Ghee v. USAble Mutual Insurance Co.

          Appeal from Calhoun Circuit Court (CV-15-900383)

          STEWART, JUSTICE.

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

         Facts and Procedural History

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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