The District Court for the Southern District of Ohio recently held that ERISA did not pre-empt a patient's claim of being tricked into using out-of-network services, and that a patient could bring promissory estoppel and negligent misrepresentation claims against out-of-network providers that falsely assure a patient that medical services would be covered by his or her plan at the in-network rate. Liability will attach under the doctrine of promissory estoppel if the patient relied on the provider's representation regarding plan coverage and the patient's reliance was reasonable and foreseeable and, as a result, the patient suffered a loss (e.g., uncovered charges). Liability will attach under the doctrine of negligent misrepresentation if the out-of-network provider supplies false information regarding plan coverage to the patient for the patient to consider in deciding which course of treatment to pursue, to the extent of the patient's justifiable reliance, if the out-of-network provider failed to exercise reasonable care or competence in obtaining or communicating the coverage information. The court held that out-of-network providers would not be liable for negligently providing false plan coverage information under the doctrine of professional negligence as the information does not relate to the provider's medical judgment. The court did address an out-of-network provider's liability for false plan coverage information under the doctrine of ordinary negligence because it was not properly presented. However, it appears likely that the court also would have allowed such a claim.

Out-of-network providers should carefully obtain, verify and document information provided to patients, explicitly or implicitly, regarding plan coverage for services provided on an out-of-network basis.