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Ghee v. USAble Mutual Insurance Co.
Supreme Court of Alabama
May 24, 2019
Douglas Ghee, as personal representative of the Estate of Billy Fleming, deceased
USAble Mutual Insurance Company d/b/a Blue Advantage Administrators of Arkansas
from Calhoun Circuit Court (CV-15-900383)
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").
and Procedural History
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
"'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
"'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
"'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]
"'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
"'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
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