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KEARNEY v. U.S. HEALTHCARE

August 3, 1994

DAWN KEARNEY, Administratrix of the Estate of KEVIN MICHAEL KEARNEY, Deceased and DAWN KEARNEY, in her own right
v.
U.S. HEALTHCARE, INC.



The opinion of the court was delivered by: JAY C. WALDMAN

 WALDMAN, J.

 I. BACKGROUND

 Plaintiff initiated this action in the Court of Common Pleas of Delaware County by summons on March 3, 1992. Defendant removed the action to this court where on June 2, 1992 the Honorable Clarence Newcomer remanded it to state court.

 Plaintiff did not file a complaint in the Common Pleas Court until March 28, 1994. In that complaint, plaintiff asserts wrongful death and survival claims against defendant for negligence, misrepresentation and breach of contract, and for the malpractice of a physician in failing properly to diagnose and treat the decedent for which defendant allegedly is vicariously liable. *fn1"

 Defendant again removed the case to this court pursuant to 28 U.S.C. § 1441(b) on the ground that plaintiff's claims arise under and are preempted by ERISA. Presently before the court is defendant's motion to dismiss for failure to state a cognizable claim.

 The purpose of a Rule 12(b)(6) motion is to test the legal sufficiency of a complaint. Sturm v. Clark, 835 F.2d 1009, 1011 (3d Cir. 1987). In deciding a motion to dismiss for failure to state a claim, the court must "accept as true all the allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the nonmoving party." Rocks v. Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989). Dismissal is not appropriate unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984); Robb v. Philadelphia, 733 F.2d 286, 290 (3d Cir. 1984). A complaint may be dismissed when the facts pled and the reasonable inferences therefrom are legally insufficient to support the relief sought. Pennsylvania ex. rel. Zimmerman v. Pepsico, Inc., 836 F.2d 173, 179 (3d Cir. 1988).

 III. FACTS

 The pertinent facts as alleged by and taken in a light most favorable to plaintiff are as follow.

 The decedent was employed by Scott Paper Company where he was a participant in Scott's prepaid comprehensive health care benefits plan. The plan was operated by defendant U.S. Healthcare, a health maintenance organization or HMO.

 The decedent selected Dr. Michael Stulpin as his primary care physician from a list of physicians with whom defendant contracted. Defendant "represented to their members" that it had designated "peculiarly competent primary physicians." Dr. Stulpin in fact was "minimally qualified."

 Defendant agreed to provide plan beneficiaries with specialized care as needed. Defendant in fact limited or discouraged the use of specialists, hospitalization and state of the art diagnostic procedures.

 The decedent saw Dr. Stulpin on March 4, 1990 and March 22, 1990 at which times he failed properly to diagnose decedent's condition or refer him to a specially equipped hospital for specialized treatment. On March 22, ...


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