No. 98 E. D. Appeal Docket 1996
Remand from the United States Supreme Court

OPINION
MR. JUSTICE CAPPY DECIDED: April 3, 2001

Based on the principles the United States Supreme Court articulated in New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U. S. 645 (1995), we issued an opinion in the instant case on December 23, 1998, holding that the state law medical negligence claims asserted against third-party defendant United States Healthcare Systems of Pennsylvania, Inc. (" U. S. Healthcare") are not preempted by the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U. S. C. 1001 et seq. Pappas v. Absel, 724 A. 2d 889 (Pa. 1998) (" Pappas I"). Accordingly, we affirmed the Superior Court's order, reversing the trial court's entry of summary judgment in U. S. Healthcare's favor. Id. at 894. FNA

On June 19, 2000, the Supreme Court entered an order granting certiorari in Pappas I, vacating the judgment of this court, and remanding the case for our further consideration in light of Pegram v. Hendrich, __ U. S.__, 120 S. Ct. 2143 (2000).
For all the reasons that follow, we adhere to our original opinion and order. The facts and procedural history, as set forth in Pappas I, bear repeating.

At 11: 00 a. m. on May 21, 1991, Basile Pappas (" Pappas") was admitted to Haverford Community Hospital (" Haverford") through its emergency room complaining of paralysis and numbness in his extremities. At the time of his admission, Pappas was an insured of HMO-PA, a health maintenance organization operated by U. S. Healthcare. Dr. Stephen Dickter, the emergency room physician, concluded that Pappas was suffering from an epidural abscess which was pressing on Pappas' spinal column. Dr. Dickter consulted with a neurologist and a neurosurgeon; the physicians concurred that Pappas' condition constituted a neurological emergency. Given the circumstances, Dr. Dickter felt that it was in Pappas' best interests to receive treatment at a university hospital. Dr. Dickter made arrangements to transfer Pappas to Jefferson University Hospital (" Jefferson") for further treatment. At approximately 12:40 p.m. when the ambulance arrived, Dr. Dickter was alerted to the fact that U. S. Healthcare was denying authorization for treatment at Jefferson. Ten minutes later, Dr. Dickter contacted U. S. Healthcare to obtain authorization for the transfer to Jefferson. At 1:[05] p.m., U. S. Healthcare responded to Dr. Dickter's inquiry and advised him that authorization for treatment at Jefferson was still being denied, but that Pappas could be transferred to either Hahnemann University ("Hahnemann"), Temple University or Medical College of Pennsylvania ("MCP"). Dr. Dickter immediately contacted Hahnemann. That facility advised Haverford at approximately 2:20 p.m. that it would not have information on its ability to receive Pappas for at least another half hour. MCP was then reached and within minutes it agreed to accept Pappas; Pappas was ultimately transported there at 3:30 p.m.
Pappas now suffers from permanent quadriplegia resulting from compression of his spine by the abscess.
Pappas and his wife filed suit against Dr. David Asbel, his primary care physician, and Haverford. They claimed that Dr. Asbel had committed medical malpractice and that Haverford was negligent in causing an inordinate delay in transferring him to a facility equipped and immediately available to handle his neurological emergency.
Haverford then filed a third party complaint against U. S. Healthcare, joining it as a party defendant for its refusal to authorize the transfer of Pappas to a hospital selected by the Haverford physicians.
Dr. Asbel also filed a cross-claim against U. S. Healthcare seeking contribution and indemnity.
U.S. Healthcare filed a motion for summary judgment on all of the third party claims, alleging that the third party claims are preempted by §1144(a) of ERISA. FN1
The trial court granted the motion. FN2
The Superior Court on appeal, however, determined that ERISA did not preempt the state law claims.
This court subsequently granted U.S. Healthcare's Petition for Allowance of Appeal in order to determine whether these third party claims fall within the scope of those state actions which are preempted by ERISA.
Our legal analysis in Pappas I began with a review of the basic principles of preemption law. We noted that the Supremacy Clause of the United States Constitution, U.S. Const., art. VI, cl. 2, gives the United States Congress the power to preempt state law, and observed that in determining whether state law is preempted by federal law, we were to assume that the historic powers of the states are not superceded unless preemption is the "clear and manifest purpose " of Congress. Id. at 891 (quoting Cippolone v. Liggett Group, 505 U. S. 504, 516 (1992)) (citations omitted).
Turning to the express preemption section of ERISA, which states that "the provisions of this subchapter … shall supercede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan….", 29 U.S.C. §1144(a), we recognized that in the 1980's and early 1990's, the Supreme Court had given ERISA preemption a notably expansive scope based on the plain language of this section. Pappas I, 724 A. 2d at 891-92.
With its 1995 decision in Travelers, however, we determined that the Court had signaled a change in course, instructing the courts to look to the objectives of ERISA, and not solely to the bare, "unhelpful" text of the statute, for guidance in deciding questions of preemption. Id. at 892, (quoting Travelers, 514 U. S. at 656). We deemed it significant that the Court determined that the "basic thrust of the preemption provision… was to avoid a multiplicity of regulation in order to permit the nationally uniform administration of employee benefit plans"; that it recognized fairly significant bounds on preemption when it stated that "[p] re-emption does not occur… if the state law has only a tenuous, remote, or peripheral connection with covered plans, as in the cases with many laws of general applicability"; and that it cautioned that "nothing in the language of [ERISA] or in the context of its passage indicates that Congress chose to displace general health care regulation, which historically has been a matter of local concern." Id. at 892 (quoting Travelers, 514 U. S. at 706, 708-709).
Applying Travelers and its progeny, California Division of Labor Standards Enforcement v. Dillingham Construction NA., Inc., 519 U. S. 316 (1997) and De Buono v. NYSA-ILA Medical and Clinical Services Fund, 520 U. S. 806 (1997), to the case sub judice, we determined that the negligence claims in plaintiffs' complaint, which Haverford incorporated by reference against U.S. Healthcare in its third party complaint, are not preempted. Pappas I, 724 A. 2d at 894. FN2A
We found that they do not "relate to" an ERISA plan within the meaning of 29 U. S. C. §1144(a), and that local negligence laws, like many laws of general applicability, are only remotely connected to ERISA plans. Id. at 893, 894.
In view of the Supreme Court's determination that Congress did not intend to preempt state laws aimed at regulating health care, we held it would have been inappropriate to conclude that Haverford's claims, in which the issue of U.S. Healthcare's allegedly dilatory delivery of contractually-guaranteed medical benefits were intertwined with the question of safe medical care, are preempted by ERISA. Id. at 893. FN3

We now turn, as instructed by the Supreme Court, to a reconsideration of our decision in Pappas I in light of Pegram. We start with a somewhat detailed rendition of Pegram's facts, as they are critical to our present task. The case arose out of a lawsuit brought by Cynthia Herdrich against her treating physician, Dr. Lori Pegram, and the health maintenance organization ("HMO") that Dr. Pegram and her partners owned and operated. The HMO had contracted with the company that employed Herdrich's husband to provide pre-paid medical services to its employees and their respective families. Dr. Pegram examined Herdrich for pain in the midline area of her groin, and discovered an inflamed mass in her abdomen. Dr. Pegram did not order an immediate ultrasound at the local hospital, but decided to wait some eight days for an ultrasound at a facility staffed by HMO physicians. Before the ultrasound could be performed, Herdrich's appendix ruptured, causing peritonitis.

Herdrich sued Dr. Pegram and the HMO in state court for medical malpractice, and later added two counts of state law fraud. Asserting that the fraud counts were preempted by ERISA, Pegram and the HMO removed the case to federal district court, and moved for summary judgment. The district court granted the defendants summary judgment on the first count, but granted Herdrich leave to amend the second. She did, alleging that the provision of medical services under the terms of the HMO, which rewarded its physician owners for limiting medical care, amounted to an inherent or anticipatory breach of ERISA's fiduciary duties as set forth in 29 U.S.C. §1109( a), to make decisions with the exclusive interest of plan participants in mind. The HMO moved to dismiss the ERISA count for failure to state a claim upon which relief could be granted.
Finding that the HMO was not involved in the events at hand as an ERISA fiduciary, the district court sustained the motion.
The Court of Appeals for the Seventh Circuit reversed.
The Supreme Court granted certiorari to determine whether treatment decisions made by an HMO, acting through its physicians, are fiduciary acts within the meaning of ERISA. The Court held that they are not. Pegram, __ U. S.__, 120 S. Ct. at 2146.
In the course of doing so, the Court set forth two guiding principles.
First, HMO physicians occupy dual roles. They act like plan administrators when they determine, for example, whether a participant's condition is covered, and as health care providers, when they decide upon the medical treatment a participant will receive. Id. at 2153-54.
Second, HMO physicians make three types of decisions.
"[P]ure 'eligibility decisions' turn on the plan's coverage of a particular condition or medical procedure for its treatment," id. at 2154, such as "whether a plan covers an undisputed case of appendicitis." Id. at 2155.
"'Treatment decisions, ' by contrast, are choices about how to go about diagnosing and treating a patient's condition: given a patient's constellation of symptoms, what is the appropriate medical response?" Id. at 2154.
"Mixed eligibility and treatment decisions" are just what their name implies--decisions in which coverage and medical judgment are intertwined. Id. at 2154-55.
In this regard, the Court explained:

[A] great many and possibly most coverage questions are not simple yes-or-no questions, like whether appendicitis is a covered condition (when there is no dispute that a patient has appendicitis), or whether acupuncture is a covered procedure for pain relief (when the claim of pain is unchallenged). The more common coverage question is a when-and-how question. Although coverage for many conditions will be clear and various treatment options will be indisputably compensable, physicians still must decide what to do in particular cases…. In practical terms, these eligibility decisions cannot be untangled from physicians' judgments about reasonable medical treatment….

Id. at 2154.
To illustrate the wide array of decisions that are of the mixed type, the Court noted the decisions mentioned in Herdrich's complaint: "physician's conclusions about when to use diagnostic tests; about seeking consultations and making referrals to physicians and facilities other than [the HMO's]; about proper standards of care, the experimental nature of a proposed course of treatment, the reasonableness of a certain treatment and the emergency character of a medical condition." Id. at 2155.
Turning to the case at hand, the Court found that the HMO, through Dr. Pegram, made a mixed decision, "decid[ing] (wrongly, as it turned out) that Herdrich's condition did not warrant immediate action; the consequence of that medical determination was that [the HMO] would not cover immediate care, whereas it would have done so if Dr. Pegram had made the proper diagnosis and judgment to treat." Id. at 2154.
The Court then held that Congress did not intend that any HMO be treated as an ERISA fiduciary to the extent that it makes mixed eligibility and treatment decisions acting through its physicians. Id. at 2155. FN4
Observing that under the common law of trusts, which is the source of ERISA's fiduciary duties, fiduciary responsibility characteristically attaches to financial decisions about managing assets and property, the Court doubted that Congress would have ever thought of a mixed decision as fiduciary in nature. Id. at 2155-56. Because the defense of any HMO of a mixed decision would be that its physician acted for good medical reasons, the plausibility of which would require reference to traditional standards of reasonable medical practice in like circumstances, the Court was concerned that a decision to view a mixed decision as an act of ERISA fiduciary duty would "federalize malpractice litigation". Id. at 2157-58.
Lastly, the Court touched upon (but declined to resolve) the "puzzling issue of preemption" that would be raised by the imposition of ERISA's fiduciary requirements upon an HMO physician making a pure treatment or mixed decision, in view of its holding in Travelers:

On its face, federal fiduciary law applying a malpractice standard would seem to be a prescription for preemption of state malpractice law, since the new ERISA cause of action would cover the same subject of a state-law malpractice claim…. To be sure, [Travelers] throws some cold water in the preemption theory; there, we held that, in the field of health care, a subject of traditional state regulation, there is no ERISA preemption without clear manifestation of congressional purpose. But in that case the convergence of state and federal law was not so clear as in the situation we are positing; the state-law standard had not been subsumed by the standard to be applied under ERISA. We could struggle with this problem, but first it is well to ask, again, what would be gained by opening the federal courthouse doors to a fiduciary malpractice claim….
Pegram, at 1258 (citations omitted).

While Travelers and Pegram deal with different aspects of ERISA, for our present purposes, they share common ground.
Travelers instructs that ERISA does not preempt state law that regulates the provision of adequate medical treatment.
Pegram instructs that an HMO's mixed eligibility and treatment decision implicates a state law claim for medical malpractice, not an ERISA cause of action for fiduciary breach.
Thus, if Haverford's third party claim against U. S. Healthcare arose out of a mixed decision, it is, according to Pegram, subject to state medical malpractice law, which is what Haverford asserted.
Moreover, under Travelers, it is not preempted by ERISA.
It follows that we must now determine what the record on summary judgment reveals with regard to the nature of the U.S. Healthcare's decision. We view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Pennsylvania State University v. County of Centre, 615 A. 2d 303, 304 (Pa. 1992). Only where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to a judgment as a matter of law will summary judgment be entered. Skipworth v. Lead Industries Ass'n, Inc., 690 A. 2d 169, 171 (Pa. 1997).
Our scope of review of a trial court's order granting or denying summary judgment is plenary, O'Donoghue v. Laurel Savings Ass'n, 728 A. 2d 914, 916 (Pa. 1999), and our standard of review is clear: the trial court's order will be reversed only where it is established that the court committed an error of law or abused its discretion. Cochran v. GAF Corp., 666 A. 2d 245, 248 (Pa. 1995).

Having looked again at the record, there are facts that are not disputed, in addition to those set forth in Pappas I, that are important to our analysis. Dr. Dickter, the physician who first saw Pappas in the emergency room of Haverford on May 21, 1991, at about 11:00 a.m., received permission from Jefferson to admit Pappas to its spinal cord trauma center. Dr. Dickter chose Jefferson because it, unlike other hospitals, had designated space for spinal trauma cases and was able to determine immediately whether it was in a position to receive a new patient. When Dr. Dickter learned at 12:40 p.m. from ambulance personnel that Pappas' transfer to Jefferson was not HMO approved, he telephoned U.S. Healthcare at 12:50 p.m. and asked that it reconsider its decision. Dr. Dickter spoke to Elaine Norman, a U.S. Healthcare representative, and told her that Pappas' condition constituted a neurological emergency that needed immediate attention, and for which he had made arrangements with Jefferson. Ms. Norman advised Dr. Dickter that she was not authorized to take action one way or the other, but that she would consult with someone who was. At 1:05 p.m., Dr. Dickter spoke with Carol DeLark, another U. S. Healthcare representative. She told him that Dr. Liebowitz, one of U. S. Healthcare's physicians who had the authority to decide such matters, reviewed Pappas' case; that the referral to Jefferson, a non-HMO hospital, continued to be denied; and that a referral to the facilities affiliated with Hahnemann, Temple University or MCP was approved. At about 3:30 p. m., through Dr. Dickter's efforts, Pappas was admitted to MCP.
Not surprisingly, U.S. Healthcare argues that its decision about Pappas' referral "constituted a quintessential 'coverage' determination". FN5
We, however, disagree. In our view, the undisputed facts in this case, and the inferences drawn from them, establish the sort of mixed eligibility and treatment decision that Pegram discussed. FN6
Dr. Leibowitz, U. S. Healthcare's physician, reviewed Pappas' case, and rejected another medical doctor's opinion based on his clinical judgment that Pappas needed to be referred to Jefferson for treatment of a medical emergency. Instead of referring Pappas to Jefferson, a non-HMO hospital, as Dr. Dickter recommended, Dr. Leibowitz referred Pappas to one of three other facilities for medical care. He did not, in the Supreme Court's words, only make a "simple yes or no" decision as to whether Pappas' condition was covered; it clearly was. Rather, Dr Leibowitz also determined where and, under the circumstances, when Pappas' epidural abscess would be treated. His was a mixed eligibility and treatment decision, the adverse consequences of which, if any, are properly redressed, as Pegram teaches, through state medical malpractice law. This law as Travelers teaches, is not preempted by ERISA. We conclude, therefore, that our reasoning and result in Pappas I are consistent with the Supreme Court's decision in Pegram. Accordingly, we confirm our original disposition; the order of the Superior Court, reversing the grant of summary judgment to U.S. Healthcare is affirmed. FN7
This matter is remanded to the trial court for further proceedings consistent with this opinion.

Mr. Justice Saylor files a dissenting opinion.

FOOTNOTES

FNA. Our reasons for finding against ERISA preemption differed from those relied upon by the Superior Court. The Superior Court was of the view that considerations of cost containment that drive HMO decisions did not exist when Congress enacted ERISA. Pappas v. Absel, 675 A. 2d 711, 716 (Pa. Super. 1996). The Superior Court concluded, therefore, that Congress could not have intended to preempt that which it did not know would come into existence. Id. Inasmuch as one year preceding the enactment of the statute, Congress passed the Health Maintenance Organization Act of 1973, 42 U.S.C. §300e et seq., we could not agree that HMOs were unforeseen by Congress when it drafted ERISA. Pappas I, 724 A. 2d at 893 n. 6.

FN1. It is uncontested that U. S Healthcare is an "employee benefits plan" pursuant to ERISA, 29 U. S. C. § 1002( 1), and that ERISA therefore applies to this matter.

FN2. Approximately one year after the trial court granted summary judgment in U. S. Healthcare's favor, Dr. Asbel and Haverford settled the actions brought against them. They have been substituted in this appeal by their insurers, Pennsylvania Hospital Insurance Co. (" PHICO") and the Commonwealth of Pennsylvania Medical Professional Liability Catastrophic Loss Fund ("CAT Fund").
Pappas I, 724 A. 2d at 889-91.

FN2A. Haverford asserted the following allegations from plaintiffs' complaint against U.S. Healthcare:
24. The negligence of [Haverford]… consisted of the following:
a. Failing to transfer the patient to a hospital capable and competent of administering to his acute medical condition in a prompt and timely fashion;
b. Delaying inordinately in transferring the patient, keeping him at [Haverford] during which time his spinal cord compression continued, with resulting permanent damage to the patient's spinal cord. Complaint, para. 24.

FN3. Justice Nigro filed a concurring opinion. In Justice Nigro's view, the facts demonstrated that "U. S. Healthcare's actions constituted, in effect, an individual medical decision or judgment as opposed to a decision affecting the administration of an employee benefit plan." Pappas I, 724 A. 2d at 889. It can fairly be said that Justice. Nigro's approach to the question of ERISA preemption in this case anticipated the Supreme Court's reasoning in Pegram.

FN4. The HMO in Pegram was owned by its physicians. U. S. Healthcare contracts with independent physicians to provide services. Pegram's result was based on the nature of the HMO's decision, not on the structure of the HMO making it. Pegram, __ U. S.__, 120 S.Ct. at 2155. Further, the Supreme Court's holding was all-inclusive as to HMOs. Id. Thus, the difference in organization between the HMO in Pegram and U. S. Healthcare is not relevant to this analysis.

FN5. A number of the statements U. S. Healthcare made when this appeal was originally heard do not reflect its present position that its decision was entirely devoid of medical judgment as to treatment. In its Reply Brief, for example, U. S. Healthcare stated that its "sole involvement in this matter was to answer a physician's question concerning what nearby hospitals were capable of treating the patient's condition." (Reply Brief for Appellant at 2). Later, U. S. Healthcare recited that it "advised Dr. Dicker of three HMO PA participating hospitals in the area--Hahnemann, Temple and MCP--that could provide the same treatment available at Jefferson." (Reply Brief for Appellant at 4).

FN6. We need not remand this matter for further findings. The record is undisputed and clear on the basic facts. Moreover, an appellate court may draw its own inferences from basic facts and arrive at its own conclusions when a finding of fact is simply a deduction from other facts and the ultimate fact in question is purely a result of reasoning. Hutchinson v. Sunbeam Coal Corp., 519 A. 2d 385, 391 n. 6 (Pa. 1986). The question of a decision's type--eligibility, treatment or mixed--is this sort of "ultimate fact", deduced from the basic facts through reasoning.

FN7. With due respect to our learned colleague, we believe the dissent gives our analysis too broad a reading, and, it would seem, bases its disagreement with our holding on a question not raised in this appeal. With regard to our analysis, there is no reason for concern that from this point forward, conflict preemption issues arising under ERISA will include no more than the "mere identification of whether a fiduciary act was involved". (Dissenting Opinion at 11). Our analysis of ERISA preemption in Pappas I was founded on the preemption provision of the statute, 29 U.S.C. 1144(a), and the Supreme Court's most recent teaching on the matter. This analysis, of course, continues to apply. It was the Supreme Court's request that we consider our decision in Pappas I, in light of its decision in Pegram, that necessitated our finding the conceptual relationship between a claim for breach of ERISA's fiduciary duties and the assertion that a state law claim for medical malpractice is preempted.
Turning to the main focus of the dissent, we read it as stating that this court should articulate a new and definitive duty or standard of care for HMO physicians making mixed eligibility and treatment decisions, and until that task is completed, issues of ERISA preemption cannot be resolved. Preliminarily, we note that the issue of duty or standard of care is not before us. We granted allocatur to consider U.S. Healthcare's motion for summary judgment, in which it asserted that the third party state law medical malpractice claims brought against it are preemepted by ERISA per se. Whether the element of duty or the standard of care to which U. S. Healthcare should be held when third party plaintiffs attempt to prove their case differs from the duty or standard of care that Pennsylvania law imposes on non-HMO physicians is an issue that may remain for another day.
Moreover, the question the dissent poses conceivably presents a "Catch-22" form of circular reasoning. That is to say, any answer leads to ERISA preemption. On the one hand, according to the dissent, the application of a standard of care to an HMO's mixed eligibility and treatment decision that does not take into account an HMO's way of doing business arguably has more than a "tenuous, remote, or peripheral connection" with a covered plan, Travelers, 514 U.S. at 661, and thus, is preempted. On the other hand, however, if a special standard of care is articulated for evaluating those decisions in which the peculiar pressures of an HMO's rationing decisions are considered, such a rule arguably regulates a plan's administration, and is also preempted. Under either scenario, ERISA invariably preempts a state law claim for medical malpractice arising out of an HMO's mixed eligibility and treatment decision. In our view, Travelers and Pegram do not contemplate such a result.