Opposition Brief — United States Healthcare Systems of Pennsylvania, Inc. v. Pennsylvania Hospital Insurance

| Suprema Court, OLS

FIREO

No. 98-183 JUL 14 1999

. 98-1836 “

: ."

IN THE

Supreme Court of the United States

UNITED STATES HEALTHCARE SYSTEMS

OF PENNSYLVANIA, INC.,

Petitioner,

v.

PENNSYLVANIA HOSPITAL INSURANCE CO. AND THE

COMMONWEALTH OF PENNSYLVANIA MEDICAL

PROFESSIONAL LIABILITY CATASTROPHE LOSS FUND,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI

TO THE PENNSYLVANIA SUPREME COURT

RESPONDENTS’ BRIEF IN OPPOSITION

CHARLES W. CRAVEN

Counsel of Record

STEPHEN A. RYAN

MarION H. GRIFFIN

MARSHALL, DENNEHEY,

WARNER, COLEMAN & GOGGIN

Attorneys for Respondents

1845 Walnut Street

Philadelphia, PA 19103

(215) 575-2600

153939 @ Counsel Press LLC

FORMERLY LUTZ APPELLATE SERVICES

(800) 274-3321 + (800) 359-6859

I

COUNTERSTATEMENT OF

QUESTIONS PRESENTED

Whether your Honorable Court has jurisdiction to

review the decision of the Pennsylvania Supreme Court,

which affirmed the order of the Pennsylvania Superior Court

reversing the trial court’s judgment and remanding for

further proceedings on the merits of the claim?

In enacting ERISA, 29 U.S.C. § 1001, et seg. (1990),

did Congress intend to supplant the states’ traditional roles

of regulating health care and enforcing common law tort

rights, such that claims that a health maintenance

organization was negligent in providing and arranging for

medical care are preempted by § 514(a) of the statute?

ul

STATEMENT PURSUANT TO

RULES 14.1(b) AND 29.6

The petition accurately lists the parties to the

proceedings.

Pennsylvania Hospital Insurance Corporation

(““PHICO”) is a subsidiary of PHICO Group, Inc., which is

owned in its entirety by the Health Alliance of Pennsylvania.

The Commonwealth of Pennsylvania Medical

Professional Liability Catastrophe Loss Fund (“CAT Fund”)

is a statutorily created executive agency of the

Commonwealth.

ie ey

a a Le rz

ill

TABLE OF CONTENTS

Counterstatement of Questions Presented ........

Statement Pursuant to Rules 14.1(b) and 29.6 ....

a ee a eee

Rn NEI «gc nc ccc cesceveedas

Statement of Jurisdiction .....................

Counterstatement of the Case ..................

A.

B.

POOUNEL OCRBTOUNG .. ww 5 ccc ces eese

PUOCOGUTEL TEIBIOTY «ww ccc cee.

Reasons for Denying the Writ .................

I.

Il.

Ill.

IV.

Your Honorable Court Does Not Have

Jurisdiction To Review This Case: The Order

Presented By Petitioner Is Not A Final Order.

2a OG OSB GH SHOBeOBC OR CREAHSEHEHBREKHR SBC OE C HR OOH EH ED

There Is No Conflict With Your Court’s

Decisions Construing Section 514(a) Of

EERE Ree aD Ak Ree oe

There Is No Conflict With Decisions Of The

Third Circuit Or Other Courts Of Appeals. .

Your Court Has Given Clear Direction To

The Lower Courts In This Important Area Of

Pe ero cag ve ekg dk a ben a

ee ae wa-ew @ a

Iv

TABLE OF CITED AUTHORITIES

Page

Cases:

Bast v. Prudential Ins. Co. of Am., 150 F.3d 1003

gk & A. RIP aNDra RO gRUne yon rears rem urea 8

California Div. of Labor Standards Enforcement v.

Dillingham, 519 U.S. 316 (1997) ... 3,6, 8,9, 11, 13.

Cannon vy. Group Health Serv., 77 F.3d 1270 (10"

Cir.), cert. denied, 519 U.S. 816 (1996) ....... 9

Cipollone v. Liggett Group, 505 U.S. 504 (1992) .12, 13

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469

SE aoa a RAE ee es Ca a ee 5

Crum v. Health Alliance-Midwest, Inc., No. 98-CV-

2241, 1999 U.S Lexis 6469 (C.D. Ill. May 6, 1999)

CNRS ERE ban A ake 11

DeBuono v. NYSA-ILA Medical and Clinical

Services Fund, 520 U.S. 806 (1997) ...... 3, 6,11, 13

Dukes v. U.S. Healthcare, 57 F.3d 350 (3™ Cir.), cert.

denied, 516 U.S. 1009 (1995) ............... 9,10

Dykema v. King, 959 F. Supp. 736 (D.S.C. 1997) . 12

Englehardt v. Paul Revere Life Ins. Co., 139 F.3d

SE Re, WOOD nnn vn bcs wenvekasbuwenes 8

leh eter as

En RT Re IN, ha og Seiad

NAL ad pect Nat wh tea Sia

v

Cited Authorities

Page

Jass v. Prudential Health Care Plan, Inc., 88 F.3d

Fates | re rE er rr re 8,9

Jefferson v. City of Tarrant, 522 U.S. 75 (1997) .. 5

Market Street Rail Co. v. Railroad Comm'n., 324

Le. Be CIOs woes ecdexetedesssee ee 5

Moreno v. Health Partners Health Plan,

4 F. Supp. 2d 888 (D. IAWUR. FIRED cc ks cecuwccn 11,12

Nascimento v. Harvard Community Health Plan,

No. 94-2543, 1997 Mass. Super. Lexis 166 (Mass.

Super. Sowt. 2G, USPT) oan ccc nscesccctwecss i2

Nealy v. U.S. Healthcare, 93 N.Y.2d 219 (1999) .. 12

New York State Conference of Blue Cross & Blue

Shield Plans v. Travelers Ins. Co., 514 U.S. 645

tec) PPE eC ere re ee ee ee passim

Painter v. Golden \Rule Ins. Co., 121 F.3d 436

(8" Cir. 1997), cert. denied, 118S. Ct. 1516 (1998)

jst-4s0keeaee CERRO Lae 8

Pappas v. Asbel, 675 A.2d 711 (Pa. Super. 1996) . 3

Pappas v. Asbel, 724 A.2d 889 (Pa. 1998) ....... 3

Parrino v. FHP Healthcare, 146 F.3d 699 (9" Cir.),

cert. denied, 119 S. Ct. 510 (1998) ........... 9

vi

Cited Authorities

Phommyvong v. Muniz, No. 3:98-CV-0070-L, 1999

U.S. Lexis 3101 (N.D. Tex. March 11,1999)...

Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41 (1987)

TERS EES SSN ASE SO ee 8 kee oe ae eee ee

Prudential Ins. Co. of America vy. Doe,

No. 94-CV-1153, 1999 U.S. Lexis 5635 (E.D. Mo.

March 31, 1900)... eee

aa PEE TT rr is rents ee ie

kay v. Value Behavioral Health, Inc., 967 F. Supp.

Git (. Mew. TGF) iscsi eee

Rice v. Panchal, 65 F.3d 637 (7" Cir. | pee

Turner v. Fallon Community Health Plan, Inc., 127

F.3d 196 (1" Cir. 1997), cert. denied, 118 S. Ct.

ORS CUT) os on an dedeeesce tee

Page

1]

12

vil

Cited Authorities

Page

Statutes:

y Rik Come @ by Peewee eer e eer eee ]

28 U.S.C. § 1257(a) .. 0... sere cece eee ceeceees 4

29 U.S.C. § 1001, et seq. (1990) ...---- +--+ ee: i2Z

Section 502(a) of Employee Retirement Income

Security Act, 29 U.S.C. § ky See 8, 10

Section 514(a) of Employee Retirement Income

Security Act, 29 U.S.C. § 1144(a) .........:-; passim

Other Authorities:

R. Charrow and L. Greenlees, ERISA Pre-Emption

— A Law in Search of a Doctrine, Health L. Dig.,

March 1999 at 14.1... eee eee ees 12

K. Jordan, Travelers Insurance: New Support for the

Argument to Restrain ERISA Pre-emption,

13 Yale J. on Reg. 255 (1996) ....-----+++55> 11

bonis Fata Sth ab os in

1

STATEMENT OF JURISDICTION

Petitioners have invoked the jurisdiction of your

Honorable Court pursuant to 28 U.S.C. § 1257.

Respondents respectfully suggest that the jurisdiction

provided to your Honorable Court under Article III of the

Constitution and 28 U.S.C. § 1257 does not obtain in this

case. The effect of the order of the Pennsylvania Supreme

Court affirming the order of the Superior Court of

Pennsylvania is the remand of the cause to the trial court

for further proceedings on the merits of the claim. The

decision of the Pennsylvania Supreme Court is, therefore,

not final and not within the scope of your Honorable Court’s

jurisdiction.

COUNTERSTATEMENT OF THE CASE

A. Factual Background

The opinion of the Pennsylvania Supreme Court

accurately sets forth the factual background.

B. Procedural History

Plaintiffs below, Basile and Theodora Pappas, filed a

complaint against David Asbel, D.O. and Haverford

Community Hospital (“Haverford”), alleging, inter alia, that

these defendants were negligent in failing to timely diagnose

and treat Mr. Pappas’ spinal cord compression. App. 47a-

58a. Haverford filed an Original Joinder Complaint, joining

United States Healthcare Systems of Pennsylvania, Inc.

(“U.S. Healthcare”) as an additional defendant. App. 59a-

61a. Haverford alleged that “HMO-PA refused to authorize

2

transfer of husband/plaintiff to a hospital selected by

physicians at Haverford Community Hospital” App. 60a,

para. 7. Furthermore, by incorporation of paragraph 24 of

plaintiffs’ complaint (App. 60a, para. 6), Haverford alleged

that HMO-PA negligently:

a. fail[ed] to transfer the patient to a hospital

capable and competent of administering to

his acute medical condition in a prompt and

timely fashion;

b. delay[ed] inordinately in transferring the

patient, keeping him at the Haverford

Community Hospital during which time his

spinal cord compression continued with

resultant damage to the patient’s spinal cord.

App. 54a-5Sa.

At the close of discovery, U.S. Healthcare filed a

Motion for Summary Judgment, claiming that Haverford’s

Joinder Complaint must be dismissed under the preemption

provisions of the Federal Employee Retirement Income

Security Act of 1975 (ERISA), 29 U.S.C. § 1001, et seq.

(1990). The trial court granted U.S. Healthcare’s Motion

for Summary Judgment, finding that all of Haverford’s

claims against U.S. Healthcare fell within the confines of

administration of an employee benefit plan, and therefore,

were barred under the ERISA preemption provision. App.

41a. Ultimately, a settlement agreement was reached among

the original parties, and the Pennsylvania Hospital Insurance

Company (“PHICO”) and the Commonwealth of

Pennsylvania Medical Professional Liability Catastrophe

Loss Fund (“CAT Fund’) were substituted for Haverford

as the real parties in interest. App. 45a-46a.

en a

3

Upon appeal, the Superior Court of Pennsylvania

reversed the trial court’s decision, finding that Haverford’s

claims against U.S. Healthcare were state law negligence

claims, and thus had no impact on the benefit plan in

question. Pappas v. Asbel, 675 A.2d 711, 717 (Pa. Super.

1996); App. 18a-33a. In reaching that decision, the court

was guided by New York State Conference of Blue Cross &

Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645 (1995).

The court remanded the matter to the trial court for further

_ proceedings on the merits of the claim.

The Pennsylvania Supreme Court considered this case

for more than one and one half years before affirming the

order of the Superior Court. Pappas v. Asbel, 724 A.2d 889

(Pa. 1998); App. la-16a. The court’s decision to affirm the

judgment of the Superior Court rendered in favor of PHICO

and the CAT Fund was unanimous in its result. The decision

of the court addresses and resolves the question whether

claims of medical negligence are preempted by ERISA. In

resolving that question, the court’s opinion recognizes that

your Honorable Court has yet to address directly the issue

whether particular medical malpractice claims against an

HMO “relate to” an ERISA plan. App. 6a. The Pennsylvania

Supreme Court quite properly followed the direction of your

Court in Travelers, Id., as well as California Div. of Labor

Standards Enforcement v. Dillingham, 519 U.S. 316 (1997)

and most recently, DeBuono v. NYSA-ILA Medical and

Clinical Services Fund, 520 U.S. 806 (1997). The

Pennsylvania Supreme Court also remanded the case for

further proceedings on the merits of the claim and noted

that the threshold issue of liability had yet to be resolved.

4

REASONS FOR DENYING THE WRIT

I.

YOUR HONORABLE COURT DOES NOT HAVE

JURISDICTION TO REVIEW THIS CASE: THE

ORDER PRESENTED BY PETITIONER IS NOT

A FINAL ORDER.

The power of your Honorable Court to review the

decisions rendered by state courts is limited to “final

judgments or decrees rendered by the highest court of a

state in which a decision could be had.” 28 U.S.C. § 1257(a).

The consequence of the Pennsylvania Supreme Court’s

decision\is remand of the cause for further proceedings on

respondents’ state law claims. The outcome of those

proceedings could moot the question your Court is being

petitioned to decide.

The Pennsylvania Supreme Court did not render a “final

judgment”. It affirmed the order of the Superior Court of

Pennsylvania, which reversed and remanded for further

proceedings the judgment of the trial court. App. 13a; 18a-

19a. Indeed, the order itself contemplates further

proceedings: “it is now left for the fact finder to determine

if U.S. Healthcare’s defenses to the negligence claims are

valid.” App. 13a, n.7.

Your Court has expressly recognized that the finality

requirement “is not one of those technicalities to be easily

scorned.” Radio Station WOW, Inc. v. Johnson, 326 U.S.

120, 124 (1945). In order to be final and reviewable, a state

court decision “must be subject to no further review or

correction in any other State tribunal; it must also be final

ena Serr We Batancues ~

«cata tialal en eS eS mae re ya) wh

5

as an effective determination of the litigation and not of

merely interlocutory or intermediate steps therein.” Market

Street Rail Co. v. Railroad Comm'n., 324 U.S. 548, 551

(1945). The decision below, remanding the cause for trial

on all counts, plainly does not meet this standard. As your

Court has observed under similar circumstances, “absent

settlement or further dispositive motions, the proceedings

on remand will include a trial on the merits of the state law

claims.” Jefferson v. City of Tarrant, 522 U.S. 75, 81 (1997).

Here, as in 7arrant, the outcome of the proceedings on

remand could moot the federal question presently at issue.

And, as in Jarrant, if the federal question does not become

moot, petitioner will be free to seek your Court’s review at

the end of the state court proceedings. See 522 U.S. at

77-78.

Seeking to obtain your Court’s jurisdiction, petitioner

invokes Cox Broadcasting Corp. v. Cohn, 420 U.S. 469,

482-483 (1975). Therein, your Court describes situations

in which it has treated the decision of a state court on a

federal issue as a final judgment. One of those instances

which arguably may apply here, is when a petitioner “might

prevail on the merits on non-federal grounds, thus rendering

unnecessary review of the federal issue by this Court, and

where reversal of the state court on the federal issue would

be preclusive of any further litigation on the relevant cause

of action.” /d. Importantly, however, this exception applies

when “a refusal immediately to review the state court

decision might seriously erode federal policy”. /d. That is

not the case here. As pointed out more fully, infra, the

decision of the Pennsylvania Supreme Court is in

accordance with your Court’s decisions, and thus consistent

with federal policy.

6

THERE IS NO CONFLICT WITH YOUR COURT?’S

DECISIONS CONSTRUING SECTION 514(a)

OF ERISA.

Your Honorable Court has yet to confront squarely the

issue whether medical negligence claims against an HMO

are preempted by § 514(a) of ERISA. Recognizing this, the

Pennsylvania Supreme Court correctly followed the

direction prescribed by your Court in Travelers, Dillingham,

and the more recent DeBuono. Contrary to U.S. Healthcare’s

assertion, the court below did not “anticipate” the overruling

of precedent, but instead, applied your Court’s endorsement

to look to the “objectives of the ERISA statute as a guide to

the scope of the state law that Congress understood would

survive.” App. 8a, citing Travelers. Importantly, this is the

explicit directive your Court issued in DeBuono, 520 U.S.

at 813-814.

U.S. Healthcare attempts to assign error to the

Pennsylvania Supreme Court’s reference, in its opinion, to

Mr. Justice Scalia’s concurrence in Dillingham. In doing

so. however, U.S. Healthcare ignores the court’s reliance

on the DeBuono decision, in which the majority quotes from

that same concurrence. DeBuono, 520 U.S. at 813, n.7.

THe core of petitioner’s argument in the courts below,

as well as to your Court, is that Haverford’s claim against

it “arises from and directly relates to” the administration of

benefits under an ERISA governed health plan, thus falling

within the preemptive reach of § 514(a). Petition at 7. This

argument falls short; by incorporating paragraph 24 of the

plaintiffs’ complaint, Haverford asserted that U.S.

7

Healthcare failed to transfer the patient to a hospital capable

of treating his acute condition promptly and delayed in

transferring the patient, thus increasing the injury to the

patient. These allegations are common law tort allegations

regarding the quality of the medical care provided. The

institutions authorized by U.S. Healthcare to accept Mr.

Pappas were not capable of accepting him with the speed

necessary to treat his rapidly deteriorating condition, and

U.S. Healthcare’s medical reviewer knew or should have

known it. Therefore, U.S. Healthcare was negligent in the

care it provided to Mr. Pappas.

Both of Pennsylvania’s appellate courts expressly

recognized that the claims made against petitioner are

common law tort claims. “Appellants do not seek benefits

denied, because Mr. Pappas was transferred to a hospital

capable of supplying the needed services; they do not seek

to challenge the administration of the Plan, again because

there is no complaint that USHC did not perform its duties.”

App. 3la. “Claims that an HMO was negligent when it

provided contractually-guaranteed medical benefits in such

a dilatory fashion that the patient was injured indisputably

are intertwined with the provision of safe medicai care.”

App. | la. Relying on Travelers, the Pennsylvania Supreme

Court further comments “it would be highly questionable

for us to find that these claims were preempted when the

United States Supreme Court has stated that there was no

intent on the part of Congress to preempt state laws

concerning the regulation of the provision of safe medical

care.”’ App. 1 la-12a.

8

THERE IS NO CONFLICT WITH DECISIONS OF

THE THIRD CIRCUIT OR OTHER COURTS

OF APPEALS.

U.S. Healthcare cites to seven decisions of the United

States Courts of Appeals issued subsequent to 7ravelers

and Dillingham for the proposition that the court below

improperly ignored federal appellate holdings that ERISA

preempts medical malpractice claims. Those seven decisions

are freely distinguishable.

Bast v. Prudential Ins. Co. of Am., 150 F.3d 1003

(9" Cir. 1998); Englehardt v. Paul Revere Life Ins. Co.,

139 F.3d 1346 (11" Cir. 1998); Turner v. Fallon Community

Health Plan, Inc., 127 F.3d 196 (1* Cir. 1997), cert. denied,

118 S. Ct. 1512 (1998); and Painter v. Golden Rule Ins.

Co., 121 F.3d 436 (8" Cir. 1997), cert. denied, 118 S. Ct.

1516 (1998), all involved plaintiffs’ claims which came

within the scope of the civil enforcement provisions set forth

in § 502(a)(1)(B) of ERISA. Thus, the United States Circuit

Courts all determined that those claims were completely

preempted. Where a claim is completely preempted under

§ 502(a), it is necessarily preempted under § 514(a). Rice

v. Panchal, 65 F.3d 637, 646, n.10 (7" Cir. 1995), citing

Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41 (1987). As

discussed more completely, infra, the issue herein is whether

the malpractice claims were preempted by § 514(a).

Jass v. Prudential Health Care Plan, Inc., 88 F.3d 1482

(7 Cir. 1996), does not discuss or even cite to Travelers.

And although the court did find that the plaintiff's claim

9

that her HMO was vicariously liable for her doctor’s

negligence “related to” her benefit plan and was preempted,

part of the reason for that conclusion was that the plan

provided a higher level of benefits if participants sought

treatment from that physician, necessitating referral to the

plan. /d. at 1493.

Likewise, Cannon v. Group Health Serv., 77 F.3d 1270

(10" Cir.), cert. denied, 519 U.S. 816 (1996), does not

mention 7ravelers. The issue in Cannon, however, was

whether ERISA may preempt state common law claims

when no alternative remedy is possible. The court stated,

and the plaintiff did not dispute, that the claims at issue

were claims asserting improper processing of benefits, thus

preempted under ERISA. /d. at 1273-1274.

Similarly, Parrino v. FHP Healthcare, 146 F.3d 699

(9" Cir.), cert. denied, 119 S. Ct. 510 (1998), arose from

inappropriate processing of a claim for plan benefits. The

court held the claim preempted under § 514(a). In doing so,

the court noted that ERISA preempts “state laws that

mandate[ ] employee benefit structures or their

administration.” /d. at 705, citing Travelers.

Careful examination of the above decisions

distinguishes them from the instant matter, where the claim

is that U.S. Healthcare was negligent in arranging for and

providing medical care to Mr. Pappas. Consequently, the

court below did not err in suggesting that an absence of

post Travelers and post Dillingham federal appellate

decisions supported its ruling.

Analysis of the Third Circuit’s decision in Dukes v.

U.S. Healthcare, 57 F.3d 350 (3™ Cir.), cert. denied, 516

le

10

U.S. 1009 (1995), correspondingly reveals the flaw in

petitioner’s argument. In Dukes the issue, again, was

whether the plaintiffs’-claims came within the scope of the

civil enforcement provisions set forth in § 502(a)(1)(B) of

ERISA, thus permitting their removal to federal court.

Because the plaintiffs were not attempting to “recover

benefits due . . . under the terms of [the] plan, to enforce

... fights under the terms of the plan, or to clarify . . . rights

to future benefits under the terms of the plan”, but instead

attacked the quality of the benefits they received, the Third

Circuit found that removal was improper. In reaching that

outcome, the court began its analysis with statutory

construction, as directed by 7ravelers. The court resolved

that quality control of benefits “is a field traditionally

occupied by state regulation and. . . interpret[ed] the silence

of Congress as reflecting an intent that it remain such.”

Dukes, 57 F.3d at 357. In particular, the court concluded

that its holding leaves “open for resolution by the state

courts” whether negligence claims, such as those asserted

herein, are preempted under § 514(a) of ERISA. Jd.

Because it is not an issue in this case, the ruling of the

Pennsylvania Supreme Court does not touch on the

complete-preemption exception of those state laws which

fall within the civil enforcement provision of § 502. The

court correctly addressed the “relate to” language of § 514

which is at issue here, and which, pointedly, was not

resolved by Dukes. Thus, there is no conflict between the

Pennsylvania Supreme Court and the United States Court

of Appeals for the Third Circuit.

11

IV.

YOUR COURT HAS GIVEN CLEAR DIRECTION TO

THE LOWER COURTS IN THIS IMPORTANT

AREA OF LAW.

In the past, lower court decisions with respect to the

extent of ERISA § 514(a) preemption have varied markedly

and incompatibly. Notably, nearly all inconsistencies

occurred prior to the decisions handed down by your

Honorable Court in Travelers, DeBuono and Dillingham.

Importantly, however, as one author has recognized,

Travelers “provides much needed guidance for courts asked

to identify the line delimiting state laws that Congress

intended to preempt .. .” K. Jordan, Travelers Insurance:

New Support for the Argument to Restrain ERISA

Pre-emption, 13 Yale J. on Reg. 255, 290 (1996).

Travelers’ influence is now emerging in decisions of

other lower courts, limiting ERISA preemption of state law

tort claims. These courts have applied 7ravelers and its

progeny to come to a more functional definition of “relate

to”. See, for example, Crum v. Health Alliance-Midwest,

Inc., No. 98-CV-2241, 1999 U.S Lexis 6469, *9 (C.D. Ill.

May 6, 1999) (noting that a claim for failure to diagnose

myocardial infarction would not be preempted under

§ 514(a)); Prudential Ins. Co. of America v. Doe, No.

94-CV-1153, 1999 U.S. Lexis 5635, *34 (E.D. Mo. March

31, 1999) (determining that claims for emotional distress

and invasion of privacy are not preempted); Phommyvong

v. Muniz, No. 3:98-CV-0070-L, 1999 U.S. Lexis 3101, *10

(N.D. Tex. March 11, 1999) (concluding ERISA preemption

does not apply to claims based upon quality of care

received); Moreno v. Health Partners Health Plan, 4

12

F. Supp. 2d 888, 893 (D. Ariz. 1998) (finding “no relation

between an action for medical malpractice and the recovery

of benefits or the clarification of rights to future benefits

under an ERISA plan.”); Ray v. Value Behavioral Health,

Inc., 967 F. Supp. 417, 423 (D. Nev. 1997) (finding claims

for negligence, invasion of privacy and infliction of

emotional distress are “exactly the sort of generally

applicable personal injury laws that § 514 of ERISA does

not preempt.”); Dykema v. King, 959 F. Supp. 736, 739

(D.S.C. 1997) (agreeing that a claim of direct liability for

failure to diagnose pulmonary embolism does not “relate

to” an ERISA plan); Nascimento v. Harvard Community

Health Plan, No. 94-2543, 1997 Mass. Super. Lexis 166,

*27 (Mass. Super. Sept. 26, 1997) (holding that the

provisions of ERISA do not preempt a claim for failure to

provide bone marrow transplantation therapy); Nealy v. U.S.

Healthcare, 93 N.Y .2d 219-220 (1999) (noting claims for

failure to take reasonable steps to provide for patient’s

timely treatment by specialist do not “relate to” the

administration of an ERISA plan). Each of these decisions

is compatible with “the general tenor of recent [Supreme]

Court cases that reemphasize the strength and vitality of

the presumption against ERISA pre-emption of laws of

general application.” R. Charrow and L. Greenlees, ERISA

Pre-Emption — A Law in Search of a Doctrine, Health L.

Dig., March 1999 at 14.

In like manner, the Pennsylvania Supreme Court, in

reaching its decision, applied the direction set forth in

Travelers, as well as other decisions of your Court. First,

the court heeded the caution to “assum[e] that the historic

police powers of the States [are] not to be superseded by

... Federal Act unless it [is] the clear and manifest purpose

of Congress.” App. Sa, citing Cipollone v. Liggett Group,

13

505 U.S. 504, 516 (1992). Next, the court turned to

“the objectives of the ERISA statute as a guide to the scope

of the state law that Congress understood would survive.”

App. 8a, citing 514 U.S. at 656. Simply put, the statute

contains no suggestion that it was intended to displace the

states’ traditional roles of regulating health care and

countering negligent patient care. The Pennsylvania

Supreme Court properly followed your Court’s holdings and

determined that Haverford’s claim did not “relate to” the

administration of an ERISA plan.

CONCLUSION

There is no reason for your Honorable Court to

intervene in this matter. The decision of the Pennsylvania

Supreme Court is not a final judgment. Moreover, it is

consistent with your Honorable Court’s holdings in

Travelers, DeBuono and Dillingham. The petition should

be denied.

Respectfully submitted,

CHARLES W. CRAVEN

Counsel of Record

STEPHEN A. RYAN

MARION H. GRIFFIN

MARSHALL, DENNEHEY,

WARNER, COLEMAN & GOGGIN

Attorneys for Respondents

1845 Walnut Street

Philadelphia, PA 19103

(215) 575-2600