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KURTEK v. CAPITAL BLUE CROSS

June 13, 2005.

MAUREEN KURTEK and JOSEPH KURTEK, her husband, Plaintiffs
v.
CAPITAL BLUE CROSS and CAPITAL ADVANTAGE INSURANCE COMPANY, Defendants.



The opinion of the court was delivered by: JAMES MUNLEY, District Judge

MEMORANDUM

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 denied.

Background*fn1

  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 life.

  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 emotional distress.

  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 posture.

  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 ...


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