01-4141 Fritcher v. Health Care Service Corp.

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“In Herzberger, this court stated that ‘[o]bviously a plan will not-could not, consistent with its fiduciary obligation to the other participants-pay benefits without first making a determination that the applicant was entitled to them.’ Id. at 332. The phrase ‘reasonable judgment of … medical[ ] necess[ity]’ does not signal subjective discretion; in fact, it implies some process of ratiocination will be used before benefits will be paid. See id. at 333 (holding that discretionary power could be presumed only upon a subjective, rather than objective, test). Most importantly, the words ‘reasonable judgment’ do not serve as adequate notice to the participant and his family that the administrator’s judgment will be insulated from judicial review, particularly after Herzberger. ‘An employer should not be allowed to get credit with its employees for having an ERISA plan that confers solid rights on them and later, when an employee seeks to enforce the right, pull a discretionary judicial review rabbit out of his hat.’ Id. at 332-33.

“What is clear from the undisputed facts on the record, however, is that HCSC denied benefits despite its knowledge that Lucas needed ‘skilled medical care’ under the terms of the Plan, that such care should have been covered under the Plan, and that Lucas’ need for such care was scattered throughout the day. Dr. Fucik, the HCSC employee who was largely responsible for the benefit reduction, admitted that the periodic monitoring of the oxygen content in Lucas’ bloodstream was a skilled service, (R. at 585), and that the periodic monitoring of Lucas’ breathing was a skilled service. (R. at 625.) He further admitted that his own notes reflected the fact that Lucas was receiving ‘a scattering of skilled services’ that were ‘being provided during approximately 18 hours per daily nursing services.’ (R. at 581; Dep. Ex. Fucik #3). Dr. Fucik also admitted that he ignored the frequency of Lucas’ seizures when making his determination, (R. at 587), even though the nurses’ reports-the same ones that Dr. Fucik claimed to have reviewed while making his determination (R. at 541, 548)-showed that Lucas frequently had seizures. (Def.’s Ex. #50.) HCSC obviously knew that for someone in Lucas’ condition, monitoring and controlling these seizures is critically important. (Pl.’s Ex. 12; Pl.’s Ex. 55A; Dep. Ex. Fucik #7 at 3.) Based on these facts alone, and without having to examine Illinois law, HCSC’s decision to confine benefits to a 2-hour period is patently unreasonable.”

Affirmed.

Appeal from the United States District Court for the Central District of Illinois, Gorman, Mag. J., Coffey, J.