Pickett v. Cigna Healthplan of Texas, Inc., 742 F. Supp. 946 (S.D. Tex. 1990)

John W. Donovan, Houston, Tex., for plaintiff.

Katherine S. Youngblood, Houston, Tex., for defendants.

HUGHES, District Judge.

Marjorie F. Pickett has sued Cigna Healthplan of Texas, Dr. Wylie Tjoa, Dr. Milton Thomas, and Dr. William Huang for medical malpractice in state district court. Cigna removed the case. Because it does not present a question under ERISA, it will be remanded to the 215th Judicial District Court of Texas, Harris County. Employee Retirement and Income Security Act of 1974, 29 U.S.C. § 1001 et seq.

Pickett has sued Cigna and the three doctors for failure to diagnose and treat her cancer in time. Cigna removed this case on the ground that Pickett was questioning the administration of the plan. That assumption is wrong for these reasons:

1. The ERISA plan is not a party to this suit.

2. Pickett is not challenging the administration of the plan. From this court's reading, Pickett alleges Cigna's rotation system of doctors is an unreasonable medical procedure. Cigna is in this case in its capacity as a health maintenance organization, not as an ERISA plan manager. This is not an administrative function, like denying coverage or paying bills.

3. In an ERISA case, the only entity to serve as a defendant is the ERISA plan itself. It is a juridical entity separate and distinct from the providers of the plan's services and from the plan's trustees. 29 U.S.C. § 1132(d) (1). An ERISA suit challenges the plan's denial of benefits, and the only relief the court is able to fashion is the benefits that would have been available under the plan, for example, paying the hospital bills.

4. The plaintiff has stipulated that this is only a common law medical malpractice case raising questions of medical care not claims administration.

*947 This case does not present a question under the ERISA statute and will be remanded.