Attorneys for Plaintiff
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
LUCENT TECHNOLOGIES INC. MEDICAL EXPENSE PLAN FOR RETIRED EMPLOYEES;
COMPLAINT AND DEMAND FOR JURY TRIAL
1. Recovery of Plan Benefits
2. Breach of Fiduciary Duty
3. Attorneys' Fees
Plaintiff alleges as follows:
C. FACTUAL BACKGROUND
"Adenocarcinoma of the prostate, Gleason grade 3+3=6 involving four fragmented cores . . ."
A true and correct copy of said Report is attached hereto, marked Exhibit "C" and incorporated herein by reference.
"This is to verify that the Radiation therapy treatments are covered, based on Reasonable and Customary or contracted amount (if in-network), and does not require precert under his Traditional Indemnity Plan."
A true and correct copy of UNITED’s letter dated September 20, 1999, is attached hereto, marked Exhibit "D" and made a part hereof. At or about that same date, UNITED verbally told MR. BARD that the Proton Beam therapy was excluded because it was "investigational".
"This is a letter I never thought I’d be writing.
As you know, I retired from Lucent (IP Licensing Law) in July of 1996. Thereafter, I remained as a consultant and relocated to North Carolina.
Retirement was of great benefit to me and my family after the many years I spent negotiating on behalf of AT&T/Lucent in the Far East.
To my shock I was diagnosed with Prostate Cancer at the end of July and have since thoroughly explored my options and consulted with specialists from Johns Hopkins, Harvard, Stanford, Baylor, Loma Linda, UCSF, UVA, and Duke.
As a consequence of my efforts, I determined that my best option for longer-term survival (and minimizing normal side effects of incontinence, impotence, and others even more unpleasant) was to receive Proton Beam radiation therapy.
Proton Beam therapy is given at both Harvard/MGH and at Loma Linda (the facilities are limited by the approximately $80 million cost per installation). It’s been in use at Harvard more than thirty-five years and at Loma Linda since 1990. It is so effective that an additional unit is being prepared for use at a new Harvard/MGH center.
Nevertheless, I’ve been informed by my PPO (United Healthcare) that they consider the treatment "investigational" and have not covered it in the past.
At this point the matter is with their home office for review. I do not have the time to go through the normal appeal process designated by Lucent and I feel it would be best to act before they have issued a formal denial and hardened their position. Loma Linda informs me that United is one of only five managed care companies in the United States that has routinely denied coverage. I need this treatment and I need it now. I do not believe Lucent intends that its retirees receive substandard medical benefits and I know you will act promptly to prevent such an outcome.
Thank you for your help."
A true and correct copy of MR. BARD’s September 21, 1999 letter is attached hereto, marked Exhibit "E" and made a part hereof.
"The Lucent Technologies plan pays for medically necessary services and supplies given to treat an accidental injury sickness. The plan authorizes United HealthCare Insurance Company to determine at its discretion if a service or supply is medically necessary.
In determining medical necessity, United HealthCare Insurance Company looks to whether the service or supply is appropriate and required for the diagnosis or treatment; is safe and effective; and, there is not a less intensive or more appropriate diagnostic treatment alternative."
19. The letter of UNITED went on to state that MR. BARD’s pre-determination of benefits may be reviewed by an organization with which LUCENT contracted to provide "independent third party review" of certain appealed claims. A true and correct copy of UNITED’s October 6, 1999 letter is attached hereto, marked Exhibit "F", and made a part hereof.
20. On or about October 8, 1999, MR. BARD completed and signed the Independent Third-Party Appeal Review Request Form provided to him to enable the appeal to be submitted to the "independent third-party review", which he learned would be conducted by Island Peer Review Organization, and sent along with the Request Form his detailed letter explaining his choice of treatment, providing data in support of his choice of treatment, and requesting that UNITED’s decision to deny Proton Beam radiation therapy be reversed in light of UNITED’s inappropriate interpretation of medical necessity in light of all supporting data and recognized standards of the health care specialty involved, as well as the fact that Proton Beam radiation therapy is routinely covered by Medicare. A true and correct copy of MR. BARD’s October 8, 1999 letter, together with the Appeal Review Request Form are collectively attached hereto, marked Exhibit "G" and made a part hereof.
21. On or about October 12, 1999, Island Peer Review Organization ("IPRO") sent its letter to MR. BARD acknowledging receipt of his request for third-party review of the denied claim. IPRO indicated that the final claim determination would be completed within forty-eight (48) hours of receipt of all necessary information. IPRO further indicated that IPRO’s decision would "represent the final and binding decision of the MEP" (the Plan). A true and correct copy of IPRO’s October 12, 1999 letter is attached hereto, marked Exhibit "H" and made a part hereof.
22. On or about October 14, 1999, IPRO sent its letter to MR. BARD upholding the denial of UNITED for the Proton Beam radiation therapy. IPRO’s letter stated, in part:
"The basis for this decision is as follows:
Proton beam therapy is under evaluation as a primary treatment option (alone or combined with photons) for localized prostate cancer. Published retrospective data suggest outcomes similar to the best-reported results from conformal photon therapy. The outcomes reported cannot be considered superior, only comparable. The reviewer can not conclude that proton beam therapy ‘would be more beneficial for treatment for your prostate cancer than other treatments for prostate cancer’. Proton therapy for prostate cancer is investigational at this time." (Emphasis added.)
A true and correct copy of IPRO’s October 14, 1999 letter is attached hereto, marked Exhibit "I" and made a part hereof.
23. On or about October 20, 1999, after receiving IPRO’s October 14, 1999 letter, MR. BARD again wrote to Richard Rawson, Senior Vice President, General Counsel and Secretary of LUCENT. MR. BARD questioned the lack of data UNITED and IPRO possessed in making its determination, the standard IPRO had adopted in determining whether Proton Beam radiation therapy would be approved, and the fact that UNITED and LUCENT were no longer holding that the treatment was "investigational", but IPRO indicated it was. Although UNITED had indicated in determining medical necessity, it considered "whether the service or supply is appropriate and required for the diagnosis or treatment; is safe and effective; and, there is not a less intensive or more appropriate diagnostic treatment alternative", the standard of IPRO was entirely different. IPRO indicated "the outcomes reported cannot be considered superior, only comparable. The reviewer can not conclude that proton beam therapy ‘would be more beneficial for treatment for your prostate cancer than other treatments for prostate cancer."
A true and correct copy of MR. BARD’s October 20, 1999 letter is attached hereto, marked Exhibit "J" and made a part hereof.
24. On or about November 3, 1999, MR. BARD wrote to IPRO and requested reconsideration of its decision to uphold the original denial issued by UNITED, on new grounds. Among other things, MR. BARD pointed out to IPRO that in determining that Proton Beam radiation therapy was "investigational", IPRO had failed to consider the following facts:
• More than 25,000 patients have been treated with proton therapy, with more than 8,000 at Harvard/MGH and more than 4,000 at Loma Linda
• Tenet Healthcare Corporation, the second largest provider of healthcare services in the United States (with more than 28,000 beds and 116 hospitals) has ordered two proton beam systems for its facilities
• More than 180 insurers cover proton therapy at Loma Linda
• United, itself, has covered proton therapy for many others
• The FDA has approved proton beam equipment
• Medicare covers proton beam therapy at Loma Linda
• The American Medical Association ("AMA"), following rigorous review of proton therapy under the AMA’s "Diagnostic and Therapeutic Assessment Program", determined the efficacy and clinical utility of proton therapy and issued a CPT code specific to proton therapy and reflecting its national use as a main stream medically accepted therapeutic procedure for treatment
A true and correct copy of MR. BARD’s November 3, 1999 letter is attached hereto, marked Exhibit "K" and made a part hereof.
25. On or about November 23, 1999, Pamela A. Krol, the Director of the medical plan policy group of LUCENT wrote to MR. BARD for purposes of clarifying "the respective roles of Lucent, United HealthCare, and IPRO in claim payment decisions and notification". Interestingly, Ms. Krol cited to the definition contained within the Plan of "medical necessity", which did not comport with either UNITED’s or IPRO’s. Further, Ms. Krol cited to the definition of "experimental or investigational" contained within the Plan. "Medical necessity" is defined in the plan as follows:
"The determination of medical necessity is made by the applicable Health Care company. Care is considered medically necessary if:
• It is accepted by the health care profession in the U. S. as appropriate and effective for the condition being treated
• It is based upon recognized standards of the health care specialty involved
• It represents the most appropriate level of care; the frequency of services, the duration of services, and the site of services, depending on the seriousness of the condition being treated (such as in the hospital or in the physician’s office), and
• It is not experimental or investigational."
Experimental or Investigational" is defined as follows:
"Experimental or investigative treatment, drug, or device as determined in the
sole discretion of the . . . applicable Health Care company for coverage under the
POS options . . . is one that is described by at least one of the following criteria at
the time the treatment, drug or device is prescribed:
• The treatment, drug or device is under clinical investigation by health professionals . . . and is not generally recognized by the medical profession as tested and accepted medical practice. A treatment will be found to be accepted medical practice if, in the sole opinion of the . . . applicable Health Care Company for coverage under the POS options, . . . the contemporary standards of the medical community would deem the treatment, drug or device prescribed for use in the particular case as consistent with the exercise of sound medical judgment, in the view of a reasonable number of practitioners qualified to treat the malady diagnosed. . .
• Any medical procedure, treatment or course of treatment which is, in the sole opinion of . . . the applicable Health Care Company for coverage under the POS options, . . . (i) not proven in an objective manner to have therapeutic value or benefit; (ii) restricted to use at medical facilities carrying out scientific studies; (iii) is questionable as to its safety and effectiveness in treatment the participant’s diagnosed condition
• To determine whether a procedure is experimental or investigative, the utilization review vendor for coverage under . . . the applicable Health Care Company for coverage under the POS options, . . . will consider commissioned studies, opinions and references to or by the American Medical Association, the Food and Drug Administration, the Department of Health and Human Services, the National Institute of Health, the Council of Medical Specialty Societies, and any other association or Federal program or agency that has the authority to approved medical testing or treatment."
A true and correct copy of Ms. Krol’s November 23, 1999 letter is attached hereto, marked Exhibit "L" and made a part hereof.
26. Said denial of benefits was arbitrary and capricious as, plaintiff alleges upon information and belief that, at the time of this denial UNITED:
(a) Did not have all relevant medical records in its possession;
(b) Had not discussed MR. BARD’s medical condition and treatment with all of MR. BARD’s treating physicians and specialists;
(c) Did not consider the acceptance of Proton Beam radiation therapy in the health care profession as being appropriate and effective for prostate cancer;
(d) Did not consider that Proton Beam radiation therapy is based upon recognized standards of the health care specialty involved in the treatment of prostate cancer;
(e) Did not consider that Proton Beam radiation therapy is the most safe and effective treatment for prostate cancer, and has the least side effects of all treatment options;
(f) Did not consider that the FDA has approved proton beam equipment;
(g) Did not consider that Medicare covers proton beam therapy at Loma Linda and other facilities, as well as the fact that Medicare issued a bulletin in 1997 determining that Proton Beam therapy in treatment of prostate cancer was no longer considered experimental or investigational;
(h) Did not consider that the American Medical Association had determined the efficacy and clinical utility of proton beam therapy and had recognized its national use as a main stream, medically accepted therapeutic procedure for treatment;
(i) Did not consider that more than 180 insurers cover proton beam therapy at Loma Linda; and
(j) Did not consider that UNITED itself has covered proton beam therapy for many others.
27. UNITED failed to consider all the relevant information and data when determining that Proton Beam radiation therapy in treatment of MR. BARD’s prostate cancer was not a covered benefit.
28. To date MR. BARD has expended in excess of $35,000.00 to obtain the medically necessary, life saving treatment for his prostate cancer at Loma Linda University.
29. To date MR. BARD has not been paid the benefits due him under the terms of the subject Plan as UNITED has arbitrarily and capriciously failed and refused to live up to its contractual obligations.
FIRST CAUSE OF ACTION
[FOR RECOVERY OF PLAN BENEFITS, AGAINST ALL DEFENDANTS
PURSUANT TO 29 UNITED STATES CODE SECTION 1132(A)(1)(B)]
30. Plaintiff incorporates those allegations of the General Allegations, Jurisdiction, Parties, and Factual Background sections along with the First Cause of Action as though set forth in full in this cause of action.
31. Under the terms of the Plan, defendants agreed to provide plaintiff with medical expense benefits. Defendants failed to provide such benefits.
32. Denial of benefits to plaintiff constitutes a breach of the Plan between defendants and plaintiff. Plaintiff seeks reimbursement and compensation for any and all benefits he would have received as a result of defendants’ failure to provide coverage in an amount presently unknown but to be set forth at the time of trial.
33. Defendants have arbitrarily and capriciously breached the obligations set forth in the Plan. Defendants have arbitrarily and capriciously breached their obligations under the ERISA policy to provide plaintiff benefits even though plaintiff's benefits are covered under the terms of the Plan.
34. As a direct and proximate result of the aforementioned conduct of defendants in failing to provide coverage and pay benefits to plaintiff, plaintiff has been damaged in an amount equal to the amount of benefits to which plaintiff would have been entitled under the terms of the Plan.
35. As a direct and proximate result of the aforesaid conduct of defendants in failing to provide coverage and benefits for plaintiff's disability, plaintiff has suffered, and will continue to suffer in the future, damages under the Plan, plus interest and other economic and consequential damages, for a total amount to be determined at the time of trial.
36. Plaintiff is entitled to prejudgment interest at the appropriate rate.
SECOND CAUSE OF ACTION
[FOR BREACH OF FIDUCIARY DUTY, AGAINST ALL DEFENDANTS,
PURSUANT TO 29 U.S.C. SECTIONS 1104, 1105, 1009 AND 1132(A)]
37. Plaintiff incorporates those allegations of the General Allegations, Jurisdiction, Parties, and Factual Background sections along with the First Cause of Action as though set forth in full in this cause of action.
38. Plaintiff alleges upon information and belief, defendants relied upon an inappropriate exclusion in the Plan for the benefits sought by plaintiff, and did not take into consideration all relevant medical evidence regarding MR. BARD’s medical condition and appropriate treatment for the same and represented to plaintiff that the treatment sought was not a covered benefit.
39. Defendants have denied and refused to provide benefits under the Plan to plaintiff and to other similarly situated plan members.
40. Defendants are fiduciaries within the meaning of 29 U.S.C. section 1001 et. seq., specifically 29 U.S.C. section 1002(21)(A), and are subject to the duties and liabilities set forth in 29 U.S.C. sections 1104, 1105 and 1109.
41. 29 U.S.C. section 1104(a) specifically provides that:
. . .a fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and - for the exclusive purpose of:
providing benefits to participants and beneficiaries; and defraying reasonable expenses of administering the plan; with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims; . . . in accordance with the documents and instruments governing the plan insofar as such documents and instruments are consistent with the provisions of this subchapter..." 29 U.S.C. section 1104(a) (Emphasis added.)
42. As alleged herein and in the General Allegations above, defendants have breached their fiduciary duties and obligations by interfering with plan members’ rights to receive benefits under the Plan.
43. As alleged herein and in the General Allegations above, defendants have breached their fiduciary duties and obligations in the following respects:
(a) Defendants failed to make and authorize benefit payments to plan members at a time when defendants knew or should have known that plan members were entitled to said benefits under the terms of the Plan;
(b) Defendants unreasonably and/or arbitrarily withheld payments from plan members, in bad faith, knowing the plan members’ claims for benefits under the Plan to be valid;
(c) Defendants have unreasonably, arbitrarily and in bad faith failed to pay plan members benefits at a time when defendants had insufficient information to justify such action;
(d) Defendants have unreasonably, arbitrarily and in bad faith failed to pay benefits without considering all the supporting information and data bearing upon claims for proton beam radiation therapy;
(e) Defendants have unreasonably misrepresented to plan members pertinent provisions relating to the Plan and benefits in issue by, among other things, using the wrong definition of medical necessity and experimental and investigational, and therefore wrongfully denied medically necessary, appropriate treatment;
(f) Defendants have failed to provide a reasonable explanation of the basis relied upon in the Plan, in relation to the applicable facts, for the denial of plan members’ claims for benefits; and
(g) Defendants have knowingly and intentionally failed and refused to abide by the terms of the Plan, relying upon standards, criteria and definitions drawn from outside of the Plan, which standards, criteria and definitions are not incorporated into the Plan.
44. Such conduct of defendants as alleged herein and in the General Allegations above, is a breach of the defendants’ fiduciary duties and obligations, in that the defendants were not, and are not, discharging their duties with respect to the Plan solely in the interest of plaintiff or other participants and beneficiaries and for the exclusive purpose of providing benefits to plaintiff and other participants and beneficiaries and defendants have failed to discharge their duties in accordance with the documents and instruments governing the respective Plan.
45. Plaintiff is informed and believes and based upon such information and belief alleges that in order to justify its imprudent, unlawful, unfair and unreasonable denials of benefits to plaintiff and other plan participants and beneficiaries, the defendants have disregarded and ignored the treating physician's determinations that the plaintiff and other plan participants and beneficiaries are entitled to the benefits.
46. Plaintiff is informed and believes and based upon such information and belief alleges that defendants are continuing to breach their fiduciary responsibilities, obligations, and duties as alleged above, and that such breaches are widespread practices engaged in by defendants as to all insureds under the subject plan.
47. As a direct and proximate result of the conduct alleged herein and in the General Allegations above, plaintiff and other plan participants have been injured by reason of the denial of medically necessary, appropriate treatment that should be a covered benefit under the plan.
48. Plaintiff therefore respectfully requests the issuance of a permanent injunction precluding defendants from denying plan members proton beam radiation therapy in treatment of prostate cancer, when such treatment is medically necessary and physician recommended, from using inappropriate criteria and standards in the determination of medical necessity, and from providing false and unreasonable explanations for said denials.
THIRD CAUSE OF ACTION
[FOR AN AWARD OF ATTORNEYS' FEES AND COSTS AGAINST ALL DEFENDANTS, PURSUANT TO 29 U.S.C. SECTION 1132(G)(1)]
49. Plaintiff incorporates those allegations of the General Allegations, Jurisdiction, Parties, and Factual Background sections along with the First and Second Causes of Action as though set forth in full in this cause of action.
50. 29 U.S.C. section 1132(g)(1) authorizes this Court to award reasonable attorneys' fees and costs of action to either party in an ERISA action.
51. As a result of the actions and failings of the defendants, plaintiff has retained the services of legal counsel and has necessarily incurred attorneys' fees and costs in prosecuting this action. Further, plaintiff anticipates incurring additional attorneys' fees and costs in hereafter pursuing this action, all in a final amount which is currently unknown. Plaintiff therefore requests an award of reasonable attorneys' fees and costs.
PRAYER FOR RELIEF
WHEREFORE, plaintiff prays for judgment as follows:
For a declaration regarding the defendants’ noncompliance with minimum requirements of ERISA and other federal and state laws in connection with the denial of benefits;
For benefits payable under the Plan to reimburse plaintiff for payments that plaintiff has been entitled to receive;
For an award of prejudgment interest;
For an award of reasonable attorneys' fees pursuant to 29 U.S.C. section 1132(g)(1);
For costs incurred;
6. For an injuction to issue against defendantsas prayed above; and
7. For such other and further relief as the Court deems appropriate.
Dated: March _____, 2000. SHERNOFF, BIDART, DARRAS & DILLON
MICHAEL J. BIDART
Attorneys for Plaintiff
Plaintiff hereby demands a trial by jury as provided by Rule 38(a) of the Federal Rules of Civil Procedure.
Dated: March _____, 2000. SHERNOFF, BIDART, DARRAS & DILLON
MICHAEL J. BIDART
Attorneys for Plaintif