Smith, the plaintiff brought a medical malpractice action against HMO under the "ostensible agency" theory in state court. The HMO sought to enjoin the state court's medical malpractice action asserting that it was preempted by ERISA. The district court ruled that the claim was not preempted because "the suit which the defendant Smith is bringing has nothing to do with any denial of her rights under the plan. Instead, she seeks redress for physical injuries in which the Plaintiff HMO's selection of an operating surgeon allegedly played a part." Id. at 987.
The court noted that its ruling in no way hindered the Congressional intent of the broad ERISA preemption provision "since the defendant's tort action seeks a remedy for personal injuries that does not arise under ERISA, and since her pursuit of her tort action does not depend upon her contractual entitlement to health plan benefits . . . ." Id. at 988.
Similarly, in the case sub judice, in all three of the claims plaintiffs have asserted against U.S. Health Care (negligence, misrepresentation and breach of contract), plaintiffs are seeking to hold U.S. Health Care liable in a vicarious capacity for the actions of the primary care physician. Nowhere in any of the three claims do plaintiffs seek to hold U.S. Health Care liable for the denial of any rights or benefits or failure to provide any services under its HMO plan. Rather plaintiffs seek redress against U.S. Health Care for failing to provide Verzicco with a qualified primary care physician. In short, none of plaintiffs' state law claims against defendant U.S. Health Care relate to the scope of the HMO's coverage.
U.S. Health Care relies heavily on the latest United States Supreme Court decision of Ingersoll-Rand Co. v. McClendon, supra, which reaffirmed the breadth of ERISA's preemption clause. In Ingersoll-Rand, a former employee brought suit against his former employer alleging that he was discharged from employment because of the company's desire to avoid making contributions to his pension fund. Id at 481. The Supreme Court held that "the claim that the employer wrongfully terminated plaintiff primarily because of the employer's desire to avoid contributing to or paying benefits under the employee's pension fund - - 'relate[s] to' an ERISA covered plan within the meaning of § 514(a) and is therefore preempted." Id. at 483. The Court stated that the plaintiff had to plead and the court had to find that an ERISA plan existed and that the employer had a pension-defeating motive for terminating employment. Id. According to the Court, the existence of the pension plan was a "critical factor" in establishing liability. Id. The Court further explained that the inquiry must be directed to the plan as there is no cause of action if there is no plan. Id. at 484. See also Pilot Life Insurance Co. v. Dedeaux, 481 U.S. 41, 95 L. Ed. 2d 39, 107 S. Ct. 1549 (1987) (state common law causes of action asserting improper processing of a claim for benefits under an employee benefit plan are preempted by ERISA); Berger v. Edgewater Steel Co., 911 F.2d 911, 923 (3d Cir. 1990) (employees' state law claims against employer for misrepresentation regarding proposed plan amendments "relate to" an employee benefit plan and are therefore preempted by ERISA); Shiffler v. Equitable Life Assurance Society of the United States, 838 F.2d 78, 82 (3d Cir. 1988) (beneficiary's common law claims seeking payments of two insurance plans after husband died while at work clearly "relate to" the employee benefit plan).
Unlike Ingersoll-Rand where the plaintiff sued his employer for the right to receive benefits under a pension plan, plaintiffs in this case are not seeking rights under a plan. Rather, plaintiffs seek redress against the plan in a vicarious capacity for injuries which were allegedly caused in part by a U.S. Health Care affiliated physician. Indeed, were we to find that plaintiffs' claims against U.S. Health Care were preempted, we would be hard pressed to locate a remedy in ERISA for U.S. Health Care's alleged failure to provide a qualified primary care physician.
In sum, despite U.S. Health Care's protestations to the contrary, the case sub judice is nothing more than a common law medical malpractice case which should be heard in the appropriate state court.
The motion of the defendant United States Health Care Systems of Pennsylvania, Inc. to dismiss the complaint is DENIED.
The motion of the plaintiffs to remand is GRANTED.
The Clerk is DIRECTED to remand the entire file in this case to the Court of Common Pleas of Philadelphia County.
The parties are DIRECTED to attempt to agree on a reasonable attorneys fee incurred by plaintiffs' counsel in opposing the removal of this action. If the parties are unable to do so, plaintiffs may petition the court.
IT IS SO ORDERED.
CHARLES R. WEINER
© 1992-2004 VersusLaw Inc.