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VISCONTI v. U.S. HEALTH CARE

June 8, 1994

SERENA MARY VISCONTI, Deceased by RONALD VISCONTI, as Admin. of the Estate of SERENA MARY VISCONTI, Deceased, and LINDA VISCONTI and RONALD VISCONTI, in their own right, Plaintiffs,
v.
U.S. HEALTH CARE a/k/a THE HEALTH MAINTENANCE ORGANIZATION OF PENNSYLVANIA/NJ, Defendant.



The opinion of the court was delivered by: LOWELL A. REED, JR.

 Reed, J.

 Currently before me are the motions of plaintiffs Linda and Ronald Visconti, individually, and as Administrators of the Estate of Serena Mary Visconti, Deceased (collectively "plaintiffs"), to remand this matter pursuant to 28 U.S.C.A. § 1447(c) (West 1994) *fn1" (Document No. 4) and defendant U.S. Health Care a/k/a The Health Maintenance Organization of Pennsylvania/NJ ("USHC") to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted (Document No. 3). Upon consideration of the motions and the responses thereto, and for the reasons which follow, plaintiffs' motion to remand shall be denied and defendant's motion to dismiss shall be granted.

 II. BACKGROUND2

 Since this is a motion to dismiss, I must accept as true facts alleged in the complaint and all reasonable inferences that can be drawn therefrom. I recognize hereto, however, that the health care delivery system, and HMO's in particular, are closely regulated by federal and state statutes and codes. I do accordingly conclude that to accurately and forthrightfully analyze the claim and motions before me, I must refer to and accept as background legal facts the relevant applicable statutory and regulatory pronouncements even though those matters were not pleaded in the complaint. Also, where the defendant, with apparent reliability, makes factual statements in its papers regarding basic organizational facts which are not challenged or refuted by plaintiffs, I will utilize those facts as well. If the foregoing invokes Federal Rule of Civil Procedure 56, which I do not conclude it does, then the motion to dismiss must be considered as a motion for summary judgment.

 The circumstances underlying plaintiffs' complaint involve allegedly negligent treatment of plaintiff Linda Visconti by Peter M. Wisniewski, M.D. Plaintiffs claim that Dr. Wisniewski failed to take action during Ms. Visconti's prenatal visits despite his awareness of the details of her condition. According to plaintiffs, Ms. Visconti's condition was permitted to deteriorate to such a degree that by late August, 1991, Ms. Visconti's vital signs, weight, laboratory test results and other findings were, when taken together, outside normal limits. Moreover, a fetal heart beat could not be detected. Upon discovering this information, Dr. Wisniewski advised Ms. Visconti to go to Pennsylvania Hospital.

 When Ms. Visconti was admitted to Pennsylvania Hospital she displayed several complications. The following day Linda Visconti delivered the plaintiffs' decedent, Serena Mary Visconti, a stillborn, fully developed baby girl with no gross congenital abnormalities at 37 weeks gestation weighing at or around 5 pounds and 9 ounces.

 Plaintiffs commenced this suit by filing a complaint against USHC in the Court of Common Pleas of Philadelphia County, Pennsylvania. Plaintiffs alleged that, inter alia, U.S. Health Care, either individually or acting through its agents, servants and employees, was negligent and careless in the care and treatment of plaintiffs' decedent Serena Mary Visconti and plaintiff Linda Visconti. Shortly thereafter, defendant filed a notice of removal seeking to remove the case to the United States District Court for the Eastern District of Pennsylvania arguing that this Court has jurisdiction pursuant to 28 U.S.C.A. § 1331 (West 1993) and 28 U.S.C.A. § 1441(b) and (c) (West 1994).

 USHC has filed a motion to dismiss the complaint in this Court arguing that plaintiffs' claims are preempted by the terms of ERISA. Plaintiffs have responded by filing a motion to remand this matter, asserting that ERISA does not preempt their claims and that, therefore, no federal issue is involved to confer jurisdiction on this Court.

 III. DISCUSSION

 A. Motion to Remand- Improper Removal

 Plaintiffs have moved to remand this matter to state court arguing that their claims are based strictly on state law and, therefore, that this Court is without jurisdiction to hear their claims. *fn4" Generally, federal courts must comply with the "well-pleaded complaint" rule regarding removal. The rule states that a defendant cannot remove a case to federal court unless the complaint establishes that the case "arises under" federal law. Nealy v. U.S. Health Care HMO, 844 F. Supp. 966, 969-70 (S.D.N.Y. 1994); see Franchise Tax Bd. of California v. Construction Laborers Vacation Trust for Southern California, 463 U.S. 1, 9-10, 77 L. Ed. 2d 420, 103 S. Ct. 2841 (1983). Therefore, a federal defense such as preemption, which does not appear on the face of the complaint, ordinarily will be insufficient to permit removal. Nealy, 844 F. Supp. at 969-70.

 An exception to this general rule applies where Congress so completely preempts a "particular area that any civil complaint raising this select group of claims is necessarily federal in character." Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64, 95 L. Ed. 2d 55, 107 S. Ct. 1542 (1987) ("Metropolitan Life "). In Metropolitan Life, the defendants removed the case to federal court alleging that federal question jurisdiction existed because their claim raised a preemption defense pursuant to ERISA. The Supreme Court concluded that Congress has clearly manifested an intent to make claims that fall within the scope of the civil enforcement provisions of ERISA removable to federal court. Accordingly, because the enforcement provisions of ERISA concern similar issues and policies as those addressed by plaintiffs' cause of action, namely, plaintiffs' right to recover damages based in part on a relationship established by the terms of an employee benefit plan, the defense raised by ...


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