MAUREEN KURTEK and JOSEPH KURTEK v. CAPITAL BLUE CROSS and CAPITAL ADVANTAGE INSURANCE COMPANY

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 05-4325
___________
MAUREEN KURTEK and JOSEPH KURTEK,
Appellants.
v.
CAPITAL BLUE CROSS and CAPITAL
ADVANTAGE INSURANCE COMPANY,
Appellees.
________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
District Court Judge: The Honorable James M. Munley
(Civil No. 04-cv-02731)
___________
Submitted Under Third Circuit L.A.R. 34.1(a)
January 23, 2007
BEFORE: SCIRICA, Chief Judge, FUENTES and CHAGARES, Circuit Judges.
(Filed March 1, 2007)
_______________________
OPINION OF THE COURT
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1 IV IG therapy has been used to treat numerous autoimmune diseases, including
Lupus.
2
FUENTES, Circuit Judge.
Maureen Kurtek and her husband Joseph allege that Maureen suffered injuries
resulting from the failure of defendants Capital Blue Cross and Capital Advantage
Insurance Company (collectively “Capital”) to approve a medical treatment in a timely
fashion. The Kurteks now appeal the District Court’s determination that their state law
claims are preempted by the federal Employee Retirement Income Security Act
(“ERISA”). For the reasons that follow, we will affirm.
I.
Maureen Kurtek was diagnosed with Lupus in 1989 and has undergone regular
treatment since that time. Based on her doctor’s recommendation, she received
intravenous immunoglobulin (IV IG) therapy in five sessions from June to December
1998.1 She was administered IV IG therapy again in July 1999 and September 2002. The
IV IG treatments alleviated symptoms of joint pain, butterfly rash, photosensitivity, and
fatigue. All three of the treatments were paid for by Pennsylvania Blue Cross Blue
Shield, her insurance carrier at the time.
On January 1, 2003, Capital became the Kurteks’ health insurance provider. After
meeting with her doctor on January 17, Maureen contacted Capital to obtain
preauthorization for another recommended IV IG treatment. According to the Kurteks,
this treatment required a two-day stay in the hospital and cost $14,000. A representative

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2 APLS is a disorder of coagulation that causes blood clots in arteries and veins.
Catastrophic APLS involves multiple and rapid organ dysfunction.
3
told her that the procedure appeared to be experimental and that Capital would contact her
when a decision had been made. Maureen made several follow-up calls in the next few
weeks, but was told each time the matter was being researched.
On February 28, Maureen Kurtek developed flu-like symptoms and was taken to
the emergency room the next day for what proved to be acute catastrophic
antiphospholipid antibody syndrome (“APLS”).2 Once stabilized, she was transferred to
another hospital in critical condition and diagnosed with multi-organ system failure. As
part of her treatment, the hospital administered her IV IG therapy. On March 11, while
still an inpatient at the hospital, she received a voicemail from Capital stating that the IV
IG therapy would be covered as long as it was medically necessary.
In November 2004, Maureen and her husband filed a complaint in Pennsylvania
state court asserting that the catastrophic APLS event would not have occurred—or at
least would have been “dramatically diminished”—had Capital granted authorization for
the IV IG therapy in a timely fashion. They allege that she suffered numerous injuries as
a result of this delay, including: “prolonged hospitalizations, tracheotomy, pulmonary
failure, renal failure, sepsis, gangrene, damage to her sinus, transmetatarsal amputation of
the right foot, osteomyelitis, loss of the tips of her index fingers, and neuropathy.” App.
34. The Kurteks claim these conditions will require “daily [drug] injections into her
belly, future sinuses surgery, and . . . medical care, attention, and monitoring for the

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remainder of her life.” Id. The complaint also asserts that she suffers from anxiety and
depression. Joseph Kurtek seeks damages for loss of consortium and emotional distress.
Capital removed the case to federal court on the basis that ERISA preempts the
Kurteks’ state law claims. Capital then moved to dismiss the case, while the Kurteks
moved to remand to state court. On June 13, 2005, the District Court determined that the
state law claims were preempted by ERISA, but provided the Kurteks with thirty days to
file an amended complaint pleading an ERISA cause of action. Instead, they filed a
motion for reconsideration, which the District Court denied on August 12, 2005, while
giving the Kurteks twenty days to file an amended complaint. They failed to do so, and
on September 15, 2005, the Court granted a motion by Capital to dismiss the case.
Soon thereafter, the Kurteks filed this appeal which challenges the denials of their
motion to remand and motion to reconsider. We have jurisdiction under 28 U.S.C. §
1291, and we exercise plenary review. See Werwinski v. Ford Motor Co., 286 F.3d 661,
665 (3d Cir. 2002); Pryzbowski v. U.S. Healthcare, Inc., 245 F.3d 266, 268 (3d Cir.
2001). Because we agree with the District Court that ERISA preempts the state law
claims in this case, we will affirm.
II.
The Supreme Court has explained that “[t]he purpose of ERISA is to provide a
uniform regulatory regime over employee benefit plans. To this end, ERISA includes
expansive pre-emption provisions, see ERISA § 514, 29 U.S.C. § 1144, which are
intended to ensure that employee benefit plan regulation would be exclusively a federal

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concern.” Aetna Health Inc. v. Davila, 542 U.S. 200, 208 (2004) (internal quotation
marks omitted). Section 502(a) of ERISA allows participants in qualified plans “to
recover benefits due to [them] under the terms of [their] plan, to enforce [their] rights
under the terms of the plan, or to clarify [their] rights to future benefits under the terms of
the plan.” 29 U.S.C § 1132(a)(1)(B). Any cause of action that falls within the scope of
these civil enforcement provisions is removable to federal court. Davila, 542 U.S. at 209.
We have held that “claims that merely attack the quality of benefits do not fall
within the scope of § 502(a)’s enforcement provisions and are not completely preempted,
whereas claims challenging the quantum of benefits due under an ERISA-regulated plan
are completely preempted under § 502(a)’s civil enforcement scheme.” Pryzbowski v.
U.S. Healthcare, Inc., 245 F.3d 266, 272 (3d Cir. 2001); see also Dukes v. U.S.
Healthcare, Inc., 57 F.3d 350, 356-57 (3d Cir. 1995). The Kurteks argue on appeal that in
delaying approval of the IV IG therapy, Capital made a medical decision affecting the
quality of benefits that Maureen Kurtek received. They assert that because they do not
challenge the quantity or administration of benefits, their claims are not preempted by
ERISA.
Specifically, the Kurteks argue that Capital’s consideration of whether a procedure
is “experimental” involved a medical treatment decision pertaining to the quality of care.
In DiFelice v. Aetna U.S. Healthcare, 346 F.3d 442 (3d Cir. 2003), however, we
concluded that there was preemption when an HMO determined that a special
tracheostomy tube recommended by plaintiff’s doctor was not “medically necessary.”

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We held that because “DiFelice could have challenged Aetna’s ‘medical necessity’
determination by filing a claim under [§] 502(a)(1)(B) ‘to recover benefits due to him
under the terms of his plan,’” his claim was completely preempted by ERISA. Id. at 449.
In response, the Kurteks argue that they could not have brought their claims under §
502(a) because they challenge the delayed approval of a medical procedure, and not a
denial of benefits. The Kurteks, however, could have sought an injunction under § 502(a)
to accelerate the approval of the procedure or could have paid for the IV IG therapy and
then sought reimbursement. See Pryzbowski v. U.S. Healthcare, Inc., 245 F.3d 266, 273-
74 (3d Cir. 2001); DiFelice, 346 F.3d at 449.
We also rejected a similar argument in Pryzbowski, where the plaintiff argued that
a delay in approving her back surgery had caused her severe pain. We ruled that
Pryzbowski’s claims were preempted by ERISA and that “delay in approving benefits [is]
conduct falling squarely within administrative function.” 245 F.3d at 274. While noting
that certain delays, such as a physician waiting to perform “urgent surgery on a patient
whose appendix was about to rupture,” would concern quality of care, we explained that
“a claim alleging that an HMO declined to approve certain requested medical services or
treatment on the ground that they were not covered under the plan would manifestly be
one regarding the proper administration of benefits.” Id. at 273.
Finally, the Kurteks argue that the delay of approval was a “mixed eligibility and
treatment” decision, and that their claims are therefore not subject to preemption under
Pegram v. Herdrich, 530 U.S. 211 (2000). The Supreme Court, however, clarified in

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Davila that “it was essential to Pegram’s conclusion that the decisions challenged there
were truly ‘mixed eligibility and treatment decisions,’ i.e., medical necessity decisions
made by the plaintiff’s treating physician qua treating physician and qua benefits
administrator.” 542 U.S. at 220-21 (citation omitted). Here, of course, Maureen Kurtek’s
treating physician recommended that she undergo the IV IG therapy and it was Capital
who delayed approval. Because Capital’s decision whether to pay for the treatment and
its delay in making that decision related to the administration of benefits, the Kurteks’
state law claims are preempted by ERISA.
III.
We note that a number of judges have urged Congress and the Supreme Court to
revisit ERISA and its preemption scheme. As Judge Becker observed in DiFelice,
“ERISA has evolved into a shield that insulates HMOs from liability for even the most
egregious acts of dereliction committed against plan beneficiaries.” 346 F.3d at 453 (3d
Cir. 2003) (J. Becker, concurring); see also Davila, 542 U.S. at 222 (joining “‘the rising
judicial chorus urging that Congress and [this] Court revisit what is an unjust and
increasingly tangled ERISA regime.’” (Ginsburg, J., concurring) (quoting DiFelice, 346
F.3d at 453 (Becker, J., concurring)) (alteration in original); Cicio v. Does, 321 F.3d 83,
106 (2d Cir. 2003) (Calabresi, J., dissenting in part) (“[T]he injury that the courts have
done to ERISA will not be healed until the Supreme Court reconsiders the existence of
consequential damages under the statute, or Congress revisits the law to the same end.”).
Nevertheless, we are bound by the precedents of the Supreme Court and this Court. The

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Kurteks’ state law claims are preempted by ERISA, and we will affirm the District
Court’s denial of their motion to reconsider.

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