Case Information
*1
Opinions of the United States Court of Appeals for the Third Circuit
Pryzbowski v. US Healthcare Inc.
Precedential or Non-Precedential: Docket 99-5920
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"Pryzbowski v. US Healthcare Inc." (2001). 2001 Decisions. Paper 62. http://digitalcommons.law.villanova.edu/thirdcircuit_2001/62
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*2 Filed March 27, 2001 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 99-5920 LINDA PRYZBOWKSI, Appellant v. U.S. HEALTHCARE, INC.; MEDEMERGE, P.A.; JOHN PILLA, M.D.; CAROL E. SGAMBELLURI, M.D.; KENT R. ELLIS, M.D.; JANE AND JOHN DOES 1-5; CORPORATIONS A-Z, such defendants being named fictitiously to represent individuals and/or business entities whose actions led to the delayed performance of surgery upon Linda Pryzbowski
On Appeal from the United States District Court for the District of New Jersey (D.C. No. 97-cv-03097)
District Judge: Hon. Maryanne Trump Barry Argued: November 14, 2000 Before: SLOVITER, AMBRO and WEIS, Cir cuit Judges (Field: March 27, 2001)
*3 Jerrold D. Goldstein (Argued) North Plainfield, NJ 07060 Attorneys for Appellant Edward S. Wardell (Argued) Kelley, Wardell & Craig Haddonfield, NJ 08033 Attorney for U.S. Healthcare, Inc. Melvin Greenberg (Argued) Greenberg, Dauber Epstein & Tucker Newark, NJ 07102 Attorney for Medemerge, P.A., John Pilla, M.D., Carol E. Sgambelluri, M.D., and Kent R. Ellis, M.D. Herbert J. Stern Stern & Greenberg Roseland, NJ 07068 Attorney for Amicus Curiae- Appellee The Medical Society of New Jersey OPINION OF THE COURT
SLOVITER, Circuit Judge. Before us is Linda Pryzbowski's appeal of two orders of the United States District Court for the District of New Jersey: (1) the December 3, 1997 order dismissing her claims against U.S. Healthcare for its delay in approving requested services after determining that those claims were completely preempted under S 502(a) of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. S 1132(a)(1)(B); and (2) the September 8, 1999 order granting summary judgment on the state law claims in favor of the remaining defendants, Medemer ge, P.A. and Dr. John Pilla, Dr. Carol E. Sgambelluri, and Dr. Kent R. Ellis ("the physician defendants"), on the gr ound that those
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claims were expressly preempted byS 514(a) of ERISA, 29 U.S.C. S 1144(a). See Pryzbowski v. U.S. Healthcare, Inc.,
Our review of the District Court's orders granting dismissal and summary judgment based on ERISA preemption is plenary. See Travitz v. Northeast Dep't ILGWU Health & Welfare Fund, 13 F .3d 704, 708 (3d Cir. 1994). When reviewing the order granting dismissal, we must accept as true all the factual allegations in the complaint and draw all reasonable inferences fr om them. See Banks v. Wolk,
I.
FACTS AND PROCEDURAL POSTURE Pryzbowski is enrolled in The Health Maintenance Organization of New Jersey, Inc., a wholly owned subsidiary of U.S. Healthcare, Inc. (hereafter "U.S. Healthcare"), which is a health maintenance organization ("HMO") offered by the employer of Pryzbowski's husband under its employee benefit plan within the terms of ERISA. On November 10, 1993, Pryzbowski sought treatment from Medemerge, her primary care provider, for sever e back pains that she had been experiencing for several days. Medemerge is a physician practice group under contract with U.S. Healthcare to provide health care services. Pryzbowski had previously undergone numerous sur geries for her back, the most recent having been performed by Dr. Giancarlo Barolat of Thomas Jefferson University Hospital in Philadelphia, all of which were covered under her previous health care plan. At Medemerge, she was treated at different times by Dr. John Pilla, Dr. Carol E. Sgambelluri, and Dr. Kent R. Ellis.
A CT scan performed on November 29, 1993 revealed disc degeneration and a large, extra-dural defect
*5 compressing the thecal sac, consistent with disc herniation. It also showed a previously implanted neur ostimulator. Medemerge referred Pryzbowski to Dr . Alan Sarokhan, an orthopedic surgeon. Dr. Sarokhan wrote to Dr. Ellis, stating that "[s]he certainly needs a neurosur gical evaluation and needs one promptly. . . . It is my opinion that she will most likely find that the most recent operating surgeon is the only one in the area who will be likely to even approach this with any confidence." App. J, at J-2. On December 9, 1993, Pryzbowski went to see Dr. Aiden Doyle, a neurosurgeon, again through a referral from Medemer ge. Dr. Doyle concluded, "she should go back to the sur geon who put it in. I have discussed this with them and obviously I really don't feel that I should be fiddling with that." App. K, at K3.
Based on these two reports, Medemerge sent a request to U.S. Healthcare on December 15, 1993 for a consultation with Dr. Barolat, who was the neur osurgeon who last performed surgery on Pryzbowski. Dr. Barolat was not a participant in the particular plan offer ed by U.S. Healthcare. Pryzbowski's policy with U.S. Healthcare required that it give prior written authorization for services by non-participating providers and facilities. U.S. Healthcare approved the consultation and Dr. Barolat examined Pryzbowski on January 19, 1994. He concluded that surgery was needed and that the following specialists or specialists' services were requir ed: spinal instrumentation and fusion by a separate orthopedic surgeon, pulmonary clearance and follow-up fr om Dr. Cohen, consultation with the Pain Service, and a psychological assessment and follow-up. The specialists to whom he referred were also associated with Thomas Jefferson University Hospital and outside U.S. Healthcare's network.
Over the next few months, Pryzbowski sought to get U.S. Healthcare to approve the recommended surgery by Dr. Barolat and the related services. In the meantime, Pryzbowski was seen by in-network specialists, including Dr. Edward Barrett (a mental health specialist), Dr. Alexander Levin (a pain management specialist), and Dr. M.A. Sarraf (a pulmonary specialist) between February 19,
*6 1994 and April 18, 1994, and they transmitted their reports thereafter. It is evident that this was not satisfactory to Dr. Barolat, because a handwritten note dated May 3, 1994, headed "Stephanie - Dr. Barolat's office," states "Dr. will not perform the surgery unless specials [sic] at Jefferson in consult. USHC will not approve." Appellees' App., Lang Certification, Ex. A. U.S. Healthcare authorized the out-ofnetwork specialists' services and the back sur gery on June 30, 1994, and Dr. Barolat perfor med the surgery on Pryzbowski on July 7, 1994. Unfortunately, Pryzbowski continued to suffer from severe back pain after the surgery. Dr. Barolat later opined "that the persistence of the excruciating pain . . . was most likely caused by the significant delay that occurred between the onset of the symptomatology and the surgical intervention." App. M, at M-4.
Pryzbowski filed a complaint, later amended, against U.S. Healthcare, Medemerge, and three physicians with Medemerge in the Superior Court of New Jersey. She asserts six counts against U.S. Healthcare, which allege that U.S. Healthcare "negligently and car elessly delayed in giving its approval for the necessary sur gery which the plaintiff . . . urgently needed," causing Pryzbowski severe and permanent injury, emotional distress, and future expenses for medical care and treatment (Count One); that U.S. Healthcare's delay was arbitrary and capricious (Count Two); and that, by delaying its approval for the surgery, U.S. Healthcare "acted with a willful and wanton disregard for the harm that would likely result to the plaintiff " (Count Three). The complaint also asserts that U.S. Healthcare's delay in approving the sur gery breached its health insurance contract with Pryzbowski (Count Four); that the delay in surgery approval was"in bad faith" (Count Five); and that U.S. Healthcare breached its duty to "screen, hire, train and employ capable and responsible individuals . . . to make thoughtful and reasonable decisions as to healthcare" (Count Seven).
In the five counts Pryzbowski asserts against Medemerge and/or the physician defendants, she alleges that Medemerge "negligently and carelessly delayed in authorizing and/or obtaining authorization fr om U.S.
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Healthcare" for the surgery (Count Eight); that Medemerge, in failing to obtain authorization, "acted with a willful and wanton disregard for the harm that would likely result to the plaintiff " (Count Nine); that the physician defendants "negligently and carelessly delayed in authorizing and/or obtaining authorization" for the back sur gery (Count Ten); and that they "acted with a willful and wanton disregard" in delaying authorization (Count Eleven). Another count alleges that Medemerge breached its duty to "screen, hire and employ capable and responsible individuals to serve as its agent, servants, and/or employees" (Count Six). U.S. Healthcare removed the case to the United States District Court for the District of New Jersey. On December 3, 1997, the District Court granted U.S. Healthcar e's motion to dismiss the counts against it (Counts 1-5, 7). Subsequently, Medemerge and the physician defendants moved for summary judgment on the remaining counts, which motion was granted on September 8, 1999. Pryzbowski now appeals both the December 3, 1997 dismissal and the September 8, 1999 summary judgment order. We have jurisdiction under 28 U.S.C. S 1291. II.
DISCUSSION
A. Claims Against U.S. Healthcare
There are two separate but related pr eemption issues that arise under ERISA, both of which are pr esented in this case. The application of express preemption, set forth in S 514(a) of ERISA, arises in connection with Pryzbowski's claims against Medemerge and the physician defendants. Her claims against U.S. Healthcare raise the issue of complete preemption, a jurisdictional concept based on S 502(a) of ERISA.
We first consider Pryzbowski's challenge to the District Court's holding that removal was proper and that it had subject matter jurisdiction over the claims against U.S. Healthcare because they were completely pr eempted under S 502(a) of ERISA. Pryzbowski's complaint, originally filed in
*8
state court, appeared on its face to allege only state causes of action and named as defendants parties who wer e not completely diverse from Pryzbowski, ther eby displaying no obvious basis for removal to federal court under 28 U.S.C. S 1441. In Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Trust for S. Cal.,
Under the "well-pleaded complaint" rule, federal question jurisdiction exists only when an issue of federal law appears on the face of the plaintiff 's complaint. The anticipation that a defendant may raise a federal defense will not confer federal question jurisdiction. On the other hand, "any complaint that comes within the scope of [a] federal cause of action necessarily `arises under' federal law" and is therefore completely pr eempted. Franchise Tax Bd.,
It was in Metropolitan Life Ins. Co. v. T aylor,
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"to enforce benefit rights under the plan or to recover benefits under the plan . . . are to be r egarded as arising under the laws of the United States in similar fashion to those brought under section 301 of the Labor -Management Relations Act of 1947." H.R. Conf. Rep. No. 93-1280, at 327 (1974), reprinted in 1974 U.S.C.C.A.N. 5038, 5107. Following the decision in Metropolitan Life, there can be no question that "causes of action within the scope of the civil enforcement provisions of S 502(a) [are] removable to federal court." Metropolitan Life,
We do not understand Pryzbowski to be challenging the principle that such claims are completely pr eempted but to be arguing that the claims she asserts against U.S. Healthcare were not removable because they did not fit within S 502(a). Section 502(a) allows a beneficiary or participant of an ERISA-regulated plan to bring a civil action "to recover benefits due to him under the terms of his plan, to enforce his rights under the ter ms of the plan, or to clarify his rights to future benefits under the terms of the plan." 29 U.S.C. S 1132(a)(1)(B). UnderS 502(a), a beneficiary may obtain accrued benefits due, a declaratory judgment about entitlement of benefits, or an injunction to require the administrator to pay benefits. See Pilot Life Ins. Co. v. Dedeaux,
This court has on several occasions consider ed whether a plaintiff 's claim against his or her HMO is completely preempted under ERISA. In Dukes v. U.S. Healthcare, Inc.,
*10 plaintiffs in Dukes alleged that the HMO failed to exercise reasonable care in providing medical treatment, their claims were not completely preempted. See id. at 358.
Thereafter, in In re U.S. Healthcare, Inc.,
Most recently, in Lazorko v. Pennsylvania Hospital,
Though the quality-quantity distinction was helpful in those cases, we have acknowledged that the distinction would not always be clear. See Dukes,
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care benefit at all. See id. And in In re U.S. Healthcare, we noted that making the quality-quantity distinction would be particularly difficult when an HMO has acted as both a plan administrator and a provider of medical services. See
The recent Supreme Court decision in Pegram v. Herdrich,
This court has not had occasion to consider how a claim that the HMO or plan administrator delayed in the approval of benefits should be treated under ERISA. It is evident that a claim alleging that a physician knowingly delayed in performing urgent surgery on a patient whose appendix was about to rupture would relate to the quality of care, and not be subject to removal on the basis of complete preemption. On the other hand, a claim alleging that an HMO declined to approve certain requested medical services or treatment on the ground that they were not covered under the plan would manifestly be one regarding the proper administration of benefits. Such a claim, no matter how couched, is completely preempted and removable on that basis. See Dukes,
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In analyzing whether a claim falling between these poles is completely preempted, it is necessary to r efer to S 502(a). As the Court stated in Metropolitan Life, "Congress has clearly manifested an intent to make causes of action within the scope of the civil enforcement pr ovisions of S 502(a) removable to federal court."
Counts One through Five of Pryzbowski's complaint allege that U.S. Healthcare negligently and car elessly delayed approval of her surgery with Dr . Barolat, acted in an arbitrary and capricious manner in doing the same, acted in willful and wanton disregard of her health, acted in bad faith, and breached her health insurance contract. Underlying these allegations of delay is the policy adopted by U.S. Healthcare (and many other HMOs) r equiring beneficiaries either to use in-network specialists or to obtain approval from the HMO for out-of-network specialists. These activities fall within the r ealm of the administration of benefits.
Had Pryzbowski sought to accelerate U.S. Healthcar e's approval of the use of out-of-network pr oviders, she could have sought an injunction under S 502(a) to enforce the benefits to which she was entitled under the plan, thereby using the provisions of the civil enfor cement scheme provided by Congress. There have been numerous cases in which the courts have issued preliminary injunctions under similar circumstances. See, e.g., Marro v. K-III Communications Corp.,
Pryzbowski's final claim against U.S. Healthcar e (Count Seven) alleges that it failed properly to hir e, train, and
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supervise its employees "to make thoughtful and r easonable decisions as to healthcare." Amended Complaint, Count 7. Although ostensibly directed at the provision of medical treatment, a federal court may "look beyond the face of the complaint to determine whether a plaintif f has artfully pleaded his suit so as to couch a federal claim in terms of state law," Jass,
Pryzbowski contends that her claims are analogous to the claims made in Dukes and In re U.S. Healthcare, where we held that complete preemption was inapplicable and removal improper. In both cases, we recognized that the HMO had assumed the dual role of an administrator of benefits and a provider of medical services. In In re U.S. Healthcare, we held that the HMO's policy to discharge newborn infants within 24 hours was essentially a "medical determination of the appropriate level of care."
*14 to provide benefits due under the ERISA plan and therefore were not completely preempted.
In the case before us, as we note above, Pryzbowski's claims against U.S. Healthcare are limited to its delay in approving benefits, conduct falling squar ely within administrative function. A holding that Pryzbowski's claims against U.S. Healthcare are not completely preempted would open the door for legal challenges to cor e managed care practices (e.g., the policy of favoring in-network specialists over out-of-network specialists), which the Supreme Court eschewed in Pegram. Cf.
We are not unaware that our holding that U.S. Healthcare will not be required to explain or defend the delay in provision of services to Pryzbowski may leave her, and other beneficiaries, without effective r elief for the improper administration of benefits. The delay attendant on the required preauthorization by HMOs has been a matter of public concern. In fact, this has led the Department of Labor recently to publish a long pending final rule that requires that claims seeking pretr eatment authorization for medical services must be decided within 15 days and that imposes other stringent time limits on appeals fr om adverse decisions. See 65 Fed. Reg. 70,245 (Nov. 21, 2000). While the new rule applies only to claims filed on or after Jan. 1, 2002, it should serve to give notice to health car e administrators that ERISA not only provides pr otection from litigation arising from benefits administration but imposes certain responsibilities with r espect to such administration. B. Claims Against Medemerge and the Physician Defendants
- Jurisdiction
Unlike U.S. Healthcare, Medemerge and the physician defendants do not contend that the claims against them are
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completely preempted under S 502(a). Neither can their anticipated defense of express preemption under S 514(a) be the basis for removal of these claims. See Franchise Tax Bd.,
In this case, the District Court did not rely on S 502(a) preemption for its jurisdiction over these defendants but instead exercised supplemental jurisdiction under 28 U.S.C. S 1367. That section authorizes a district court to exercise "supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." 28 U.S.C. S 1367(a). W e have interpreted this provision to require the following: (1) "
[t]he federal claims must have substance sufficient to confer subject matter jurisdiction;' " (2) "
[t]he state and federal claims must derive from a common nucleus of operative fact;' " and (3) " `the plaintiff 's claims [must be] such that [s/]he would ordinarily be expected to try them all in one judicial proceeding.' " In re Prudential Ins. Co. Am. Sales Practices Litig.,
We have already determined that the District Court had subject matter jurisdiction over Pryzbowski's claims against U.S. Healthcare. Moreover, Pryzbowski's claims against Medemerge and the physician defendants ar e derived from the same factual predicate as her claims against U.S. Healthcare, as all her claims stem from the treatment she received from all of the defendants in esponse to her complaint of back pain and the delay she experienced in securing the approval for the out-of-network physicians and services that Dr. Barolat believed wer e necessary. Under these circumstances, it would be expected that all of
*16 Pryzbowski's claims against the defendants would be combined in one judicial proceeding. Ther efore, the District Court had the authority for its exercise of supplemental jurisdiction over the claims against Medemer ge and the physician defendants.
Pryzbowski argues that once the claims against U.S. Healthcare were dismissed, the District Court should have remanded her claims against the other defendants to state court. That was certainly an option for the District Court but not one it was obliged to take. In New Rock Asset Partners, L.P. v. Preferred Entity Advancements, Inc.,
Pryzbowski's challenge to the District Court's failure to remand seems to be directed exclusively to a lack of jurisdiction in the District Court. She has given us no persuasive reason why the District Court's decision to exercise supplemental jurisdiction was an abuse of its discretion. The District Court had become fully familiar with the factual background and the positions of the parties, and we see no reason why it should not have continued to exercise jurisdiction over Pryzbowski's claims against Medemerge and the physician defendants. We certainly cannot conclude that its decision was an abuse of discretion. 2. Summary Judgment
Once the District Court dismissed the claims against U.S. Healthcare (Counts 1-5 and 7) and Counts 9 and 11 were dismissed without opposition, see Pryzbowski,
-
The District Court dismissed the claims against Dr. Sgambelluri because Pryzbowski's brief in that court opposing summary judgment made no mention of that defendant. See Pryzbowski,
64 F. Supp. 2d at 363 n.1. Her brief in this court does not mention that portion of the District Court's opinion, and we conclude that she does not challenge it.
*17 moved for summary judgment. In support of their motion, defendants filed the certification of their counsel, Joseph R. Lang, who attached extensive documentary evidence and references to certain depositions. These documents set forth Pryzbowski's medical history in connection with her complaints of back pain and efforts to obtain the necessary treatment and services. 2 The District Court noted that "plaintiff has not provided this court with any evidence whatsoever in opposing this motion but merely has referenced defendants' exhibits fr om time to time," and that it was "unable to consider unsupported conclusory allegations." Id. at 364 n.6.
The District Court viewed the defendants' motion for summary judgment as having two bases. The first was that Pryzbowski's claims were preempted byS 514(a) of ERISA. The second was that Pryzbowski failed to state a claim for which relief can be granted. We consider them in turn. a. Express Preemption by S 514(a)
Section 514(a), the express preemption pr ovision of ERISA, provides that ERISA "shall supersede any and all State laws insofar as they . . . relate to any employee benefit plan" covered by the statute. 29 U.S.C. S 1144(a). ERISA also includes a saving clause protecting from preemption state laws regulating insurance, banking, or securities. See 29 U.S.C. S 1144(b)(2)(A). As we have explained, "[u]nlike the scope of S 502(a)(1)(B), which is jurisdictional and creates a basis for r emoval to federal court, S 514(a) . . . governs the law that will apply to state law claims, regardless of whether the case is brought in state or federal court." Lazorko, 237 F .3d at 248.
In one of the early cases to come before the Supreme Court concerning the express preemption provision, the Court stated that a law "relates to" an employee benefit plan "if it has a connection with or refer ence to such a plan." Shaw v. Delta Air Lines, Inc.,
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was needed in drawing the line between what was preempted and what was not. It attempted to do that in New York State Conference of Blue Cr oss & Blue Shield Plans v. Travelers Ins. Co.,
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facilities not preempted despite some bur den on administration of ERISA plans); but see Alessi v. RaybestosManhattan, Inc.,
The issue of express preemption arises in other contexts than challenges to state statutes. One of the most frequent is the reliance by HMOs and insurance companies on S 514(a) in defending suits brought by beneficiaries arising out of the denial of plan benefits. This line of cases stems from the Supreme Court's decision in Pilot Life Ins. Co. v. Dedeaux,
Thus, suits against HMOs and insurance companies for denial of benefits, even when the claim is couched in terms of common law negligence or breach of contract, have been held to be preempted by S 514(a). See, e.g., Bast v. Prudential Ins. Co. of Am.,
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The rationale for these holdings is that the decision whether a requested benefit or service is covered by the ERISA plan falls within the scope of the administrative responsibilities of the HMO or insurance company, and therefore "relates to" the employee benefit plan. The same rationale has been applied by courts holding that suits against HMOs for delay in authorizing benefits wer e preempted under S 514(a). For example, in Kuhl v. Lincoln Nat'l Health Plan of Kan. City, Inc., 999 F .2d 298, 302-03 (8th Cir. 1993), the court considered a claim that the HMO canceled the beneficiary's surgery in an out-of-network hospital, thereby delaying his ability to r eceive treatment and leading to his death. Although the complaint br ought by his survivors alleged common law claims and characterized the HMO's actions as malpractice, the court viewed the claim as based on improper pr ocessing of medical benefits, and therefore expr essly preempted by S 514(a). See id. Likewise, in Spain v. Aetna Life Ins. Co.,
In contrast, claims challenging the quality of car e are not preempted by S 514(a). As previously discussed, our decisions in Dukes, In re U.S. Healthcare, and Lazorko made clear our view that claims based on medical treatment decisions are still state law claims. In Dukes, we examined the legislative history of ERISA and found nothing suggesting that Congress intended "to control the quality of the benefits received by plan participants[,] . . . a field traditionally occupied by state regulation."
When Congress enacted ERISA it was concer ned in large part with the various mechanisms and institutions involved in the funding and payment of plan benefits. That is, Congress was concer ned "that owing to the inadequacy of current minimum[financial and administrative] standards, the soundness and stability of plans with respect to adequate funds to pay promised benefits may be endangered." S 2, 29 U.S.C.
*21 S 1001(a). Thus, Congress sought to assur e that promised benefits would be available when plan participants had need of them and S 502 was intended to provide each individual participant with a r emedy in the event that promises made by the plan wer e not kept.
Id. (brackets in original).
We followed that view in In re U.S. Healthcare,
Moreover, there is a strong suggestion in Pegram that claims based on medical treatment decisions r emain outside the preemptive effect of ERISA. In holding that mixed eligibility/treatment decisions made by an HMO are not encompassed by the fiduciary duties imposed by ERISA, the Court made clear its view that ERISA was not designed to allow plan participants "to bring malpractice actions in the guise of federal fiduciary br each claims against HMOs."
The District Court here recognized that a malpractice claim by Pryzbowski against Medemerge and the physician defendants would not be preempted. However , that court, after conducting a comprehensive review of the relevant cases, concluded that "[i]t is clear that plaintiff 's claims, at their core, challenge the poor administration of her plan -the failure to promptly approve the r equest for Dr. Barolat to perform the surgery -- rather than the quality of care she received. "
*22 utilization review, or pre-authorization process, even if alleged as a state law violation against the physician, would, at the very least, `relate to' an ERISA plan and, thus, be preempted." Id. at 367. W e cannot agree that all of Pryzbowski's claims against Medemerge and the physician defendants should be characterized as "relating to" the administration of her plan.
It is true that Pryzbowski has not alleged that the physician defendants at Medemerge failed to diagnose or properly treat her back pain. She concedes that those physicians found that her problem requir ed specialty care and referred her to an orthopedic sur geon, a neurosurgeon, and eventually the out-of-network neurosur geon who had originally performed surgery on Pryzbowski. On the other hand, Pryzbowski's claims against Medemerge and the physician defendants are not based on a denial of benefits and therefore differ from the typical administration of benefits claims against HMOs. Medemerge and the physician defendants do not contend that they acted as U.S. Healthcare's agent in the administration of the plan that covered Pryzbowski. Admittedly, they did not have the responsibility to make coverage decisions. Indeed, they argue in their brief that they had no power to authorize services by out-of-network physicians and that those questions -- which have been held to be administrative as to HMOs -- were always relayed to U.S. Healthcare. As these defendants disclaim any administrative authority or responsibility with respect to the plan, it follows that the preemption afforded by S 514(a) for claims "relating to" a plan is inapplicable.
Our decisions have not focused on the extent to which the scope of a physician's responsibility to a patient goes beyond the mere treatment of that patient's medical complaint. It remains unclear whether the New Jersey Supreme Court would include within the physicians' duty of care the processing of their patients through the office, including matters such as the completion of for ms, referral to other physicians, arrangements for laboratory tests, and other general office procedures that may be necessary for the complete care of the patient.
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We note that in Nealy v. U.S. Healthcar e HMO,
Nealy stands for the proposition that under New York law the physician's duties in providing car e to his/her patients may be broader than the mere medical tr eatment decision. Pryzbowski's complaint may be fairly read to allege that Medemerge and the physician defendants did not adequately perform or supervise the per formance of some of the office functions that may be part of patient care. On the sparse record before us and in view of the inadequate briefing on this point before us and in the District Court, we are not prepared to state as a matter of law that there is no conceivable malpractice claim against these defendants under New Jersey law, and hence cannot agree that all of the claims against them are pr eempted under S 514(a). 3 3. There are a number of pending motions. The appellees have moved to dismiss the appeal or in the alternative to strike the appellant's brief and appendix because Pryzbowski included in the Joint Appendix excerpts of the deposition testimony of Dr. Linda Peeno, her medical ethics expert, Anita McGinley, former HMO coordinator at Medemerge, Sandra Coles-
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b. Failure to State a Claim
Our decision that Pryzbowski's claims against Medemerge and the physician defendants are not expr essly preempted does not mean that they necessarily survive dismissal under summary judgment. Only after the District Court determines the scope of New Jersey malpractice law will it be able to decide whether Pryzbowski has offer ed sufficient evidence to make a genuine issue of material fact that Medemerge and the physician defendants failed to meet the applicable standard.
There is one claim, however, that we ar e in a position to resolve. The District Court held that Pryzbowski failed to state a claim for negligence upon which relief can be granted. The District Court equated the negligence claim with Pryzbowski's contention that the physician defendants violated a state common law "duty to advocate" to the HMO so as to expedite the approval of her sur gery. Although we read Pryzbowski's negligence claim against Medemerge and the physician defendants as broader than the claimed duty to advocate, we agree with the District Court's analysis of the latter.
The District Court reasoned that a state law claim for negligence must allege "(1) a duty of car e owed by defendant to plaintiff; (2) a breach of that duty by defendant; and (3) an injury to plaintiff pr oximately caused by defendant's breach." Endre v. Arnold,
Forbes, nurse employed by U.S. Healthcare to r eview out-of-network authorizations, and Dr. John Pilla of Medemer ge that were not put in the record developed in the District Court. In turn, Pryzbowski has moved to expand the record to include portions of the depositions that were not before the District Court, or, in the alternative, that we ignore the references to the material at issue. W e have consistently stated that the courts of appeals can only "review the decision below based on the record that was before the district court." Federal Ins. Co. v. Richard I Rubin & Co., Inc.,
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duty exists is solely a question of law to be decided by a court." Id. The Medical Society of New Jersey filed an amicus curiae brief in this court to advance its position that a physician does not, and should not, have a"duty to advocate" with a patient's health care plan when it denies or delays treatment the physician has r equested. Pryzbowski attempts to identify such a duty thr ough her medical ethics expert, the Hippocratic Oath, and the American Medical Association's Code of Medical Ethics. The Medical Society, besides providing the surprising information that the Hippocratic Oath is not universally used throughout the medical schools of this country and that there are at least ten versions of that oath, asserts that there is no "legal duty that subjects physicians who have committed no malpractice to liability for injuries r esulting from delays in benefit determinations by plan administrators over whom the physicians have no control." Br. of Medical Society at 8-9 (emphasis in original).
We take no position whether New Jersey, or any other state, should impose such a duty, as that is not within our domain. On the issue before us, we agree that physicians, under existing New Jersey law, have no duty to advocate on behalf of their patients to an HMO or any health insurance plan for the timely approval of benefits. Cf. Baxt v. Liloia,
III.
CONCLUSION
In summary, we hold that the District Court did not err in holding that Pryzbowski's claims against U.S. Healthcare were completely preempted; that New Jersey does not
*26 recognize a physician's duty to advocate; and that the other claims asserted by Pryzbowski against Medemer ge and the physician defendants are not expressly pr eempted as a matter of law but require additional consideration by the District Court.
We note that, as a result of the enactment of ERISA and the substantial changes in the delivery of health care, new legal issues regarding rights and r esponsibilities have arisen. The law remains, to some extent, in a state of flux. It is for Congress and not the courts to decide whether it is sound policy for our health care system to limit or channel the relief available or whether ERISA should allow for broader remedies for beneficiaries in the world of managed care.
For the reasons set forth above, we will affirm the December 3, 1997 order dismissing the claims against U.S. Healthcare. We will affirm that portion of the order of September 8, 1999 dismissing the claims against Medemerge and the physician defendants insofar as they allege duty to advocate, and we will vacate the r emainder of that order and remand to the District Court for further proceedings in accordance with this opinion.
A True Copy: Teste: Clerk of the United States Court of Appeals for the Third Circuit