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Yodzis v. Tilak

February 26, 2009

STEVEN YODZIS, PLAINTIFF-APPELLANT,
v.
DR. SAMIR TILAK; RADIOLOGY ASSOCIATES OF BURLINGTON COUNTY, P.A.; JOSE A. ESCALONA, M.D.; KRUEGER AND PASCUAL, M.DS., P.A.; HARRY E. MANSER, JR., D.O.; DR. CAROLYN M. CAVUTO-CARNIVALE, ALSO KNOWN AS DR. CAROLYN CARNIVALE; MITCHELL J. RUBIN, M.D.; NEUROLOGY CONSULTANTS OF BURLINGTON COUNTY; AND KENNETH LEWANDOWSKI, D.O., DEFENDANTS, AND WALTER DEPALMA, M.D.; MICHAEL MCNEIL, M.D.; HEALTH NET OF THE NORTHEAST, INC.; AND HEALTH NET OF NEW JERSEY, INC., DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-874-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: January 30, 2009

Before Judges C.L. Miniman, Baxter and King.

Plaintiff appeals from the summary judgment disposition of his negligence and medical malpractice claims against four defendants -- Walter DePalma, M.D., Michael McNeil, M.D., Health Net of the Northeast, Inc. (HN-NE), and Health Net of New Jersey, Inc. (HN-NJ). These defendants, which we jointly refer to as the Health Net defendants, were plaintiff's group health insurance carriers and the physicians who served as their medical and clinical directors. Plaintiff sued them for damages for personal injuries he suffered as the result of a stroke, alleging that they breached a duty to plaintiff imposed on the medical directors by N.J.S.A. 11:24-4.1 and -4.2 to ensure that plan participants received adequate medical care.

The ground for dismissal was that the claims were preempted by the Employee Retirement Income Security Act of 1974, 29 U.S.C.A. §§ 1001 to 1461 (ERISA), as interpreted by the United States Supreme Court, conferring immunity on these defendants for tort liability under state law. We affirm.

I.

This is the procedural background. Plaintiff Steven Yodzis filed an amended complaint in Superior Court, Law Division, Burlington County, against the Health Net defendants, alleging that they were the proximate cause of injuries he suffered as a result of their negligent and reckless denial or delay in approving or providing medically necessary services requested by him and in failing to notify him of same, and that this denial or delay and absence of notice constituted a deviation from the proper standards of medical care. The amended complaint also asserted medical malpractice claims against other defendants: Dr. Samir Tilak (plaintiff's radiologist); Radiology Associates of Burlington County, P.A. (Tilak's employer); Jose A. Escalona, M.D. (plaintiff's vascular surgeon); Krueger and Pascual, M.Ds., P.A. (Escalona's employer); Harry E. Manser, Jr., D.O. (plaintiff's family doctor); Dr. Carolyn M. Cavuto-Carnivale (plaintiff's family doctor); Mitchell J. Rubin, M.D. (plaintiff's neurologist); Neurology Consultants of Burlington County (Rubin's employer); and Kenneth Lewandowski, D.O. (plaintiff's emergency room doctor).

The Health Net defendants answered, denying all liability to plaintiff. In addition, they raised various affirmative defenses, including the preemption by ERISA and the absence of a physician-patient relationship between plaintiff and defendants, DePalma and McNeil.

On July 9, 2004 the Health Net defendants moved for summary judgment. Plaintiff opposed the motion. Judge Baldwin heard argument on September 10, 2004 and granted the motion the same day. On September 13, 2004 he signed an order dismissing the complaint against the Health Net defendants. Plaintiff's motion for leave to appeal was denied by this court on November 12, 2004.

On March 15, 2006, while the case was still pending as to some of the other defendants, plaintiff moved for reconsideration of the grant of summary judgment in favor of the Health Net defendants. Judge Baldwin heard argument on March 31, 2006 and denied the motion the same day. All of plaintiff's claims against all of the other defendants then were resolved either through settlement or voluntary dismissal.

Plaintiff then filed a timely notice of appeal from the order granting summary judgment in favor of the Health Net defendants and the order denying his motion for reconsideration.

II.

These are the pertinent facts. Defendant HN-NJ provided health insurance benefits to plaintiff pursuant to a group agreement with plaintiff's employer, the Occupational Therapy Center of Burlington County. In 2001 HN-NJ did not have its own prior authorization department. Those functions were handled by defendant HN-NE, of which HN-NJ was a wholly owned subsidiary.

In November and December 2001, defendants DePalma and McNeil were medical directors of HN-NJ, which was a health care carrier licensed by the State of New Jersey to provide health care benefits to members and subscribers who lived or worked in New Jersey. It was not a physician-owned health maintenance organization (HMO). Plaintiff's health plan was governed by federal law, ERISA.

Plaintiff was admitted to Burlington County Hospital from July 25 to July 31, 2001. His discharge diagnosis stated that he had suffered a transient ischemic attack and a left carotid artery dissection. He was placed on Coumadin, an anticoagulant, to reduce the risk of another stroke. He received follow-up care from defendant Rubin, a neurologist. On October 29, 2001 Rubin advised him to consult with a vascular surgeon.

Plaintiff saw defendant Escalona, a vascular surgeon, on November 6, 2001. Escalona recommended that plaintiff be admitted to the hospital on November 12 for an arteriogram and started on a Heparin weight-based protocol, which would allow the Coumadin to be reversed in anticipation of an endarterectomy, which was scheduled November 15. Escalona claimed that he never told plaintiff to discontinue his Coumadin.

In anticipation of plaintiff's hospitalization, Kathy Kranz, Escalona's surgery scheduler, attempted to get pre-authorization from HN-NJ. Plaintiff's coverage agreement with HN-NJ provided that hospital services required prior authorization and that any services rendered after a member was notified that prior authorization was denied would be the responsibility of the member. The agreement provided that members would receive benefits only when "[m]edically

[n]ecessary and [a]ppropriate."

The facts then become disputed. Escoalona claims that

Kranz was told, either by DePalma or McNeil, that HN-NJ was denying authorization for the hospitalization and procedure due to plaintiff's heavy alcohol abuse. They wanted to have the patient stabilized from such abuse before the arteriogram. Kranz gave this information to Escalona who called either DePalma or McNeil and told them that plaintiff was in need of the arteriogram and the surgical procedure, neither of which was contraindicated by his alcohol abuse. According to Escalona, HN-NJ nevertheless continued denial of authorization.

Escalona told Kranz to call plaintiff and tell him that his November 12 admission was cancelled due to his insurance company's denial of coverage. Although Kranz did not specifically remember whether she did this, she noted that it was her usual practice to contact a patient whenever surgery was cancelled due to a denial of coverage. In this case, she said that she must have contacted plaintiff because she had scheduled him for another office appointment on December 18, 2001.

A handwritten note from Escalona's office dated November 8, 2001 stated the following: "Phone call from Clinical Director of Health Plan, refuses admission, A-gram due to heavy ETOH abuse. Would like to have patient stabilized from that part prior to A-gram."

Plaintiff claimed that he was never told about the insurance coverage denial or the cancellation of his procedure. On November 13, 2001 he reported to defendant Manser, his family physician, and told him that Escalona had instructed him to cease taking Coumadin in anticipation of his surgery. Manser told plaintiff that he would need to cease the medication at least five days before the procedure. It was Manser's understanding, from plaintiff, that the procedure was scheduled for November 19 or 20. Based on this understanding, Manser took plaintiff off Coumadin on November 13. He said he would not have done so had he known there were problems getting the surgery scheduled.

On November 28, 2001 plaintiff saw defendant CavutoCarnivale, who worked in the same office as Manser, for some cold symptoms. It was Cavuto-Carnivale's understanding that plaintiff was off his Coumadin and that he would be undergoing an arteriogram within the next few days. She believed that he needed the operative procedure and that his use of alcohol was not a reason to preclude it. She never asked plaintiff, and he never told her, exactly why the surgery had not yet taken place.

Rubin, plaintiff's neurologist, saw plaintiff on December 17, 2001. According to his office note, plaintiff had been scheduled for an arteriogram "but for unclear reasons this has been canceled on several occasions." For nearly a month now, plaintiff had been off his Coumadin. Rubin advised plaintiff to start on his Coumadin again as soon as the arteriogram was completed and to have the procedure done as soon as possible. Plaintiff told Rubin that he was scheduled to see Escalona the following day.

Plaintiff never appeared for his appointment with Escalona on December 18. Escalona's office called plaintiff's house and found out that he had suffered a severe stroke upon leaving Rubin's office the previous day. The hospital records for December 17 showed that plaintiff was diagnosed with cerebrovascular disease and carotid stenosis. Plaintiff ultimately underwent the endarterectomy in February 2002. HN-NJ paid for it in accordance with the terms of plaintiff's health plan.

The Health Net defendants denied that they ever told Escalona that they were denying pre-authorization for plaintiff's hospitalization and procedure. Rather, they said on November 7, 2001 McNeil had merely requested additional information from Escalona to determine whether or not to approve the request. On November 8, 2001 Escalona informed DePalma that the surgery had been canceled due to concerns over possible medical complications. Kranz, from Escalona's office, called HN-NJ later that day to officially withdraw the request for pre-authorization. This sequence of events was seemingly corroborated by HN-NJ's contact service forms for November 6 through November 8, 2001. Thus, the Health Net defendants apparently alleged ...


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