Manhattan Total Health & General Medicine, P.C. et al v. Cigna Corporation et al
OPINION re: 86 MOTION to Dismiss PLAINTIFF'S THIRD PARTY COMPLAINT, filed by Robert Refowitz, M.D., Orthonet New York IPA, Inc., Orthonet LLC, 81 AMENDED MOTION to Dismiss Plaintiffs' Third Amended Complaint, filed by Conn ecticut General Life Insurance Company, Cigna Corporation, Cigna Health Care of New York, Inc. Accordingly, Orthonet's motion is granted and CIGNA's motion is denied. MTH's claims against Orthonet New York IPA, Inc. and Orthonet LLC are dismissed. SO ORDERED. (Signed by Judge Miriam Goldman Cedarbaum on 2/18/2014) (ja)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
MANHATTAN TOTAL HEALTH & GENERAL
MEDICINE, P.C, MANHATTAN TOTAL
HEALTH & MEDICAL FITNESS, P.C.,
and MANHATTAN TOTAL HEALTH &
PHYSICAL MEDICINE, P.C.,
-against11 Civ. 2469 (MGC)
CIGNA CORPORATION, CIGNA
HEALTHCARE OF NEW YORK, INC.,
CONNECTICUT GENERAL LIFE INSURANCE
COMPANY, ORTHONET NEW YORK IPA,
INC., and ORTHONET LLC.,
HALPERN, BROWN & DARIENZO, ESQS.
Attorneys for Plaintiffs
26 Court Street, Suite 901
Brooklyn, New York 11242
John A. Darienzo Jr., Esq.
Frank Wieziolowski, Esq.
Attorneys for Defendants CIGNA
Corporation, CIGNA Healthcare of
New York, Inc., and Connecticut
General Life Insurance Company
One Gateway Center
Newark, New Jersey 07102
E. Evans Wohlforth, Jr., Esq.
Daniel S. Weinberger, Esq.
JONES HIRSCH CONNORS MILLER & BULL P.C.
Attorneys for Defendants Orthonet
New York IPA, Inc, and Orthonet
One Battery Park Plaza
New York, New York 10004
Kevin M. Ryan, Esq.
This is a suit for monetary and injunctive relief under
Sections 502(a)(1)(B) and 502(a)(3) of the Employee Retirement
Income Security Act (ERISA), 29 U.S.C. § 1132(a)(1)(B), (a)(3).
Healthcare provider Manhattan Total Health & General Medicine,
P.C and affiliated companies (collectively, “MTH”) sue on behalf
of approximately 134 of their patients.
They allege that
insurance plan administrator CIGNA Corporation and affiliates
(collectively, “CIGNA”) and utilization-review contractor
Orthonet LLC and affiliate (collectively, “Orthonet”) breached
various duties by failing, when making benefit-eligibility
determinations, to place decisionmaking authority with
physicians specializing in the field of treatment under
Both groups of defendants now move to dismiss
MTH’s third amended complaint for failure to state a claim.
After four attempts, MTH still has not alleged a duty on
Orthonet’s part to use same-specialty physicians when conducting
its initial review of patients’ claims.
The governing insurance
plans contain no language to that effect, and MTH has identified
no statutory or fiduciary duty supporting a claim under the
statute’s “catchall” provision, § 502(a)(3).
The latest complaint does, however, properly allege a plan
violation by CIGNA, the entity responsible for hearing appeals
of denied claims.
One of the plans provides that first-level
appeals “will be considered by a health care professional of the
same or similar specialty as the care under consideration.”
Am. Compl. Ex. C.
The other plan states that the second-level
appeals committee “will include at least one Physician reviewer
in the same or similar specialty as the care under
Id. Ex. D.
Taking as true MTH’s allegation
that CIGNA failed to use same-specialty physicians at any point
in the appeals process, the complaint states a claim for
violation of the plans.
Whether MTH’s § 502(a)(1)(B) claim against CIGNA is
duplicative of its § 502(a)(3) claim, see Varity Corp. v. Howe,
516 U.S. 489, 515 (1996), need not be resolved at this stage of
the proceedings; suffice it to say that any theory of recovery
must be grounded in the concrete terms of the governing plans.
Like Orthonet, CIGNA has no extra-contractual duty to review
claims using same-specialty physicians.
Accordingly, Orthonet’s motion is granted and CIGNA’s
motion is denied.
MTH’s claims against Orthonet New York IPA,
Inc. and Orthonet LLC are dismissed.
New York, New York
February 18, 2014
MIRIAM GOLDMAN CEDARBAUM
United States District Judge
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