2.__Construction.__This section may not be construed to relate to eligibility, the offer or guarantee of coverage, the application of pre-existing condition exclusions or premiums charged under a health plan or managed care plan.

§4315.__Remedy for carrier's failure to exercise ordinary care

1.__Application.__The following requirements apply.

A.__A carrier shall exercise ordinary care when making health care treatment decisions and is liable for damages for harm to an enrollee proximately caused by the carrier's failure to exercise ordinary care.

B.__A carrier is also liable for damages for harm to an enrollee proximately caused by the health care treatment decisions made by its:

(1)__Employees;

(2)__Agents;

(3)__Ostensible agents; or

(4)__Representatives who are actually on the carrier's behalf and over whom it has the right to exercise influence or control or has actually exercised influence or control that resulted in the failure to exercise ordinary care.

C.__Paragraphs A and B do not create an obligation on the part of the carrier to provide to an enrollee treatment that is not covered by the health or managed care plan.

D.__A carrier may not assert as a defense to an action brought pursuant to this section any law of this State that prohibits a carrier from practicing medicine or being licensed to practice medicine.

2.__Limitations on cause of action.

A.__A person may not maintain a cause of action under this section against a carrier unless the affected enrollee has exhausted the applicable grievance and appeals process including external appeals.__ If the carrier fails to comply with any of the deadlines for completion of grievances or