Cigna has turned back an attempt by health-care providers to force it to cover a chiropractic procedure known as manipulation under anesthesia, which it considers experimental and medically unnecessary.
U.S. District Judge Stanley Chesler on Wednesday granted the insurer's motion to dismiss the suit, Prospect Medical v. Cigna Corp., 09-5912, for failure to state a claim on which relief can be granted.
The suit contended that medical literature recognizes the procedure — which breaks up scar tissue around a joint while the patient is under sedation — as an effective pain treatment and that the American Medical Association has listed it in its Codebook of Reimbursable Procedures for 30 years.
The plaintiffs — Prospect Medical and Premier Health Center, both of Hackensack; Shore Spine Center & Physical Rehabilitation of Jackson; and Northeastern Spinal Health and Rehabilitation of West Paterson — sued on behalf of all health-care providers whose coverage claims Cigna had allegedly denied across the board without considering patients' medical needs.
They sued under the Employee Retirement Income Security Act, alleging that Cigna's systematic denial of coverage was arbitrary and capricious and constituted a breach of its obligations under the health plans it issued.
ERISA sec. 502(a)(1)(B) empowers federal courts to hear claimed violations of the statute.
The complaint cited representative cases of patients whose claims were denied.
One patient, R.V., who suffered chronic spine, hip and shoulder pain, underwent three days of manipulation under anesthesia. His doctors submitted claims for $54,900 to Cigna.
Another patient, M.L., suffered from lumbar radiculitis, lumbar disc disease, hip derangement, cervical and lumbar disc herniation, as well as pelvic, thoracic, spine and shoulder pain. His procedure cost $28,200.
Cigna argued that the plaintiffs failed to demonstrate that manipulation under anesthesia is medically necessary and not experimental.
The company cited an unpublished case Advanced Rehab v. UnitedHealthgroup, 11-4269, in which the U.S. Court of Appeals for the Third Circuit, on similar facts, affirmed a ruling that a carrier did not have to cover the procedure.
The Prospect Medical plaintiffs argued that the court could not rely on a nonprecedential decision without running afoul of Rule 5.7 of the Third Circuit's operating procedure. It says the court "by tradition does not cite to its not precedential opinions as authority. Such opinions are not regarded as precedents that bind the court because they do not circulate to the full court before filing."
Chesler replied that the circuit's operating procedures applied to the appeals court, not the district court.
And, while UnitedHealthgroup is not binding, "it may nevertheless be treated as persuasive authority," Chesler wrote.
In addition, the judge said inclusion of the procedure in the AMA codebook is an argument soundly rejected by the Third Circuit in UnitedHealthgroup.
He also said that the plaintiffs' failure to establish that the procedure is medically necessary and nonexperimental "largely apes the kind of generalized conclusions it criticizes" in Cigna's denial of claims.
He said UnitedHealthgroup properly concluded that an allegation of "an insurer's blanket policy of denying claims for manipulation under anesthesia is not a suitable substitute for alleging facts that show that [the treatment] was medically necessary and a safe and effective treatment for the ailments of the particular patients at issue."
The judge said the plaintiffs "did not meet defendant's challenges squarely."
He also found that "only two allegations touch on the issue of medical necessity even obliquely."
Eric Katz of Mazie, Slater, Katz & Freeman in Roseland, representing the plaintiffs, says his clients will consider refiling the suit or filing an amended one to address the deficiencies identified by Chesler.
Eric Wohlforth Jr. of Gibbons in Newark, representing Cigna, declines to comment. •