In Milby v. MCMC LLC, 844 F.3d 605 (6th Cir. 2016), the plaintiff had her claim for disability benefits terminated following a peer review by a doctor engaged through MCMC. The plaintiff lived in Kentucky, and the peer reviewer was not licensed there. Accordingly, the plaintiff sued MCMC for negligence per se for practicing medicine in Kentucky without a license. The district court granted defendants’ motion to dismiss, and the Sixth Circuit affirmed.

The court stated the general rule for ERISA preemption, but noted that claims that stem from a duty that is not derived from, or conditioned upon, the terms of an ERISA plan are not completely preempted. To determine whether this claim was preempted, the court applied the test established in Aetna Health Inc. v. Davila, 542 U.S. 200 (2004),

The court held that the first element of the Davila test was met because plaintiff’s claim was based on the terms of the ERISA plan. Specifically, MCMC’s conduct was part of the process used to assess plaintiff’s benefit claim, making the negligence claim “an alternate enforcement mechanism to ERISA’s civil enforcement provisions.” It made no difference that plaintiff could not assert an ERISA claim against MCMC, because the issue is the nature of the claim, not who is sued.

The court also held that the second element of Davila was met because plaintiff did not allege a legal duty independent of ERISA. Interpreting Kentucky law, the court held that reviewing medical records to determine functional capacity (and not medical necessity of any treatment) was not the practice of medicine. Therefore, because Kentucky law did not create a duty from MCMC to plaintiff, the second Davila element was met.