Ghee v. Usable Mut. Ins. Co.

291 So.3d 465

Douglas GHEE, as personal representative of the Estate of Billy Fleming, deceased

v.USABLE MUTUAL INSURANCE COMPANY d/b/a Blue Advantage Administrators of Arkansas

1170249

Supreme Court of Alabama.

May 24, 2019

Rip Andrews and Richard Riley of Marsh, Rickard & Bryan, P.C., Birmingham, for appellant.

Cavender C. Kimble and Jeremiah M. Glassford of Balch & Bingham LLP, Birmingham, for appellee.

Matthew C. McDonald of Jones Walker LLP, Mobile, for amicus curiae Alabama Civil Justice Reform Committee, in support of the appellee.

STEWART, Justice.

Douglas Ghee, as the personal representative of the estate of Billy Fleming, deceased, appeals from an order of the Calhoun Circuit Court dismissing a wrongful-death claim brought against USAble Mutual Insurance Company d/b/a Blue Advantage Administrators of Arkansas ("Blue Advantage"). These parties have previously been before this Court. See Ghee v. USAble Mut. Ins. Co., 253 So.3d 366 (Ala. 2017) (" Ghee I").

Facts and Procedural History

This Court, in Ghee I, set forth the factual and procedural history of this case. Because those facts and procedural history are applicable to the disposition of the issues presented by this appeal, we again set forth the facts and procedural history as set forth in Ghee I:

"Blue Advantage was the claims administrator for Fleming's self-funded employee-health-benefits plan, which Fleming received through his employment with Wal–Mart Stores, Inc. There is no dispute that the health-benefits plan falls under the auspices of the Employee Retirement Income Security Act of 1974 (‘ERISA’), 29 U.S.C. § 1001 et seq. That plan will be referred to hereinafter as ‘the ERISA plan.’

"Ghee filed a complaint in the Calhoun Circuit Court alleging a wrongful-death claim against Blue Advantage, among others, based on Fleming's death. The circuit court granted Blue Advantage's Rule 12(b)(6), Ala. R. Civ. P., motion to dismiss Ghee's complaint against it based on federal preemption under ERISA, specifically based on 29 U.S.C. § 1144(a). The allegations in Ghee's complaint were pivotal to this determination; therefore, it is best to relay the facts exactly as alleged in the complaint:

" ‘18. On June 11, 2013, [Fleming] presented to the [Northeast Alabama] RMC [Regional Medical Center] emergency department. According to records, he was complaining of constipation and abdominal pain that he rated as a 10 on a 10–point scale.

" ‘19. [Fleming] was diagnosed with abdominal pain with constipation and fecal impaction.

" ‘20. [Fleming] was admitted to the hospital.

" ‘21. On June 12, 2013, a CT of [Fleming's] abdomen showed, according to a written report, a moderate amount of fecal material within [Fleming's] sigmoid colon and rectum.

" ‘22. On June 14, 2013, Dr. Rosen attempted to perform a colonoscopy on [Fleming], but according to Dr. Rosen's notes, he was unable to pass the scope beyond 30 centimeters, and stated that, "[g]iven the marked severity of constipation, the inadequate colon prep despite multiple colon preparations, the patient would benefit [from] subtotal colectomy."^[1]

" ‘23. On June 15, 2013, Dr. Crawford was consulted, and according to his notes, agreed that [Fleming] required a colectomy and scheduled the procedure for two weeks later as an outpatient procedure in order to give [Fleming's] colon an opportunity to flatten out.

" ‘24. [Fleming] was discharged home from RMC on June 17, 2013.

" ‘25. On July 2, 2013, [Fleming] visited Dr. Crawford as a followup at the Crawford Clinic and was scheduled to undergo his colectomy on July 10, 2013.

" ‘26. Dr. Crawford and/or the Crawford Clinic, according to its records, sought pre-approval for the surgery from [Blue Advantage] via CPT code 564.9, which is unspecified functional disorder of intestine.

" ‘27. On July 3, 2013, [Fleming] presented to RMC for his pre-anesthetic evaluation.

" ‘28. On or about July 5, 2013, an agent of the Crawford Clinic called [Fleming] and informed him that he could not have the surgery because [Blue Advantage] had decided that a lower quality of care--continued non-surgical management--was more appropriate than the higher quality of care--surgery--that [Fleming] needed and that his surgeon felt was appropriate.

" ‘29. [Fleming] and his family then had multiple conversations with agents of [Blue Advantage] in an unsuccessful attempt to convince the company that the higher quality of care (surgery, as recommended by [Fleming's] doctors) was the more appropriate course. Ultimately, an agent of [Blue Advantage] suggested to [Fleming] that he return to RMC in an attempt to convince hospital personnel and physicians to perform the surgery on an emergency basis.

" ‘30. On the night of July 10, 2013 (after midnight so that the hospital records indicate a visit of July 11), [Fleming] returned to the RMC emergency department. According to records, he was complaining of severe abdominal pain.

" ‘31. [Fleming] explained his history involving his prior admission and canceled surgery.

" ‘32. A CT of [Fleming]'s abdomen showed, according to a written report, a moderate amount of retained stool throughout [Fleming's] colon.

" ‘33. [Fleming] was seen and discharged that day (7/11/13) by Dr. Williams, D.O.

" ‘34. On July 14, 2013, [Fleming] returned to the RMC emergency department and according to the records, complaining of severe abdominal pain and rectal bleeding.

" ‘35. [Fleming] again reported his history involving his prior admission and canceled surgery.

" ‘36. No diagnostic imaging was performed during this visit (7/14/13).

" ‘37. [Fleming] was seen and discharged that day (7/14/13) by Summer Phelps, N.P., and Dr. Proctor.

" ‘38. On July 15, 2013, [Fleming] was brought back to the RMC emergency department by Oxford EMS, and according to records, complaining of urinary retention, severe abdominal pain and constipation.

" ‘39. [Fleming] again reported his history involving his prior admission and canceled surgery.

" ‘40. Again, [Fleming] was seen and sent home, this time by Dr. Simmons.

" ‘41. During this entire time, [Blue Advantage] was providing for a certain level of care to be provided to [Fleming]: non-surgical management of his life-threatening bowel obstruction. However, [Blue Advantage] never agreed to provide him with the higher quality of care he needed: life-saving surgical intervention.

" ‘42. At approximately 10:30 a.m., [Fleming] was brought by Anniston EMS to Stringfellow Memorial Hospital in severe distress.

" ‘43. [Fleming's] condition declined rapidly, he had to be intubated, eventually coded and died after midnight that night (the night of 7/15/13, the morning of 7/16/13).

" ‘44. Dr. Thomas Garland performed an autopsy, which confirmed that [Fleming] had a perforated sigmoid colon with abundant fecal material identified within the peritoneal cavity.

" ‘45. Dr. Crawford attended at least a portion of the autopsy.

" ‘46. Dr. Vishwanath M. Reddy certified [Fleming's] death certificate listing the cause of death as follows: "septic shock due to peritonitis due to colonic perforation." ’

"On July 14, 2015, Ghee, as personal representative of Fleming's estate, filed a wrongful-death action in the Calhoun Circuit Court against Blue Advantage, Northeast Alabama Regional Medical Center, the Crawford Clinic, four doctors, and a nurse, asserting that their combined and concurring negligence and wrongful conduct proximately caused Fleming's death. Specifically with respect to Blue Advantage, Ghee alleged that it contributed to Fleming's death through the following actions:

" ‘68. [Blue Advantage] had or voluntarily assumed one or more of the following duties, jointly or in the alternative: a duty to act with reasonable care in determining the quality of healthcare [Fleming] would receive; a duty not to provide to [Fleming] a quality of healthcare so low that it knew that [Fleming] was likely to be injured or killed; and a duty to exercise such reasonable care, skill, and diligence as other similarly situated healthcare providers in the same general line of practice ordinarily have and exercise in a like case.

" ‘69. [Blue Advantage] breached those duties, jointly or in the alternative, as follows:

" ‘a. Negligently providing for a lower quality of healthcare for [Fleming];

" ‘b. Wantonly providing for a lower quality of healthcare for [Fleming];

" ‘c. Breaching the standard by (i) failing to provide a higher quality of healthcare to [Fleming] (necessary, life saving surgery) and (ii) failing to communicate adequately with [Fleming]'s healthcare providers his need for surgery.

" ‘70. Those breaches combined with the actions of other defendants as a legal cause of death for ... Fleming, in that without the breaches, [Fleming] would have more likely than not survived.

" ‘71. Per Dukes v. US Healthcare, Inc., 57 F.3d 350 (3d Cir. 1995), Ghee makes no complaint that benefits were denied to [Fleming]; indeed, [Blue Advantage] provided multiple, numerous and repeated benefits (a high quantity) to [Fleming] in an attempt to manage his bowel obstruction without surgery. Ghee's only complaint against [Blue Advantage], 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 [Fleming]'s death. Further, considering [Fleming] is deceased, he necessarily cannot attempt to force [Blue Advantage] 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.’

"On August 20, 2015, Blue Advantage removed the case to the United States District Court for the Northern District of Alabama on the basis of complete preemption under ERISA, specifically under 29 U.S.C. § 1132. On August 27, 2015, Blue Advantage filed a motion in the circuit court to dismiss the claim against it based on federal preemption. On September

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