[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 30, 2003
No. 02-15549 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 02-00470-CV-J-20
ROBBIE LEE LAND,
DONNA LAND,
Plaintiffs-Appellants,
versus
CIGNA HEALTHCARE OF FLORIDA,
a Florida Corporation,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 30, 2003)
Before MARCUS and WILSON, Circuit Judges, and RESTANI*, Judge.
___________________________
*Honorable Jane A. Restani, Judge, United States Court of International Trade, sitting by
designation.
WILSON, Circuit Judge:
Robbie Lee Land appeals the district court’s order denying his motion to
remand and granting CIGNA Healthcare of Florida’s motion to dismiss.1 The
principal issue in this case is whether Land’s state law malpractice claims against
his health maintenance organization (HMO) were preempted by the Employee
Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001–1461. We
conclude that they were not preempted, and, therefore, we vacate and remand to
the district court with instructions to remand this case to state court.
BACKGROUND
Land was a subscriber through his employer to a health care plan
administered as an HMO by CIGNA. On January 14, 2001, Land was bitten on
his left hand by his family cat. Later that afternoon, he noticed that his hand had
become swollen and inflamed, and the next day he sought treatment at a hospital
emergency room where he was treated by Dr. John C. Crick, a CIGNA-approved
hand specialist. Dr. Crick diagnosed him with cellulitis, ordered that he be given
an injection of antibiotics in the emergency room, and prescribed an additional
1
Donna Land, Land’s wife, also appeals the district court’s order as it pertains to the
dismissal of her joint state law claim for the loss of her husband’s services, comfort, society, and
attention. Because we vacate the order in its entirety, it is not necessary to address her claims
separately.
2
course of antibiotics to treat the infection. Dr. Crick reevaluated Land’s hand the
following day and found no improvement in his condition. As he observed that
Land’s hand still was swollen and that there was limitation of motion in the joints,
Dr. Crick began to suspect that Land was suffering from osteomyelitis, a more
serious infection than cellulitis.
In developing a course of treatment for the infection, Dr. Crick conferred
with Dr. David Gouch, Land’s primary care physician. After consulting with each
other, the physicians ordered that Land be admitted into the hospital immediately
for aggressive intravenous antibiotic treatment and constant monitoring and
assessment of his infection to determine whether surgery or modified antibiotic
treatment would be necessary. Land was admitted into the hospital that same day
and placed on intravenous antibiotics.
Land alleges that shortly after his admission into the hospital, a CIGNA
approval nurse reviewed the proposed plan of treatment for his infection. The
nurse approved the use of intravenous antibiotic therapy, but determined that he
was suffering from a localized infection that did not require hospitalization. The
nurse thus decided that the treatment should be provided on an outpatient basis in
Land’s home rather than on an inpatient basis in the hospital, and Land was
discharged that evening.
3
By the following week, Land’s condition had worsened considerably, and
he developed an abscess extending into the joint between his hand and middle
finger. Outpatient surgery was performed to drain, irrigate, and debride the
metacarpophalangeal joint of his hand. A pathology report on the removed tissue
revealed that Land was suffering from severe chronic inflammation, focal
necrosis, and the presence of Pasteurella multocida, an organism that can cause
serious infection and even death. When his condition failed to improve, Land
underwent a second surgery, and, following that operation, he was diagnosed with
osteomyelitis of the third metacarpal of the left hand. The condition of Land’s
hand continued to deteriorate over the course of the next few weeks, and he
underwent additional surgeries to debride his metacarpal bone and totally replace
his metacarpophalangeal joint. None of those surgeries successfully repaired the
damage caused by the infection, however, and, ultimately, his middle finger had to
be amputated.
After losing his finger, Land filed suit against CIGNA in state court,
alleging that CIGNA was negligent in the care and treatment of his infection.
CIGNA removed the case to federal court, asserting that Land’s claims implicated
ERISA and therefore raised a federal question. Land moved to remand the case to
state court, but the district court denied that motion and granted CIGNA’s motion
4
to dismiss Land’s complaint without prejudice, determining that his state law
claims were completely preempted by ERISA. Land filed an amended complaint,
which also was dismissed without prejudice, and, shortly thereafter, he filed this
appeal.
STANDARD OF REVIEW
“We review de novo the district court’s grant of a motion to dismiss under
[Federal Rule of Civil Procedure] 12(b)(6) for failure to state a claim, accepting
the allegations in the complaint as true and construing them in the light most
favorable to the plaintiff.”2 Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003)
(per curiam). We also review the denial of a motion to remand de novo. See
Butero v. Royal Maccabees Life Ins. Co., 174 F.3d 1207, 1211 (11th Cir. 1999).
“We review de novo the district court’s ERISA preemption analysis.” Hall v. Blue
Cross/Blue Shield of Ala., 134 F.3d 1063, 1064–65 (11th Cir. 1998).
DISCUSSION
Essentially, this case is reduced to a jurisdictional issue – whether the
district court had original jurisdiction over Land’s claims, thereby making removal
2
Although the district court did not state in its order that it was granting CIGNA’s motion
to dismiss for failure to state a claim pursuant to Rule 12(b)(6), we assume that the court granted
the motion on this ground based upon CIGNA’s affirmative defense that Land’s claims were
subject to federal preemption. See Quiller v. Barclays Am./Credit, Inc., 727 F.2d 1067, 1069
(11th Cir. 1984) (recognizing that the affirmative defense of federal preemption can be the basis
of a Rule 12(b)(6) motion).
5
proper, or whether the court lacked jurisdiction and should have remanded the
case to state court. Land argues that because his claims were state law malpractice
claims, they were not preempted by ERISA and the district court therefore should
have granted his motion to remand. CIGNA, however, argues that Land’s
malpractice claims were claims challenging the denial of benefits and thus were
completely preempted by ERISA.
“A defendant may remove a case to federal court only if the district court
would have had jurisdiction over the case had the case been brought there
originally. A federal district court has original jurisdiction over diversity cases
and cases arising under federal law.” Kemp v. Int’l Bus. Machs. Corp., 109 F.3d
708, 711–12 (11th Cir. 1997) (citation omitted). In this case, there was no
diversity between the parties, so the district court had jurisdiction over the action
only if it was based upon a matter arising under federal law. See 28 U.S.C. §
1331.
“Ordinarily, a cause of action does not arise under federal law unless the
plaintiff’s well-pleaded complaint presents a federal question.” Hall, 134 F.3d at
1065 (internal quotation marks omitted). We have recognized, however, that
there is a qualification to the well-pleaded complaint rule: a doctrine
known as “complete preemption” or “super preemption.” Under that
doctrine, Congress may preempt an area of law so completely that any
6
complaint raising claims in that area is necessarily federal in character
and therefore necessarily presents a basis for federal court
jurisdiction.
Kemp, 109 F.3d at 712. Although super preemption is exceedingly rare, the
United States Supreme Court has held that Congress created such preemption in
section 502(a) of ERISA, 29 U.S.C. § 1132(a), and, therefore, all “causes of action
within the scope of the civil enforcement provisions of § 502(a) [are] removable to
federal court.” See Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 65–66 (1987).
Thus, if Land seeks relief that is available under section 502(a), there was federal
question jurisdiction and removal of his case to district court was appropriate. If
he did not seek such relief, however, the district court had no jurisdiction over his
claims and remand to state court was required.
Section 502(a)(1)(B) provides that an ERISA plan “participant or
beneficiary” may bring a civil action “to recover benefits due to him under the
terms of his plan, to enforce his rights under the terms of the plan, or to clarify his
rights to future benefits under the terms of the plan.” ERISA § 502(a)(1)(B), 29
U.S.C. § 1132(a)(1)(B). Therefore, to determine whether Land seeks relief under
section 502(a)(1)(B), we must consider whether his claims fall within the scope of
one of those three categories. As we do not believe that Land’s claims can be
characterized as claims seeking “to clarify his rights to future benefits” or “to
7
enforce his rights under the terms of [his health care] plan,” they must be
considered claims “to recover benefits” that were denied when the approval nurse
decided not to authorize inpatient treatment for his infection to fall under section
502(a)(1)(B) and thereby be completely preempted. Id.
We cannot ascertain whether Land’s claims are claims seeking to recover
benefits without first determining what type of decision the approval nurse made
when she denied authorization of inpatient treatment for Land’s infection. CIGNA
contends that this merely was an eligibility3 decision pertaining to Land’s benefits
under the plan, but Land asserts that it was a treatment decision relating to the
actual care of his infection. In resolving this issue, we rely heavily upon the
Supreme Court’s decision in Pegram v. Herdrich, 530 U.S. 211 (2000).
In Pegram, the Court held that a patient could not state a claim against her
HMO under section 502(a)(2) based upon her physician’s malpractice, because the
HMO did not act “as a fiduciary to the extent that it ma[de] mixed eligibility
decisions acting through its physicians.” Id. at 231. The plaintiff, Cynthia
Herdrich, became Dr. Lori Pegram’s patient through her HMO, which was owned
and operated by a group of physicians that included Dr. Pegram. Id. at 215. After
3
Courts have used the terms “eligibility” and “coverage” interchangeably, but for the sake
of clarity, we hereinafter refer to these types of decisions as eligibility decisions.
8
examining Herdrich, Dr. Pegram discovered that a mass in her abdomen was
inflamed, but rather than order an immediate ultrasound at a local facility, she
made Herdrich wait eight days until the ultrasound could be performed at a facility
more than fifty miles away. Id. During that period, Herdrich’s appendix ruptured,
and, as a result, she sued Dr. Pegram and the HMO for medical malpractice under
state law and for breach of fiduciary duty pursuant to section 502(a)(2), alleging
that the physicians’ ownership of the HMO created an incentive to make decisions
in their self-interest rather than in the interests of the plan participants. Id. at
215–16.
In addressing the merits of Herdrich’s claims, the Court first acknowledged
the unique way in which HMOs operate, noting that to control costs, “they
commonly require utilization review (in which specific treatment decisions are
reviewed by a decisionmaker other than the treating physician) and approval in
advance (precertification) for many types of care, keyed to standards of medical
necessity or the reasonableness of the proposed treatment.” Id. at 219. The
practices of utilization review and precertification require HMOs to make
decisions that blur the lines between an HMO’s role as an ERISA fiduciary and its
role as a health care provider. See id.
9
In its effort to characterize the substance of Herdrich’s claims, the Court
acknowledged the difficulty of distinguishing between the dual medical and
administrative roles of HMOs and identified the following types of HMO
decisions: eligibility decisions, treatment decisions, and mixed eligibility and
treatment decisions. Id. at 228–29. The differences between these types of
decisions were explained as follows:
What we will call pure “eligibility decisions” turn on the plan’s
coverage of a particular condition or medical procedure for its
treatment. “Treatment decisions,” by contrast, are choices about how
to go about diagnosing and treating a patient’s condition: given a
patient’s constellation of symptoms, what is the appropriate medical
response?
These decisions are often practically inextricable from one
another . . . . This is so not merely because, under a scheme like [the
utilization review process in this case], treatment and eligibility
decisions are made by the same person, the treating physician. It is so
because a great many and possibly most coverage questions are not
simple yes-or-no questions, like whether appendicitis is a covered
condition (when there is no dispute that a patient has appendicitis), or
whether acupuncture is a covered procedure for pain relief (when the
claim of pain is unchallenged). The more common coverage question
is a when-and-how question. Although coverage for many conditions
will be clear and various treatment options will be indisputably
compensable, physicians still must decide what to do in particular
cases. The issue may be, say, whether one treatment option is so
superior to another under the circumstances, and needed so promptly,
that a decision to proceed with it would meet the medical necessity
requirement that conditions the HMO’s obligation to provide or pay
for that particular procedure at that time in that case. . . . In practical
terms, these eligibility decisions cannot be untangled from
physicians’ judgments about reasonable medical treatment . . . . The
10
eligibility decision and the treatment decision [a]re inextricably
mixed, as they are in countless medical administrative decisions every
day.
Id. The Court thus concluded that Dr. Pegram’s decision was a mixed eligibility
and treatment decision, which was not fiduciary in nature and therefore did not
state a claim for breach of fiduciary duty under section 502(a)(2). See id. at 231,
237.
Although Pegram is not dispositive because the issue of preemption was not
before the Court, we find compelling persuasive force in the Court’s unanimous
ruling and believe that it provides us with guidance in determining the true nature
of Land’s claims. Thus, with Pegram’s description of the three types of HMO
decisions in mind, we turn to the question of whether the approval nurse’s
decision to authorize outpatient rather than inpatient treatment of Land’s infection
was an eligibility decision, a treatment decision, or a mixed decision. To answer
this question, we must parse the allegations of Land’s amended complaint. See id.
at 227.
We believe that the crux of Land’s claim is found in the following
allegations of the amended complaint:
16. Although Defendant, CIGNA, approved the intravenous
antibiotic therapy benefits to the Plaintiff, CIGNA’s approval nurse
made a medical decision that the intravenous therapy should be
11
provided on an “out-patient” basis in Plaintiff’s home instead of as an
“in-patient” at St. Vincent’s Medical Center.
17. This CIGNA approval nurse based her medical decision for
treatment on her classification of the wound as a localized infection
rather than the correct diagnosis made by Dr. Crick of cellulitis (a
widespread, non-localized infection.)[.]
18. Defendant’s substitution of a lower quality of care (“out-
patient” therapy as opposed to “in-patient” therapy,) was the direct
and proximate cause of the failure to timely and appropriately treat
the Plaintiff’s ongoing, widespread infection, as more specifically set
forth in the allegations below.
19. The Defendant, CIGNA, in its capacity as a health care
provider, had a duty to provide appropriate medical treatment under
the prevailing standard of medical care in Florida, and assumed the
duty when the approval nurse made her diagnosis and treatment
decision.
20. On January 16, 2001, Defendant, CIGNA, made a
negligent diagnosis and negligent treatment decision when the
approval nurse elected to have Plaintiff treated in his home for a
localized infection, rather than at St. Vincent’s Medical Center for
cellulitis (the correct diagnosis).
Taking these allegations as true, as we are required to do when considering
the dismissal of a complaint, see Hill, 321 F.3d at 1335, we conclude that the
approval nurse made a mixed eligibility and treatment decision, because the
decision was not a simple yes-or-no eligibility determination about whether
CIGNA would cover treatment for cellulitis; rather, the eligibility decision was
intertwined with the approval nurse’s medical decision that inpatient treatment of
Land’s infection was unnecessary. Indeed, Land alleges that inpatient treatment of
his infection would have been covered had the approval nurse correctly
12
determined that he was suffering from cellulitis rather than a localized infection.
Based upon that allegation, we believe that the approval nurse “made a patient-
specific prescription of appropriate treatment by denying one treatment and
authorizing another.” Cicio v. Does, 321 F.3d 83, 104 (2d Cir. 2003).
This is just the kind of decision about “the reasonableness of a certain
treatment, and the emergency character of a medical condition” that the Supreme
Court has identified as a mixed eligibility and treatment decision. See Pegram,
530 U.S. at 230. Land’s allegations thus can be analogized to the way Herdrich’s
physician
decided (wrongly, as it turned out) that Herdrich’s condition did not
warrant immediate action; the consequence of that medical
determination was that [the HMO] would not cover immediate care,
whereas it would have done so if Dr. Pegram had made the proper
diagnosis and judgment to treat.
Id. at 229. Therefore, because the approval nurse made a medical decision that
inpatient care was not “so superior . . . under the circumstances, and needed so
promptly, that a decision to proceed with it would meet the medical necessity
requirement that conditions the HMO’s obligation to provide or pay for that
particular procedure at that time in that case,” we find that the decision was a
mixed decision. Id.
13
Having determined that Land’s malpractice claims were not based upon a
pure eligibility decision, but rather upon a mixed decision of eligibility and
treatment, we must consider whether mixed decision claims are claims “to recover
benefits” under section 502(a)(1)(B) and therefore completely preempted. Once
again, we find the reasoning of Pegram persuasive. In reaching its conclusion that
an HMO does not act as a fiduciary when it makes a mixed eligibility and
treatment decision, the Court reiterated its prior holding “that, in the field of health
care, a subject of traditional state regulation, there is no ERISA preemption
without clear manifestation of congressional purpose.” Id. at 237. The Court
therefore expressed strong doubt that Congress intended to federalize and preempt
state law malpractice claims by converting them to fiduciary claims under section
502(a)(2) or to “apply[] an ERISA standard of reasonable medical skill.”4 Id. at
236. In our view, it makes little sense to believe that Congress did not intend to
federalize malpractice claims under section 502(a)(2), but intended to do so under
section 502(a)(1)(B).
4
Although the Court expressed doubt that Congress intended for ERISA to preempt
medical malpractice claims, it was not called upon to decide the issue of preemption in that case
and therefore declined to consider whether Herdrich could have stated a claim under section
502(a)(1)(B) to recover benefits, or whether her state law malpractice claim was preempted by
section 502(a)(1)(B). See Pegram, 530 U.S. at 229 n.9.
14
Indeed, our own precedent casts doubt upon the idea that section
502(a)(1)(B) preempts medical malpractice claims. As that section allows a plan
beneficiary or participant “to recover benefits due to him under the terms of his
plan,” ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B), we have held that claims
seeking to recover benefits under section 502(a)(1)(B) essentially are contract
claims, see Harrison v. Digital Health Plan, 183 F.3d 1235, 1241 (11th Cir. 1999)
(per curiam) (finding that “an employer’s obligation to provide medical benefits
under an ERISA plan is contractual. A plaintiff’s action to enforce the medical
benefits provision of a self-funded ERISA plan is essentially a lawsuit by an
employee against her employer for breach of contract” (citation omitted).); see
also Horton v. Reliance Standard Life Ins. Co., 141 F.3d 1038, 1040 (11th Cir.
1998) (per curiam) (“A plaintiff suing under [section 502(a)(1)(B)] bears the
burden of proving his entitlement to contractual benefits.”). In this case, however,
we do not believe that Land’s claims can be characterized as contract claims,
because he does not allege that he was denied medical benefits and he does not
seek reimbursement for his medical expenses; rather, he claims that the HMO’s
failure to diagnose his condition correctly and authorize the proper medical
treatment resulted in the loss of his finger. Land’s claims, therefore, are tort
15
claims based upon the duty of care rather than contract claims based solely upon a
denial of benefits.5
As a result, Land’s claims do not fall “within the scope of the civil
enforcement provisions of § 502(a),” Taylor, 481 U.S. at 66, and thus are not
completely preempted.6 Therefore, Land’s complaint did not present a federal
5
Because we find that Land is not challenging a denial of benefits, we believe that
CIGNA’s reliance upon the Supreme Court’s decision in Pilot Life Insurance Co. v. Dedeaux,
481 U.S. 41 (1987), is misplaced. In that case, the Court held that “the civil enforcement scheme
of ERISA makes clear its intention that all suits brought by beneficiaries or participants asserting
improper processing of claims under ERISA-regulated plans be treated as federal questions
governed by § 502(a).” Id. at 56. The plaintiff in that case challenged his insurance company’s
termination of his disability benefits, asserting state law claims for breach of contract, breach of
fiduciary duty, and fraud in the inducement. Id. at 43. The Court held that Ҥ 502(a) [was
intended to] be the exclusive vehicle for actions by ERISA-plan participants and beneficiaries
asserting improper processing of a claim for benefits” and thus concluded that the plaintiff’s state
law claims were preempted. Id. at 52. As we do not believe that Land’s malpractice action is
based solely upon the improper processing of a claim, Pilot Life Insurance Co. does not foreclose
our holding in this case.
6
We therefore reach the same result as the Second and Fifth Circuits. See Cicio, 321 F.3d
at 102 (“conclud[ing] that a state law malpractice action, if based on a mixed eligibility and
treatment decision, is not subject to ERISA preemption when that state law cause of action
challenges an allegedly flawed medical judgment as applied to a particular patient’s symptoms”
(internal quotation marks omitted)); Roark v. Humana, Inc., 307 F.3d 298, 309 (5th Cir. 2002)
(finding that “ERISA provides no cause of action for medical malpractice claims against an
HMO” and that such claims therefore are not preempted by section 502(a)(1)(B)), petition for
cert. filed, 71 U.S.L.W. 3791 (U.S. June 3, 2003) (No. 02-1826).
We find additional support for our holding in decisions of the Fourth and Third Circuits,
which cited Pegram with approval, but nevertheless concluded that the plaintiffs’ claims were
preempted. See Marks v. Watters, 322 F.3d 316, 324, 327 (4th Cir. 2003) (recognizing Pegram’s
teaching that “mixed eligibility and treatment decisions as a practical matter reduce to the stuff of
State malpractice claims and not to traditional breach of fiduciary duty claims,” but determining
that the plaintiff’s HMO did not make a treatment determination when the decision to release
him from psychiatric care was made solely by his physician and the HMO case manager had no
input in that decision); Pryzbowski v. U.S. Healthcare, Inc., 245 F.3d 266, 274 (3d Cir. 2001)
(citing Pegram with approval and reiterating the validity of its prior holdings that state law
16
question and removal jurisdiction was inappropriate. The district court thus
lacked subject matter jurisdiction over this case and remand to state court was
required.7
CONCLUSION
Based upon the foregoing, we VACATE the district court’s order granting
the motion to dismiss and REMAND to the district court with instructions to
REMAND this case to state court.
claims are not preempted when “the HMO . . . assume[s] the dual role of an administrator of
benefits and a provider of medical services,” but finding that the plaintiff’s claims “[we]re
limited to [the HMO’s] delay in approving benefits, conduct falling squarely within [the]
administrative function”).
7
Our decision that Land’s claims are not subject to complete preemption does not end the
preemption inquiry, because his claims still may be subject to defensive preemption (also known
as conflict preemption) under section 514(a) of ERISA, 29 U.S.C. § 1144(a). See Garren v. John
Hancock Mut. Life Ins. Co., 114 F.3d 186, 187 (11th Cir. 1997) (per curiam) (holding that under
section 514, a state law claim is subject to “ERISA preemption whenever the alleged conduct at
issue is intertwined with the refusal to pay benefits”). Because the district court does not have
jurisdiction over this case, however, this will be a matter for the state court to decide upon
remand, and our decision today should not be read to express any opinion as to whether Land’s
claim is conflict preempted. See Kemp, 109 F.3d at 714 (noting that if a federal court lacks
jurisdiction, it “cannot decide a preemption defense”).
17