Cicio v. Does
| Decision Date | 11 February 2003 |
| Docket Number | Docket No. 01-9248. |
| Citation | 321 F.3d 83 |
| Parties | Bonnie CICIO, individually and as Administratrix of the Estate of Carmine Cicio, Plaintiff-Appellant, v. John DOES 1-8, Defendants, Vytra Healthcare, and Brent Spears, M.D., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Second Circuit |
David L. Trueman, Mineola, N.Y. (Joel J. Ziegler, Greshin, Ziegler & Amicizia, LLP, of counsel, Smithtown, NY), for Plaintiff-Appellant.
Michael H. Bernstein, Sedgwick, Detert, Moran & Arnold, New York, N.Y. (Colleen A. Tan, of counsel), for Defendants-Appellees.
Eugene R. Anderson, Rhonda D. Orin, Michele A. Gallagher, Anderson Kill & Olick, L.L.P., Washington, DC, submitted a brief for Amici Curiae American Medical Association and Medical Society of the State of New York.
Miles J. Zaremski, Kamensky & Rubinstein, Lincolnwood, IL, submitted a brief for Amici Curiae American College of Legal Medicine.
Harold N. Iselin, Hank M. Greenberg, Couch White, LLP, Albany, NY, submitted a brief for Amici Curiae American Association of Health Plans and New York Health Plan Association.
Before: CALABRESI, SACK, and B.D. PARKER, Jr., Circuit Judges.
Plaintiff Bonnie Cicio appeals from an October 4, 2001 judgment of the United States District Court for the Eastern District of New York (Joanna Seybert, Judge) denying her motion to remand her action to New York Supreme Court, and granting the Fed.R.Civ.P. 12(b)(6) motion of the defendants Vytra Healthcare ("Vytra") and Dr. Brent Spears to dismiss the complaint for failure to state a claim upon which relief can be granted. Cicio v. Vytra Healthcare, 208 F.Supp.2d 288, 293 (E.D.N.Y.2001). The district court, adopting the March 13, 2001 report and recommendation of Magistrate Judge E. Thomas Boyle, id. at 293, held that all of the plaintiff's claims, which derive from the defendants-appellees' decision to deny the plaintiff's deceased spouse, Carmine Cicio, preauthorization for a requested medical procedure, were preempted by the Employee Retirement Income Security Act of 1974, 88 Stat. 832, as amended, 29 U.S.C. § 1001 et seq. ("ERISA"). Cicio, 208 F.Supp.2d at 293. The plaintiff now appeals on the sole ground that her claims are not preempted by ERISA.
We agree with the plaintiff that the district court erred in dismissing the medical malpractice claims at this stage of the proceedings. We conclude, however, that the district court correctly dismissed the plaintiff's claims that are based on the defendants' alleged misrepresentations or alleged negligence in delaying a coverage decision with respect to Mr. Cicio's medical care. Accordingly, we affirm in part and remand in part.
Because this case comes to us on appeal from the grant of a motion to discuss under Fed.R.Civ.P. 12(b)(6), we review the facts as they have been alleged by the plaintiff. See, e.g., ICOM Holding, Inc. v. MCI Worldcom, Inc., 238 F.3d 219, 221 (2d Cir.2001). In March 1997, the plaintiff's spouse, Carmine Cicio, was diagnosed with multiple myeloma.1 He began chemotherapy the following month. At that time, both he and the plaintiff received health care benefits pursuant to an "Agreement for Comprehensive Health Services" (the "Plan") administered by Vytra, an "Individual Practice Association — Health Maintenance Organization."2 The plaintiff's employer, North Fork Bank, had purchased the Plan from Vytra. The Plan, it is now undisputed, is an "employee benefit plan," as defined in 29 U.S.C. § 1002(3) of ERISA.3
The Plan's subscriber agreement explains that Vytra provides Plan enrollees with, inter alia, "[d]iagnosis and treatment of disease, injury or other conditions." Agreement for Comprehensive Health Servs. Art. III, § 3.1(b). The Plan cautions, however, that "Vytra shall provide only Medically Necessary Vytra Services...." Id. Art. III, § 3.5(a). Vytra also disclaims the obligation to provide "[a]ny procedure or service which, in the judgment of Vytra's Medical Director, is experimental or is not generally recognized to be effective for a particular condition, diagnosis, or body area ...." Id. Art. IX, § 9.3(f).
On January 28, 1998, some ten months after Carmine Cicio's disease was first diagnosed, his treating oncologist, Dr. Edward Samuel, wrote a detailed letter to Vytra "request[ing] insurance approval for treatment of Mr. Cicio with high dose chemotherapy supported with peripheral blood stem cell transplantation, in a tandem double transplant, for a diagnosis of multiple myeloma."4 Letter from Edward T. Samuel to Vytra dated January 28, 1998, at 1. Dr. Samuel set forth Carmine Cicio's clinical history and prior treatments, including one type of chemotherapy that had failed, before explaining why "a change in strategy of treatment ... had to be made." Id. And Dr. Samuel explained why he thought that Mr. Cicio was a good "candidate" for the transplant. Id. at 2.
Almost a month later, in a letter dated February 23, 1998, Vytra's medical director, the defendant Dr. Spears, denied Dr. Samuel's request, stating only that the procedure sought was "not a covered benefit according to this member's plan which states [that] experimental/investigational procedures are not covered." Letter from Brent W. Spears to Edward T. Samuel dated February 23, 1998, at 1. On March 4, after unsuccessful attempts to contact Dr. Spears by telephone, Dr. Samuel wrote Dr. Spears "appealing to [him] to reconsider [his] decision." Letter from Edward T. Samuel to Brent W. Spears dated March 4, 1998, at 1-2. Dr. Samuel argued that
The treatment of multiple myeloma by high-dose chemotherapy/autologous stem cell transplantation is a well-established method of treatment with a superior response rate, complete response rate, post therapy disease-free interval, and possibly even a long-term cure in some patients, as compared to standard therapies. These facts are true for single transplant methodologies, and the statistical response rate and CR rates are improved even further with double transplants.
Id. He further argued, based on medical literature listed in his letter, that "treatment NOW with high-dose chemotherapy and autologous stem transplant ... offers [Mr. Cicio] better chances of survival than any other available method of treatment." Id. at 2 (emphasis in original). While this letter made the one reference to "single transplant methodologies" quoted above, it made clear that Dr. Samuel viewed that procedure as a less appropriate treatment for Mr. Cicio than a double stem cell transplant and was not requesting approval for it. Id. at 1.
Three weeks later, in a letter dated March 25, 1998, Dr. Spears tersely replied that "[b]ased on the clinical peer review of the additional material, [presumably the studies referenced by Dr. Samuel in his March 4 letter,] a single stem cell transplant has been approved" but "the original request for [a] tandem stem cell transplant remains denied." Letter from Brent W. Spears to Edward T. Samuel dated March 25, 1998, at 1. Mr. Cicio, who, according to the complaint, was by March 25 no longer a candidate for a stem cell transplant, died less than two months later, on May 11, 1998. Compl. ¶ 31.
Bonnie Cicio filed a complaint, on behalf of herself and the estate of her late husband, in New York Supreme Court, Suffolk County, naming Vytra, Dr. Spears, and eight unknown physicians employed by Vytra ("John Does 1-8") as defendants. The complaint contains eighteen counts alleging "medical malpractice, negligence, gross negligence, intentional infliction of emotional distress, negligent infliction of emotional distress, misrepresentation, breach of contract, bad faith breach of insurance contract and violation of New York State law" based on Dr. Spears's denial of treatment to Mr. Cicio.
On May 30, 2000, the defendants removed the proceedings from New York state court to the United States District Court for the Eastern District of New York pursuant to 28 U.S.C. § 1441. On June 21, 2000, they filed a Rule 12(b)(6) motion to dismiss the complaint for failure to state a claim.
The case was referred by the district court to Magistrate Judge E. Thomas Boyle, who (1) found that removal jurisdiction obtained, and (2) recommended that the defendants' Rule 12(b)(6) motion be granted. Cicio, 208 F.Supp.2d at 294-302. Magistrate Judge Boyle reasoned that the plaintiff's state law claims were preempted under §§ 502(a) and 514(a) of ERISA, 29 U.S.C. §§ 1132(a)(1)(B) & 1144(a), because the plaintiff sought "to enforce the terms of [an employee welfare benefit] plan" and that her claims were "within the scope of" § 502(a). Cicio, 208 F.Supp.2d at 296-301. He concluded that both removal and dismissal were therefore required. Id. at 302. He also recommended that the plaintiff's state law deceptive business practices claim be dismissed because it was "exceedingly vague." Id. at 301-02.
In so concluding, the magistrate judge rejected several counter-arguments proffered by Ms. Cicio. First, he rejected her argument that Vytra's Agreement for Comprehensive Health Services was not a "plan" governed by ERISA. Id. at 297. Then he declined to endorse the plaintiff's argument that her medical malpractice claims were not preempted because they concerned "mixed eligibility and treatment decisions," as described in Pegram v. Herdrich, 530 U.S. 211, 229, 120 S.Ct. 2143, 147 L.Ed.2d 164 (2000). Cicio, 208 F.Supp.2d at 300-01. While many decisions by health insurance providers "involve[] some medical judgment," Magistrate Judge Boyle said, "[t]here is no evidence that Congress intended that these quasi-medical/administrative decisions made by a plan administrator survive ERISA pre...
To continue reading
Request your trial
-
Hendrix v. United Healthcare Ins. Co. of the River Valley
...medical maltreatment by a party who can be deemed to be a treating physician or such a physician's employer.’ Cicio [v. Does, 321 F.3d 83, 109 (2d Cir. 2003) ] (Calabresi, J., dissenting in part). Here, however, petitioners are neither respondents’ treating physicians nor the employers of r......
-
Arista Records LLC v. Lime Group LLC
...a common nucleus of operative fact," Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc., 373 F.3d 296, 308 (2d Cir.2004), quoting Cicio v. Does, 321 F.3d 83, 97 (2d Pin 2003), quoting City of Chicago v. Int'l, Coll. of Surgeons, 522 U.S. 156, 165, 118 S.Ct. 523, 139 L.Ed.2d 525 (1997), quoting......
-
N.Y. State Psychiatric Ass'n, Inc. v. Unitedhealth Grp., Uhc Ins. Co., United Health-Care Ins. Co. of N.Y., United Behavioral Health
...injunctive relief compelling the plan to provide him the rights to which he is entitled under the terms of the plan. See Cicio v. Does, 321 F.3d 83, 95–96 (2d Cir.2003), vacated on other grounds,542 U.S. 933, 124 S.Ct. 2902, 159 L.Ed.2d 808 (2004). These are the types of relief that plainti......
-
Spielman v. Merrill Lynch, Pierce, Fenner & Smith, Docket No. 01-9189.
...federal in character that it arises under federal law ... and permits removal to federal court under 28 U.S.C. § 1441.'" Cicio v. Does, 321 F.3d 83, 92 (2d Cir.2003) (quoting Plumbing Indus. Bd. v. E.W. Howell Co., 126 F.3d 61, 66 (2d While we recognize that the complete preemption doctrine......
-
Patient Advocacy and Termination from Managed Care Organizations. Do State Laws Protecting Health Care Professional Advocacy Make Any Difference?
...Prudential HMO Inc. v. Moran, 536 U.S. 355 (2002); Ky. Ass'n of Health Plans, Inc. v. Miller, 123 S. Ct. 1471 (2003); Cicio v. Does, 321 F.3d 83 (2d Cir. 2003); Napoletano v. Cigna Healthcare Inc., 680 A.2d 127 (Conn. 1996). 206. Section 514(b)(2)(A) of ERISA, 29 U.S.C. §1144 (b)(2)(A) (200......
-
To preempt or not to preempt: HMO liability pre and post Pegram v. Herdrich.
...Id. (113) See Pegram, 530 U.S. 211 (2000). (114) Miller, 50 Pa. D. & C.4th at 26. (115) Id. (116) Id. (117) Id. (118) Cicio v. Does, 321 F.3d 83 (2d Cir. 2003), vacated by Vytra Healthcare v. Cicio, 542 U.S. 933 (2004). (119) Id. (120) Id. at 88. (121) Id. at 88. (122) Id. at 102. (123)......