Ardary

We must decide whether state law claims for wrongful death against a private Medicare provider are preempted by the Medicare Act.

I

William Ardary, Kevin Ardary, William C. Ardary, and Diane M. Houston (“the Ardar-ys”) are the surviving husband and children of the late Cynthia Ardary. In July 1991, William and Cynthia attended a presentation given by Judith Hendrix (“Hendrix”), a marketing representative of Aetna Health Plans of California. 1 Because William and Cynthia resided in the relatively isolated community of Big Bear, California, they expressed concern to Hendrix about emergency care and the availability of more sophisticated treatment. Hendrix allegedly told William and Cynthia that should the need arise, Aetna would immediately authorize transfer to a larger facility such as Loma Linda University Medical Center. As a result of Hendrix’s presentation, Cynthia, a Medicare beneficiary, enrolled in Aetna’s Senior Choice health maintenance organization plan (“Plan”). The Plan was administered by Arrowest Physician Association (“Arrowest”) and provided Medicare, major medical and hospitalization, benefits pursuant to a contract with the U.S. Department of Health and Human…