New Jersey Court Permits Discovery into Bias of Medical Peer Reviewers

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Insurance coverage is based on the provisions of the contract and the proofs submitted by the claimant. In medical claims, a full and fair investigation of the facts concerning the particular claim requires the insurer to consult with medical professionals who are supposed to independently apply their expertise to the case facts and determine if the medical treatment is covered.
When coverage is improperly denied, the claimant will seek information about the denial, including the investigation of the claim and the rationale of the medical professional involved in the decision. Often the insurers rely on third party vendors who provide medical doctors to review the cases. These doctors have no direct contact with the claimant, and simply review medical records. Of course these doctors are paid for their time, but the question becomes, can they afford to be independent if they rely on this stream of income from a vendor who is unlikely to continue to hire them if their decisions do not support the insurers’ decision. The insurer must take steps to reduce potential bias. See Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 116, 128 S. Ct. 2343, 2351; 171 L. Ed. 2d 299 (2008).
Discovery into the medical reviewers is a basic necessity, but insurers often hide behind ERISA laws and fail to disclose information about the reviewers. We who represent the consumers in these cases, seek the identity of the reviewers, their credentials, how much they are paid for their services, how often they are used by the insurer, whether they see any patients of their own, and basically, if financial incentives skewed their decision.
ERISA provides a very narrow field of discovery. In many jurisdictions, the courts have permitted discovery into the bias of the medical reviewer. This includes, most recently,  in Alison R. v. Horizon Blue Cross Blue Shield, 2015 U.S. Dist. LEXIS 85841, D. NJ; June 9, 2015, New Jersey District Court Judge Mannion ordered that Plaintiff may pursue limited discovery, particularly  the relationship between Horizon Blue Cross and Magellan, (the third party vendor) whose reviewers are paid by Horizon which may have resulted in an unreliable result due to financial incentives. This potential “structural conflict of interest” is germaine to the court’s analysis of the weight to give to the denial decision.
By comparison, other courts elsewhere are more generous in permitting discovery in ERISA cases. For example, CIGNA (CLICNY is its subsidiary) was recently ordered to report: the total compensation it paid to MES Solutions, for retaining medical consultants for its disability case reviews, to explain the basis or method for compensating the medical reviewer used in the case,and to explain what input, if any, CLICNY has into which doctors are selected by MES
Solutions to evaluate CLICNY’s LTD benefit claims. The court held, that “such limited discovery will fill the existing gaps in the administrative record and help the Court to determine the significance of the conflict in this case. Nicholas v. Cigna Life Insurance Company of New York U.S.D.C. D. MA (Feb 25, 2016).

We are Bonny G. Rafel LLC pursue disability claims for our clients and seek discovery which reveals whether the decision-makers are relying on partial medical reviewers.  Contact us to learn more about our firm and how we can provide assistance for your denied disability LTD claim.