Opinion
Case No. C-1-99-477
January 11, 2001
ORDER
This matter is before the Court on Defendant United Healthcare of Ohio, Inc.'s Brief in Response the to Court's Show Cause Order (Doc. No. 28). For the reasons that follow, this case is REMANDED to the Hamilton County, Ohio Court of Common Pleas.
On May 24, 1999, Plaintiffs Patricia and John Wirthlin filed a complaint against Defendants Kenneth Jarvis, D.P.M., Catholic Healthcare Partners, and United Healthcare of Ohio, Inc. in the Hamilton County Court of Common Pleas. In general terms, the complaint alleges that Plaintiffs contracted with United Healthcare of Ohio for the provision of family medical care and that, pursuant to that contract, Patricia Wirthlin received medical treatment from Defendant Jarvis, a podiatrist. The complaint alleges that Dr. Jarvis's treatment of Mrs. Wirthlin fell below the applicable standard of care, thereby causing her to sustain various injuries. The complaint also alleges that United Healthcare of Ohio and Catholic Healthcare Partners are liable for Dr. Jarvis's alleged malpractice through an apparent agency and/or vicarious liability theory, and further alleges that these two Defendants were negligent in their selection and/or recommendation of Dr. Jarvis as a health care provider for Mrs. Wirthlin.
On June 25, 1999, United Healthcare removed the case from the Hamilton County Court of Common Pleas to this Court pursuant to 28 U.S.C. § 1441 (a), (b) (c). In its Notice of Removal, United Healthcare alleges that Plaintiffs' claims arise under the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1132, because they are claims for recovery of benefits under a group health insurance policy. Therefore, United Healthcare alleges that the Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 and 29 U.S.C. § 1132 (e)(1)
On September 19, 2000, the Court issued a Show Cause Order (Doc. No. 18) ordering United Healthcare to show cause why this case should not be remanded to state court for lack of subject matter jurisdiction. In the order, the Court noted that no federal cause of action appeared from the face of Plaintiff's complaint. The Court further noted that removal from state court is only appropriate in the face of a well-pleaded complaint where federal law completely preempts state law. One such area, the Court stated, is when a plan participant seeks to recover benefits pursuant to § 1132(a)(1)(B) of ERISA. If the plaintiff's claims do not fall within § 2-132(a)(1)(B), they are not removable even if they are preempted under § 1144 of ERISA because they "relate to" an ERISA plan. The Court then cited a number of cases which held that ERISA does not completely preempt claims of the sort asserted here by Plaintiffs and indicated that it was inclined to follow that line of cases.
United Healthcare filed its Reply Brief on October 31, 2000. Although Plaintiffs were invited to file a response to United Healthcare's brief, they declined to do so. In its reply brief, United Healthcare essentially puts forth two separate, but related, arguments for removal and against remand. First, United Healthcare argues that resolution of Plaintiffs' claims will require the Court to construe the subject ERISA plans. Specifically, United Healthcare contends that the Court will have to analyze the Plans to determine what representations were made to Plaintiffs regarding the quality of service they would receive and its selection of participating physicians. Second, United Healthcare argues that Plaintiffs' medical malpractice claims fall within § 1132(a)(1)(B) because those claims seek to enforce a plan right to receive quality medical care. The Court finds neither of these arguments persuasive.
By making this argument, United Healthcare also ignores and/or contradicts the allegation in its notice of removal that Plaintiffs' lawsuit is an action to recover plan benefits. See Notice of Removal ¶ 5.
Before addressing United Healthcare's arguments, however, the Court again sets forth the applicable law. Federal preemption is normally a defense to a plaintiff's suit. See Strong v. Telectronics Pacing Sys., Inc., 78 F.3d 256, 259 (6th Cir. 1996). Under the well-pleaded complaint rule, federal preemption does not provide an appropriate basis for removal jurisdiction unless Congress has manifested an intent to completely preempt a particular area of state law. Id. One area where Congress has evidenced an intent to completely preempt state law is where claims fall within the civil enforcement provisions of ERISA. See Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 66 (1987). Under Sixth Circuit holdings, complete preemption under Metropolitan Life is limited to claims under § 1132(a). See Warner v. Ford Motor Co., 46 F.3d 531, 535 (6th Cir. 1995)
Section 1132(a) provides in pertinent part: A civil action may be brought —
(1) by a participant or beneficiary —
(A) for the relief provided for in subsection (c) of this section, or
(B) to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan;
29 U.S.C. § 1132 (a)
As the Court noted in the Show Cause Order, Plaintiffs' complaint does not appear to set forth a claim for plan benefits. Plaintiffs do not claim that the ERISA plan is holding back services to which they are entitled. Rather, the complaint shows that Plaintiffs received the plan benefits but that the benefits were negligently provided. In other circuits, courts have held that these types of claims are not claims for plan benefits and, therefore, are not preempted by ERISA. See Rice v. Panchal, 65 F.3d 637 (7th Cir. 1995); Pacificare of Oklahoma, Inc. v. Burrage, 59 F.3d 151 (10th Cir. 1995); Dukes v. U.S. Healthcare, Inc., 57 F.3d 350 (3rd Cir. 1995). The Sixth Circuit does not appear to have addressed this issue, but a number of district courts within this Circuit have concluded that claims of the kind alleged by Plaintiffs are not preempted by ERISA. See Stewart v. Berry Family Health Center, 105 F. Supp.2d 807 (S.D.Ohio 2000); Fritts v. Khoury, 933 F. Supp. 668 (E.D.Mich. 1996); Ouellette v. Christ Hospital, 942 F. Supp. 1160 (S.D.Ohio 1996). In addition, the claims in this case appear to be distinguishable from those in Tolton v. American Biodyne, Inc., 48 F.3d 937 (6th Cir. 1995), which dealt with a medical malpractice claim based on the plan's failure to provide a requested service, which the Court held was preempted, as opposed to the negligent provision of a covered service.
The issue presented, of course, is whether Plaintiffs assert claims to recover benefits due under the plan, enforce rights under the terms of the plan, or clarify the right to future benefits. Clearly, none of the allegations fall within the latter category — Plaintiffs do not assert a right to future benefits. As noted above, Plaintiffs do not claim that benefits due under the plan were withheld; clearly the plan paid for the medical procedure which gives rise to Plaintiffs' claims. Thus, the issue boils down to whether Plaintiffs assert claims to enforce rights under the terms of the plan.
In setting forth a standard under which to make this determination, the Court in Rice, after analogizing ERISA claims to claims arising under the Labor Management Relations Act, held that "a suit brought by an ERISA plan participant is an action to "enforce his rights under the terms of a plan' within the scope of § 502(a)(1)(B) where the claim rests upon the terms of the plan or the resolution of the plaintiff's state law claim requires construing the ERISA plan." Rice, 65 F.3d at 644-45 (internal quotations and parantheses omitted). Since in this case Plaintiffs do not rest their claims on any terms of the plan, the question becomes whether their claims require the Court to construe or interpret the plan. See id. at 645.
United Healthcare asserts in a rather conclusory fashion that the Court will have to interpret the plan to see what representations the Plan made regarding quality of service and its duties regarding the selection of participating physicians. At the onset, the Court notes that United Healthcare has not identified any plan provisions which arguably relate to these duties or require interpretation by the Court. Since the burden of establishing the Court's jurisdiction falls on the party removing the case, Alexander v. Electronic Data Sys. Corp., 13 F.3d 940, 948-49 (6th Cir. 1994), this omission weighs against United Healthcare and in favor of remanding the case to state court. Second, the Court notes that, in general, contracts in which physicians seek to insulate themselves from the effects of their own negligence are generally invalid, if not always against public policy. See 61 Am. Jur.2d Physicians, Surgeons, and Other Healers § 164 (1981 Supp. 2000); A.M. Swarthout, Annotation,Validity and Construction of Contract Exempting Hospital or Doctor From Liability for Negligence to Patient, 6 A.L.R.3d 704 (1966 Supp. 1999). Therefore, Plaintiffs and the other plan participants had a reasonable expectation that they would receive competent medical treatment and the Court does not believe that United Healthcare could have agreed to provide anything less. Thus, the Court does not find that resolution of Plaintiffs' claims will require construction or interpretation of the plan. Moreover, the Court cannot envision any circumstance in which the claims now asserted by Plaintiff will require construction of the plan. In any event, at a minimum United Healthcare has failed to affirmatively demonstrate that resolution of Plaintiffs' claims will require construction of the plan.
In Rice, the Court held that plaintiff's claims for respondeat superior liability against the insurance company were not completely preempted by ERISA. See Rice, 65 F.3d at 646. United Healthcare points out that Plaintiffs also claim that it was negligent in selecting Dr. Jarvis to be a service provider and that the Rice Court stated that "if Rice [the plaintiff] were claiming that Prudential was negligent when it selected Sotillo [the doctor] to be a Prudential Health Care Provider under the Plan, we might have a different case[.]" Id. at 644. While these are indeed true statements of fact, the Court need not pause long to observe that the plaintiff in Rice never asserted such a claim against the insurer (an observation also made by the Rice Court) and that the Rice Court never addressed the issue. See id. Therefore, the Rice Court's dicta that a claim of negligent selection might present a different case is not necessarily a prediction that the Court would have reached a different conclusion in that situation. Therefore, that particular bit of dicta is neither binding nor persuasive.
Finally, United Healthcare directs the Court to the district court's opinion in Altieri v. Cigna Dental Health, Inc., 753 F. Supp. 61 (D.Conn. 1990) in which the court held that the insurer properly removed plaintiff's claims for negligent selection of the health care provider. In that case, however, the court employed the wrong standard for determining whether the case was properly removed from state court. The Altieri Court found that the insurer properly removed plaintiff's claims because they "related to" an ERISA plan under § 1144, and not because they arose under § 1132(a)(1)(E). See id. at 63-64. As this Court stated above, however, § 1144 does not provide a basis for removal jurisdiction. Consequently, the Altieri decision rests on an improper legal foundation and does not, therefore, support United Healthcare's position.
In summary, while Plaintiffs' claims for vicarious medical malpractice liability and negligent selection of a health care provider may in fact "relate to" an ERISA plan for purposes of preemption under § 1144, they are not claims which arise under § 1132(a)(1)(3). Therefore, Plaintiffs' claims were not removable and the Court does not have subject matter jurisdiction over this case. See Warner, 46 F.3d at 535. Accordingly, this case is hereby REMANDED to the Hamilton County, Ohio Court of Common Pleas pursuant to 28 U.S.C. § 1447(c). See 28 U.S.C. 1447(c) ("If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.").