Greenwell v. Grp. Health Plan for Emps. of Sensus USA Inc.

664 F.Supp.3d 617

Jeffrey GREENWELL, Plaintiff, v. GROUP HEALTH PLAN FOR EMPLOYEES OF SENSUS USA INC.,and Blue Cross Blue Shield of North Carolina, Defendants.

NO. 5:19-CV-577-FL

United States District Court, E.D. North Carolina, Western Division

Signed March 27, 2023

Norris A. Adams, II, Essex Richards, PA, Charlotte, NC, Elizabeth K. Green, Lisa Sue Kantor, Timothy James Rozelle, Kantor & Kantor, LLP, Northridge, CA, Frank Anthony Florio, Maria Dolores Garcia, Robert John Neary, Kozyak Tropin & Throckmorton LLP, Coral Gables, FL, Stephanie A. Casey, Colson Hicks Eidson, Coral Gables, FL, for Plaintiff.

Charles F. Seemann, III, Lindsey H. Chopin, Adam Reid Carlisle, Jackson Lewis, P.C., New Orleans, LA, Janean B. Dunn, Jason Vincent Federmack, Jackson Lewis P.C., Raleigh, NC, for Defendant Group Health Plan for Employees of Sensus USA Inc.

Jennifer K. Van Zant, Claire Regina O'Brien, Brooks Pierce McLendon Humphrey & Leonard, L.L.P., Greensboro, NC, Michael Christopher Drew, Covert J. Geary, Tyler John Rench, Jones Walker LLP, New Orleans, LA, Amy Kathleen Anderson, Jones Walker LLP, Houston, TX, for Defendant Blue Cross Blue Shield of North Carolina.

ORDER

LOUISE W. FLANAGAN, United States District Judge

This matter comes before the court on the parties' cross-motions for summary judgment, (DE 152, 155, and 158), and plaintiff's motion for attorneys' fees and costs (DE 130). The issues raised in the summary judgment motions are ripe for ruling. For the following reasons, defendants' motions are denied, plaintiff's motion for summary judgment is granted, and plaintiff's motion for attorneys' fees and costs is denied without prejudice.

STATEMENT OF THE CASE

This matter arising under the Employee Retirement Income Security Act of 1974 ("ERISA") returns to the court following remand to defendants for further administrative proceedings, ordered by the court in its March 29, 2022, order (hereinafter, the court's "first summary judgment order"). Those proceedings now completed, the court considers again cross-motions for summary judgment by the parties concerning defendants' renewed denial of plaintiff's claim for benefits. The court sets forth below a summary of the procedural history of this case bearing upon the instant motions. Reference is made to the court's first summary judgment order for further description of proceedings taking place prior to that order.

Plaintiff, a former prostate cancer patient, commenced this putative class action July 19, 2019, in the United States District Court for the Northern District of Texas,¹ asserting claims for denial of coverage through defendant Group Health Plan for Employees of Sensus USA, Inc. ("Sensus Group Health"), his employer-provided health insurance plan, for a medical procedure called proton therapy that treats that condition. Defendant Blue Cross Blue Shield of North Carolina ("Blue Cross") provided administrative services, and in that role, it denied plaintiff's claim.

This court granted in part and denied in part defendants' motions to dismiss on December 4, 2020, rendering plaintiff's claim to recover benefits pursuant to 29 U.S.C. § 1132(a)(1)(B) the only one remaining. After a period of limited discovery, defendant Blue Cross filed the first administrative record, comprised of relevant policies and materials from plaintiff's various appeals of the denial of his claim, including plaintiff's medical record, certain scientific papers, and the adverse determinations at each stage. The parties filed cross-motions for summary judgment July 29, 2021. In the court's first summary judgment order, the court denied defendants' motions for summary judgment, granted in part and denied in part plaintiff's motion for summary judgment, and remanded plaintiff's claim for benefits to defendant Blue Cross for further administrative proceedings. (See DE 129). Thereafter, plaintiff filed the instant motion for attorneys' fees.

After defendant Blue Cross obtained two extensions of time to render a decision, the parties notified the court of defendant Blue Cross's final decision to uphold its denial of plaintiff's claim on appeal via status report filed September 14, 2022. Defendant Blue Cross filed a supplemental administrative record, including those documents that had been part of the original administrative record with continued relevance to the proceedings on remand, relevant policies and materials from plaintiff's appeals following Blue Cross's adverse decision on remand, scientific papers, the adverse determinations at each stage, correspondence between opposing parties' counsel, and some correspondence between defendant Blue Cross and its reviewers. The instant renewed motions for summary judgment followed October 7, 2022.²

STATEMENT OF UNDISPUTED FACTS

Plaintiff participated in a self-funded health benefit plan (the "plan") sponsored and administered by defendant Sensus USA for which defendant Blue Cross Blue Shield provided administrative services, "including review of submitted claims under the plan." (Pl.'s 2d Opp. Stmt. (DE 16) ¶¶ I(a)-(e)).³ In June 2015, plaintiff was diagnosed with prostate cancer. (Id. ¶ II(a)). Plaintiff consulted with doctors at the MD Anderson Proton Cancer Center in Houston, Texas, (id. ¶ II(b)), including Quynh-Nhu Nguyen, MD (R. at 110),⁴ and eventually underwent a prostatectomy. (Def. Blue Cross's 1st Opp. Stmt. (DE 110) ¶ 14). Where, following surgery, plaintiff still had "evidence of systemic disease," (Id. ¶ 24; R. at 386), his physicians believed proton therapy was required. (Def. Blue Cross's 2d Opp. Stmt. (DE 154) ¶ II(c); see R. at 38).

Proton therapy, also called proton beam radiation therapy, proton beam therapy, "PBT," or "PBRT," is a "technology for delivering . . . radiation with positively charged atomic particles." (R. Supp. at 1066; see Def. Blue Cross's 2d Opp. Stmt (DE 110) ¶ II(c)). Conventional radiation therapy, also called photon therapy, which includes intensity modulated radiation therapy ("IMRT") as a subset, involves "electromagnetic (i.e., photon) radiation." (Pl.'s Opp. Stmt. (DE 114) ¶¶ I(q)-(r); R. at 24). "Proponents of proton therapy argue that it could have advantages over . . . photon-based radiation in certain clinical circumstances [because it] deliver[s] less radiation dose to some of the surrounding normal tissues." (R. Supp. ¶ 1176). Proton therapy can be, on average, significantly more expensive than" IMRT. (Pl.'s Opp. Stmt. (DE 114) ¶ III(d); R. at 24).

In March 2016, plaintiff requested prior approval of coverage for proton therapy from defendant Blue Cross. (Id. ¶ III(f)). On March 30, 2016, defendant Blue Cross denied the request, explaining that it considered such therapy "investigational" and asserting that it had "found insufficient scientific evidence in peer-reviewed medical literature to show a beneficial effect on health outcomes, or that [proton therapy] is as beneficial as any established alternatives." (Id. ¶ III(i)). Plaintiff elected to move forward with proton therapy, paying for his cancer treatment out of pocket. (See R. at 860-936).

Defendant Blue Cross does not cover "[s]ervices or supplies deemed not medically necessary." (R. at 984). Its "Benefit Booklet" defines "medically necessary as [t]hose covered services or supplies that are:

(a) Provided for the diagnosis, treatment, cure, or relief of a health condition, illness, injury or disease, and, except for clinical trials as described under the Plan, not for experimental, investigational, or cosmetic purposes,

(b) Necessary for and appropriate to the diagnosis, treatment, cure, or relief of a health condition, illness, injury, disease, or its symptoms,

(c) Within the generally accepted standards of medical care in the community, and

(d) Not solely for the convenience of the insured, the insured's family, or the provider.

For medically necessary services, [defendant Blue Cross] may compare the cost effectiveness of alternative services . . . , when determining which of the services . . . will be covered[.]

(R. Supp. at 1408). It defines experimental and investigational services as those "that BCBSNC does not recognize as standard medical care for the condition, disease, illness, or injury being treated." (Id.). It enumerates the following relevant criteria for making this determination:

(a) Services . . . requiring federal or other governmental body approval, such as drugs and devices that do not have unrestricted market approval from the U.S. Food and Drug Administration . . . .

(b) There is insufficient or inconclusive scientific evidence in peer-reviewed medical literature to permit [defendant Blue Cross's] evaluation of the therapeutic value of the service or supply

(c) There is inconclusive evidence that the service or supply has a beneficial effect on health outcomes

(d) The service or supply under consideration is not as beneficial as any established alternatives

(e) There is insufficient information or inconclusive scientific evidence that, when utilized in a non-investigational setting, the service or supply has a beneficial effect on health outcomes and is as beneficial as any established alternatives.

If a service or supply meets one or more of the criteria, it is deemed investigational . . . . Determinations are made solely by [defendant Blue Cross] after independent review of scientific data. Opinions of experts in a particular field and/or opinions and assessments of nationally recognized review organizations may also be considered by [defendant Blue Cross] but are not determinative or conclusive.

(Id.).

Plaintiff's first round of appeals is described in detail in the court's first summary judgment order. Plaintiff and his physician sought review of defendant Blue Cross's denial of coverage five times, on April 21, 2016, (R. at 35); June 13, 2016, (R. at 83-84); June 24, 2016, (R. at 124); June 30, 2016, (R. at 336-38); and July 19, 2016, (R. at 492), and defendant Blue Cross upheld denial at each stage. On June 17, 2016, defenda...