Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-19-1995

Dukes v US Healthcare
Precedential or Non-Precedential:

Docket 94-1373




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                UNITED STATES COURT OF APPEALS
                    FOR THE THIRD CIRCUIT


                         N0. 94-1373


       CECILIA DUKES, Trustee Ad Litem of the Estate of
                   Darryl Dukes, Deceased,
                          Appellant

                              v.

 U.S. HEALTHCARE, INC.; GERMANTOWN HOSPITAL & MEDICAL CENTER;
WILLIAM W. BANKS, M.D.; CHARLES R. DREW MENTAL HEALTH CENTER;
                    EDWARD B. HOSTEN, M.D.



       On Appeal From the United States District Court
          For the Eastern District of Pennsylvania
             (D.C. Civil Action No. 93-cv-00577)




                         N0. 94-1661


 SERENA MARY VISCONTI, DECEASED, BY LINDA AND RONALD VISCONTI,
   AS ADMINISTRATORS OF THE ESTATE OF SERENA MARY VISCONTI,
DECEASED; LINDA VISCONTI; RONALD VISCONTI, IN THEIR OWN RIGHT,
                          Appellants

                              v.

                   U.S. HEALTH CARE, a/k/a
    THE HEALTH MAINTENANCE ORGANIZATION OF PENNSYLVANIA/NJ



       On Appeal From the United States District Court
          For the Eastern District of Pennsylvania
             (D.C. Civil Action No. 93-cv-06495)


                   Argued December 5, 1994

     BEFORE:   STAPLETON, ROTH and LEWIS, Circuit Judges
(Opinion Filed   June 19, l995   )



        Attarah B. Feenane (Argued)
        Stephen C. Josel
        Stephen C. Josel & Associates, P.C.
        2019 Walnut Street
        Philadelphia, PA 19103
          Attorneys for Appellant
          in No. 94-1373

        Edward S. Wardell (Argued)
        Jeffrey S. Craig
        Kelley, Wardell & Craig
        41 Grove Street
        Haddonfield, NJ 08033
          and
        David F. Simon
        U.S. Healthcare, Inc.
        P.O. Box 1180
        980 Jolly Road
        Blue Bell, PA 19422
          Attorneys for Appellee
          U.S. Healthcare, Inc.
          in Nos. 94-1373 & 94-1661

        Thomas S. Williamson, Jr.
        Solicitor of Labor
        Marc I. Machiz
        Assistant Solicitor
        Plan Benefits Security Division
        Karen L. Handorf
        Counsel for Special Litigation
        G. William Scott (Argued)
        Trial Attorney
        U.S. Department of Labor
        Office of the Solicitor
        Plan Benefits Security Division
        P.O. Box 1914
        Washington, D.C. 20013
          Attorneys for Amicus Curiae
          U.S. Secretary of Labor
          in Nos. 94-1373 & 94-1661

        Jeremy D. Mishkin
        Richard M. Simins
        Montgomery, McCracken, Walker & Rhoads
        Three Parkway - 20th Floor
Philadelphia, PA 19102
  Attorneys for Amicus Curiae
  New Jersey HMO Association
  in No. 94-1661
                      OPINION OF THE COURT




STAPLETON, Circuit Judge:



          The plaintiffs in these two cases filed suit in state

court against health maintenance organizations ("HMOs") organized

by U.S. Healthcare, Inc., claiming damages, under various

theories, for injuries arising from the medical malpractice of

HMO-affiliated hospitals and medical personnel.   The defendant

HMOs removed both cases to federal court, arguing (1) that the

injured person in each case had obtained medical care as a

benefit from a welfare-benefit plan governed by the Employee

Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C.

§ 1001-1461 (1988), (2) that removal is proper under the

Metropolitan Life Insurance Co. v. Taylor, 

(1987),

"complete preemption" exception to the "well-pleaded complaint

rule," and (3) that the plaintiffs' claims are preempted by

§ 514(a) of ERISA, 29 U.S.C. § 1144(a).   The district courts

agreed with these contentions and dismissed the plaintiffs'

claims against the HMOs.    The plaintiffs appeal those rulings and

ask that their claims against the HMOs be remanded to state

court.

          We hold that on the record before us, the plaintiffs'

claims are not claims "to recover [plan] benefits due . . . under

the terms of [the] plan, to enforce . . . rights under the terms
of the plan, or to clarify . . . rights to future benefits under

the terms of the plan" as those phrases are used in

§ 502(a)(1)(B) of ERISA, 29 U.S.C. § 1132(a)(1)(B).    Accordingly,

we hold that Metropolitan Life's "complete preemption" exception

is inapplicable and that removal of these claims from state court

was improper.    We will reverse the judgments of the district

courts and will remand each case to district court with

instructions to remand the cases to the state courts from which

they were removed.



                                  I.

                                  A.

             Suffering from various ailments, Darryl Dukes visited

his primary care physician, defendant Dr. William W. Banks, M.D.,

who identified a problem with Darryl's ears.    A few days later,

Banks performed surgery and prepared a prescription ordering that

blood studies be performed.    Darryl presented that prescription

to the laboratory of Germantown Hospital and Medical Center but

the hospital refused to perform the tests.    The record does not

reveal the reasons for the hospital's refusal.

             The next day, Darryl sought treatment from defendant

Dr. Edward B. Hosten, M.D. at the Charles R. Drew Mental Health

Center, who also ordered a blood test.    This time, the test was

performed.    Darryl's condition nevertheless continued to worsen

and he died shortly thereafter.    Darryl's blood sugar level was

extremely high at the time of his death.    That condition
allegedly would have or could have been diagnosed through a

timely blood test.

            Darryl received his medical treatment through the

United States Health Care Systems of Pennsylvania, Inc., a

federally qualified health maintenance organization organized by

U.S. Healthcare.   As a qualified HMO under the federal Health

Maintenance Organization Act of 1973, 42 U.S.C. §§ 300e-300e-17

(1988), this U.S. Healthcare HMO provides basic and supplemental

health services to its members on a pre-paid basis.1   As is often

the case, Darryl received his membership in the HMO through his

participation in an ERISA-covered welfare plan sponsored by his

employer.

            Darryl's wife, Cecilia Dukes, brought suit in state

court alleging medical malpractice and other negligence against

numerous defendants, including Banks, Hosten, the Germantown

Hospital, and the Drew Center.   She also brought suit against the

HMO, alleging that as the organization through which Darryl

received his medical treatment, it was responsible, under a

1
 . HMOs often contain costs through a strategy known as
"utilization review." See generally John D. Blum, An Analysis of
Legal Liability in Health Care Utilization Review and Case
Management, 26 Hous. L. Rev. 191, 192-93 (1989); Susan J. Stayn,
Note, Securing Access to Care in Health Maintenance
Organizations: Toward a Uniform Model of Grievance and Appeal
Procedures, 94 Colum. L. Rev. 1674, 1677-83 (1994). Unlike
traditional insurance policies, HMOs usually decide whether to
reimburse patients for medical care prospectively -- through
utilization or "pre-certification" review. The HMO may either
perform the utilization review itself or assign the task to a
third-party contractor. 

see also Corcoran v. United
Healthcare, Inc., 

, 1323 (5th Cir.), cert. denied,

(1992).
Pennsylvania state law ostensible agency theory (the "agency

theory"), for the negligence of the various doctors and other

medical-service providers.     See Boyd v. Albert Einstein Medical

Ctr., 

, 1234-35 (Pa. Super. Ct. 1988) (holding that

an HMO may be held liable for malpractice under an ostensible

agency theory where a patient looks to the HMO for care and the

HMO's conduct leads the patient to reasonably believe that he or

she is being treated by an employee of the HMO).     She alleged

further that the HMO failed to exercise reasonable care in

selecting, retaining, screening, monitoring, and evaluating the

personnel who actually provided the medical services (the "direct

negligence theory").

             The HMO removed the case to district court pursuant to

the Metropolitan Life complete-preemption exception to the "well-

pleaded complaint rule."    In its notice of removal, it claimed

that the HMO is part of -- or at least plays a role in -- the

ERISA plan to provide health benefits and that Dukes' claims,

properly construed, "are directed to the structure and operation

of the employer benefit plan."    (Dukes app. at 31.)   In its view,

Dukes' claims therefore "relate to" the welfare plan and

accordingly are preempted under ERISA § 514(a), 29 U.S.C.

§ 1144(a).

             Dukes moved for a remand and the HMO moved to dismiss.

The district court denied Dukes' motion and granted the HMO's,

explaining that Dukes' claims "related to" an ERISA plan -- and

thus were preempted -- because (1) "any ostensible agency claim

must be made on the basis of what the benefit plan provides and
is therefore 'related' to it" and (2) "the treatment received

must be measured against the benefit plan and is therefore also

'related' to it."   Dukes v. United States Health Care Sys., Inc.,

, 42 (E.D. Pa. 1994).   It remanded to state court

the remainder of Dukes' claims against the other defendants.    

                                B.

          Ronald and Linda Visconti are the biological parents of

Serena Visconti, who was stillborn.    During the third trimester

of her pregnancy with Serena, Linda apparently developed symptoms

typical of preeclampsia.   The Viscontis claim that Linda's

obstetrician, Dr. Wisniewski, negligently ignored these symptoms

and that this negligence caused Serena's death.

          Like Darryl Dukes, Linda received her medical treatment

through a federally qualified HMO organized by U.S. Healthcare.

This HMO was called the Health Maintenance Organization of

Pennsylvania/New Jersey.   The Viscontis received their membership

in the HMO through an ERISA-covered welfare plan.

          Ronald Visconti, as administrator of Serena's estate,

and Ronald and Linda, in their own right (collectively, "the

Viscontis"), brought suit in the Philadelphia County Court of

Common Pleas.   They attempted to hold the HMO liable for Dr.

Wisniewski's malpractice under ostensible and actual agency

theories, alleging that when Linda became pregnant, the HMO held

out Dr. Wisniewski as a competent and qualified participating

obstetrician/gynecologist.   They also sued the HMO under a direct
negligence theory, claiming, among other things, that the HMO was

negligent in its selection, employment, and oversight of the

medical personnel who performed the actual medical treatment.

           The HMO removed the case to federal court, asserting

that the Viscontis' claims were completely preempted by ERISA.

It then filed a motion to dismiss, and the Viscontis filed a

motion to remand, contending that removal was improper and that

ERISA did not preempt their state law claims.    The district court

denied the Viscontis' motion but granted the HMO's motion to

dismiss.   Visconti ex rel. Visconti v. U.S. Health Care, 857 F.

Supp. 1097, 1105 (E.D. Pa. 1994).

           The Visconti and Dukes cases have been consolidated on

appeal.



                               II.

           The HMOs removed these cases to federal court pursuant

to 28 U.S.C. § 1441, alleging that the district courts had

original jurisdiction over the claims, because the claims

"[arose] under the Constitution, treaties or laws of the United

States."   § 1441(b); 28 U.S.C. § 1331.   To determine whether a

claim "arises under" federal law -- and thus is removable -- we

begin with the "well-pleaded complaint rule."   See Metropolitan
Life Ins. Co. v. Taylor, 

, 63 (1987); see also

Allstate Ins. Co. v. 65 Security Plan, 

, 92-93 (3d

Cir. 1989).

           Under the well-pleaded complaint rule, a cause of

action "arises under" federal law, and removal is proper, only if
a federal question is presented on the face of the plaintiff's

properly pleaded complaint.   Franchise Tax Bd. v. Construction

Laborers Vacation Trust, 

, 9-12 (1983).   A federal

defense to a plaintiff's state law cause of action ordinarily

does not appear on the face of the well-pleaded complaint, and,

therefore, usually is insufficient to warrant removal to federal

court.   Gully v. First Nat'l Bank, 

, 115-18 (1936).

Thus, it is well-established that the defense of preemption

ordinarily is insufficient justification to permit removal to

federal court.   Caterpillar, Inc. v. Williams, 

, 398

(1987) ("The fact that a defendant might ultimately prove that a

plaintiff's claims are pre-empted under [a federal statute] does

not establish that they are removable to federal court.").

          The Supreme Court has recognized an exception to the

well-pleaded complaint rule -- the "complete preemption"

exception -- under which "Congress may so completely pre-empt a

particular area that any civil complaint raising this select

group of claims is necessarily federal in character."

Metropolitan 

; see generally Goepel v.
National Postal Mail Handlers Union, 

, 309-13 (3d Cir.

1994) (discussing the Court's complete-preemption jurisprudence

and holding that the Federal Employees Health Benefits Act did

not completely preempt plaintiffs' state law claims), cert.

denied, 

. 555 (1995); 

(holding that the complete-preemption exception did not apply in

a situation where an insurance company plaintiff sought

contribution from an ERISA plan because § 502 of ERISA does not
provide an express cause of action vindicating the interest that

the suit sought to protect and enforce); Railway Labor Executives

Ass'n v. Pittsburgh & Lake Erie R.R. Co., 

, 939-43

(3d Cir. 1988) (discussing the Court's complete-preemption

doctrine and holding that neither the Railway Labor Act nor the

Interstate Commerce Act completely preempted plaintiffs' state

law fraudulent conveyance claims against railroads and railroad

officials). The complete preemption doctrine applies when
          the pre-emptive force of [the federal
          statutory provision] is so powerful as to
          displace entirely any state cause of action
          [addressed by the federal statute]. Any such
          suit is purely a creature of federal law,
          notwithstanding the fact that state law would
          provide a cause of action in the absence of
          [the federal provision].


Franchise Tax 

.   Claims to enforce a

collective-bargaining agreement under § 301 of the Labor

Management Relations Act of 1947, 29 U.S.C. § 185, present a

typical example of the complete-preemption doctrine at work:    In

Avco Corp. v. Aero Lodge No. 735, 

(1968), the Court
ruled that any claims to enforce a collective-bargaining

agreement -- even when phrased as a state law cause of action to

enforce a contract -- are removable to federal court.

          The Supreme Court has determined that Congress intended

the complete-preemption doctrine to apply to state law causes of

action which fit within the scope of ERISA's civil-enforcement

provisions.2   Metropolitan 

.   It explained:
2
 . ERISA's "six carefully integrated civil enforcement
provisions" are found in § 502. Massachusetts Mut. Life Ins. Co.
v. Russell, 

, 146 (1985). The statutory provision
          [T]he legislative history consistently sets
          out [Congress's] clear intention to make
          § 502(a)(1)(B) suits brought by participants
          or beneficiaries federal questions for the
          purposes of federal court jurisdiction in
          like manner as § 301 of [the Labor Management
          Relations Act of 1947, 29 U.S.C. § 185.] For
          example, Senator Williams, a sponsor of
          ERISA, emphasized that the civil enforcement
          section would enable participants and
          beneficiaries to bring suit to recover
          benefits denied contrary to the terms of the
          plan and that when they did so "[i]t is
          intended that such actions will be regarded
          as arising under the laws of the United
          States, in a similar fashion to those brought
          under section 301 of the Labor Management
          Relations 

(citations omitted).   Thus, courts have found that

the Metropolitan Life complete-preemption doctrine permits

removal of state law causes of action in a host of different

ERISA-related circumstances.   See 

(holding that

state common law causes of action asserting improper processing

of a claim for benefits under an employee benefit plan are

(..continued)
relevant for the purposes of this appeal, § 502(a)(1)(B), states
in pertinent part:

          (a) Persons empowered to bring a civil action

          A civil action may be brought --

          (1) by a participant or beneficiary --

               . . . .

               (B) 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 . . . .
removable to federal court); Anderson v. Electronic Data Sys.

Corp., 

, 1314 (5th Cir.) (holding that removal was

proper because state law claim alleging that plan fiduciary was

demoted and terminated for refusing to violate ERISA fell within

§ 502(a)(2) & (3)), cert. denied, 

(1994); Sofo v.

Pan-American Life Ins. Co., 

, 240-41 (7th Cir. 1994)

(plaintiff's state court rescission claim against a group

insurance policy for the policy's refusal to reimburse plaintiff

for medical treatment received was properly removed because

plaintiff's claim was for a denial of benefits); Smith v. Dunham-

Bush, Inc., 

, 8-12 (2d Cir. 1992) (common law claim for

breach of an oral promise to pay pension-related benefits

properly removed to federal court); Lister v. Stark, 

, 943-44 (7th Cir. 1989) (plaintiff's state law claim

challenging the calculation of his time of "uninterrupted

service" for the purposes of calculating his pension benefits

held removable), cert. denied, 

(1990).

          That the Supreme Court has recognized a limited

exception to the well-pleaded complaint rule for state law claims

which fit within the scope of § 502 by no means implies that all

claims preempted by ERISA are subject to removal.   Instead, as

the U. S. Court of Appeals for the Sixth Circuit wrote recently,

"[r]emoval and preemption are two distinct concepts."   Warner v.
Ford Motor Co., 

, 535 (6th Cir. 1995).   Section 514 of

ERISA defines the scope of ERISA preemption, providing that ERISA

"supersede[s] any and all State laws insofar as they may now or

hereafter relate to any employee benefit plan described in
[§ 4(a) of ERISA] and not exempt under [§ 4(b) of ERISA]."

(Emphasis added.)   The Metropolitan Life complete-preemption

exception, on the other hand, is concerned with a more limited

set of state laws, those which fall within the scope of ERISA's

civil enforcement provision, § 502.   State law claims which fall

outside of the scope of § 502, even if preempted by § 514(a), are

still governed by the well-pleaded complaint rule and, therefore,

are not removable under the complete-preemption principles

established in Metropolitan Life.   See Franchise Tax 

-27 (holding that preemption under § 514(a) does not

permit a defendant to remove a suit brought in state court to

federal court when the plaintiff's state claim does not fall

within the scope of ERISA's civil remedy provisions);

Metropolitan 

(stating that ERISA preemption

under § 514(a) "without more, does not convert [a] state claim

into an action arising under federal law"); see also     

(holding that § 514(a) preemption defense will

not justify removal unless claim falls within the scope of

ERISA's civil enforcement provision, § 502); 

(that a claim is preempted under § 514(a) does not

necessarily establish that the claim is removable); Lupo v. Human
Affairs Int'l, Inc., 

, 272-73 (2d Cir. 1994) (state

law professional malpractice claim against company hired by

plaintiff's employer to provide psychotherapy services deemed

outside the scope of § 502(a)(1)(B) and therefore not removable).

          The difference between preemption and complete

preemption is important.   When the doctrine of complete
preemption does not apply, but the plaintiff's state claim is

arguably preempted under § 514(a), the district court, being

without removal jurisdiction, cannot resolve the dispute

regarding preemption.    It lacks power to do anything other than

remand to the state court where the preemption issue can be

addressed and resolved.    Franchise Tax 

, 27-28;

; 

; 

.



                                III.

            The district courts in these cases found that the

plaintiffs' state law claims against the U.S. Healthcare HMOs

fall within the scope of § 502(a)(1)(B) and that the Metropolitan

Life complete-preemption doctrine therefore permits removal.3    We

disagree.

            To determine whether the state law claims fall within

the scope of § 502(a)(1)(B), we must determine whether those

claims, properly construed, are "to recover benefits due . . .

under the terms of [the] plan, to enforce . . . rights under the

terms of the plan, or to clarify . . . rights to future benefits

under the terms of the plan."    In making that determination, it

would be helpful to have a complete understanding in each case of

the relationships among the HMO, the employer, and the other

3
 . There is no contention that the plaintiffs' state law claims
implicate any of ERISA's civil enforcement provisions other than
those set out in § 502(a)(1)(B). Accordingly, we direct our
discussion to whether the plaintiffs' claims fall within the
scope of § 502(a)(1)(B).
defendants, the nature of the plan benefits, and the rights of

participants and beneficiaries under the plan.   We are somewhat

hampered here because these cases come to us on appeal from

orders granting motions to dismiss.   Because of this procedural

status, the parties have had little chance to develop the records

and, accordingly, we know very little about the nature of the

plan benefits or about the role -- if any -- that U.S.

Healthcare's HMOs play in the respective ERISA welfare plans.

          We recognize that there are issues in dispute.    The

plaintiffs and the Department of Labor as amicus curie, for

example, claim that the U.S. Healthcare HMOs are separate from

the ERISA plans and that the sole benefit that participants and

beneficiaries receive from each plan is the plaintiffs'

membership in the HMOs.   In their view, the plaintiffs' claims

thus have nothing at all to do with § 502(a)(1)(B) because no one

contests that the plaintiffs in fact have received their plan

benefits (their membership in the HMO).   Instead, under their

view, the plaintiffs' claims merely attack the behavior of an

entity completely external to the ERISA plan.

          U.S. Healthcare, on the other hand, claims that the

plan benefits are more than just the plan participants' or

beneficiaries' memberships in the respective HMOs; it argues that

the medical care received is itself the plan benefit.     As a

corollary to that position, it also disagrees with the

plaintiffs' view that the HMOs are completely distinct from the

respective ERISA plans, arguing that the HMOs in fact play a role

in the delivery of plan benefits.   It further maintains that
ERISA is implicated because both the plaintiffs' agency claims

and their direct negligence claims relate to the quality of the

plan benefits and the HMOs' role as the entity that arranges for

those benefits for the ERISA plans.

          We need not here resolve these disputes about how to

characterize the plan benefits or the HMOs' role in the

respective ERISA plans.   We will assume, without deciding, that

the medical care provided (and not merely the plaintiffs'

memberships in the respective HMOs) is the plan benefit for the

purposes of ERISA.   We will also assume that the HMOs, either as

a part of or on behalf of the ERISA plans, arrange for the

delivery of those plan benefits.   We thus assume, for example,

that removal jurisdiction would exist if the plaintiffs were

alleging that the HMOs refused to provide the services to which

membership entitled them.

          Given those assumptions, we nevertheless conclude that

removal was improper.   We are compelled to this conclusion

because the plaintiffs' claims, even when construed as U.S.

Healthcare suggests, merely attack the quality of the benefits

they received:   The plaintiffs here simply do not claim that the

plans erroneously withheld benefits due.   Nor do they ask the

state courts to enforce their rights under the terms of their

respective plans or to clarify their rights to future benefits.

As a result, the plaintiffs' claims fall outside of the scope of

§ 502(a)(1)(B) and these cases must be remanded to the state

courts from which they were removed.
                                 A.

            Nothing in the complaints indicates that the plaintiffs

are complaining about their ERISA welfare plans' failure to

provide benefits due under the plan.    Dukes does not allege, for

example, that the Germantown Hospital refused to perform blood

studies on Darryl because the ERISA plan refused to pay for those

studies.    Similarly, the Viscontis do not contend that Serena's

death was due to their welfare plan's refusal to pay for or

otherwise provide for medical services.    Instead of claiming that

the welfare plans in any way withheld some quantum of plan

benefits due, the plaintiffs in both cases complain about the low

quality of the medical treatment that they actually received and

argue that the U.S. Healthcare HMO should be held liable under

agency and negligence principles.

            We are confident that a claim about the quality of a

benefit received is not a claim under § 502(a)(1)(B) to "recover

benefits due . . . under the terms of [the] plan."    To reach that

conclusion, "we begin as we do in any exercise of statutory

construction with the text of the provision in question, and move

on, as need be, to the structure and purpose of the Act in which

it occurs."    New York State Conference of Blue Cross & Blue

Shield Plans v. Travelers Ins. Co., Nos. 93-1408, 93-1414, 93-

1415, 

, at *6 (April 26, 1995).

            The text lends no support to U.S. Healthcare's

argument.   On its face, a suit "to recover benefits due . . .

under the terms of [the] plan" is concerned exclusively with

whether or not the benefits due under the plan were actually
provided.    The statute simply says nothing about the quality of

benefits received.

            Nor does anything in the legislative history,

structure, or purpose of ERISA suggest that Congress viewed

§ 502(a)(1)(B) as creating a remedy for a participant injured by

medical malpractice.    When Congress enacted ERISA it was

concerned in large part with the various mechanisms and

institutions involved in the funding and payment of plan

benefits.    That is, Congress was concerned "that owing to the

inadequacy of current minimum [financial and administrative]

standards, the soundness and stability of plans with respect to

adequate funds to pay promised benefits may be endangered."    § 2,

29 U.S.C. § 1001(a).   Thus, Congress sought to assure that

promised benefits would be available when plan participants had

need of them and § 502 was intended to provide each individual

participant with a remedy in the event that promises made by the

plan were not kept.    We find nothing in the legislative history

suggesting that § 502 was intended as a part of a federal scheme

to control the quality of the benefits received by plan

participants.    Quality control of benefits, such as the health

care benefits provided here, is a field traditionally occupied by

state regulation and we interpret the silence of Congress as

reflecting an intent that it remain such.    See, e.g., Travelers

Ins. Co., 

, at *7 (noting that while quality

standards and work place regulations in the context of hospital

services will indirectly affect the sorts of benefits an ERISA

plan can afford, they have traditionally been left to the states,
and there is no indication in ERISA that Congress chose to

displace general health care regulation by the states).



                                  B.

             We also reject the HMOs' attempts to characterize the

plaintiffs' state court complaints as attempts to enforce their

"rights under the terms of the [respective welfare] plan[s]."

That phrase is included, we believe, so as to provide a means of

enforcing any contract rights other than the right to benefits,

as for example the various plan-created rights of plan

participants to benefit-claim and benefit-eligibility procedures.

Just as § 502(a)(1)(B) provides the means by which a participant

can insist on the promised benefits, so too does it provide the

means for insisting on the plan-created rights other than plan

benefits.4

4
 . ERISA ordinarily requires that welfare plans set out a
description of the rights of the participants and their
beneficiaries in a summary plan description ("SPD"). 29 U.S.C.
§ 1022(b); see also 29 C.F.R. § 2520.102-2(a) (the plan
description must "apprise the plan's participants and
beneficiaries of their rights and obligations under the plan");
29 C.F.R. § 2520.102-3(j)(2) (SPD for an ERISA welfare plan must
include "a statement of the conditions pertaining to eligibility
to receive benefits"); 29 C.F.R. § 250.102-3(l) (SPD must include
"a statement clearly identifying circumstances which may result
in disqualification, ineligibility, or denial, loss, forfeiture
or suspension of any benefits"); 29 C.F.R. § 102-3(s) (SPD must
include a statement describing "[t]he procedures to be followed
in presenting claims for benefits under the plan and the remedies
available under the plan for the redress of claims which are
denied in whole or in part"). That requirement is relaxed in
situations where the ERISA plan chooses to provide benefits
through a qualified HMO. Under 29 C.F.R. § 2520.102-5(a), if
health benefits are provided through an HMO, the SPD need not
contain the usual description of the rights of participants or
beneficiaries, provided the SPD contains a notice stating, among
          The HMOs point to no plan-created right implicated by

the plaintiffs' state law medical malpractice claims.     The best

they can do is assert that the plaintiffs' medical malpractice

claims "attempt to define a participant's rights under the plan."

(Appellee's bf. in Visconti, at 9.)    We cannot accept that

characterization.     The plaintiffs are not attempting to define

new "rights under the terms of the plan"; instead, they are

attempting to assert their already-existing rights under the

generally-applicable state law of agency and tort.    Inherent in

the phrases "rights under the terms of the plan" and "benefits

due . . . under the terms of [the] plan" is the notion that the

plan participants and beneficiaries will receive something to

which they would not be otherwise entitled.    But patients enjoy

the right to be free from medical malpractice regardless of



(..continued)
other things, that plan participants will receive membership "in
one or more qualified health maintenance organizations,"
§ 2520.102-5(b)(1), and that upon request each available HMO will
provide certain written information, namely

          (i) the nature of services provided to
          members; (ii) conditions pertaining to
          eligibility to receive such services (other
          than general conditions pertaining to
          eligibility for participation in the plan)
          and circumstances under which services may be
          denied; and (iii) the procedures to be
          followed in obtaining such services, and the
          procedures available for the review of claims
          for services which are denied in whole or in
          part.


§ 2520.102-5(b)(3).
whether or not their medical care is provided through an ERISA

plan.



                                  C.

            Much of the above analysis also precludes us from

concluding that the plaintiffs are asking the state courts to

"clarify [their] rights to future benefits under the terms of the

plan."    As noted, there is no allegation here that the HMOs have

withheld plan benefits due.    Moreover, nothing in the complaints

remotely resembles a request that the court clarify a right to a

future benefit; instead, the plaintiffs' complaints center on

past events.



                                  D.

           We recognize that the distinction between the quantity

of benefits due under a welfare plan and the quality of those

benefits will not always be clear in situations like this where

the benefit contracted for is health care services rather than

money to pay for such services.    There well may be cases in which

the quality of a patient's medical care or the skills of the

personnel provided to administer that care will be so low that

the treatment received simply will not qualify as health care at

all.    In such a case, it well may be appropriate to conclude that

the plan participant or beneficiary has been denied benefits due

under the plan.   This is not such a case, however.   While the

Dukes complaint alleges that the Germantown Hospital committed
malpractice when it decided not to perform certain blood tests,
no one would conclude from that malpractice that Germantown

Hospital was not acting as a health care provider when it made

those decisions.   Similarly, while the Viscontis claim that Dr.

Wisniewski was incompetent, there is no indication that he was

not performing health care services at the time he allegedly

committed the malpractice charged.

          We also recognize the possibility that an ERISA plan

may describe a benefit in terms that can accurately be described

as related to the quality of the service.   Thus, for example, a

plan might promise that all X-rays would be analyzed by

radiologists with a prescribed level of advanced training.     A

plan participant whose X-ray was analyzed by a physician with

less than the prescribed training might well be entitled to

enforce the plan's promise through a suit under § 502(a)(1)(B) to

secure a denied benefit.

          Much of the HMOs' argument in these cases is at root a

contention that the employer and the HMO impliedly contracted

that the health care services provided would be of acceptable

quality and, accordingly, that these damage suits rest on a

failure to provide services of acceptable quality.   Since we do

not have before us the documents reflecting the agreements

between the employers and the HMOs, we are not in a position to

determine whether such a commitment was implicit in their

respective agreements.   However, the burden of establishing

removal jurisdiction rests with the defendant.   Abels v. State

Farm Fire & Cas. Co., 

, 29 (3d Cir. 1985); see

generally 14A Charles A. Wright, et al., Federal Practice &
Procedure § 3721, at 209-10 (1985 & Supp. 1995).   Accordingly,

the HMO is not in a position to press this argument.

           Moreover, we hasten to add that while we have no doubt

that all concerned expected the medical services arranged for by

the HMOs to be of acceptable quality, this seems to us beside the

point.   The relevant inquiry is not whether there was an

expectation of acceptably competent services, but rather whether

there was an agreement to displace the quality standard found in

the otherwise applicable law with a contract standard.

           It may well be that an employer and an HMO could agree

that a quality of health care standard articulated in their

contract would replace the standards that would otherwise be

supplied by the applicable state law of tort.   We express no view

on whether an ERISA plan sponsor may thus by contract opt out of

state tort law and into a federal law of ERISA contract.    We will

reserve that issue until a case arises presenting it.5   Nothing

in this record suggests an agreement to displace the otherwise

applicable state laws of agency and tort.



                               IV.




5
 . It would seem to Judge Roth that, if a plan were to adopt its
own standard of acceptable health care to be made available to
beneficiaries, the plan should provide concurrently, through
insurance or otherwise, an appropriate remedy to beneficiaries
for any failure of the plan care providers to meet that standard
or, in the alternative, should inform plan beneficiaries that
tort law remedies for medical malpratice would not be available
to them under the plan.
            The HMOs take heart in a recent case, Corcoran v.

United Healthcare, Inc., 

(5th Cir.), cert. denied,

(1992), in which the U.S. Court of Appeals for the

Fifth Circuit held that ERISA preempts a medical malpractice

claim against a medical consulting company for decisions it made

as the third-party administrator of a welfare plan's "pre-

certification" review program.   We agree with the HMOs that under

Corcoran, third-party private companies may, in some

circumstances, play a role in an ERISA plan and that claims

against such companies may fall within the scope of § 502(a).       We

nevertheless find Corcoran inapposite on the facts and claims

alleged in this case.

            Corcoran began as a state law wrongful death action

against Blue Cross and Blue Shield of Alabama ("Blue Cross") and

United Heathcare ("United"), in which Florence Corcoran charged

that the defendants were responsible for the death of her unborn

fetus.   An employee at South Central Bell Telephone, Corcoran was

a member of Bell's Medical Assistance Plan ("the Bell Plan"), a

self-funded welfare-benefit plan which provides medical benefits

to eligible Bell employees.   The Bell Plan was administered by

Blue Cross.

            One provision of the plan, the "Quality Care Program"

("QCP") required plan participants and beneficiaries to obtain

advance approval for certain medical procedures and overnight

hospital visits.   Such cost-containment programs typically are

known as "utilization review" or "pre-certification review"

programs.   Under the QCP, once a patient's doctor recommended
surgery or hospitalization, the staff assigned to the QCP was

required to perform an independent review of the patient's

condition to determine both the need for the surgery and the

appropriate length of hospitalization.     As is often the case, the

Bell Plan hired a third party -- United -- to perform the QCP for

the Plan.    See generally Susan J. Stayn, Note, Securing Access to

Care in Health Maintenance Organizations:     Toward a Uniform Model

of Grievance and Appeal Procedures, 94 Colum. L. Rev. 1694, 1677-

83 (1994).

             Corcoran's doctor, in response to difficulties Corcoran

was experiencing with her pregnancy, recommended that Corcoran be

hospitalized.     As a result, Corcoran applied to the Bell Plan for

disability benefits for the remainder of her pregnancy.     Despite

the recommendation of Corcoran's doctor, United determined that

hospitalization was unnecessary, and instead authorized only 10

hours a day of home nursing care.     The fetus went into distress

and died during a period of time when the nurse assigned to

Corcoran was not on duty.     Corcoran subsequently filed suit in

Louisiana state court against Blue Cross and United.

             United removed the case to federal district court,

claiming that Corcoran's claims were completely preempted by

ERISA.   The district court then granted United's motion to

dismiss and Corcoran appealed.

             The U.S. Court of Appeals for the Fifth Circuit ruled

that ERISA preempted Corcoran's claim against United and --

implicitly, at least -- that Corcoran's claims were completely

preempted.     It explained that while United was in fact giving
medical advice, it gave that advice as part of its role of making

benefit determinations for the 

.   Thus,

the court determined that plaintiffs were "attempting to recover

for a tort allegedly committed in the course of handling a

benefit determination," 

and that such state law

claims are preempted by ERISA.   See Pilot Life Ins. Co. v.

Dedeaux, 

, 48 (1987) (common law cause of action

arising from "improper processing of a claim for benefits"

preempted by ERISA); see also Kuhl v. Lincoln Nat'l Health Plan,

Inc., 

, 303 (8th Cir. 1993) (medical malpractice

claim against plan administrator for delaying pre-certification

of heart surgery arose from administration of benefits and

therefore was preempted), cert. denied, 

(1994);

Berger v. Edgewater Steel Co., 

, 923 (3d Cir. 1990)

(claim against plan sponsor for misrepresenting available

benefits preempted), cert. denied, 

(1991).

          The HMOs argue that we should read Corcoran broadly to

hold that medical malpractice claims against an HMO should be

removable under Metropolitan Life whenever an HMO provides the

complained-about medical treatment as a benefit of an ERISA-

covered health plan.   They note that several district courts have

adopted versions of their suggested approach.   See, e.g., Ricci
v. Gooberman, 

, 317-18 (D.N.J. 1993) (plaintiff's

attempt to hold an HMO liable under a vicarious liability claim

similar to the ones at bar held preempted); Butler v. Wu, 853 F.

Supp. 125, 129-30 (D.N.J. 1994) (same); Nealy v. U.S. Healthcare
HMO, 

, 973 (S.D.N.Y. 1994) (plaintiff's attempts
to hold an HMO liable under several common law theories held

preempted); Altieri v. Cigna Dental Health, Inc., 753 F. Supp 61,

63-65 (D. Conn. 1990) (ERISA preempts plaintiff's negligent

supervision claim against an HMO).   But see Independence HMO,

Inc. v. Smith, 

, 987-89 (E.D. Pa. 1990) (ERISA

does not preempt medical malpractice-type claims brought against

HMOs under a vicarious liability theory); Elsesser v. Hospital of

the Philadelphia College of Osteopathic Medicine, 

, 1290-91 (E.D. Pa. 1992) (same for a claim against an HMO

for the HMO's negligence in selecting, retaining, and evaluating

plaintiff's primary-care physician).   See also Kearney v. U.S.

Healthcare, Inc., 

, 186-87 (E.D. Pa. 1994)

(holding in a case similar to those at bar that ERISA preempts

plaintiff's direct negligence claim, but not its vicarious

liability claim).

          The HMOs' reliance on Corcoran is misplaced.     Although

United's decisions in Corcoran were in part medical decisions,

United, unlike the HMOs here, did not provide, arrange for, or

supervise the doctors who provided the actual medical treatment

for plan participants.   (Blue Cross played that role in

Corcoran.)   Instead, United only performed an administrative

function inherent in the "utilization review."   The difference

between the "utilization review" and the "arranging for medical

treatment" roles is crucial for the purposes of § 502(a)(1)(B)

because only in a utilization-review role is an entity in a
position to deny benefits due under an ERISA welfare 

n.16 (noting that ERISA is implicated in

"utilization review" decisions but not medical-treatment

decisions because only the former are "made in connection with a

cost containment plan"); see also 

(malpractice claims against insurance company hired to perform a

"pre-certification review" held to fall within § 502(a)'s civil

enforcement provisions); 

(holding that the cause of action based on allegations that HMO

withheld benefits were preempted, while the claims against HMO

for its negligent selection, retention, and evaluation of a

primary-care physician were not preempted).

             In these cases, the defendant HMOs play two roles, not

just one.7    In addition to the utilization-review role played by

United in Corcoran, the HMOs also arrange for the actual medical

treatment for plan participants.    Only this second role is

relevant for this appeal, however:    on the faces of these

complaints there is no allegation that the HMOs somehow should be

held liable for any decisions they might have made while acting




6
 . As noted in Part III, we are assuming, without deciding, that
the medical care provided (and not merely the plaintiffs'
memberships in the respective HMOs) is the plan benefit for the
purposes of ERISA. So viewed, when acting in their utilization-
review role, the HMOs are making benefit determinations.
7
 . There is nothing unusual about this. HMOs often arrange for
the medical treatment and perform the utilization review (instead
of hiring a third party). See, e.g., 

(HMO playing both roles); see also 

.
in their utilization-review roles.8   Stated another way, unlike

Corcoran, there is no allegation here that the HMOs denied anyone

any benefits that they were due under the plan.    Instead, the

plaintiffs here are attempting to hold the HMOs liable for their

role as the arrangers of their decedents' medical treatment.

          For this reason, these cases are more like Lupo v.

Human Affairs Int'l, Inc., 

(2d Cir. 1994).     There, an

employer had contracted with a psychotherapy service group, Human

Affairs International, Inc. ("HAI"), to provide mental health

services to its employees in connection with an employee benefit

plan governed by ERISA.   Lupo, an employee who received

psychotherapy services from HAI, sued HAI in a state court for

his therapist's professional malpractice, breach of fiduciary

duty, and intentional infliction of emotional distress.    HAI,

like the HMOs here, removed the case to federal court, claiming

that ERISA completely preempted Lupo's claims.    The district

court agreed with HAI, and, accordingly, dismissed Lupo's claim.

The U.S. Court of Appeals for the Second Circuit reversed,

holding that the district court lacked removal jurisdiction and

was thus obligated to remand to the state court.    It reached this

conclusion because "[o]n their face, none of [Lupo's] claims

[bore] any significant resemblance to those described in



8
 . The only possible exception is Dukes' allegation that the
Germantown Hospital refused to perform blood studies on Darryl.
Still, on the record before the court, there is no indication
that the hospital refused to perform those studies because of the
ERISA plan's refusal to pay.
[§ 

.   The situation in the cases

at bar is closely analogous.    As in Lupo, the plaintiffs' claims

in these cases do not concern a denial of benefits due or a

denial of some other plan-created right.    Thus, the claims here,

like those in Lupo, bear no significant resemblance to the claims

described in § 502(a)(1)(B).



                                  V.

             For the foregoing reasons, the district courts'

judgments in these cases will be reversed and remanded with

instructions to remand the cases to the state courts from which

they came.    Our holding that the districts courts lack removal

jurisdiction, of course, leaves open for resolution by the state

courts the issue of whether the plaintiffs' claims are preempted

under § 514(a).