the facts here are more similar to the facts involved in the very
recent case of Phommyvong v. Muniz, 1999 WL 155714 (N.D.Tex.
1999). In Phommyvong, the court held that claims that a nurse
provided inadequate medical care were not completely preempted by
ERISA. Phommyvong, 1999 WL 155714, at *3-4.
Moreover, in Dukes, the Court found that the plaintiffs'
state law claims fell outside § 502(a)(1)(B) because they focused
on the "quality" of the medical care received and were not claims
that the plan erroneously withheld benefits due. Dukes, 57 F.3d
at 356-57 (ERISA "simply says nothing about the quality of
benefits received"). In this case, Plaintiff's claim focuses on
the allegedly faulty medical advice provided by the advisory
nurse or nurses which, Plaintiff claims, resulted in the tragic
death of her 42-year-old husband. Plaintiff's claim is based upon
"quality" of medical care and is not a claim that Defendant
erroneously withheld benefits due. See Fritts v. Khoury,
933 F. Supp. 668, 671-72 (E.D.Mich. 1996) (wrongful death and related
claims could not be characterized as claims to recover benefits
due under the terms of the plan). Significantly, unlike the
situation in Jass, Plaintiff could not amend her complaint to
seek appropriate relief under § 502(a).
As far as the third relevant factor, the question here is
whether Plaintiff's claims that Defendant is liable for the
faulty medical advice provided by the advisory nurse or nurses
under Illinois law will require construing the ERISA plan, a
question of federal law. See Rice, 65 F.3d at 645. "Where the
plaintiff seeks recovery for breach of a duty imposed by state
law, and the claim does not involve the interpretation of
contract terms, there is no complete preemption." Speciale, 147
F.3d at 615 (citing Rice, 65 F.3d at 644).
Cases have indicated that claims based on an ERISA plan's
"utilization review" role are completely preempted because such
claims cannot be resolved without interpreting the benefits
contract. See Jass, 88 F.3d at 1489; Dukes, 57 F.3d at 360;
Tolton v. American Biodyne, Inc., 48 F.3d 937, 942 (6th Cir.
1995) (utilization review is a means of processing claims and,
therefore, falls within the scope of § 502(a)). However, this
court concludes that the claims at issue here do not clearly
involve "utilization review" and instead are more accurately
considered claims based on the "quality" of medical care received
and a "medical decision" rather than an administrative decision.
See Dukes, 57 F.3d at 356-57; Lancaster, 958 F. Supp. at 1145
("to assess the existence of complete preemption, federal courts
must determine whether a plaintiff's state claim attacks an
administrative decision to deny benefits to a plan participant or
a medical decision to deny treatment to a patient"); see also
Huss v. Green Spring Health Services, Inc., 1999 WL 225885, at
*4-6 (E.D.Pa. 1999) (court found that claims that son was denied
treatment based upon inadequate administration of ERISA plan
completely preempted, but noted that a claim that son was refused
access to treatment based upon poor medical judgment would not
be). In Lancaster, the court concluded that medical malpractice
claims were not completely preempted even though the allegations
of the complaint referred to the ERISA plan's "Incentive Program"
as the cause for the failure to order necessary diagnostic tests.
Lancaster, 958 F. Supp. at 1146; cf. Person v. Physicians
Health Plan, Inc. 20 F. Supp.2d 918, 922-23 (E.D.Va. 1998) (claim
based upon ERISA Plan's refusal to approve surgical procedure
This court finds that Plaintiff's claim that Defendant is
liable for the alleged wrongful conduct of the advisory nurse or
nurses does not rest upon the terms of the plan and can be
resolved without interpreting an ERISA plan. See Rice, 65 F.3d
at 646; Moran, 1998 WL 325204, at *3, Lancaster, 958 F. Supp.
at 1146. Accordingly, this court concludes that Defendant has not
met its burden to show that removal of Counts I through III of
based upon complete preemption was proper in this case.
IT IS THEREFORE ORDERED.
(1) Plaintiff's Motion to Amend her Complaint by striking
Counts IV through IX of the Complaint (# 6) is GRANTED.
(2) Because this court lacks jurisdiction over Counts I through
III of Plaintiff's Complaint, Plaintiff's Motion to Remand the
Amended Complaint (# 6) is GRANTED. The case is remanded to the
circuit court of Vermilion County.
(3) Because this court lacks jurisdiction over Plaintiff's
Amended Complaint, Defendant's Motion to Dismiss (# 3) is DENIED
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