Douglas GHEE, as personal representative of the Estate of Billy Fleming, deceased,
USABLE MUTUAL INSURANCE COMPNAY d/b/a Blue Advantage Administrators of Arkansas.
[Copyrighted Material Omitted]
from Calhoun Circuit Court (CV-15-900383)
Andrews and Richard Riley of Marsh, Rickard & Bryan,
P.C., Birmingham, for Appellant.
Cavender C. Kimble and Jeremiah M. Glassford of Balch &
Bingham LLP, Birmingham, for Appellee.
Matthew C. McDonald of Jones Walker LLP, Mobile, for amicus
curiae Alabama Civil Justice Reform Committee, in support of
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)
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 and
"`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
"`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,
"`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
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 ...