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Rubin v. Amerihealth Administrators, Inc.

United States District Court, Third Circuit

August 2, 2013

DEBRA L. RUBIN, Plaintiff,


ROBERT F. KELLY, Senior District Judge.

Presently before the Court is the Motion for Summary Judgment filed by Defendants, Amerihealth Administrators, Inc. ("AmeriHealth") and Crozer-Chester Medical Center ("Crozer"), the Response in Opposition filed by Plaintiff, Debra L. Rubin, as well as the Replies thereto. For the reasons set forth below, we deny Defendants' Motion.


Plaintiff, Debra Rubin, seeks a determination that she is entitled to certain medical benefits pursuant to a group health insurance plan (the "Plan") issued by Crozer, which provides health insurance coverage to its employees-subscribers and Plan members. (Am. Compl. ¶ 8.) Plaintiff's husband is an employee of Crozer, and she is a beneficiary of the employee benefit plan provided to her husband. (Id. ¶¶ 9-10.) The benefits for the Plan are issued by AmeriHealth under Group/Employer Account No. 087771. (Id. ¶ 11.) Crozer-Keystone Health System has retained AmeriHealth, a wholly owned subsidiary of Independence Blue Cross, as its claims administrator. (Pl.'s Mem. Law Opp'n Defs.' Mot. for Summ. J. at 1.) Plaintiff seeks benefits pursuant to the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq., and a declaratory judgment that the Plan covers the treatments sought by her.[1] (Am. Compl. ¶¶ 30-42.) Additionally, Plaintiff seeks attorney fees and costs. (Id. ¶ 42.) The Plan constitutes an employee benefit plan pursuant to ERISA. (Id. ¶ 11.)

On June 17, 2011, Plaintiff alleges that she sustained physical injuries as a result of a slip and fall accident resulting in a diagnosis of Reflex Sympathetic Dystrophy, which is also known as Complex/Chronic Regional Pain Syndrome ("CRPS"), and affects her lower extremities. (Id. ¶¶ 13-14.) Plaintiff sought the treatment of Roderick Spears, a neurologist associated with Crozer Hospital, who confirmed that she was suffering from CRPS and agreed that a course of inpatient hospitalization for intravenous Ketamine would appropriately treat Plaintiff.[2] (Pl.'s Mem. Law Opp'n Defs.' Mot. for Summ. J. at 2.) Plaintiff states that "outpatient Ketamine is not an option because of [her] previous history of two ruptured brain aneurysms in April 2005 and three angiograms in July 2010, January 2011 and February 2011." (Pl.'s Mem. Law Opp'n Defs.' Mot. for Summ. J.; Ex. 2, p. 2.) Relying upon the opinions of her primary care physician, and Dr. Spears, Plaintiff explains that inpatient intravenous Ketamine treatment is her only option because it is a safer environment where her vital signs can be closely monitored by critical care doctors and an outpatient setting would be unsafe to administer the treatment. (Id.)

Plaintiff sought the referred treatment from Dr. Robert Schwartzman, who is affiliated with Drexel/Hahnemann neurology. (Id.) Dr. Schwartzman is a Board-certified neurologist who specializes in chronic pain management. (Id.) He, also, established the first CRPS clinic in the United States and has conducted research and work regarding treatment for CRPS on a national and international level. (Id.)

Plaintiff submitted her request for the treatment to AmeriHealth. (Id.) On March 28, 2012, AmeriHealth denied Plaintiff's request for in-hospital Ketamine treatments advising her that the treatments were considered experimental and investigational. (Id. at 2, 5.) AmeriHealth relied upon the Summary Plan Description, which states that "benefits are not provided for certain kinds of treatment or services, even if your health care provider recommends them." (Def.'s Mem. Law Support Mot. for Summ. J. at 2; Ex. 2.) In addition, the Summary Plan Description provides that certain expenses are not covered, including "[c]harges for any treatment, supply or medicine that is not medically necessary or is considered unsafe, experimental or investigational by the American Medical Association or the appropriate medical specialty society." (Id.) This initial rejection permitted Plaintiff to appeal in writing within 180 days, and Plaintiff, in fact, pursued that appeal. (Pl.'s Mem. Law Opp'n Defs.' Mot. Summ. J. at 5.)

Plaintiff wrote a letter dated April 22, 2012 ("April 22, 2012 Letter"), to Dr. Gideon D. Hill, who at that time was Vice President of Managed Care Services and Regional Medical Director for AmeriHealth.[3] (Id.) Plaintiff's letter referenced the acceptance of a CRPS patient for intravenous Ketamine treatment through an external utilization review appeal with another insurer.[4] (Id.) Dr. Hill makes decisions on a claims such as Plaintiff's claim. (Id.)

Regarding Plaintiff's first appeal, Dr. Hill upheld AmeriHealth's denial confirming that the Medical Policy Bulletin 08.00.57a of Independence Blue Cross ("Medical Policy Bulletin"), entitled Complex Regional Pain Syndrome (CRPS) Parenteral Treatments, was utilized throughout the appeal process as justification for the fact that intravenous Ketamine therapy was experimental or investigational, and, therefore, not covered by AmeriHealth. (Id. at 6.; Ex. 6, p. 28.)

According to the appeal process, AmeriHealth forwarded Plaintiff's claim to an external reviewer named National Medical Reviews, Inc. (Id.) The claim was forwarded to Dr. John Glass, a neurologist. (Id.) Dr. Glass upheld the decision to reject Ketamine stating that "[i]npatient hospitalization for IV Ketamine was not medically necessary. Ketamine can be provided safely and effectively in the outpatient setting." (Id.; Ex. 8.) Additionally, Dr. Glass stated that "under [Plaintiff's] Medical policy request (sic} is considered experimental/investigational & is a benefit exclusion." (Id.) Dr. Glass relied upon the following documents: (1) IBC Medical Policy: Complex Regional Pain Syndrome (CRPS) Parenteral Treatments 08.00.57b; (2) an article by Sigtermans MJ, van Hilten JJ, Bauer MC, Arbous MS, Marinus J, Sarton EY, Dahan A. Ketamine Produces Effective and Long-Term Pain Relief in Patients With Complex Regional Pain Syndrome Type 1. Pain. 2009; 145:304-311 ("2009 Sigtermans Article"); (3) Schwartzman RJ, Alexander GM, Grothusen JR, Paylor T, Reichenberger E, Perreault M. Outpatient Intravenous Ketamine for the Treatment of Complex Regional Pain Syndrome: a Double-Blind Placebo Controlled Study. Pain. 2009;147:107-115 ("2009 Schwartzman Article"); and (4) Baron R, Binder A. Wasner G. Neuroptahic Pain: Diagnosis, Pathophysiological Mechanisms, and Treatment. Lancet Nerol. 2010; 9:807-819. (Id.) The determination by Dr. Glass stated "based on clinical findings, documentation & Medical Policy, inpatient admission for IV Ketamine for treatment of CRPS is considered experimental/investigational for this member." (Id.)

Plaintiff requested a final review of her claim. (Id. at 6.) Final review of Plaintiff's claim was submitted to an external reviewer named MCMC, LLC (Medical Care Ombudsman Program) ("MCMC"). (Id.) In conjunction with this appeal, Plaintiff submitted additional information as part of the appeal process. (Id.; Ex. 10.) Plaintiff submitted a new professional 2011 journal article entitled, "The Use of Ketamine in Complex Regional Pain Syndrome: Possible Mechanisms" written by Dr. Schwartzman, Guillermo M. Alexander, and John R. Grothusen ("2011 Schwartzman Article"). (Id.) It revisited the issue of the use of intravenous Ketamine treatment determining that its use was appropriate after specifically considering analyzed, double-blind, randomized controlled trials in the treatment of CRPS. (Id. at 7-8; Ex. 10.) Additionally, Plaintiff sent the MCMC Reviewer a copy of her April 22, 2012 Letter to Dr. Hill. (Id.)

On May 30, 2012, MCMC notified AmeriHealth that Plaintiff had, in fact, submitted additional information for consideration, specifically the 2011 Schwartzman Article. (Id. at 6; Ex. 6, p. 40.) MCMC apparently sent the information to Dr. Hill to review for reconsideration. (Id.) In response, Dr. Hill indicated that he had reviewed the additional information submitted, and determined that the information was not of a nature that would allow AmeriHealth to overturn the appeal. (Id.; Ex. 6, p. 40.) Dr. Hill explained his action by stating that:

And if I - if there had been something that was compelling there, I would have overturned it and approved it right then and we could have... proceeded. As you see my documentation, I reviewed the information submitted, information that is not of the nature that would allow us to overturn the appeal. And I said please continue, send the appeal for external review.

(Id.; Ex. 6, p. 43.) When asked whether he authorized the MCMC Reviewer to consider the 2011 Schwartzman Article, and whether it was indeed considered, Dr. Hill testified that he did not know. (Id.; Ex. 6, p. 43-44.) Dr. Hill testified that he could not comment about whether the MCMC Reviewer reviewed the new article. (Id.) Also, he stated that he did not know why the MCMC Reviewer did not reference the ...

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