Through his practice, McCulloch Orthopaedic Surgical Services, Kenneth McCulloch, MD, filed suit against Aetna for additional reimbursement after performing two knee surgeries for the same patient on an out-of-network basis, according to Justia. Dr. McCulloch’s office maintained the patient, who held Aetna insurance under a plan governed by the Employee Retirement Income Act, received preauthorization for the procedure but didn’t receive payment.
Here are six things to know:
1. A staff member called Aetna to seek coverage for two knee replacements and an Aetna representative reported the patient was covered by one of its plans that provided out-of-network payment. The plan also covered the knee surgeries in question and an Aetna representative informed Dr. McCulloch he would receive 70 percent of the usual, customary and reasonable rate for knee surgeries.
2. Despite the verbal agreement, the patient’s plan included a provision stating the insurer would only cover out-of-network procedures with written consent. The insurer paid $15,267.51 for the procedures. The usual and customary rate for both surgeries was $46,233.60.
3. Dr. McCulloch sued Aetna for the difference plus interest, costs and “other appropriate relief.” Aetna then asserted Dr. McCulloch’s compliant “raised a claim for benefits under an employee welfare-benefit plan governed by ERISA.”
4. Following Aetna’s actions, Dr. McCulloch filed a motion to remand the action to state court, which was denied. He tried again to move for reconsideration, and was again denied, but then he appealed. Finally, in May 2018 the Second Circuit decided ERISA doesn’t completely preempt the healthcare provider’s promissory-estoppel claim against the insurer.
5. The court also decided that Dr. McCulloch’s claim wasn’t a benefits claim because he didn’t have a pre-existing relationship with Aetna and the verbal agreement from the Aetna representative wasn’t a valid assignee of benefits.
6. Since Dr. McCulloch didn’t have a previous relationship with Aetna, his office wasn’t required to call for pre-approval, so the call was for the practice’s benefit. The court found the pre-approval telephone call to an insurer can’t “‘give rise to an independent legal duty’ enforced outside of ERISA.”
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