(Exh. H., 11/23/98 Peeno Ltr. at 2); Dr. Barolat performed the
surgery on July 7, 1994. See Exh. G.
Plaintiff claims that, due to the delay in receiving the
necessary approval for her back surgery, she has suffered various
injuries. See Exh. J., Am.Compl. Furthermore, she alleges that
it was the negligence of Medemerge and the doctor defendants that
caused this delay. See id., Counts Six,*fn12 Eight and Ten.
Defendants*fn13 now move for summary judgment on those counts.
Summary judgment may be granted when "there is no genuine issue
as to any material fact and . . . the moving party is entitled to
a judgment as a matter of law." Fed.R.Civ.P. 56(c). When ruling
on a motion for summary judgment all facts and reasonable
inferences drawn from the evidence are viewed in the light most
favorable to the non-moving party. See Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct.
1348, 89 L.Ed.2d 538 (1986). The moving party has the initial
burden of pointing out the absence of a genuine issue as to any
material fact, but summary judgment is only granted against a
party who fails to demonstrate "the existence of an element
essential to that party's case, and on which that party will bear
the burden of proof at trial." Celotex Corp. v. Catrett,
477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
Defendants essentially offer two arguments in support of their
motion: one, that plaintiff's claims are preempted by ERISA §
514(a), 29 U.S.C. § 1144(a) (hereinafter "§ 514(a)"); and, two,
that plaintiff fails to state a claim for negligence upon which
relief can be granted. This court will address both arguments in
Defendants argue that although plaintiff's claims against them
are not completely preempted*fn15 by ERISA, those claims are,
nonetheless, preempted because they "relate to" an ERISA plan.
See § 514(a).*fn16 "Relate to" preemption has traditionally
been interpreted broadly in keeping with Congress's intent to
regulate employee benefit plans. See Pilot Life Ins. Co. v.
Dedeaux, 481 U.S. 41, 45-46, 107 S.Ct. 1549, 95 L.Ed.2d 39
(1987). Thus, in the past, a state law that had "a connection
with or reference to" an ERISA plan was subject to ERISA
preemption. Shaw v. Delta Air Lines, 463 U.S. 85, 96-97, 103
S.Ct. 2890, 77 L.Ed.2d
490 (1983). Indeed, even if the law had an indirect effect on an
ERISA plan, it was deemed preempted. See Ingersoll-Rand Co. v.
McClendon, 498 U.S. 133, 139, 111 S.Ct. 478, 112 L.Ed.2d 474
Concerned, however, that the breadth of the preemption test was
seemingly without limit, the Supreme Court narrowed the scope of
"relate to" preemption. See De Buono v. NYSA-ILA Med. and
Clinical Serv. Fund, 520 U.S. 806, 813-14, 117 S.Ct. 1747, 138
L.Ed.2d 21 (1997); New York State Conference of Blue Cross &
Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 655, 115
S.Ct. 1671, 131 L.Ed.2d 695 (1995) ("If `relate to' were taken to
extend to the furthest stretch of its indeterminacy, then for all
practical purposes pre-emption would never run its course, for
`[r]eally, universally, relations stop nowhere'") (citation
omitted). Now, instead of simply looking for a remote connection
to an ERISA plan, courts must "go beyond the unhelpful text and
the frustrating difficulty of defining its key term . . . and
look instead to the objectives of the ERISA statute as a guide to
the scope of the state law that Congress understood would
survive." Bast v. Prudential Ins. Co. of America,
150 F.3d 1003, 1007 (9th Cir. 1998) (quoting Travelers, 514 U.S. at 656,
115 S.Ct. 1671).
Here, plaintiff claims that defendants' negligence — a
violation of state law — in failing to obtain prompt approval for
her out-of-network surgery caused her injury.*fn17 Defendants
argue that, although dressed in state law clothing, plaintiff's
negligence claims "relate to" an ERISA plan, as it was the plan
that required that the outside specialist be approved — the
requirement that caused the delay.*fn18 See Def.Br.Supp. at
11-13. Plaintiff insists, however, that her claims take issue
with the quality of care — and not the benefits — she received,
and, thus, are not preempted by ERISA.
To resolve the preemption question, i.e. whether plaintiff's
claims relate to an ERISA plan, this court must determine whether
she is in fact challenging the administration of her benefits or
the quality of care she received. It is axiomatic that if a
participant in a plan subject to ERISA is suing an HMO based upon
the improper processing of a claim under that plan, the claim is
completely preempted by federal law. See Pilot Life, 481 U.S.
at 52-54, 107 S.Ct. 1549; ERISA § 502(a). It follows, therefore,
that a claim for negligent delay in the utilization review, or
pre-authorization process, even if alleged as a state law
violation against the physician, would, at the very least,
"relate to" an ERISA plan and, thus, be preempted. If a
participant is challenging the quality of care he or she received
from the physician, however, that claim is not preempted. See
Coyne & Delany Co. v. Selman, 98 F.3d 1457, 1470 (4th Cir. 1996)
(finding that professional malpractice claim was not preempted by
ERISA); Moreno v. Health Partners Health Plan, 4 F. Supp.2d 888,
892 (D.Ariz. 1998) ("Plaintiff's malpractice claim goes to the
quality of care received. If we were in the Third Circuit, the
case would be remanded to the state courts[.]") (emphasis in
original) (citing Dukes); Edelen v. Osterman, 943 F. Supp. 75,
76-77 (D.D.C. 1996) (noting distinction between a claim
contesting administration or determination of benefits as opposed
to the quality of medical care received).
In cases in which HMOs have been sued, therefore, courts have
looked to whether the plaintiff was seeking to hold the HMO
vicariously liable for the medical malpractice
of its physicians, a claim often deemed not preempted, see Dukes,
57 F.3d at 360-61; Pacificare of Oklahoma, Inc. v. Burrage,
59 F.3d 151, 155 (10th Cir. 1995); Smith v. HMO Great Lakes,
852 F. Supp. 669, 672 (N.D.Ill. 1994); see also Elsesser v. Hospital
of Philadelphia College of Osteopathic Medicine, Parkview Div.,
802 F. Supp. 1286, 1290-91 (E.D.Pa. 1992); but see Jass v.
Prudential Health Care Plan, Inc., 88 F.3d 1482, 1493-95 (7th
Cir. 1996) (holding that vicarious liability for doctor's
negligence was preempted by § 514(a)); or if the plaintiff
was attempting to hold the HMO responsible for its own negligence
in the refusal to authorize or delay in authorizing services
leading to injury — claims several courts have deemed preempted
by ERISA. See Bast, 150 F.3d at 1007-08; Tolton v. American
Biodyne, Inc., 48 F.3d 937, 941-42 (6th Cir. 1995); Kuhl v.
Lincoln National Health Plan of Kansas City, Inc., 999 F.2d 298,
302-03 (8th Cir. 1993) (ERISA preempted wrongful death claim
based upon delayed preauthorization for surgery), cert. denied,
510 U.S. 1045, 114 S.Ct. 694, 126 L.Ed.2d 661 (1994); Spain v.
Aetna Life Ins. Co., 11 F.3d 129, 131-32 (9th Cir. 1993), cert.
denied, 511 U.S. 1052, 114 S.Ct. 1612, 128 L.Ed.2d 340 (1994)
(ERISA preempted wrongful death claim based on withdrawal of
authorization for surgery); Corcoran v. United HealthCare, Inc.,
965 F.2d 1321, 1331-32 (5th Cir.), cert. denied, 506 U.S. 1033,
113 S.Ct. 812, 121 L.Ed.2d 684 (1992); Andrews-Clarke v.
Travelers Ins. Co., 984 F. Supp. 49, 58 (D.Mass. 1997);
Bailey-Gates v. Aetna Life Ins. Co., 890 F. Supp. 73, 77 (D.Conn.
1994) ("Since plaintiff's claim arises because of the existence
of the benefit plan, common sense dictates that it also `relates
to' that plan."); Elsesser, 802 F. Supp. at 1290-91 (holding that
claim for negligent authorization "clearly has a connection with
or relates to" an ERISA plan); but see Pappas v. Asbel, 555 Pa. 342,
724 A.2d 889, 893 (1998) (holding that negligence claims
against HMO did not "relate to" an ERISA plan), pet. for cert.
filed, 67 USLW 3717 (May 13, 1999); Prudential Ins. Co. of
America v. Doe, 46 F. Supp.2d 925, 936 (E.D.Mo. 1999) (holding
that plaintiff's claims for a variety of state torts including
intentional or negligent infliction of emotional distress against
HMO did not "relate to" an ERISA plan and, thus, were not
preempted). Deeming state law claims against HMOs preempted had
the unfortunate effect — an effect that was not lost on the
courts deciding those cases — of leaving plaintiffs without a
remedy.*fn19 See Bast, 150 F.3d at 1010 ("Although forcing
[plaintiffs] to assert their claims only under ERISA may leave
them without a viable remedy, this is an unfortunate consequence
of the compromise Congress made in drafting ERISA."); Tolton,
48 F.3d at 943 ("One consequence of ERISA preemption, therefore,
is that plan beneficiaries or participants bringing certain types
of state actions-such as wrongful death-may be left without a
meaningful remedy."); Corcoran, 965 F.2d at 1333 ("While we are
not unmindful of the fact that our interpretation of the
preemption clause leaves a gap in remedies within a statute
intended to protect participants in employee benefit plans . . .
the lack of an ERISA remedy does not affect a pre-emption
analysis."); Thompson v. GenCare Health Systems, Inc.,
49 F. Supp.2d 1145, 1147 (E.D.Mo. 1999) ("This Court joins the number
of courts which have lamented the questionable public policy
resulting in a lack of remedy in such cases . . . As others have
noted, action by Congress is necessary to avoid this unfortunate
and repeated legal result in cases even of tragic
circumstances."); Andrews-Clarke, 984 F. Supp. at 53 ("Enacted
to safeguard the interests of employees and their beneficiaries,
ERISA has evolved into a shield of immunity that protects health
insurers, utilization review providers, and other managed care
potential liability for the consequences of their wrongful denial
of health benefits.").
Rarely, however, are claims brought against a physician — as
opposed to an HMO — for negligent delay in the authorization of
services, presumably because it is not usually the fault of the
physician that the HMO has not moved more swiftly in authorizing
the requested treatment. In this case, however, plaintiff claims
that the failure of her physicians — and of Medemerge — to
advocate on her behalf for an expedited review of her request
was, at least in part, responsible for her injuries. The question
for this court, then, is whether such claims "relate to" an ERISA
plan such that, in furtherance of Congressional policy, they
should be preempted.
It is clear that plaintiff's claims, at their core, challenge
the poor administration of her plan — the failure to promptly
approve the request for Dr. Barolat to perform the surgery —
rather than the quality of care she received. See
Andrews-Clarke, 984 F. Supp. at 58 ("Unlike the hospital
surcharge statute at issue in Travelers, which had only an
indirect economic influence on plan administration, here
[plaintiff's] claims [for improper refusal of treatment leading
to insured's death] go right to the heart of the benefit
determination process.") (citation omitted); see also Turner v.
Fallon Community Health Plan, Inc., 127 F.3d 196, 199 (1st Cir.
1997) ("It would be difficult to think of a state law that
`relates' more closely to an employee benefit plan than one that
affords remedies for the breach of obligations under that
plan."), cert. denied, ___ U.S. ___, 118 S.Ct. 1512, 140
L.Ed.2d 666 (1998); Pacificare, 59 F.3d at 154 (noting that in
the Tenth Circuit, "laws and common-law rules that provide
remedies for misconduct growing out of the administration of the
ERISA plan" relate to an ERISA plan and are preempted) (citation
omitted). As one court put it,
Despite plaintiff's attempts to craft defendants'
actions as medical malpractice, the wrong committed
in this case relates to the administration of the
plan, not to the provision or supervision of medical
services. In fact, the overarching problem was that
no medical treatment was ever initiated let alone
provided. Plaintiff was seeking a referral pursuant
to the plan in order to utilize benefits under the
plan and the failed administration of the plan
precluded her from doing so. The Court recognizes
plaintiff is attacking the quality of services
provided by the defendants rather than the denial of
acknowledged benefits; however, the service
complained of is administrative not medical.
Huss v. Green Spring Health Services, 18 F. Supp.2d 400, 405
That plaintiff couches her claims in terms of a physician's
"duty to advocate" on behalf of his patient does not transform
her claims into claims for medical malpractice, which she does
not allege, or common law negligence. See FPO at 17. Thus,
plaintiff's claims are preempted. Furthermore, as "ERISA's civil
enforcement provision . . . does not authorize recovery for
wrongful death, personal injury, or other consequential damages
caused by an improper refusal of an insurer or utilization review
provider to authorize treatment[,]" Andrews-Clarke, 984 F. Supp.
at 59, let alone a cause of action against the physician,
plaintiff's claims must be dismissed.
Parenthetically, even assuming that this court is wrong and
plaintiff's claims survive ERISA preemption, the state law claims
of negligence must still be dismissed. It is hornbook law that to
allege a cause of action in negligence a plaintiff must show:
"(1) a duty of care owed by defendant to plaintiff; (2) a breach
of that duty by defendant; and (3) an injury to plaintiff
proximately caused by defendant's breach." Endre v. Arnold,
300 N.J. Super. 136, 142, 692 A.2d 97 (App. Div. 1997) (citing
Anderson v. Sammy Redd and Assoc., 278 N.J. Super. 50, 56,
650 A.2d 376 (App. Div. 1994), certif. denied, 139 N.J. 441,
655 A.2d 444 (1995)). "Whether a duty exists is solely a question of
law to be decided by a
court and not by submission to a jury." Endre, 300 N.J.Super.
at 142, 692 A.2d 97.
Plaintiff has failed to show that defendants owed plaintiff a
"duty to advocate" so as to expedite the approval of her surgery.
All she has offered in support of the alleged duty are the
Hippocratic Oath and the Code of Medical Ethics (Exh. H. Peeno
Ltr. 4/16/98 at 7; Exh. N), neither of which has the force of
law. Cf. Baxt v. Liloia, 155 N.J. 190, 202-04, 714 A.2d 271
(1998) (holding, in a case against an attorney, that violation of
rules of professional conduct cannot be used to provide basis for
civil liability against adversary's attorney); see also Pierce
v. Ortho Pharmaceutical Corp., 84 N.J. 58, 76, 417 A.2d 505
(1980) (stating in wrongful discharge claim that "the Hippocratic
oath does not contain a clear mandate of public policy" to
satisfy the standard).
With respect to the second element, if there is no duty, a
fortiori there can be no breach of duty. Even if there was a
"duty to advocate", however, plaintiff has failed to produce
evidence, other than conclusory allegations, that defendants
breached that duty. The only evidence before this court shows
that: one, Medemerge submitted a form to U.S. Healthcare
regarding the approval of Dr. Barolat, (see Exh. A-3); and,
two, Medemerge arranged for the consultations that Dr. Barolat
requested be done prior to surgery. See Exh. F. Importantly, it
was Dr. Barolat — who is not a defendant in this action — who
rejected those initial consultations and insisted that his
colleagues do the consults prior to surgery, which caused further
delay. See Exh. A-6. Any evidence that defendants were
negligent in failing to advocate, or promptly advocate,
authorization for the surgery has simply not been provided to the
court; without it, plaintiff cannot sustain her burden on summary
Finally, plaintiff has failed to provide evidence regarding the
injuries the delay allegedly caused. Save for Dr. Barolat's
conclusion that "[t]he surgery was not very successful in
relieving the excruciating pain" (Exh. M) and Dr. Peeno's
statement that the delay caused "prolonged and unnecessary pain,
suffering, reliance upon pain medications, and psychological
distress" (Exh. H, Peeno Ltr. 4/16/98 at 8), there is scant
evidence of injury, with not so much as a diagnostic medical
report or an affidavit from plaintiff herself having been
Thus, regardless of whether plaintiff's claims are preempted by
ERISA, plaintiff has failed to show a genuine issue of material
fact which would require this court to deny defendants' motion
for summary judgment as to Counts Six,*fn20 Eight and Ten.
Defendants' motion for summary judgment is, therefore, granted.
For the foregoing reasons, the court will grant defendants'
motion for summary judgment as to Counts Six, Eight and Ten.