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Rudek v. Presence Our Lady of Resurrection Medical Center

United States District Court, N.D. Illinois, Eastern Division

October 27, 2014

SYLVIA RUDEK, as power of attorney for EUGENE HARTMAN and ESTELLE HARTMAN, Plaintiffs,


JOHN J. THARP, Jr., District Judge.

The plaintiff, Sylvia Rudek, filed this action in state court on behalf of her parents, alleging various torts and state statutory violations in connection with the allegedly improper delivery of a notice of Medicare non-coverage to Eugene Hartman when he was an extended-care patient at Presence. According to the complaint, the notice was delivered to Eugene, who was not capable of understanding its contents when he signed and dated it. As a result the family missed the window for immediately appealing the impending coverage termination, and Mr. Hartman's coverage was suspended for 23 days, during which time he did not receive critical rehabilitative care following his stroke because the family could not pay for it out-of-pocket. Although the coverage was ultimately reinstated and extended, the family sued for damages caused by the interruption in coverage. The defendants, who removed the case to federal court (with no objection from plaintiff) on the basis of the Federal Officer Removal Statute, 28 U.S.C. § 1442(a)(1), [1]now move to dismiss the plaintiff's claims under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons that follow, the motions are granted.

To survive a motion to dismiss, a complaint must state a claim to relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Adams v. City of Indianapolis, 742 F.3d 720, 728 (7th Cir. 2014). The plaintiff must plead sufficient factual content from which the Court can "draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Allegations in the form of legal conclusions, as well as threadbare recitals of the elements of a cause of action, supported by conclusory statements, do not suffice. Adams, 742 F.3d at 728. Factual, but not legal, allegations are taken as true for purposes of the motion. Id.


Eugene Hartman ("Hartman") was admitted to Our Lady of the Resurrection Hospital on July 1, 2011, after suffering a stroke or cardiovascular event. Hartman was insured by defendant Humana; his HumanaChoice PPO plain is a Medicare Advantage (MA) plan under Medicare Part C, see 42 U.S.C. § 1395e-21 et seq. He was moved to the skilled nursing unit on July 6, 2011, at which time the attending physician executed a medical surrogacy form because Hartman was "confused and unable to make decisions for himself." All medical treatment decisions were to be made by Estelle, Hartman's wife. Hartman was later moved to the extended-care unit at the hospital.

Hartman's family-Estelle and daughters Sylvia Rudek and Cynthia Hartman-arranged for Hartman to go to Church Creek Skilled Nursing Facility for rehabilitative care following his hospital stay. On the date of the transfer, July 20, 2011, Cynthia arrived at the hospital in the morning and sought out defendant Kellie Prise, a social worker on Hartman's team of caregivers, about the need for continuing rehabilitative care and Humana's coverage-topics of ongoing discussions between Prise and the family. Prise informed Cynthia that on July 18, 2010, Hartman had executed a Humana form entitled "Notice of Medicare Non-Coverage" ("Notice").

The Notice is a two-page form. At the top, under the patient's name and number is a notice stating: "The Effective Date Coverage of Your Current SKILLED REHABILITATION Services Will End: July 20, 2011." The Notice advises the patient of a right to immediately appeal, with continuing services during the pendency of appeal, if the appeal is requested "as soon as possible, but no later than noon the day before the effective date indicated above [ i.e., by noon on July 19]." Thus, Hartman would have been given at most, one day (July 18-19), in which to request an immediate appeal. If that deadline were missed, another "expedited appeal" process was available, but coverage would not continue during such an appeal. No one in Hartman's family was told about the Notice (before Prise told Cynthia about it on the 20th); no family members were with him when he signed it or were ever contacted by phone or email, although Prise had easy access to their contact information. Prise instead determined that Hartman was capable of signing for himself.

When Cynthia learned of the Notice on July 20, Hartman already had been discharged. Cynthia informed Prise that Hartman could not make his own decisions and had a medical surrogate; Prise said that she was unaware of that, but that it did not matter because Hartman was capable of signing the form. Hartman was then taken by ambulance to Church Creek, where Estelle and Sylvia learned for the first time about the Notice and the impending termination of coverage. The family filed an expedited appeal of the termination of Hartman's skilled rehabilitation services. The appeal was successful, and coverage was reinstated after a 23-day lapse. In a March 15, 2012, letter to Sylvia Rudek, Humana stated, in regard to the Notice of July 2011, that "the member's health care surrogate should have signed the Notice of Medicare Non-Coverage, " and that Humana would "file a quality complaint against Our Lady of the Resurrection Medical Center Extended Care Unit for wrongfully obtaining the member's signature."

But for the gap in rehabilitative treatment, the complaint alleges, Hartman would have recovered sufficiently to live independently. Instead he resides in an assisted living facility. He missed out on the opportunity to restore optimal speech, mobility, and brain function following his stroke because he did not receive necessary services.

Plaintiff Rudek sued on behalf of her parents[3]in state court, asserting the following theories of liability: (I) violation of the Illinois Consumer Fraud and Deceptive Business Practices Act ("ICFA"); (II) malfeasance; (III) misfeasance; (IV) promissory estoppel; and (V)[4] civil conspiracy. Compl., Dkt. # 1-1. The defendants removed the case and now move to dismiss the plaintiff's claims.


The defendants each move to dismiss on the basis of federal preemption by the Medicare Act and official immunity. They further argue that even if those defenses fail, the complaint fails to plead any plausible claims for relief.[5]And, in a supplemental filing, they jointly move to dismiss based on what they argue is a critical factual concession made in the plaintiff's response to the first motions to dismiss-namely, the unsworn "declaration" of Cynthia Hartman. The defendants argue that Cynthia's statement reveals that the family learned of the Notice in time to prevent Hartman's transfer to Church Creek, which, they say, would have prevented the lapse in services.

Rudek plainly disagrees that her claims are preempted or subject to federal-officer immunity, and she maintains that she states a claim for relief under her state-law theories. The precise contours of her arguments, however, are difficult to understand. Rather than argue, with supporting authority, that her claims are properly before this Court and not subject to the legal defenses raised by the defendants, she focuses on pointing out factual differences in the cases cited by the defendants, without substantively engaging with the legal arguments. Most of her arguments boil down to a central complaint that the defendants never explain "how a patient can pay for coverage for years, and the doctors can agree medically necessary treatments in rehabilitation must continue for optimal health care of the patient, but the insurance company can willfully and arbitrarily cancel the payment portion only of its contract." E.g., Mem., Dkt. # 42 at 7. While these arguments effectively convey the family's frustration concerning the defendants' actions, they are largely misplaced, because the coverage decision is not at issue. This unhelpful approach leaves the Court with little in the way of coherent legal argument by the plaintiff on the ...

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