United States District Court, D. New Jersey
L. LINARES CHIEF JUDGE
matter comes before the Court by way of Defendants Oxford
Health Insurance, Inc. and United Healthcare Services,
Inc.'s Motion to Dismiss Plaintiff Tzvi Small, M.D.'s
Complaint, pursuant to Federal Rule of Civil Procedure
12(b)(6). (ECF No. 8). Plaintiff submitted opposition. (ECF
No. 11). Despite being granted additional time by this Court,
(ECF No. 15), Defendants did not file a reply. The Court has
considered the parties' submissions and decides this
matter without oral argument pursuant to Federal Rule of
Civil Procedure 78. For the reasons stated herein, the Court
hereby denies Defendants' Motion in part, with the
exception that the Court shall dismiss Plaintiffs claim for
"D.H." is insured by and receives medical benefits
from Defendants, which are insurance companies with their
principal places of business in Connecticut. (Compl.
¶¶ 2-3, 7; ECF No. 1 ¶ 7). Plaintiff is a
plastic surgeon who practices in New Jersey. (Compl.
¶¶ 1, 6, 18). Plaintiff is not a participating
provider in Defendants' insurance network. (Compl. ¶
14). Plaintiff alleges that he received written authorization
from Defendants to perform a "medically-necessary"
breast reconstruction surgery on Patient. (Compl.
¶¶ 16 17). Plaintiff performed said surgery on
December 19, 2016. (Compl. ¶ 17).
the surgery, Plaintiff requested payment from Defendants in
the amount of $ 129, 600, which according to Plaintiff
"represents [the] normal and reasonable charges for the
complex procedure performed by a Board-Certified Plastic
Surgeon and Surgeon practicing in New Jersey." (Compl.
¶ 19). However, Plaintiff claims that Defendants only
paid around $10, 639, which left a remaining balance of $118,
960.75. (Compl. ¶ 20). Plaintiff alleges that
Defendants: (1) were aware that Plaintiff was not a provider
in their network; (2) did not disclose to Plaintiff that they
would not pay the full amount of the surgery; and (3) induced
Plaintiff to perform the surgery with no intention of paying
the full amount. (Compl. ¶ 21).
addition to the above allegations, Plaintiff also alleges
that Medical Audit and Review Solutions ("Review
Solutions") contacted him at some point after the
surgery. (Compl. ¶ 23).
to Plaintiff, Review Solutions was an agent of Defendants and
attempted to resolve Plaintiffs claim against Defendants for
the cost of the surgery. (Compl. ¶ 23). Plaintiff
alleges that Review Solutions offered Plaintiff S31, 055.20
if Plaintiff forgave the remaining balance of the surgery.
(Compl. ¶ 23). Plaintiff accepted this agreement, which
was allegedly memorialized in writing ("the
Agreement"). (Compl. ¶¶ 23 -24). Specifically,
the Agreement was dated January 9, 2017 and stated:
Pursuant to our recent conversation, by signing below,
[Plaintiff] agrees to: (i) accept the Agreed Amount [of $31,
055.20] (less deductible, co-insurance, co-payment or other
patient responsibility or non-covered services as defined by
the plan) as payment in full for claims/bills from plans
serviced by MultiPlan that are submitted by [Defendants] and
determined to be eligible for the services rendered to the
Patient on the dates listed above; (ii) not to balance bill
the Patient for the difference between the Amount of the
Claim/Bill and the Agreed Amount; and (iii) reduce the
liability of the Patient and [Defendants].
By signing below, the Provider agrees and acknowledges that:
(i) [Review Solutions] and MultiPlan are not payors and are
not financially responsible for any payments due to
[Plaintiff]; (ii) the payment of benefits, if any, is subject
to the terms and conditions of the Patient's plan; and
(iii) this agreement does not constitute, nor should it be
construed as a guarantee of benefit payment by [Defendants].
[Plaintiff] retains the right to bill the Patient (or
financially responsible party) for items not covered under
the Patient's benefit plan.
(ECF No. 11-10 at 2 ("Agreement")).
the Agreement, Plaintiff claims that Defendants never made
any payment beyond the original amount of approximately $10,
639. (Compl. ¶ 26). Plaintiff argues that
Defendants' failure to pay the remaining $20, 415.92 was
a breach of the Agreement. (Compl. ¶ 27). Furthermore,
Plaintiff claims in the alternative that the course of
conduct between the parties, and particularly Defendants'
authorization of the surgery, created an implied contract in
which Defendants agreed to pay "the fair and reasonable
rates for" performing the surgery, i.e., the
remaining balance of $118, 960.75. (Compl. ¶¶
Plaintiff brought suit in New Jersey Superior Court, alleging
the following causes of action: (1) Breach of the Agreement
("Count One"); (2) Breach of Implied Contract
("Count Two"); (3) Promissory Estoppel ("Count
Three"); (4) Account Stated ("Count Four");
and (5) Quantum Meruit ("Count Five").
(Compl. ¶¶ 22-51). Defendants removed the action to
this Court. (ECF No. 1). Now, Defendants move to dismiss
Plaintiff s Complaint.
withstand a motion to dismiss for failure to state a claim, a
"complaint must contain sufficient factual matter,
accepted as true, to 'state a claim to relief that is
plausible on its face.'" Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). "A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged."
Id. (citing Twombly, 550 U.S. at 556).
"The plausibility standard is not akin to a
'probability requirement,' but it asks for more than
a sheer possibility that a defendant has acted
unlawfully." Id. (quoting Twombly, 550
U.S. at 556).
determine the sufficiency of a complaint under
Twombly and Iqbal in the Third Circuit, the
Court must: (1) "tak[e] note of the elements [the]
plaintiff must plead to state a claim"; (2)
"identify allegations that, because they are no more
than conclusions, are not entitled to the assumption of
truth"; and (3) "[w]hen there are well-pleaded
factual allegations, [the] court should assume their veracity
and then determine whether they plausibly give rise to an
entitlement to relief." Connelly v. Lane Constr.
Corp., 809 F.3d 780, 787 (3d Cir. 2016) (internal
quotations and citations omitted). "In deciding a Rule
12(b)(6) motion, a court must consider only the complaint,
exhibits attached to the complaint, matters of public record,
as well as undisputedly authentic documents if the
complainant's claims are based upon these
documents." Mayer v. Belichick, 605 F.3d 223,
230 (3d Cir. 2010).