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Weiss v. Banner Health

United States District Court, D. Colorado

September 19, 2019





         This matter is before the Court following the denial of healthcare benefits governed by the Employee Retirement Income Security Act (“ERISA”). Defendant Banner Health is the plan sponsor of the Banner Health Master Health and Welfare Benefit Plan (“the Plan”). Plaintiff Jennifer Weiss was an employee of Banner Health and a participant under the Plan.

         Plaintiff submitted a pre-authorization claim for knee surgery involving a procedure known as Autologous Chondrocyte Implantation (“ACI”). Banner Plan Administration (“Banner”), the plan administrator, denied her claim and administrative appeal because the procedure did not meet the Plan’s definition of “medically necessary.” Upon Ms. Weiss’s request, a final external review was conducted and the reviewer upheld the denial of the claim. Ms. Weiss then filed this lawsuit, arguing that Banner wrongfully denied her claim.

         Banner previously filed a Motion to Dismiss, asserting that dismissal was warranted because Plaintiff failed to file the case in the United States District of Arizona as required by the forum selection clause in the Plan, and within the one year contractual limitations period provided by the Plan. The Court denied the motion in an Order of December 20, 2017 (Doc. 35).[1] Banner now reasserts these arguments as a basis to deny Plaintiff's claim, but the Court denies them for the same reasons expressed in the December 20, 2017 Order. Nothing in the Administrative Record now before the Court changes that analysis, and Banner has not shown any grounds that justify reconsideration. See Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000).

         This matter has been fully briefed by the parties. (Docs. 51, 52, 56.) The parties also filed a Joint Motion for Determination (Doc. 57), which is granted consistent with this Order.

         II. FACTS

         Plaintiff worked for Banner as an ICU nurse (Docs. 51, 52, Administrative Record (“R.”) at 184-188) and was covered by the Plan. (R. 136, 314, 338.)[2] In 2013, Plaintiff began to experience intractable knee pain with walking, standing, lifting, climbing, and other activities. (R. 138, 144.) She was diagnosed with an osteochondral injury, with a “full thickness chondral lesion” of the right knee/patella. (R. 134, 144, 338.)

         After the failure of conservative treatment and a surgical procedure (R. 138, 295), Dr. Sides, the Banner-employed orthopedic surgeon who was initially treating Plaintiff, referred her in May 2014 to orthopedic surgeon Dr. Gersoff “to assess the need for . . . ACI.” (R. 135-138, 150.) Plaintiff contends that ACI surgery has been recognized for over 20 years in lieu of knee replacement.[3]

         On August 7, 2014, Dr. Gersoff, who has extensive experience with ACI, requested that Banner pre-authorize ACI surgery. (R. 143-44, 154-164, 222.) He wrote a supporting letter stating that “[b]ased on my experience, the literature on treating cartilage defects, the nature of the injury and the patient’s history, I believe ACI surgery is the best treatment option. I feel it is medically necessary. . . .” (R. 158) (emphasis in original.) Dr. Gersoff also stated that there is a “wealth of clinical evidence supporting” ACI, including a recent published article. (Id.)

         By letter dated August 11, 2014, Banner denied the request for authorization of ACI surgery based upon applicable the Milliman Care Guidelines (“Milliman Guidelines”). (R. 171-72, see also 169-70.) While it noted that the request for surgery “was reviewed by our doctor reviewer,” it stated that it “uses [Milliman Guidelines] for decision making.” Banner concluded:

Per [Milliman Guidelines] A-0415 Autolgous [sic] Chondrocyte Implantation, Knee, Current role remains uncertain. Based on review of existing evidence, there are currently no clinical indications for this technology.

(R. 171.) Banner asserts that Milliman Guidelines A-0415 references several studies and various medical literature to conclude there is insufficient evidence to establish that ACI surgery is medically proven as effective treatment. (R. 165-67.)

         Plaintiff submitted an administrative appeal pursuant to the Plan, which included another letter from Dr. Gersoff in support of the ACI surgery. (R. 184-88, 222-23.) The Plan provides that Banner will consult with a medical expert during the review of the claim. Banner selected James S. Kort, M.D., an orthopedic surgeon who works for Banner, to do the review. (R. 181, 291-96, 338-39.) It advised Dr. Kort that it had relied on the Milliman Guidelines in finding that the ACI surgery was not medically necessary. (R. 292, 294-96.)

         Dr. Kort stated that he would approve the procedure. (R. 296.) He noted that he had “reviewed materials transmitted to him including a limited medical history, operative report, and an appeal by the patient and treating physician and literature submitted by both the reviewing physician and treating physician.” (R. 293.) Dr. Kort further stated that while he had never performed the procedure, he had “read a number of articles regarding the procedure,” attended meetings discussing it, and served as chairperson of the Connecticut State Medical Society Committee on the Medical Aspects of Sports. (Id.)

         Dr. Kort then stated that “ACI is not a new procedure”; that “a great deal of laboratory and clinical research has been performed to try to determine its effectiveness, role in orthopedic management and to improve its application”; and that “[t]his research has been in the mainstream of orthopedic surgery involving highly respected orthopedic surgeons at the leading hospitals.” (R. 294.) He further stated that “ACI is a respected technique and not a ‘fringe’ procedure” and that it “is not purely experimental in that there is a significant body of literature and opinion supporting its application and effectiveness.” (Id.) “Review of the operative note and approximately 50 pages of criteria for the procedure by numerous insurance carriers would indicate that the patient does meet the published criteria.” (Id.) Dr. Kort concluded: “[I]t is my opinion that the proposed procedure is reasonable and appropriate from a purely orthopedic view point.” (R. 295-96.)

         Banner then issued an “Appeal Notice of Denial Determination,” upholding the original benefit determination and denying the request for coverage of ACI. (R.301-04.) It stated that “[the] Appeals & Grievance Committee carefully considered all the information submitted, along with the application of the Plan provisions,” and that the appeal “was reviewed by a medical doctor who was involved in the initial review of this request.” (R. 301.) It did not mention Dr. Kort by name or mention that Dr. Kort found ACI reasonable and appropriate.

         As to the findings relevant to the determination, Banner stated that “Banner Health Plan utilizes Milliman Guidelines . . . in making decisions,” and that this was “a non-covered service” under the Milliman Guidelines. (R. 301.) The same language from the Guidelines was cited by Banner on the appeal as in the initial denial. (R. 172, 301; see also R. 338-39 (“Denial upheld by A&G Committee based on” the Milliman Guidelines)).

         Plaintiff thereafter requested a voluntary “external review request” under the terms of the Plan. (R. 314, 320, 404-06.) The Request for External Review stated that Plaintiff disagreed with Banner’s decision “because there was absolutely no orthopedic surgeon/specialist representation in any of Banner’s appeal decisions.” (R. 404.) Plaintiff further stated in the Request that “[t]here is a large amount of documentation provided that supports [ACI] especially in my specific case that needs to be thoroughly reviewed by an orthopedic surgeon/specialist who has expertise in this procedure.” (Id.)

         Medical Review Institute of America, Inc. (“MRI”), an independent review organization, conducted the external review of the claim. (R. 405-412.) MRI noted that the reason given to it for the previous denial by Banner was the Milliman Guidelines. (R.406.) MRI retained an unidentified board-certified orthopedic surgeon to conduct the review. (Id.) It upheld the denial of Banner’s adverse determinations in a letter to Plaintiff dated February 20, 2015. (R. 405-12.)

         MRI stated in its denial that “[i]n the performance of the review, we reviewed the medical records and documentation provided by the involved parties.” (R. 405.) Its “Final External Review Decision” upheld Banner’s determination because “[t]he proposed Autonomous Chondrocyte Implantation Knee is not ...

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