The case was remanded to state court. Plaintiff's malpractice claim goes to the quality of care received. If we were in the Third Circuit, the case would be remanded to the state courts by following Dukes. In the Ninth Circuit the same result is achieved, but by a different path. Geweke Ford v.
Medical malpractice is a state common law claim.
Malpractice actions are post facto, obviating the last test. Continuing with the analysis of the Ninth Circuit in Geweke, medical malpractice actions are grounded in state common law of general application to any practitioner of medicine whether or not arranged, paid for, or employed by an employer provided benefit plan. Under the analysis adopted by the Ninth Circuit, medical malpractice actions are not preempted. This is reinforced by the Supreme Court referring to the general regulation of health and safety as examples of historic powers of the State which have not been superceded by Federal Act. Plaintiff accuses the Defendants of medical malpractice.