Cyr v. Kaiser Foundation Health Plan of Texas, 4:98-CV-430-A.

• Decision Date: 16 July 1998
• Docket Number: No. 4:98-CV-430-A.,4:98-CV-430-A.
• Citation: 12 F.Supp.2d 556
• Parties: Armand and Barbara CYR, et al., Plaintiffs, v. KAISER FOUNDATION HEALTH PLAN OF TEXAS, et al., Defendants.
• Court: U.S. District Court — Northern District of Texas

12 F.Supp.2d 556

Armand and Barbara CYR, et al., Plaintiffs, v. KAISER FOUNDATION HEALTH PLAN OF TEXAS, et al., Defendants.

No. 4:98-CV-430-A.

United States District Court, N.D. Texas, Fort Worth Division.

July 16, 1998.

George Parker Young, Friedman Young & Suder, Fort Worth, TX, Elizabeth H. Kilbride, Law Office of Elizabeth H. Kilbride, Houston, TX, for Armand Cyr, Barbara Cyr.

Daniel R. Barrett, Fielding Barrett & Taylor, George Parker Young, Friedman Young & Suder, Fort Worth, TX, for Elaine Lacker.

John Anthony Scully, Paige Ann Lueking, Cooper Aldous & Scully, Dallas, TX, for Kaiser Foundation Health Plan of Texas, Kaiser Foundation Health Plan, Inc., Kaiser Foundation Hospitals.

Max Edward Freeman, II, Gwinn & Roby, Dallas, TX for Permanente Medical Ass'n of Texas.

MEMORANDUM OPINION and ORDER

McBRYDE, District Judge.

Before the court for decision is the motion to remand filed by plaintiffs, Armand Cyr and Barbara Cyr (the "Cyrs") and Jason Lacker, Elaine Lacker, individually and as administratrix of the estate of Robert Lacker, deceased, and Jennifer Lacker and Jacqueline Lacker, appearing through Elaine Lacker as their next friend (the "Lackers"). The court has concluded that the motion to remand should be granted.

I. Background and Procedural History

A. The Removal:

This action was removed to this court from the District Court of Tarrant County, Texas, 96th Judicial District, by notice of removal filed May 14, 1998, by defendants Kaiser Foundation Health Plan of Texas ("Kaiser-Texas"), Kaiser Foundation Health Plan, Inc., ("Kaiser-California"), and Kaiser Foundation Hospitals ("Kaiser-Hospitals"). The remaining defendant, Permanente Medical Association of Texas ("PMAT"), consented to, and joined in, the removal.

Defendants allege that: (1) this court has subject matter jurisdiction under 28 U.S.C. § 1331 because one or more of the claims asserted by plaintiffs arise under the laws of the United States;¹ (2) one or more of the claims of the Cyrs are within the scope of the civil enforcement provisions of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1132(a)(1)(B) and (a)(3), are preempted and displaced by ERISA, and, therefore, arise under federal law and are removable under 28 U.S.C. § 1441(a) and (b); (3) the claims asserted by the Lackers present controversies involving the Federal Employees Health Benefits Act ("FEHBA"), 5 U.S.C. §§ 8901-14, which are governed exclusively by federal common law, and, therefore, are removable; and (4) one or more defendants were persons acting, in reference to the claims of the Lackers, under an officer of an agency of the United States, within the meaning of 28 U.S.C. § 1442(a)(1), thus making the case removable.

Defendants maintain that the court has supplemental jurisdiction over any claim asserted by any plaintiff that does not independently of the other claims provide a basis for subject matter jurisdiction, see 28 U.S.C. § 1367(a), and that any claim that otherwise would not be removable is removable under 28 U.S.C. § 1441(c).

B. The Claims Alleged by Plaintiffs in the State Court:

As an employee of Sears Merchandise Group ("Sears"), Armand Cyr ("Mr.Cyr") was a participant in a health plan existing for the benefit of the employees of Sears and their dependents. Barbara Cyr ("Ms.Cyr"), as Mr. Cyr's spouse, was a beneficiary under the plan. The claims of the Cyrs arise from conduct of one or more defendants related to treatment of Ms. Cyr through the health plan. According to the Cyrs, when defendants² were providing medical care, treatment, and diagnostic services to Ms. Cyr pursuant to the plan, they failed to properly diagnose and treat a serious physical ailment suffered by her. Ms. Cyr seeks to recover damages for her past and future pain and suffering, mental anguish, emotional distress, and trauma arising from her allegedly improper care and treatment; and Mr. Cyr seeks to recover damages for the losses of companionship, care, support, services, advice, and counsel he alleges he suffered by reason of his wife's improper care and treatment.

Robert Lacker ("Mr.Lacker"), now deceased, was the husband of plaintiff Elaine Lacker ("Ms.Lacker") and the father of plaintiffs Jason Lacker, Jennifer Lacker, and Jacqueline Lacker. Ms. Lacker was an employee of the federal government. The Office of Personnel Management ("OPM") provided a health plan for the benefit of government employees and their dependents including Mr. Lacker. The Lackers complain that Mr. Lacker's death resulted from the failure of one or more defendants to provide him proper care and treatment pursuant to the plan. They seek to recover the damages that typically are claimed in a wrongful death action — mental anguish, emotional distress, and loss of companionship, care, support, services, advice, counsel, and inheritance suffered by each of them by reason of Mr. Lacker's death.

A distillation of the prolix allegations of plaintiffs' 61-page state-court pleading (titled "First Amended Petition") discloses that plaintiffs are asserting four causes of action against defendants. First, plaintiffs claim that their damages were caused by the negligence of defendants other than Kaiser-Hospitals in relation to the care and treatment of Barbara Cyr and Robert Lacker, respectively. Second, they allege that defendants are liable to them by reason of violations of the Texas Commercial Bribery Statute, Tex. Pen.Code Ann. § 32.43 (West 1994), which, inter alia, provides that a physician commits an offense if, without the consent of his patient, he knowingly or intentionally solicits, accepts, or agrees to accept any benefit from any other person on agreement or understanding that the benefit will influence the physician's conduct in relation to the affairs of his patient, and that a person commits an offense if he offers, confers, or agrees to confer any benefit the acceptance of which is an offense under the statute. The third and fourth causes of action are that defendants "through violations of the Texas Commercial Bribery Statute engaged in fraudulent concealment and tortious interference with the physician/patient relationship ...." First Amended Petition at 51.

Plaintiffs devote seven pages of their pleading to allegations of specific conduct on the part of defendants other than Kaiser-Hospitals that they claim constituted negligence which caused plaintiffs to suffer damages. Id. at 38-44. After noting that Kaiser-Texas "participates in, and indeed controls, the quality assurance process, undertaking to `supervise' and monitor the quality of medical care provided by the Kaiser/PMAT doctors and Kaiser physician's assistants," plaintiffs allege that Kaiser-Texas was negligent in the following respects:

a. Failure to provide adequate policies to facilitate the ordering of the proper diagnostic tests for Barbara Cyr;

b. Failure to provide adequately trained and/or skilled health care providers to properly diagnose and treat Barbara Cyr's cardiac condition;

c. Failure to provide adequately trained and/or skilled health care and medical care providers to treat Barbara Cyr;

d. Failure to have adequate policies with respect to the medical treatment, medical testing and/or referral of patients with medical symptoms/conditions like Barbara Cyr's;

e. Failure to have adequate quality assurance medical systems in place;

f. Failure to have measures in place to see that Barbara Cyr was sent to the nearest emergency room or cardiac ICU;

g. Failure to provide adequate referral services, which would have made a cardiac specialist available to Barbara Cyr;

h. Failure to provide adequate policies to facilitate the ordering of the proper diagnostic tests for Robert Lacker;

i. Failure to provide adequately trained and/or skilled health care providers to properly diagnose and treat Robert Lacker's cardiac condition;

j. Failure to provide adequately trained and/or skilled health care and medical care providers to treat Robert Lacker;

k. Failure to have adequate policies with respect to the medical treatment, medical testing and/or referral of patients with medical symptoms/conditions like Robert Lacker's;

l. Failure to have adequate quality assurance medical systems in place m. Failure to have measures in place to see that Robert Lacker received a stress test;

n. Failure to have measures in place to see that Robert Lacker received a cardiac catheterization; and

o. Failure to have measures in place to see that Robert Lacker received adequate treatment options, such as counseling, evaluation for and receipt of a possible heart transplant.

Id. at 38-39. Next, plaintiffs allege that Kaiser-Texas was negligent in proximately causing the failure to diagnose Barbara Cyr's cardiac condition and Robert Lacker's need for a heart transplant. Id. at 39. Plaintiffs then allege that Kaiser-Texas, through a medical care program it created and maintained, was guilty of the following negligent conduct:

a. Financially discouraged doctors, medical advice nurses, physicians [sic] assistants, and other providers from providing necessary medical services, including but not limited to medical testing, outside referrals, emergency room treatment and early necessary hospitalization;

b. Inadequate screening and credentialing of doctors, medical advice nurses and physicians [sic] assistants hired;

c. Fostered inadequate training of health care and medical care providers;

d. Inappropriately penalizing treating physicians for ordering testing or specialist referrals necessary for the proper diagnosis and provision of necessary medical services;

e. Failed to provide proper incentives to insure quality medical services are provided to members;

f. Failed to establish and enforce an effective quality control and medical care program; and

g. Establishing incentives for doctors and managers to meet budgets, but not to provide quality health care.

Id. at 40. PMAT is charged by plaint...