concurring.
I concur in the result reached by the Majority. I agree that the Traveler’s line of cases in the United States Supreme Court supports the proposition that issues raising ERISA preemption are to be narrowly construed. I write separately, however, to explain why the present negligence claim against *353U.S. Healthcare falls outside that narrow construction and is therefore not preempted. Here, the defendant physician and hospital brought U.S. Healthcare into the action claiming that it was U.S. Healthcare’s refusal to authorize a medically necessary transfer which caused plaintiffs ultimate injury. Based upon the facts set forth in the Majority Opinion, I find that U.S. Healthcare’s actions constituted, in effect, an individual medical decision or judgment as opposed to a decision affecting the administration of an employee benefit plan. Here, the parties are merely attempting to assert their already existing rights under the generally applicable state law of agency and tort. See Dukes v. U.S. Healthcare, Inc., 57 F.3d 350, 358 (3d Cir.1995), cert. denied., 516 U.S. 1009, 116 S.Ct. 564 (1995).
The federal courts have addressed issues similar to the present matter. Independence HMO, Inc. v. Smith, 733 F.Supp. 983 (E.D.Pa.1990), presented an analogous situation as the injured party sued her HMO after receiving negligent medical treatment from a physician on its approved list. The Smith court, in finding the plaintiffs action was not preempted, stated that such a state tort action did not “ ‘impact upon’ an employee benefit plan or ‘affect the Congressional scheme contained in [ERISA]’.” Id. at 988.
Moreover, as the Third Circuit recently explained, “patients enjoy the right to be free from medical malpractice regardless of whether or not their medical care is provided through an ERISA plan.” Dukes, 57 F.3d at 358. Dukes explains that ERISA is principally concerned with the various mechanisms and institutions involved in the funding and payment of plan benefits and was intended to provide each participant with a remedy in the event that promises made by the plan were not kept. Id. at 357. Dukes distinguishes between claims that the “quantum” of benefits promised were not provided, which is controlled by ERISA, and the “quality” of the benefits actually received, which is not controlled by ERISA. Id. Dukes concluded that “[q]uality control of benefits, such as the health care benefits provided here, is a field traditionally occupied by state regulation and we interpret the silence of *354Congress as reflecting an intent that it remain such.” Id. I would adopt the rationale of the Smith and Dukes decisions and find that the negligence action against U.S. Healthcare is not preempted.
Therefore, I believe the overall purpose for the enactment of ERISA, as well as subsequent case law, would indicate that the negligence claim against U.S. Healthcare does not fall under the aegis of the preemption clause. It is for these reasons that I find state negligence laws have “only a tenuous, remote, or peripheral connection with [ERISA] covered plans....” New York State Conference of Blue Cross & Blue Shield Plans, et al. v. Travelers Insurance Company et al., 514 U.S. 645, 661, 115 S.Ct. 1671, 1679, 131 L.Ed.2d 695, 708-709 (1995)(citing District of Columbia v. Greater Washington Board of Trade, 506 U.S. 125, 129 n. 1, 113 S.Ct. 580, 583, n. 1, 121 L.Ed.2d 513 (1992)).