Roark v. Humana, Inc.
| Decision Date | 17 September 2002 |
| Docket Number | No. 01-10905.,No. 01-10831.,No. 01-10891.,01-10831.,01-10891.,01-10905. |
| Citation | 307 F.3d 298 |
| Parties | Robert ROARK; Robert Roark, on Behalf of the Estate of Gwen Roark, Plaintiffs-Appellants, v. HUMANA, INC.; Humana Health Plan of Texas, Inc., Doing Business as Humana Health Plan of Texas (Dallas), Doing Business as Humana Health Plan of Texas (San Antonio), Doing Business as Humana Health Plan of Texas (Corpus Christi); Humana HMO Texas, Inc., Defendants-Appellees. Ruby R. Calad, Plaintiff-Appellant-Cross-Appellee, Walter Patrick Thorn, Plaintiff-Cross-Appellee, v. CIGNA HealthCare of Texas, Incorporated, Doing Business as Healthsource, Doing Business as Cigna Corporation, Defendant-Appellee, Aetna U.S. Healthcare; Aetna U.S. Healthcare of North Texas, Inc., Defendants-Appellees-Cross-Appellants. Juan Davila, Plaintiff-Appellant, v. Aetna U.S. Healthcare, Inc.; Aetna U.S. Healthcare of North Texas, Inc., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
George Parker Young (argued), The Law Offices of George Parker Young, Elizabeth S. Kerr, Fort Worth, TX, for Roark, Calad and Davila.
Kay Gunderson Reeves, Dallas, TX, for Roark.
Jennifer R. Henderson, Porter, Rogers, Dahlman & Gordon, Corpus Christi, TX, Richard Glenn Foster, Porter, Rogers, Dahlman & Gordon, San Antonio, TX, for Defendants-Appellees in 01-10831.
Robert N. Eccles (argued), O'Melveny & Myers, Washington, DC, for Humana, Inc., Humana Health Plan of Texas Inc., Humana HMO Texas Inc. and CIGNA Health-Care of Texas Inc.
Elizabeth H. Kilbride, Kilbride, Cullen & Morrison, Houston, TX, for Calad.
Steven R. Shaver, Amy Elizabeth Stewart, Wilson, Elser, Moskowitz, Edelman & Dicker, Dallas, TX, for CIGNA Health-Care of Texas Inc.
John Bruce Shely (argued), Kendall Matthew Gray, Andrews & Kurth Mayor, Day, Caldwell & Keeton, Houston, TX, for Aetna U.S. Healthcare Inc. and Aetna U.S. Healthcare of North Texas Inc.
Appeals from the United States District Court for the Northern District of Texas.
Before SMITH, BENAVIDES and PARKER, Circuit Judges.
This suit consolidates multiple district court actions and appeals for consideration of common issues. Ruby Calad, Walter Thorn, Juan Davila, and Gwen Roark sued their respective health maintenance organizations ("HMO's") for negligence under Texas state law: They alleged that although their doctors recommended treatment, the HMO's negligently refused to cover it. The HMO's removed to federal court, arguing that because each plaintiff received HMO coverage through his employer's ERISA plan, the claims arose under ERISA. The plaintiffs moved to remand.
The respective district courts denied Calad, Davila, and Roark's remand motions and dismissed their claims under FED.R.Civ.P. 12(b)(6), citing ERISA preemption. The district court granted Thorn's remand motion. Roark, Calad, and Davila appeal the refusal to remand and, in the alternative, the dismissal. Thorn's HMO appeals the remand. We affirm the judgments in Roark's and Thorn's cases and reverse with respect to Calad and Davila.
Through her husband's employer, Calad became a member of CIGNA HealthCare of Texas, Inc. ("CIGNA"), a Texas HMO. Calad underwent a hysterectomy with rectal, bladder, and vaginal repair. The surgery was performed by a CIGNA physician. Although that doctor recommended a longer stay, CIGNA's hospital discharge nurse decided that the standard, one day hospital stay would be sufficient. Calad suffered complications that returned her to the emergency room a few days later; she attributes these complications to her early release.
Calad sued in state court under the Texas Health Care Liability Act ("THCLA"),1 alleging CIGNA had failed to use ordinary care in making its medical necessity decisions, CIGNA's system made substandard care more likely, and CIGNA acted negligently when it made its medical necessity decisions. CIGNA removed to federal court based on ERISA preemption. Calad moved to remand, but the court denied the motion. The court noted "that Calad has repeatedly made clear that, should the Court deny her motion to remand, she will not amend her pleading to bring an ERISA claim and therefore requests that her claims be dismissed." Accordingly, the court dismissed under rule 12(b)(6).
Thorn received Aetna U.S. Healthcare insurance through his employer. He injured his hand in a car accident, and doctors amputated his ring finger. The doctors said he needed surgery in two to three days, or he would lose his hand. An Aetna-designated specialist scheduled the surgery for the next day.
A few hours before the scheduled surgery, Aetna refused to authorize its surgeon to operate. While Aetna reviewed the case, it sent a physical therapist to help exercise Thorn's hand, so it would not deteriorate while Thorn waited for surgery. Aetna eventually approved the surgery, but Thorn contends that Aetna's delay caused scarring that has diminished his manual mobility.
Thorn sued jointly with Calad. Initially, Calad and Thorn alleged that CIGNA and Aetna were jointly and severally liable. They later withdrew this allegation, explaining it was a pleading error. Thus, Calad's claims run only against CIGNA and Thorn's runs only against Aetna. CIGNA removed to federal court (with Aetna's consent), citing ERISA preemption. Thorn moved to remand, arguing that ERISA excludes government plans such as his from preemption. The district court remanded Thorn's claim.
Davila is a post-polio patient who suffers from diabetes and arthritis. He received Aetna HMO coverage through his employer's health plan. His primary care physician prescribed Vioxx for Davila's arthritis pain. Studies have shown that Vioxx has a lower rate of gastrointestinal toxicity (e.g., bleeding, ulceration, perforation of the stomach) than do the other drugs on Aetna's formulary. Before filling the prescription, Aetna required Davila to enter its "step program": Davila first would have to try two different medications; only if he suffered a detrimental reaction to the medications or failed to improve would Aetna evaluate him for Vioxx use.
As part of the step program, Davila first was given naprosyn (a cheaper pain reliever). After three weeks, he was rushed to the emergency room. The doctors reported he suffered from bleeding ulcers, which caused a near heart attack and internal bleeding. The doctors gave Davila seven units of blood and kept him in critical care for five days. Now he cannot take any pain medication that is absorbed through the stomach.
Davila sued in state court under the THCLA, alleging Aetna had failed to use ordinary care in making medical necessity decisions, Aetna's systems made substandard care more likely, and Aetna acted negligently in making its medical necessity decisions. Aetna removed to federal court, citing ERISA preemption.
Davila moved to remand. The court concluded that some of Davila's claims were completely preempted under ERISA § 502(a) and thus denied remand. The court noted that normally it would dismiss Davila's state law claims and grant him leave to file an amended complaint under ERISA. But, because Davila had informed the court he would not pursue an ERISA claim, it instead dismissed with prejudice under rule 12(b)(6).
In 1990, Roark was bitten by what was believed to be a brown recluse spider. The bite damaged the skin, muscle, and bone of her left leg, requiring antibiotics, three skin graft operations, and two surgeries to create "free flaps" over her wound. In 1997, Roark began using a vacuum-assisted closure device ("VAC") to circulate blood to the skin's surface and quicken healing. Each day, a nurse came to Roark's home and spent two hours scraping the wound with a scalpel; Roark wore the VAC for the other twenty-two hours of the day.
Later that year, Humana Health Plan of Texas ("Humana") became the Roarks' HMO. Roark's primary care physician recommended she continue using the VAC and authorized treatment. In 1998, Humana delayed the VAC treatments and home nursing several times; upon each delay, Roark filed an immediate appeal or grievance. The primary care physician told Humana that without the VAC and home nursing case, Roark could lose her leg. Humana eventually approved the VAC for ninety days. Humana periodically delayed VAC and home nursing treatment until December 1998, when it cancelled home nursing altogether. Humana agreed to pay only for visits to a local hospital's wound center.
In February 1999, Roark developed a serious infection that required the doctors to amputate her leg that March. While Roark was convalescing, Humana again denied her VAC treatment that may have helped heal the amputation wound. In January 2000, the doctors performed an additional amputation treatment on her leg.
Roark and her husband Robert sued in state court under the THCLA, the Texas Deceptive Trade Practices Act ("DTPA"),2 the Texas Insurance Code,3 and common law breach of good faith, fair dealing, and contract. Humana removed to federal court, citing ERISA preemption. The Roarks moved to remand. The court found that the Roarks' DTPA and insurance claims were completely preempted under ERISA § 502(a) and thus denied the motion.
The Roarks then amended their complaint to allege only violations of the THCLA — that Humana had failed to use ordinary care when it made its medical necessity decisions, Humana's system made substandard care more likely, and Humana was negligent in making its medical necessity decisions — and filed a second remand motion. The court held that ERISA § 502(a) preempts the THCLA claim as well, denied the Roarks' motion to remand, and dismissed under rule 12(b)(6).
The court gave the Roarks thirty days to replead under ERISA § 502(a), failing which their case would be dismissed with prejudice under rule 12(b)(6). The Roarks declined and filed this appeal challenging the second remand...
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