Opinion
Case No. 2:02-CV-170TC
April 29, 2003
ORDER
Plaintiff Deseret Mutual Benefit Administrators ("DMBA") is the administrator of Deseret Healthcare Employees Benefit Trust ("the Trust"), a self-funded trust under the Employment Retirement Income Security Act of 1974 ("ERISA"). The Trust maintains a health plan known as the Managed Care Plan. Defendant Harold Covington receives health coverage through the Managed Care Plan. This dispute arises from DMBA's refusal to authorize a thallium diagnostic stress test for Mr. Covington, who subsequently suffered a heart attack. Mr. Covington has notified DMBA that he intends to bring an action against DMBA based on state law. DMBA has filed this declaratory action seeking clarification of its rights and responsibilities as administrator of an ERISA trust.
The matter is now before the court on the parties' cross-motions for summary judgment. The sole issue for resolution is whether ERISA preempts Mr. Covington's anticipated state law action. For the reasons set forth below, the court concludes that it does not and accordingly, dismisses the case for lack of subject matter jurisdiction.
DISCUSSION
Decisions by the Supreme Court and the Tenth Circuit Court of Appeals make clear that Mr. Covington's malpractice action would not be preempted by ERISA. In Pacificare of Oklahoma, Inc. v. Burrage, 59 F.3d 151, 155 (10th Cir. 1995), the court held that ERISA does not preempt a malpractice claim against an HMO for the alleged malpractice of one of its physicians. The Supreme Court held in Pegram v. Herdrich. 530 U.S. 211, 229, 231 (2000), that treatment decisions made by an HMO, acting through its physicians, are not fiduciary acts within the meaning of ERISA, even if the "treatment decisions" are "mixed" with "eligibility decisions." (The Court defined "treatment decisions" as "choices about how to go about diagnosing and treating a patient's condition" and "eligibility decisions" as "turn[ing] on the plan's coverage of a particular or medical procedure for its treatment.") Id. at 228. In a recent decision, the Supreme Court held that although the independent physician review provision of the Illinois HMO Act "relate[d] to" employee benefit plans within the meaning of the ERISA preemption clause, 29 U.S.C. § 1144 (a), the Illinois law was a law regulating insurance and was therefore not preempted by ERISA. Rush Prudential HMO, Inc. v. Moran, 536 U.S. 355, 373 (2002).
Here, Mr. Covington contends that the decision by his HMO, the Managed Care Plan, to deny his doctor's request for a thallium diagnostic stress test was malpractice. This decision was a treatment decision and accordingly, under the cases cited above, Mr. Covington's claim would not be preempted by ERISA.
Because the sole basis for the court's subject matter jurisdiction is DMBA's contention that this is an action under ERISA, and because ERISA is not implicated in this case, the court DISMISSES the case for lack of subject matter jurisdiction.
IT IS SO ORDERED.