On Tuesday a case was filed in the District of Massachusetts a plaintiff identified as R.M. against Anthem BCBS, the Capital One Financial Corporation Employee Health Benefits Plan, and Capital One Financial Corporation. The case is regarding a denial by an Employee Retirement Income Security Act (ERISA) plan of benefits for a procedure that Anthem purportedly deemed to be experimental.
The complaint explained that the plaintiff’s minor child suffered from severe progressive scoliosis, a condition which weakens and warps the spine and causes difficulties with walking, breathing, and other daily functions.
According to court documents, the treating physician indicated that surgical intervention was necessary to preserve the patient’s quality of life and range of motion. The traditional surgical intervention is spinal fusion, however the treating physician did not recommend this procedure as it would likely lead to degenerative disc disease of the spine, pain, and limited range of motion. The physician instead recommended a vertebral body tethering procedure.
The patient’s ERISA plan allegedly defined investigative procedures as ones where there were insufficient procedures performed to have outcome data, ones that were in clinical trials, and ones that did not have the approval of the FDA. The plan documents also specifical listed vertebral tethering as an experimental procedure. The plaintiff specifically sent an appeal to Anthem showing the recent approval by the FDA as well as further outcome data, however Anthem upheld the denial as experimental. The plaintiff accuses the plan of mechanically applying the exclusion provision without considering the newer clinical data.
The plaintiff is suing for recovery of benefits and attorney’s fees. The plaintiff is represented by Rosenfeld & Rafik.