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ZUCKERBROD v. PHOENIX MUT. INS. CO.

April 5, 1995

SEYMOUR ZUCKERBROD, Plaintiff, against PHOENIX MUTUAL INSURANCE COMPANY, Defendant.


The opinion of the court was delivered by: LEONARD D. WEXLER

 WEXLER, District Judge

 FINDINGS OF FACT

 1. Plaintiff Seymour Zuckerbrod is insured pursuant to an insurance policy issued by defendant Phoenix Mutual Life Insurance Company ("Phoenix") and governed by the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001, et seq.

 2. Under the terms of the policy, plaintiff is entitled to receive 80 percent of covered expenses for private duty nursing care up to a maximum of $ 20,000, if Phoenix determines such nursing care is "essential, in our judgment, for the treatment a Covered Person's Injury or Sickness."

 3. Plaintiff was hospitalized at New York University Medical Center from February 1990 to April 1990 where he received, at the request of his treating doctors, private duty nursing care from March 2, 1990 through and including April 13, 1990, at a total cost of approximately $ 27,000.

 4. Plaintiff filed claims to Phoenix for reimbursement of his private duty nursing expenses up to the $ 20,000 policy limit.

 5. The record indicates that by letter dated June 29, 1990, Phoenix notified plaintiff that it was denying reimbursement for the period April 1 through April 13, 1990, because the care was "custodial in nature" and not "essential treatment." There is no evidence in the record of a decision at that time on the claim for private duty nursing from March 1 through March 31, 1990, although there are copies of letters from Phoenix to plaintiff in April and May 1990 requesting plaintiff to submit copies of the private duty nurses' treating notes and a letter from his doctor stating the medical necessity of the private duty nursing care during the period at issue.

 6. On July 2, 1990, a Phoenix claims analyst, Mary Ann Linton ("Linton"), referred plaintiff's file for evaluation to Linda Myco ("Myco"), a nurse-consultant employed by Phoenix, requesting that Myco review the file and advise if private duty nurses were medically necessary for plaintiff's treatment. Myco responded that she needed more information to properly review the claim, such as plaintiff's hospital admission and discharge summaries and a doctor's letter of medical necessity.

 7. On July 12, 1990, Linton again forwarded plaintiff's file to Myco for review, enclosing the private duty nurses' notes, which described the nursing care they provided to plaintiff, and a letter of medical necessity, dated June 4, 1990, from Dr. Glenn W. Jelks, one of plaintiff's doctors, to Phoenix. On July 13, 1990, Myco advised that "because [plaintiff's nursing] care was extensive during a portion of the day, I would consider 1 shift per day" from March 3 through March 8, March 12 through March 28, and April 1 through April 4 medically necessary for plaintiff's treatment.

 8. Shortly thereafter, Phoenix received another letter of medical necessity from another of plaintiff's doctors, Dr. Arthur C. Fox of NYU Medical Center, this one dated July 18, 1990. Linton testified that she did not know if the July 18, 1990 letter was ever submitted to Myco for her review.

 9. Based on Myco's recommendation, Linton determined that Phoenix should reimburse plaintiff for only one eight-hour shift per day on the dates recommended by Myco, and for reimbursement purposes she designated the day shift as the shift for reimbursement. By letter dated July 31, 1990, Phoenix advised plaintiff that "we are unable to provide all the benefits for the private duty nursing care. However, the nursing care was extensive during part of the day and we have considered one shift per day as necessary care for you."

 10. On August 3, 1990, Phoenix had plaintiff's file reviewed by an independent surgical-consultant, Dr. Paul Flandreau ("Flandreau"). Flandreau responded as follows: "I believe that the care provided by an adequately staffed med. surg. nursing floor would be able to cover this gentleman's treatment. The need for PDN's [private duty nurses] is the physician's choice based on his assessment of staffing adequacy." There was no evidence that staffing was inadequate at the hospital on the dates at issue.

 11. Ultimately, Phoenix reimbursed plaintiff for one eight-hour shift per day on the dates recommended by Myco (i.e., March 3 through March 8, March 12 through March 28, and April 1 through April 4), and denied coverage for the other two shifts on those dates and for all other days at issue. The total cost of the private duty nurses for one shift per day on the dates recommended by Myco totalled $ 6,075.00. Phoenix paid plaintiff 80% of that amount, for a total of $ ...


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