Cite as 310 F.3d 1153 (9th Cir. 2002)
on summary judgment, weigh evidence.[1] The fact that Lucent may have acted as an administrator at other times is irrelevant. What matters is the hat it was wearing during the time it committed the acts of which Bui complains.[2] Bui has shown that a genuine issue of material fact exists regarding whether Lucent was wearing the hat of an administrator or the hat of a service provider when Waugh and Duong conferred and when Waugh did not respond to Duong’s request for further medical advice and evaluation. Accordingly, summary judgment is inappropriate on Bui’s claims against Lucent for negligent medical advice and for negligent delay.
CONCLUSION
ERISA does not preempt claims of medical malpractice against medical service providers for decisions made in the course of treatment or, in this case, evaluation. That is true even if those medical service providers also serve, at other times, as administrators. Accordingly, summary judgment on preemption grounds may not be granted as to Bui’s claims against SOS and as to her claims against Lucent for negligence based on Lucent’s failure to reveal the expedited passport procedure and for negligence and delay in the provision of medical advice, at least on the record as it currently stands. We reverse and remand as to those claims. Summary judgment on preemption grounds was appropriately granted as to the remaining claims against Lucent and as to all the claims against AT & T. We affirm as to those claims.
REVERSED AND REMANDED IN PART; AFFIRMED IN PART.
No costs allowed.
COALITION OF CLERGY, LAWYERS, AND PROFESSORS; Haim Dov Beliak; Robert A. Berger; Kathryn S. Bloomfield; Erwin Chemerinsky; Ramsey Clark; Allen Freehling; Steven Jacobs; Harold S. Lewis, Jr.; Hugh R. Manes; Arthur L. Margolis; Kenneth B. Noble; George Regas; Joseph Reichman; Lawrence W. Schilling; Carol A. Watson; Marion R. Yagman; Stephen Yagman, on behalf of persons held involuntarily at Guantanamo Naval Air Base, Cuba, Petitioners-Appellants,
v.
George Walker BUSH; Donald H. Rumsfeld; Richard B. Myers; Gordon R. England; James L. Jones; Robert A. Buehn; Michael Fair; Ellen Mustain; Michael Lehnert, Respondents-Appellees.
No. 02-55367.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted July 8, 2002.
Filed Nov. 18, 2002.
