Ghee v. Regional Medical Center Board et al

Filing 21

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 12/2/2015. (AVC)

FILED
2015 Dec-02 PM 03:52
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
M. DOUGLAS GHEE, as personal
representative of BILLY KEITH
FLEMING, deceased,
Plaintiff,
v.
REGIONAL MEDICAL CENTER
BOARD; USABLE MUTUAL
INSURANCE COMPANY d/b/a
ARKANSAS BLUE CROSS AND
BLUE SHIELD and d/ba/
BLUEADVANTAGE
ADMINISTRATORS OF
ARKANSAS; THE CRAWFORD
CLINIC, LLC; GEORGE I
CRAWFORD, JR.; J BRITNEY
WILLIAMS; MICHAEL
PROCTOR; SUMMER PHELPS;
CHRISTOPHER SIMMONS; and
DONALD ROSEN,
Defendants.

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MEMORANDUM OPINION
Now pending before the court is a motion to remand. M. Douglas Ghee,
personal representative of the departed Billy Fleming (“Fleming”), sued a number
of defendants in Alabama state court and alleged that they caused Fleming’s death.

Among the defendants was USAble, who removed the case to this court, alleging
that the lone claim asserted against USAble was completely preempted by ERISA.
Thereafter, Ghee moved for remand, and the court stayed the proceedings in this
case until the existence of federal subject matter jurisdiction could be ascertained.
Being fully apprised of the parties’ contentions, the motion is GRANTED, and the
case is REMANDED to the Circuit Court of Calhoun County, Alabama for the
reasons set out hereafter.
I. Factual and Procedural Background
Fleming died on July 16, 2013 from “septic shock due to peritonitis due to
colonic perforation.” (Doc. 1-1, ¶ 46). Fleming’s colon burst because it was
completely filled with impacted feces. He first complained of constipation,
abdominal pain, and impaction on June 11, 2013, when he was admitted to the
Northeast Alabama Regional Medical Center (“RMC”). The next day, a scan of his
abdomen showed a “moderate amount of fecal material” within his sigmoid colon
and rectum.
Two days later, Dr. Donald Rosen attempted to perform a colonoscopy on
Fleming, but he was unable to perform the procedure due to fecal obstruction. Dr.
Rosen therefore recommended that Fleming get a colectomy. On June 15, 2013,
Dr. George Crawford was consulted, and he agreed that Fleming should have a
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colectomy; Fleming was discharged on June 17. Crawford thereafter sought preapproval for surgery from USAble.
Around July 5, 2013, USAble informed Dr. Crawford and/or his clinic, the
Crawford Clinic, because USAble has determined that non-surgical treatment was
more appropriate than surgery. Fleming tried to convince USAble to approve the
surgery, to no avail. USAble did suggest, however, that Fleming try to convince
the hospital to perform the surgery on an emergency basis.
So Fleming returned to the hospital on July 11, complaining again of
abdominal pain. A CT of his abdomen showed a moderate of amount of retained
stool throughout Fleming’s colon, and he was discharged the same day after being
seen by Dr. Britney Williams. Fleming returned again three days later complaining
of severe abdominal pain and rectal bleeding and was discharged the same day.
Two days after that, Fleming was seen again and sent home. USAble
consistently recommended that Fleming receive non-surgical treatment during this
time. Fleming returned to the hospital at about 10:30 AM and died in the early
morning on July 16, 2013. Ghee filed this lawsuit in August of 2015.
Clearly mindful of the risk of removal when suing an ERISA entity, Ghee
attempted to delimit the claims asserted against USAble, which were wrongful

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death, negligence, wantonness, and medical malpractice.1 (Doc 1-1, ¶ 68). Because
so much turns on the complaint, it is simpler to reproduce it:
68.

69.

70.

71.

[USAble] had or voluntarily assumed one or more
of the following duties, jointly or in the
alternative: a duty to act with reasonable care in
the determining the quality of health care Billy
would receive; a duty not to provide to Billy a
quality of health care so low that it knew that Billy
was likely to be injured or killed; and a duty to
exercise such reasonable care, skill, and diligence
as other similarly situated health care providers in
the same general line of practice ordinarily have
and exercise in a like case.
[USAble] breached those duties, jointly or in the
alternative, as follows:
a. Negligently providing for a lower quality
of healthcare for Billy;
b. Wantonly providing for a lower quality of
healthcare for Billy;
c. Breaching the standard by (i) failing to
provide a higher quality of healthcare to
Billy (necessary, life saving surgery) and (ii)
failing to communicate adequately with
Billy’s healthcare providers his need for
surgery.
Those breaches combined with the actions of other
defendants as a legal cause of death for Billy Keith
Fleming, in that without the breaches, Billy would
have more likely than not survived.
Per Dukes v. US Healthcare, 57 F.3d 350 (3d Cir.

1

While the complaint lists these causes of action together, in a shotgun fashion, it
appears based on Ghee’s briefing that the only claim asserted is a wrongful death claim, and
paragraph 71 of the complaint supports this conclusion. “Ghee does not seek any benefits or even
compensatory damages (state law does not allow for such damages) but instead only the wrongful
death damages allowed by Alabama state law.”
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1995), Ghee makes no complaint that benefits
were denied to Billy; indeed, [USAble] provided
multiple, numerous and repeated benefits (a high
quantity) to Billy in an attempt to manage his
bowel obstruction without surgery. Ghee’s only
complaint against [USAble], as detailed above,
involves the quality of the benefit received,
specifically that it was of such a low quality (did
not include necessary surgery) that it caused
Billy’s death. Further, considering Billy is
deceased, he necessarily cannot attempt to force
[USAble] to provide any benefits to him. He is
dead. Because of this indisputable reality, Ghee
does not seek any benefits or even compensatory
damages (state law does not allow for such
damages) but instead only the wrongful death,
punitive damages allowed by Alabama state law.
USAble filed a notice of removal pursuant to 28 U.S.C. §§ 1441 & 1446
and its answer on August 20, 2015. Seven days later, it filed a Motion to Dismiss.
On September 9, 2015, Ghee moved to stay all proceedings in the lawsuit until the
resolution of his forthcoming motion to remand. The court granted the stay on
September 10, and Ghee filed his motion to remand, pursuant to 28 U.S.C. § 1447,
on September 21. The parties have filed their briefs, and the motion to remand is
now under submission. Because the court determines that it lacks subject matter
jurisdiction, the motion to remand is GRANTED.

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II. Discussion
A. The Well-Pleaded Complaint and Complete Preemption
Normally, a party seeking to avail himself of the sharply circumscribed
federal forum must show that federal jurisdiction lies on the face of the complaint,
so merely raising a federal defense in an answer will not do. See Louisville & N.R.
Co. v. Mottley, 211 U.S. 149, 152–53 (1908). This is often called the well-pleaded
complaint rule. Federal preemption is ordinarily a defense—meaning it does not
appear on the face of the complaint—so it usually cannot serve as the basis for
federal jurisdiction. Franchise Tax Bd. of State of Cal. v. Constr. Laborers
Vacation Trust for S. California, 463 U.S. 1, 18–19 (1983). But the Supreme
Court has held that some laws are completely preempted,2 reasoning that the
scheme of Congressional regulation in a particular field of law is so pervasive that
non-federal claims in that area of substantive law simply do not exist. See
Beneficial Nat. Bank v. Anderson, 539 U.S. 1, 7 (2003). Thus, a defendant in a
state action that is completely preempted need not clear the hurdle of the wellpleaded complaint rule to get into federal court.

2

While the antecedent factual questions (conflicts between state and federal law) are the
same in defensive preemption and complete preemption, referring to them both as preemption is
somewhat misleading. “[C]onfusion remains because the complete preemption doctrine is not a
preemption doctrine but rather a federal jurisdiction doctrine.” Speciale v. Seybold, 147 F.2d 612,
615 (7th Cir. 1998).
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ERISA’s private enforcement mechanism, section 502(a), codified at 29
U.S.C. § 1132(a), completely preempts state law claims. Metro. Life Ins. Co. v.
Taylor, 481 U.S. 58, 66 (1987). This is not to say that all state law claims against
ERISA entities are completely preempted; the party asserting federal subjectmatter jurisdiction must demonstrate that the claims satisfy the test set forth in
Aetna Health Inc. v. Davila, 542 U.S. 200 (2004).
Under the Davila test, a claim is completely preempted by ERISA if, and
only if, 1) “an individual, at some point in time, could have brought his claim
under [29 U.S.C. § 1132(a)(1)(B)],” and 2) “there is no other independent legal
duty implicated by defendant’s actions.” Davila, 542 U.S. 210, as construed by
Connecticut State Dental Ass’n v. Anthem Health Plans, 591 F.3d 1337, 1345
(11th Cir. 2009).3 The first prong is further subdivided into two parts: “(1) the
plaintiff's claim must fall within the scope of ERISA; and (2) the plaintiff must
have standing to sue under ERISA.” Connecticut Dental, 591 F.3d at 1350 (citing
Davila, 542 U.S. at 210).
But the Davila is in the details. More precisely, the complete preemption
inquiry is very fact intensive. See Davila, 542 U.S. at 210 (In step 1, “we must

3

The quotes come from Davila, but establishing it as a two-prong test using those
quotes, rather than the other, narrower, formulation in Davila, was the work of the Eleventh
Circuit.
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examine respondents' complaints, the statute on which their claims are based, and
the various plan documents.”). There are two important takeaways about Davila:
First, if any element of the test is not satisfied, subject matter jurisdiction is not
established. Borrero v. United Healthcare of New York, Inc., 610 F.3d 1296, 1304
(11th Cir. 2010). Second, despite the clarity of the legal standard in Davila, it does
not provide much guidance as to what factual content will satisfy the test; lower
courts must therefore be guided by past determinations of what kinds of statutes
are preempted.
B. Alabama’s Wrongful Death Statute
Alabama’s wrongful death statute allows a “personal representative” to:
commence an action and recover such damages as the
jury may assess in a court of competent jurisdiction
within the State of Alabama [...] for the wrongful act,
omission, or negligence of any person, persons, or
corporation, his or her or their servants or agents,
whereby the death of the testator or intestate was
caused, provided the testator or intestate could have
commenced an action for the wrongful act, omission, or
negligence if it had not caused death.
ALA. CODE § 6-5-410.
Unique among the fifty states, Alabama’s wrongful death statute allows for
only the recovery of punitive damages. Black Belt Wood Co., Inc. v. Sessions, 514
So.2d 1249, 1262 (Ala. 1986). Compensatory damages, including “[p]ecuniary
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loss, such as medical expenses attending the injury, and mental suffering are not to
be considered as elements of damage.” Board of Trustees of University of Ala. v.
Harrell, 188 So.2d 555, 556–57 (Ala. App. 1965). The rule “rests upon the divine
concept that all human life is precious,” Atkins v. Lee, 603 So.2d 937, 942 (Ala.
1992), and its “paramount purpose” is the “preservation of human life.” Sessions,
514 So.2d at 1258. Thus, the wrongful death action is designed “solely to protect
human life by deterring tortious acts that result in death and to impose civil
punishment on those who take human life.” King v. National Spa and Pool
Institute, Inc., 607 So. 2d 1241, 1246 (Ala. 1992).
While the cause of action is designed to benefit the next of kin, Brown v.
Morgan County, Ala., 518 F. Supp. 661 (N.D. Ala. 1981) (citing Bruce v. Collier,
127 So. 553, (Ala. 1930) overruled on other grounds, King, 707 So. 2d at 1241,
“the right of action which the statute gives is a new right, not derivative nor the
right of succession to the person slain.” Breed v. Atlanta, B. & C.R.R., 4 So.2d
315, 317 (Ala. 1941). “[T]he person bringing the cause of action does so as an
agent of legislative appointment for effecting the declared public policy of
preventing homicides.” Id. Additionally, the damages recovered are not to be used
to pay the liabilities of the decedent but are to distributed in accordance with
Alabama’s intestacy statute. See ALA. CODE § 6-5-410(c).
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To sum up, the Alabama wrongful death action vests a personal
representative with a new right that never existed in the decedent to recover
damages that do not compensate for the injury but vindicate the Alabama policy of
deterring death by awarding punitive damages to the next of kin.
C. Ghee’s Claims Could Not have Been Brought Under ERISA
Ghee’s claim is unusual, to say the least. The gist of it is that USAble
interjected itself as a healthcare provider for Fleming and then negligently
provided a suboptimal standard of care resulting in Fleming’s death. Ghee has
now brought this wrongful death action. The court concludes that this claim could
not have been brought under ERISA’s private enforcement mechanism, so it lacks
subject-matter jurisdiction over the claim. This conclusion also moots the issues of
whether Ghee had standing under ERISA and whether a truly independent right is
implicated, so they will not be addressed here.
An ERISA claim may be brought “to recover benefits due to him under the
terms of his plan, to enforce his rights under the terms of the plan, or to clarify his
rights to future benefits under the terms of the plan.” 29 U.S.C. § 1132(a)(1)(B).
Ghee’s first argument in support of remand is that, because this is a wrongful
death action, this does not fall within 29 U.S.C. § 1132(a)(1)(B); i.e., it is not an
action to recover benefits, enforce rights, or clarify rights. But the Supreme Court
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has made unmistakably clear that simply denominating a cause of action as “not
ERISA” is insufficient to avoid complete preemption. Davila, 542 U.S. at 214.
This argument fails.
Second, Ghee argues that the peculiar nature of the Alabama wrongful death
action means that it cannot be filed under ERISA. The argument runs like this: The
action only allows for punitive damages, not compensatory damages of any kind,
not even medical expenses, so it is inherently not an action “to recover benefits
due to him under the terms of his plan, to enforce his rights under the terms of the
plan, or to clarify his rights to future benefits under the terms of the plan.” 29
U.S.C. § 1132(a)(1)(B).
This is an appealing position as a matter of logic and language, and the
court would add a few observations to Ghee’s argument. First, section 6-5-410 is a
civil punishment imposed as a deterrent against tortious acts resulting in death. It
is difficult to imagine any scenario in which an ERISA insured would be entitled
to recover a deterrent against death as a plan benefit. Second, the wrongful death
claim is a new right,4 benefitting the next of kin apart from the testator’s estate,

4

Under Alabama law, personal injury or medical malpractice actions are distinct from
wrongful death, and they too survive the death of the tortiously injured. King, 607 So. 2d at 1246.
The court expresses no opinion about whether personal injury or medical malpractice claims in
this case would be completely preempted.
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that only comes into existence upon the decedent’s death. It is nonsensical to
contemplate an action to recover a plan benefit that cannot exist until the insured’s
death,5 and may not be used to satisfy the liabilities of the insured. Third, the
personal representative acts as “an agent of legislative appointment” advancing an
Alabama policy through an Alabama right created under Alabama law vested in
him. It is not an ERISA plan but the state of Alabama that creates the right to
recovery here.
USAble’s counter is that Davila precludes escape from complete
preemption by changing the remedy sought. It is true that seeking a remedy
unavailable under ERISA does not necessarily inoculate a complaint against
complete preemption, see Davila, 542 U.S. at 215, but it is venturesome to suggest
that the remedy sought could never influence the preemption analysis. See id.
(“Nor can the mere fact that the state cause of action attempts to authorize
remedies beyond those authorized by ERISA§ 502(a) put the cause of action
outside the scope of the ERISA civil enforcement mechanism.”). More important,
however, is the fact that this argument misunderstands section 6-5-410; it creates a

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To the extent that such a plan would be covered by ERISA, a death-benefit plan is
distinguishable from the case at bar because the individual who initiated the coverage created the
obligation by offering consideration during his or her life. Here, the right of recovery is triggered
only by the tortious killing of the decedent—a service for which the decedent presumably did not
contract.
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different right which is consequentially vindicated by means of a different remedy.
Defendant also complains that Ghee has cited no authority for the
proposition that when compensatory damages for the denial of benefits may not be
recovered, the suit avoids complete preemption. Yet, USAble cites no authority for
the proposition that a state law vesting a new right in a third party, not the insured,
can be brought under ERISA. Accordingly, there is no reason to reject the
fundamental appeal of Ghee’s argument, especially because the issue of whether
ERISA preempts the unique Alabama wrongful death statute is one of first
impression in this circuit.
While logic and language suggest that the Alabama wrongful death act falls
outside of the scope of complete preemption, it is unsatisfying to rely only on
deduction—the aphorism that “law is the perfection of reason,” In re Konowitz,
905 F.2d 55, 59 (4th Cir. 1990), notwithstanding. In keeping with Davila’s
direction to consider the plan,6 the complaint, and the statute, it is worth
considering whether any other cases have featured similar complaints.
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USAble has not provided information about the plan in its remand-related briefing, but
it attached information about the plan to its motion to dismiss, which it claims to have
incorporated by reference—in a footnote—into its remand briefing. Upon examination of the
motion to dismiss, the only reference to the plan vis-à-vis complete preemption is to show that it
is an ERISA covered plan. USAble has pointed to nothing in the plan vesting rights in Ghee prior
to Fleming’s death. Since it is USAble’s burden to prove subject matter-jurisdiction, see Roe v.
Michelin North America, Inc., 613 F.3d 1058, 1061 (11th Cir. 2010), the consequences of that
omission are theirs to bear.
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Beginning with Davila itself, the plaintiffs there sued for violation of a
Texas law because defendant Aetna failed to pay for a certain medication and
cover more than a single day’s stay in a hospital. 542 U.S. at 211. The Court
reasoned that because Aetna had refused to provide benefits guaranteed under
ERISA, the beneficiaries could have paid for the denied benefits themselves, and
then brought an action under the private enforcement mechanism to recover the
cost of the denied benefits. Ghee, in contrast, is vindicating an Alabama policy and
suing on a right that was not available to Fleming. Davila is inapposite.
So too with the other cases USAble cites supporting its position.
Connecticut State Dental was an action by dentists to recover on contracts in
which the insurance company allegedly improperly denied the dentists’ claims for
payment for treatment. 591 F.3d at 1350–51. The facts of Borrero v. United
Healthcare of New York, Inc., 610 F.3d 1296 (11th Cir. 2010) were similar. The
right to recover in these cases existed as a consequence of the ERISA plans; the
right to recover here came into existence after the beneficiary’s death and was
therefore not available to the beneficiary, as a part of his plan or otherwise.
The three wrongful death cases, Garrison v. Ne. Georgia Med. Ctr., Inc., 66
F. Supp. 2d 1336, 1343 (N.D. Ga. 1999) aff'd sub nom. Garrison v. Ne. Georgia
Med. Ctr., 211 F.3d 130 (11th Cir. 2000); Grady v. Bunzl Packaging Supply Co.,
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874 F. Supp. 387, 393 (N.D.Ga. 1994); and Dearmas v. Av-Med, Inc., 814 F. Supp.
1103, 1107 (S.D. Fla. 1983) are pre-Davila and rely upon the old distinction
between quality and quantity of care that Davila rejected, and that USAble
objected to in its notice of removal. None of these cases present the issue in this
case—a right of recovery that only comes into existence after the death of the
beneficiary, a recovery that cannot be used to pay the debts of the insured’s estate,
and a remedy that precludes recovery for the value of the ERISA benefits.
Finally, the Eleventh Circuit’s treatment of medical malpractice claims postDavila is worth considering, See Land v. CIGNA Healthcare of Florida, 381 F.3d
1274 (11th Cir. 2004). The case was vacated and remanded for further
consideration in light of Davila, and the original complaint was a medical
malpractice action against a health maintenance organization. Id. at 1275–76. The
plaintiff there was bitten by his cat, given antibiotics, and his physician ordered
that he stay overnight in the hospital and receive aggressive treatment. Id. at 1275.
An approval nurse from his HMO approved the use of antibiotics but denied the
benefit of staying in the hospital. Id. He later got much worse and ultimately had
to have a finger amputated. Id. Offering little analysis, the Eleventh Circuit
concluded, in light of Davila, that the medical malpractice claim was completely
preempted. Id. at 1276. Of note, however, the Eleventh Circuit did say that the
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claim there was to remedy the denial of benefits, making Ghee’s claim
distinguishable from Land’s; Ghee does not seek to remedy the denial of benefits
but to vindicate the public interest in deterring tortious death.
III. Conclusion
Because the Alabama wrongful death statute does not allow recovery for the
value of benefits denied, only punishment for causing a death, the suit could not
be brought under the ERISA private enforcement mechanism. This conclusion
means the court need not determine whether the other prongs of Davila are
satisfied; the inability to bring the complaint under ERISA precludes complete
preemption, so the court lacks subject matter jurisdiction. The case will be
REMANDED to the Circuit Court of Calhoun County, Alabama by separate
order.
DONE and ORDERED this 2nd day of December, 2015.

VIRGINIA EMERSON HOPKINS
United States District Judge

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