IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
FRANKIE GUY, )
)
Plaintiff, ) Civil No. 01-1061-JO
)
v. ) OPINION AND ORDER
)
KAISER FOUNDATION HEALTH PLAN OF )
THE NORTHWEST, an Oregon non-profit )
organization, dba Kaiser Permanente, )
)
Defendant. )
Jeffrey A. Long
Willard E. Merkel
POPICK & MERKEL
1500 S.W. First Avenue, Suite 1050
Portland, OR 97201
Attorneys for Plaintiff
Michael J. Wiswall
Troy S. Bundy
HOFFMAN HART & WAGNER
1000 S.W. Broadway, Suite 2000
Portland, OR 97205
Attorneys for Defendant
2 - OPINION AND ORDER
JONES, Judge:

In June 2001, plaintiff Frankie Guy brought this action in state court against defendant Kaiser Foundation Health Plan of the Northwest, dba Kaiser Permanente, alleging a single claim for breach of the physician-patient confidential relationship. The crux of plaintiff's complaint is that in responding to a subpoena duces tecum, defendant produced certain medical records that plaintiff did not want disclosed. Plaintiff seeks $1 million in emotional distress damages allegedly caused by the disclosure.

Defendant timely removed the case to this court in July 2001, on the basis of federal question jurisdiction under 28 U.S.C. § 1331 and 29 U.S.C. § 1132. Plaintiff did not move to remand.

The case is now before the court on defendant's motion for judgment on the pleadings (# 5) pursuant to Federal Rule of Civil Procedure 12(c). Defendant argues that plaintiff's claim is entirely preempted by the Employee Retirement Income Security Act of 1974 ("ERISA"), and that ERISA does not authorize recovery of "extra-contractual" damages for emotional distress, such as plaintiff seeks in her complaint.

Plaintiff denies that her claim arises out of her employee benefit plan. Rather, she asserts that her claim -- that the hospital breached its duty to maintain confidentiality of her treatment records -- is simply that of a patient against a hospital where she obtained treatment. In other words, plaintiff characterizes her claim as arising out of her relationship to the hospital as a patient, not out of her relationship to an employee benefit plan as a plan participant.

Defendant cites numerous cases in support of its preemption argument, none of which appears to be controlling or on point. The mere fact that defendant hospital may also be an HMO is not decisive, see Pegram v. Herdrich, 530 U.S. 211, 226, 237 (2000)(HMO is not the ERISA plan), and I am not convinced that every decision by an HMO medical provider
concerning a patient necessarily implicates ERISA. More specifically, I am not convinced that a medical records custodian's response in due course to a subpoena duces tecum relates "to an[] employee benefit plan." 29 U.S.C. § 1144(a). In the absence of persuasive authority to the contrary, I conclude that ERISA does not preempt plaintiff's common law claim for breach of confidentiality. Defendant's motion is, therefore, denied.

Because subject matter jurisdiction in this court is dependent on ERISA preemption, denial of defendant's motion requires remand of this action to state court. Although plaintiff waived her procedural right to challenge defendant's removal by failing to move for remand within 30 days, see 28 U.S.C. § 1447(c), jurisdictional defects, unlike defects in the removal
procedures, are never waived. Caterpillar, Inc. v. Lewis, 519 U.S. 61, 69 (1996); see 28 U.S.C. § 1447(c)("If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded"). Consequently, having determined that plaintiff's claim is not subject to ERISA preemption, this court must remand this action to state court.

CONCLUSION

Defendant's motion for judgment on the pleadings (# 5) is DENIED and this action is remanded to state court. Any other pending motions are denied as moot.

DATED this ____ day of January, 2002.
ROBERT E. JONES
U.S. District Judge