Zahuranec v. Cigna Heathcare, Inc.

• Decision Date: 29 June 2021
• Docket Number: 1:19cv2781
• Parties: Lisa Zahuranec, Plaintiff, v. CIGNA Healthcare, Inc., et al., Defendants
• Court: U.S. District Court — Northern District of Ohio

Lisa Zahuranec, Plaintiff, v. CIGNA Healthcare, Inc., et al., Defendants

No. 1:19cv2781

United States District Court, N.D. Ohio

June 29, 2021

MEMORANDUM OPINION & ORDER

PAMELA A. BARKER U.S. DISTRICT JUDGE

Currently pending are the Motions to Dismiss pursuant to Fed.R.Civ.P 12(b)(6) filed by Defendants Connecticut General Life Insurance Company, Jessica Breon, and Rajesh Davda. (Doc Nos. 33, 41, 43.) Plaintiff Lisa Zahuranec filed Briefs in Opposition, to which Defendants responded. (Doc. Nos. 38, 39 44, 46, 48.) For the following reasons, Defendants' Motions are GRANTED.

I. Background

A. Factual Allegations

In March 2012, Plaintiff Lisa Zahuranec was hired as an employee of The Horseshoe Casino Company, Inc. (hereinafter “The Horseshoe Casino”). (Doc. No. 29 at ¶ 8.) The Horseshoe Casino is affiliated with Defendant Caesars Entertainment Operating Company, Inc. (hereinafter “Caesars”), which offered a Welfare Benefit Plan (hereinafter “the Plan”) to Plaintiff. (Id. at ¶¶ 9, 10.) Plaintiff alleges that Caesars is the Plan Administrator for this Plan, and that Defendant Connecticut General Life Insurance Company (hereinafter “Cigna”) is a Claims Administrator. (Id. at ¶¶ 10, 12.)

One of the plans offered by The Horseshoe Casino was a health insurance plan offered by Cigna. (Id. at ¶ 11.) Plaintiff alleges that she accepted the health insurance plan offered by Cigna and that her Policy had an effective date of June 17, 2012. (Id. at ¶¶ 16, 19.) Plaintiff further alleges that this health insurance plan is a “valid enforceable contract between the parties” that has “various coverage policies which dictate the rights and obligations of CIGNA Healthcare and Mrs. Zahuranec regarding certain medical services and/or procedures.” (Id. at ¶¶ 21, 22.) One of these policies is Coverage Policy Number 0051 for Bariatric Surgery.^[1] (Id. at ¶ 23.)

In relevant part, Coverage Policy Number 0051 provides that “Cigna covers bariatric surgery using a covered procedure outlined below as medically necessary when ALL of the following criteria are met:”

• Body mass index (BMI) of 40 or greater or a BMI of 35-39.9 with at least one clinically significant obesity-related ailment (co-morbidity) such as degenerative joint disease in a weight-bearing joint, Type 2 diabetes, poorly controlled hypertension, severe obstructive sleep apnea, or pulmonary hypertension.

• Failure of a medical management including evidence of active participation within the last 12 months in one physician-supervised or registered dietician supervised weight-management program for a minimum of 3 consecutive months (89+ days) with monthly documentation of all of the following:

o Weight;

o Current dietary program;

o Physical activity (e.g. exercise program)

• A thorough multidisciplinary evaluation within the previous 6 months that includes all of the following:

o An evaluation by a bariatric surgeon recommending surgical treatment, including a description of the proposed procedure(s) and all of the associated current CPT codes;

o A separate medical evaluation from a physician other than the surgeon recommending surgery, that includes both a recommendation for bariatric surgery as well as a medical clearance for bariatric surgery;

o Unequivocal clearance for bariatric surgery by a mental health provider;

o Nutritional evaluation by a physician or registered dietician.

(Id. at ¶ 27.) See also Doc. No. 29-1 at PageID#s 866-867.

On January 23, 2013, Plaintiff visited a medical provider to seek intervention for weight loss through bariatric surgery. (Doc. No. 29 at ¶ 24.) At that time, she weighed 196 pounds and had a Body Mass. Index (“BMI”) under 40.0. (Id. at ¶ 25.) On February 14, 2013, after conducting testing, and examinations and “other evaluations to determine any possible co-morbidities, ” Plaintiff's medical provider submitted a request to Cigna for pre-authorization for bariatric surgery. (Id. at ¶¶ 26, 29.) Cigna, through its employee Defendant Jessica Breon, R.N. (“Nurse Breon”), declined to provide coverage because Plaintiff had not yet been employed by The Horseshoe Casino for one year, as required by her health insurance policy. (Id. at ¶¶ 28, 30.)

On August 1, 2013, Plaintiff's medical providers submitted supplemental documentation to Cigna in an attempt to obtain pre-authorization for the bariatric surgery. (Id. at ¶ 35.) Defendants Rajesh Davda, M.D. (“Dr. Davda”) and Nurse Breon were assigned to review Plaintiff's file. (Id. at ¶ 33.) Coverage was again declined, this time on the basis that Plaintiff had failed to submit documentation demonstrating a failure of medical management; i.e., evidence of active participation within the last 12 months in a supervised weight management program for a minimum of three consecutive months. (Id. at ¶ 36.)

On October 25, 2013, Plaintiff's medical provider again supplemented the previously provided documents to seek pre-authorization. (Id. at ¶ 39.) Plaintiff alleges that, among other things, “[t]he medical records and evidence produced to CIGNA Healthcare . . . included: (1) a registered dietician visit of February 1, 2013; (2) [a] registered dietician visit of March 15, 2013, and (3) a registered dietician visit of October 22, 2013.” (Id. at ¶ 40.) Plaintiff alleges that this medical evidence “did not strictly fulfill the requirements of” Coverage Policy Number 0051 because it did not demonstrate “a minimum of 3 consecutive months (89+ days)” of participation in a supervised weight management program, “as February, March, and October [2013] are nowhere near consecutive.” (Id. at ¶ 41.) In addition, Plaintiff claims that she did not fulfill Coverage Policy Number 0051's requirement that she have a clinically significant obesity-related ailment. (Id. at ¶¶ 48, 49.) Lastly, Plaintiff alleges that she failed to meet the requirements of this Policy because (1) she did not have a thorough multidisciplinary evaluation within the previous 6 months; and (2) her mental health provider had determined she was experiencing depression, “which is generally regarded as a condition which precludes approval of such a bariatric procedure.” (Id. at ¶¶ 51- 54.)

In light of the above, Plaintiff alleges that she should not have been pre-authorized for bariatric surgery. (Id. at ¶¶ 43, 46, 49.) Instead, Plaintiff alleges that “she should have been referred to a registered dietician for a thorough attempt [at] non-surgical weight management.” (Id. at ¶ 56.) However, on November 5, 2013, Cigna (through Dr. Davda and Nurse Breon) nonetheless approved Plaintiff for bariatric surgery. (Id. at ¶¶ 43, 50.) Had Cigna not authorized the surgery, Plaintiff alleges that she would “never have been able to pay for the procedure and therefore would never have undergone” it. (Id. at ¶ 45.)

Plaintiff underwent bariatric surgery (i.e., a “laparoscopic sleeve gastrectomy”) on December 17, 2013. (Id. at ¶ 57.) Unfortunately, she suffered “severe complications” as a result of this procedure. (Id. at ¶ 58.) Plaintiff alleges that “[a]s a direct and proximate result of CIGNA Healthcare and Caesars [] breaching the terms of the health insurance policy and specifically breaching the terms of the coverage policy number 0051, Mrs. Zahuranec suffered injuries, damages, loss of ability to work, lost past and future wages, incurred extensive medical expenses, loss of enjoyment of life, inability to carry on activities of daily living, and a greatly diminished life expectancy.” (Id. at ¶ 60.)

Subsequently, in August 2017, Plaintiff filed a medical malpractice action in the Cuyahoga County Court of Common Pleas against the Cleveland Clinic Foundation and the physicians who performed her bariatric surgery. See Lisa Zahuranec, et al. v. Tomacz Rogula, et al., Cuyahoga County Court of Common Pleas No. CV-17-885085. According to the state court docket, the parties in that action settled and Plaintiff filed a Notice of Dismissal with prejudice on June 20, 2019. (Id.)

Meanwhile, in June 2018, Cigna (through third-party administrator Conduent) asserted a claim for reimbursement of the medical expenses paid on behalf of Plaintiff with respect to her surgery. (Doc. No. 29 at ¶ 64.) Cigna asserts that this reimbursement claim is predicated on certain subrogation and lien provisions set forth in the Plan. In particular, Cigna directs the Court's attention to the section of the Plan titled “Subrogation/Right of Reimbursement, ” which provides that:

If a Participant incurs a Covered Expense for which, in the opinion of the plan or its claim administrator, another party may be responsible or for which the Participant may receive payment as described above:

1. Subrogation: The plan shall, to the extent permitted by law, be subrogated to all rights, claims or interests that a Participant may have against such party and shall automatically have a lien upon the proceeds of any recovery by a Participant from such party to the extent of any benefits paid under the plan. A Participant or his/her representative shall execute such documents as may be required to secure the plan's subrogation rights.

2. Right of Reimbursement: The plan is also granted a right of reimbursement from the proceeds of any recovery whether by settlement, judgment, or otherwise. This right of reimbursement is cumulative with and not exclusive of the subrogation right granted in paragraph 1, but only to the extent of the benefits provided by the plan.

(Doc. No. 11-3 at PageID# 393.) The Plan further provides that:

By accepting benefits under this plan, a Participant:

• grants a lien and assigns to the plan an amount equal to the benefits paid under the plan against any recovery made by or on behalf of the Participant which is binding on any attorney or other party who represents the Participant whether

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