United States District Court, M.D. Pennsylvania
June 13, 2005.
MAUREEN KURTEK and JOSEPH KURTEK, her husband, Plaintiffs
CAPITAL BLUE CROSS and CAPITAL ADVANTAGE INSURANCE COMPANY, Defendants.
The opinion of the court was delivered by: JAMES MUNLEY, District Judge
Before the court for disposition is the plaintiffs' motion to
remand. The matter has been fully briefed and is thus ripe for
disposition. For the reasons that follow, the motion will be
Beginning in January 2003, Plaintiff Maureen Kurtek was covered
by a comprehensive health insurance policy provided through
Plaintiff Joseph Kurtek's employment. Defendant Capital Blue
Cross provided the insurance, and the benefits were underwritten
by Defendant Capital Advantage Insurance Company (hereinafter
"defendants" or "Capital").
Plaintiff Maureen Kurtek (hereinafter "plaintiff") was
diagnosed with Lupus in 1989. In order to treat the disease,
plaintiff began to undergo "IV IG Therapy" in 1998, which was
covered under the health insurance contract she had at that time.
IV IG Therapy requires a two (2) day inpatient hospital admission and costs approximately $14,000.00. The therapy was too expensive
for plaintiff to pay for herself, and she could not obtain it
unless it was covered by health insurance.
In January 2003, the new insurance took effect, and plaintiff
contacted Defendant Capital to arrange IV IG Therapy. Defendant
Capital's representative informed plaintiff that she would have
to check with her supervisor about the treatments as they were
considered "experimental." The representative told plaintiff that
she would get back to her once a decision was made. Subsequently,
plaintiff spoke with another representative of the company who
assured her that someone was working on the IV IG Therapy issue
and would get back to her. Several days later, plaintiff sought
to speak to the representative's supervisor, but the supervisor
would not talk to her. No one on behalf of the defendants ever
responded to her until March 11, 2003.
On March 1, 2003, before the therapy was approved, plaintiff
was hospitalized for acute catastrophic antiphospholipid antibody
syndrome ("APLS"). While being treated for this condition,
plaintiff suffered multiple organ system failures and had only a
5% chance of survival. Plaintiff avers that this condition would
have been prevented or dramatically diminished had she received
the IV IG Therapy in January. On March 11, 2003, defendants
contacted plaintiff to inform her that the IV IG Therapy would be
100% covered under Defendant Capital's comprehensive health
coverage as long as the services were medically necessary.
Because of defendants' delay in coordinating, arranging,
directing and paying for the administration of the therapy,
plaintiff suffered from acute catastrophic APLS, prolonged
hospitalizations, tracheotomy, pulmonary failure, renal failure,
sepsis, gangrene, sinus damage, transmetatarsal amputation of the
right foot, osteomyelitis, loss of the tips of her index fingers
and neuropathy according to the plaintiff. She will require daily injections of medicine into her stomach, sinus surgery,
medical care, attention and monitoring for the remainder of her
Based upon these facts, plaintiffs filed the instant four-count
lawsuit. The counts allege the following four state law causes of
action against the defendants: 1) Negligence in medical judgment
when making medical treatment decisions and coordinating and
directing medical care in addition to negligence in selecting,
hiring, retaining, supervising and training competent people to
exercise reasonable medical judgment when carrying out their
responsibilities under the insurance coverage; 2) Medical
negligence in, inter alia, delaying approval of the IV IG
therapy; 3) Loss of consortium; and 4) Negligent infliction of
Plaintiffs filed this lawsuit in the Luzerne County Court of
Common Pleas on November 17, 2004. On December 17, 2004,
defendants filed a notice of removal to this court. The
defendants' basis for removal is that this case falls under the
civil enforcement provisions of the federal Employee Retirement
Income Security Act ("ERISA"), 29 U.S.C. § 1132(a) et seq.
Defendants assert that plaintiffs' state law negligence claims
are completely preempted by ERISA. Plaintiffs filed a motion to
remand on February 18, 2005, bringing the case to its present
Defendants removed this case pursuant to 28 U.S.C. § 1441(a),
which provides that a case can be removed to federal court if the
United States District Court to which it is removed would have
had original jurisdiction over the action. 28 U.S.C. § 1441(a).
We have original jurisdiction over cases arising under federal
law. 28 U.S.C. § 1331. Defendants assert that we have
jurisdiction as this case arises under ERISA, a federal law.*fn2
Plaintiffs argue that their claims are simply state law
allegations of medical negligence and corporate negligence that
do not involve federal law. Therefore, federal law is not
involved and the case should be remanded.*fn3
Standard of review
Defendants bear the burden of establishing jurisdiction.
Difelice v. Aetna U.S. Healthcare, 346 F.3d 442, 445 (3d Cir.
2003). We must accept as true all factual allegations of the
complaint and draw all reasonable inferences therefrom. Id.
Generally, under the "well-pleaded complaint" rule, to
determine if we, as the District Court, would have had original
jurisdiction, we must examine the allegations of the complaint.
Removal is appropriate if the federal cause of action is
presented on the face of the complaint. Dukes v. U.S.
Healthcare, Inc., 57 F.3d 350, 354 (3d Cir. 1995). Normally, if
federal law is raised only as a defense to a complaint, the case
is not removable as the federal law appears not in the complaint,
but in response to the complaint. Id.
An exception to the well-pleaded complaint rule exists where
Congress has so completely preempted a particular area of the law
that a complaint raising claims associated with that area of the
law are necessarily federal in character. Id. The United States
Supreme Court has held that this "complete preemption" doctrine
applies to state law causes of action that fall within the scope
of ERISA's civil enforcement provisions. Id. (citing
Metropolitan Life, Ins. Co. v. Taylor, 481 U.S. 58, 66 (1987).
Thus, we must determine if plaintiffs' state law causes of action fall
within ERISA's civil enforcement provisions to determine if
removal of the instant case was proper. If we find that
plaintiffs' complaint does not fall under ERISA, it will be
ERISA's purpose is to "protect . . . the interests of
participants in employee benefit plans and their beneficiaries"
by providing substantive regulatory requirements for employee
benefit plans and to "provid[e] for appropriate remedies,
sanctions, and ready access to the Federal courts."
29 U.S.C. § 1001(b); Aetna Health Inc. v. Davila, 542 U.S. 200, ___;
124 S.Ct. 2488, 2495 (2004). ERISA's goal is to provide a uniform
regulatory scheme over employee benefit plans. This goal is
furthered by expansive preemption provisions which are intended
to ensure that employee benefit plan regulation are "exclusively
a federal concern." Id.
ERISA includes a system of procedures for civil enforcement,
ERISA § 502(a); 29 U.S.C. § 1132(a). "[C]auses of action within
the scope of the civil enforcement provisions of § 502(a) are
removable to federal court." Davila, 124 S.Ct. at 2496.
Defendants argue that plaintiffs' complaint is removable because
the causes of action it asserts fall within the scope of ERISA §
502(a)(1)(B), which provides a party the right to "recover
benefits due him under the terms of his plan, to enforce his
rights under the terms of the plan, or to clarify his rights to
future benefits under the terms of the plan."
29 U.S.C. § 1132(a)(1)(B).
ERISA completely preempts state law claims that "fit within the
scope of ERISA's civil enforcement provisions." Dukes v. U.S.
Healthcare, Inc., 57 F.3d 350, 354 (3d Cir. 1995). State causes
of action that duplicate or fall within the scope of an ERISA §
502(a) remedy are completely preempted and hence removable to federal court." Davila,
124 S.Ct. at 2493 (internal quotation marks omitted).
The Third Circuit Court of Appeals has explained that cases can
be broken down into the following two categories: 1) "quality of
care" cases, those cases concerning the quality of the benefits
received; and 2) "quantum of care" case, those cases asserting
that benefits were wrongly withheld or brought to enforce their
rights under their plans or clarify their rights to future
benefits. Pryzobowski v. U.S. Healthcare, Inc., 245 F.3d 266,
272 (3d Cir. 2001). If a case involves "quality of care," then it
is not completely preempted, whereas, if it involves "quantum of
care," then it is completely preempted. Id. In other words, if
the plaintiff is challenging the administration of or eligibility
for benefits, the claims are completely preempted. If the quality
of the medical treatment performed is challenged, preemption does
not apply. Id. at 273.
Plaintiffs argue that their case involves "quality of care,"
and therefore, it is not completely preempted by ERISA. We must,
therefore, examine the manner in which the courts have applied
the quality versus quantum distinction.
In Dukes v. U.S. Healthcare, Inc., the plaintiffs' complaint
alleged medical malpractice against an HMO-affiliated hospital
and medical personnel. 57 F.3d 350, 358 (3d Cir. 1995). As the
complaint alleged that the HMO and its personnel failed to
exercise reasonable care in providing actual medical treatment,
the case involved quality of care and was not completely
Likewise, a plaintiffs' claims were not completely preempted
where the plaintiffs challenged their HMO's policy of discharging
newborn infants within twenty-four hours after their delivery.
In re U.S. Healthcare, Inc., 193 F.3d 151 (3d Cir. 1999). The
Third Circuit Court of Appeals found that the adoption of this
policy was essentially a medical determination that could be
subject to a state law medical malpractice action. Id. at 162. In addition, the court held
that claims that the HMO negligently selected, trained, and
supervised medical personnel dealt with the quality of the care.
Id. at 163-64.
The Third Circuit addressed the quality/quantum distinction
again in Lazorko v. Pennsylvania Hosp., 237 F.3d 242 (3d Cir.
2000). In that case, the plaintiff alleged that the Defendant HMO
imposed financial disincentives that discouraged medical
providers from hospitalizing a mentally ill person who later
committed suicide. The court decided that this was a "quality of
care" case because the denial of the person's request to be
hospitalized occurred during his course of treatment, not in the
administration of his health care plan generally. Id. at 250.
Accordingly, the court found the claims were not completely
Plaintiffs' position is that their case is very similar to
these "quality of care" cases. They assert that they do not
allege denial of coverage. Rather, their complaint alleges
medical negligence occasioned by the delay in defendants'
clinical medical research into IV IG Therapy. This delay was
caused by the defendants' prolonged consideration of whether the
IV IG therapy is experimental, which is a medical determination,
not administration of the plan. They also claim that plaintiff
actually looked to the defendants to coordinate and administer
the care; therefore, this case is about quality of care not
administration of the plan. We disagree and shall address these
With regard to the allegations of delay, this case is most
closely analogous to the Third Circuit case of Pryzbowski v.
U.S. Healthcare, Inc., 245 F.3d 266 (3d Cir. 2001). In
Pryzbowski, the plaintiff's doctor determined that she needed
back surgery. Plaintiff sought approval for the surgery from her
HMO. Id. Approval was eventually provided, but after much
delay. Id. The delay in authorization rendered the surgery ineffectual in alleviating the plaintiff's back pain.
Id. at 269-70. Plaintiff brought a state court claim alleging
that the HMO was negligent in delaying the authorization of the
surgery and in screening, hiring and employing capable and
responsible employees. Id. at 270. The defendant HMO removed
the case to the United States District Court for the District of
New Jersey, the court dismissed the claims against the HMO on the
basis that the claims were completely preempted by ERISA. The
plaintiff appealed to the Third Circuit. Id.
The Third Circuit discussed the quality versus quantity
distinction and explained: "[T]he ultimate distinction to make
for purposes of complete preemption is whether the claim
challenges the administration of or eligibility for benefits,
which falls within the scope of § 502(a) and is completely
preempted, or the quality of the medical treatment performed,
which may be the subject of a state action." Id. at 273.
The court further explained:
This court has not had occasion to consider how a
claim that the HMO or plan administrator delayed in
the approval of benefits should be treated under
ERISA. It is evident that a claim alleging that a
physician knowingly delayed in performing urgent
surgery on a patient whose appendix was about to
rupture would relate to the quality of care, and not
be subject to removal on the basis of complete
preemption. On the other hand, a claim alleging that
an HMO declined to approve certain requested medical
services or treatment on the ground that they were
not covered under the plan would manifestly be one
regarding the proper administration of benefits. Such
a claim, no matter how couched, is completely
preempted and removable on that basis.
Id. at 273 (internal citations omitted).
The relevant inquiry, therefore, is whether the cause of action
falls within the scope of the civil enforcement provisions of §
502(a). If it does, then complete preemption applies. Id. The
Pryzbowski court reasoned that the delay in that case was
caused by the HMO's policy that beneficiary's receive approval from the HMO if they sought to receive treatment from
out-of-network specialists. Accordingly, the court found that the
activities fell within the realm of administration of benefits.
The court noted that the plaintiff could have attempted to
accelerate the approval of the out-of-network specialist by
seeking an injunction under § 502(a) to enforce benefits that
were due her. Id. see also Davila, at 2497 (citing Pryzbowski
We find Pryzbowski to be controlling, and plaintiffs' claim
that the defendants were negligent in delaying the approval of
the IV IG Therapy is completely preempted by ERISA. The
requirement in the instant case that the treatment be deemed
"non-experimental" before benefits could be approved, is
analogous to the requirement in Pryzbowski that treatment from
out-of-network specialists must be pre-approved. It is simply
administration of the benefits, not providing medical care. As
Pryzbowski points out, injunctions can be sought under § 502(a)
as a civil enforcement mechanism for benefits under an ERISA
plan. Pryzbowski, 245 F.3d at 273; Difelice, 346 F.3d at 449.
In the instant case, plaintiffs could have sought such an
injunction to hasten the determination of whether benefits would
be provided. This case, thus, falls under ERISA and is completely
As in Pryzbowski, plaintiffs have also asserted that the
defendants were negligent by hiring unqualified individuals.
Plaintiffs do not assert that these employees were negligent in
providing treatment or care. Rather, they were negligent in
administering the benefits. Thus, this claim is also completely
preempted as it involves the administration of benefits, not
providing medical care.
2. Medical determination
Plaintiffs also argue that whether the treatment is
"experimental" is a medical determination. Because it is a
medical determination, state law with regard to medical
negligence applies. We disagree. The requirement that treatment be deemed "experimental" or "not
experimental" is properly classified as administration of the
plan, not as providing healthcare treatment.
Nonetheless, plaintiffs, in fact, do assert in their complaint
that the defendants engaged in "medical negligence." See Compl.
Ct. II. In ERISA cases, we are not confined to merely accepting
the allegations of the complaint as pled. The law provides:
"Although ostensibly directed to the provision of medical
treatment, a federal court may look beyond the face of the
complaint to determine whether a plaintiff has artfully pleaded
his suit so as to couch a federal claim in terms of state law."
Pryzbowski, 245 F.3d at 274. The United States Supreme Court
has noted that "distinguishing between pre-empted and
non-pre-empted claims based on the particular label affixed to
them would elevate form over substance. . . ." Aetna v. Davila,
542 U.S. 200, ___; 124 S.Ct. 2488, 2498 (2004).
As stated above, plaintiffs allege that the determination by
the defendants of whether the IV IG Therapy is experimental was a
medical determination, and hence subject to state law medical
negligence claims. The Third Circuit addressed a similar issue in
Difelice v. Aetna U.S. Healthcare, 346 F.3d 442 (3d Cir. 2003).
The issue in Difelice was whether the Defendant HMO's
determination of whether a procedure is "medically necessary" is
preempted by ERISA. The plaintiff had drafted his complaint in
such a way as to be assert a claim sounding in state law
negligence. Id. at 448. Although the court acknowledged that in
determining whether the treatment was medically necessary, the
HMO had to use medical judgment, the determination ultimately
dealt with eligibility for benefits. The HMO provided no
treatment itself, therefore, the claim was completely preempted.
Id. at 449.
Similarly, plaintiff uses state law negligence as the basis of
her claim in the instant case. But just as the determination of
whether a treatment is "medically necessary" in Difelice was
deemed administration of the plan, so too is the determination in the instant case of
whether the treatment is experimental. This determination deals
solely with eligibility for benefits. Accordingly, plaintiff is
challenging the administration of benefits which falls within the
scope of § 502(a) and is completely preempted.
3. Directing and coordinating medical treatment
Plaintiffs assert that the defendants were charged with
"directing and coordinating" the treatments, and that at all
times Plaintiff Maureen Kurtek looked to the Defendants for her
medical care. Reply Brief at 5. While plaintiff makes this
assertion in her briefs, the facts as alleged in the complaint
are somewhat different. Plaintiffs allege actions on the part of
the defendant that are merely administrating the benefits, rather
than providing the actual medical care. Although, the plaintiff
never defines exactly what is meant by "directing and
coordinating" the treatments, a fair reading of the complaint
demonstrates that this merely means contacting a healthcare
provider and scheduling an appointment or providing approval for
the procedure. While the complaint alleges that defendants were
charged with coordinating, arranging and directing the treatment,
they are not alleged to have been charged with providing the
treatment. Once again, therefore, defendants are allegedly acting
in their capacity as administrator of the plan, not as a
healthcare provider. Accordingly, plaintiffs' claims of
negligence and "medical negligence" are completely preempted by
It would be a different case if Plaintiff Maureen Kurtek
actually received the medical treatment from the defendant, and
the defendant acted negligently. But that is not alleged in the
complaint. The sole contact alleged in the complaint between the
plaintiff and the defendants is a matter of several telephone
calls. Plaintiff was simply attempting to determine through these
telephone calls whether her treatment was covered under the
insurance. Defendants merely are alleged to have to approve and
coordinate the treatment, which under the law is administering benefits, not
providing medical treatment. See Pryzbowski, supra.
In summary, plaintiffs have attempted to plead and label
federal claims in terms of state law. The complaint is written in
terms of medical treatment, but the defendants are not in the
business of providing medical treatment. They provide benefits to
pay for such services, but no allegation appears in the complaint
that they actually provide medical care.
As we have federal question jurisdiction over this case, the
plaintiffs' motion to remand will be denied. Defendants have
filed a motion to dismiss on the basis that the state law claims
that the plaintiff has alleged are preempted by ERISA. According
to the defendants, the plaintiffs have not asserted any ERISA
causes of action, therefore, the case should be dismissed. We
agree with the defendants. We shall, however, provide the
plaintiffs with thirty (30) days to file an amended complaint to
properly plead an ERISA cause of action. If an amended complaint
is not filed within that time, we will dismiss this case. An
appropriate order follows. ORDER
AND NOW, to wit, this 13th day of June 2005, the plaintiffs'
motion to remand (Doc. 9) is hereby DENIED. Plaintiffs are
directed to file an Amended Complaint within thirty (30) days
from the date of this order properly asserting an ERISA cause of
action, or the defendants' motion to dismiss the complaint will