The opinion of the court was delivered by: CHARLES R. WEINER
MEMORANDUM OPINION AND ORDER
Plaintiffs originally brought this personal injury action in the Court of Common Pleas of Philadelphia County against a hospital, several doctors in the emergency room of the hospital, plaintiffs' incompetent's primary care physician, and United States Health Care Systems of Pennsylvania, Inc. ("U.S. Health Care"), a health maintenance organization ("HMO"). U.S. Health Care subsequently removed the action to this court pursuant to 28 U.S.C. § 1441(b), claiming that the causes of action plaintiffs assert against it arise under the laws of the United States. The suit arises out of personal injuries allegedly sustained by plaintiffs' incompetent Carolyn Verzicco ("Verzicco") as a result of care she received at the hospital of the Philadelphia college of Osteopathic Medicine, Parkview Division ("Parkview") in connection with U.S. Health Care's selection of primary care physicians. U.S. Health Care filed a motion to dismiss the Complaint against it for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. In its motion, U.S. Health Care argued that plaintiffs' state law claims asserted against it should be dismissed as pre-empted by the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001 et seq. Plaintiffs responded by filing a motion to remand the entire action to the state court on the basis that the state claims are not preempted by ERISA. By Memorandum Opinion and Order dated July 13, 1992, we denied the motion to dismiss and granted the motion to remand. Presently before the court is the motion of U.S. Health Care for reconsideration
or, in the alternative, for certification for immediate appeal under 28 U.S.C. Section 1292(B). For the reasons which follow, the motion for reconsideration is granted in part and denied in part and the motion for certification is denied.
Accepting the allegations in the complaint as true as we must when considering a Rule 12(b)(6) motion, the relevant facts are as follows:
Verzicco worked for a company that provided its employees with a U.S. Health Care benefits plan.
Once an employee chooses to become a member of this plan, the employee selects out of a directory provided by U.S. Health Care a primary care physician. The primary care physician supervises, coordinates and provides initial care and basic medical services to its members. The primary care physician also refers the member for specialist care and maintains the continuity of patient care. Defendant Dr. Leonard Harman was Verzicco's primary care physician. Verzicco had been under Dr. Harman's care since November of 1977.
On July 30, 1990, Verzicco visited Dr. Harman's office complaining of chest pain, mild shortness of breath, and numbness in her shoulders lasting about twenty minutes. Dr. Harman measured Verzicco's blood pressure, which was 150/88, and took an electrocardiogram which revealed an abnormality in t-waves. Dr. Harman ordered blood tests and the use of a Halter Monitor. After approximately one day, Dr. Harman discontinued use of the Halter Monitor because he was told by U.S. Health Care that it would not pay for the service of the Halter Monitor. Dr. Harman did not read the results of the day Verzicco wore the Halter Monitor.
The following day, while driving her car, Verzicco experienced extreme chest pain and passed out. She was rushed to Parkview where prolonged resuscitative efforts were performed. However, Verzicco remained unconscious with cardiac arrest and to this day has not regained consciousness. Verzicco suffered irreversible anoxic encephalopathy, which is expected to last for the rest of her life. Verzicco remains at the Fox Nursing Home and Rehabilitation Center where she has been in a persistent vegetative state.
In their complaint, plaintiffs assert, inter alia, claims for negligence, misrepresentation, and breach of contract against U.S. Health Care with regard to the treatment rendered to Verzicco by her primary care physician. In its motion for reconsideration, U.S. Health Care continues to insist that all three claims are pre-empted by ERISA and should, therefore, be dismissed. We will address all three claims in seriatim. But first a word about ERISA pre-emption in general.
The pre-emption section of ERISA, 29 U.S.C. § 1144(a) provides in relevant part that ". . . the provisions of this subchapter . . . shall supersede any and all state laws insofar as they may now or hereafter relate to any employee benefit plan . . ." In determining that a state common law claim for tortious breach of contract was pre-empted by ERISA, the court in Pilot Life Insurance Company v. Dedeaux, 481 U.S. 41, 47 (1987) described the inclusive nature of the pre-emption clause:
In both Metropolitan Life (citation omitted) and Shaw v. Delta Airlines, Inc., (citation omitted), we noted the expansive sweep of the pre-emption clause. In both cases 'the phrase ' relate to' was given its broadest common-sense meaning, such that a state law 'relates to a benefit plan' in the normal sense of the phrase, if it has a connection with or reference to such a plan.' (citations omitted) In particular we have emphasized that the pre-emption clause is not limited to 'state laws specifically designed to affect employee benefit plans.'
The court re-emphasized the broad scope of the pre-emptive effect of ERISA in Ingersoll-Rand Company v. McClendon, U.S. , 111 S. Ct. 478, 482-83 (1990).
'The pre-emption clause is conspicuous for its breath (citation omitted).' Its 'deliberately expansive' language was designed to 'establish pension plan regulation as exclusively a federal concern (citation omitted).' The key to § 514(a) is found in the words 'relate to.' Congress used those words in their broad sense rejecting more limited pre-emption language that would have made the clause 'applicable only to state laws relating to the specific subjects covered by ERISA (citation omitted).' Moreover, to underscore its intent that § 514(a) be expansively applied, Congress used equally broad language in defining the 'State law' that would be pre-empted. Such laws included 'all laws, decisions, rules, regulations or other state action having the effect of law.' 514(c)(1), 29 U.S.C. § 1144(c)(1).
See also, The 1975 Salaried Retirement Plan for Eligible Employees of Crucible, Inc. v. Nobers, 968 ...