Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

CRUM v. HEALTH ALLIANCE-MIDWEST

May 6, 1999

KELLY A. CRUM, AS ADMINISTRATOR, OF THE ESTATE OF GARY L. CRUM, DECEASED, AND KELLY A. CRUM, INDIVIDUALLY, PLAINTIFF,
v.
HEALTH ALLIANCE-MIDWEST, INC., DEFENDANT.



The opinion of the court was delivered by: McCUSKEY, District Judge.

  ORDER

On September 3, 1998, Plaintiff, Kelly A. Crum, individually and as administrator of the Estate of Gary L. Crum, filed a nine-count Complaint against Defendant, Health Alliance-Midwest, Inc., in the circuit court of Vermilion County. On October 13, 1998, Defendant filed a Notice of Removal (# 1) to this court. Defendant argued that the action was removable because Plaintiff's claims were completely preempted by the Employee Retirement Income Security Act of 1974 (ERISA) (29 U.S.C. § 1001 et seq.). Also on October 13, 1998, Defendant filed a Motion to Dismiss (# 3) Plaintiff's Complaint and a supporting Memorandum of Law (# 4). On November 13, 1998, Plaintiff filed an Objection to Removal and Motion to Remand or, in the Alternative, Motion for Leave to Amend the Complaint and Motion to Remand (# 6). Defendant filed a Response (# 7) and Memorandum of Law (# 8) on November 30, 1998. On December 23, 1998, the Magistrate Judge filed a Report and Recommendation (# 9) recommending that Defendant's Motion to Dismiss (# 3) be granted and Plaintiff's Motion (# 6) be denied. On January 11, 1999, Plaintiff filed an Objection to the Report and Recommendation (# 10). This court agrees with Plaintiff's Objection. Accordingly, Plaintiff's alternative Motion for Leave to Amend the Complaint and Motion to Remand (# 6) is GRANTED. Therefore, Defendant's Motion to Dismiss (# 3) is DENIED as moot.

FACTS

In her Complaint, Plaintiff alleged that she was the spouse of the deceased, Gary Crum (Gary). Gary was an insured under a policy of health care insurance provided by Defendant. During the evening hours of December 19, 1996, Gary began experiencing symptoms "including feeling agitated and upset, nausea, and an urgent need, but inability, to vomit." At that time, Gary was 42 years old. According to the Complaint, the terms of the contract of insurance with Defendant required Gary to contact Defendant at a specified telephone number and consult with an advisory nurse prior to seeking medical attention. Plaintiff alleged that the advisory nurses were employees of Defendant or acted as Defendant's agents. Plaintiff alleged that, at approximately 10:50 p.m., she contacted an advisory nurse on Gary's behalf and informed the nurse of Gary's symptoms and the history of heart trouble in Gary's family. Plaintiff told the nurse she wanted to make sure Gary was not having a heart attack. The advisory nurse told Plaintiff that Gary's symptoms were probably due to excess stomach acids and that he should be fine. Plaintiff again telephoned an advisory nurse at approximately 11:34 p.m. Plaintiff informed the nurse of Gary's continued symptoms and also that he was experiencing pain in the middle of his chest. According to Plaintiff's Complaint:

    The advisory nurse indicated that GARY L. CRUM
  should sit at a 40 degree angle, that he should drink
  some milk and that this would allow the stomach acids
  to recede and would help with the discomfort, and
  that he would be fine in the morning, and that he did
  not need to go to an emergency room.

In Count I, Plaintiff alleged that Defendant was liable under Illinois' Wrongful Death Act (740 Ill.Comp.Stat. 180/1 et seq. (West 1996)). Specifically, she alleged that Defendant, "by and through its agents and/or employees, was guilty of one or more [of] the following acts and/or omissions:

    a. The advisory nurse or nurses undertook to render
  a medical diagnosis of GARY L. CRUM's condition, even
  though they were not trained, qualified nor licensed
  to practice medicine in the State of Illinois;
    b. The advisory nurse or nurses rendered medical
  diagnoses of GARY L. CRUM's condition, even though
  they were not trained, qualified nor licensed to
  practice medicine in the State of Illinois; and
    c. The advisory nurse or nurses failed to instruct
  GARY L. CRUM immediately to seek medical attention at
  a hospital emergency room."

In Count II, Plaintiff alleged a cause of action based upon Illinois' Survival Act (755 Ill.Comp.Stat. 5/27-6 (West 1996)). This court notes, however, that the Survival Act creates no cause of action, but is merely the conduit through which a cause of action is transferred to the estate representative. Owens v. Archer-Daniels-Midland Co., 30 F. Supp.2d 1082, 1083-84 (C.D.Ill. 1999). In Count III, Plaintiff alleged that, because of Defendant's negligent acts and omissions, she "was compelled to expend and become liable for large sums of money for medical, hospital, funeral, burial and other expenses." She sought recovery for these expenses pursuant to the Family Expense Act (750 Ill.Comp.Stat. 65/15 (West 1996)).

In Count IV, Plaintiff alleged that Defendant was liable under the Wrongful Death Act for its own negligence in imposing "the requirement that its clients submit to a medical diagnosis by an advisory nurse prior to seeking emergency medical care and treatment." In Counts V and VI, Plaintiff asserted actions pursuant to the Survival Act and the Family Expense Act based upon the allegations set out in Count V. In Counts VII, VIII and XI, Plaintiff alleged that Defendant was liable pursuant to the Wrongful Death Act, the Survival Act and the Family Expense Act based upon Defendant's breach of contract.

Defendant asserted in its Notice of Removal and Motion to Dismiss that all of Plaintiff's claims are completely preempted by ERISA, giving this court jurisdiction over Plaintiff's cause of action. Defendant also argued that, because Plaintiff's Complaint contains no claim for damages authorized by ERISA, Plaintiff's Complaint must be dismissed with prejudice. Plaintiff objected to the removal of her cause of action against Defendant and sought remand to the Illinois court. As noted, the Magistrate Judge agreed with Defendant that the cause of action was completely preempted by ERISA and was removable to this court. The Magistrate Judge also recommended granting Defendant's Motion to Dismiss. In her Objection to the Report and Recommendation, Plaintiff argues only that Counts I through ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.