Health Administration Responsibility Project
Litigating an ERISA case without a Lawyer
This page is incomplete and under construction. Your input is welcome
You only want do this if there's absolutely no alternative!
Firstly, You don't want to deal with ERISA!
It takes away your right to compensatory, consequential and punitive damages.
It takes away your right to a jury trial. It makes you go to Federal Court.
It makes you overcome the presumption that whatever your HMO did was right.
You only proceed under ERISA if the law forces you to do so. See below under
Does ERISA govern to see if your insurance comes under
ERISA jurisdiction. Even if it does, you may be able to avoid ERISA if your
complaint is one against a doctor or doctors for pure medical malpractice.
See the criteria below at Types of cases covered.
Secondly, You don't want to do this Pro Se!
Especially in Federal Court, the procedures are a mine field that you have
to stumble through, while the HMO's lawyers have the map. They will paper you
with picayune motions, just waiting for you to make a little mistake that will
get your case thrown out without even a hearing. Unfortunately, it may be very
hard for you to get a lawyer to take your case. Since you can't ask for any
damages, there'll be no money for them to take a contingency percentage of.
It's true that ERISA allows the judge to award reasonable attorney's fees at
his discretion, if you win, but he doesn't have to, and many lawyers just don't
want to take the risk. So you may have to proceed Pro Se, but only if all your
attempts to get a lawyer fail.
Get treated first! Sue for reimbursement at your leisure.
And you'll have plenty of leisure! There
is a shortage of federal judges, and civil cases, such as yours, are
bumped every time a criminal case comes along. Plan on several Years of
litigation. If the benefit the HMO is denying is at all urgent, you can't
wait till a judge tells them to give it to you. Beg, borrow, or steal the
money to get it done, and then sue for reimbursement. If you die during the
course of the litigation, the HMO gets off scot free, since your family's
suit for 'wrongful death' will be preempted and thrown out of court.
- Does ERISA govern?
ERISA governs if your insurance is part of:
ERISA does not govern if:
- a "plan, fund or program"
- "Established or maintained" by an employer (or an employee group, like a union)
- For the purpose of providing medical, disability, or other enumerated benefits
- To participants or beneficiaries.
- Donovan v. Dillingham, 688 F2d 1367, 1371 (11th Cir. 1982)
- Your insurance is unconnected with your employment, or
- The covered person is self-employed (eg: an independent contractor
or sole proprietor without covered employees) (29 CFR 2510.3-3(b)), or
- is a partner in a professional partnership (without covered employees)(29 CFR 2510.3-3(c)), or
- the insurance IS connected with your employment, but your employer
- is an agency of any level of government, or
- is a religious organization (29 USC 1002(l)), or
- is minimally involved, i.e.:
- The employer makes no contributions toward the premiums, and
- Participation is completely voluntary for the employees, and
- The employer doesn't "endorse" the program, and
- The employer does no more than
- allow the insurer to publicize it to the employees,
- collect premiums through the payroll deduction,
- and remit them to the insurer; and
- The employer gets no compensation except for its administrative services.
- 29 CFR 250.3-1(j)
- Types of cases covered : Denial of Care
There are very few things you can sue an ERISA plan for. These are spelled
out in the ERISA law itself in sec. 502(a)(1)(B).
The rules boil down to this: You can sue to make them
Notice what you CAN'T sue for: Suppose that a consultant recommended a test for
cancer, and your primary care physician refused, because he's on a capitation contract
and would lose money,
and your undiscovered cancer goes on to cost you $1,000,000 in uncovered medical
expenses, and then you die of it.
- give you a service they've denied which you're entitled to under the plan, or
- reimburse you for it, if you've paid for it yourself.
You (or your family or estate) can't sue for one cent. Not for the negligence
or even intentional wrongdoing of the doctor, not for the uncovered expenses caused by his
denial of care, not for the wrongful death. All those are State, not Federal causes of
action, and are preempted by sec. 514(a)
All you could sue for would be the cost of the initial denied cancer test,
but since that would no longer do you any good, you couldn't even get that!
There IS one other class of things you can sue for, but since it's not against the plan or HMO,
we won't cover it here. That is a straight medical malpractice suit in State court
against the doctor for negligence which is in no way connected with denial of coverage.
For instance: giving the wrong drug, cutting off the wrong leg, making the wrong diagnosis.
Since this sort of case is not subject to the restrictions of ERISA, and you may ask for
compensatory, consequential, and punitive damages, it should be much easier for you to
find an attorney to take the case on a contingency, so we won't consider it further here.
So, what are the reasons the HMO may give for denying recommended care?
a. Non-medical reason
1. Not a covered service
2. Pre-existing condition
3. Lying on the Application
b. Medical reasons
1. Not medically necessary
2. Experimental or investigational
- Exhaustion of remedies
- Mandatory Arbitration
- Options short of suit
c. Patient Advocates
- Record keeping
- Initial Discovery : Plan Documents
- Federal Court
Checklist for filing Civil Documents
General Civil Filing Information
Common Mistakes made in Civil Cases
Federal Rules of Civil Procedure
c. Local Rules,
Central District of California
Requirements of Specific Judges, Central District of California
- Timing requirements
- The Complaint, with samples
Denial of Liver Transplant,
b. Denial of Proton Beam Therapy
- Service on defendant
- Defending against a Motion to Dismiss, with samples
- Formal Discovery, with samples
- Summary Judgment Motions, with samples
- The Trial
a. The Basics
Tips on Practice in Federal Court
Federal Rules of Evidence
- Post-Trial Motions, with samples
- Collecting your Judgment
- Appendix: Links to codes and cases
Please send comments, suggestions and relevant citations to