In Proton Beam Cancer Treatment Denial Case, Kantor & Kantor Prevails in Discovery Dispute Against Blue Cross Blue Shield Health Care Plan of Georgia

Our firm is involved in litigating a proton beam cancer treatment denial case in Georgia, Ghattas v. Blue Cross Blue Shield Health Care Plan of Georgia, Inc., Case No. 1:20-CV-03157-ELR, 2020 WL 6867155 (N.D. Ga. Nov. 18, 2020). Defendants Blue Cross Blue Shield Health Care Plan of Georgia (BCBSGA) answered Plaintiff Christopher Ghattas’ Complaint alleging the wrongful denial of his life-saving proton beam radiation therapy at Emory University Proton Therapy Center for a diagnosis of brain cancer. Following Defendant’s answering of the Complaint, counsel began preparing to conduct a Rule 26(f) Conference per the Court’s Order. Prior to the setting of this conference call, counsel for BCBSGA articulated to Plaintiff’s counsel two positions: (1) that ERISA matters were exempt from the initial disclosures requirements of FRCP Rule 26 and (2) that Plaintiff—although never having received a page of the administrative record in this case nor counsel ever discussing the standard of review to be applied to this benefits denial—was not entitled to any discovery in an ERISA matter. The Court resolved these two issues as addressed in the parties’ Joint Preliminary Report to the Court.

First, the Court agreed with Plaintiff’s position that Defendant would be required to produce initial disclosures in this matter pursuant to Rule 26. Citing Golden v. Sun Life Fin., Inc., 2:08-CV-070-WKW, 2008 WL 2782736 (M.D. Ala. July 15, 2008), the Court held that “[b]ecause this [ERISA] case involves more than just the administrative  record and because the parties will be engaging in discovery, [defendant is] required to provide initial disclosures in accordance with Rule 26(a).”

Second, Plaintiff had taken the position that he was not foreclosed on any grounds from conducting targeted and limited discovery depending upon the standard of review that would apply to BCBSGA’s benefits denial. Without having produced a single page of the administrative record, BCBSGA took the position that Plaintiff was entitled to no discovery in an ERISA matter. Here, the Court agreed with Plaintiff. Citing Adams v. Hartford Life and Acc. Ins. Co., 589 F. Supp. 2d 1366 (N.D. Ga. 2008), the Court stated that it did “not agree that discovery is inappropriate here.” “In matters such as the one at hand, ‘the body of case law developed under ERISA’ requires ‘the [C]ourt, at the very least, [to] examine the facts as known to the administrator at the time the decision to deny benefits was made to determine whether the administrator’s decision was reasonable.’” Adams, 589 F. Supp. 2d at 1367. The Court held that Plaintiff was entitled to narrowly tailored discovery regarding what evidence the Plan (who claimed it was vested with discretionary authority) was aware of at the time of its decision to deny Plaintiff’s claim for proton therapy.

This is a win for consumers in the Eleventh Circuit and in Georgia. BCBSGA’s positions on initial disclosures and its seeming foreclosure of discovery at an early stage of litigation represents increasingly atypical (and arguably unreasonable) positions not often seen in jurisdictions like California, for example. On its surface, the idea that a cancer patient plaintiff could bring a claim in court, not be afforded the protections of Rule 26 in the production and potential supplementation of a complete administrative record and also be foreclosed any discovery before a page of the administrative record was produced simply amounts to an unreasonable outcome. Plaintiff will now have the opportunity here to assess the administrative record at issue in his case and seek limited, narrowly tailored discovery at the heart of the decision to deny his cancer treatment claims.

If you or a loved one have been denied proton beam therapy radiation claims by an insurance carrier, please call Kantor & Kantor for a free consultation at 888-569-6013 or use our online contact form.  We handle these types of claims all over the country.

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