Opinion
Civil Action No. 3:99-C V-0714-L.
September 27, 2000.
MEMORANDUM OPINION AND ORDER
Before the court is Plaintiff's Motion to Remand and for Award of Costs and Attorney's Fees, filed April 30, 1999. After careful consideration of the motion, response, and the applicable law, the court grants the motion to remand.
I. Factual and Procedural Background
Plaintiffs Robert Rice ("Rice") and Sonya Rice (collectively "Plaintiffs") have sued Kaiser Foundation Health Plan of Texas and various Kaiser Permanente Health Maintenance Organization affiliates for negligence and medical malpractice. On January 24, 1997, Plaintiff Rice went to Defendants' Urgent Care Clinic in Dallas, Texas, complaining of pain in his abdomen and stomach, fever, diarrhea and vomiting. Rice was advised by employees of Defendant that he had a flu or virus and was subsequently sent home with medication and instructions to manage the flu or virus. On January 27, 1997, Rice was feeling as bad or worse than he was feeling two days earlier and went to the Emergency Room at Medical City Hospital in Dallas. He was seen by a physician and diagnosed with acute gastroenteritis. On January 29, 1997, Rice returned to the Urgent Care Clinic with the same or more severe symptoms. Plaintiff was ultimately diagnosed with perforated diverticulitis and underwent surgery to resection a portion of his colon. On January 31, 1997, Rice began experiencing extreme pain in his genital area, and noticed that his scrotum was beginning to swell. His condition was ultimately diagnosed as necrotic gangrene of the scrotum, which required surgical and other medical intervention. Following surgery, Rice underwent treatments to rid his body of the infection that originated in his scrotum, including hydrotherapy sessions. In addition, Rice continued to suffer from complications concerning his previous surgical procedures, which resulted in another surgery. On February 26, 1999, Plaintiffs filed this action in state court, and Defendants removed the case to this court, contending that Plaintiffs' claims are preempted by the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001, et seq. Plaintiffs now move to remand the case to state court, contending that the court lacks subject matter jurisdiction.
II. Plaintiffs' Motion to Remand
On Plaintiffs' Motion to Remand, Defendants bear the burden of showing that removal was proper and establishing the federal court's jurisdiction over the case. Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387, 397 (5th Cir. 1998), cert. denied, 526 U.S. 1034 (1999). Whether removal was proper is determined by the complaint at the time of removal. Metro Ford Truck Sales, Inc. v. Ford Motor co., 145 F.3d 320, 326 (5th Cir. 1998), cert. denied, 525 U.S. 1068 (1999). Federal question jurisdiction exists when a federal question appears on the face of the plaintiff's properly pleaded complaint. Sam L. Majors Jewelers v. ABX, Inc., 117 F.3d 922, 924 (5th Cir. 1997). The well pleaded complaint rule, however, is qualified by the doctrine of "complete preemption," which recognizes that "Congress may so completely pre-empt a particular area that any civil complaint raising [a] select group of claims is necessarily federal in character." Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64 (1986). ERISA is such an area, provided that state law claims relate to an ERISA plan. Id.
Plaintiffs contend that removal was improper because their claims arise solely under state law theories of negligence and medical malpractice premised on inadequate health care decisions made by Defendants and their employees, and do not assert claims concerning the administration of an ERISA plan. Defendants acknowledge that "had Plaintiffs only proffered claims based on the care that was provided by the physicians and other health care providers, their claims might not be subject to federal jurisdiction." See Defs.' Resp. at 5. Although Defendants contend that Plaintiffs assert claims concerning the administration of a benefit plan, a careful reading of Plaintiffs' Petition reveals that Plaintiffs' allegations are not based upon any mishandling or denial of claims under the health benefit plan, but rather are based upon the quality of care which Rice received. While claims based upon a failure to treat where the failure was the result of a determination that the requested treatment was not covered by the plan are preempted by ERISA, claims challenging the quality of a benefit are not. Corporate Health Ins. v. Texas Dep't of Ins., 12 F. Supp.2d 597, 620 (S.D. Tex. 1998).
Plaintiffs Petition also alleges a violation of Tex. Civ. Prac. Rem. Code Ann. § 88.001 et seq., the Texas Health Care Liability Act, and common law claims to pierce the corporate veil, for joint enterprise liability, and loss of consortium.
Defendants cite Corcoran v. United Healthcare, Inc., 965 F.2d 1321 (5th Cir. 1992) and Lancaster v. Kaiser Foundation Health Plan of Mid-Atlantic States, Inc., 958 F. Supp. 1137 (E.D. Va. 1997) in support of their contention that Plaintiffs' negligence allegations constitute a challenge to the health maintenance organization's denial, handling, or administration of benefits under the ERISA plan. The court, however, finds these cases distinguishable.
In Corcoran, plaintiff's obstetrician recommended complete bed rest during the final months of her pregnancy, and as she neared her delivery date admitted her to the hospital for round the clock fetal monitoring. Corcoran, 965 F.2d at 1322-23. A utilization review program employed by the plaintiff's health insurer determined that hospitalization was not necessary and only agreed to cover in-home nursing care for 10 hours a day. Id. at 1324. Because the insurance company refused to cover her hospital stay, the plaintiff returned home, and while she was at home with no nurse on duty, her baby went into distress and died. Id. Plaintiff initiated her suit in state court, and the HMO removed it to federal court, asserting ERISA preemption. The district court granted summary judgment for the defendants, and plaintiffs appealed. On appeal, plaintiffs argued that their case was a medical malpractice case brought under state court. The Fifth Circuit disagreed and held that ERISA was implicated because the suit involved a dispute over a benefit determination made under the plan. In this case, Plaintiffs' claims relate to the quality of care or benefits received rather than a dispute over a benefit determination under the health plan.
Similarly, in Lancaster, plaintiffs alleged that the HMO adopted a program of financial incentives that encouraged doctors not to make referrals, order tests, and provide other treatments, with the result being the failure to detect and promptly treat plaintiff's brain tumor. Because the plaintiff's negligence and fraud claims attacked an administrative decision, the court found the claims to be completely preempted by ERISA. Here, Plaintiffs' claims do not challenge administrative decisions regarding benefits under the plan or administration of the health care plan, rather Plaintiffs' claims relate to alleged inadequate health care resulting from a delay by Defendants' employees in diagnosing and treating Rice's medical condition.
Defendants contend that Plaintiffs' claims focus on cost containment features and that "[t]heir case is founded on the theory that Kaiser's alleged efforts to minimize costs and implement structures to do so resulted in inferior medical care in Robert Rices's circumstances." Defs. Resp. at 11. Defendants further contend that Plaintiffs' claims attack the administration of an ERISA plan and interpret Plaintiffs' Petition as "alleging that the structure or design of the HMO works to deny Plaintiffs certain benefits by requiring that the patient first be seen by a physician's assistant." Id. at 17. Defendants have provided the court with an earlier opinion, Silva v. Kaiser Permanente, 59 F. Supp.2d 597 (N.D. Tex. 1999), which they contend is dispositive of the federal question raised by Plaintiffs in this case. Defendants' reliance on Silva, however, is misplaced, as that case is distinguishable.
In Silva, the plaintiffs alleged the following:
Kaiser Permanente engaged in a practice of negligent cost containment through the use of its programs of utilization review and the payment of incentives to its named co-defendants (the physicians). The use of the cost containment programs denied Plaintiff adequate treatment and limited the use of diagnostic procedures. Specifically, the cost containment programs limited the care, treatment and testing available to Mrs. Silva.
Kaiser Permanente negligently formed financial incentive agreements with Mrs. Silva's health care providers. These agreements resulted in poor care to Plaintiff.
Kaiser Permanente tortiously interfered with the patient-doctor relationship.59 F. Supp.2d at 599. Based upon the clear allegations in Silva, the court held that plaintiffs' claims were preempted by ERISA. By contrast, Plaintiffs' allegations in this case do not even approach the specificity and clarity of those made in Silva. In Silva, no doubt existed that Plaintiffs specifically alleged that Kaiser's cost containment and utilization review procedures limited Silva's diagnostic testing and treatment options, which caused the misdiagnosis of her illness and failure to treat her medical condition in its early stages. Id. at 600. In this case, while the allegations are perhaps suggestive, it is not clear or apparent that Plaintiffs are complaining about a denial of ERISA plan benefits. While Plaintiffs allege that Rice's "request for an examination and consultation with a physician was denied by the employees, agents, representatives or other affiliates of the Defendants to whom such request was made," and that he "was forced to accept a consultation with someone other than a physician, as such consultation was the only health care or treatment option which the Defendants were willing to provide to Mr. Rice on said date," Plfs.' Pet. ¶ 13, they do not challenge the denial of that request or the manner in which Kaiser administers plan benefits. Rather, Plaintiffs contend that Defendants' staff were negligent in diagnosing Rice's medical condition and in their care and treatment of the same. If there was some evidence that the HMO required patients to first be seen by a physician's assistant due to a cost containment feature of the health plan, or if Plaintiffs were challenging Kaiser's decision to staff its Urgent Care Clinic with physicians, physician assistants and nurses, the court would rule that Plaintiffs' claims are preempted by ERISA; however, no such evidence has been provided or such allegations made.
ERISA preempts state law insofar as the state law "relates to" an employee benefit plan. See 29 U.S.C. § 1144(a). A cause of action "relates to" an employee benefit plan where it has a connection with or refers to such a plan. Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97 (1983); Roney v. Nationsbank Corp., 799 F. Supp. 670, 672 (N.D. Tex. 1992). As expressed by the court in Roney:
[i]f it is necessary to the asserted cause of action to consider the structure, administration or the type of benefits provided by an employee benefit plan, the cause of action "relates" to ERISA and is preempted in state court. If, on the other hand, the core of the asserted cause of action exists independent of the benefit plan, the cause of action relates to ERISA in too tenuous a fashion to warrant preemption.799 F. Supp. at 673. In this case, Plaintiffs neither challenge the administration of a health care plan nor assert claims that "relate to" or involve the interpretation of an ERISA plan. Rather, Plaintiffs' claims relate solely to the quality of medical care or benefits received under the plan. Thus, Plaintiffs' causes of action, if related at all, are only tenuously related to ERISA. The court, therefore, concludes that Plaintiffs' claims are not preempted by ERISA. Because Defendants have failed to establish that federal question jurisdiction exists in this case, the court determines that it lacks subject matter jurisdiction in this action.
III. Plaintiffs' Request for Costs and Attorney's Fees
Plaintiffs request that the court award them their attorney's fees and costs incurred because of Defendants' improper removal of this case. An order remanding a case may require payment of just costs and actual expenses, including attorney's fees, incurred as a result of the removal. See 28 U.S.C. § 1447(c). The decision to require such payment is within the court's discretion. See Avitts v. Amoco Prod. Co., 111 F.3d 30, 32 (5th Cir.), cert. denied, 522 U.S. 977 (1997). Although the court has determined that it should remand this case, an award of costs and attorney's fees is not warranted under these circumstances. Plaintiffs' request for costs and attorney's fees is, therefore, denied.
IV. Conclusion
For the reasons previously stated, the court finds that there is no federal question raised on the face of Plaintiffs' state court petition, and no other basis for federal subject matter jurisdiction has been asserted or is apparent to the court. The court, therefore, concludes that it lacks subject matter jurisdiction over the case. Plaintiff's Motion to Remand is granted, and this case is hereby remanded to the 162nd Judicial District Court of Dallas County, Texas.
It is so ordered this 27th day of September, 2000.