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Home My WebLink About89-70 civilDELORES BORDLEMAY, Executrix of the Estate of Wanda Bordlemay, Deceased Plaintiff Vo KEYSTONE HEALTH PLANS, INC., Defendant · IN THE COURT OF COMMON PLEAS · CUMBERLAND COUNTY, PENNSYLVANIA · · CIVIL ACTION- LAW · 70 CIVIL 1989 · JURY TRIAL DEMANDED IN RE' DEFENDANT'S MOTION FOR NON PROS 'OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT BEFORE HESS, OLER AND GUIDO, JJ. ORDER AND NOW, this day of April, 2001, following argument thereon, the motion of the defendant for summary judgment is GRANTED and counts II and IV of the plaintiff's complaint are DISMISSED. B Y THE COURT, Richard Angino, Esquire For the Plaintiff y~ A. Hess, J. Michael D. Pipa, Esquire For the Defendant 'rlm DELORES BORDLEMAY, Executrix of the Estate of Wanda Bordlemay, Deceased Plaintiff Vo KEYSTONE HEALTH PLANS, INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION- LAW 70 CIVIL 1989 JURY TRIAL DEMANDED IN RE: DEFENDANT'S MOTION FOR NON PROS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT BEFORE HESS, OLER AND GUIDO, JJ. OPINION AND ORDER Before the court is the motion of the defendant, Keystone Health Plans, Inc. (Keystone), for non pros for lack of prosecution or, in the alternative, for summary judgment. Because we sustain the motion for summary judgment, we need not consider the non pros motion. The motion for summary judgment relates to the plaintiff's two claims that remain from the complaint after Counts I, III, and V were dismissed by this Court's order issued March 17, 1997. Plaintiff' s remaining counts, II and IV, involve an assertion of Keystone's liability for harm done to Wanda Bordlemay after allegedly enrolling her in a health care plan which placed the health interests of its patients in direct opposition to the financial benefit of the treating physicians; and, a fraud count that alleges Keystone supplied the decedent, Wanda Bordlemay, with literature which failed to disclose material facts about the HMO. Based upon the analysis set forth in our March 17, 1997 opinion, we denied Keystone's motion as to Counts II and IV, finding that these claims were neither barred by the collateral estoppel doctrine nor preempted by the governing federal law, namely the Employee Retirement Income Security Act (ERISA) 29 U.S.C.A §§1001-1461. Our dismissal of Counts I, III, and V 70 CIVIL 1989 was based on the applicability of the collateral estoppel doctrine to the plaintiff's claims, concluding that those claims relied upon the allegations of negligence she had unsuccessfully brought against her treating physicians. In the plaintiff's malpractice suit against the treating physicians, a jury found that the doctors' failure to diagnose Wanda Bordlemay's cancerous condition did not constitute negligence. To understand the background of our reasoning as to the remaining counts of Plaintiff's complaint, it is necessary to briefly review the authorities upon which we based our earlier decision and to discuss the current status of the law. In accordance with the Superior Court's opinion in Pappas v. Asbel, 450 Pa. Super. 162, 171,675 A.2d 711,716 (1996), this Court held that preemption of ERISA did not apply to Plaintiff's remaining claims. However, in June of 2000, the United States Supreme Court vacated this decision and remanded the matter to the Pennsylvania Supreme Court, ordering that court to reconsider its earlier decision in light of, and in accordance with, pegram v. Herdrich, 530 U.S. 211,120 S.Ct. 2143, 147 L.Ed.2d 164 (2000). In .Pegram, the Court held that treatment decisions of a health maintenance organization (HMO), acting through its physician employees, are not fiduciary acts under ERISA. The Pennsylvania Supreme Court recently published its decision in Par)vas in accordance with the United States _ _ Supreme Court's remand order. In pappas II, the Pennsylvania Supreme Court affirmed its prior decision, that ERISA did not preempt either the fraud or the negligence claims against the defendant HMO. A.2d 2001 WL 327888 (Pa. Apr 03, 2001) (NO. 98 ED 1996). We are satisfied that there are grounds to distinguish those decisions from the case before us. In .Pappas I and II, the Pennsylvania Supreme Court's determination inexorably involved the decisions of the plaintiff's physicians that were based, in no small part, upon consultation with the HMO regarding both treatment of the plaintiff's medical condition and his eligibility for 70 CIVIL 198'9 coverage under his plan. Since there has not been an allegation that Ms. Bordlemay's claims are based upon some consultation between her physicians and Keystone regarding either treatment or eligibility decisions, the holding in Pappas does not bind our decision here. To find that the plaintiff's claims should proceed to trial, the plaintiff would have to offer some proof to establish Keystone's liability that is independent of the actions of the doctors who treated Ms. Bordlemay. An attempt to argue that her treating physicians were negligent and that their actions can be imputed to Keystone must necessarily fail because a jury has already determined the contrary to be true. Plaintiff would instead have to prove some causal relationship between the policies of the HMO and the harm suffered by Wanda Bordlemay. There is no evidence in this case of such a casual connection. We note the recent treatment of a nearly identical factual scenario in a neighboring judicial district. In Potami v. Frankel, et al., Judge Hoover of Dauphin County granted summary judgment for the defendant, Keystone Health Plan Central, on plaintiff's claims, including those which alleged "...2) Keystone negligently failed to disclose the details of the physician reimbursement system which allegedly pitted the patient's health care interests against the financial interests of the HMO, and 3) such failure to disclose amounted to fraud and misrepresentation." 120 Dauph. 16, at 18 (2000). The Potami decision relied heavily on the Superior Court's opinion in McClellan v. Health Maintenance, 413 Pa. Super. 128, 604 A.2d 1053 (1992) in analyzing the propriety of a judicial challenge to the nature, organization and structure of an HMO. Potami, at 19. The Superior court stated the following' Appellants include in their complaint an allegation that the agreements between appellees and their "primary care physicians" are themselves tortious since it is "against the 'primary care physician's' personal or pecuniary interest to give proper medical advice and make appropriate referral." 70 CIVIL 1989 This allegation suggests as issues whether the essential elements of the HMO system violate public policy, and whether the HMO system itself contributed to the asserted malpractice in this case. It is settled beyond peradventure, however, that the judicial branch is precluded by constitutional mandate from addressing the ethical, moral, or social implications of a health care program which indirectly provides a diminished compensation for a provider who deems further medical attention necessary or desirable. The fundamental prerogative and duty of considering and establishing social policy, including, of course, the regulation of health care providers, is vested solely in the legislature. Id. at 134, 604 A.2d at 1056, N. 6 (1992). As the Potami decision aptly points out, the financial incentive program is an integral part of the organizational structure of the HMO, and as such, cannot be remedied by the court. Potami, at 20. The crucial factor that is common to both _Potami and the instant matter is that plaintiffs' claims fail to al'lege any indicia of involvement by the HMO in her treatment. In our March 1997 decision, we denied the defendant's motion for summary judgment as to Count ii based upon the plaintiffs contention that she could establish "the negligence of the HMO which caused harm to Wanda Bordlemay and that this negligence was independent of her . treating physicians." At that time, we declined to speculate as to the proofs that the plaintiff would attempt to adduce. However, at this stage, the plaintiff has been given notice that such proofs of the HMO's independent negligence would be necessary to her claim; yet she has failed to provide anything more than a mere allegation that such liability exists. As to the plaintiffs fraud claim, Count IV of her complaint, we again follow the reasoning of _Potam_ii, supra. Because we must we find no basis for a duty to disclose, reject Plaintiff's third theory, that 70 CIVIL 1989 Keystone is liable for fraud or misrepresentation for failure to disclose an alleged conflict of interest created by Keystone's financial structure. There is no evidence that Mrs. Potami inquired into the contractual arrangement between Dr. Frankel and Keystone, or that Keystone made any representations regarding the financial terms of the physician contract. We see no factual issues to submit to a jury in support of the claim of either affirmative misrepresentation or intentional concealment of a material fact by Keystone. !d, at 21. As previously noted, the allegations in Potami were identical to the fraud allegations in this case. As we will apply the same reasoning as our Dauphin County colleague, we will likewise sustain the motion for summary judgment. ORDER AND NOW, this day of April, 2001, following argument thereon, the motion of the defendant for summary judgment is GRANTED and counts II and IV of the plaintiff's complaint are DISMISSED. Richard Angino, Esquire For the Plaintiff BY THE COURT, Kevin~'~ Hess, J. · / Michael D. Pipa, Esquire For the Defendant :rlm