                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 99-2433
                                    ___________

Ronald Thompson,                         *
                                         *
      Plaintiff - Appellant,             *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Eastern District of Missouri.
Gencare Health Systems, Inc.,            *
                                         *    [TO BE PUBLISHED]
      Defendant - Appellee.              *
                                    ___________

                               Submitted: January 10, 2000

                                   Filed: February 14, 2000
                                    ___________

Before BOWMAN and LOKEN, Circuit Judges, and ALSOP,* District Judge.
                          ___________

PER CURIAM.

       Linda Thompson was a participant in her employer’s health benefits plan
administered by Gencare Health Systems, Inc. (“Gencare”). The plan required Gencare
to pre-certify as medically necessary and appropriate all medical procedures involving
hospitalization or outpatient surgery. When Mrs. Thompson developed breast cancer,
Gencare pre-certified, and she completed, a modified radical mastectomy followed by



      *
        The HONORABLE DONALD D. ALSOP, United States District Judge for the
District of Minnesota, sitting by designation.
conventional chemotherapy. Regrettably, the cancer returned, and her treating
physicians recommended that Gencare pre-certify a more aggressive treatment
procedure, high dose chemotherapy accompanied by an autologous bone marrow
transplant. After consulting with three independent physicians, Gencare declined to
pre-certify this treatment. Mrs. Thompson continued other treatment, paid for by the
plan, but the cancer returned again, and she died in March 1994.

       Linda Thompson’s husband Ronald commenced this action in state court,
seeking damages for Gencare’s alleged medical malpractice in refusing “to perform
and/or provide high dose chemotherapy and/or bone marrow transplant procedures” to
treat Linda Thompson’s cancer. Gencare removed the action and moved for summary
judgment, arguing Thompson’s claim is completely preempted by the Employee
Retirement Income Security Act, (“ERISA”), 29 U.S.C. §§ 1000 et seq. Thompson
moved to remand the case to state court. Concluding that ERISA completely preempts
Thompson’s state law claims and provides him no remedy, the district court1 denied the
motion to remand and dismissed the complaint. Thompson appeals. We affirm.

       This is a recurring legal issue. The controlling principles are well-settled in this
circuit, so a lengthy opinion is not required. ERISA affords plan participants such as
Linda Thompson a federal cause of action to recover plan benefits or to otherwise
enforce the plan. See 29 U.S.C. § 1132(a). ERISA expressly preempts state laws that
“relate to” an ERISA plan. See 29 U.S.C. § 1144(a). Therefore, ERISA remedies
preempt “state common law tort and contract actions asserting improper processing of
a claim for benefits” under an ERISA plan. Pilot Life Ins.Co. v. Dedeaux, 481 U.S. 41,
43 (1987). Applying Pilot Life, we have held that ERISA completely preempts a state
law medical malpractice claim when “the essence of [the] claim rests on the denial of
benefits.” Hull v. Fallon, 188 F.3d 939, 943 (8th Cir. 1999).


      1
       The HONORABLE DONALD J. STOHR, United States District Judge for the
Eastern District of Missouri.

                                           -2-
       Thompson argues that his medical malpractice claim is not preempted because
Gencare “controlled” Linda Thompson’s medical care and negligently refused to
implement the treatment recommended by her treating physicians. We rejected this
same argument in Kuhl v. Lincoln Nat’l Health Plan, Inc., 999 F.2d 298, 303 (8th Cir.
1993), cert. denied, 510 U.S. 1045 (1994). As in Kuhl, the summary judgment record
establishes that Gencare’s only role in Mrs. Thompson’s cancer treatments was to
make pre-certification benefit decisions on behalf of the plan. Although Mrs.
Thompson was perhaps unable or unwilling to undergo costly treatments not covered
by the plan, that does not mean Gencare as plan administrator controlled her medical
care. Linda Thompson as patient and her treating physicians retained the ultimate
decision-making authority regarding her medical care . If she disagreed with Gencare’s
pre-certification decisions, ERISA afforded her a timely equitable remedy to review
Gencare’s interpretation of the plan, a remedy she did not pursue.

     In substance, Thompson now asserts a tort claim for damages on account of
Gencare’s allegedly wrongful benefits decisions as plan administrator. Pilot Life, Hull,
and Kuhl make clear that claim is completely preempted by ERISA’s remedies. As
Thompson does not argue he has a remedy under ERISA, the judgment of the district
court dismissing his complaint must be affirmed.

      A true copy.

             Attest:

                CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                          -3-
