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Ninth Circuit Holds Medical Malpractice Claims Are Not Pre-Empted By FEHBA


HLD, v. 30, n. 10 (October 2002)

Ninth Circuit Holds Medical Malpractice Claims Are Not Pre-Empted By FEHBA

Plaintiff Lisa Roach worked as a "hot shot" firefighter for the U.S. Forest Service between 1991 and 1999. As a federal employee, she was covered by the Federal Employees Health Benefits Act (FEHBA), 5 U.S.C. �� 8901-8914. Plaintiff received her coverage from a FEHBA plan administered by Mail Handlers Benefit Plan (Mail Handlers). Under the terms of the Mail Handlers plan, plaintiff was required to obtain a pre-certification for any hospital stay over twenty-four hours. In 1998, plaintiff injured her ankle and called a number on her Mail Handlers benefit card to find a "preferred provider" hospital. The number connected her to an advice nurse who opined that plaintiff probably had a sprain and should use painkillers and ice. The nurse stated that plaintiff should consult a doctor if her ankle did not improve in a few weeks. Plaintiff did not ask for hospital certification, nor was any required as plaintiff would not need to stay at the hospital for more than twenty-four hours. After approximately two months, when plaintiff's ankle injury did not heal, she visited a doctor. After taking an x-ray, the physician diagnosed a fracture that had not healed correctly. Plaintiff subsequently underwent surgery to place a screw and bracket in her ankle. Plaintiff sued Mail Handlers and Access Health, the company that administered the advice nursing service (collectively defendants), alleging medical malpractice, breach of contract, and other state law claims. The defendants removed the action to federal court on the basis of FEHBA pre-emption. The federal district court granted summary judgment to defendants, finding that all of plaintiff's claims were pre-empted by FEHBA. Plaintiff appealed.

The Ninth Circuit reversed, finding that plaintiff's medical malpractice claim is not pre-empted by the FEHBA. The FEHBA's pre-emption provision covers all claims that "relate to" a FEHBA-administered health benefit plan, the court noted. However, the court explained that "the words 'relate to' cannot be taken too literally." Instead, the court said, the phrase must be interpreted in the context of a presumption that, in fields of traditional state regulation, "the historic police powers of the States [are] not to be superseded by [a] Federal Act unless that was the clear and manifest purpose of Congress." N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645 (1995) (quoting Rice v. Santa Fe Elevator Corp. 331 U.S. 218 (1947)).

Noting that "[t]he question of how to interpret � 8902(m)(1) to protect both the federal interest in the uniform administration of FEHBA benefits and a state's interest in the quality of medical care is novel in this circuit," the appeals court looked to other circuits' decisions in this area. The appeals court adopted the reasoning of other courts and drew a distinction between claims based on a denial of benefits, which are pre-empted, and claims based on medical malpractice, which are not pre-empted.

The court next turned to the issue of whether plaintiff's claim was based in medical malpractice or was a denial of benefits claim. The appeals court disagreed with the district court's characterization of plaintiff's claims as a denial of benefits claims, finding that the issue of pre-certification was not at issue because plaintiff never asked for certification and the advice nurse never denied certification. Instead, the appeals court found dispositive the fact that the nurse advised plaintiff not to immediately seek medical treatment and plaintiff was injured as a result of her reliance on that advice. "These events are solely consistent with a garden-variety medical malpractice claim," the court said. Therefore, the court remanded the remaining medical malpractice claim for consistent proceedings.

Roach v. Mail Handlers Benefit Plan, No. 01-15360 (9th Cir. Aug. 1, 2002) (8 pages).

Health Lawyers thanks Michael D. Roth, of the Law Offices of Michael Dundon Roth, in Los Angeles, California, for sending us a copy of this opinion.

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