Estate of Gifford v. Operating Eng'rs 139 Health Benefit Fund

678 F.Supp.3d 1046

ESTATE OF Michael GIFFORD,BY its special administrator, Suzanne GIFFORD, Plaintiff, v. OPERATING ENGINEERS 139 HEALTH BENEFIT FUND, Defendant.

Case No. 22-C-0221

United States District Court, E.D. Wisconsin

Signed June 23, 2023

Patrick M. Harvey, Husch Blackwell LLP, Milwaukee, WI, for Plaintiff.

Amanda R. Cefalu, Reinhart Boerner Van Deuren SC, Minneapolis, MN, Danielle E. Marocchi, Malinda J. Eskra, Reinhart Boerner Van Deuren SC, Milwaukee, WI, for Defendant.

DECISION AND ORDER

LYNN ADELMAN, United States District Judge

Michael Gifford suffered a stoke and was admitted to a hospital, where he received emergency treatment. During treatment for the stroke, hospital staff discovered what they thought was a small brain aneurysm. Over the next several days, Gifford received treatment for the aneurysm from a neurosurgeon who was not in the PPO network of Gifford's health plan. That treatment culminated in a brain surgery from which Gifford never regained consciousness. He died a few days later.

Gifford's health plan, the Operating Engineers 139 Health Benefit Fund (the "Plan"), covers out-of-network services only in the event of an emergency. After a claim for payment for the neurosurgeon's services was made, the Plan determined that Gifford's aneurysm did not require emergency treatment and that the neurosurgeon's involvement was not medically necessary. It denied the claim.

Gifford's estate (the "Estate") brings this action under the Employee Retirement Income Security Act of 1974 ("ERISA") against the Plan. Primarily, the estate brings a claim for denial of benefits under 29 U.S.C. § 1132(a)(1)(B). However, it also brings a claim for appropriate equitable relief under 29 U.S.C. § 1132(a)(3), in which it alleges that the summary plan description ("SPD") was inadequate in certain respects. Before me now are: (1) the Estate's motion for partial summary judgment on its claim for denial of benefits; (2) the Plan's motion for summary judgment on all claims; (3) the Plan's motion for a protective order to prevent discovery outside the administrative record; (4) the Plan's motion to strike a declaration; and (5) multiple motions to restrict the public's access to filings that reveal Gifford's medical information.

I. BACKGROUND

Gifford was a beneficiary of the Operating Engineers 139 Health Benefit Fund, which is a self-insured employee benefit plan established by the International Union of Operating Engineers Local 139 and its signatory employers to provide medical benefits to operating engineers and their dependents. The Plan is administered by a Board of Trustees. The Plan's SPD grants the Trustees discretion to interpret the Plan and determine eligibility for benefits. It provides:

The Trustees or, where Trustee responsibility has been delegated to others, the other persons, will be the sole judges of the standard of proof required in any case and the application and interpretation of the Plan. Decisions of the Trustees or their delegates are final and binding. The Trustees or their delegates have broad discretion to determine eligibility for benefits and to interpret Plan language and their decisions will be accorded judicial deference in any subsequent action at a court or administrative proceeding.

Benefits under this Plan will be paid only when the Trustees decide, or persons delegated by the Trustees decide, in their discretion, that you or a beneficiary is entitled to benefits in accordance with the terms of the Plan.

(ECF No. 33-1 at FUND000133 (emphasis in original).)

On July 4, 2021, Gifford was admitted to Froedtert South Hospital in Kenosha County, Wisconsin, where doctors determined that he was experiencing a stroke. After a neurology consultation, doctors treated Gifford with a tissue plasminogen activator ("tPA" or "TPA"). Hospital records reflect that, "[s]hortly after receiving TPA, [Gifford's] weakness disappeared," and "[h]e was able to move his right upper and lower extremity just like prior to his symptoms." (ECF No. 33-2 at FUND000161.) Those records also reflect that Gifford's "symptoms resolved with TPA" (FUND000168) and that the tPA caused "complete resolution of symptoms" (FUND000180).

Because Gifford received the tPA, doctors required him to remain in the hospital under observation for 24 hours. On July 5, 2021, using the results of imaging performed as part of the treatment for the stroke, doctors diagnosed Gifford with a brain aneurysm. (FUND000167.) Specifically, using the results of a CT scan performed in the emergency department, doctors determined that Gifford had a "4 × 5mm anterior communicating artery aneurysm with prior evidence of bleeding." (FUND000180.) Hospital records describe the aneurysm as "incidental" and reflect that doctors thought that it would "need monitoring occasionally." (FUND000167) However, the doctors also referred Gifford to neurosurgery for a consultation that was scheduled for the next day. (Id.)

On July 6, 2021, Gifford consulted with Dr. Arvind Ahuja, a neurosurgeon who is not in the Plan's PPO network. After meeting with Gifford, Dr. Ahuja performed an angiogram that day to further evaluate the aneurysm. The angiogram revealed that the aneurysm was larger than previously believed and showed "evidence of prior bleeding." (FUND00172.) After Dr. Ahuja discussed his findings with Gifford, it was agreed that he would have brain surgery to "clip" the aneurysm. The surgery was scheduled for the next day. Dr. Ahuja performed the surgery on July 7, 2021. Medical records indicate that the clipping surgery "was apparently very challenging and complicated by bleeding issues." (FUND000188.) Gifford did not regain consciousness after the surgery, and he died in the hospital on July 18, 2021.

Later, Dr. Ahuja's medical practice, Neurosurgery and Endovascular Associates, submitted a claim to the Plan for payment for the services provided to Gifford. The total amount billed was $189,208. (FUND000005.) The Plan denied the claim on the ground that Dr. Ahuja was an out-of-network provider and the services he rendered were not provided in the event of an emergency. The Plan's decision was based on the following Plan language:

Out-of-Network

The Plan maintains a broad network of providers who are part of the PPO network. Out-of-network benefits are not covered under the Plan, subject to the following exceptions:

• In the event of an emergency, out-of-network treatment and services are covered. This also applies to emergency ambulance services

. . . .

Although the above listed services may be covered on an out-of-network basis, they are still subject to all other Plan limits and exclusions, including but not limited to deductibles, out-of-pocket maximums, Usual, Customary, and Reasonable limitations, and Medical Necessity.

(FUND000086.)

Following the denial, Suzanne Gifford, Mr. Gifford's widow, sent a letter to the Plan appealing the Fund's determination that Dr. Ahuja's treatment was not performed in the event of an emergency. (FUND000001.) In the appeal letter, Mrs. Gifford expressed her personal belief that the aneurysm required emergency brain surgery. She did not provide additional information about the surgery, such as medical records or a statement from Dr. Ahuja or another physician opining that the aneurysm required emergency surgery. Under the Plan's appeal procedures, Mrs. Gifford had the right to provide such additional information. (FUND000122.)

After receiving Mrs. Gifford's appeal, the Plan contacted two outside medical review companies and asked them to review Mr. Gifford's medical records and determine if the surgery was due to an "emergency" and/or "medically necessary." The Plan provided these companies with the medical records that are in the district-court record at ECF No. 33-2. Dr. Luc Jasmin, a board-certified neurosurgeon working for Case Management Specialists, was one of the doctors to review these records. Dr. Jasmin's report, dated October 20, 2021, states that he reviewed "Hospital Documentation" from "Froedtert South" that was dated July 4, 2021 through July 19, 2021. (FUND000010.) The report states that the Plan had asked Dr. Jasmin to determine whether the surgical clipping of the aneurysm was considered medically necessary. Dr. Jasmin wrote that it was not. He explained that the aneurysm "was an incidental finding and could have been addressed in the following weeks on an outpatient basis." (FUND000011.) He also stated that there was "no indication that this aneurysm had bled or was about to rupture," and that "[n]o evidence was provided that there was an association between the unruptured aneurysm and the stroke." (Id.) Dr. Jasmin also opined that performing the aneurysm surgery so soon after Gifford's stroke likely exposed him to "a higher risk of complication than if it had been postponed to a later date." (Id.) Dr. Jasmin certified that his compensation was not determined by the outcome of his review. (FUND000012.)

The second outside neurosurgeon who reviewed the medical records was Dr. Paul Kaloostian of Medical Review Institute of America, LLC. His report states that it was based on "submitted clinical documentation." (FUND000007.) He states that the Plan had asked him to determine whether a medical emergency required use of the hospital's staff neurosurgeon to treat the aneurysm, or whether there was time to contact an in-network neurosurgeon. (Id.) Dr. Kaloostian wrote that the medical records showed that a CT of the head performed as part of the treatment for the stroke revealed a "4mm anterior communicating artery (Acom) aneurysm non ruptured." (Id.) He then concluded:

[T]here was no emergency and no stroke . . . noted for the date of service 07/07/21. The ACOMM aneurysm is small and completely incidental. The treating provider had time to contact the insurance regarding out of network services.

(Id.) Dr. Kaloostian also certified that his compensation did not depend on the outcome of his review. (FUND000008.)

The Plan's...