Killian v. Concert Health Plan

Federal 7th Circuit Court
Civil Court
Case Number: 
No. 11-1112
Decision Date: 
November 7, 2013
Federal District: 
N.E. Ill., E. Div.
Affirmed and reversed in part and remanded
Dist. Ct. erred in granting defendants-plan administrator’s and group health insurance plan’s motion for summary judgment in ERISA action alleging that plaintiff-plan beneficiary incurred $80,000 in uncovered medical expenses caused by defendants’ breach of fiduciary duty, when they failed to inform plaintiff that her proposed hospital where treatment for emergency cancer surgery was to occur was not included in plan’s network of providers in group health plan. Record contained triable issue as to whether fiduciary breach occurred where: (1) plaintiff never had access to list of providers in network, but was instead directed to call defendants’ representative to seek such information; (2) representative could not confirm during first telephone call that plaintiff’s proposed hospital was within plan’s network, but told plaintiff’s husband to “go ahead with whatever had to be done;” and (3) husband placed second telephone call to defendants’ representative to obtain “preadmission” certification and received “okay” response when husband informed representative that plaintiff would be admitted into proposed hospital. Fact that husband never specifically asked whether proposed hospital was in plan’s network did not require different result since record contained some evidence that defendant’s representatives were aware of husband’s “status and situation” when seeking information from defendants, and fact-finder could conclude that plaintiff would have selected different hospital had she known that proposed hospital was not within network. (Dissent filed.)