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Zalduondo v. Aetna Life Insurance Co.

United States District Court, District Circuit

July 10, 2013



Royce C. Lamberth, Chief Judge

Plaintiff Carolina Zalduondo brings this ERISA action against Aetna Life Insurance Company, alleging improper denial of coverage for her arthroscopic hip surgery. Defendants now move for summary judgment. Upon consideration of the defendant's Renewed Motion [55] for Summary Judgment, the plaintiffs Opposition [58] thereto, and the defendant's Reply [59] the Court will GRANT the Motion and dismiss the case with prejudice.


Plaintiff Zalduondo is a member of the WPP Group USA, Inc. employee healthcare benefit plan, of which defendant Aetna is a service provider that administers and adjudicates claims for benefits. Zalduondo began suffering from extreme pain in her hip in 2009, rendering her almost unable to walk. Pl.'s Statement of Undisputed Material Facts in Supp. of its Opposition to Def.'s Renewed Mot. for Summ. J. ("Pl.'s SUMF") ¶ 37, ECF No. 58. She visited orthopedist Dr. Terri McCambridge, who correctly identified the source of the pain as two labral tears in Zalduondo's hip, which needed to be repaired through arthroscopic hip surgery. Id. at ¶ 39. McCambridge referred Zalduondo to Dr. Andrew Wolff, an orthopedic surgeon who was widely regarded as an expert in arthroscopic hip surgery. Id. Zalduondo discovered that Aetna did not cover Dr. Wolff as an in-network physician, however, and she sought referrals for other surgeons who would be covered at the in-network rate. Administrative Record (“AR”) 67. While Dr. Wolff was an overwhelming favorite, other orthopedic surgeons were suggested; none of which were in Aetna’s network. Id.

Concluding that none of the in-network orthopedic surgeons in the area could perform her surgery, Zalduondo requested that Aetna cover Dr. Wolff’s services at the in-network rate. Pl.’s SUMF ¶ 42. On September 1, 2009, Aetna denied her request for coverage because it concluded that in-network providers were available who could perform the surgery. AR 81. Aetna referred her to DocFind, Aetna’s online directory of in-network physicians, and provided three names of in-network providers listed on DocFind that Aetna claimed could treat her condition. Id. Zalduondo contacted the offices of these physicians. Id. at 67–68. According to her, two of the offices informed her that the doctors did not perform arthroscopic hip surgery and the other office informed her that the doctor was a pediatric orthopedic surgeon and “was not able to confirm his ability” to perform Zalduondo’s surgery. Id.

Based on this knowledge, Zalduondo proceeded to have Dr. Wolff perform the surgery on September 16, 2009. Pl.’s SUMF ¶ 47. Aetna responded by covering some of Dr. Wolff’s services at a reduced, out-of-network rate and denying coverage of the labral repairs entirely because it deemed them “experimental or not medically necessary.” AR 260–279. Zalduondo appealed the former decision on October 1, 2009, and provided Aetna with an explanation of why the three in-network doctors it recommended were insufficient. Id. at 67–68. On November 18, Aetna affirmed its appeal, stating that it had reviewed DocFind and had again concluded that Zalduondo had in-network options available to her that could have performed the surgery instead. Id. at 85. As examples, it listed two new doctors, Brian Evans and Mark Zawadsky, [1]who shared an office. Id. The administrative record indicates that two people in this office informed Aetna “that these MDs perform [h]ip arthroscopies with labral repairs.” AR 60. Aetna also informed Zalduondo that she had 60 days to file a second-level appeal. Id. at 87.

On January 8, 2010, Zalduondo sent Aetna a short letter that she said “serv[ed] as [her] official request for a second level appeal.” AR 88. However, she stated that she had retained counsel to assist her with the appeal, which she said would include challenges to “several of Aetna’s more recent decisions regarding coverage in this matter, ” and asked for an extension to file the appeal. Id. Rather than grant her request for an extension, Aetna apparently construed this letter as the second-level appeal itself, because on January 27, 2010, it mailed Zalduondo a letter informing her that it denied her second-level appeal. Id. at 99. The letter again referred her to Mark Zawadsky as an example of a physician who could treat her injury. Id.

Zalduondo’s newly retained counsel, Denise Clark, then filed her client’s official second-level appeal on February 4, after the 60-day window for filing the appeal had expired. Id. at 107. Clark explained that the office of Drs. Zawadsky and Evans informed Zalduondo that neither doctor performed hip arthroscopies to make labral repairs.[2] Id. While the title of her letter specifically indicated that it was appealing “the denial of in-network preferred benefit level, ” Ms. Clark also included a section challenging Aetna’s refusal to cover the labral repairs because of their being deemed “experimental or not medically necessary.” Id. at 108. Aetna responded to this letter on February 15, 2010, stating that it had received the Clark letter but that Zalduondo had exhausted all her appeal rights after the January 27 final decision. Id. at 103.

Zalduondo invoked this Court’s jurisdiction by filing a claim under ERISA challenging both Aetna’s refusal to pay for Dr. Wolff’s services at the in-network preferred benefit rate and Aetna’s denial of coverage of the labral repairs for being experimental.[3] On April 24, 2013, this Court denied Aetna’s motion for summary judgment without prejudice, ruling that it could not yet determine the level of discretion it owed to Aetna’s decisions because Aetna had not yet supplied the official plan document. Aetna has since supplemented the record with this document [54] and filed a renewed motion for summary judgment [55].


A. Summary Judgment

“[C]ourt[s] shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The mere existence of any factual dispute will not defeat summary judgment; the requirement is that there be no genuine dispute about a material fact. Anderson, 477 U.S. at 247–48. A fact is “material” if, under the applicable law, it could affect the outcome of the case. Id. A dispute is “genuine” if the “evidence is such that a reasonable jury could return a verdict for the non moving party.” Id. If the moving party satisfies its burden of demonstrating the absence of a genuine issue of material fact, the burden shifts to the nonmoving party to present specific facts showing a genuine issue for trial. Fed.R.Civ.P. 56(e); Anderson, 477 U.S. at 252.


Standard of Review

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