and 1446 on the basis of federal question jurisdiction (preemption by
Section 502 of the Employment Retirement Income Security Act of 1974
("ERISA")). Before the court is the motion of plaintiffs, Anne Marie
McDonald ("Anne Marie") and Francis McDonald (collectively "McDonalds")
to remand the case to the Court of Common Pleas of Philadelphia County.
For the following reasons, the motion will be granted.
On February 14, 1999, the McDonalds' filed suit against defendants Jude
Damian, M.D. ("Damian"), Damian, Olex & Pacropis, P.C., J. Brien Murphy,
M.D. ("Murphy"), Plastic & Reconstructive Surgery Associates, Ltd.,
SmithKline Beecham Clinical Laboratories, Herbert E. Auerbach, D.O.
("Auerbach"), Abington Memorial Hospital, Keystone Health Plan East
("Keystone"), Independence Blue Cross, and Pennsylvania Blue Shield. Anne
Marie is a subscriber to an employer sponsored employee benefit plan that
is serviced by Keystone. Anne Marie's primary care physician was Damian
who is a member of Damian, Olex & Pacropis, P.C.
In January 1997, Anne Marie sought treatment from Damian for a back
lesion. Damian referred Anne Marie to Murphy, a specialist in plastic and
reconstructive surgery, to have the lesion removed. The slides of the
lesion were routed to SmithKline Beecham Clinical Laboratories and
Abington Memorial Hospital for pathological review. A biopsy revealed to
Auerbach that the lesion was benign. No further follow up or treatment
In May 1998, Anne Marie noticed a lump under her arm that was later
diagnosed as malignant melanoma. Subsequently, an independent
pathological review of the January 1997 lesion slides was performed at the
University of Pennsylvania and revealed that the lesion was malignant.
Anne Marie is now receiving invasive and intensive treatment.
Upon removing the case, the defendants*fn1 assert that the McDonalds'
allegations arise under federal law because they in part seek damages
for quantity of benefits due under Anne Marie's employee benefit plan.
The McDonalds now move to remand asserting that the complaint does not
allege federal claims because it seeks damages for lack of quality in the
medical care Anne Marie received, not lack of benefits due under the
I. Motion to Remand Standard
For the purposes of determining removal jurisdiction, a district
court's assessment of whether the complaint raises a federal question is
generally governed by the well-pleaded complaint rule, which requires
that the court consider only allegations in the complaint, not matters
raised in defense by the defendant. Franchise Tax Bd. v. Construction
Laborers Vacation Trust, 463 U.S. 1, 9-12, 103 S.Ct. 2841, 2846-2847
(1983), see also Metropolitan Life Ins. v. Taylor, 481 U.S. 58, 63, 107
S.Ct. 1542, 1546 (1987).
In Metropolitan Life, the Supreme Court recognized one corollary to the
well-pleaded complaint rule, which provides that "Congress may so
completely preempt a particular area that any civil complaint raising
this select group of claims is necessarily federal in character."
Metropolitan Life, 481
U.S. at 63-64, 107 S.Ct. at 1546-1547, accord Franchise Tax Bd., 463
U.S. at 23, 103 S.Ct. at 2854. The Supreme Court has determined that
§ 502(a)(1)(B) of ERISA's civil enforcement provisions falls within
the complete preemption exception to the well-pleaded complaint rule.*fn2
Metropolitan Life, 481 U.S. at 64-65, 107 S.Ct. at 1546-1547.
Accordingly, the question at issue is whether removal to federal court is
proper because the McDonalds' claims fall within the complete preemption
ambit of § 502(a)(1)(B) ERISA.
In Joyce v. RJR Nabisco Holdings Corp., 126 F.3d 166 (3d Cir. 1997),
the U.S. Court of Appeals for the Third Circuit distinguished the
complete preemption doctrine (section 502(a)(1)(B) of ERISA) from
ordinary preemption (section 514(a) of ERISA). Joyce, 126 F.3d at 170.
The former doctrine is used for jurisdictional purposes where the latter
merely constitutes a defense to a state law claim.*fn3 Id. at 170.
Section 502(a)(1)(B) provides that a participant or beneficiary may
bring a civil action to recover benefits due him or her under the plan,
to enforce his or her rights under the plan, or to clarify his or her
rights to future benefits under the plan. 29 U.S.C. § 1132(a)(1)(B).
In Dukes v. U.S. Healthcare, 57 F.3d 350 (3d Cir. 1995), the U.S. Court
of Appeals for the Third Circuit determined that § 502(a)(1)(B)
preempts only state law claims that allege a lack of quantity in services
provided that membership in an ERISA plan entitles the participant to have
such services. Id. at 356. State law claims that merely attack the
quality of the benefits participants received are not preempted. Id. at
Since Dukes, the courts have narrowed their scope of review concerning
claims allegedly premised on ERISA. Courts examine whether a plaintiff
states a claim that attacks an administrative decision to deny benefits
(referred to as the HMO's utilization role) or a medical decision to deny
treatment to a patient (referred to as the HMO's arranging for medical
treatment). Kampmeier v. Sacred Heart Hospital, No. 95-7816, 1996 WL
220979, at *2 (E.D.Pa. May 2, 1996), accord Hoose v. Jefferson Home
Health Care, Inc., No. 97-7568, 1998 WL 114492, *3 (E.D.Pa. Feb. 6,
1998). See also DeLucia v. St. Luke's Hospital, No. 98-6446, 1999 WL
387211, *5 (E.D.Pa. May 25, 1999) (remanding case because plaintiffs did
not allege that Aetna denied a request for a breathing monitor, nor did
they allege either the patient's condition met the plan's criterion for a
breathing monitor, or even that it was covered under the plan); Snow v.
Burden, No. 99-1874, 1999 WL 387196, *5 (E.D.Pa. May 6, 1999) (remanding
case because plaintiff solely complained about inadequate medical
treatment and Keystone should be held liable for its role, under agency
and negligence principles).
In opposing the McDonalds' motion to remand, the defendants
specifically focus on the following allegations:
1) The failure of the defendants to refer the patient
to an oncologist, a dermatologist, a specialist in
pigmented lesions, and a dermatopathologist (Complaint
¶¶ 55(f)(g)(h), 65(f)(g)(h), 71(n)(o)(p),
2) The failure of the defendants to have slides sent to a
medical facility that had proper pathological
facilities, equipment, techniques, and trained
personnel, and failure to recommend that the slides be
reviewed by a dermatologist or dermatopathologist
specializing in pigmented lesions (Complaint ¶¶
101(f)(g) and 114(f)(g));
3) The failure of the defendants to ensure that their
physicians, specialists and facilities, satisfied
qualification criteria that the defendants represented
to the McDonalds would be provided, such as the
McDonalds would receive high quality, medically needed
care, knowing that the McDonalds would rely upon this
information in their selection of an HMO (Complaint
¶¶ 126 and 127); and
4) The failure of defendants to disclose to the
McDonalds the financial arrangements, contracts,
dictates and incentives between Keystone and it's
approved providers and facilities, failure to
formulate, adopt and enforce adequate rules and
policies to ensure quality control care for the
McDonalds, failure to perform any post-incident
quality assurance review of this matter, and failure
to see that their own policies regarding medical
standards of care were reasonably implemented
(Complaint ¶¶ 136(c)(d)(e), and 137).
The defendants construe these allegations as representing claims
for quantity and not quality of benefits due under the plan.