ demurrers, finding that Quishenberry’s causes of action were preempted by the Medicare Act because the allegations involved defendants’ “failure to administer properly the health care plan.” Quishenberry appealed.

The Court of Appeal affirmed in an unpublished opinion.  The court held that, because Quishenberry’s allegations required a determination of the amount of allowable Medicare benefits for skilled nursing care, which is regulated by standards established by CMS, both his common law negligence and statutory elder abuse and wrongful death claims were preempted by the Medicare Part C preemption clause. (42 U.S.C. § 1395w-26(b)(3).)  The court explained that this preemption clause extends to common law duties, not only to positive law, agreeing with Roberts v. United Healthcare Services, Inc. (2016) 2 Cal.App.5th 132, and declining to follow Cotton v. StarCare Medical Group (2010) 183 Cal.App.4th 437, and Yarick v. PacifiCare of California (2009) 179 Cal.App.4th 1158, both of which read the preemption clause more narrowly.

On Jan. 5, 2022, the California Supreme Court granted review to resolve the split of authority regarding the scope of the Medicare Part C preemption clause.

For more information regarding this bulletin, please contact H. Thomas Watson, Horvitz & Levy LLP, at 818-995-0800 or htwatson@horvitzlevy.com.