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Michael Rosenberg, M.D v. Advocate Health and Hospitals Corporation

April 22, 2011


The opinion of the court was delivered by: Honorable Joan B. Gottschall


Before the court is Michael Rosenberg's Emergency Motion to Remand to the Nineteenth Judicial Circuit of Lake County, Illinois. For the reasons that follow, the motion is granted.


On April 12, 2011, Rosenberg, a cardiologist, brought a three-count civil complaint in the Circuit Court for the Nineteenth Judicial District of Lake County, Illinois against Advocate Health and Hospitals Corporation, the Governing Council of Advocate Good Shepherd Hospital ("AGSH"), and Douglas Tomasian (collectively, the "defendants"), alleging that they breached the AGSH Medical Staff Bylaws (a contract), violated his fundamental right to a fair hearing, and violated the Illinois Hospital Licensing Act, 201 Ill. Comp. Stat. 85/10.4(b)(2)(c) by failing to follow the proper procedures in revoking his clinical privileges, without which, Rosenberg alleges, he would be effectively precluded from practicing medicine. In setting forth the facts underlying his claims, Rosenberg refers to the Health Care Quality Improvement Act ("HCQIA"), 42 U.S.C. §§ 11101-11152, which requires the defendants to report the revocation of his clinical privileges to the National Practitioner Data Bank ("NPDB"). The NPDB "collects and disseminates allegations of physician misconduct." Frakes v. Crete Carrier Corp., 579 F.3d 426, 433 n.6 (5th Cir. 2009); see 45 C.F.R. § 60.1 (explaining the function of the NPDB). In each count, Rosenberg asks the court to grant him a "temporary, preliminary, and permanent injunction prohibiting AGSH Hospital . . . from . . . reporting to any person or third party the decision to revoke Dr. Rosenberg's clinical privileges in interventional cardiology." (Compl. at 20, 33, 36.) Rosenberg contends that the reporting of the revocation to the NPDB will harm his future employment prospects.

The next day, on April 13, 2011, the defendants removed the case to federal court, asserting in their Notice of Removal that the case originally could have been brought in federal court because there is federal question jurisdiction since Rosenberg's complaint requires interpretation of the reporting requirements of a federal law -- the HCQIA. The day after that, on April 14, 2011, Rosenberg filed his emergency motion to remand the case to state court, disputing the defendants' contention that there is federal question jurisdiction.


The defendants' removal was proper if Rosenberg's suit originally could have been brought in this court. See 28 U.S.C. § 1441(a) ("Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending."); see also Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987) ("Only state court actions that originally could have been filed in federal court may be removed to federal court by the defendant." (citing 28 U.S.C. § 1441(a))). The parties do not contend that there is diversity jurisdiction, so the defendants' claim that removal was proper rests on their argument that there is federal question jurisdiction.

A district court has federal question jurisdiction "of all civil actions arising under the Constitution, laws, and treaties of the United States." 28 U.S.C. § 1331. Under the well-pleaded complaint rule, federal question jurisdiction exists "only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Caterpillar, 482 U.S. at 392; see Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152 (1908) ("[A] suit arises under the Constitution and laws of the United States only when the plaintiff's statement of his own cause of action shows that it is based upon those laws or that Constitution."). A federal question is presented on the face of the complaint where: (1) a plaintiff pleads a cause of action arising under federal law, or (2) "a state law claim necessarily raises a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities." Grable & Sons Metal Prods., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308, 312, 314 (2005).


The defendants argue that this court has federal question jurisdiction over Rosenberg's complaint either: (a) by means of an exception to the well-pleaded complaint rule that allows district courts to assert jurisdiction over claims that arise under state laws that have been completely preempted by federal law, or (b) because Rosenberg's claim for relief presents an embedded federal question within Rosenberg's state law complaint. The court will address each argument in turn.

I. Rosenberg's state law claims are not completely preempted by federal law and therefore do not fall within an exception to 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." Caterpillar, 482 393. "Complete preemption, therefore, creates an exception to the rule that courts look only to the plaintiff's well-pleaded complaint to determine whether federal jurisdiction exists." In re Repository Techs., Inc., 601 F.3d 710, 722-23 (7th Cir. 2010). "If the complaint pleads a state-law claim that is completely preempted by federal law, the claim is removable to federal court." Id. (quoting Franciscan Skemp Healthcare, Inc. v. Cent. States Joint Bd. Health & Welfare Trust Fund, 538 F.3d 594, 596-97 (7th Cir. 2008)).

"Complete preemption 'confers exclusive federal jurisdiction in certain instances where Congress intended the scope of a federal law to be so broad as to entirely replace any state-law claim.'" In re Repository Techs., Inc., 601 F.3d at 722 (quoting Franciscan Skemp Healthcare, Inc., 538 F.3d at 596); see Rogers v. Tyson Foods, Inc., 308 F.3d 785, 787 (7th Cir. 2002) ("Complete, or field, preemption exists where 'Congress has so completely preempted a particular area that no room remains for any state regulation and the complaint would be 'necessarily federal in character."" (quoting Bastien v. AT&T Wireless Serv., Inc., 205 F.3d 983, 986 (7th Cir. 2000))). As the Seventh Circuit has explained, "We find complete preemption where there is a congressional intent in the enactment of a federal statute not just to provide a federal defense to a state created cause of action but to grant a defendant the ability to remove the adjudication of the cause of action to a federal court by transforming the state cause of action into a federal cause of action." Rogers, 308 F.3d at 788 (emphasis as in original) (quotations and citations omitted).

Thus, "complete preemption would not be appropriate if a federal remedy did not exist in the alternative [to the state law claim]." Id. "Otherwise, a plaintiff would be forced into federal court with no relief available for 'vindicating the same interest.'" Id. (quoting Railway Labor Executives Ass'n v. Pittsburgh & L.E.R..R., 858 F.2d 936, 942 (3d. Cir. 1988)). "'[U]nless the federal law has created a federal remedy -- no matter how limited -- the federal law, of necessity, will only arise as a defense to a state law action' and will thus not give rise to the federal question jurisdiction underlying complete preemption." Id. (citing Rice v. Panchal, 65 F.3d 637, 641 (7th Cir. 1995), and McQuerry v. Am. Med. Sys., Inc., 899 F. Supp. 366, 370 (N.D. Ill. 1995)). Indeed, "[m]ost circuits share [the Seventh Circuit's] view that the existence of a private right of action under federal law is an antecedent of complete preemption." Id. (citing Wayne v. DHL Worldwide Express, 294 F.3d 1179, 1184 (9th Cir. 2002); Schmeling v. NORDAM, 97 F.3d 1336, 1342 (10th Cir. 1996); Strong v. Telectronics Pacing Sys., Inc., 78 F.3d 256, 260 (6th Cir. 1996); Hudson Ins. Co. v. Am. Elec. Corp., 957 F.2d 826, 830 (11th Cir. 1992); Aaron v. Nat'l Union Fire Ins. Co., 876 F.2d 1157, 1164-65 (5th Cir. 1989); Railway Labor Executives Ass'n, 858 F.2d 936, 942 (3d. Cir. 1988); and noting that Husmann v. Trans World Airlines, Inc., 169 F.3d 1151, 1152-54 (8th Cir. 1999), is an exception in which although the court found "complete preemption without discussing whether there was a replacement federal cause of action," a dissenting judge argued that "the defendant's failure to point to a private right of action in the statute should have been fatal to its argument for complete preemption," Husmann, 169 F.3d at 1154-55 (Morris Sheppard Arnold, J., dissenting)).

Here, "it appears that every court to address the question of whether the HCQIA provides a private cause of action has come to the same conclusion: it does not." Westmoreland v. Pleasant Valley Hosp., Inc., No. 3:08-1444, 2009 WL 1659835, at *3 (S.D.W.Va. Jun. 12, 2009) (citing Scott M. Smith, Annotation, Construction and Application of Health Care Quality Improvement Act of 1986, 121 A.L.R. Fed 409 (1994) (updated June 2009), Singh v. Blue Cross/Blue Shield of Mass., Inc., 308 F.3d 25, 45 n.18 (1st Cir. 2002), Wayne v. Genesis Med. Ctr., 140 F.3d 1145, 1148 (8th Cir. 1998), and Bok v. Mut. Assurance, Inc., 119 F.3d 927, 928-29 (11th Cir. 1997)); see also Shelton v. Schneider, No. 05 C 5955, 2005 WL 3601934, at *3 (N.D. Ill. Nov. 2, 2005) (the HCQIA "does not explicitly afford aggrieved physicians a cause of action when a hospital fails to follow HCQIA's prescribed peer review procedures"), Morris v. Emory Clinic, Inc., 402 F.3d 1076, 1083 (11th Cir. 2008) ("There is no express private right of action under the HCQIA."), Diagle v. Stulc, 694 F. Supp. 2d 30, 35 (D. Me. 2010) ("There is no authority for the proposition that HCQIA creates an independent private cause of action for individuals who claim they were injured as a consequence of a Data Bank report filed in compliance with the HCQIA."), Badri v. Huron Hosp., 691 F. Supp. 2d 744, 769 (N.D. Ohio 2010) ("This Court finds no evidence that Congress intended to create a cause of action for the benefit of physicians, and joins other courts in concluding that 'the HCQIA does not explicitly or implicitly create a private cause of action for physicians subjected to peer review.'" (quoting Singh, 308 F.3d at 45 n.18)), Held v. Decatur Mem. ...

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