Corcoran v. United HealthCare, Inc. ( 1992 )


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  •                IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    _____________________
    No. 91-3322
    _____________________
    FLORENCE B. CORCORAN
    Wife of/and WAYNE D. CORCORAN,
    Plaintiffs-Appellants,
    v.
    UNITED HEALTHCARE, INC.,
    and BLUE CROSS and BLUE SHIELD
    OF ALABAMA, INC.,
    Defendants-Appellees.
    _________________________________________________________________
    Appeal from the United States District Court
    for the Eastern District of Louisiana
    _________________________________________________________________
    (June 26, 1992)
    Before THORNBERRY, KING, and DeMOSS, Circuit Judges.
    KING, Circuit Judge:
    This appeal requires us to decide whether ERISA pre-empts a
    state-law malpractice action brought by the beneficiary of an
    ERISA plan against a company that provides "utilization review"
    services to the plan.   We also address the availability under
    ERISA of extracontractual damages.   The district court granted
    the defendants' motion for summary judgment, holding that ERISA
    both pre-empted the plaintiffs' medical malpractice claim and
    precluded them from recovering emotional distress damages.   We
    affirm.
    I. BACKGROUND
    The basic facts are undisputed.   Florence Corcoran, a long-
    time employee of South Central Bell Telephone Company (Bell),
    became pregnant in early 1989.   In July, her obstetrician, Dr.
    Jason Collins, recommended that she have complete bed rest during
    the final months of her pregnancy.    Mrs. Corcoran applied to Bell
    for temporary disability benefits for the remainder of her
    pregnancy, but the benefits were denied.      This prompted Dr.
    Collins to write to Dr. Theodore J. Borgman, medical consultant
    for Bell, and explain that Mrs. Corcoran had several medical
    problems which placed her "in a category of high risk pregnancy."
    Bell again denied disability benefits.      Unbeknownst to Mrs.
    Corcoran or Dr. Collins, Dr. Borgman solicited a second opinion
    on Mrs. Corcoran's condition from another obstetrician, Dr. Simon
    Ward.    In a letter to Dr. Borgman, Dr. Ward indicated that he had
    reviewed Mrs. Corcoran's medical records and suggested that "the
    company would be at considerable risk denying her doctor's
    recommendation."   As Mrs. Corcoran neared her delivery date, Dr.
    Collins ordered her hospitalized so that he could monitor the
    fetus around the clock.1
    Mrs. Corcoran was a member of Bell's Medical Assistance Plan
    (MAP or "the Plan").   MAP is a self-funded welfare benefit plan
    which provides medical benefits to eligible Bell employees.       It
    1
    This was the same course of action Dr. Collins had
    ordered during Mrs. Corcoran's 1988 pregnancy. In that
    pregnancy, Dr. Collins intervened and performed a successful
    Caesarean section in the 36th week when the fetus went into
    distress.
    2
    is administered by defendant Blue Cross and Blue Shield of
    Alabama (Blue Cross) pursuant to an Administrative Services
    Agreement between Bell and Blue Cross.   The parties agree that it
    is governed by ERISA.2   Under a portion of the Plan known as the
    "Quality Care Program" (QCP), participants must obtain advance
    approval for overnight hospital admissions and certain medical
    procedures ("pre-certification"), and must obtain approval on a
    continuing basis once they are admitted to a hospital
    ("concurrent review"), or plan benefits to which they otherwise
    would be entitled are reduced.
    QCP is administered by defendant United HealthCare (United)
    pursuant to an agreement with Bell.   United performs a form of
    cost-containment services that has commonly become known as
    "utilization review."    See Blum, An Analysis of Legal Liability
    in Health Care Utilization Review and Case Management, 26 Hous.
    L. Rev. 191, 192-93 (1989) (utilization review refers to
    "external evaluations that are based on established clinical
    criteria and are conducted by third-party payors, purchasers, or
    health care organizers to evaluate the appropriateness of an
    episode, or series of episodes, of medical care.").   The Summary
    Plan Description (SPD) explains QCP as follows:
    The Quality Care Program (QCP), administered by United
    HealthCare, Inc., assists you and your covered dependents in
    securing quality medical care according to the provisions of
    the Plan while helping reduce risk and expense due to
    unnecessary hospitalization and surgery. They do this by
    providing you with information which will permit you (in
    2
    Employee Retirement Income Security Act of 1974, Pub. L.
    93-406, 88 Stat. 829, 29 U.S.C. §§ 1001-1461.
    3
    consultation with your doctor) to evaluate alternatives to
    surgery and hospitalization when those alternatives are
    medically appropriate. In addition, QCP will monitor any
    certified hospital confinement to keep you informed as to
    whether or not the stay is covered by the Plan.
    Two paragraphs below, the SPD contains this statement: When
    reading this booklet, remember that all decisions regarding your
    medical care are up to you and your doctor.     It goes on to
    explain that when a beneficiary does not contact United or follow
    its pre-certification decision, a "QCP Penalty" is applied.     The
    penalty involves reduction of benefits by 20 percent for the
    remainder of the calendar year or until the annual out-of-pocket
    limit is reached.   Moreover, the annual out-of-pocket limit is
    increased from $1,000 to $1,250 in covered expenses, not
    including any applicable deductible.    According to the QCP
    Administrative Manual, the QCP penalty is automatically applied
    when a participant fails to contact United.    However, if a
    participant complies with QCP by contacting United, but does not
    follow its decision, the penalty may be waived following an
    internal appeal if the medical facts show that the treatment
    chosen was appropriate.
    A more complete description of QCP and the services provided
    by United is contained in a separate booklet.    Under the heading
    "WHAT QCP DOES" the booklet explains:
    Whenever your doctor recommends surgery or hospitalization
    for you or a covered dependent, QCP will provide an
    independent review of your condition (or your covered
    dependent's). The purpose of the review is to assess the
    need for surgery or hospitalization and to determine the
    appropriate length of stay for a hospitalization, based on
    nationally accepted medical guidelines. As part of the
    review process, QCP will discuss with your doctor the
    4
    appropriateness of the treatments recommended and the
    availability of alternative types of treatments -- or
    locations for treatment -- that are equally effective,
    involve less risk, and are more cost effective.
    The next paragraph is headed "INDEPENDENT, PROFESSIONAL REVIEW"
    and states:
    United Health Care, an independent professional medical
    review organization, has been engaged to provide services
    under QCP. United's staff includes doctors, nurses, and
    other medical professionals knowledgeable about the health
    care delivery system. Together with your doctor, they work
    to assure that you and your covered family members receive
    the most appropriate medical care.
    At several points in the booklet, the themes of "independent
    medical review" and "reduction of unnecessary risk and expense"
    are repeated.   Under a section entitled "THE QUALITY CARE
    PROGRAM...AT A GLANCE" the booklet states that QCP "Provides
    independent, professional review when surgery or hospitalization
    is recommended -- to assist you in making an enlightened decision
    regarding your treatment."    QCP "provides improved quality of
    care by eliminating medically unnecessary treatment," but
    beneficiaries who fail to use it "may be exposed to unnecessary
    health risks. . . ."   Elsewhere, in the course of pointing out
    that studies show one-third of all surgery may be unnecessary,
    the booklet explains that programs such as QCP "help reduce
    unnecessary and inappropriate care and eliminate their associated
    costs."   Thus, "one important service of QCP will help you get a
    second opinion when your doctor recommends surgery."
    The booklet goes on to describe the circumstances under
    which QCP must be utilized.    When a Plan member's doctor
    recommends admission to the hospital,
    5
    [i]ndependent medical professionals will review, with the
    patient's doctor, the medical findings and the proposed
    course of treatment, including the medically necessary
    length of confinement. The Quality Care Program may require
    additional tests or information (including second opinions),
    when determined necessary during consultation between QCP
    professionals and the attending physician.
    When United certifies a hospital stay, it monitors the continuing
    necessity of the stay.    It also determines, for certain medical
    procedures and surgeries, whether a second opinion is necessary,
    and authorizes, where appropriate, certain alternative forms of
    care.    Beneficiaries are strongly encouraged to use QCP to avoid
    loss of benefits: "'fully using' QCP means following the course
    of treatment that's recommended by QCP's medical professionals."
    In accordance with the QCP portion of the plan, Dr. Collins
    sought pre-certification from United for Mrs. Corcoran's hospital
    stay.    Despite Dr. Collins's recommendation, United determined
    that hospitalization was not necessary, and instead authorized 10
    hours per day of home nursing care.3   Mrs. Corcoran entered the
    hospital on October 3, 1989, but, because United had not pre-
    certified her stay, she returned home on October 12.    On October
    25, during a period of time when no nurse was on duty, the fetus
    went into distress and died.
    Mrs. Corcoran and her husband, Wayne, filed a wrongful death
    action in Louisiana state court alleging that their unborn child
    died as a result of various acts of negligence committed by Blue
    Cross and United.    Both sought damages for the lost love, society
    3
    The record does not reveal the name of the person or
    persons at United that made the decision concerning Mrs.
    Corcoran.
    6
    and affection of their unborn child.   In addition, Mrs. Corcoran
    sought damages for the aggravation of a pre-existing depressive
    condition and the loss of consortium caused by such aggravation,
    and Mr. Corcoran sought damages for loss of consortium.     The
    defendants removed the action to federal court on grounds that it
    was pre-empted by ERISA4 and that there was complete diversity
    among the parties.
    Shortly thereafter, the defendants moved for summary
    judgment.   They argued that the Corcorans' cause of action,
    properly characterized, sought damages for improper handling of a
    claim from two entities whose responsibilities were simply to
    administer benefits under an ERISA-governed plan.   They contended
    that their relationship to Mrs. Corcoran came into existence
    solely as a result of an ERISA plan and was defined entirely by
    the plan.   Thus, they urged the court to view the claims as
    "relating to" an ERISA plan, and therefore within the broad scope
    of state law claims pre-empted by the statute.   In their
    opposition to the motion, the Corcorans argued that "[t]his case
    essentially boils down to one for malpractice against United
    HealthCare. . . ."   They contended that under this court's
    analysis in Sommers Drug Stores Co. Employee Profit Sharing Trust
    v. Corrigan Enterprises, Inc., 
    793 F.2d 1456
    (5th Cir. 1986),
    cert. denied, 
    479 U.S. 1034
    (1987), their cause of action must be
    4
    See Metropolitan Life Ins. Co. v. Taylor, 
    481 U.S. 58
    , 66
    (1987) (because ERISA pre-emption is so comprehensive, pre-
    emption defense provides sufficient basis for removal to federal
    court notwithstanding "well-pleaded complaint" rule).
    7
    classified as a state law of general application which involves
    an exercise of traditional state authority and affects principal
    ERISA entities in their individual capacities.   This
    classification, they argued, together with the fact that pre-
    emption would contravene the purposes of ERISA by leaving the
    Corcorans without a remedy, leads to the conclusion that the
    action is permissible notwithstanding ERISA.
    The district court, relying on the broad ERISA pre-emption
    principles developed by the Supreme Court and the Fifth Circuit,
    granted the motion.   The court noted that ERISA pre-emption
    extends to state law claims "'of general application,' including
    tort claims where ERISA ordinarily plays no role in the state law
    at issue."   (citing Metropolitan Life Ins. Co. v. Taylor, 
    481 U.S. 58
    (1987) and Pilot Life Ins. Co. v. Dedeaux, 
    481 U.S. 41
    (1987)).   The court found that the state law claim advanced by
    the Corcorans "relate[d] to" the employee benefit plan (citing
    the statutory pre-emption clause, ERISA § 514(a)), and therefore
    was pre-empted, because
    [b]ut for the ERISA plan, the defendants would have played
    no role in Mrs. Corcoran's pregnancy; the sole reason the
    defendants had anything to do with her pregnancy is because
    the terms of the ERISA plan directed Mrs. Corcoran to the
    defendants (or at least to United HealthCare) for approval
    of coverage of the medical care she initially sought.
    The court held that, because the ERISA plan was the source of the
    relationship between the Corcorans and the defendants, the
    Corcorans' attempt to distinguish United's role in paying claims
    from its role as a source of professional medical advice was
    unconvincing.
    8
    The Corcorans filed a motion for reconsideration under Rule
    59 of the Federal Rules of Civil Procedure.      They did not ask the
    district court to reconsider its pre-emption ruling, but instead
    contended that language in the district court's opinion had
    implicitly recognized that they had a separate cause of action
    under ERISA's civil enforcement mechanism, § 502(a)(3).5     They
    argued that the Supreme Court's decision in Massachusetts Mutual
    Life Ins. Co. v. Russell, 
    473 U.S. 134
    (1985), did not foreclose
    the possibility that compensatory damages such as they sought
    constituted "other appropriate equitable relief" available under
    § 502(a)(3) for violations of ERISA or the terms of an ERISA
    plan.    The district court denied the motion.   Although the court
    recognized that there was authority to the contrary, it pointed
    out that "[t]he vast majority of federal appellate courts have .
    . . held that a beneficiary under an ERISA health plan may not
    recover under section 509(a)(3) [sic] of ERISA compensatory or
    consequential damages for emotional distress or other claims
    beyond medical expenses covered by the plan." (citations
    omitted).    Moreover, the court pointed out, a prerequisite to
    recovery under § 502(a)(3) is a violation of the terms of ERISA
    itself.    ERISA does not place upon the defendants a substantive
    5
    The district court had stated that "[b]ecause the
    plaintiffs concede that the defendants have fully paid any and
    all medical expenses that Mrs. Corcoran actually incurred that
    were covered by the plan, the plaintiffs have no remaining claims
    under ERISA." In a footnote, the court indicated that Mrs.
    Corcoran could have (1) sued under ERISA, before entering the
    hospital, for a declaratory judgment that she was entitled to
    hospitalization benefits; or (2) gone into the hospital, incurred
    out-of-pocket expenses, and sued under ERISA for these expenses.
    9
    responsibility in connection with the provision of medical advice
    which, if breached, would support a claim under § 502(a)(3).     The
    court entered final judgment in favor of Blue Cross and United,
    and this appeal followed.
    II. STANDARD OF REVIEW
    Because this case is on appeal from the district court's
    grant of summary judgment, our review is plenary.   Dorsett v.
    Board of Trustees for State Colleges & Universities, 
    940 F.2d 121
    , 123 (5th Cir. 1991).   We view the evidence in the light most
    favorable to the nonmoving party, 
    id., and must
    affirm if "the
    pleadings, depositions, answers to interrogatories, and
    admissions on file, together with the affidavits, if any, show
    that there is no genuine issue as to any material fact and that
    the moving party is entitled to a judgment as a matter of law."
    Fed. R. Civ. P. 56(c).   As this case currently stands, the
    parties dispute not the relevant facts, but the legal conclusions
    that must be applied to those facts.   As the Corcorans put it,
    "[t]he question on appeal is whether the plaintiffs are afforded
    any relief, under state law or ERISA, for damages caused by [the
    defendants' actions]."
    III. PRE-EMPTION OF THE STATE LAW CAUSE OF ACTION
    A. The Nature of the Corcorans' State Law Claims
    The Corcorans' original petition in state court alleged that
    acts of negligence committed by Blue Cross and United caused the
    10
    death of their unborn child.    Specifically, they alleged that
    Blue Cross wrongfully denied appropriate medical care, failed
    adequately to oversee the medical decisions of United, and failed
    to provide United with Mrs. Corcoran's complete medical
    background.    They alleged that United wrongfully denied the
    medical care recommended by Dr. Collins and wrongfully determined
    that home nursing care was adequate for her condition.    It is
    evident that the Corcorans no longer pursue any theory of
    recovery against Blue Cross.    Although they mention in their
    appellate brief the fact that they asserted a claim against Blue
    Cross, they challenge only the district court's conclusion that
    ERISA pre-empts their state law cause of action against United.6
    We, therefore, analyze solely the question of pre-emption of the
    claims against United.    See Hulsey v. State of Texas, 
    929 F.2d 168
    , 172 (5th Cir. 1991) (issues stated but not briefed need not
    be considered on appeal).
    The claims against United arise from a relatively recent
    phenomenon in the health care delivery system -- the prospective
    review by a third party of the necessity of medical care.
    Systems of prospective and concurrent review, rather than
    traditional retrospective review, were widely adopted throughout
    the 1980s as a method of containing the rapidly rising costs of
    health care.    
    Blum, supra, at 192
    ; Furrow, Medical Malpractice
    and Cost Containment: Tightening the Screws, 36 Case Western L.
    6
    They also do not mention Blue Cross when arguing that
    extracontractual damages are available under § 502(a)(3).
    11
    Rev. 985, 986-87 (1986).    Under the traditional retrospective
    system (also commonly known as the fee-for-service system), the
    patient obtained medical treatment and the insurer reviewed the
    provider's claims for payment to determine whether they were
    covered under the plan.    Denial of a claim meant that the cost of
    treatment was absorbed by an entity other than the one designed
    to spread the risk of medical costs -- the insurer.
    Congress's adoption in 1983 of a system under which
    hospitals are reimbursed for services provided to Medicare
    patients based upon average cost calculations for patients with
    particular diagnoses spurred private insurers to institute
    similar programs in which prospective decisions are made about
    the appropriate level of care.    Although plans vary, the typical
    prospective review system requires some form of pre-admission
    certification by a third party (e.g., the HMO if an HMO-
    associated doctor provides care; an outside organization such as
    United if an independent physician provides care) before a
    hospital stay.    Concurrent review involves the monitoring of a
    hospital stay to determine its continuing appropriateness.     See
    generally, 
    Blum, supra, at 192
    -93; Tiano, The Legal Implications
    of HMO Cost Containment Measures, 14 Seton Hall Legis. J. 79, 80
    (1990).   As the SPD makes clear, United performs this sort of
    prospective and concurrent review (generically, "utilization
    review") in connection with, inter alia, the hospitalization of
    Bell employees.
    12
    The Corcorans based their action against United on Article
    2315 of the Louisiana Civil Code, which provides that "[e]very
    act whatever of man that causes damage to another obliges him by
    whose fault it happened to repair it."   Article 2315 provides
    parents with a cause of action for the wrongful death of their
    unborn children, Danos v. St. Pierre, 
    402 So. 2d 633
    , 637-38 (La.
    1981), and also places liability on health care providers when
    they fail to live up to the applicable standard of care.
    Chivleatto v. Divinity, 
    379 So. 2d 784
    , 786 (La. Ct. App. 4th
    Dist. 1979).   Whether Article 2315 permits a negligence suit
    against a third party provider of utilization review services,
    however, has yet to be decided by the Louisiana courts.    The
    potential for imposing liability on these entities is only
    beginning to be explored, with only one state explicitly
    permitting a suit based on a utilization review company's
    allegedly negligent decision about medical care to go forward.
    Wilson v. Blue Cross of So. California, 
    22 Cal. App. 3d 660
    , 
    271 Cal. Rptr. 876
    , 883 (1990) (reversing summary judgment for
    utilization review company which determined that further
    hospitalization was not necessary; ERISA not implicated);7 see
    also Wickline v. State of California, 
    192 Cal. App. 3d 1630
    , 
    239 Cal. Rptr. 810
    , 819 (1986) (stating, in dicta, that negligent
    implementation of cost containment mechanisms such as utilization
    7
    The case went to trial, but the plaintiff settled with
    Western Medical, the provider of utilization review services.
    See Milt Freudenheim, When Treatment and Costs Collide, N.Y.
    Times, Apr. 28, 1992, at C2 col. 1.
    13
    review can lead to liability; ERISA not implicated), cert.
    granted, 
    727 P.2d 753
    , 
    231 Cal. Rptr. 560
    , review dismissed,
    cause remanded, 
    741 P.2d 613
    , 
    239 Cal. Rptr. 805
    (1987).8
    In the absence of clear Louisiana authority for their
    lawsuit, the Corcorans rely on Green v. Walker, 
    910 F.2d 291
    (5th
    Cir. 1990).   We held in Green that Article 2315 imposes a duty of
    due care upon physicians hired by employers to conduct
    employment-related exams on employees.   
    Id. at 296.
      The cause of
    action recognized in Green, however, is not analogous to the
    8
    Numerous commentators have weighed in on the propriety of
    liability for utilization review decisions. See e.g., Macaulay,
    Health Care Cost Containment and Medical Malpractice: On a
    Collision Course, 19 Suffolk U.L. Rev. 91, 106-107 (1986)
    (arguing for higher standard of negligence in "Wickline suits");
    Morreim, Cost Containment and the Standard of Medical Care, 75
    Calif. L. Rev. 1719, 1749-50 (1987) (arguing that liability
    should be limited because patient's physician makes the ultimate
    decision about treatment); Note, Paying the Piper: Third Party
    Payor Liability for Medical Treatment Decisions, 
    25 Ga. L
    . Rev.
    861, 907-911 (1991) (by David Griner) (arguing that without
    liability for negligence in utilization review decisions, third
    party payors have incentives to control costs but not to use
    reasonable care in the decisionmaking process); Mellas, Adapting
    the Judicial Approach to Medical Malpractice Claims Against
    Physicians to Reflect Medicare Cost Containment Measures, 62 U.
    Colo. L. Rev. 287, 316 (1991) (liability will reduce possibility
    that poor medical decisions will be made in order to cut costs).
    Even if courts put their imprimatur on negligence actions
    against utilization review organizations, plaintiffs would face
    difficulties in proving that the organization's decision was a
    significant cause of an injury. See 
    Wickline, 239 Cal. Rptr. at 819
    (decision of doctor to discharge patient after Medi-Cal
    (state utilization review body) would not authorize additional
    hospital stay, not decision of Medi-Cal on appropriate length of
    stay, is act upon which liability should be premised); 
    Note, supra
    , 
    25 Ga. L
    . Rev. at 902-05 (discussing problem of proving
    that utilization review organization's decision is proximate
    cause of injury); but see 
    Wilson, 271 Cal. Rptr. at 883
    (finding
    that plaintiffs had adduced enough evidence as to causal effect
    of utilization review company's decision on decedent's suicide to
    avoid summary judgment).
    14
    cause of action brought against United because Green involved an
    actual physical examination by a doctor hired by an employer, not
    the detached decision of a utilization review company.    Despite
    the lack of clear Louisiana authority supporting the Corcorans'
    theory of recovery against United, we can resolve the pre-emption
    question presented in this appeal.    The law in this area is only
    beginning to develop, and it does not appear to us that Louisiana
    law clearly forecloses the possibility of recovery against
    United.   Thus, assuming that on these facts the Corcorans might
    be capable of stating a cause of action for malpractice,9 our
    task now is to determine whether such a cause of action is pre-
    empted by ERISA.
    B. Principles of ERISA Pre-emption
    The central inquiry in determining whether a federal statute
    pre-empts state law is the intent of Congress.     FMC Corp. v.
    Holliday, 
    111 S. Ct. 403
    , 407 (1990); Allis-Chalmers Corp. v.
    Lueck, 
    471 U.S. 202
    , 208 (1985).     In performing this analysis we
    begin with any statutory language that expresses an intent to
    pre-empt, but we look also to the purpose and structure of the
    statute as a whole.   FMC 
    Corp., 111 S. Ct. at 407
    ; Ingersoll-Rand
    Co. v. McClendon, 
    111 S. Ct. 478
    , 482 (1990).
    ERISA contains an explicit pre-emption clause, which
    provides, in relevant part:
    9
    If the Corcorans could sue United on a negligence theory,
    it would appear that they could recover damages incurred in
    connection with the death of their unborn child. Danos, 
    402 So. 2d
    at 637.
    15
    Except as provided in subsection (b) of this section, the
    provisions of this subchapter and subchapter III of this
    chapter shall supersede any and all State laws insofar as
    they may now or hereafter relate to any employee benefit
    plan described in section 1003(a). . . .
    ERISA § 514(a).10    It is by now well-established that the
    "deliberately expansive" language of this clause, Pilot Life
    Insurance Co. v. Dedeaux, 
    481 U.S. 42
    , 46 (1987), is a signal
    that it is be construed extremely broadly.     See FMC Corp., 111 S.
    Ct. at 407 ("[t]he pre-emption clause is conspicuous for its
    breadth"); 
    Ingersoll-Rand, 111 S. Ct. at 482
    .11    The key words
    10
    Statutory, decisional and all other forms of state law
    are included within the scope of the preemption clause. ERISA §
    514(c)(1) ("The term 'State law' includes all laws, decisions,
    rules, regulations, or other State action having the effect of
    law, of any State"). Section 514(b)(2)(A) exempts certain state
    laws from pre-emption, but none of these exemptions is applicable
    here.
    11
    The legislative history indicates that Congress intended
    the preemption provision to be applied expansively. In Shaw v.
    Delta Air Lines, Inc., 
    463 U.S. 85
    (1983), the Court explained:
    The bill that became ERISA originally contained a limited
    pre-emption clause, applicable only to state laws relating
    to the specific subjects covered by ERISA. The Conference
    Committee rejected those provisions in favor of the present
    language, and indicated that section's pre-emptive scope was
    as broad as its language. See H.R. Conf. Rep. No. 93-1280,
    p. 383 (1974); S. Conf. Rep. No. 93-1090, p. 383 
    (1974). 463 U.S. at 98
    .     Senator Williams, one of ERISA's sponsors,
    remarked:
    It should be stressed that with the narrow exceptions
    specified in the bill, the substantive and enforcement
    provisions of the conference substitute are intended to
    preempt the field for Federal regulations, thus eliminating
    the threat of conflicting or inconsistent State and local
    regulation of employee benefit plans. This principle is
    intended to apply in its broadest sense to all actions of
    State or local governments, or any instrumentality thereof,
    which have the force or effect of law.
    16
    "relate to" are used in such a way as to expand pre-emption
    beyond state laws that relate to the specific subjects covered by
    ERISA, such as reporting, disclosure and fiduciary obligations.
    
    Id. at 482.
      Thus, state laws "relate[] to" employee benefit
    plans in a much broader sense -- whenever they have "a connection
    with or reference to such a plan."       Shaw v. Delta Air Lines,
    Inc., 
    463 U.S. 85
    , 96-97 (1983).       This sweeping pre-emption of
    state law is consistent with Congress's decision to create a
    comprehensive, uniform federal scheme for the regulation of
    employee benefit plans.   See 
    Ingersoll-Rand, 111 S. Ct. at 482
    ;
    Pilot 
    Life, 481 U.S. at 45-46
    .
    The most obvious class of pre-empted state laws are those
    that are specifically designed to affect ERISA-governed employee
    benefit plans.   See Mackey v. Lanier Collection Agency & Serv.,
    Inc., 
    486 U.S. 825
    , 829-30 (1988) (statute explicitly barring
    garnishment of ERISA plan funds is pre-empted); 
    Ingersoll-Rand, 111 S. Ct. at 483
    (cause of action allowing recovery from
    employer when discharge is premised upon attempt to avoid
    contributing to pension plan is pre-empted).       But a law is not
    saved from pre-emption merely because it does not target employee
    benefit plans.   Indeed, much pre-emption litigation involves laws
    of general application which, when applied in particular
    settings, can be said to have a connection with or a reference to
    an ERISA plan.   See Pilot 
    Life, 481 U.S. at 47-48
    (common law
    120 Cong. Rec. 29933 (1974).     See also Pilot 
    Life, 481 U.S. at 46
    .
    17
    tort and contract causes of action seeking damages for improper
    processing of a claim for benefits under a disability plan are
    pre-empted); 
    Shaw, 463 U.S. at 95-100
    (statute interpreted by
    state court as prohibiting plans from discriminating on the basis
    of pregnancy is pre-empted); Christopher v. Mobil Oil Corp., 
    950 F.2d 1209
    , 1218 (5th Cir. 1992) (common law fraud and negligent
    misrepresentation claims that allege reliance on agreements or
    representations about the coverage of a plan are pre-empted),
    petition for cert. filed 
    60 U.S.L.W. 3829
    (U.S. May 26, 1992)
    (No. 91-1881); Lee v. E.I. DuPont de Nemours & Co., 
    894 F.2d 755
    ,
    758 (5th Cir. 1990) (same).   On the other hand, the Court has
    recognized that not every conceivable cause of action that may be
    brought against an ERISA-covered plan is pre-empted.    "Some state
    actions may affect employee benefit plans in too tenuous, remote
    or peripheral a manner to warrant a finding that the law 'relates
    to' the plan."   
    Shaw, 463 U.S. at 100
    n.21.   Thus, "run-of-the-
    mill state-law claims such as unpaid rent, failure to pay
    creditors, or even torts committed by an ERISA plan" are not pre-
    empted, 
    Mackey, 486 U.S. at 833
    (discussing these types of claims
    in dicta).
    C. Pre-emption of the Corcorans' Claims
    Initially, we observe that the common law causes of action
    advanced by the Corcorans are not that species of law
    "specifically designed" to affect ERISA plans, for the liability
    rules they seek to invoke neither make explicit reference to nor
    are premised on the existence of an ERISA plan.    Compare
    18
    
    Ingersoll-Rand, 111 S. Ct. at 483
    .     Rather, applied in this case
    against a defendant that provides benefit-related services to an
    ERISA plan, the generally applicable negligence-based causes of
    action may have an effect on an ERISA-governed plan.    In our
    view, the pre-emption question devolves into an assessment of the
    significance of these effects.
    1. United's position -- it makes benefit determinations, not
    medical decisions
    United's argument in favor of pre-emption is grounded in the
    notion that the decision it made concerning Mrs. Corcoran was not
    primarily a medical decision, but instead was a decision made in
    its capacity as a plan fiduciary about what benefits were
    authorized under the Plan.    All it did, it argues, was determine
    whether Mrs. Corcoran qualified for the benefits provided by the
    plan by applying previously established eligibility criteria.
    The argument's coup de grace is that under well-established
    precedent,12 participants may not sue in tort to redress injuries
    flowing from decisions about what benefits are to be paid under a
    plan.     One commentator has endorsed this view of lawsuits against
    providers of utilization review services, arguing that, because
    medical services are the "benefits" provided by a utilization
    review company, complaints about the quality of medical services
    (i.e., lawsuits for negligence) "can therefore be characterized
    as claims founded upon a constructive denial of plan benefits."
    12
    Pilot 
    Life, 481 U.S. at 47-48
    .
    19
    Chittenden, Malpractice Liability and Managed Health Care:
    History & Prognosis, 26 Tort & Ins. Law J. 451, 489 (1991).
    In support of its argument, United points to its explanatory
    booklet and its language stating that the company advises the
    patient's doctor "what the medical plan will pay for, based on a
    review of [the patient's] clinical information and nationally
    accepted medical guidelines for the treatment of [the patient's]
    condition."   It also relies on statements to the effect that the
    ultimate medical decisions are up to the beneficiary's doctor.
    It acknowledges at various points that its decision about what
    benefits would be paid was based on a consideration of medical
    information, but the thrust of the argument is that it was simply
    performing commonplace administrative duties akin to claims
    handling.
    Because it was merely performing claims handling functions
    when it rejected Dr. Collins's request to approve Mrs. Corcoran's
    hospitalization, United contends, the principles of Pilot Life
    and its progeny squarely foreclose this lawsuit.    In Pilot Life,
    a beneficiary sought damages under various state-law tort and
    contract theories from the insurance company that determined
    eligibility for the employer's long term disability benefit plan.
    The company had paid benefits for two years, but there followed a
    period during which the company terminated and reinstated the
    beneficiary several 
    times. 481 U.S. at 43
    .   The Court made
    clear, however, that ERISA pre-empts state-law tort and contract
    actions in which a beneficiary seeks to recover damages for
    20
    improper processing of a claim for benefits.   
    Id. at 48-49.
    United suggests that its actions here were analogous to those of
    the insurance company in Pilot Life, and therefore urges us to
    apply that decision.
    2. The Corcorans' position -- United makes medical
    decisions, not benefit determinations
    The Corcorans assert that Pilot Life and its progeny are
    inapposite because they are not advancing a claim for improper
    processing of benefits.   Rather, they say, they seek to recover
    solely for United's erroneous medical decision that Mrs. Corcoran
    did not require hospitalization during the last month of her
    pregnancy.   This argument, of course, depends on viewing United's
    action in this case as a medical decision, and not merely an
    administrative determination about benefit entitlements.
    Accordingly, the Corcorans, pointing to the statements United
    makes in the QCP booklet concerning its medical expertise,
    contend that United exercised medical judgment which is outside
    the purview of ERISA pre-emption.
    The Corcorans suggest that a medical negligence claim is
    permitted under the analytical framework we have developed for
    assessing pre-emption claims.   Relying on Sommers Drug Stores Co.
    Employee Profit Sharing Trust v. Corrigan Enterprises, Inc., 
    793 F.2d 1456
    (5th Cir. 1986), cert. denied, 
    479 U.S. 1034
    (1987),
    they contend that we should not find the state law under which
    they proceed pre-empted because it (1) involves the exercise of
    traditional state authority and (2) is a law of general
    application which, although it affects relations between
    21
    principal ERISA entities in this case, is not designed to affect
    the ERISA relationship.13
    3. Our view -- United makes medical decisions incident to
    benefit determinations
    We cannot fully agree with either United or the Corcorans.
    Ultimately, we conclude that United makes medical decisions --
    indeed, United gives medical advice -- but it does so in the
    context of making a determination about the availability of
    benefits under the plan.    Accordingly, we hold that the Louisiana
    tort action asserted by the Corcorans for the wrongful death of
    their child allegedly resulting from United's erroneous medical
    decision is pre-empted by ERISA.
    Turning first to the question of the characterization of
    United's actions, we note that the QCP booklet and the SPD lend
    substantial support to the Corcorans' argument that United makes
    13
    Amicus curiae Louisiana Trial Lawyers Association (LTLA)
    argues that United is not an ERISA fiduciary, and that therefore
    the tort claims against it cannot be pre-empted. The parties,
    however, agree that United is a fiduciary, and we have no reason
    to dispute this. United's contract with Bell would appear to
    give it "discretionary authority or discretionary control
    respecting management of [the] plan" or "authority or control
    respecting management or disposition of its assets. . . [,]" thus
    satisfying the statutory definition of a fiduciary. 29 U.S.C. §
    1002(21)(A)(i). In any event, all courts of appeals to have
    considered the issue have held that ERISA pre-emption may apply
    regardless of whether the defendant is a plan fiduciary.
    Consolidated Beef Indus., Inc. v. New York Life Ins. Co., 
    949 F.2d 960
    , 964 (8th Cir. 1991); Gibson v. Prudential Ins. Co., 
    915 F.2d 414
    , 417-18 (9th Cir. 1990); Howard v. Parisian, Inc., 
    807 F.2d 1560
    , 1564 (11th Cir. 1987). Despite the suggestion in
    Howard that this circuit so held in Light v. Blue Cross and Blue
    Shield of Alabama, 
    790 F.2d 1247
    (5th Cir. 1986), there is no
    indication that the defendant in Light was not a fiduciary, and
    even if it was not, no part of the opinion considers the precise
    question whether ERISA pre-empts suits against nonfiduciaries.
    22
    medical decisions.   United's own booklet tells beneficiaries that
    it "assess[es] the need for surgery or hospitalization and . . .
    determine[s] the appropriate length of stay for a
    hospitalization, based on nationally accepted medical
    guidelines."   United "will discuss with your doctor the
    appropriateness of the treatments recommended and the
    availability of alternative types of treatments."   Further,
    "United's staff includes doctors, nurses, and other medical
    professionals knowledgeable about the health care delivery
    system.   Together with your doctor, they work to assure that you
    and your covered family members receive the most appropriate
    medical care."   According to the SPD, United will "provid[e] you
    with information which will permit you (in consultation with your
    doctor) to evaluate alternatives to surgery and hospitalization
    when those alternatives are medically appropriate."
    United makes much of the disclaimer that decisions about
    medical care are up to the beneficiary and his or her doctor.
    While that may be so, and while the disclaimer may support the
    conclusion that the relationship between United and the
    beneficiary is not that of doctor-patient, it does not mean that
    United does not make medical decisions or dispense medical
    advice.   See 
    Wickline, 239 Cal. Rptr. at 819
    (declining to hold
    Medi-Cal liable but recognizing that it made a medical judgment);
    Macaulay, Health Care Cost Containment and Medical Malpractice:
    On a Collision Course, 19 Suffolk U.L. Rev. 91, 106-107 (1986)
    ("As illustrated in [Wickline], an adverse prospective
    23
    determination on the 'necessity' of medical treatment may involve
    complex medical judgment.") (footnote omitted).   In response,
    United argues that any such medical determination or advice is
    made or given in the context of administering the benefits
    available under the Bell plan.   Supporting United's position is
    the contract between United and Bell, which provides that
    "[United] shall contact the Participant's physician and based
    upon the medical evidence and normative data determine whether
    the Participant should be eligible to receive full plan benefits
    for the recommended hospitalization and the duration of
    benefits."
    United argues that the decision it makes in this, the
    prospective context, is no different than the decision an insurer
    makes in the traditional retrospective context.   The question in
    each case is "what the medical plan will pay for, based on a
    review of [the beneficiary's] clinical information and nationally
    accepted medical guidelines for the treatment of [the
    beneficiary's] condition."   See QCP Booklet at 4.   A prospective
    decision is, however, different in its impact on the beneficiary
    than a retrospective decision.   In both systems, the beneficiary
    theoretically knows in advance what treatments the plan will pay
    for because coverage is spelled out in the plan documents.   But
    in the retrospective system, a beneficiary who embarks on the
    course of treatment recommended by his or her physician has only
    a potential risk of disallowance of all or a part of the cost of
    that treatment, and then only after treatment has been rendered.
    24
    In contrast, in a prospective system a beneficiary may be
    squarely presented in advance of treatment with a statement that
    the insurer will not pay for the proposed course of treatment
    recommended by his or her doctor and the beneficiary has the
    potential of recovering the cost of that treatment only if he or
    she can prevail in a challenge to the insurer's decision.    A
    beneficiary in the latter system would likely be far less
    inclined to undertake the course of treatment that the insurer
    has at least preliminarily rejected.
    By its very nature, a system of prospective decisionmaking
    influences the beneficiary's choice among treatment options to a
    far greater degree than does the theoretical risk of disallowance
    of a claim facing a beneficiary in a retrospective system.
    Indeed, the perception among insurers that prospective
    determinations result in lower health care costs is premised on
    the likelihood that a beneficiary faced with the knowledge of
    specifically what the plan will and will not pay for will choose
    the treatment option recommended by the plan in order to avoid
    risking total or partial disallowance of benefits.   When United
    makes a decision pursuant QCP, it is making a medical
    recommendation which -- because of the financial ramifications --
    is more likely to be followed.14
    14
    It is the medical decisionmaking aspect of the
    utilization review process that has spawned the literature
    assessing the application of malpractice and other negligence-
    based doctrines to hold these entities liable for patient
    injuries. See 
    Blum, supra, at 199
    ("The overriding incentive for
    [utilization review] may be cost containment, but the process
    itself is triggered by a medical evaluation of a particular case,
    25
    Although we disagree with United's position that no part of
    its actions involves medical decisions, we cannot agree with the
    Corcorans that no part of United's actions involves benefit
    determinations.    In our view, United makes medical decisions as
    part and parcel of its mandate to decide what benefits are
    available under the Bell plan.    As the QCP Booklet concisely puts
    it, United decides "what the medical plan will pay for."      When
    United's actions are viewed from this perspective, it becomes
    apparent that the Corcorans are attempting to recover for a tort
    allegedly committed in the course of handling a benefit
    determination.    The nature of the benefit determination is
    different than the type of decision that was at issue in Pilot
    Life, but it is a benefit determination nonetheless.    The
    principle of Pilot Life that ERISA pre-empts state-law claims
    alleging improper handling of benefit claims is broad enough to
    cover the cause of action asserted here.
    Moreover, allowing the Corcorans' suit to go forward would
    contravene Congress's goals of "ensur[ing] that plans and plan
    sponsors would be subject to a uniform body of benefit law" and
    "minimiz[ing] the administrative and financial burdens of
    complying with conflicting directives among States or between
    States and the Federal Government." Ingersoll-Rand Co., 111 S.
    an evaluation that requires a clinical judgment.") (footnote
    omitted); 
    Tiano, supra, at 80
    ("The patient faces conflicting
    judgments by two medical professionals: the treating physician
    and the utilization review consultant"); 
    Chittenden, supra, at 476
    ("negligent implementation of cost-control mechanisms may
    affect the medical judgment of the physician or other provider
    resulting in physical injury to the patient").
    26
    Ct. at 484; see also Fort Halifax 
    Packing, 482 U.S. at 9-10
    .
    Thus, statutes that subject plans to inconsistent regulatory
    schemes in different states, thereby increasing inefficiency and
    potentially causing the plan to respond by reducing benefit
    levels, are consistently held pre-empted.     See Alessi v.
    Raybestos-Manhattan, Inc., 
    451 U.S. 504
    , 524 (1981) (striking
    down law which prohibited plans from offsetting benefits by
    amount of worker compensation payments); 
    Shaw, 463 U.S. at 105
    n.25 (striking down law which prohibited plans from
    discriminating on basis of pregnancy); FMC 
    Corp., 111 S. Ct. at 408
    (striking down law which eliminated plans' right of
    subrogation from claimant's tort recovery).    But in Ingersoll-
    Rand, the Court, in holding pre-empted the Texas common law of
    wrongful discharge when applied against an employer who allegedly
    discharged an employee to avoid contributing to the employee's
    pension plan, made clear that a state common law cause of action
    is equally capable of leading to the kind of patchwork scheme of
    regulation Congress sought to avoid:
    It is foreseeable that state courts, exercising their common
    law powers, might develop different substantive standards
    applicable to the same employer conduct, requiring the
    tailoring of plans and employer conduct to the peculiarities
    of the law of each jurisdiction. Such an outcome is
    fundamentally at odds with the goal of uniformity that
    congress sought to 
    implement. 111 S. Ct. at 484
    .   Similarly, although imposing liability on
    United might have the salutary effect of deterring poor quality
    27
    medical decisions,15 there is a significant risk that state
    liability rules would be applied differently to the conduct of
    utilization review companies in different states.   The cost of
    complying with varying substantive standards would increase the
    cost of providing utilization review services, thereby increasing
    the cost to health benefit plans of including cost containment
    features such as the Quality Care Program (or causing them to
    eliminate this sort of cost containment program altogether) and
    ultimately decreasing the pool of plan funds available to
    reimburse participants.   See 
    Macaulay, supra, at 105
    .16
    15
    See Comment, A Cost Containment Malpractice Defense:
    Implications for the Standard of Care and for Indigent Patients,
    26 Hous. L. Rev. 1007, 1021 (1989) (by Leslie C. Giordani).
    16
    We find Independence HMO, Inc. v. Smith, 
    733 F. Supp. 983
    (E.D. Pa. 1990), cited by the Corcorans, distinguishable on
    its facts. In Smith, the district court did not find pre-empted
    a state court malpractice action brought against an HMO by one of
    its members. The plaintiff sought to hold the HMO liable, under
    a state-law agency theory, for the alleged negligence of a
    surgeon associated with the HMO. The case appears to support the
    Corcorans because the plaintiff was attempting to hold an ERISA
    entity liable for medical decisions. However, the medical
    decisions at issue do not appear to have been made in connection
    with a cost containment feature of the plan or any other aspect
    of the plan which implicated the management of plan assets, but
    were instead made by a doctor in the course of treatment.
    We also find Eurine v. Wyatt Cafeterias, No. 3-91-0408-H
    (N.D. Tex. Aug. 21, 1991), cited in the Corcorans' reply brief,
    irrelevant to this case. In Eurine, an employee of Wyatt
    Cafeterias sued after she slipped and fell at work. Wyatt had
    opted out of Texas's workers' compensation scheme, but provided
    benefits for injured employees pursuant to an ERISA plan. The
    court held that a tort suit against the employer for its
    negligence in failing to maintain the floor in a safe condition
    had nothing to do with the ERISA relationship between the
    parties, but instead arose from their distinct employer-employee
    relationship.
    Finally, to the extent that two other decisions cited by the
    28
    It may be true, as the Corcorans assert, that Louisiana tort
    law places duties on persons who make medical judgments within
    the state, and the Louisiana courts may one day recognize that
    this duty extends to the medical decisions made by utilization
    review companies.   But it is equally true that Congress may pre-
    empt state-law causes of action which seek to enforce various
    duties when it determines that such actions would interfere with
    a carefully constructed scheme of federal regulation.     See Pilot
    
    Life, 481 U.S. at 48
    .   The acknowledged absence of a remedy under
    ERISA's civil enforcement scheme for medical malpractice
    committed in connection with a plan benefit determination does
    not alter our conclusion.   While we are not unmindful of the fact
    that our interpretation of the pre-emption clause leaves a gap in
    remedies within a statute intended to protect participants in
    employee benefit plans, see 
    Shaw, 463 U.S. at 90
    ; Firestone Tire
    & Rubber Co. v. Bruch, 
    489 U.S. 101
    , 113 (1989), the lack of an
    ERISA remedy does not affect a pre-emption analysis.     Memorial
    
    Hosp., 904 F.2d at 248
    & n.16; 
    Lee, 894 F.2d at 757
    .     Congress
    perhaps could not have predicted the interjection into the ERISA
    "system" of the medical utilization review process, but it
    enacted a pre-emption clause so broad and a statute so
    comprehensive that it would be incompatible with the language,
    Corcorans, Kohn v. Delaware Valley HMO, Inc., No. 91-2745 (E.D.
    Pa. Dec. 20, 1991 and Feb. 5, 1992), and Cooney v. South Central
    Bell Tel. Co., No. 91-3870 (E.D. La. March 5, 1992), conflict
    with our holding, we decline to follow them.
    29
    structure and purpose of the statute to allow tort suits against
    entities so integrally connected with a plan.
    We are not persuaded that Sommers Drug, on which the
    Corcorans rely heavily, commands a different outcome.    In Sommers
    Drug, we observed that courts are less likely to find pre-emption
    when the state law involves an exercise of traditional state
    authority than when the law affects an area not traditionally
    regulated by the states.   
    Id. at 1467.
      The Corcorans contend
    that they easily pass this hurdle, as tort law traditionally has
    been reserved to the states, but this victory only puts them back
    at the starting line again.    We went on to say in Sommers Drug
    that we were "not convinced" that the traditional or
    nontraditional nature of the state law properly bears upon the
    initial question whether it is pre-empted by § 514(a), because
    the distinction had no support in the statutory language.    
    Id. at 1468.
      We continue to adhere to this view.   As cases such as
    Ingersoll-Rand and Christopher illustrate, the fact that states
    traditionally have regulated in a particular area has functioned
    as no impediment to ERISA pre-emption.    See 
    Ingersoll-Rand, 111 S. Ct. at 483
    (wrongful discharge action pre-empted);
    
    Christopher, 950 F.2d at 1218
    (fraud action pre-empted).    ERISA's
    pre-emption section itself contains an explicit exemption for
    state laws that regulate in at least one area of traditional
    state function -- insurance.   ERISA § 514(b)(2)(A).   There is no
    reason to believe that Congress intended implicitly to exempt a
    30
    whole range of state laws when it showed itself perfectly capable
    of carving out specific exemptions.
    The second factor identified in Sommers Drug as bearing on
    pre-emption -- whether the state law affects relations among
    principal ERISA entities -- continues to be relevant in this
    circuit, see Memorial Hospital Systems v. Northbrook Life
    Insurance Co., 
    904 F.2d 236
    , 245, 248-50 (5th Cir. 1990), but it
    does not help the Corcorans.   In the case before us, of course,
    the cause of action affects relations between principal ERISA
    entities.   Nevertheless, the Corcorans argue, Sommers Drug holds
    that the claim will not be pre-empted where the state law is one
    of general application and it does not affect relations among the
    principal ERISA entities "as such," but in their capacities as
    entities in another kind of relationship.   They analogize to
    Sommers Drug, where we held that a pension plan, acting in its
    "non-ERISA" capacity as a shareholder in a company, could invoke
    the state common law of corporate fiduciary duty against an
    officer and director of the company and a plan fiduciary to
    redress an alleged breach of fiduciary 
    duty. 793 F.2d at 1468
    -
    70.   The short answer to this argument is that the cause of
    action in this case is not between parties acting in the kind of
    non-ERISA context we found in Sommers Drug.    Although the claims
    in Sommers Drug nominally affected relations between ERISA
    entities, the lawsuit had nothing to do with the plan.   Here,
    however, the central purpose of the lawsuit is to hold United
    liable for actions it took in connection with its duties under
    31
    the plan.   Sommers Drug does not mitigate the pre-emptive force
    of ERISA § 514(a).
    IV. EXTRACONTRACTUAL DAMAGES
    The Corcorans argue in the alternative that the damages they
    seek are available as "other appropriate equitable relief" under
    ERISA § 502(a)(3).    That section provides:
    (a) A civil action may be brought --
    .   .    .
    (3) by a participant, beneficiary, or fiduciary (A) to
    enjoin any act or practice which violates any provision
    of this subchapter or the terms of the plan, or (B) to
    obtain other appropriate equitable relief (i) to
    redress such violations or (ii) to enforce any
    provisions of this subchapter or the terms of the plan;
    . . .
    Although the Corcorans did not assert a cause of action under §
    502(a)(3) in their original state court complaint, they asked the
    district court in their motion for reconsideration to award
    damages pursuant to this section.       The defendants agreed at oral
    argument that the issue was properly raised and preserved for
    appeal, and we proceed to consider it.
    Section 502(a)(3) provides for relief apart from an award of
    benefits due under the terms of a plan.      When a beneficiary
    simply wants what was supposed to have been distributed under the
    plan, the appropriate remedy is § 502(a)(1)(B).       See, e.g.,
    Cathey v. Dow Chemical Co. Medical Care Program, 
    907 F.2d 554
    ,
    555 (5th Cir. 1990), cert. denied, 
    111 S. Ct. 964
    (1991).
    Damages that would give a beneficiary more than he or she is
    32
    entitled to receive under the strict terms of the plan are
    typically termed "extracontractual."    Section 502(a)(3) by its
    terms permits beneficiaries to obtain "other appropriate
    equitable relief" to redress (1) a violation of the substantive
    provisions of ERISA or (2) a violation of the terms of the plan.
    Although the Corcorans have neither identified which of these two
    types of violations they seek to redress nor directed us to the
    particular section of the Plan or ERISA which they claim was
    violated, we need not determine this in order to resolve the
    issue before us.   As outlined below, we find that the particular
    damages the Corcorans seek -- money for emotional injuries --
    would not be an available form of damages under the trust and
    contract law principles which, the Corcorans urge, should guide
    our interpretation of ERISA's remedial scheme.    Thus, we hold
    that even under the interpretation of § 502(a)(3) urged by the
    Corcorans, they may not recover.
    The question whether extracontractual or punitive damages
    are available to a beneficiary under § 502(a)(3) has been left
    open by the Supreme Court ever since Massachusetts Mutual Life
    Insurance Co. v. Russell, 
    473 U.S. 134
    (1985).    In Russell, the
    beneficiary of a plan sought compensatory and punitive damages
    under ERISA §§ 502(a)(2) and 409(a)17 for the improper processing
    of her claim for disability benefits.    
    Id. at 136,
    138.   The
    Court rejected the argument that such damages were available
    17
    Section 502(a)(2) permits "the Secretary. . .a
    participant, beneficiary or fiduciary" to sue for appropriate
    relief under § 409.
    33
    under § 409(a), holding that § 409(a) (1) authorized only actions
    on behalf of the plan as a whole, not individual beneficiaries,
    for losses to the plan; and (2) provided no implied cause of
    action for extracontractual damages caused by improper claims
    processing.    
    Russell, 473 U.S. at 140
    , 147.   Because the
    beneficiary expressly disclaimed reliance on § 502(a)(3),
    however, the Court had no occasion to consider whether the
    damages the plaintiff sought were available under that section.
    
    Id. at 139
    n.5.
    In a concurrence joined by three other Justices, Justice
    Brennan emphasized that he read the Court's reasoning to apply
    only to § 409(a), and that the legislative history of ERISA
    suggested that courts should develop a federal common law in
    fashioning "other appropriate equitable relief" under §
    502(a)(3).    
    Id. at 155-56
    (Brennan, J., concurring in the
    judgment).    Justice Brennan argued that Congress "intended to
    engraft trust-law principles onto the enforcement scheme" of
    ERISA, including the principle that courts should give to
    beneficiaries of a trust the remedies necessary for the
    protection of their interests.    
    Id. at 156-57.
      Consequently, he
    encouraged courts faced with claims for extracontractual damages
    first to determine to what extent state and federal trust and
    pension law provide for the recovery of damages beyond any
    benefits that have been withheld, and second to consider whether
    extracontractual relief would conflict with ERISA in any way.
    
    Id. at 157-58.
       With respect to the first inquiry he indicated
    34
    that any deficiency in trust law in the availability of make-
    whole remedies should not deter courts from authorizing such
    remedies under § 502(a)(3), for Congress intended in ERISA to
    strengthen the requirements of the common law of trusts as they
    relate to employee benefit plans.    
    Id. at 157
    n.17.   Finally,
    Justice Brennan suggested, courts should keep in mind that the
    purpose of ERISA is the "enforcement of strict fiduciary
    standards of care in the administration of all aspects of pension
    plans and promotion of the best interests of participants and
    beneficiaries."   
    Id. at 158.
    The Corcorans urge us to apply Justice Brennan's concurrence
    and hold that the damages they seek amount to "other appropriate
    equitable relief."   The defendants, on the other hand, urge us to
    interpret "other appropriate equitable relief" to include only
    declaratory and injunctive relief.   Under the defendants' view of
    § 502(a)(3), which has been adopted by a number of circuits,18 no
    money damages would be awardable and our discussion would be at
    an end.   However, even assuming that Justice Brennan's view of
    "other appropriate equitable relief" as potentially encompassing
    make-whole relief is a proper construction of that section, the
    damages the Corcorans seek would not be available.
    18
    Drinkwater v. Metropolitan Life Ins. Co., 
    846 F.2d 821
    (1st Cir.), cert. denied, 
    488 U.S. 909
    (1988); Harsch v.
    Eisenberg, 
    956 F.2d 651
    (7th Cir. 1992), petition for cert.
    filed, 
    60 U.S.L.W. 3816
    (U.S. May 11, 1992) (No. 91-1835); Novak
    v. Andersen Corp., No. 91-1957 (8th Cir. April 9, 1992); Sokol v.
    Bernstein, 
    803 F.2d 532
    (9th Cir. 1986); Bishop v. Osborn
    Transp., Inc., 
    838 F.2d 1173
    (11th Cir.), cert. denied, 
    488 U.S. 832
    (1988).
    35
    The characterization of equitable relief as encompassing
    damages necessary to make the plaintiff whole may well be
    consistent with the trust law principles that were incorporated
    into ERISA and which guide its interpretation.   See 
    Firestone, 489 U.S. at 110-11
    (because ERISA is largely based on trust law,
    those principles guide interpretation); H.R. Rep. No. 533, 93d
    Cong., 1st Sess. (1973), reprinted in 1974 U.S. Code Cong. &
    Admin. News 4639; S. Rep. No. 127, 93d Cong., 1st Sess.,
    reprinted in 1974 U.S. Code Cong. & Admin. News 4838 (indicating
    intent to incorporate the law of trusts into ERISA).   Section 205
    of the Restatement (Second) of Trusts allows for monetary damages
    as make-whole relief, providing that a beneficiary has "the
    option of pursuing a remedy which will put him in the position in
    which he was before the trustee committed the breach of trust" or
    "of pursuing a remedy which will put him in the position in which
    he would have been if the trustee had not committed the breach of
    trust."   In the context of the breach of a trustee's investment
    duties, "the general rule [is] that the object of damages is to
    make the injured party whole, that is, to put him in the same
    condition in which he would have been if the wrong had not been
    committed. . . . Both direct and consequential damages may be
    awarded."   G. Bogert & G. Bogert, The Law of Trusts and Trustees
    § 701, at 198 (2d ed. 1982).   See also Estate of Talbot, 141 Cal.
    App. 309, 
    296 P.2d 848
    (1956); In re Cook's Will, 
    136 N.J. Eq. 123
    , 
    40 A.2d 805
    (1945).
    36
    This view may also be consistent with the common law
    contract doctrine which assists us in interpreting ERISA.       As the
    Court observed in Russell, ERISA was enacted "to protect
    contractually defined 
    benefits." 473 U.S. at 148
    .   Prior to the
    enactment of ERISA, the rights and obligations of pension
    beneficiaries and trustees were governed not only by trust
    principles, but in large part by contract law.       
    Firestone, 489 U.S. at 112-13
    ; see also Rochester Corp. v. Rochester, 
    450 F.2d 118
    , 120-21 (4th Cir. 1971); Audio Fidelity Corp. v. Pension
    Benefit Guaranty Corp., 
    624 F.2d 513
    , 517 (4th Cir. 1980); Hoefel
    v. Atlas Tack Corp., 
    581 F.2d 1
    , 4-7 (1st Cir. 1978).        It is
    well-established that contract law enables an aggrieved party to
    recover such damages as would place him in the position he would
    have occupied had the contract been performed, Restatement
    (Second) of Contracts § 347 & comment a (1981), including those
    damages that could reasonably have been foreseen to flow from the
    breach.   
    Id. § 351;
    see Warren v. Society Nat. Bank, 
    905 F.2d 975
    , 980 (6th Cir. 1990) (§ 502(a)(3) allows for recovery of
    beneficiaries' increased tax liability after plan administrators
    failed to follow instructions regarding distribution), cert.
    denied, 
    111 S. Ct. 2556
    (1991).
    However, the Corcorans seek a form of extracontractual
    damages that is never, as far as we can tell, awarded for breach
    of trust duties, and is granted only in the most limited of
    circumstances for a breach of contract.       Certainly, patients and
    their physicians can enter into contracts and physicians may
    37
    incur liability for breach.   The cases are uniform, however, in
    holding that there can be no recovery against a physician on a
    contractual theory, as opposed to the usual recovery on a tort
    theory of medical negligence, unless there is an express
    agreement to perform a particular service or to achieve a
    specific cure.    E.g., Bobrick v. Bravstein, 
    497 N.Y.S.2d 749
    ,
    751, 
    116 A.D.2d 682
    (App. Div. 1986); Cirafici v. Goffen, 85 Ill.
    App. 3d 1102, 
    407 N.E.2d 633
    , 635, 
    41 Ill. Dec. 135
    (1980);
    Depenbrok v. Kaiser Foundation Health Plan, Inc., 
    79 Cal. App. 3d 167
    , 
    144 Cal. Rptr. 724
    , 726 (1978).   In a few cases, courts,
    recognizing a distinction between commercial contracts and
    contracts for the performance of personal services, have found
    inapplicable the general rule that emotional distress damages are
    not available in contract actions19 and have allowed damages for
    emotional injuries within the contemplation of the parties.
    Stewart v. Rudner, 
    349 Mich. 459
    , 
    84 N.W.2d 816
    , 824 (1957) ("the
    parties may reasonably be said to have contracted with reference
    to the payment of [emotional distress] damages therefor in event
    of breach"); Sullivan v. O'Connor, 
    363 Mass. 579
    , 
    296 N.E.2d 183
    ,
    188-89 (1973) (although mental anguish damages are not available
    for breach of a commercial contract, psychological injury may be
    contemplated in a contract for an operation) (citing Stewart).
    The Stewart rule, however, has not been widely adopted, and the
    19
    See J.   Calamari & J. Perillo, The Law of Contracts §§
    14-3, 14-5(b),   at 595-96 (3d ed. 1987); 11 W. Jaeger, Williston
    on Contracts §   1341, at 214 (3d ed. 1968); 5 Corbin on Contracts
    § 1076, at 426   (2d ed. 1964).
    38
    Michigan courts recently have characterized its holding
    concerning damages as applying only to contracts involving deep,
    personal relationships, Chrum v. Charles Heating & Cooling, Inc.,
    
    121 Mich. App. 17
    , 
    327 N.W.2d 568
    , 570 (1982), and contracts to
    perform very specific acts.     Penner v. Seaway Hosp., 169 Mich.
    App. 502, 
    427 N.W.2d 584
    , 587 (1988).
    The strictness with which courts have viewed doctor-patient
    contracts thwarts the Corcorans' claim that emotional distress
    damages would be available here under a make-whole interpretation
    of § 502(a)(3).   The existence of a true doctor-patient
    relationship between Mrs. Corcoran and United which could support
    a contractual theory of recovery is dubious at best.    Related to
    this problem is the lack of an express agreement for a particular
    service or for a particular result that serves as a prerequisite
    to a contract-based recovery.    Even assuming that United's
    booklet could be considered an aspect of the "plan," breach of
    which would give rise to a cause of action under § 502(a)(3), it
    cannot be construed as making an agreement to perform any
    particular medical procedure or to arrive at any result.    At most
    it makes promises to act in accordance with accepted standards of
    medical care.   But courts have not recognized these sorts of
    promises as creating contractual duties between physicians and
    patients.   
    Cirafici, 407 N.E.2d at 635-36
    (failure to perform
    with requisite skill and care leads to action for negligence, not
    breach of contract); Awkerman v. Tri-County Orthopedic Group,
    P.C., 
    143 Mich. App. 722
    , 
    373 N.W.2d 204
    , 206 (1985) (physician's
    39
    breach of express or implied promise to act in accordance with
    standard of care not actionable in contract).    Indeed, the
    Massachusetts Supreme Judicial Court has emphasized that in an
    action seeking damages under Sullivan, one of the leading cases
    allowing mental distress damages for a breached medical contract,
    recovery is not for the doctor's failure to live up to the
    standard of care but solely for a failure to perform the specific
    promise contained in the agreement.   Salem Orthopedic Surgeons,
    Inc. v. Quinn, 
    377 Mass. 514
    , 
    386 N.E.2d 1268
    , 1271 (1979).    See
    also Murray v. University of Pennsylvania Hosp., 
    490 A.2d 839
    ,
    841 (Pa. Super. 1985) (action for breach of contract to achieve
    particular result may lie even if doctor has exercised highest
    degree of skill and care).
    The fact that courts regularly view doctors and their
    patients as standing in a fiduciary relationship, e.g., Black v.
    Littlejohn, 
    312 N.C. 626
    , 
    325 S.E.2d 469
    , 482 (1985);
    Liebergesell v. Evans, 
    93 Wash. 2d 881
    , 
    613 P.2d 1170
    , 1176
    (1980); State ex rel. Stufflebaum v. Appelquist, 
    694 S.W.2d 882
    ,
    885 (Mo. App. 1985), also is of no avail.   Although a plan
    beneficiary certainly may sue under § 502(a)(3) for a breach of
    the fiduciary duties set forth in § 404, the lack of a true
    doctor-patient relationship between Mrs. Corcoran and United
    undermines this ground of recovery.   In any event, courts have
    not held that patients may sue their doctors under any
    independent "breach of fiduciary duty" theory.    The remedies are
    limited to contract actions (where an express agreement has been
    40
    made) and, in the vast majority of cases, tort actions for
    negligence.   Assuming without deciding, therefore, that §
    502(a)(3) permits the award of make-whole relief as "other
    appropriate equitable relief," we hold that the emotional
    distress and mental anguish damages sought here by the Corcorans
    are not recoverable.
    * * *
    The result ERISA compels us to reach means that the
    Corcorans have no remedy, state or federal, for what may have
    been a serious mistake.    This is troubling for several reasons.
    First, it eliminates an important check on the thousands of
    medical decisions routinely made in the burgeoning utilization
    review system.    With liability rules generally inapplicable,
    there is theoretically less deterrence of substandard medical
    decisionmaking.    Moreover, if the cost of compliance with a
    standard of care (reflected either in the cost of prevention or
    the cost of paying judgments) need not be factored into
    utilization review companies' cost of doing business, bad medical
    judgments will end up being cost-free to the plans that rely on
    these companies to contain medical costs.20   ERISA plans, in
    20
    We note that, were the Corcorans able to recover against
    United under state law, the contract between Bell and United
    indicates that United would bear the cost. However, the general
    application of a liability system to utilization review companies
    would ultimately result in increased costs to plans such as the
    Bell plan as it became more expensive for companies such as
    United to do business.
    41
    turn, will have one less incentive to seek out the companies that
    can deliver both high quality services and reasonable prices.
    Second, in any plan benefit determination, there is always
    some tension between the interest of the beneficiary in obtaining
    quality medical care and the interest of the plan in preserving
    the pool of funds available to compensate all beneficiaries.    In
    a prospective review context, with its greatly increased ability
    to deter the beneficiary (correctly or not) from embarking on a
    course of treatment recommended by the beneficiary's physician,
    the tension between interest of the beneficiary and that of the
    plan is exacerbated.   A system which would compensate the
    beneficiary who changes course based upon a wrong call for the
    costs of that call might ease the tension between the conflicting
    interests of the beneficiary and the plan.
    Finally, cost containment features such as the one at issue
    in this case did not exist when Congress passed ERISA.   While we
    are confident that the result we have reached is faithful to
    Congress's intent neither to allow state-law causes of action
    that relate to employee benefit plans nor to provide
    beneficiaries in the Corcorans' position with a remedy under
    ERISA, the world of employee benefit plans has hardly remained
    static since 1974.   Fundamental changes such as the widespread
    institution of utilization review would seem to warrant a
    reevaluation of ERISA so that it can continue to serve its noble
    purpose of safeguarding the interests of employees.    Our system,
    of course, allocates this task to Congress, not the courts, and
    42
    we acknowledge our role today by interpreting ERISA in a manner
    consistent with the expressed intentions of its creators.
    V. CONCLUSION
    For all the foregoing reasons, we find that ERISA pre-empts
    the Corcorans' tort claim against United and that the Corcorans
    may not recover damages for emotional distress under § 502(a)(3)
    of ERISA.   Accordingly, the judgment of the district court is
    AFFIRMED.
    43