United States District Court, D. New Mexico
BRANELDA SUE HAALAND, Individually and as Personal Representative of the Estate of Billie Jo Hall, deceased, RICHARD HALL, and RICHARD WAYNE HALL, Plaintiffs,
PRESBYTERIAN HEALTH PLAN, INC., a New Mexico corporation, and PRESBYTERIAN HEALTHCARE SERVICES, a New Mexico corporation, and GREGG VALENZUELA, Defendants.
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on Defendant Presbyterian
Health Plan, Inc.'s (“PHP's”) Motion for
Summary Judgment on Federal Defenses (Doc. 40), filed
September 18, 2017. Pursuant to 28 U.S.C. § 636(c) and
Fed.R.Civ.P. 73(b), the parties have consented to me serving
as the presiding judge and entering final judgment. See Docs.
4-5, 7, 9. Having considered the record, submissions of
counsel, and the relevant law, the Court finds that the
motion is well-taken and will be granted.
initiated this action in state district court on July 15,
2016. See Doc. 1. They alleged that their decedent,
Billie Joe Hall (“Ms. Hall”), “died from a
wrongful and tortious denial of a liver transplant
evaluation, ” for which the “Estate seeks damages
for her wrongful death.” Doc. 37 at ¶ 7. PHP
removed the action to this Court under the Federal Officer
Removal Statute, 28 U.S.C. § 1442(a)(1), and Plaintiffs
responded with a motion to remand. Doc. 17. At an April 4,
2017 hearing on the Motion to Remand, Plaintiffs conceded
that for three of their causes of action - those asserted
under the Insurance Practices Act, NMSA § 59-A-16-20,
the Unfair Trade Practices Act, NMSA § 57-12-2, and
§ 18.104.22.168 of the New Mexico Administrative Code - the
Medicare Act's directives and extensive regulation
supported removal under Section 1442(a)(1). Doc. 23.
Based upon this concession, the Court denied Plaintiff's
Motion to Remand. Doc. 24.
Plaintiffs filed their Third Amended Complaint, omitting
those claims for which they had conceded preemption. See
Doc. 37. In the now-operative complaint, Plaintiffs
assert two claims against PHP under New Mexico's Wrongful
Death Act. In Count I, they allege that PHP negligently
denied Ms. Hall a liver transplant evaluation, either by
“failing to follow its own policies and procedures that
were not mandated by federal law” or “by having
written or unwritten policies, procedures and practices to
deny or hinder liver transplant evaluations and
transplantation for persons 70 or older.” Id.
at ¶ 19. In Count II, they allege that PHP's denial
of the request for a liver transplant evaluation was the
product of “age discrimination” in violation of
“its own non-discrimination policy.” Id.
at 5-6. Plaintiffs maintain, both in their
Complaint and in their briefing on PHP's Motion for
Summary Judgment that these claims do not arise under the
Medicare Act and do not seek Medicare benefits. Id.
at ¶ 7; Doc. 47.
Ms. Hall purchased from PHP a Medicare Advantage plan -
“Presbyterian Senior Plan 2 with Prescriptions
(HMO)” - under 42 U.S.C. § § 1395-1395ggg
Part C. Def.'s Mot. for Summ. J., Doc. 40
(“Def.'s MSJ”), at Undisputed Fact
(“UF”) ¶ 1. A booklet issued in connection
with the plan informed Ms. Hall that PHP was required
“[to] cover all services covered by Original Medicare
and [to] follow Original Medicare's coverage
rules.” Id. at UF ¶ 2. Under Ms.
Hall's Medicare Advantage plan, PHP was required to cover
services deemed to be “medically necessary,
” which the plan defined as “services
. . . needed for the prevention, diagnosis, or treatment of
[a] medical condition and [that] meet accepted standards of
practice.” Id. at UF ¶ 2; Pl.'s Resp.
to Def.'s Mot. for Summ. J., Doc. 47 (“Pl.'s
Resp.”), at UF ¶ 2.
some circumstances, liver transplants were covered by Ms.
Hall's Medicare Advantage plan. Def.'s MSJ, at UF
¶ 3. For instance, liver transplants would be covered
when there was advanced approval or “prior
authorization.” Id. The plan did not specify,
however, that prior authorization by PHP was required for a
liver transplant evaluation by a Medicare-approved
transplant center. Pl.'s Resp. to Def's UF ¶ 3.
Rather, the plan provided that if an enrollee “need[ed]
a transplant, [PHP] would arrange to have [the] case reviewed
by a Medicare-approved transplant center that [would] decide
whether [the enrollee was] a candidate for a
transplant.” Def.'s MSJ, at UF ¶ 3.
about August 13, 2014, Gregg A. Valenzuela, M.D., a
gastroenterologist working at the Presbyterian Healthcare
Services GI Clinic, requested that PHP
authorize a liver transplant evaluation for Ms.
Hall. Pl.'s Resp. to Def.'s UF ¶ 4; Doc.
39, Ex. B & C. Dr. Valenzuela's request was
forwarded to Sandy Brown, R.N. (“Nurse Brown”) of
PHP on August 15, 2014. Def.'s MSJ, at UF ¶ 5. The
forwarding e-mail indicated that Ms. Hall's model for
end-stage liver disease (“MELD”) score had been
13 as of July 10, 2014. Def.'s MSJ, at UF ¶ 5; Doc.
39, Ex. C, at 1. Nurse Brown reviewed Ms. Hall's case on
August 18, 2014, and her note on that date stated in part:
[Ms. Hall] is a 70 year old female with a history of
[c]irrhosis[, ] kidney disease[, ] and high blood pressure.
She also has a history of breast cancer and a density on
chest x ray in the right lung. [C]all placed to [Dr.
Valenzuela's office] to advise [that Ms. Hall] is over
the age limit for transplant evaluation.
MSJ, at UF ¶ 6; Doc. 39, Ex. C, at 1. The following
morning, Nurse Brown wrote this upDated: “[Request]
ha[s] been sent to [PHP's] medical director for liver
transplant evaluation. Per [Presbyterian Health Plan medical
policy (MPM 20.6)] member does not meet criteria for
transplant eval. . . . [F]amily advised of possible denial
related to age.” Def.'s MSJ, at UF ¶ 7;
Doc. 39, Ex. C, at 1.
medical director, Dr. Norman G. White, received an August 19,
2014 email notifying him of Dr. Valenzuela's request that
Ms. Hall receive a liver transplant evaluation. Def.'s
MSJ, at UF ¶ 9; Doc. 39, Ex. D. The e-mail mentioned
that Ms. Hall was 70 years old and that her diagnosis was
non-alcoholic cirrhosis; it also summarized some of her past
medical history, set forth her lab values from two weeks
earlier, and indicated that her current MELD was 13.
Def.'s MSJ, at UF ¶ 9; Doc. 39, Ex. D. Referring to
PHP medical policy MPM 20.6, the e-mail suggested that Ms.
Hall did “not meet criteria for liver transplant
evaluation.” Def.'s MSJ, at UF ¶ 9; Doc. 39,
Ex. D. Dr. White wrote an e-mail that same day, indicating
that “[b]ased on submitted documentation, [Ms. Hall]
does not meet PHP MPM 20.6 criteria for consideration of
liver transplant and evaluation for liver transplantation [,
and] [b]ased on Presbyterian Health Plan criteria, the degree
of liver disease is not severe enough to initiate liver
transplant evaluation.” Def.'s MSJ, at UF ¶
10; Doc. 39, Ex. G.
time, PHP's MPM 20.6 provided that a PHP member could
receive a liver transplant evaluation if she had
“severe organ injury, dysfunction or symptomatic organ
failure that [was] not amendable [sic] to other medical or
surgical alternatives” and “[e]nd stage liver
disease, as demonstrated by one of the following:  current
or past history of acute/fulminant hepatic failure and/or
variceal hemorrhage or  Platelets < 120, 000, increased
prothrombin time, decreased albumin, and increased
bilirubin.” Def.'s MSJ, at ¶ 11; Doc. 39, Ex.
E. The parties disagree about whether Dr. Valenzuela's
treatment notes demonstrate that Ms. Hall met these criteria.
Compare Doc. 47 at 8-9, with Doc. 49 at 6-7.
Plaintiff maintains that Dr. White's stated reasons for
the denial were pretextual, and that Ms. Hall's age was
the “real reason” for the denial of the liver
transplant evaluation. Doc. 47 at 9.
about August 26, 2014, a PHP employee informed a member of
the Presbyterian Healthcare Services GI clinic staff that Dr.
Valenzuela's request for a liver transplant evaluation
had been denied because Ms. Hall “d[id] not meet
criteria for transplant evaluation.” Def.'s MSJ, at
UF ¶ 12; Doc. 39, Ex. C. Thereafter, Ms. Hall received
from PHP a “Notice of Denial of Medical Coverage”
for the request for a liver transplant evaluation. Doc. 39,
at ¶ 19 & Ex. H. The notice, dated September 24,
2014, stated: “Based on the information we received,
you do not meet the Presbyterian Health Plan medical policy
(MPM 20.6) criteria for the requested liver transplant
evaluation. Based on the Presbyterian Health Plan medical
policy, the degree of your liver disease is not severe enough
to initiate a liver transplant evaluation.” Def.'s
MSJ, at UF ¶ 13; Doc. 39, Ex. H.
Notice of Denial of Medical Coverage also informed Ms. Hall
that she had the right “to ask [PHP] to review [its]
decision by asking for an appeal . . . within 60 days of the
date of [the] notice” or later if she had “a good
reason for missing the deadline.” Def.'s MSJ at UF
¶ 14; Doc. 39, Ex. H, at 1. The notice assured Ms. Hall
that a decision would be made within 30 days for a
“Standard Appeal” or within 72 hours for a
“Fast Appeal.” Def.'s MSJ, at UF ¶ 14;
Doc. 39, Ex. H, at 2. Moreover, it provided instructions for
pursuing an appeal and advised that if PHP continued to deny
her request following her appeal, it would “send [her]
a written decision and automatically send [her] case to an
independent reviewer.” Def.'s MSJ, at UF ¶ 14;
Doc. 39, Ex. H, at 2-3. The notice did not explain, however,
that any rights to sue would be lost if Ms. Hall did not
appeal. Pl.'s Resp. to Def.'s UF ¶ 14; see
also Doc. 39 at ¶ 19 & Ex. H.
Hall's plan booklet also provided information about her
appeal rights. Def.'s MSJ at UF ¶ 15; Doc.
39, Ex. A, at 21-22, 171-82. More particularly, it
advised that even if an independent reviewer turned down her
appeal, Ms. Hall could appeal further - to an administrative
law judge, an appeals council, and, finally, to a federal
district court. Def.'s MSJ at UF ¶ 15; Doc. 39, Ex.
A, at 211-13.
Hall did not appeal PHP's decision to deny the request
for a liver transplant evaluation. Doc. 39, at ¶ 20. Her
husband and daughter would testify that “they heard Dr.
Valenzuela tell [Ms. Hall] that she would not be able to get
a transplant approved by PHP even if she appealed the denial,
and that she could instead go overseas to China and pay for a
liver transplant herself.” Id.
December 27, 2014, Ms. Hall died of end-stage liver disease.
Def.'s MSJ at UF ¶ 17; Doc. 39, at ¶¶
court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). A “genuine” dispute exists
where the evidence is such that a reasonable jury could
resolve the issue either way. See Adler v. Wal-Mart
Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). A mere scintilla of evidence in the non-movant's
favor is not sufficient. Anderson, 477 U.S. at 252.
However, the court must consider all the evidence in the
light most favorable to the party opposing summary judgment.
See Trask v. Franco, 446 F.3d 1036, 1043 (10th Cir.
the movant and the party opposing summary judgment are
obligated to “cit[e] to particular parts of materials
in the record” to support their factual positions.
Fed.R.Civ.P. 56(c)(1)(A). Alternatively, they may
“show that materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the
fact.” Fed.R.Civ.P. 56(c)(1)(B); see also Medlock
v. United Parcel Serv., Inc., 608 F.3d 1185, 1189 (10th
Cir. 2010) (“[I]f the matter in issue concerns an
essential element of the nonmovant's claim, the moving
party may satisfy the summary judgment standard ‘by
identifying a lack of evidence for the nonmovant on [that]
element.'” (internal quotation and citation
omitted) (alteration in original)). Materials cited to
establish the presence or absence of a genuine dispute must
be capable of being in a form that would be admissible in
evidence. Fed.R.Civ.P. 56(c)(2).