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

> District Court, E.D. New York · March 30, 2023

URL: https://www.frixlaw.com/law-library/cases/10309477

## Case

- **Court:** District Court, E.D. New York
- **Decided:** March 30, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------X
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.
--------------------------------X
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10309477. Public record. Not legal advice.