Bonnie Cicio, Individually and as Administratrix of the Estate of Carmine Cicio v. John Does 1-8, Vytra Healthcare, and Brent Spears, M.D.

to be unfit to drive a truck that applicants perception of these indi-

supports Hunt’s substantially

viduals as limited their truck; potential impu- no

ability to drive Thus, required.

tation is the EEOC has

provided sufficient evidence that a factfin- reasonably

der could conclude that Hunt rejected applicants as sub-

regarded major in the

stantially activity limited life working, regarded because Hunt them

as unfit to be truck drivers.

CONCLUSION ample support I find

Because that Hunt regard-

record for the assertion applicants substantially

ed the as d limited major activity working, life

thus, applicants were disabled within ADA, meaning respectfully I

dissent. CICIO, individually

Bonnie and as Ad

ministratrix of the Estate of Car Cicio, Plaintiff-Appellant,

mine 1-8, Defendants,

John DOES

Vytra Healthcare, Spears, and Brent

M.D., Defendants-Appellees.

Docket No. 01-9248. Appeals,

United States Court of

Second Circuit.

Argued: June 2002.

Decided: Feb. 2003.

As Amended: March Court, granting

to New York 12(b)(6) motion of the the Fed.R.Civ.P. Vytra (“Vytra”) defendants Healthcare Spears Dr. Brent the com to dismiss upon for failure to a claim plaint state Vy can granted. relief Cicio v. which Healthcare, 288, 293 F.Supp.2d tra (E.D.N.Y.2001). court, adopt The district report the March and recom ing Magistrate E. Thomas Judge mendation 293, plain id. at that all of the Boyle, held (Joel Trueman, Mineóla, N.Y. L. David claims, which from the defen tiffs derive Amicizia, Greshin, Ziegler & Ziegler, J. plain dants-appellees’ deny the decision counsel, Smithtown, NY), LLP, for of Cicio, spouse, tiffs deceased Carmine Plaintiff-Appellant. for a preauthorization requested Detert, Bernstein, Sedgwick, H. Michael Em procedure, preempted by were (Colleen Arnold, York, N.Y. Moran & New Security ployee Retirement Income Act counsel), Tan, Defendants-Appel- A. for 832, amended, 88 Stat. as U.S.C. lees. (“ERISA”). Cicio, seq. § et Orin, Anderson, R. Rhonda D. Eugene ap at 293. F.Supp.2d plaintiff The now Gallagher, A. Anderson Kill & 01- Michele peals ground on the sole that her claims DC, ick, L.L.P., a submitted Washington, preempted by are not ERISA. Medical for Amici Curiae American brief with agree plaintiff We Society and Medical Association dismissing district court erred in the medi- of New York. State stage of the cal claims at this Zaremski, Kamensky & Rubin- Miles J. conclude, however, that proceedings. We Lincolnwood, stein, IL, a brief submitted court correctly the district dismissed College Amici of Le- for Curiae American claims on the plaintiffs that are based Medicine. gal alleged misrepresentations or defendants’ Iselin, Greenberg, Harold N. Hank M. alleged negligence delaying coverage in White, LLP, NY, Albany, submitted Couch respect with medi- decision to Mr. Cicio’s Amici Associa- for Curiae American brief Accordingly, part cal care. we affirm in York Health tion of Health Plans and New part. and remand Plan Association. SACK, CALABRESI, and B.D. Before: BACKGROUND Jr., PARKER, Judges. Circuit Treatment

Carmine Cicio’sIllness and part Judge dissents CALABRESI appeal this case to us on Because comes separate opinion. grant of a motion to discuss from SACK, Judge. Circuit 12(b)(6), Fed.R.Civ.P. we review the they alleged by from an have appeals Plaintiff Bonnie facts been Cicio See, plaintiff. e.g., Holding, Inc. judgment October United ICOM (2d WorldCom,Inc., Dis- District Court for the Eastern States MCI (Joanna Cir.2001). plaintiffs Judge) March Seybert, trict of New York Cicio, with spouse, diagnosed her action denying her motion to remand Carmine multiple myeloma.1 began He only Medically chemother- Necessary Vytra Services ” time, apy following month. At that III, 3.5(a). .... § Id. Art. Vytra also plaintiff both he and the health received disclaims the obligation provide “[a]ny pursuant to an “Agreement care benefits procedure which, or service in the judg (the Comprehensive for Health Services” Vytra’s Director, ment of Medical exper “Plan”) by Vytra, administered an “Indi- imental or generally is not recognized to vidual Practice Association—Health Main- particular condition, be effective diag ” Organization.”2 plaintiffs tenance The nosis, body IX, area .... Id. Art. Bank, employer, North pur- Fork had 9.3(f). Plan, Vytra. chased the Plan from The January On undisputed, “employee is now is an some ten benefit months 1002(3) plan,” as defined in 29 U.S.C. after Carmine Cicio’s disease was first di- ERISA.3 agnosed, treating his oncologist, Dr. Ed- Samuel, ward wrote a detailed letter to agreement Plan’s subscriber ex Vytra “requesting] insurance approval plains Vytra provides Plan enrollees treatment of Mr. Cicio high with alia, dose che- with, inter “[diagnosis and treatment motherapy supported disease, peripheral injury or other conditions.” blood stem cell Agreement Comprehensive transplantation, for in a Health tan- III, 3.1(b). transplant, Servs. Art. The Plan cau dem double diagnosis for a tions, however, “Vytra provide shall multiple myeloma.”4 Letter from Edward "Multiple myeloma prev- 1. is the second most In an “Individual Practice Association— represents approxi- alent blood cancer and Organization," Health "physi- Maintenance mately of all cancers and of all 1% 2% cancer cians’ services are established with a rela- Multiple Myeloma deaths." Research Foun- tively large generally number of small or me- dation, Statistics, http://www.multiple- group practices, dium-sized physicians myeloma.org/aboutmyeloma/statistics.html receiving type some of discounted fee-for-ser- 16, (last 2002). September visited HMO, payment vice from the rather than ... (in- salaried reimbursement ...." Id. at 81 independent practice 2. An association ais omitted). ternal citation physician group "local comprised of physicians hospital's who are active on [a] meaning A within the of ERISA is "a medical staff' and contract awith health rights set of rules that define the of a benefi- organization provide maintenance to medical ciary provide for their enforcement. al., Wing services. Kenneth R. et The Law governing premiums, Rules collection of defi- and American Health Care 1005-06 benefits, claims, nition of submission of al., (citing Integrated Carl H. Hitchner et De- disagreements resolution of over entitlement livery Systems: Survey Organizational A provisions to services are the sorts of Models, 273, 29 Wake L. Forest Rev. 223, plan.” Pegram, constitute a 530 U.S. at (1994)). Organizations Health Maintenance Here, "Agreement 120 S.Ct. 2143. for ("HMOs”) are entities that “offer a form of Comprehensive Health Services” fulfills that health insurance [that differs from tradition- function. al medical .... insurance] HMOs are not guaranteeing to reimburse insured for peripheral rather, transplantation 4. A blood stem cell expenses; obligation their procedure containing "[a] is in which blood actually pro- the insured more is direct—to by apheresis mobilized stem cells is collected vide medical services to them." Id. at 77 omitted; (internal procedure in which blood emphasis origi- [a citation is removed from donor, nal); Herdrich, Pegram component, e.g., a see also blood white blood cells, 211, 218, out, 2143, separated remaining and the 147 L.Ed.2d 164 (2000) ("The donor], defining feature blood is reinfused back HMO is into stored, receipt patient following high-dose of a fixed fee for each and infused en- che motherapy pro- therapy.” Multiple rolled under terms of a contract to or radiation needed."). Foundation, specified vide Myeloma Myeloma health care if Research Dic- 28, January method of treatment.” Vytra dated other available T. Samuel (emphasis forth Carmine original). 1. Dr. Samuel set Id. at While this treat- history prior “single clinical made the one reference to Cicio’s letter chemotherapy ments, including type one above, it transplant methodologies” quoted failed, why “a explaining before that had made clear Dr. Samuel viewed that ... had to strategy of treatment change in appropriate as a treatment procedure less explained And Dr. Samuel be made.” Id. than cell for Mr. Cicio a double stem trans- good that Mr. was thought Cicio why he approval plant requesting and was not Id. at 2. transplant. for the “candidate” at 1. it. Id. later, in a letter dated a month

Almost later, Three weeks in a letter dated di- Vytra’s medical February 25, 1998, Spears tersely replied March Dr. rector, denied Spears, defendant Dr. peer on clinical review of “[b]ased only that request, stating Dr. Samuel’s material, [presumably additional procedure a covered bene- sought “not by Dr. in his studies referenced Samuel plan which according fit to this member’s letter,] single cell March stem trans- experimental/investigational [that] states been “the plant approved” original has but from procedures are not Letter covered.” request transplant [a] tandem stem cell Spears to Edward T. Samuel Brent W. denied.” Letter from Brent remains W. February at 1. March On dated Spears to Edward T. Samuel dated March Dr. attempts to contact after unsuccessful who, Cicio, according at 1. Mr. wrote Spears by telephone, Dr. Samuel complaint, bywas March 25 no longer to reconsid- Spears “appealing [him] transplant, a candidate for cell died stem T. er from Edward decision.” Letter [his] later, May 11, than less two months on Spears March Samuel to Brent W. dated ¶ Compl. 1998. 31. argued Dr. at 1-2. Samuel Complaint The multiple myeloma of The treatment on complaint, Bonnie Cicio filed a behalf chemotherapy/autologous high-dose and her late of herself the estate of hus- transplantation is a well-estab- stem cell Court, band, in New York Suf- supe- with a lished method of treatment Spears, County, Vytra, Dr. naming folk rate, response response complete rior eight physicians employed and unknown interval, rate, therapy post disease-free (“John 1-8”) by Vytra Does as defendants. cure in possibly long-term even and complaint eighteen The contains counts al- compared to standard patients, some malpractice, negligence, “medical leging therapies. These are true for sin- facts gross negligence, intentional infliction of transplant methodologies, and gle distress, negligent emotional infliction of response and rates statistical rate CR distress, misrepresentation, emotional improved even further with double are contract, faith breach breach bad transplants. insurance contract and violation New argued, Id. further on medical He based Spears’s law” York State based on letter, in his that “treat- literature listed Mr. denial treatment to Cicio. high-dose chemotherapy ment NOW with 30, 2000, May autologous transplant stem ... offers On defendants re and proceedings than from New [Mr. better chances of survival moved York Cicio] 16, 2002). tionary, htlp://www.multiplemyelo- September at (last ma.org/aboutmyeloma/defs.html visited state court to the United States District “[t]here no evidence that Congress in- for the Court Eastern District of New quasi-medical/adminis- tended that these pursuant York to 28 1441. U.S.C. On trative decisions plan made adminis- 12(b)(6) they June filed a Rule trator survive preemption.” ERISA Id. complaint motion dismiss the for failure if malpractice Even such claims were not to state a claim. preempted, Magistrate Judge Boyle con- tinued, Ms. Cicio had challenged Magistrate The “the Judge’s Report and Rec- quality of the care but rather ommendation and the District Court’s De- made,” benefits decision that cision and hence alleged had the kind of claim that The case was referred the district preempted. at Id. Magistrate court E. Judge Thomas (1) Boyle, jurisdic- who found that removal plaintiff formally objected to the obtained, tion recommended that magistrate judge’s report and recommen- 12(b)(6) the defendants’ Rule motion be dation. The district court nonetheless Cicio, granted. F.Supp.2d adopted 294-302. it in full. Id. at 291. The court Magistrate Judge Boyle reasoned that the agreed that Vytra’s health was a plaintiffs state law preempted claims were plan” “benefit as defined by ERISA. Id. 502(a) 514(a) ERISA, §§ under 29 at 292. The court disagreed also with the 1132(a)(1)(B) 1144(a), §§ U.S.C. & because renewed contention that Pegram, plaintiff sought “to enforce the terms improper claims for medical care are not employee plan” [an welfare benefit] preempted by ERISA. It concluded in- that her scope claims were “within the of’ plaintiffs stead that because all of the 502(a). Cicio, F.Supp.2d 296-301. claims eligibility “involve[d] He “[djefendants’ concluded both removal and dis- for coverage,” such that the missal required. roles, were therefore Id. at including Spears, that of Dr. were 302. He plain- administrative,” also recommended that the these claims concerned deceptive tiffs state law practices business benefits decisions and thus were also claim be dismissed because was “exceed- preempted. Id. at 293.

ingly vague.” Id. at 301-02. plaintiff appeals. The concluding, so magistrate judge the rejected several counter-arguments prof DISCUSSION First, fered rejected Ms. Cicio. he I. Standard of Review argument Vytra’s her that Agreement for Comprehensive Health Services was not a We review a district court’s deni “plan” governed by ERISA. Id. at al of motion to remand de novo. Whit Inc., Then he declined plain to endorse the aker v. Telecasting, Am. 261 F.3d (2d Cir.2001). argument 196, tiffs that malprac her medical We also the review tice claims were not preempted because district grant court’s decision to a Rule 12(b)(6) they eligibility concerned “mixed and motion de novo. Kalnit v. Ei decisions,” chler, (2d Cir.2001). 131, treatment as described in Pe 264 F.3d 137-38 Herdrich, 211, gram 530 U.S. 120 Dismissal is not warranted “no unless re (2000). 147 L.Ed.2d 164 granted Ci lief could be set of facts cio, 208 F.Supp.2d proved at 300-01. While could be consistent with the many decisions health pro allegations.” insurance King Spalding, Hishon v. & “involve[ viders some medical judg ] 467 U.S. 104 S.Ct. 81 L.Ed.2d ment,” said, (1984). Magistrate Judge Boyle We thus all factual alie- “tak[e] ap true The thus complaint remaining as claims on

gations [verified] the (1) pertain in timeli peal substance the all reasonable inferences eonstru[e] and Spears’s relating ness of decisions T plaintiffs.” Conboy of v. AT & favor ¶¶ treatment, 58-81; Compl. Mr. see Cicio’s (2d Cir.2001) (cit- 242, 246 Corp., 241 F.3d (2) misleading Vy allegedly nature of 45-46, Gibson, ing Conley v. Plan, representations tra’s about the see (1957)). 99, 2 L.Ed.2d 80 ¶¶ 82-102; and, Compl. quality of decision, any, if the medical made The Claims II. Nature Plaintiffs respect defendants Cicio's Mr. ¶¶ treatment, 33-57, Compl. 103-17.5 see variety plaintiff of Because the asserts Cicio, judge, magistrate Both the claims, of we must first determine which court, F.Supp.2d and the district appeal. initially them remain on We note id., complaint determined that did plaintiffs deceptive prac- business challenge quality medical deci long- claim tices and contract claims are no sion because “all of the state law Plaintiffs magistrate judge reject- us. er before The Vytra’s approve center claims on refusal to ¶¶ 127-29, former, Compl. ed the see coverage and stem adverse thus from an Cicio, excessively vague, F.Supp.2d determination,” disagree. benefits id. We 301-02, a conclusion Ms. does not Cicio 12(b)(6) A Rule inappropri dismissal “is challenge appeal. on And in her brief beyond doubt, ate unless it even appears us, Ms. Cicio renounces her of con- breach construed, complaint liberally when the tract claim bad faith of insur- and breach plaintiff prove can no set of facts Plaintiff-Appellant’s ance contract claim. [her] which would entitle to relief.” Sec. although Br. at 1. as- Finally, Ms. Cicio Seidman, Corp. Investor Prot. v. BDO causes calls serts of action what she (2d (inter LLP, Cir.2000) physician- interference with tortious omitted). nal citation quotation marks ¶¶ 69-76, relationship, patient Compl. standard, Under' broad Ms. Cicio’s ¶¶ 77-81, fiduciary duty, neg- id. breach complaint identifies medical decision ¶¶ supervision employees, ligent id. 103- predicate may be the for a medi state-law 06, and infliction negligent intentional malpractice cal claim. ¶¶ distress, 107-17, emotional id. recovery underlying facts these theories of complaint that Dr. alleges entirely are within other subsumed her Spears physicians employed by and other negligence claims. We treat therefore Vytra degree “failed to exercise the of care plead- causes action these as alternative required of and were in the negligent them ings remaining of her delivery provision medically neces ¶ negligence sary Compl. claims. possible care.” It is (1992). disagree suggestion objection, 5. We the defendants’ Ms. Cicio filed her plaintiff perfect appeal that the failed to magistrate judge's report that the and recom- magistrate report judge’s erroneous,” and recommen “clearly mendation was within any party "A dation. must serve and file filed, days report ten after the hence was objections magistrate judge's proposed to a meeting obligation 28 U.S.C. her findings and within ten recommendations 636(b)(1) 72(a). Our and Fed.R.Civ.P. days being report.... after served with the specification cases have mandated no further timely object report to to a waives [FJailure objection, of the basis for and we decline to report.” judicial further review of the require timely objection in a additional detail Johnson, (2d Cir.) Frank v. magistrate report judge's to a and recommen- denied, 636(b)(1)), (citing 28 U.S.C. cert. dation. L.Ed.2d Spears’s Dr. determina- could have rested either on an attacking analysis in stem cell trans- appropriate that a “tandem double treatment for Mr. tion Cicio’s condition, “experimental/investigation- specific was an plant” on whether in the ],” procedure! questioning al Ms. Cicio is transplant abstract a double stem cell to Spears’s Dr. assessment of the then- only multiple myeloma experimental treat was science without current state of medical given current state of the medical art. particular regard Therefore, to Mr. Cicio’s medical there is at least a possibility affliction. This kind of decision about the February that the 23rd letter reflected a scope generally available benefits lacks medical decision. application judg- of medical significant impression that the February 23rd and, case as the dis- ment to Mr. Cicio’s may letter have embodied a medical deci- noted, correctly would be treat- trict court strengthened sion is subsequent scope simply ed as a decision about the correspondence. response Dr. Samuel’s correspondence But between benefits. appropriateness stressed the of double Spears attached to the Drs. Samuel transplants light stem cell in of Mr. Cicio’s ¶¶ 15, 19, complaint, Compl. see 26 & particular symptoms. Spears’s Dr. an- reference,6 incorporated therein de- “[bjased swer, peer on the clinical above, strongly suggests that Ms. scribed information, review of the additional a sin- in contending additionally or Cicio is gle transplant approved stem cell has been Dr. Spears, making neg- alternative that original request [but] the for tandem stem Mr. ligent medical decisions about Cicio’s denied,” transplant cell remains Letter condition, mal- engaged Spears from Brent W. Edward T. Sam- we practice. The liberal construction are 25, 1998, 1, appears uel dated March required give complaint requires us appropriate reflect a decision about an lev- understanding to consider this of the alle- By denying el of care. one treatment and it contains. gations authorizing another that Dr. Samuel had request approval In his for treat- specifically requested, Spears Dr. 28, 1998, Dr. January

ment dated Samuel engaged least seems to have been Director, provided Dr. Vytra’s Medical prescription of an patient-specific appro- Spears, thorough description with a of the treatment, and, priate ultimately, a medi- Mr. history case Cicio’s illness. Letter single cal decision that a stem cell trans- Vytra from Edward T. Samuel dated plant appropriate was the treatment January at 1-3. This information Mr. Cicio. permitted Spears at least to make a regarding stage litigation, reading medical determination Ci- At Mr. aggre- plaintiffs complaint cio’s treatment on the basis of his and the attach- then, symptoms. Spears gate together, And while Dr. ments thereto we conclude reply only requested plaintiff alleged stated in has that the de- “procedure impli- is not covered benefit accord- fendants made a decision that could ing plan,” duty concerning quali- to this member’s Letter from cate a state law Spears ty decision-making, Brent W. to Edward T. Samuel of medical in addition 23, 1998, February independent dated at his decision to and of her claims concern- 10(c) ("Statements any 6. See Fed.R.Civ.P. in a written instrument which is an exhibit to pleading may adopted by be reference in a pleading part pur- a a thereof for all is part pleading different of the same or in an- poses.”). pleading any copy other or in motion. A 92 law.”). with re- But all eighteen of benefits eral causes

ing the administration complaint course of care. in Ms. sound her late husband’s action Cicio’s spect to York, federal, not law. And while the New not, however, any draw conclu- doWe principal here rests on defendants’ defense availability of a about the sion preemption only if “the grounds, federal New in these circumstances under claim for decision raised a question [was] law, the elements any or whether York preemption against a federal defense” claim, exists, would be a if it of such claim, “arising subject law no under” state in this alleged as satisfied facts jurisdiction matter Franchise would exist. that, pur- only conclude for the case. We Bd., 463 U.S. Tax 103 S.Ct. 2841. 12(b)(6) motion, the poses of Rule would, to federal Removal district court alleged more than adverse plaintiff has circumstances, improper. such alleged also decision. has benefits She negligent med- that the defendants made complaint may Ms. Cicio’s nonethe respect to the ical determination with § subject juris less establish 1331 matter of her treatment late husband. pursuant ability diction federal courts’ complaint” to “recharacterize law state Subject III. Matter Jurisdiction law, under” “arising Taylor, 481 federal that defen- The district court concluded U.S. under the “com complaint to federal dants’ removal plete preemption” jurisdiction. doctrine of proper. agree. court was We Congress ‘complete mandates “[W]hen law, specific in a preemption’ area of the A. Removal Jurisdiction complaint raising civil a state law 1441(b), § to 28 under Pursuant U.S.C. in that area necessity claim is of so federal which this case was removed from state in character under federal arises court, which “[a]ny federal civil action of permits ... and law removal to federal original have district courts [federal] Plumbing § under 28 1441.” court U.S.C. jurisdiction 1331] [under 28 U.S.C. Co., Indus. Bd. v. E.W. Howell ” .... 1331 in shall be removable Section (2d Cir.1997). Complete preemp 66 courts provides turn district “[t]he prevents plaintiffs “deny[ing] tion from all original jurisdiction have civil shall defendant access to federal court if the Constitution, arising actions federal, complaint actual nature of the is laws, or treaties of States.” 28 the United by artfully pleading complaint” as includ § 1331. U.S.C. ing solely state law v. Pru claims. Jass Plan, Inc., Health Care F.3d dential Thus, “a remove a may defendant (7th Cir.1996) (internal 1482, 1488 citation [pursuant case to federal court omitted). punctuation turn first to We 1441(b)] complaint unless plaintiffs complete preemption consider the doctrine that the under’ fed- establishes case ‘arises apply it to and then the circumstances eral law.” Tax Bd. v. Constr. Franchise case at bar. 1, 10, Trust, Laborers Vacation (1983) (em- 2841, 77 L.Ed.2d 420 S.Ct. Complete Preemption B. and ERISA omitted); Ins. phasis accord Metro. Life Complete Taylor, preemption respect Co. v. U.S. (1987) (“It ERISA, long L.Ed.2d un consequently “arising subject that a action arises matter jurisdiction settled law cause of der” after re plaintiffs court, law state only prerequi under federal when the moval from has two well-pleaded complaint issues of fed- state-law action arises “[A] raises sites. cause of

93 meaning Glossing under federal law within the of 28 the “reference to” language of 1331, Shaw, § removable 28 and is explained U.S.C. Court has (1) 1441, § if the cause of action is that “[w]here U.S.C. a State’s law acts immediate- preempted by ly based on a state law that is and exclusively upon plans ... ERISA ERISA ‘conflict’ or ‘substantive’ or where plans [so-called the existence of ERISA (2) the cause of action is preemption], operation essential to the law’s ... scope ‘within the of the civil enforcement ‘reference’ will result in pre-emption.” 502(a), § provisions’ of ERISA 29 U.S.C. Cal. Div. Labor Standards Enforcement 1132(a).” Lin, 74, N.A., § 94 Romney Dillingham 316, v. F.3d 78 v. Constr. /”) (2d Cir.1996) (internal 325, (1997) (“Romney 832, cita 117 S.Ct. 136 L.Ed.2d 791 (internal omitted), denied, omitted). reh’g tion 105 F.3d 806 citations We find no (2d Cir.) II”), denied., (“Romney cert. 522 such reference here. Because the state 906, 263, Cicio, by U.S. 118 S.Ct. 139 L.Ed.2d 189 laws invoked Ms. such as that (1997); Capital doctrine, accord Marcella v. Dist. respecting Plan, Inc., Physicians’ Health 293 F.3d act immediately neither nor exclusively on (2d Cir.2002). 42, 46 plans ERISA plans because such are not operation, “essential to” the laws’ we Preemption. To sat “Conflict” question need consider this no further. isfy part complete the first of the test for law preemption, state claims must be sub But a state law is also conflict (or “substantive”) ject pre preempted to “conflict” if it has a “connection with” an 514(a) emption 147, plan. Egelhoff, ERISA.7 Section ERISA 532 U.S. provides “super 121 requisite ERISA ERISA S.Ct. 1322. The connection any all laws if employee sede[s] State insofar as exists a law “mandates benefit may they pro now or hereafter relate to structures or their administration or benefit, employee plan described section vides alternative enforcement mechanisms 1003(a) title,” Bd., exceptions Plumbing [to this Indus. 126 ERISA].” 1144(a) (em relevant here. N.Y. (quoting 29 U.S.C. F.3d at 67 State Conference 1002(1) added); phasis (defining id. Blue Cross & Blue Shield Plans v. of. Co., plan” “employee welfare benefit to include Travelers Ins. U.S. fund, 1671, (1995);

“any plan, program or ... estab S.Ct. L.Ed.2d 695 inter omitted); employer punctuation lished or maintained an or nal accord HMI McGowan, employee pur ... for the organization Sys., Mech. Inc. v. 266 F.3d (2d Cir.2001). 142, pose providing participants for its or analysis, medical, surgical, objectives their beneficiaries court both to the “look[s] benefits”). hospital guide scope care or state law statute to the “[A] ERISA Congress to an ‘if it relates ERISA has the state law that understood connection with or reference to such would survive as well as to the nature of ” 141, plan.’ Egelhoff Egelhoff, v. the effect of the state law on U.S. 147, 121 Constr., plans.” Dillingham 149 L.Ed.2d 264 519 U.S. at (internal Lines, Inc., (quoting Shaw v. Delta Air 117 S.Ct. 832 citations and omitted). punctuation Complete preemp 77 L.Ed.2d 490 U.S. (1983)). exists, hand, tion in the case at if it must preemption Darcangelo 7. “Conflict” arises when federal sion. See Communica- Verizon supremacy tions, Inc., constitutionally (4th law’s mandated 186-87 Cir. requires over state law that federal law dis- 2002). conflicting place state law as a rule of deci- 94 502(a). § rights already protected on the “connection with” rest

therefore theory. These claims are then recharacterized as in as a federal nature and serve basis for scope en- the the civil 2. ‘Within of’ “arising subject jurisdiction. matter under” provisions ERISA. Conflict forcement of A cause of action is therefore “within the sup- preemption “alone is insufficient to 502(a) scope § if ... “only prop- [it] of’ I, 94 port jurisdiction.” Romney removal erly seeking characterized as ‘to recover above, law at 78. As noted a state F.3d under plaintiff] benefits due to the [the preempted ERISA establishes action plan, [or terms of to enforce his [the] her] if, jurisdiction under “arising only under” plan, rights under the terms of the toor the part complete preemp- of the second clarify his to future rights her] benefits [or test, it is also of action “eause[] tion ” plan.’ Lupo under terms of the v. scope within the of civil enforcement Int’l, Inc., Human 28 F.3d 502(a).” § provisions Taylor, Affairs [ERISA] (2d Cir.1994) (quoting U.S.C. (emphasis at 107 S.Ct. 1542 481 U.S. 1132(a)(1)(B)). § But need “[a] suit not be added); Bd., Plumbing accord Indus. 502(a) § a cognizable, winning claim under II, 69; Romney 105 F.3d at 812- F.3d scope’ in order to fall ‘within the of the provision purposes jurisdiction of the 502(a)(1)(B) provides Section Bd., analysis.” Plumbing Indus. 126 F.3d ... for actions “to recover benefits due Any at 69. “state cause of action that acts plan, ... the terms of [a] under to enforce vindicating alternative means of terms of rights plan, under the 502(a) protected § rights is ‘within the clarify rights ... to future benefits scope’ of if the section even the suit is plan.” terms of U.S.C. against directed defendant liable un- 1132(a)(1)(B). Congress thereby creat- exists, then, der ERISA.” Id. Jurisdiction comprehensive “a civil ed enforcement attempts even over to cir- unsuccessful represents a balancing scheme that careful 502(a). cumvent prompt the need and fair claims procedures against public prerequisites With settlement these two com- mind, plete in encouraging preemption interest formation of we turn to employee plans.” complete benefit Ins. consider pre- Pilot whether there is Life Dedeaux, emption plaintiffs Co. v. 481 U.S. timeliness and (1987). enacting misrepresentation permit 95 L.Ed.2d 39 “In as to claims so 502(a) 514(a), Congress §§ sought their removal.

eliminate alternative state law remedies C. Removal Jurisdiction over the Timeli- plan participants for benefit and beneficia- Misrepresentation ness and Claims ries, persons relegating such to ... six ” well-integrated Plumbing remedies .... 1. The Timeliness Claims. The Bd., 68; Mass. Indus. see also plaintiffs timeliness claims rest on “the Russell, Mutual Ins. Co. Life defendants’ [alleged] failure conduct an 134, 146, 105 S.Ct. 87 L.Ed.2d 96 appeal of denial of care their ” (1985) (describing “interlocking, ERISA’s ¶ timely Compl. fashion .... 66. The interrelated, interdependent remedial plaintiff specifically alleges negligence scheme”). defendants’ respond promptly failure to component complete January request. The second Samuel’s met if preemption test is state law causes Her claim on York law to draws New pleaded seek involving action are to vindicate effect “a determination con- services, care generally tinued or extended health or trator must act ninety within 2560.503-1(0(1). for an enrollee under- § additional services days, id. treatment,” going a course of continued plaintiff New York law that at “by must be made and communicated tele- tempts to enforce thus an has “effect on phone and in within one writing business primary administrative functions of receipt necessary of the informa- day of plans,” benefit Aetna Borg Ins. Co. v. Life 4903(3); § tion.” N.Y. Pub. Health Law es, (2d 142, Cir.), 869 F.2d 146 cert. de ¶ 24; Compl. Plaintiff-Appellant’s see also nied, 811, 57, 493 U.S. 110 S.Ct. 107 Br. at 2. We conclude that such claims are (1989), L.Ed.2d 25 regu conflicts with § preempted by conflict 514. We also con- pursuant lations established to ERISA. clude that the are “within timeliness claims By requiring health plans benefits 502(a). § scope jurisdic- of’ Removal reply requests for “additional services properly tion therefore obtains over them. ... for continued treatment” within twen First, regard preemp- to conflict hours, ty-four N.Y. Pub. Health Law tion, already mandates that em- 4903(3), § New York law establishes a dif ployee plans “provide adequate benefit ERISA’s, ferent rule from requires which in writing any participant notice action within the same only time-frame if a beneficiary whose claim for benefits under care,” claim involves continuing “urgent 29 plan has been denied.” 29 U.S.C. 2560.503-1(f)(2)(ii)(B),8 § C.F.R. 1133(1). § Regulations issued the Sec- part The second complete of the test for retary pursuant of Labor to 29 U.S.C. preemption the cause of action be —that § require- 1135 forth minimum “set[] 502(a) scope § “within of’ also sat —is employee plan proce- ments for benefit isfied plaintiffs because the timeliness pertaining dures to claims for benefits claims “an are alternative ... mechanism participants and beneficiaries.” 29 C.F.R. enforcing for the rights protected by 2560.503-l(a). § request A “to extend Bd., Plumbing ERISA.” Indus. 126 F.3d beyond period the course of treatment 502(a)(1), § at 68. Under a participant or of time or number of treatments that is a plan beneficiary may file suit “to involving urgent claim care shall be decid- rights enforce his under the [or her] terms possible ed as soon as plan and the 1132(a)(1)(A). plan.” § 29 U.S.C. notify administrator shall the claimant ... And an in an receipt ERISA-governed within 24 hours after enrollee of the claim ...,” plan plan right timely § id. has a 2560.503- determinations. l(f)(2)(ii)(B). Otherwise, 2560.503-1(f)(2)(ii)(B). plan § adminis- See 29 C.F.R. conclusion, (9th 1998) reaching (rejecting we wrongful tread a Cir. a state law path. well-worn law ”[C]ommon causes of improper processing death suit on based of a alleged improper process- action ... on based denied, 870, claim), cert. 528 U.S. 120 S.Ct. ing employee of a claim benefits under an 170, (1999); 145 L.Ed.2d 144 Cannon v. plan, undoubtedly benefit meet the criteria for Okla., Inc., Group Health Serv. 77 F.3d 514(a).” pre-emption Life, under Pilot 481 1270, (10th Cir.) (preempting 1273-74 48, light U.S. at 1549. In of Pilot treatment), negligence approving claim of conclusion, circuit courts have uniform- Life's denied, 816, 66, cert. 519 U.S. 117 S.Ct. ly negligence concluded that tort claims of (1996); Spain L.Ed.2d 27 v. Aetna Ins. Life solely delay processing based on are Co., (9th Cir.1993) 11 F.3d 131-32 See, preempted. e.g., Pryzbowski v. U.S. (preempting wrongful death action on based Healthcare, Inc., (3d 245 F.3d Cir. fashion), approve timely failure to treatment in a 2001) (preempting "a claim that the HMO or denied, rt. ce delayed”); administrator v. Bast Pruden- (1994). 128 L.Ed.2d 340 Am., tial Ins. Co. 150 F.3d 1007-08 plan.” employee benefit under brought suit for benefits thus have could The Cicios Co., 502(a)(1)(B) E.I. de Nemours & Griggs Dupont relief injunctive (4th Cir.2001). In other to obtain seek February or March words, plain- cell the double stem of action that the cause authorization attempt to vindicate transplant. rely upon An claims misrepresentation tiffs a law mecha- through state preempted. same interest conflict scope of’ “within the an action nism is Second, claims misrepresentation 66, 107 502(a), U.S. at Taylor, § 481 Vytra had an allegation rest on 1542. plan to the terms of the obligation under meet the claims therefore The timeliness provide. it failed to provide benefits preemp- complete prerequisite second rights seek to vindicate The claims thus respect to jurisdiction with tion. Removal plan. But ERISA accruing under thus established. them is 502(a)(1)(B) recovery of “benefits § allows Misrepresentation 2. The plan.” 29 ... under the terms of [a] due plaintiff alleges also The Claims. 1132(a)(1)(B). pre § have And we U.S.C. “intentionally withheld information Vytra rejected state claims— viously similar law defendants’ regarding customers from its plan that a administrator to the effect in a man- interpret policies its intention to availability of benefits misrepresented the with, to, contrary its ner inconsistent “attempts] supple plan under a —as policies’ provi- understanding of the own express provisions and plan’s ment accepted coverage, the Cicios sions” before Smith v. secure an benefit.” additional Plan, “adopted upon execution (2d Dunham-Bush, Inc., F.2d interpretations and incorrect inconsistent Cir.1992); Rolled see also Carlo v. Reed necessity’ and other of the term ‘medical (1st Co., Die 49 F.3d 793-94 Thread Policy.” Compl. contained terms Cir.1995) negligent mis (concluding that a ¶¶ 83, claims, too, subject are 90. These preempted claim was be representation complete preemption. promised plan sought allegedly cause damages).9 As an alternative First, preempts common benefits as “ERISA state plan-related rights cre enforcing means of negligent fraudulent or mis- law claims of ERISA, misrepresentation representa- ated when the false representation scope claims are then also “within or extent of tions concern the existence seek, preempted the claims in es- complaint might read to reference because 9. The sence, rights. See en- to vindicate contractual representations made before the Cicios Ala., contract, have con- v. Shield tered the and some courts Hall Blue Cross/Blue (11th Cir.) misrepresentation (preempting a claim based a cluded that F.3d signed has been alleged on actions before contract claim based on fraudulent state law See, Neuma, e.g., preempted. Inc. marketing are not because “no court will be able (7th AMP, Inc., Cir. 259 F.3d 880-81 plaintiff] been [the determine whether has 2001). misrepresentations in Neuma But the resorting fraudulently without to the induced package concerned the value of the benefits (emphasis original policy”) omit- written whole, package whether the con- as denied, (11th ted), reh’g 158 F.3d 590 en banc The specific benefits. See id. 869. tained Indus., Inc., 1998); Degnan v. Publicker Cir. Neuma, misrepresentation claim unlike (1st Cir.1996) (rejecting as Cicio, require an Ms. did not those made misrepresentation). preempted a claim of plan. interpretation of the terms of the misrepresentation claims in the case to the latter than those bar are more akin concerning alleged misrepre- In other cases they alleged seek to re- in Neuma insofar contract com- sentations made before plan. menced, allegedly cover benefits due under found law claims courts have state 502(a),” Taylor, 1367(a), § 481 U.S. at tice claims under 28 U.S.C. irre- whether, spective alone, standing they are removable. complete preemp- prerequisites Both satisfied, jurisdiction tion are so removal IV. Dismissal Timeliness properly was exercised the district Misrepresentation Claims misrepresentation court over the claims determining After that the entire too. complaint properly removable so that D. Supplemental Jurisdiction subject jurisdiction obtained, matter magistrate judge and district court deter 1367(a), Under 28 U.S.C. 12(b)(6) mined that the defendants’ Rule “supplemental jurisdic has district court granted motion should be because the all tion over other claims are so relat plaintiffs asserted causes of action were in ed to claims the action within such Cicio, all preempted by ERISA. 208 jurisdiction they part form original of 293, F.Supp.2d at 302. preceding jur The controversy” origi the same case or once analysis, isdictional in addition to estab jurisdiction nal is established. Id. A state lishing that appropriate, removal was dem part law claim forms of the same contro onstrates that dismissal of the timeliness versy if it and the federal claim “derive misrepresentation and appro claims was operative a of from common nucleus fact.” Coll, priate. City Chicago Surgeons, v. Int’l of of 156, 165, 523, 522 U.S. 118 S.Ct. 139 above, As discussed the timeliness and (1997) (quoting L.Ed.2d 525 United Mine misrepresentation brought claims Gibbs, 715, Workers Am. v. 383 U.S. New York state law are both of “alternative 1130, 725, (1966)); 86 16 L.Ed.2d ... for enforcing rights mechanism[s] Gibbs, see also at U.S. 86 S.Ct. protected by Plumbing ERISA.” Indus. (“[I]f, regard considered without to Bd., reason, 126 F.3d at 68. they For that character, their plain federal or state preempted by are conflict ERISA because tiffs claims are such that he would ordi they attempt in regulate to an area where narily expected try be them all in one ERISA, Congress, through swept has then, judicial proceeding, assuming sub away regulation. all state preemp- issues, stantiality of the federal there is ERISA, tive of no shadow state cause of in power federal courts to hear lie, can action id. at 68-70 (dismissing cf. whole.”) (emphasis original). reasons), state law claims for similar rightly therefore these claims were dis- All Ms. Cicio’s claims “derive from a All missed. that remains for our consider- fact,” Gibbs, operative common nucleus of then, ation, malpractice are the medical 1130, wit, claims. Spears denial Dr. of authorization for a transplant. double stem cell All relevant Preemption Malpractice V. of Medical allegedly transpired

events between Janu- Claims 28, 1998, ary when Dr. Samuel first re- quested transplant, the double stem cell question The whether a state law May when Mr. malpractice Cicio died. medical claim brought with re plaintiff ordinarily The “would expected spect to a medical decision made in the try judicial [ all her in one prospective ] [of claims] course of utilization review proceeding.” Subject jurisdic- Id. managed organization matter care in or health malprac- tion thus exists over Ms. Cicio’s preempted surer is under ERISA Note, decision); a medical Jona beyond the reach of state view as therefore Frankel, law, impression Malpractice one of first than J. Medical tort conclude, largely on basis We Health Circuit. Law and Care Cost Containment: decisions, that recent Court the Clash Lessons Reformers from preempted. law a state claim is such Cultures, Yale L.J. (“Cost-containment redis programs Review A. The Practice Utilization normally we consider ‘medi tribute what plaintiffs actors.”). The medical authority’ cal nontraditional denial of Spears’s claims are based on Dr. bound Prospective utilization review blurs transplant for a cell coverage double stem traditionally aries between “distinct Brent W. Mr. Cicio. Letter from professional and au sphere of dominance Febru- to Edward T. dated Spears Samuel profession on tonomy” of decision Spears’s ary hand, Starr, Paul Trans one The Social Dr. Samuel’s the course of occurred Medicine 27 American formation to obtain authorization for attempt (1982), and the domain on managerial Vytra. transplant stem cell from double such, represents develop As other. ¶¶ 15, complaint 19-21. then Compl. time apparently ment unforeseen at the review, and process details utilization Jeffrey enactment. E. Shu ERISA’s See its procedure, nature of it is the ren, Legal Accountability Utilization ERISA, which we now upon relation to Plans, 77 Review in ERISA Health N.C. focus. (1999). 731, 733 L. Rev. “pro usually review involves Utilization Moreover, noted, as other have courts “a party by review a third spective prospective in system decisionmaking v. medical Corcoran necessity of care.” beneficiary’s among fluences the choice 1321, Healthcare, Inc., F.2d 965 United options degree a far greater treatment (5th Cir.), denied, 1033, cert. 506 1326 U.S. than does the theoretical risk of disallow 812, (1992); 121 see 113 S.Ct. L.Ed.2d 684 in facing beneficiary ance of a claim a a 219, Pegram, 530 at 120 S.Ct. also U.S. Corcoran, retrospective system.” 965 typical review prospective “[T]he 2143.10 1332; Danca, F.3d at 5 F.2d at accord 185 system requires pre-admis form of some And, instances, a many “[i]n n. 5. denial of by party,” third Cor- sion certification coverage patient forgoing results in the coran, 1327, Vytra’s F.2d at 965 such as An- procedure altogether.” J. Scott Director, Spears. “Although Medical dresen, Is the Practice Utilization Review utilization involves no prospective review Medicine1?, 431, 19 encounter, Legal J. Med. 432 traditional face-to-face clinical (1998). Thus, a medical decisions with quasi-medical it is still in nature. It neces exercise of component i.e., involving the sarily involves of data collected evaluation — judgment particu in to a medical relation in an encounter.” Danca v. Private such Inc., 1, symptoms Sys., patient’s F.3d 5 n. 5 lar made Health Care 185 —are (1st Cir.1999); Corcoran, by utilization who see also 965 course of review staff independent re- from (characterizing separate F.2d at 1331 utilization are ap- coverage term "utilization review” is also care is made a “utilization review The example, plied in some For committee” the dictates of federal statutes. established under Security hospital v. Heck- the determination or skilled the Social law. See Kraemer 214, (de- ler, (2d Cir.1984) nursing facility care that an admission or 214-16 stay medically necessary scribing procedures is or Medicare under 42 continued is not 405.1035). § availability of Medi- 1395x in connection U.S.C. and 42 C.F.R.

99 presumption decision-mak- with the that “in the traditional field of locus care, subject health authority. These medical decisions of traditional ing state regulation, there is ERISA possibly dispositive consequences preemption no have clear that a ulti- (cid:127)without manifestations of patient congres course of treatment purpose.” 237, sional Pegram, 530 U.S. at mately follows. 2143; Prudential, 120 Rush S.Ct. accord 2171; 122 S.Ct. see also De Buono v. Preemptive Scope B. ERISA’s Fund, NYSA-ILA Med. & Servs. Clinical Court, pro Supreme early its 806, 813-14, 1747, 520 117 U.S. S.Ct. 138 preemption, sug nouncements on 21 (applying presumption L.Ed.2d sweeping “any that the reference to gested “Congress not intend supplant does all [that] State laws relate” law”; omitted); state internal citation N.Y. pro plans preemption in ERISA’s benefits State Blue Cross & Blue Conference of vision, 1144(a), 29 U.S.C. entailed Co., Shield Plans v. Travelers Ins. 514 expansive preemptive effect corre 645, 654, U.S. 115 131 S.Ct. L.Ed.2d provision’s wording. sponded broad (1995) (same). Moving beyond 695 pre McClendon, Ingersoll-Rand Co. v. 498 See sumptions, also, Court has 111 S.Ct. 112 U.S. L.Ed.2d words, its own thrown “cold water” on the (1990); Life, Pilot 107 U.S. regulation idea that state of health and Russell, 1549; 146-47, 473 U.S. at S.Ct. safety necessarily preempted even when Lines, 3085; Shaw Delta Air overlaps protected with rights Inc., 96-97, U.S. Pegram, ERISA. 530 U.S. at (1983). then, however, L.Ed.2d 490 Since Travelers, (citing S.Ct. 2143 514 U.S. at “temper[ed] assumption 1671). the Court has the 654-55, 115 S.Ct. § ordinary meaning

that the ... 514] [of deciding In preemption question, the it accurately expresses legislative pur the noteworthy is also that ERISA’s “re- pose qualification ... with the the peatedly emphasized pro- purpose [is] to police powers historic were States contractually tect defined benefits.” superseded by meant to be the Federal not Russell, 148, 473 105 U.S. at S.Ct. 3085 Act unless that the clear and manifest added); (emphasis Firestone accord Tire purpose Congress.” of Rush Prudential Bruch, & Rubber Co. v. 489 U.S. HMO, Moran, 355, Inc. v. 536 122 U.S. 948, (1989) (reit- 109 103 80 S.Ct. L.Ed.2d 2151, 2159, 153 L.Ed.2d S.Ct. 375 the erating “contractually focus on de- (internal punctuation omit citations benefits”) (internal omitted); fined citation ted). pre recent discussions of ERISA Russell, 147, 473 105 U.S. at S.Ct. 3085 emption, it has been even hinted that “the (noting centrality “contractually the of au- [early criteria set forth in cases Shaw like benefits”). Indeed, thorized one of progeny] and its have effect aban been goals increasing ERISA’s stated involves Constr., Dillingham doned.” full “the likelihood that benefits will be 335, (Scalia, J., 117 concurring). S.Ct. 832 paid participants and beneficiaries of Supreme Specifically, 1001b(b)(l). has re- § the Court plans.” 29 [covered] U.S.C. jected filigreed law, finely notion that malpractice by State medical con- trast, connection between ERISA state implicated by and a if even execution and, preemption, decision, in- appli- law establish ERISA of a involves the benefits stead, begin has that a court held must cation of duties of conduct are de-

100 Cir.1995) plans.11 (rejecting preempted As a mal- independent fined practice claim such, against ex utilization review among “rights it is decision because the defendants “were de- being into pectations brought ... termining what benefits were available [ERISA],” Ingersoll-Rand, 498 U.S. plan”); v. (internal Brandon Aetna citation omit 111 S.Ct. 478 Inc., Servs., F.Supp.2d 46 502(a) 113-14 protect. ted), designed is (D.Conn.1999) (similar); Corporate cf. whether We must therefore ask Ins., Ins., Tex. Dep’t Health Inc. v. 215 malpractice causes ac- plaintiffs medical Cir.) (“ERISA (5th preempts F.3d plan to” adminis- tion “relate the benefits malpractice against making suits doctors keeping in mind both the by Vytra, tered coverage in the decisions administration of law warning Court’s that state denied, ”), reh’g .... banc regulation practice is not to be medical (5th Cir.2000), F.3d 641 vacated and re- disturbed, and the observation that lightly grounds on manded other sub nom. protection is the primary ERISA’s focus Ins., Montemayor Corporate Health rights contractual defined benefits U.S. 153 L.Ed.2d 800 plans. Panchal, (2002); Rice v. F.3d (7th Cir.1995) (holding that “where Preemption Malprac- C. The Medical creating state law has effect of a quali- Against Re- tice Claims Utilization perfor- tative standard which Decisions view evaluated, mance of the contract then is blush, At first Pegram v. Herdrich. law completely that state preempted”). that Dr. defendants’ contention the proposition These cases rest on that a Spears’s decision concerned a benefits de- a malprac- decision cannot be the basis of termination about what medical treatments tice claim even if it the exercise of involves pursuant Mr. could receive to the Cicio judgment if at the same time plan, only can challenged a decision that component. determination has benefits 502(a)(1)(B) action, in a has considerable cases, According performance to these addressing courts similar force. Other interpretation of contractual order to have facts concluded triggers preemption determine benefits on utilization claims based review decisions regard without to the medical content of a § preempted by They are indeed 514. decision. reasoned, first, that utilization review have Jass, Corcoran, But and Tolton were part “medical decisions as and involves decided before the Court’s re- parcel plan’s] of mandate to decide what [a preemption’s cent retrenchment of ERISA available,” that, benefits are and then held Court, margins, before the its decisions, as benefits utilization review de- in Pegram unanimous v. Herd- decision only challenged can in a cisions (albeit dicta) rich, addressed medical 502(a)(1)(B) Corcoran, 965 F.2d action. malpractice against actions those engaged /ass, 1332; 88 F.3d at see also 1489-90 in medical making. decision a (holding preempted negligence action a against agent); Pegram physi- a utilization review Tolton concerned defendant (6th Inc., Biodyne, Am. cian who “decided turned (wrongly, if, contract, right, 11. Even absent a benefits no of the exercise of a contractual the state obligation given provide care in fact have fur- care a level would been law nished, judgment quality providing so that the medical in one when care is nonetheless consequence from contract. sense is ''benefit” and direct distinct out) plaintiffs] gibility condition did not untangled decision cannot be [the [that] action; warrant the conse- immediate physicians’ judgments from about reason- quence of that medical determination able medical Id. at treatment.” would not cover HMO] defendant [the 2143. The Pegram S.Ct. Court then ex- care, whereas it would have immediate plained: physician] if had [the done so defendant we will call pure “eligibility What deci- proper diagnosis judgment made the turn on plan’s coverage sions” of a to treat.”12 530 U.S. at particular proce- condition or medical Pegram only 2143. whether addressed dure for its “Treatment treatment. de- had, by sharing profits HMO method of its cisions,” contrast, are choices about doctors, fiduciary duty

with breached its go diagnosing how to about and treating members, disclaiming any suggestion patient’s given patient’s condition: it was the interaction between addressing symptoms, constellation what is the 502 and state law claims. 530 U.S. appropriate medical response? Pegram 229 n. none- is practically These decisions are often theless the case at hand be- relevant inextricable from one another .... This reasoning upon cause of the which because, is so not merely under a Court’s conclusion was based. The Court scheme like [the benefits in Pe- fiduciary decided that action no breach gram,], treatment eligibility deci- because, in brought could be under ERISA made by person, sions are the same part, such an action would be a “mere physician. treating It is so because a replication malpractice of state actions great many and defendants,” possibly coverage most id. at HMO questions yes-or-no are not simple ques- fiduciary creation of a S.Ct. 2143. The tions, appendicitis like whether through addi- is a cov- breach action “the formulaic (when tion of an is allegation dispute financial incentive ered condition there no nothing patient a malpractice claim] would do that a has appendicitis), [to bring the same claim into a federal acupuncture but proce- whether is a covered federal-question jurisdiction.” (when court under pain dure for relief the claim of Id. at infer 120 S.Ct. 2143. We thus pain unchallenged). The more com- some availability continued coverage question is a mon when-and- law on at state actions based question. Although coverage how least some review varieties utilization many clear and conditions will be vari- predicate decisions was a of the Court’s options indisput- ous treatment bewill holding. compensable, ably physicians still must what particular decide to do in cases. Pegram opinion

But further has be, may say, The issue whether one our analysis ramifications for because of option superior treatment is so to anoth- its description analysis detailed and de- circumstances, er under and needed cision-making in the context of care health promptly, proceed that a so decision provision. categorized The Court the de- fendant Pegram’s eligi- necessity Dr. act as a “mixed with it would meet the medical i.e., bility decision, and treatment” an “eli- that requirement conditions HMO’s Herdrich, abdomen, patient, Cynthia Pegram plaintiff 12. A Herdrich’s Dr. did not or- experienced pain groin, had in sub- her and Id. diagnostic der an immediate ultrasound. Pegram. mitted to an examination received Before Herdrich was to have Despite 530 U.S. at 120 S.Ct. 2143. ultrasound, Id. appendix ruptured. her discovering significant a inflamed in mass (describ 1320; Starr, supra, also at 27 provide pay or that see obligation ing physician autonomy). in threats to The at that time particular procedure providers “separation professional between case. Corcoran, Jass, financiers,” lay and which (citations 228-29, Id. at presumed, longer and “no exists.” Tolton added). omitted; emphasis 1320; Starr, Frankel, supra, supra, at cf. deci Pegram suggests thus some corporate 447 (observing “increasing at [as interpretation of a involve benefits sions opposed professional] influence over the decisions, in contract, eligibility and some care”); rules and standards medical judgment to application of medical a volve Shuren, supra, that utiliza (noting at condition, particular patient’s treatment “interpos[e] agents tion review themselves categories over And these two decisions. decisionmaking”). into medical Decisions de lap. resulting category, The third by third-party regularly payers, now made “mixed Pegram, eligibility in scribed option “whether is such as one treatment decisions,” id. at and treatment superior so to another the circum 2143, is to decisions made S.Ct. not limited stances, promptly, and so a needed by treating such Dr. Pe physicians, proceed decision to with would meet gram, which benefits a who both assess necessity in a requirement” medical health plan provides and make treatment deci contract, untangled benefits “cannot be for” “pay A about who will sions. decision physicians’ judgments from about reason procedure, a when this is not even decision treatment,” Pegram, able medical “treating physician,” a also a made is coverage 120 S.Ct. 2143. And such eligibility and treatment decision” “mixed based medical decisions on determinations answering question: “giv if it involves an often have outcome-determinative ef patient’s symptoms, en a constellation of Corcoran, 1332; fect. 965 F.2d at See re appropriate [most] what is Danca, 5; Andresen, 185 F.3d at 5 n. 228-29, sponse?” 2143. Id. at supra, Among decisions, at 432. such not words, physician even if a does other Court, the Pegram concerning ed are ones control, direct, directly or influence a experimental proposed “the character of treatment, plaintiffs even if the and sole Pegram, course of treatment.” U.S. physician’s consequence of decision 229-30, 120 S.Ct. 2143. denial, reimbursement or its that decision case, The decision in this defendants’ eligibility be a mixed may nonetheless procedural posture ap- the current of this Pegram’s. Id. treatment decision like Dr. peal, must be as mixed treated decision alters used Pegram thus the framework allegedly because it involved both an exer- Corcoran, Tolton, Jass, in which a cise of medical judgment and element decision must be about either “treatment” interpretation. of contract “eligibility,” and which element Pegram’s Tripartite make Applying benefits determination suffices to may “eligibility” Analysis decision an decision that con Preemption. We 502(a) action, challenged in a action. clude that a if only be state law in- Pegram analysis suggests eligibility court’s based on a “mixed treat decision,” recognize subject stead that courts should ment is not to ERISA years, profession’s preemption recent the medical when that state law cause of “[i]n monopoly authority appro- challenges on the to define action an flawed med allegedly priate society applied particular health for has ical judgment care outcomes as to Frankel, severely supra, patient’s symptoms. been eroded.” at We con- reach this by applying presumptions elusion the pre- strongly suggests, without holding, that discussed, viously our understanding of plaintiffs the malpractice against action congressional ERISA, intent in enacting Dr. Pegram would not preempted even analytic and the framework in established though Pegram Dr. simultaneously made a Pegram. contractual interpretation concerning Herdrich’s eligibility threshold, given benefits, for

At the we adopt decline to the and that a defendant can categorical longer no simply distinction “quality between point to the overlay care” decisions and medical “benefits administra decision- making on questions tion” contractual applied by claims other in and ask courts the that, court context, the preemption ERISA conclude Pryzbow because ERISA ski, 279, preempts claims, 245 F.3d at contract district it also preempts bar, Cicio, court in all the case at state tort-law claims based on F.Supp.2d at 293. To same frame the in decision. issue ignore fashion is to the nature of As we explained, have in nothing ERISA “countless medical administrative decisions suggests that Congress intended dis- every day” in which “the eligibility deci placement of “the quintessentially state- sion and the treatment [are] decision inex law standards of reasonable medical care” tricably Pegram, 229, mixed.” U.S. at applied as to the medical component of a 120 S.Ct. Pegram teaches that this mixed Prudential, decision. Rush dichotomy is longer no tenable.13 S.Ct. at 2171. And requires Further, Pegram demonstrates that the distinguish we between “contractually de- presence mere of an compo- administrative benefits,” Russell, fined 148, 473 U.S. at nent a health care longer no decision 3085, 105 S.Ct. rights those that state has significance determinative pur- for law independent delimits plans, benefits poses preemption analysis when the de- such as medical quality standards, which cision also component. has medical hinge instead on statutory and common its brief discussion of the “puzzling issue of law development malpractice law unique preemption,” Pegram rejected Court to each state. plaintiffs one of the arguments pre- as “a scription for preemption of malprac- state Finally, we note our skepticism of a line 236, tice law.” Id. at 120 S.Ct. 2143. The of reasoning that would draw from “a com- said, noted, Court previous as we have prehensive designed statute promote cases had already thrown “cold water on the interests employees and their bene- the preemption theory regard [with Shaw, ficiaries employee benefit plans,” malpractice state law claims].” Id. at U.S. the elimina- 120 S.Ct. 2143. The analysis Court’s protective tion of professional standards of Calabresi, 13. We Judge think par- negligent his failure to treat.” Dissent at 108. dissent, Frequently, sufficiently tial care (including fails health to take into ac- decisions perhaps Spear’s) "mixed eli- count legal in the shift and medical —so-called decisions,” gibility and Pegram, treatment landscape clearly marked the unanimous 530 U.S. at 120 S.Ct. 2143—now con- Pegram question longer decision. The is no tain elements of both. And medical ele- an eligibility between and treat- either/or give ment can rise to "state ac- whether, Judge phrases Calabresi ment' — it, defendants,” tions with HMO id. plaintiff's "essentially action is [a suit] provides, if state law so even if against provider negligently insurance simultaneously were defendants "deter- failing for, give coverage contracted mining scope coverage of an against contract,” or ... provider ERISA-plan care dissent at 109. But we are not convinced such a distinc- conduct. We see no reason then to bar as Pegram, preempted malpractice tion can in fact be drawn. state law actions application noted, distinguish that rest on the of standards did not between the de- decision-making-which treating physician empowered for medical are cisions of a independent interpret contract, established states of and to a benefits and medi- prior prior to health benefits contracts-to "a cal administrative decisions executed patient's symptoms," delivery category constellation of Pe to the of care. Its gram, eligibility 530 U.S. at 120 S.Ct. 2143. mixed and treatment decisions Seabury Smith, Inc., question[s]," Accord Isaac v. & consisted of "when-and-how 1461710, *6_*8, including, critically, question 2002 WL 2002 U.S. fist. whether 12413, *19_*28 (S.D.Ind. July 5, proceed procedure] [a LEXIS "a decision to with 2002) (finding complete preemption necessity require- no of a would meet the medical upon obligation action based a ment that conditions the HMO's decision). provide pay particular proce- utilization review or for that Pegram, 228-29, dure." 530 U.S. at Focusing eligibility on mixed (emphasis added). S.Ct. 2143 Even when decisions, then, treatment we conclude that making pay decisions about whether to preemption § 514 does not obtain with re particular procedures, "physicians still gard predicated to those claims on the particular must decide what to do in cases" violation of a state tort law a failure to on the basis of medical assessments. Id. meet a state-law defined standard of care 120 S.Ct. 2143. diagnosing recommending treatment plaintiff "patient's of a constellation of And, practical terms, eligibility "[i]n symptoms," Pegram, 530 U.S. at untangled physi- decisions cannot be from S.Ct. 2143. judgments cians' about reasonable medical treatment," or, least, untangling Treating will 3. The Distinction Between many easy Physicians hi instances be no task. Id. and Utilization Review instance, managed organi- Agents. appeared For some care The district court require distinguish zations that utilization review between a tort action based on pre-certification decision, agents "negotiate treating physi- such as Dr. with the Spears's here, conformity" decision and one based on a cian to achieve in levels of contemporaneous decision, provided. Shuren, supra, treatment such care at 746-47. negotiation Pegram's. Cicio, That sort of is reflected in the as Dr. See F.Supp.2d (distinguishing correspondence Spears at 293 between between Drs. nego- Pegram's Samuel. While Dr. Samuel initiated Dr. decision and an anterior de- "eligibility coverage"). description cision about In tiations with a detailed of Mr. status, Spears parried support distinction, might Cicio's Dr. with an of this argued that, pre-certification requested in the con- assertion of the treatment's ex- perimental sup- text, analysis precedes nature. Dr. Samuel then the treatment interpretation question plemented argument support contract such that his from response, adjudication necessarily the medical literature. of a tort action interpretation Spears apparently patient-specific involves an of the ERISA made a prescription appropriate contract, triggers preemp- treatment which in turn might argued denying authorizing tion. And it be further one treatment and an- requested. contemporaneous questions, other that Dr. Samuel had not treatment interpretation question At least on the basis of the material on the contract does play intervening grant the same role. which we review the of the Rule 12(b)(6) court, motion the district pressed we are hard to see how the defen- identify cannot distinct moments at which dants successfully could contend—as a de- treatment decisions as eligi- distinct from fense to the tort action—that the contract bility in decisions were made the course of permitted them to violate a state law duty negotiation, let alone the sequence of standard of care.14 such decisions. Pegram

In the context of contemporane- D. Caveats decisions, too, ous treatment how distill to We underscore the fact that this the moment of the eligibility determination case comes before us on appeal from the from the facts is far from obvious. Exam- grant 12(b)(6) of Rule a motion to dismiss. ining Court’s description of We only therefore hold that a set of behavior, Dr. facts Pegram’s we cannot deter- consistent with (1) allegations in mine whether contained thought she first about complaint permit would how the granting soon Herdrich of needed an ultrasound oddly, case, in this and then to plan considered whether the remand state com- relief— court for prised determination, alia, given ultrasound tests inter of facility, or whether complaint considered first which bene- states a cause of available, fits were action only analyzed then under the law of New York. If Dr. which one medically Spears’s was warranted within actions subject that are the range. constrained Pegram, complaint See indeed constituted a medical de U.S. 120 S.Ct. 2143. In other cision or a mixed medical and eligibility words, difficult, best, it is to decision, determine then Ms. Cicio’s remaining medi whether her violation of the standard cal claims should not be dis apart medical care was from indepen- missed, but remanded to state court for dent of a benefits, determination of N.Y., resolution. City See Giordano v. whether pre- benefits determination (2d Cir.2001). 754-55 It ceded and controlled medical determi- may that, nonetheless be aas matter of nation. fact, Spears’s decision purely one i.e., sum, concerning eligibility,

In it determination likely would often be difficult that, regard without to Mr. delve into Cicio’s “con physicians’ minds to examine decisions, stellation symptoms” their but frequently which are ab exe- stract, cuted in very time-periods brief cell transplants double stem and under were pressures, experimental tremendous multiple determine what treatment part of myeloma. case, them is medical and what part is claims would administrative. completely Nor do we think likely preempted by it ERISA and significant interpretation subject contract therefore is- to dismissal. We there sues will arise fore ensuing tort action. do not rule possibility out the that the Assuming arguendo that demonstrate, Ms. Cicio were to defendants can as a matter Spears’s establish that Dr. fact, decision violat- complaint dismissal ed a duty care, state law professional we warranted. We leave it to the district Certainly, care, would be a different if matter state law standards for medical but rath- complaint alleged only that the health only interpreted er the contract. In such given benefits did not procedure cover a cases, a court would have to amake threshold regard without symptoms what patient determination, as we have in the done case at case, presented. In that the defendants bar, as to whether a medical decision made contending would in fact be that they made by the alleged. defendants has been no medical subject decision that could be Ante, conduct.” professional if standards proceedings, what determine court to removed). (internal citation at 104 end. to that appropriate be any, would the I cannot reconcile in the end we do Yet that reiterate Finally, we Supreme the with circumstances, holding any, majority’s if what decide under the structure and with precedents Dr. by Vytra or Court’s made the decisions itself, precedents. those given gen- of ERISA decisions utilization review or Spears, majority opinion I that ac- Nor do believe made be negligently may when erally, with the problem “fixes” the Perhaps law. somehow New York under tionable my that conclusion The court ERISA caselaw. district are. Unless they never today a band- have colleagues in fact reached Spears that determines may provide It gaping re- aid wound. on decisions pure eligibility making that, Cicio, glad and I’m for justice dis- to Mrs. care and health Mr. Cicio’s spect to done to courts have injury that the will but the ground, on that claim misses the until the Su- healed will not courts ERISA the New York for question abe the existence reconsiders preme Court upon remand. decide statute, damages under the consequential CONCLUSION same the law to the revisits Congress end. disposition court’s the district We affirm misrepresentation and the timeliness I.

claims, vacate its resolution but scholar, for and remand malpractice claims ERISA country’s leading The consistent with proceedings further demonstrated Langbein, has John 502(a), sec- opinion. the civil remedies reme- tion, the traditional closely tracks CALABRESI, dissenting Judge, Circuit Langbein, H. John trust law. See dies of part. in The “Equitable”: ERISA Means What Russell, Error in Supreme Court’s Trail the result object can one How West, Law & Mertens, Yale and Great Taking this case? by the court in reached (Jan. Paper No. Research Economics Pegram in some words inspiration from its Under 2143, 2003), at www.ssrn.com. available Herdrich, U.S. v. trust aggrieved an precepts, (2000), majority ele- traditional 147 L.Ed.2d (1) loss in- beneficiary “may recover for pre- boundary of ERISA gantly skirts (2) trustee curred, that the any profits for outrageous outcome. to avoid emption trust, for in breach of might well made Cicio allege that Mr. Appellants for accrued but that would have gains survived, plan had not adminis- have i.e., damages. breach,” consequential for Mr. coverage denied negligently trator not, may Trust beneficiaries Id. the circum- Under Cicio’s treatment. Id. at however, damages. punitive recover stances, just more than it seems no develop- motion the By setting into to 59. suit for allow his widow’s law to body federal trust of a court, ment majority proceed state administration, benefit majori- govern certainly I share does. And (or add would preempting state laws reasoning of a line of ty’s “skepticism subtract) provided to the relief ‘comprehensive statute from a would draw nicely “balanced] of ERISA of em- drafters the interests promote designed fair settle- claims prompt the need employee ployees and their beneficiaries public inter- against procedures protective ment the elimination plans,’ benefit in encouraging post, est the formation of em state law. plans.” ployee benefit Pilot Ins. Co. Court’s recent holding in Rush Prudential Life Dedeaux, 41, 54, 107 S.Ct. HMO, Moran, Inc. v. U.S. (1987). 95 L.Ed.2d 39 (2002), 153 L.Ed.2d 375 and its discursion on eligibility “mixed” and treat- Congress

Or so and ERISA beneficia ment decision in Pegram, is evidence of fairly could hoped. they ries have What pressure. that But the got opportunistic instead was the Court’s at- Error,” preemption “Trail tacks on may of which the Court result will lumped consequential punitive mainly and dam serve to complicate ERISA and to into ages misleading category of “ex- create anomalous results. deserving Some relief,” tracontractual see Mass. Mut. plaintiffs will helped be out along way, Life Russell, 134, 144, Ins. Co. v. 473 U.S. 105 many relief, but others will obtain no and 3085, (1985), L.Ed.2d 96 and disal providers increasingly will have to face (and by lowed both dint of an anachronistic very patchwork of liability risks— false) historically law/equity distinction differing from state to state —that implicit said to be in Congress’s provision preemptive ERISA’s scheme was meant to “appropriate for equitable relief’ in avoid. 502(a)(3). § See Mertens v. Hewitt As Because it is not too late for the Su- socs., 248, 255, 508 U.S. 113 S.Ct. preme Court to retrace its Trail of Error (1993); L.Ed.2d 161 generally Lang see and start over from the beginning,1 or for bein, Error, 28-75, especial Trail of and Congress clean, to wipe the slate I decline ERISA, ly upshot 62-73. The is that de join to in Part majority’s V of the opinion. ambition, spite today generally its does not plan “make whole” beneficiaries harmed

by plan administrators’ misconduct. See II. ante at n. and sources there cited. A short dissent is not place to delve surprisingly,

Not developed there has deeply mysteries into the pre- of pressure ERISA preemption provi- on ERISA’s emption that, sions, law.2 Suffice it to say so that the after may states see to it that disastrous flirtation with proper, beneficiaries who under a the notion that 502(a) § reading trust-based of cause of action that in any way would be adequately ERISA, cared for are other- connected to an ERISA contract was ante, protected compensated ERISA, wise ex preempted by ex the law has moved statute, result, emption 1. ERISA is a difficult and the Su- under ERISA dictates preme flexibility Court has when, shown admirable additionally, complete preemption re- See, approach e.g., in its to the law. N.Y. quires that the case be heard in federal court. State Blue Cross & Blue Shield Conference of enough arguments It is to note that I Co., Plans v. Travelers Ins. make, valid, require complete preemption if 115 S.Ct. 131 L.Ed.2d 695 Specifically, permitting in this case. this suit ("[W]e recognize prior have to that our at- go allowing to forward would mean an “alter- tempt phrase to construe the ‘relate to' [in pro- native enforcement mechanism” to that express preemption ERISA's does not section] vided ERISA’s civil remedies section. See here.'') give help drawing us much the line Plumbing Indus. Bd. Local Union No. 1 v. willingness update Court's its initial Co., (2d E.W. Howell Cir. gloss preemption hope on ERISA is cause for 1997), quoting N.Y. State Blue may yet that the Court revisit its disallowance Conference of Plans, Cross & Blue Shield 502(a)(3). 514 U.S. at 658 consequential damages of under (1995). particular, I do not deem it worthwhile get vagaries express pre- into of when a medical care against would the suit barring of direction and more in more which, to treat? if local law failure provider negligent state actions only those expand suit is govern, would the current I think permitted Because were contract) beyond available (or sort, the relief I con- regretfully first clearly of the 502(a) See ERISA. provided that it is barred. clude Labor Standards Div. Cal. Enforcement is, course, that the insur- possible It Const., N.A., Inc., U.S. Dillingham pro- care the medical provider is also ance 832,136 334-36, L.Ed.2d cases, propriety which In such vider. /., (recognizing (1997) (Scalia, concurring) judgment propriety treatment early ERISA with the Court’s problems plan are inter- eligibility decisions, calling preemption twined, that a state-law I do not believe the evolu- acknowledgment open more preempted. suit would be malpractice pre- in ERISA the that has occurred tion preempt- cannot be action Prudential, Such state-law a Rush jurisprudence); emption ed, treatment decision (“While simply because the independent re- at 2167 122 S.Ct. person who stat- the made Illinois claims-review was same under made [an view scope the fate of a benefit may well as to the improper settle decision ute] the contract, the particular under a claim The fact plan. an coverage under ERISA i.e., available[, coverage ultimately relief and the con- medical that the procedure,] would disputed medical the exact misinterpretation involved the tract a suit authorizes in be what ERISA still the state tort does not make same error 502(a)].”). under [§ for benefits finding dependent on a any way in action I has been breach- ERISA contract this more limited—and that the accepting Even scope preemp- be barred more not ed. It therefore would believe sensible — tion, Mrs. Cicio’s does that leave where ERISA. suit, lies in whether the The answer suit? in which may There also be situations essence, for the to obtain relief its is in provider is plan the the is unclear whether under the terms rights

violation (or provid- is that provider as well medical action in case the state plan, which ERISA too, may state law employer). Then er’s a for is suit or whether it preempted, is ruling preemption ERISA be free from (or a doctor the doc- malpractice against plan administrator what the on whether to which the existence employer) tor’s or, what medical treatment did constituted To only incidental. coverage of ERISA employ- to an thing, amounted is the same were not way, if ERISA put it another And, if providers. care ment of medical there, essentially against this be would suit determined, again a state once state law so negligently fail- provider for insurance for, might lie.3 malpractice suit coverage the contracted ing give plan Indeed, damages against the administra- quential suggestion even be made could plaintiff's might when the a) be available treating physical to at- tors fails that where foolishly trying to treat af- physician plan forwent simply the admin- tempt to treat because coverage, b) administrators denied while coverage, ter denial denied istrator precluded damages when that would be grounds, it such ostensibly on medical was made try to wisely continued to physician that the same may possible a state to find moneys stopped only because the treat and de plan controlled administrators facto not available. But treatment were responsi- treating physician hence were needed real, paradox apparent is more than since malprac- principals doctor’s ble'—as —for person always who suffers the case that approach lead to it is agent. would tice as This proper after medi- maloccurrence of conse- seeming paradox that recoveries is, unfortunately, The case before us non-medical. The result of such denials of interpretations. such De- coverage, practical matter, amenable as a often will efforts, be, spite majority’s allegedly case, admirable as it inwas facts, favorably read appellant, most source of consequential injuries. disastrous plan plain. per- are The The beneficiary gets no money and administrators — haps judgment, because of bad medical as a result grievous suffers consequential perhaps improper not, for other harms. however, reasons —in- Such harms are re- terpreted ERISA-plan Mr. Cicio’s injuries ERISA, contract mediable given procedure not to cover the he and his misguided Court’s decision in treating Mertens, physician sought. treating 255-62, 508 U.S. at however, physician, give up did not and in (holding that “appropriate eq- relented, plan 502(a)(3) time the administrator uitable relief’ under ERISA part. By then it too late. encompass does not compensatory dam- ages). And suggestion there is no in the On these facts it seems to me clear preemption cases that state suits based on a) beyond peradventure that the ad- underlying negligence gave rise to not, any way, ministrators were acting an erroneous coverage decision can survive b) doctors, as Mr. they Cicio’s what under ERISA. See Pilot Ins. Co. v. Life doing perhaps were negligently was— —de- Dedeaux, termining scope coverage of an L.Ed.2d 39 (holding preempted a c) contract, ERISA-plan that aas result of state-law claim allegedly based on improp- allegedly improper denial coverage, benefits). er processing of obtain, financially Mr. Cicio was unable to time, the treatment he treating and his none, is, There is except for the d) seek, physician continued to unexplained comment in Pegram —on catastrophic, consequential damages which majority puts weight— —Mr. such improper Cicio’s death' —flowed from the dealing medically based But errors. misreading ERISA-plan coverage. that well intentioned only dicta can make then damages. Mrs. Cicio sued for those sense where the underlying negligence If paradigmatic remedy this is not a suit to plausibly also constitutes medical maltreat- rights the violation of under the terms of by party ment who can be deemed to be I plan, don’t what is. know a treating physician physician’s or such a employer, Pegram.4 as was the case in majority The tries to make much of the Where, here, relationship no such exist- fact coverage that the decision was errone- ed, reason, apparent there nois in state or ously made because of a medical error on law, treating federal the unlawful cov- part. administrator’s may That erage any decision differently any from be, well but that fact seems to me irrele- other coverage unlawful decision that is Indeed, vant. its why, irrelevance shows not based on medical error. best, majority opinion only band- aids a gaping wound. end, stretching to avoid preemp-

Improperly coverage erroneous deci- tion order to allow state actions for by plan sions administrators can be made consequential damages in cases like this reasons, one, number of wrongful which the coverage deci- course, legal Pegram, cal treatment is worse off—in preemption terms of was not damages one whose medical maloccur- decision. —than malpractice. rence was due to based, help a few medically will sion will, It Mrs. Cicio. like

deserving people, all those who suf-

however, unaided leave damages as a consequential identical

fer wrongful non-medically based

result of nothing And there

coverage decisions. that seems theory practice

in ERISA treatment. such different justify

me to

III. I result majority reaches a case, ap- and I just in

believe to be fits with that result neither

plaud it. Since nor —ex- of ERISA structure existing anecdotally occasionally and

cept —solves problem caused damages consequential denial

Court’s ERISA, from respectfully dissent I opinion. majority’s

Part V of EZE, Petitioner-Appellant,

Louis SENKOWSKI, Superinten-

Daniel A.

dent, Facili- Clinton Correctional

ty, Respondent-Appellee. No. 99-2261.

Docket Appeals, Court of

United States Circuit.

Second Dec. 2002.

Argued: Feb.

Decided:

Case Details

Case Name: Bonnie Cicio, Individually and as Administratrix of the Estate of Carmine Cicio v. John Does 1-8, Vytra Healthcare, and Brent Spears, M.D.

Court Name: Court of Appeals for the Second Circuit

Date Published: Mar 12, 2003

Citation: 321 F.3d 83

Docket Number: Docket 01-9248

Court Abbreviation: 2d Cir.