Herrera v. Lovelace Health Systems, Inc.

• Decision Date: 28 January 1999
• Docket Number: No. Civ. 98-1250 MV/LG.,Civ. 98-1250 MV/LG.
• Citation: 35 F.Supp.2d 1327
• Parties: Carlos L. HERRERA, Plaintiff, v. LOVELACE HEALTH SYSTEMS, INC., a New Mexico corporation, The Lovelace Institutes, Inc., a New Mexico professional corporation, and Bret L. LaPointe, M.D., Defendants.
• Court: U.S. District Court — District of New Mexico

35 F.Supp.2d 1327

Carlos L. HERRERA, Plaintiff, v. LOVELACE HEALTH SYSTEMS, INC., a New Mexico corporation, The Lovelace Institutes, Inc., a New Mexico professional corporation, and Bret L. LaPointe, M.D., Defendants.

No. Civ. 98-1250 MV/LG.

United States District Court, D. New Mexico.

January 28, 1999.

Bruce E. Pasternack, Pasternack & Blake, Albuquerque, NM, for Plaintiff.

Mark D. Jarmie, Sharp, Jarmie & Scholl, James S. Bromberg, Albuquerque, NM, for Defendants.

MEMORANDUM OPINION AND ORDER

VAZQUEZ, District Judge.

THIS MATTER is before the Court on Plaintiff's Motion to Remand, filed December 4, 1998 [Doc. 17]. The Court, having considered the motion, response, reply, relevant law, and being otherwise fully informed, finds that the motion is well taken and will be GRANTED IN PART, as explained below.

BACKGROUND

Plaintiff Carlos L. Herrera ("Herrera") commenced this medical malpractice claim in New Mexico State Court, Second Judicial District, on September 9, 1998. Plaintiff seeks compensation from Defendants Lovelace Health Systems, Inc. ("Lovelace Health Systems"), the Lovelace Institutes, Inc. ("Lovelace Institutes") and Dr. Bret L. LaPointe ("Dr.LaPointe") for injuries sustained by Herrera as a result of a vasectomy allegedly performed negligently by Dr. LaPointe. Count I of the Complaint alleges medical malpractice by Dr. LaPointe and vicarious liability by Lovelace Health Systems and Lovelace Institutes. Count II asserts a claim of "corporate negligence" as a result of Lovelace Health Systems and Lovelace Institutes' alleged failure to properly oversee the treatment of their patients, to select and retain competent physicians, to oversee the physicians providing medical care, and to enforce adequate rules and policies to ensure quality medical care. Count III alleges negligence per se by Lovelace Health Systems, Lovelace Institutes and Dr. LaPointe for asserted violations of a New Mexico statute requiring certain standards of care in medical facilities. Finally, Count IV alleges intentional infliction of emotional distress by all Defendants.

On October 7, 1998, Lovelace Health Systems and Dr. LaPointe filed a Notice of Removal. Lovelace Institutes did not join in the Removal nor was its failure to join explained anywhere in the Notice. The Notice of Removal alleges that Plaintiff's claims are completely preempted by the Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001 et seq. ("ERISA") and therefore properly heard only in federal court. Plaintiff now moves for remand to the state court, arguing that the claims asserted do not arise under ERISA and, therefore, are not properly before the Court.

ANALYSIS

Defendants removed this case to federal court based on the premise that Plaintiff's claims, though pled strictly in terms of state law causes of action, in fact raise claims under ERISA which are completely preempted, and only judicable in federal court. Because the medical services in this case were provided pursuant to the benefits plan of a health maintenance organization (HMO), ERISA is implicated. Plaintiff now moves for remand, asserting that his claims are strictly state law causes of action for medical malpractice and negligence by the HMO which are not completely preempted. Plaintiff also raises a procedural defect in the removal in that the Notice fails to account for the absence of Lovelace Institutes in the motion to remove. Finally, Plaintiff requests attorneys fees and costs. Because the Court concludes that removal was improvident, requiring remand, the Court will not address Plaintiff's argument that the Notice was technically defective. The Court however does not deem it appropriate to award attorneys fees and costs, as explained below.

"Only state-court actions that originally could have been filed in federal court may be removed to federal court by the defendant." Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). When removal is premised on federal question jurisdiction, the analysis begins with the "`well-pleaded complaint rule,' which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Id. "The rule makes the plaintiff the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law." Id. "Thus, it is now settled law that a case may not be removed to federal court on the basis of a federal defense, including the defense of pre-emption, even if the defense is anticipated in the plaintiff's complaint, and even if both parties concede that the federal defense is the only question truly at issue." Id. 482 U.S. at 393, 107 S.Ct. 2425.

The Supreme Court has however recognized a narrow exception to the "well pleaded complaint rule," that being the doctrine of "complete preemption." Id. As the court explained,

[o]n occasion, the Court has concluded that the pre-emptive force of a statute is so "extraordinary" that it converts an ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule. Once an area of state law has been completely pre-empted, any claim purportedly based on that pre-empted state law is considered, from its inception, a federal claim, and therefore arises under federal law.

Id. (citing Metropolitan Life Insurance Co. v. Taylor, 481 U.S. 58, 65, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987) and Franchise Tax Board of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U.S. 1, 24, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983), quotation marks omitted). To date, the Supreme Court has held that the "complete preemption" doctrine applies in only two situations: (1) to claims arising under the National Labor Management Relations Act; and (2) to claims arising under section 502 of ERISA. Metropolitan Life, 481 U.S. at 65, 107 S.Ct. 1542.

In Metropolitan Life, supra, 481 U.S. 58, 107 S.Ct. 1542, 95 L.Ed.2d 55, the Supreme Court held that state law claims which fall under the ERISA civil enforcement provisions of 29 U.S.C. § 1132(a)(1)(B) are completely preempted. Id. 481 U.S. at 66, 107 S.Ct. 1542. Section 1132(a)(1)(B) provides that a plan beneficiary may bring suit in federal court "to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan." In concluding that claims which may properly be characterized as falling under § 1132(a)(1)(B) are completely preempted, the court cautioned that this exception to the well-pleaded complaint rule is extremely narrow. Id. Specifically, the court held that a case may not be removed to federal court on the basis of preemption under § 1144 of ERISA which provides that state law claims which "relate to" matters governed by ERISA are preempted. Id. 481 U.S. at 64, 107 S.Ct. 1542; Franchise Tax Board, 463 U.S. at 23-27, 103 S.Ct. 2841; Jass v. Prudential Health Care Plan, 88 F.3d 1482, 1487 (7th Cir.1996); Dukes v. U.S. Healthcare, Inc., 57 F.3d 350, 355 (3rd Cir. 1995); Warner v. Ford Motor Co., 46 F.3d 531, 534 (6th Cir.1995); Lupo v. Human Affairs Int'l, Inc., 28 F.3d 269, 272-73 (2d Cir.1994). Rather, § 1144 preemption merely states a federal defense, which does not provide a basis for removal. Metropolitan Life, 481 U.S. at 65-66, 107 S.Ct. 1542; Jass, 88 F.3d at 1487; Dukes, 57 F.3d at 355; Warner 46 F.3d at 534; Lupo, 28 F.3d at 272-73.

Thus, in the context of ERISA, the doctrine of complete pre-emption is limited to claims which may properly be characterized as § 1132(a)(1)(B) actions by the plaintiff "to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan." Metropolitan Life, 481 U.S. at 65-66, 107 S.Ct. 1542; Warner 46 F.3d at 534. Accordingly, in Metropolitan Life, supra, 481 U.S. 58, 107 S.Ct. 1542, 95 L.Ed.2d 55, the court held that a state common law claim asserting improper processing of a claim for benefits was removable to federal court because the cause of action was for the recovery of benefits due under the plan. Id.

More to the point, several courts have held that a state law claim which asserts that a medical procedure was improperly denied by an HMO is completely preempted under § 1132(a)(1)(B) and therefore removable to federal court. Jass, 88 F.3d at 1487 (claim for negligence arising out of failure to approve physical therapy preempted); Kuhl v. Lincoln Nat'l Health Plan of Kansas City, Inc., 999 F.2d 298, 303 (8th Cir., 1993) (medical malpractice claim for delay in approval of heart surgery held preempted); Spain v. Aetna Life Ins. Co., 11 F.3d 129, 131 (9th Cir.1993), cert. denied, 511 U.S. 1052, 114 S.Ct. 1612, 128 L.Ed.2d 340 (1994) (wrongful death suit alleging failure to approve bone marrow transplant preempted); Corcoran v. United HealthCare, Inc., 965 F.2d 1321, 1331 (5th Cir.), cert. denied, 506 U.S. 1033, 113 S.Ct. 812, 121 L.Ed.2d 684 (1992) (wrongful death suit following death of fetus after HMO approved only 10 hours per day of nursing care for pregnant woman despite doctor recommendation for 24 hour care held preempted). Because such a claim asserts that the plaintiff was improperly denied a benefit under the plan — a necessary medical procedure which the plaintiff was entitled to have the plan pay for — the suit seeks "to recover benefits due" or "to enforce ... rights under the terms of the plan" regardless of what causes of action are actually pled in the complaint.

On the other hand, several courts, including the Tenth Circuit Court of Appeals, have held that actions for medical malpractice and vicarious liability are not preempted under § 1132(a)(1)(B). Pacificare of Oklahoma, Inc. v. Burrage, 59 F.3d 151, 154 (10th Cir. 1995); Coyne & Delany v. Selman, 98 F.3d 1457 (4th Cir.1996); Lupo, 28 F.3d...