Civ. Peac. & Rem.Code Ann. § 88.002(a) (Vernon 2004) ("A health insurance carrier, health maintenance organization, or other managed care entity for a health care plan has the duty to exercise ordinary care when making health care treatment decisions and is liable for damages for harm to an insured or enrollee proximately caused by its failure to exercise ordinary care.”). After Davila, the Texas legislature clarified that § 88.002(a) did not apply to employee benefit plans regulated by ERISA. See id. § 88.015. 23 . Tango Transport v. Healthcare Fin. Servs., 322 F.3d 888, 894 (5th Cir.2003); Hermann Hosp. v. MEBA Med. and Benefits Plan, 959 F.2d 569, 572 (5th Cir.1992) ("Hermann II"). 24 . See Rush Prudential HMO, Inc. v. Moran, 536 U.S. 355, 379, 122 S.Ct. 2151, 153 L.Ed.2d 375 (2002) (<HOLDING>). 25 . See La.Rev.Stat. Ann. § 40:2010. 26 .
recognizing the cause of action holding the state law claims were not preempted recognizing cause of action holding guilderlands local law was preempted by new york state law which provided a comprehensive scheme for funding road construction recognizing that a state regulatory scheme that provides no new cause of action under state law and authorizes no new form of ultimate relief is not preempted