Karkare, M.D. v. CIGNA Life and Health Insurance Company

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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NAKUL KARKARE, M.D., Attorney-in-

Fact on behalf of Patient D.P.,

MEMORANDUM & ORDER

Plaintiff, 21-CV-6983 (JS)(AYS)

-against-

CIGNA LIFE AND HEALTH INSURANCE

COMPANY,

Defendant.

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APPEARANCES

For Plaintiff: Robert J. Axelrod, Esq.

Axelrod LLP

1465 Fifth Avenue, Suite No. 7D

New York, New York 10035

For Defendant: Patrick W. Begos, Esq.

Gregory James Bennici, Esq.

Robinson & Cole LLP

1055 Washington Boulevard, 5th Floor

Stamford, Connecticut 06901

SEYBERT, District Judge:

Cigna Life and Health Insurance Company (“Defendant”)

moves, pursuant to Rule 12(b)(6) of the Federal Rules of Civil

Procedure (hereafter “Rule”), to dismiss the Complaint of Nakul

Karkare M.D. (“Plaintiff”) (hereafter, the “Motion”). (See

Motion, in toto, ECF No. 17.) For the reasons that follow,

Defendant’s Motion is GRANTED, and Plaintiff’s Complaint is

DISMISSED.

BACKGROUND1

Plaintiff brings this action “on behalf of Patient D.P.”

(hereafter the “Patient”) against Defendant. (See Compl.)

Plaintiff asserts that he “received a Power of Attorney from the

Patient.” (Id. ¶ 26.) Previously, on March 27, 2019, Patient

underwent surgery performed by two doctors affiliated with AA

Medical P.C. (hereafter “AA Medical”). (Id. ¶ 4.) Plaintiff is

also affiliated with AA Medical. (Id. ¶ 2.) Specifically, Patient

underwent “a bilateral C7-T1 and T1-T2 laminoforaminotomy and

medical facetectomy, and a bilateral laminotomy at C7-T1 and T1-

T2.” (Id. ¶ 4.) Subsequently, Plaintiff submitted an invoice to

Defendant, of which Patient is a member. (Id. ¶ 12.) At all

times, “AA Medical was an out-of-network provider.” (Id. ¶ 3.)

“Defendant paid $1,039.51, leaving an unreimbursed amount of

$340,406.34[].” (Id.)

Defendant stated “[i]n its Explanation of Benefits

(hereafter “EOB”), constituting its Adverse Benefit

Determination, . . . that the ‘charge exceeds fee schedule/maximum

allowable or contracted/legislated fee arrangement.” (Id. ¶ 13.)

Plaintiff avers that “there is no fee schedule” and “no contracted

fee arrangement” because Plaintiff is out-of-network. (Id. ¶¶ 14-

15.) Plaintiff also asserts “[u]pon information and belief, there

1 The following facts are taken from the Complaint and all

inferences are drawn in favor of the Plaintiff.

is no legislated fee arrangement” and “the reimbursement amount

paid to Plaintiff did not exceed the maximum allowable rate or fee

arrangement under the plan.” (Id. ¶¶ 16-17.)

Plaintiff alleges it “appealed to Defendant[, was]

denied the appeal, and Plaintiff exhausted its administrative

remedies.” (Id. ¶ 19.) Plaintiff pleads in the alternative, “the

appellate process was futile and Plaintiff was deemed to have

exhausted Defendant’s administrative remedies.” (Id. ¶ 20.)

Plaintiff avers that “Defendant did not provide the information

required by 29 C.F.R. § 2560.503-1(g), in violation of” the

Employee Retirement Income Security Act of 1974 (“ERISA”) “and the

rules promulgated thereunder.” (Id. ¶ 23.)

Specifically, Defendant failed to provide

Plaintiff [with] the specific plan provisions

on which the determination was based; a

description of any additional material or

information necessary for the claimant to

perfect the claim and an explanation of why

such material or information is necessary; a

description of the plan’s review procedures

and the time limits applicable to such

procedures, including a statement of the

claimant’s right to bring a civil action under

Section 502(a) of ERISA following an adverse

benefit determination on review; and the

specific rule, guideline, protocol, or other

similar criterion used and that it may be

requested free of charge.

(Id. ¶ 24.)

Plaintiff states that “Defendant violated its legal

obligations under this ERISA-governed Plan when it under-

reimbursed Plaintiff for the surgeries provided to the Patient by

Plaintiff, in violation of the terms of the Plan and in violation

of ERISA.” (Id. ¶ 28.)

PROCEDURAL HISTORY

Plaintiff filed his Complaint on November 19, 2021. (See

Compl.) Plaintiff seeks judgment against Defendant:

(1) “[o]rdering Defendant to recalculate and issue unpaid benefits

to Plaintiff;” (2) “[a]warding Plaintiff the costs and

disbursements of this action, including reasonable attorneys’ fees

under ERISA, and costs and expenses in amounts to be determined by

the Court;” (3) “[a]warding prejudgment interest;” and

(4) “[g]ranting such other and further relief as is just and

proper.” (Id. at ¶ 31.)

On June 22, 2022, Defendant moved pursuant to Rule

12(b)(6) to dismiss the Complaint for failure to state a claim.

(See Motion.) Plaintiff filed his Opposition on July 19, 2022

(Opp’n, ECF No. 19), and Defendant’s Reply was filed on August 8,

2022 (Reply, ECF. No. 20.) On October 25, 2022, Defendant filed

a Notice of Supplemental Authority in Support of its Motion

indicating that Judge Brown had previously dismissed two similar

cases filed by Plaintiff, as attorney-in-fact for other patients,

for failure to state a claim. (Notice of Suppl. Auth., ECF No.

22.) Plaintiff responded to the Notice of Supplemental Authority

on October 26, 2022. (Resp. to Suppl. Auth., ECF No. 23.)

DISCUSSION

I. Legal Standard

A. Motion to Dismiss Pursuant to Rule 12(b)(6)

When considering a motion to dismiss under Rule

12(b)(6), the Court must “accept as true all factual statements

alleged in the complaint and draw all reasonable inferences in

favor of the non-moving party.” McCarthy v. Dun & Bradstreet

Corp., 482 F.3d 184, 191 (2d Cir. 2007). To survive a motion to

dismiss under Rule 12(b)(6), a complaint must state “enough facts

to state a claim to relief that is plausible on its face.” Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is

plausible “when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009). Consequently, a complaint is properly dismissed

where, as a matter of law, “the allegations in a complaint, however

true, could not raise a claim of entitlement to relief.” Twombly,

550 U.S. at 558. Similarly, a complaint is also properly dismissed

“where the well-pleaded facts do not permit the court to infer

more than the mere possibility of misconduct.” Iqbal, 556 U.S. at

679. “Although all allegations contained in the complaint are

presumed true” at the motion to dismiss stage, “this principle is

‘inapplicable to legal conclusions’ or ‘[t]hreadbare recitals of

the elements of a cause of action, supported by mere conclusory

statements.’” Szewczyk v. City of N.Y., No. 15-CV-0918, 2016 WL

3920216, at *2 (E.D.N.Y. July 14, 2016) (alteration in original)

(quoting Iqbal, 556 U.S. at 678).

II. ANALYSIS

A. Plaintiff Lacks a Cause of Action Under ERISA

Plaintiff fails to state a claim upon which relief can

be granted because Plaintiff lacks a cause of action under ERISA

Section 1132(a)(1)(B).2 Pursuant to 29 U.S.C. § 1132(a), “[a]

civil action may be brought . . . by a participant or

beneficiary . . . to recover benefits due to him under the terms

of his plan, to enforce his rights under the terms of the plan, or

to clarify his rights to future benefits under the plan.” 29

U.S.C. § 1132(a)(1)(B). “The statute defines ‘participant’ as ‘an

employee or former employee . . . who is or may become eligible to

receive a benefit of any type from an employee benefit plan.’”

Id. Beneficiary is defined by ERISA as “a person designated by a

participant, or by the terms of an employee benefit plan, who is

or may become entitled to a benefit thereunder.” Simon v. Gen.

2 “Courts often refer to the internal statutory designations of

ERISA rather than the sections at which the statutes are codified.”

United Ass’n of Journeymen and Apprentices of the Plumbing and

Pipe Fitting Indus. of the U.S. and Can., AFL-CIO Local 188 Pension

Fund v. Johnson Controls, Inc., No. 18-CV-0182, 2020 WL 5648135,

at *1 n.1 (S.D. Ga. Sept. 20, 2020). In this Order, the Court

will use the codified statutory designations, except where cited

cases use the internal statutory designations which will remain

unchanged.

Elec. Co., 263 F.3d 176, 177 (2d Cir. 2001) (quoting 29 U.S.C.

§ 1002(7)). The Supreme Court has “construed § 502 narrowly to

permit only the parties enumerated therein to sue directly for

relief.” Id.; see also Am. Psychiatric Ass’n v. Anthem Health

Plans, Inc., 821 F.3d 352, 359-60 (2d Cir. 2016) (“Courts have

consistently read [this provision] as strictly limiting the

universe of plaintiffs who may bring certain civil actions”)

(citing Connecticut v. Physicians Health Servs. of Conn., 287 F.3d

110, 121 (2d Cir. 2002)).

Here, Plaintiff purports to bring this action on behalf

of the Patient as the Patient’s Attorney In-Fact. Plaintiff

acknowledges that the Patient has not executed a valid assignment

of Patient’s claim; but Plaintiff alleges that he “received a Power

of Attorney from the patient.” (Compl. ¶ 26.) However, “[i]n

this circuit, a power of attorney is insufficient for a provider

to bring suit on behalf of a patient under ERISA.” Karkare on

behalf of JP v. Aetna Life Ins. Co., No. 21-CV-7152, 2022 WL

17787619 (Nov. 7, 2022) (citing Am. Psychiatric Ass’n, 821 F.3d at

359-60 (E.D.N.Y. Nov. 7, 2022)). As such, while “a valid and

binding assignment of a claim (or a portion thereof) . . . may

confer standing on the assignee” the mere “right or ability to

bring suit” does not. Am. Psychiatric Ass’n 821 F.3d at 360

(holding that courts “cannot expand the congressionally-created

statutory list of those who may bring a cause of action by imposing

third-party prudential considerations” and finding that plaintiffs

who lacked a valid assignment from the underlying patients in that

case, “lack[ed] a cause of action under ERISA’s § 502(a)(3),

irrespective of whether they may stand in the shoes of their

patients in other matters”).

Medical Society of New York, is instructive. In that

case, a healthcare provider argued that, notwithstanding the anti-

assignment provision in two patients’ healthcare plans, the

provider could pursue the claim “as the ‘authorized

representative’ or ‘attorney-in-fact’ for [the] [p]atients.” Med.

Soc’y of N.Y. v. UnitedHealth Grp. Inc., No. 16-CV-5265, 2017 WL

4023350, at *6 (S.D.N.Y. Sept. 11, 2017). In dismissing the

provider’s claim, the district court cited American Psychiatrists’

clear prohibition on courts expanding the universe of parties who

can bring a cause of action under ERISA and noted that “[a]bsent

a valid assignment of [the patient’s] claims, [the provider]

lack[ed] a cause of action under ERISA.” Id. at *7.

Moreover, as detailed in Defendant’s notice of

supplemental authority, Plaintiff has filed multiple cases in this

District alleging similar causes of action under ERISA, with each

predicated upon Plaintiff’s receipt of a power of attorney from

the underlying patient. See Nakul Karkare, M.D., Att’y in Fact on

Behalf of Patient JN v. Int’l Ass’n of Bridge, Structural,

Ornamental & Reinforcing Iron Workers Local 580, No. 2:22-cv-05988

(E.D.N.Y.) (hereafter “Iron Workers”); Nakul Karkare, M.D., Att’y

in Fact on Behalf of Patient DB v. Raymours Furniture Co., Inc.,

No. 2:22-cv-05014 (E.D.N.Y.) (hereafter “Raymour’s Furniture” and,

together with Iron Workers, the “Judge Brown Cases”). In

dismissing those cases, Judge Brown first issued an Order to Show

Cause stating that:

In light of the requirement that a physician

must demonstrate a valid assignment of a claim

from a beneficiary to maintain a cause of

action for unpaid benefits under ERISA,

plaintiff is directed to show cause why this

matter should not be dismissed for failure to

plausibly allege a valid assignment.

(See Judge Brown Cases, October 19, 2022 Elec. Orders to Show

Cause.)

In response, Plaintiff argued that “[a] Power of

Attorney is a legitimate alternative to an assignment of benefits,

especially where there is an anti-assignment provision in the plan

documents.” (Iron Workers, Letter in Resp., ECF No. 7; Raymour’s

Furniture, Letter in Resp., ECF No. 9.) In support of its

position, Plaintiff relied on out-of-circuit authority. (Id.) In

dismissing both cases, Judge Brown found:

Plaintiff responded [to the Court’s Order to

Show Cause by] citing a string of out of

circuit authority in support of the

proposition that a power of attorney alone is

sufficient to establish standing. In the

Second Circuit, however, a power of attorney

is insufficient to allow a physician to

maintain a cause of action on behalf of a

patient under ERISA. . . . Due to plaintiff’s

failure to allege a valid assignment, this

case must be DISMISSED.

(See Judge Brown Cases, October 28, 2022 Elec. Orders

Dismissing Cases.)

In response to Defendant’s Notice of Supplemental

Authority, Plaintiff counters that Judge Brown misapprehended

Second Circuit case law in that no Second Circuit court has

dismissed an action “based on the existence of a power of attorney,

or [] that a power of attorney could not be used for ERISA

standing.” (Resp. to Suppl. Auth. at 2.) Plaintiff makes similar

arguments in its Opposition, noting that “[t]he Complaint alleges

that Plaintiff brought this action as Attorney-in-Fact on behalf

of the Patient,” (Opp’n at 10), and that, as a result, cases in

which courts have dismissed claims brought by physicians through

a power of attorney previously are inapposite, since in those cases

“the plaintiff [physician] brought the case[] on his own behalf,

and in his own name.” (Id. at 10; see also Resp. to Suppl. Auth.

at 2 (stating that in this case, “[Plaintiff] does not bring the

suit in his own name [but as] . . . attorney-in-fact on behalf of

[the] Patient [], pursuant to a power of attorney.”).) Defendant

highlights that “the Complaint clearly distinguishes between Dr.

Karkare as the ‘Plaintiff’ and D.P. as the ‘Patient,’ and

differentiates between the actions and interests of the two.”

(Reply at 1-2.) The Court agrees.

Here, Plaintiff’s argument is belied by the fact that

the Complaint is written in such a way that Plaintiff is, in fact,

suing in his own right and for his own benefit. For example, the

Complaint identifies Plaintiff as “a surgeon affiliated with AA

Medical” whose “principal place of business is Stony Brook, New

York.” (Compl. ¶ 9.) The Complaint elaborates that “Plaintiff’s

co-surgeons” performed medical procedures “on the patient” and

that “[a]fter performing this medically necessary surgery,

Plaintiff submitted an invoice on a CMS-1500 form.” (Id. at ¶ 4.)

Further the Complaint alleges that “Plaintiff billed $341,445.85”

and that Defendant underpaid the invoice. (Id.) Plaintiff is

further described as “out-of-network with Defendant.” (Id. at

¶ 3.) Plaintiff does not allege, as noted by Defendant, that the

Patient in this case paid for the procedure, or that the patient

is obligated to pay the unreimbursed amounts to Plaintiff.

Moreover, as ultimate relief, the Complaint seeks, inter alia,

“judgment in its favor against Defendant . . . Ordering Defendant

to recalculate and issue unpaid benefits to Plaintiff.” Without

alleging facts as to why the Patient in this case would be

obligated to pay AA Medical the unreimbursed amounts for the

surgery, or that Patient cannot do so, it strikes the Court as

curious that if Plaintiff was not suing on his own behalf and for

his own benefit why the relief sought in the Complaint would be to

the benefit of Plaintiff, and the associated medical association,

and not to the Patient directly.

Based on its reading of the Complaint, the Court finds

that Plaintiff is bringing this action on his own behalf, and for

his own benefit, and is attempting to side-step the anti-assignment

provision in the Patient’s healthcare plan through use of a power

of attorney. Consequently, the Court finds that Plaintiff cannot

state a claim upon which relief can be granted because, without a

valid assignment of Patient’s claim, he lacks a cause of action

under ERISA Section 1132(a)(1)(B).

B. Plaintiff’s Other Arguments

Based upon the Court’s finding that Plaintiff fails to

state a claim upon which relief can be granted, the Court does not

address the remainder of Plaintiff’s arguments.

CONCLUSION

For the stated reasons, IT IS HEREBY ORDERED that

Defendant’s motion to dismiss (ECF No. 17) is GRANTED.

SO ORDERED.

/s/ JOANNA SEYBERT______

Joanna Seybert, U.S.D.J.

Dated: March 30, 2023

Central Islip, New York