In my view, the same connections to a plan and policy reasons apply whether the claim is for the HMO's own negligence or is being asserted against the HMO on the theory of vicarious liability.
To sustain a claim under a theory of ostensible agency, a plaintiff must show that he or she looked to the HMO for medical care and that the HMO held out the supposedly negligent doctor as its employee. Elsesser, 802 F. Supp. at 1289-90; Boyd v. Albert Einstein Med. Ctr., 377 Pa. Super. 609, 547 A.2d 1229, 1233 (Pa. Super. 1988). Paragraph 26 of plaintiff's complaint follows the Elsesser language and alleges that her husband looked to USHC (rather than to the individual doctors) for care, and that USHC held out those doctors and hospitals as its agents and employees. This language adequately sets forth a claim based on ostensible agency.
I conclude, however, that ERISA'S pre-emption provision encompasses claims that are based on a theory of ostensible agency for two reasons: First, any ostensible agency claim must be made on the basis of what the benefit plan provides and is therefore "related" to it. Second, the treatment received must be measured against the benefit plan and is therefore also "related" to it.
A claim against an HMO based on the ostensible agency of a physician will necessarily involve an examination of what representations were made to its members to determine if the HMO in fact "held out" the physician as its employee. In this case, for example, in order to determine if USHC held out Drs. Hosten and Banks as its employees, the court would have to probe the information USHC provided to Mr. Dukes and how USHC described the relationship between itself and the doctors and hospitals. USHC did not give Mr. Dukes such information in a vacuum. Rather, it would only have done so as part of some description or explanation of the benefit plan. A claim based on such references, descriptions, or explanations is "related to" the benefit plan. Matters relating to a benefit plan are pre-empted by ERISA.
The second reason is equally persuasive: a medical malpractice claim against an HMO, whether couched in direct or vicarious liability terms relates to the benefit plan
. One who enrolls in an HMO is assured of medical services of a given extent and quality. A malpractice claim asserts the services provided did not measure up to the benefit plan's promised quality. The question is one of relating plan performance to plan-promise, and is therefore pre-empted by ERISA. See William A. Chittenden, III, "Malpractice Liability and Managed Health Care: History and Prognosis," 26 Tort & Insur. L. J. 451 (Spring 1991).
Two courts have held recently that ERISA pre-empts state law negligence claims against a benefit plan for the alleged malpractice of the plan's providers because the claims arise from the delivery of health benefits and thus relate to a benefit plan. Ricci v. Gooberman, 840 F. Supp. 316, 317 (D.N.J. 1993); Altieri v. Cigna Dental Health, Inc., 753 F. Supp. 61, 64 (D. Conn. 1990). Altieri involved a claim for dental malpractice in which the plaintiff sued both his dentist and his dental health plan, alleging that the health plan had failed to investigate the dentist's competence before recommending the dentist to patients. 753 F. Supp. at 62. As did Cecilia Dukes, the plaintiff in Altieri alleged that the benefit plan was negligent in not evaluating its medical provider and in failing to provide plaintiff with competent professional care. Id. The court held that the central feature of the plaintiff's claim was the circumstances of medical treatment under his health services plan, and that the claim was therefore related to a benefit plan and pre-empted by ERISA. Id. at 64.
The plaintiffs in Ricci sought to hold an HMO liable under a theory of vicarious liability for a doctor's failing to advise plaintiff of certain test abnormalities and for careless, reckless treatment. 840 F. Supp. at 316. As did the court in Altieri, the court reasoned that the basis of the plaintiffs' claim was the circumstances of Ms. Ricci's medical treatment under her employee medical services plan. Id. at 317. Therefore, the court held, the negligence claim "related to" a benefit plan and was pre-empted by ERISA
In summary, I hold that plaintiff's complaint against USHC is pre-empted by ERISA for two reasons. First, plaintiff's allegations of ostensible agency "relate to" Mr. Dukes' benefit plan because the allegations focus on how USHC described to Mr. Dukes its plan benefits and its relationship with its care-providers. Second, I find persuasive the reasoning of Altieri and Ricci that a malpractice claim against an HMO "relates to" a benefit plan because the claim is based on the circumstances of medical treatment provided pursuant to the plan. Finally, I note a serious reservation about the policy implications of holding an HMO liable for state law claims arising from the negligence of physicians and hospitals. If an HMO such as USHC is obliged to act as a malpractice insurer for health care providers, higher costs will invariably be passed along to health care consumers. I do not comment on whether this spreading of risk and costs is desirable. Rather, I simply hesitate to approve such a potentially widesweeping policy. Congress spent considerable time and effort in debating and passing ERISA, and may soon put similar efforts into so-called health care "reform." If the legislature wishes to examine the scope of ERISA pre-emption so as to extend malpractice liability to health benefit plans, now may be an appropriate time for it to do so. It does not follow that I should do so.
For all these reasons, I conclude that ERISA pre-empts the claims in counts I and II which charge USHC with violation of state law. These counts must be dismissed without prejudice. Therefore, USHC's removal of the suit to this court was proper. Plaintiff's motion to remand counts I and II must be refused. The remaining state claims for survival and wrongful death against the other defendants, however, are now solely state claims and must be remanded to the Court of Common Pleas of Philadelphia County. An appropriate order follows.
AND NOW, this 17th day of March, 1994, it is hereby ordered that:
1. Defendant, United States Health Care Systems of Pennsylvania, Inc.'s, motion to dismiss Counts I and II is GRANTED;
2. Plaintiff's motion to remand Counts I and II is DENIED; and
3. Plaintiff's motion to remand Counts III through X is GRANTED, and those claims are remanded to the Court of Common Pleas of Philadelphia County.
BY THE COURT:
J. William Ditter, Jr., J.