Adel F. Samaan v. Aetna Life Insurance Company

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

ADEL F. SAMAAN, M.D., No. 2:17-cv-01690-DSF-AGR

Plaintiff,

FINDINGS OF FACT AND

v. CONCLUSIONS OF LAW RE

UNPAID CLAIMS

AETNA LIFE INSURANCE

COMPANY, et al.,

Defendants.

I. INTRODUCTION

The parties agreed to trifurcate this matter. On January 14,

2019, the Court issued an Order re Standing, Exhaustion of

Administrative Remedies, and Contractual Limitations. Dkt. 43.

In this second phase, the parties ask the Court to decide whether

Plaintiff is entitled to benefits for certain unpaid claims. The

Court deemed this matter appropriate for decision without oral

argument and took the matter under submission on August 1,

2019.

Having reviewed and considered the parties’ briefs and the

administrative record, the Court makes the following Findings of

Fact and Conclusions of Law.

II. BACKGROUND

Plaintiff is a medical doctor. Dkt. 53-1 (Samaan Dec.) ¶ 1.

This phase involves healthcare services Plaintiff provided to ten

different patients. Dkt. 53-3.1 The parties agree that each patient

was a beneficiary of the Bank of America Plan (Plan), as described

in the 2013 and 2016 Summary Plan Descriptions, and that

Defendants were the claims administrators of the Plan. Dkt. 25

(“FAC”) ¶ 5; Dkt. 53 at 2; Dkt. 60 at 5-6. Plaintiff seeks recovery

of unpaid benefits for 43 claim events2 involving the patients

pursuant to the Plan. See FAC ¶¶ 40-41; Dkt. 53-3. The parties

agree that the Plan is governed by the Employee Retirement and

Income Security Act of 1974 (ERISA). FAC ¶¶ 40-41; Dkt. 60 at

10.

III. FINDINGS OF FACT

A. Terms of the Plan

1. The Plan “applies to current U.S.-based employees” of

Bank of America Corporation. AR 2306 (2013 Plan), 2582 (2016

Plan).

2. The Plan covers services for “medically necessary care,”

as described in relevant part below:

1 Plaintiff lists 11 different patient identifiers in his list of unpaid claims. Id.

However, Patient X and Patient AE are the same patient. See id.;

Supplemental Admin. Record at 162.

2 Plaintiff lists 45 claim events in his list of unpaid claims. Dkt. 53-3.

However, Plaintiff states in his Amended Complaint that he is no longer

seeking to recover benefits for services provided during one of the claim

events. FAC at 9 n.1. Plaintiff also lists the October 25, 2016 claim event for

Patient X/AE twice. Dkt. 53-3 at 2-3.

Unless otherwise noted the Plan[] cover[s]

certain services and supplies for medically

necessary care including:

- Specialty and outpatient care

- Inpatient Services

- Surgical benefits

Id. at 2372 (2013 Plan), 2628 (2016 Plan).

3. The Plan covers certain surgical services, as described

in relevant part below:

Surgical Benefits

Unless otherwise noted, the Plan[] cover[s]

the following surgical services:

- Surgical benefits cover surgery

performed to treat an illness or injury;

medical services by surgeons [Medical

Doctors (MD) or Doctors of Osteopathy

(DO)], assistant surgeons,

anesthesiologists, consultants (during

and after an operation and any required

second opinions); and medical services of

podiatrists.

. . .

- Surgical services include:

o A cutting procedure (except for

cutting procedures of the mouth

that are considered dental expenses

. . . .)

o Suturing

. . .

o Preoperative and postoperative care

Id. at 2374 (2013 Plan).3

4. The Plan does not cover services that Defendants deem

not medically necessary, as described in relevant part below:

Unless otherwise noted the Plan[] do[es] not

cover certain services, procedures and

equipment, including:

. . .

- Experimental, investigational and

unproven services and procedures;

ineffective surgical, medical

psychiatric or dental treatments or

procedures; research studies; or other

experimental, investigational or

unproven health care procedures or

pharmacological regimes, as

determined by [Defendants], unless

approved by [Defendants].

- Services that are not medically

necessary as determined by

[Defendants].

3 The 2016 Plan contains substantially similar language. Id. at 2633. The

Court does not find any relevant differences between the plans.

Id. at 2379-80 (2013 Plan).4

5. The Plan defines “medical necessity” as follows:

Medical necessity or medically necessary

refers to services or supplies provided by

hospital, physician, practitioner or other

provider that are determined by

[Defendants] to be:

- Consistent with broadly accepted medical

standards in the United States as

essential to the evaluation and treatment

of disease or injury and professionally

recognized as effective, appropriate and

essential based on recognized standards

of the health care specialty

- Not furnished primarily for the

convenience of the patient, the attending

physician or other provider

- Furnished at the most appropriate level

that can be provided safely and

effectively to the patient

- Likely to produce significant positive

outcome, and no more likely to produce

negative outcome than any alternative

service or supplies, as it relates to both

the disease or injury involved and your

overall health condition

4 Again, the 2016 Plan contains substantially language, and the Court finds

no relevant differences between the plans. Id. at 2642-43, 2645.

- Not more costly than an alternative

service or sequence of services at least as

likely to produce equivalent therapeutic

or diagnostic results as to the diagnosis

or treatment of that patient’s illness,

injury or disease

Id. at 2386 (2013 Plan) (internal footnote omitted), 2659 (2016

Plan).

6. Pursuant to the Plan, an out-of-network provider may

not recover more than the “reasonable and customary” fee for a

service, as described in relevant part below:

Reasonable and customary (R&C)

Reasonable and customary (R&C) fees are

those set each year by your medical plan as

the fees that most doctors in a geographic

area charge for particular services or

procedures. R&C is based on available data

resources of competitive fees in that

geographic area.

. . .

If your doctor is out-of-network and charges

more than the R&C fee, the Plan will not

pay for the amount in excess of the R&C

level. You are responsible for paying this

difference if you are not using an in-network

physician.

Id. at 2389 (2013 Plan).

Reasonable and customary – A

reasonable and customary fee is the amount

of money that [Defendant] determines is the

normal, or acceptable, range of payment for

specific health-related service or medical

procedure. Reasonable and customary fees

operate within given geographic areas and

the exact numbers of such fees depend on

the location of service.

. . .

If your doctor is out of network and charges

more than the allowed amount fee, the plan

won’t pay for any amount above the allowed

amount. You’re responsible for paying this

difference which is shown on the

explanation of benefits (E0B) you receive

from your medical plan.

Id. at 2620 (2016 Plan).

7. The Plan contains the following clause granting

Defendants discretion in making claims determinations:

The Bank of America Corporation Corporate

Benefits Committee, as plan administrator,

has delegated to . . . insurance companies or

other third-party claims administrators

discretionary authority to determine

eligibility for benefits and construe the

terms of the applicable component plan and

resolve all questions relating to claims for

benefits under the component plan.

Id. at 2493 (2013 Plan), 2797 (2016 Plan).

B. The Component Plans that Govern Plaintiff’s Claims

for Benefits Are Self-Funded

8. The Plan documents provided by the parties govern

multiple component plans. AR 2306 (2013 Plan), 2582 (2016

Plan).

9. Defendants are the claims administrators for some, but

not all, of the component plans. Id. at 2496-98 (2013 Plan), 2789-

92 (2016 Plan).

10. Among the component plans for which Defendants are

the claims administrators, some, but not all, provide healthcare

benefits. Id.5

11. Plaintiff seeks to recover benefits pursuant only to

component plans where both (1) Defendants are the claims

administrators, and (2) the plan provides healthcare benefits.

FAC ¶¶ 39-41. Each of the component plans that match this

description is “[n]ot insured.” AR 2496 (2013 Plan), 2789 (2016

Plan). The “company and employees share costs based on

actuarial determination,” and “the employee portion” is pretax.

Id.

12. In light of the foregoing, each of the component plans

at issue is self-funded.

5 The other component plans for which Defendants are the claims

administrators provide “dental benefits,” “vision benefits,” “life insurance,”

“accident insurance,” “disability income,” or “counseling and referral

services.” Id. at 2497-98 (2013 Plan), 2791-92 (2016 Plan). Plaintiff does not

seek to recover benefits for providing any of these services.

C. Plaintiff

13. Plaintiff Adel F. Samaan is a medical doctor practicing

in Los Angeles County, whose primary practice area is

gynecological surgery. Samaan Dec. ¶ 1.

14. Plaintiff is an out-of-network provider under the Plan.

FAC ¶ 11.

D. Dr. James Krominga

15. Dr. James Krominga submitted a declaration in

support of Defendants’ claims decisions. Dkt. 60-2 (“Krominga

Dec.”). Dr. Krominga graduated from medical school in 1977,

completed a family practice residency in 1980, and received board

certification in family medicine in 1980. Dr. Krominga’s board

certification is current. Id. ¶ 2.

16. Dr. Krominga has been Defendant Aetna Life

Insurance Company’s Senior Medical Director for the Southwest

Markets for the past eight years. Id. ¶ 1. As Senior Medical

Director, he is responsible for oversight of medical policy

implementation, and participates in the development,

implementation, and evaluation of clinical/medical programs. Id.

17. Dr. Krominga is a fellow of the American Academy of

Family Physicians, and also belongs to the Arizona Academy of

Family Physicians and the Arizona Medical Association. Id.

E. Assignments of Benefits

18. Plaintiff states that he “received a written assignment

of benefits in connection with” each of the unpaid claims at issue.

Samaan Dec. ¶ 3.

19. Plaintiff provided a copy of a written assignment for

seven of the ten patients at issue:

- Patient A, Supplemental Admin. Record (SAR) 506;

- Patient K, AR at 1495;

- Patient T, id. at 7965, 7966, 8004;

- Patient X/AE, id. at 1872;

- Patient Z, id. 1095, 1096; SAR 1771;

- Patient AA, AR 726, 727; and

- Patient DD, id. at 1101-03; SAR 222.

20. Plaintiff did not provide a copy of a written assignment

for the following three patients: Patient LL, Patient AK, Patient

AR.

6 Patient A’s written assignment is included in the Supplemental

Administrative Record and contains a SAMAANAETNA Bates Designation.

In reviewing Defendants’ claims determinations, the Court will not consider

documents containing a SAMAANAETNA designation for the reasons stated

in this order. See Conclusions of Law 24-28. But whether Plaintiff received

an assignment of benefits, and therefore has standing to pursue the claim of

a patient, is a preliminary issue distinct from the court’s review of

Defendants’ claims determinations. Therefore, the Court will consider

documents containing the SAMAANAETNA designation for purposes of

determining whether Plaintiff received an assignment of benefits.

F. Defendants’ Denials of Plaintiff’s Claims for Benefits7

1) Defendants’ Grounds for Denying Plaintiff’s Claims

Are Stated in Documents Entitled Explanation of

Benefits and ATV Service Offering Engagements

21. The administrative record contains documents entitled

Explanation of Benefits (EOB) for each of the claim events at

issue. The EOB states Defendants’ grounds for denying Plaintiff’s

claim. See generally AR.

22. The administrative record contains documents entitled

ATV Service Offering Engagements, which reference many of

Plaintiff’s claim events. The ATV Service Offering Engagements

provide further explanation for Defendants’ claims

determinations. See generally AR.

2) Defendants Denied Several of Plaintiff’s Claims on

the Grounds that the Services Were Not Performed

Based on the Information Defendants Received

23. For the following 27 claim events, Defendants denied

Plaintiff’s claims on the grounds that, “based on the information

received, the[] services were not provided”:

- Patient A (date of service (“DOS”): 1/3/2015), AR 501;

- Patient A (DOS: 1/19/2015), id. at 501, 547-48;

- Patient A (DOS: 2/10/2015), id. at 551;

- Patient A (DOS: 2/23/2015), id. at 554-55;

7 Because Plaintiff fails to show he has standing to recover benefits for

services provided to Patients LL, AK, and AR, see Conclusions of Law 3-7,

the Court does not address Defendants’ claims determinations involving

those patients.

- Patient A (DOS: 4/4/2015), id. at 570;

- Patient A (DOS: 7/3/2015), id. at 619-20;

- Patient A (DOS: 7/6/2015), id. at 643;

- Patient A (DOS: 7/16/2015), id. at 546;

- Patient A (DOS: 7/30/2015), id. at 676;

- Patient A (DOS: 9/16/2015), id. at 685;

- Patient T (DOS: 4/24/2015), id. at 7282;

- Patient T (DOS: 5/15/1015), id. at 7287;

- Patient T (DOS: 6/2/2015), id. at 72838;

- Patient T (DOS: 11/14/2015), id. at 8979;

- Patient X/AE (DOS: 3/26/2015), id. at 1961;

- Patient X/AE (DOS: 4/25/2015), id. at 1961, 1966;

- Patient X/AE (DOS: 6/26/2015), id. at 1966-67;

- Patient X/AE (DOS: 7/10/2015), id. at 2018;

- Patient X/AE (DOS: 7/27/2015), id. at 8980-81;

- Patient X/AE (DOS: 8/4/2015). id. at 2065;

- Patient X/AE (DOS: 8/18/2015), id. at 8356;

- Patient Z (DOS: 8/6/2015), id. at 1052;

8 Defendants only denied some of Plaintiff’s claims for services provided to

Patient T on June 2, 2015 on the grounds that the services were not

performed based on the information received. The remaining claim was

denied on the grounds that the service was not medically necessary. Id.; see

also Finding of Fact 53.

- Patient Z (DOS: 11/26/2015), id. at 1075;

- Patient AA (DOS: 10/2/2015), id. at 8635;

- Patient DD (DOS: 12/8/2015), id. at 1160;

- Patient DD (DOS: 12/19/2015), id.; and

- Patient DD (DOS: 2/13/2016), id. at 1246.9

a. For Some of the Claim Events, There Is No

Evidence that Plaintiff Provided Medical

Documentation to Defendants Supporting the

Claim During the Claims Administration Process

24. For ten of the 27 claim events referenced in paragraph

23, there is no evidence that Plaintiff submitted to Defendants

medical documents supporting the claim during the claims

administration process:

- Patient A (DOS: 1/3/2015);

- Patient A (DOS: 1/19/2015);

- Patient A (DOS: 2/10/2015);

- Patient A (DOS: 2/23/2015);

- Patient A (DOS: 7/30/2015);

- Patient A (DOS: 9/16/2015);

9 Plaintiff submitted three claims for services provided to Patient DD during

the February 13, 2016 claim event. Id. For two of these claims, Defendants

paid a portion of the claim, which the parties do not address. Id. Because

Plaintiff seeks to recover unpaid, but not underpaid, benefits during this

phase of the action, the Court will not consider the two claims which

Defendants paid in part in this Order. See Conclusion of Law 56.

- Patient T (DOS: 4/24/2015);

- Patient T (DOS: 5/15/1015);

- Patient T (DOS: 6/2/2015); and

- Patient X/AE (DOS: 8/18/2015).

25. For three of these ten claim events, Plaintiff does not

cite to any medical documentation supporting the claim:

- Patient A (DOS: 2/10/2015);

- Patient T (DOS: 4/24/2015); and

- Patient T (DOS: 6/2/2015).

26. For seven of these ten claim events, Plaintiff cites only

to medical documentation containing the Bates designation

SAMAANAETNA:

- Patient A (DOS: 1/3/2015), SAR 38;

- Patient A (DOS: 1/19/2015), SAR 39;

- Patient A (DOS: 2/23/2015), SAR 40;

- Patient A (DOS: 7/30/2015), SAR 46;

- Patient A (DOS: 9/16/2015), SAR 47;

- Patient T (DOS: 5/15/1015), SAR 87; and

- Patient X (DOS: 8/18/2015), SAR 150.

27. Plaintiff states in his briefing that the documents with

the SAMAANAETNA designation are “from the parties’ earlier

exchange of documents in this action.” Dkt. 53 at 3. Plaintiff did

not provide evidence showing that Defendants received these

documents during the claims administration process, before

Plaintiff filed this action.

b. For Some of Plaintiff’s Claims, Plaintiff Provided

Medical Documentation Purportedly Supporting

the Claim

28. For 17 of the 27 claim events referenced in paragraph

22, Plaintiff submitted to Defendants medical documentation

purportedly supporting the claims during the claims

administration process:

- Patient A (DOS: 4/4/2015), AR 577,

- Patient A (DOS: 7/3/2015), id. at 632;

- Patient A (DOS: 7/6/2015), id. at 648;

- Patient A (DOS: 7/16/2015), id. at 659;

- Patient T (DOS: 11/14/2015), id. at 7988;

- Patient X/AE (DOS: 3/26/2015), id. at 1955;

- Patient X/AE (DOS: 4/25/2015), id. 1965;

- Patient X/AE (DOS: 6/26/2015), id. at 2015;

- Patient X/AE (DOS: 7/10/2015), id. at 2031;

- Patient X/AE (DOS: 7/27/2015), id. at 2053;

- Patient X/AE (DOS: 8/4/2015), id. at 2066;

- Patient Z (DOS: 8/6/2015), id. at 8416-19;

- Patient Z (DOS: 11/26/2015), id. at 1079;

- Patient AA (DOS: 10/2/2015), id. at 728, 8665;

- Patient DD (DOS: 12/8/2015), id. at 1183;

- Patient DD (DOS: 12/19/2015), id. at 1203; and

- Patient DD (DOS: 2/13/2016), id. at 1249.

i. Plaintiff Submitted Several Claims for

Administering B6 and B12 Injections that

Defendants Denied

29. The Current Procedural Terminology (CPT) code for an

injection of Vitamin B6 is 84207. Krominga Dec. ¶ 4.

30. The CPT code for an injection of Vitamin B12 is 82607.

Id.

31. The CPT code for administering an injection is 96372.

Id.

32. Defendants denied Plaintiff’s claims for administering

B6 and B12 injections for the following ten claim events:

- Patient A (DOS: 4/4/2015), AR 570;

- Patient A (DOS: 7/6/2015), id. at 643;

- Patient A (DOS: 7/16/2015), id. at 546;

- Patient X/AE (DOS: 3/26/2015), id. at 1961;

- Patient X/AE (DOS: 6/26/2015), id. 1966-67;

- Patient X/AE (DOS: 7/10/2015), id. at 2018;

- Patient X/AE (DOS: 7/27/2015), id. at 8980-81;

- Patient X/AE (DOS: 8/4/2015), id. at 2065;

- Patient DD (DOS: 12/8/2015), id. at 1160; and

- Patient DD (DOS: 12/19/2015), id.

1. Defendants Denied Plaintiff’s Claims as to

Patient A for Failing to Include Specific

Information About the Injections

33. In an ATV Service Offering Engagement note dated

October 8, 2015, Defendants provided the following rationale for

denying some of Plaintiff’s claims as to Patient A on the grounds

that the services were not performed:

There are no separate injection records

submitted doc medication/dosage/specific

route or signature of professional who may

have administered medications or lab work

submitted to support services rendered.

AR 514. This note applied to Plaintiff’s claims for administering

B6 and B12 injections on the following dates, among others: DOS

4/4/2015, DOS 7/6/2015, and DOS 7/16/2015. Id.

34. The medical documentation purportedly supporting

Plaintiff’s claim for services provided to Patient A on April 4, 2015

and July 16, 2015 state that Vitamin B6 and B12 were given,

without further detail. Id. at 577, 659. The documentation does

not contain separate injection records, nor discuss specific dosage

or route of B6 or B12 injections. Id.

35. The medical documentation purportedly supporting

Plaintiff’s claim for services provided to Patient A on July 6, 2015

is not legible. Id. at 648. It is not evident that the documentation

mentions B6 or B12 injections. Id.

36. Dr. Krominga opines that the standard in the medical

industry is to record all injections in a specific section and, for

each injection, to include the name of the manufacturer, the

dosage, the lot number and expiration date, the route of

administration, and the name of the person administering the

injection. Krominga Dec. ¶ 9.

2. Defendants Denied Plaintiff’s Claims as to

Patient X/AE and Patient DD for Failing to

“Support” the Injections, Without Further

Explanation

37. In an ATV Service Offering Engagement note dated

October 9, 2015, Defendants provided the following rationale for

denying some of Plaintiff’s claims as to Patient X on the grounds

that the services were not performed:

Notes do not support injection/labs

performed.

AR 1946. This note applied to Plaintiff’s claim for administering

B6 and B12 injections on the following dates, among others: DOS:

03/26/2015, DOS: 06/26/2015, DOS: 07/10/2015, DOS: 07/27/2015,

and DOS: 8/4/2015. Id. at 1945. The note did not include further

grounds for denial. Id.

38. The medical documentation purportedly supporting

Plaintiff’s claims for services provided to Patient X on March 26,

2015 is not legible. Id. at 1955. It is not evident that the

documentation mentions B6 or B12 injections. Id.

39. The medical documentation purportedly supporting

Plaintiff’s claims for services provided to Patient X on June 26,

2015, July 10, 2015, July 27, 2015 and August 4, 2015 show that

B6 and B12 injections were given, but do not include further

detail. Id. at 2015, 2031, 2053, 2066.

40. In an ATV Service Offering Engagement note dated

June 16, 2016, Defendants provided the following rationale for

denying some of Plaintiff’s claims as to Patient DD on the grounds

that the services were not performed:

Notes do not support injection administered.

Id. at 1118. This note applied to Plaintiff’s claims for

administering B6 and B12 injections on the following dates: DOS:

12/08/2015 and DOS: 12/19/2015.

41. The medical documentation purportedly supporting

Plaintiff’s claims for services provided to Patient DD on December

8, 2015 and December 19, 2015 state that B-6 and B-12 injections

were given for weakness and fatigue, without further detail. Id. at

1183, 1203.

42. There is no evidence in the administrative record that

Defendants requested that Plaintiff provide specific dosage, route

of administration, or the signature of the administering doctor in

response to Plaintiff’s claims as to Patient X/AE and Patient DD.

ii. Defendants Denied Several of Plaintiff’s

Claims for Providing Comprehensive Office

Visits

43. The CPT Code for a comprehensive office visit is 99215.

Krominga Dec. ¶ 4.

44. Defendants denied Plaintiff’s claims for providing a

comprehensive office visit during the following 11 claim events:

- Patient A (DOS 4/4/2015), AR 570;

- Patient A (DOS: 7/3/2015), id. at 619-20;

- Patient A (DOS: 7/6/2015), id. at 643;

- Patient A (DOS: 7/16/2015), id. at 546

- Patient T (DOS 11/14/2015), id. at 8979;

- Patient X/AE (DOS 4/25/2015), id. at 1961, 1966;

- Patient X/AE (DOS 8/4/2015), id. at 2065;

- Patient Z (DOS 8/6/2015), id. at 105210;

- Patient Z (DOS 11/26/2015), id. at 1075.

- Patient AA (DOS 10/2/2015), id. at 8635.

- Patient DD (DOS 2/13/2016), id. at 1246.

45. In an ATV Service Offering Engagement note dated

October 8, 2015, Defendants provided the following rationale for

denying some of Plaintiff’s claims as to Patient A on the grounds

that the services were not performed:

Progress notes submitted have limited

information. Most do not contain subj c/o, no

detailed history, no exam, assessment or

treatment plan as well as notes do not contain a

signature with credentials to support seen by

billing provider.

Id. at 514. This note applied to Plaintiff’s claims for providing

comprehensive office visits on the following dates: DOS: 4/4/2015,

DOS: 7/3/2015, DOS: 7/6/2015, and DOS 7/6/2015. Id.

46. In an ATV Service Offering Engagement note dated

June 4, 2016, Defendants provided the following rationale for

denying Plaintiff’s claim for providing a comprehensive office visit

to Patient T on November 14, 2015:

Clinical documentation does not support the

required criteria of and office visit of

10 Plaintiff also made a claim for services provided to Patient Z on August 6,

2015 under a service code not identified by either party. Id.

history, physical and medical management

or that any medications/injections were

given with record or flow sheet.

Id. at 7977.

47. In an ATV Service Offering Engagement note dated

October 8, 2015, Defendants provided the following rationale for

denying some of Plaintiff’s claims as to Patient X/AE on the

grounds that the services were not performed:

Notes do not support a comprehensive

hx/exam/end mdm high complexity.

Limited info on notes. All notes do not

appear to be signed so it is unclear who

performed these services.

Id. at 1946. This note applied to Plaintiff’s claims for providing

comprehensive office visits on April 24, 2015 and August 4, 2015.

Id. at 1945.

48. In an ATV Service Offering Engagement note dated

June 4, 2016, Defendants provided the following rationale for

denying Plaintiff’s claim for providing a comprehensive office visit

to Patient Z on August 6, 2015:

Notes do not support comprehensive

history; A comprehensive examination;

Medical decision making of high complexity

performed

Id. at 1046.

49. In that same ATV Service Offering Engagement note,

Defendants provided the following rationale for denying Plaintiff’s

other claim for services provided to Patient Z on August 6, 2015:

Documentation does not support

venipuncture, age 3 years or older,

necessitating the skill of physician or other

qualified health care professional (separate

procedure) for diagnostic or therapeutic

purposes (not to be used for routine

venipuncture) performed . . . .

Id.

50. In an ATV Service Offering Engagement note dated

June 21, 2016, Defendants provided the following rationale for

denying Plaintiff’s claim for providing a comprehensive office visit

to Patient Z on November 26, 2015:

Notes do not support comprehensive

history; A comprehensive examination;

Medical decision making of high complexity

performed. Note does not appear to include

legible signature with credentials[.]

Id. at 1090.

51. In an ATV Service Offering Engagement note dated

October 30, 2015, Defendants provided the following rationale for

denying Plaintiff’s claim for providing a comprehensive office visit

to Patient AA on October 2, 2015:

Notes do not support s [sic] comprehensive

history; A comprehensive examination;

Medical decision making of high complexity

performed. Note does not appear to include

legible signature with credentials[.]

Id. at 737.

52. In an ATV Service Offering Engagement note dated

June 16, 2016, Defendants provided the following rationale for

denying Plaintiff’s claim for providing a comprehensive office visit

to Patient DD on February 13, 2016:

Notes do not supports [sic] comprehensive

history; A comprehensive examination;

Medical decision making of high complexity

performed. Note does not appear to include

legible signature with credentials[.]

Id. at 1118.

3) Defendants Denied Some of Plaintiff’s Claims on

the Grounds of Lack of Medical Necessity

53. For six of the claim events at issue, Defendants’ stated

ground for denial was that the service was not “accepted under

recognized professional standards as appropriate and effective for

the diagnosis, care or treatment of the disease or injury involved,”

or was “experimental or still under clinical investigation”:

- Patient K (DOS: 12/29/2014), AR 1488;

- Patient T (DOS: 03/30/2015), id. at 7282-83;

- Patient T (DOS: 6/2/2015), id. at 7283;

- Patient AA (DOS: 8/9/2016), id. at 699;

- Patient AA (DOS: 8/22/2016), id. at 699; and

- Patient AA (DOS: 9/12/2016), id. at 719.11

11 Defendants only denied some of Plaintiff’s claim for services provided to

Patient AA on September 12, 2016 on the grounds that the services were not

medically necessary. Defendants denied the remaining claims on the

a. Defendants’ Denial of Plaintiff’s Claim for

Services Provided to Patient K

54. Plaintiff submitted to Defendants an operating report

in support of his claim for services provided to Patient K on

December 29, 2014. AR 1490-92.

55. Plaintiff made the following preoperative diagnoses of

Patient K in the operating report:

1. Inflamed left Bartholin’s cyst

2. Dyspareunia

3. Severe menometrorrhagia with large

blood clots

Id. at 1490.

56. Plaintiff’s “Indication for Surgery” provided, in

relevant part:

The patient has been complaining of

dyspareunia and pain in the left side of her

labia for almost 2 months which lately

became much worse and at the same time

she has been complaining of severe vaginal

bleeding on-and-off with large blood clots.

Therefore the decision was made to perform

marsupialization of left Bartholin’s cyst

along with an operative hysteroscopy and

fractional dilatation and curettage.

grounds that the charges were not “reasonable and appropriate … because

the global care includes visits for post-operative services.” Id.; see also

Finding of Fact 67.

Id.

57. Plaintiff described the operation as follows:

1. Marsupialization of inflamed left

Bartholin cyst

2. Operative hysteroscopy

3. Uterine polypectomy x 2

4. Fractional dilatation and curettage

Plaintiff also provided a more detailed description of the procedure

in the operating report. Id. at 1490-91.

58. In an ATV Service Offering Engagement note dated

March 11, 2015, Defendants explained their decision to deny

Plaintiff’s claim as follows:

We reviewed information about your

condition and circumstances. Based on the

information we have, coverage for the

surgery is denied. There is limited

documentation to support medical necessity

of the surgical procedures.. [sic] The

provider did not document a history or

exam. There was no documentation of prior

conservative treatment tried and failed.

Id. at 1504.

59. The operating report did not indicate whether Plaintiff

performed a History and Physical (H&P), nor whether the patient

had attempted treatment prior to surgery for any of the

preoperative diagnoses. Id. at 1490-92.

60. During the claims administration process, Plaintiff did

not submit any other evidence to Defendants demonstrating

whether he performed an H&P or whether Patient K had

attempted other treatment.

61. Dr. Krominga opines in his declaration that:

Prior to performing surgery, unless it is an

emergency or there is no other option under

the circumstances, it is standard in the

industry to take a detailed history and

attempt conservative treatment before

performing surgery. All of this should be

carefully documented in the patient’s chart.

Krominga Dec. ¶ 11.

62. Dr. Krominga further opines that:

On the day of the elective surgery, it is

standard in the industry to perform a brief

history and physical exam before the

surgery is performed to make sure the

patient has had no recent change in health

status that would preclude the surgery,

such as an acute illness or acute blood loss .

. . .

Id. ¶ 12.

63. In response to Dr. Krominga’s opinion, Plaintiff opines

that conservative treatment “in the face of worsening pain and

severe vaginal bleeding” for Patient K would have been

inappropriate, and that an “[i]nfected big Bartholin cyst should be

removed surgically.” Dkt. 62-2 ¶ 6.

b. Plaintiff Does Not Offer Evidence to Show that

the Services Provided to Patient T and Patient

AA Were Medically Necessary

64. For two of the claim events referenced in paragraph 53,

there is no evidence that Plaintiff submitted medical documents to

Defendants supporting the claim during the claims administration

process:

- Patient T (DOS: 03/30/2015); and

- Patient T (DOS: 6/2/2015).

65. For three of the claim events referenced in paragraph

52, Plaintiff submitted to Defendants medical documentation

purportedly supporting the claims:

- Patient AA (DOS: 8/9/2016), AR 701;

- Patient AA (DOS: 8/22/2016), id. at 717; and

- Patient AA (DOS: 9/12/2016), id. at 722.

66. Plaintiff states in his declaration that all “medical

services actions undertaken by me with respect to the unpaid

claim events” at issue “were medically necessary, in my

professional explanation.” Plaintiff does not provide further

detail. Samaan Dec. ¶ 6.

4) Defendants Denied One of Plaintiff’s Claims

Because Plaintiff’s Services Were Included as Part

of a Global Care Surgery Event

67. For some of Plaintiff’s claims for services provided to

Patient AA on September 12, 2016, Defendants’ stated ground for

denial was that the Plan “provides coverage for charges that are

reasonable and appropriate. The charge for this service does not

meet this requirement . . . because the global care includes visits

for post - operative services.” Id. at 719.

68. Plaintiff submitted claims for providing surgical

services to Patient AA on August 6, 2016, in addition to the claims

he submitted for services provided on September 12, 2016. Id. at

704-12.

69. Plaintiff opines that “in his experience,” it is not

“reasonable and customary for surgeons in Southern California to

perform follow-up visits free of charge.” Samaan Dec. ¶ 8.

5) Defendants Issued Payments for Some of the

Claims Plaintiff Lists as “Unpaid”

70. Plaintiff submitted three claims, requesting a total of

$1,005.00, for services provided to Patient X/AE on February 18,

2017. AR 8444. Defendants paid all or a portion of each of these

claims. Id. Defendants’ payment totaled $415.00. Id.

71. Plaintiff submitted a claim for $875.00 for services

provided to Patient X/AE on June 21, 2017. Id. at 6852.

Defendants issued a payment of $820.00 for this claim. Id.

6) Defendants Denied the Remainder of Plaintiff’s

Claims on Other Grounds

72. For the following four claim events, Defendants’ stated

ground for denial was “[t]he information previously requested for

this charge was never received”:

- Patient A (DOS: 6/13/2015), AR 589;

- Patient X/AE (DOS: 8/23/2016), id. at 2122;

- Patient X/AE (DOS: 9/6/2016), id. at 2131; and

- Patient X/AE (DOS: 10/25/2016), id. at 2131-32.

73. Plaintiff opines that, in his experience, health insurers

do not “follow a practice of requesting medical records of every

patient office visit . . . .” Samaan Dec. ¶ 7.

74. For some of Plaintiff’s claims for services provided to

Patient X/AE on December 28, 2016, Defendants’ stated ground

for denial was that the Plan “provides benefits for covered

expenses at the prevailing charge level made for the service in the

geographical area where it is provided.” AR 6692-93.

75. For the remainder of Plaintiff’s claims for services

provided to Patient X/AE on December 28, 2016, Defendants’

stated grounds for denial was that the service was not billed at

“the E & M [evaluation and management] level usually associated

with the billed diagnosis code.” Id.

IV. CONCLUSIONS OF LAW

A. Legal Standards

1. Under ERISA, “a civil action may be brought . . . by a

participant or beneficiary . . . to recover benefits due to him under

the terms of his plan . . . .” 29 U.S.C. § 1132(a)(1).

2. A claimant bears the burden of proving, by a

preponderance of the evidence, that he is entitled to benefits

under an ERISA plan “where the claimant has better—or at least

equal—access to the evidence needed to prove entitlement.”

Estate of Barton v. ADT Sec. Servs. Pension Plan, 820 F.3d 1060,

1065-66 (9th Cir. 2016).

B. Assignments

3. Generally, only a participant or beneficiary may bring

an action to recover benefits under an ERISA Plan. 29 U.S.C. §

1132(a)(1). However, “ERISA does not forbid assignment by a

beneficiary of his right to reimbursement under a health care plan

to the health care provider.” Misic v. Bldg. Serv. Employees

Health and Welfare Trust, 789 F.2d 1374, 1377 (9th Cir. 1986).

4. Plaintiff’s access to the evidence needed to show that

his patients assigned him their right to Plan benefits is clearly

better than Defendants’ access. Therefore, Plaintiff has the

burden of proving by a preponderance of the evidence that his

patients assigned him their rights to benefits.

5. Plaintiff fails to meet his burden of showing that

Patients LL, AK, and AR assigned their rights to benefits to him.

Plaintiff’s statement in his declaration that he “received a written

assignment of benefits in connection with” each of the claims at

issue, Samaan Dec. ¶ 3, absent additional evidence, is insufficient

evidence for Plaintiff to meet this burden.

6. Plaintiff fails to meet his burden of proving that he has

standing to bring claims under the Plan for services provided to

Patients LL, AK, and AR.

7. Plaintiff meets his burden of showing that Patients A,

K, T, X/AE, Z, AA, and DD assigned to him their rights to benefits

under the Plan and that he has standing to bring claims under the

Plan for services provided to these patients.

C. Denials of Benefits

8. Under ERISA, a claims administrator “must provide a

plan participant with adequate notice of the reasons for denial . . .

.” Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 974 (9th

Cir. 2006).

9. A plan administrator must provide the following

information when making any “adverse benefit determination”:

(i) The specific reason or reasons for the

adverse determination;

. . .

(iii) 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 . .

. .

29 C.F.R. § 2560.503–1(g)(1).

10. A plan administer violates ERISA “[w]hen [the]

administrator tacks on a new reason for denying benefits in a final

decision, thereby precluding the plan participant from responding

to that rationale for denial at the administrative level.” Abatie,

458 F.3d at 974.

1) The Court Reviews Defendants’ Claims

Determinations Under an Abuse of Discretion

Standard

a. The Terms of the Plan Call for Abuse of

Discretion Review

11. Because the Plan contains a discretionary clause, the

terms of the Plan call for abuse of discretion review of Defendants’

claims determinations. Williby v. Aetna Life Ins. Co., 867 F.3d

1129, 1133 (9th Cir. 2017).

12. When reviewing a claims administrator’s decision

under an abuse of discretion standard, the “administrator’s

decision ‘will not be disturbed if reasonable.’” Stephan v. Unum

Life Ins. Co. of America, 697 F.3d 917, 929 (9th Cir. 2012) (quoting

Conkright v. Frommert, 559 U.S. 506 (2010)).

13. “This reasonableness standard requires deference to

the administrator’s benefits decision unless it is ‘(1) illogical, (2)

implausible, or (3) without support in inferences that may be

drawn from the facts in the record.’” Id. (quoting Salomaa v.

Honda Long Term Disability Plan, 642 F.3d 666, 676 (9th Cir.

2011)).

14. “This standard of review applies to the plan

administrator’s factual determinations as well as to her ultimate

decision.” Estate of Barton, 820 F.3d at 1070.

b. ERISA Preempts California Insurance Code

Section 10110.6 as Applied to the Plan

Plaintiff argues that the Court must review Defendants’

claims determinations de novo because California Insurance Code

section 10110.6(a) renders the discretionary clause in the Plan

void and unenforceable.

15. California Insurance Code section 10110.6(a) generally

prohibits the enforcement of discretionary clauses contained in

insurance policies:

If a policy . . . that provides or funds life

insurance or disability insurance coverage

for any California resident contains a

provision that reserves discretionary

authority to the insurer, or an agent of the

insurer, to determine eligibility for benefits

or coverage, to interpret the terms of the

policy . . . or to provide standards of

interpretation or review that are

inconsistent with the laws of this state, that

provision is void and unenforceable.

See also Williby, 867 F.3d at 1134 (“Section 10110.6 . . . bans the

enforcement of discretionary clauses in California.”)

16. ERISA, however, contains three interrelated provisions

that preempt state laws under certain conditions: the “pre-

emption clause,” the “saving clause,” and the “deemer clause.”

FMC Corp. v. Holliday, 498 U.S. 52, 57–58, 111 S. Ct. 403, 112 L.

Ed. 2d 356 (1990).

17. The pre-emption clause provides that ERISA “shall

supersede any and all State laws insofar as they may . . . relate to

any employee benefit plan” governed by ERISA. 29 U.S.C. §

1144(a).

18. The saving clause exempts from the scope of the pre-

emption clause “any law of any State which regulates insurance,

banking, or securities,” except as provided in the deemer clause.

29 U.S.C. § 1144(b)(2)(A).

19. “[T]he deemer clause qualifies the scope of the saving

clause . . . .” Williby, 867 F.3d at 1135. “Under the deemer clause,

an employee benefit plan governed by ERISA shall not be ‘deemed’

an insurance company, an insurer, or engaged in the business of

insurance for purposes of state laws ‘purporting to regulate’

insurance companies or insurance contracts.” FMC Corp., 498 U.S.

at 58.

20. As the Supreme Court explained in FMC Corp, the

deemer clause applies to ERISA plans that are self-funded. The

deemer clause exempts such plans from the saving clause, thereby

relieving the plans from state insurance regulations:

We read the deemer clause to exempt self-

funded ERISA plans from state laws that

“regulate insurance” within the meaning of

the saving clause. . . . State laws that

directly regulate insurance are “saved” but

do not reach self-funded employee benefit

plans because the plans may not be deemed

to be insurance companies, other insurers,

or engaged in the business of insurance for

purposes of such state laws. On the other

hand . . . [a]n insurance company that

insures a plan remains an insurer for

purposes of state laws “purporting to

regulate insurance” after application of the

deemer clause. The insurance company is

therefore not relieved from state insurance

regulation.

Id. at 61 (internal alteration omitted).

21. Under ERISA, the term “employee benefit plan”

includes an “employee welfare benefit plan.” 29 U.S.C. § 1002(3).

The term “employee welfare benefit plan” is defined to include:

any plan, fund, or program . . . maintained

by an employer or by an employee

organization, or by both, to the extent that

such plan, fund, or program was established

or is maintained for the purpose of

providing for its participants or their

beneficiaries, through the purchase of

insurance or otherwise, (A) medical,

surgical, or hospital care or benefits, or

benefits in the event of sickness, accident,

[or] disability . . . .”

Id. § 1002(1).

22. The Plan at issue is an employee welfare benefit plan

for purposes of ERISA. Therefore, ERISA’s preemption provisions

apply to the Plan.

23. Because the Plan is self-funded, ERISA’s deemer

clause exempts the Plan from the savings clause, thereby relieving

the Plan “from state laws that ‘regulat[e] insurance’ within the

meaning of the saving clause.” FMC Corp., 498 U.S. at 61

(alteration in original). Therefore, “ERISA preempts § 10110.6 as

applied to” the Plan. Williby, 867 F.3d at 1136.

2) The Court Will Not Consider Documents with the

Bates Stamp SAMAANAETNA in Reviewing

Defendants’ Claims Determinations

24. In reviewing an administrator’s claims determination,

a district court generally “review[s] only the evidence presented to

the [claims administrator].” Jones v. Laborers Heath & Welfare

Trust Fund, 906 F.2d 480, 482 (9th Cir. 1990).

25. There are two exceptions to this general rule: “First, a

district court may hear” evidence outside the administrative

record “when the court must determine if a plan administrator’s

decision was affected by a conflict of interest.” Banuelos v. Constr.

Laborers’ Trust Funds for S. Cal., 382 F.3d 897, 904 (9th Cir.

2004). Plaintiff does not argue that this exception applies.

26. “Second, the court can hear evidence outside the

administrative record when the standard of review of the

administrative decision is de novo.” Id. For the reasons stated

above, the applicable standard of review of Defendants’ claims

determinations is abuse of discretion, not de novo.

27. For these reasons, the Court will only review evidence

presented to Defendants during the claims administration process

in reviewing Defendants’ claims determinations.

28. Plaintiff failed to show that he presented the

documents containing the Bates designation SAMAANAETNA to

Defendants during the claims administration process. Therefore,

the Court will not consider these documents in reviewing

Defendants’ claims determinations.

3) Defendants’ Denials on the Grounds of Services Not

Provided

29. To the extent Defendants denied a claim on the

grounds that, based on the information received, the services were

not provided, Plaintiff’s access to the evidence needed to show that

the ground for denial failed to comply with the terms of the Plan is

better than, or at least equal to, Defendants’ access. Therefore,

Plaintiff has the burden of proving by a preponderance of the

evidence that Defendants abused their discretion in denying any

of Plaintiff’s claims on this ground.

a. Plaintiff Fails to Meet His Burden of Showing

that Defendants Abused Their Discretion in

Denying A Claim Where Plaintiff Did Not

Provide Supporting Medical Documentation

30. For several of the claim events at issue, there is no

evidence that Plaintiff submitted to Defendants any medical

documentation purportedly supporting his claims during the

claims administration process. Finding of Fact 24. Defendants’

decision to deny these claims was not illogical, implausible, or

without support in inferences that may be drawn from the record.

31. Plaintiff fails to meet his burden of showing that

Defendants abused their discretion in denying these claims.

b. Defendants’ Denials of Plaintiff’s Claims for

Administering B6 and B12 Injections

32. Defendants denied Plaintiff’s claim for administering

B6 and B12 injections to Patient X/AE on March 26, 2015, and to

Patient A on July 6, 2015. Defendants’ decision was not illogical,

implausible, or without support in inferences that may be drawn

from the record. Plaintiff submitted medical records in support of

these claims, but the records were not legible and did not evidence

that any B6 or B12 injections were administered.

33. Plaintiff fails to meet his burden of showing that

Defendants abused their discretion in denying these claims.

34. Plaintiff submitted claims for administering B6 and

B12 injections to Patient A on April 4, 2015 and July 16, 2015.

Defendants’ stated ground for denial in the EOB was that, based

on the information received, the services were not provided. In

the ATV Service Offering Engagement, Defendants further

specified that the records did not include the dosage of the

injection, the specific route of administration, or the signature of

professional who purportedly administered the injections. This

decision was not without support in inferences that may be drawn

from the record. The records Plaintiff submitted stated that B6

and B12 injections were administered but did not provide further

information. There is also no evidence Plaintiff provided

Defendants with additional information about the injections after

receiving Defendants’ notification of the grounds for denial.

35. Defendants’ decision to deny these claims was also not

implausible or illogical. Dr. Krominga opines that the industry

standard is to record the dosage of the injection, the specific route

of administration, and the signature of professional who

purportedly administered the injections.12 Plaintiff does not

provide any evidence to rebut Dr. Krominga’s testimony.

12 Plaintiff objects to Dr. Krominga’s opinion on several grounds. Dkt. 62-1 at

3. Plaintiff’s objections are overruled. First, Dr. Krominga’s opinion

regarding the industry standard for documenting injections is relevant to

Defendants’ decision to deny Plaintiff’s claims on the grounds that Plaintiff

36. Plaintiff fails to meet his burden of showing that

Defendants abused their discretion in denying these claims.

37. Finally, Plaintiff submitted claims for administering

B6 and B12 injections during the following claim events:

- Patient X/AE (DOS 06/26/2015);

- Patient X/AE (DOS 07/10/2015);

- Patient X/AE (DOS 07/27/2015);

- Patient X/AE (DOS 8/4/2015);

- Patient DD (DOS 12/8/2015); and

- Patient DD (DOS 12/19/2015).

For each of these claim events, Plaintiff submitted records

purporting to show that B6 and B12 injections were administered

to patients. Unlike their claim decisions as to Patient A,

Defendants’ claims decisions as to these patients did not inform

Plaintiff that he failed to provide specific information about the

injections per the industry standard. Defendants stated only that

failed to provide sufficient documentation. Second, Dr. Krominga has

provided sufficient information to show that he is qualified to give this

opinion. Fed. Rule Evid. 702; Findings of Fact 15-17. Third, Dr. Krominga’s

opinion regarding the industry standard is not “speculation.” Fourth, Dr.

Krominga’s opinion in not objectionable as a “conclusion.” Rule 704 provides

that “[a]n opinion is not objectionable just because it embraces an ultimate

issue.” Fed. R. Evid. 704(a) (emphasis added). Finally, the best evidence rule

is not applicable. The best evidence rule requires the proponent of a

document to produce the original version to prove its contents, unless a

statutory exception applies. Fed. R. Evid. 1002; see also United States v.

Lopez, 625 F.3d 1198, 1201 (9th Cir. 2010) (“[T]he rule requires not, as its

common name implies, the best evidence in every case but rather the

production of an original document instead of a copy.”) Dr. Krominga does

not describe the contents of any document in his opinion.

Patient’s records did not “support” the injections, without further

explanation. In light of Plaintiff’s submission of some medical

documentation showing the injections were administered,

Defendants’ stated ground for denial was without support in

inferences that may be drawn from the record. And to the extent

Defendants intended to deny Plaintiff’s claims for failing to

include the specific dosage, route of administration, or other

information about the purported injections, Defendant did not

provide Plaintiff “adequate notice of the reasons for denial,”

Abatie, 458 F.3d at 974. Defendants did not inform Plaintiff of the

“additional material or information necessary for [Plaintiff] to

perfect the claim,” 29 C.F.R. § 2560.503–1(g)(1)(iii), which

precluded Plaintiff from “effectively responding to that rationale

for denial,” Abatie, 458 F.3d at 974.

38. Plaintiff meets his burden of showing that Defendants

abused their discretion in denying these claims under the Plan.

c. Plaintiff Fails to Meet His Burden of Showing

that Defendants Abused Their Discretion in

Denying Plaintiff’s Claims for Providing a

Comprehensive Office Visit

39. Defendants denied several claims for providing a

comprehensive office visit. Finding of Fact 44. For each of these

claims, Defendants explained why the documentation Plaintiff

submitted did not support those claims. Plaintiff does not show

that Defendants’ decisions were implausible, illogical, or without

support in inferences that may be drawn from the record.

Plaintiff does not explain what a comprehensive office visit entails

under the Plan, does not explain why the services he provided on

those dates satisfy the criteria for a comprehensive office visit,

and does not explain why Defendants’ determinations did not

comply with the terms of the Plan.

40. Plaintiff fails to meet his burden of showing that

Defendants abused their discretion in denying these claims.13

4) Plaintiff Fails to Meet His Burden of Showing that

Defendants Abused Their Discretion in Denying

Plaintiff’s Claims on the Grounds of Lack of

Medical Necessity

41. To the extent Defendants denied Plaintiff’s claims on

the grounds that the service was not accepted under recognized

professional standards, was experimental, or was still under

clinical investigation, Plaintiff’s access to the evidence needed to

show that the ground for denial failed to comply with the terms of

the Plan is better than, or at least equal to, Defendants’ access.

Therefore, Plaintiff has the burden of proving by a preponderance

of the evidence that Defendants abused their discretion in denying

any of Plaintiff’s claims on these grounds.

a. Patient K

42. Plaintiff meets his burden of showing that the services

he provided to Patient K on December 29, 2014 constitute

“surgical services” for purposes of the Plan.

43. Defendants determined that the surgery was not

medically necessary because Plaintiff did not document a history

and physical exam (H&P) prior to the surgery, and did not

document whether there had been attempts at conservative

treatment for Patient K’s symptoms. Defendants’ decision to deny

Plaintiff’s claim on these grounds was not without support in

inferences that may be drawn from the record. The only evidence

Plaintiff submitted to Defendants during the claims process was

13 For the same reason, Plaintiff fails to show that Defendants abused their

discretion in denying Plaintiff’s other claim for services provided to Patient Z

on August 6, 2016. See Findings of Fact 44, 49.

the operating report. Plaintiff did not document whether he

performed an H&P, nor discuss any prior attempts at treatment

for Patient K’s symptoms in the operating report.

44. Nor was Defendants’ decision to deny Plaintiff’s claim

implausible or illogical. Dr. Krominga opines that it is standard

industry practice to attempt conservative treatment prior to

electing to perform surgery and, prior to surgery, to perform an

H&P and take a detailed history. Dr. Krominga’s opinion lends

support to Defendants’ claim decision.14

45. After receiving notification of Defendants’ claim denial,

Plaintiff did not establish that he had performed an H&P, nor did

he describe attempts at conservative treatment. This further

lends support to Defendants’ decision to deny Plaintiff’s claim for

lack of medical necessity.

46. In the operating report, Plaintiff described the history

of K’s symptoms which, in Plaintiff’s opinion, indicated the need

for surgery. Although the information contained in the report

lends some support to Plaintiff’s position that the surgery was

medically necessary, it is insufficient to show that Defendants’

contrary decision was implausible, illogical, or without support in

14 Plaintiff objects to Dr. Krominga’s opinion on several grounds. Dkt. 62-1 at

4. Plaintiff’s objections are overruled. First, Dr. Krominga’s opinion

regarding the industry standard for steps taken prior to elective surgery is

directly relevant to Defendants’ decision to deny Plaintiff’s claims on the

grounds that the services were not medically necessary. Second, Dr.

Krominga has provided sufficient information to show that he is qualified to

give this opinion. Fed. Rule Evid. 702; Findings of Fact 15-17. Third, Dr.

Krominga’s opinion regarding the industry standard is not “speculation.”

Fourth, Dr. Krominga’s opinion is not objectionable as a “conclusion.” See

Fed. R. Evid. 704(a). Finally, Dr. Krominga does not refer to the contents of

any documents in his opinion, so the best evidence rule is not applicable.

Fed. R. Evid. 1002.

inferences that may have been drawn from the record, as available

to Defendants at the time.

47. Plaintiff fails to meet his burden of showing that

Defendants abused their discretion in denying Plaintiff’s claims

for services provided to Patient K on December 29, 2014.

b. Other Claims

48. Defendants determined that Plaintiff’s services were

not medically necessary for five additional claim events at issue.

Finding of Fact 53. For 2 of the claim events, Plaintiff did not

submit medical documentation supporting the claim to

Defendants during the claims administration process. Defendants

decision to deny these claims was not illogical, implausible, or

without support in inferences that may be drawn from the record.

49. For the other 3 claim events, Plaintiff did not describe

the services he purportedly provided that allegedly entitle him to

benefits under the Plan, nor did he explain why the service was

medically necessary. Plaintiff only cited to the medical

documentation and stated in his declaration that all of his services

were medically necessary, without further explanation. That is

insufficient to show that Defendants’ decision to deny these claims

was illogical, implausible, or without support in inferences that

may be drawn from the record.

50. Plaintiff fails to meet his burden of showing that

Defendants abused their discretion in denying these claims.

5) Plaintiff Fails to Show that Defendants Abused

Their Discretion in Denying Plaintiff’s Claims on

the Grounds that the Services Were Included as

Part of a Global Care Surgery Event

51. For one of the claim events at issue, Defendants denied

Plaintiff’s claims on the grounds that Plaintiff’s services were

post-operative services included as part of a global care event, for

which Plaintiff submitted a separate claim. Finding of Fact 67.

Plaintiff has at least equal access to the evidence needed to show

that this ground for denial failed to comply with the terms of the

Plan. Therefore, Plaintiff has the burden of proving by a

preponderance of the evidence that Defendants abused their

discretion in denying Plaintiff’s claims on this ground.

52. Defendants’ decision to deny Plaintiff’s claims on this

ground was not without support in inferences that may be drawn

from the record. Plaintiff submitted separate claims for providing

surgery services to the same patient shortly before submitting the

claim.

53. Plaintiff’s only supporting evidence is his own

statement that, in his experience, surgeons generally do not

provide post-operative services free of charge. This is not

sufficient to show that Defendants’ decision was illogical or

implausible. Plaintiff fails to explain the basis of his assertion or

provide additional supporting evidence.

54. Plaintiff also fails to show that the Plan precludes

Defendants from including post-operative services as part of a

claim for “global care.”

55. Plaintiff fails to show that Defendants abused their

discretion in denying this claim.

6) The Court Will Not Consider Claims Where

Defendants Made a Partial Payment

56. For three of the claim events at issue, Defendants paid

part of Plaintiff’s claims. Findings of Fact 23, 70, 71. As

previously noted, the current phase includes only Plaintiff’s claims

for allegedly unpaid benefits. The next phase includes Plaintiff’s

claims for allegedly underpaid benefits. The Court will not

consider these claims at this time.

7) Plaintiff Fails to Show that Defendants Abused

Their Discretion in Denying the Remainder of

Plaintiff’s Claims

57. For the remainder of the claim events at issue,

Defendants’ stated ground for denial was one of the following:

- Plaintiff failed to provide additional information requested

by Defendants.

- Plaintiff billed the claim event at the incorrect service level,

or the Plan only provides benefits for covered expenses at the

prevailing charge level in the geographic area.

To the extent Defendants denied a claim on any of these grounds,

Plaintiff’s access to the evidence needed to show that the ground

for denial failed to comply with the terms of the Plan is better

than, or at least equal to, Defendants’ access. Therefore, Plaintiff

has the burden of proving by a preponderance of the evidence that

Defendants abused their discretion in denying any of Plaintiff’s

claims on theses grounds.

58. Defendants denied four of Plaintiff’s claim on the

grounds that Plaintiff failed to provide additional information

requested by Defendants. Finding of Fact 72. Plaintiff does not

explain what information Defendants previously requested, does

not explain whether he complied with the request, and does not

explain why Defendants’ request failed to comply with the terms

of the Plan. Plaintiff’s statement that it is not the industry

standard for insurers to request medical records in support of

every patient visit is not sufficient to show that Defendants’

request was illogical, implausible, or without support in inferences

that may be drawn from the record.

59. Plaintiff did not argue that Defendants’ stated grounds

for denying Plaintiff’s claims for services provided to Patient X/AE

on December 28, 2107 failed to comply with the terms of the Plan,

nor otherwise explain why Defendants abused their discretion in

refusing to provide benefits. Findings of Fact 74, 75.

60. Plaintiff fails to meet his burden of proving that

Defendants abused their discretion in denying all or a portion of

the remainder of Plaintiff’s claim events.

D. The Court Will Not Determine the Amount Plaintiff is

Entitled to Recover at This Time

61. Defendants ask that the Court decline to determine the

amount Defendants owe Plaintiff for any claim for which Plaintiff

is entitled to benefits. Defendants argue that the parties will brief

how benefits are paid under the Plan during the next phase.

Plaintiff did not adequately address this issue in his briefing. The

Court declines to rule at this time and will permit the parties to

address this issue during the next phase.

V. CONCLUSION

For the reasons stated, Plaintiff meets his burden of showing

that he is entitled to recover benefits for administering B6 and

B12 injections during the following claim events: Patient X/AE

(DOS: 06/26/2015, DOS: 07/10/2015, DOS: 07/27/2015, and DOS

8/4/2015); and Patient DD (DOS: 12/08/2015 and 12/19/2015).

Plaintiff fails to meet his burden of showing that he is entitled to

recover benefits arising from any other claim event considered

during this phase of the action.

IT IS SO ORDERED.

Date: August 30, 2019 hoe A. cAVP

Dale 8S. Fischer

United States District Judge