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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2000
- **Citation:** 530 U.S. 1241

## Text

| 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

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1437%3A02. Public record. Not legal advice.