One Doctor’s Serial ERISA Litigation is a Lesson in . . . Something.
It all makes me feel like the Coen Brothers’ “Burn After Reading.”
Sometimes when poking around for things to write about you come across something like this…
Meet Dr. W.A. Griffin, serial ERISA litigant.
Dr. Griffin is an Atlanta dermatologist whose business practice around 2015 was to receive an “assignment” of her patients’ right to payment from benefits plans for medical services provided.
ERISA protects the rights of “participants” and “beneficiaries,” not treating doctors, so a valid assignment of rights from patient to physician is necessary for doctors to sue benefits plans if there is a dispute.
Such assignments are valid and “allow[] such a provider to bring derivative claims on behalf of its patients.”
Dr. Griffin fell into disputes with numerous benefits plans over the compensation she would receive as an out-of-network provider.
Dr. Griffin alleged various plans told her she would be paid at “usual customary and reasonable benefits levels” for services she provided out-of-network and that she had been underpaid.
Between 2015 and 2018 she filed at least 28 separate lawsuits against plans in Georgia removed to the Northern District, always choosing to represent herself.
Judge Amy Totenberg (sister of Nina) heard the cases.
Dr. Griffin’s claims faced numerous ERISA problems
Anti-assignment clauses: Most of the plans Dr. Griffin sued had anti-assignment provisions that barred participants from assigning benefits without plan approval. Anti-assignment clauses are generally enforceable in ERISA plans.
Information requests sent to the wrong party: ERISA obligates plan “Administrators” to furnish certain information upon request and can provide penalties when plans ignore or slow-walk those requests. Third-party plan administrators are almost never the correct party to request statutory information from, as Dr. Griffin learned.
Failure to assign fiduciary and penalty claims: Dr. Griffin’s assignment form assigned rights to “all medical benefits and insurance reimbursement,” a phrase the court interpreted under strict Eleventh Circuit law to not include “the right to assert claims for breach of fiduciary duty or civil penalties.” That left fiduciary and document civil penalty claims under 29 U.S.C. § 1132(a)(3) or (c)(1) out of Dr. Griffin’s reach.
By July 5, 2016, 23 suits had been dismissed.
And the Eleventh Circuit had already affirmed at least eight dismissals in memorandum decisions.
But as Dr.Griffin continued filing lawsuits, the court held a hearing and informed her of Rule 11’s requirements and issued an order stating that further “carbon copy” suits would warrant sanctions.
Nevertheless, she persisted.
Dr. Griffin also re-filed suits against already-dismissed plans in Virginia courts, which were again dismissed as res judicata and teed up for sanctions. A trip to Michigan was unsuccessful for the same reasons as in Georgia.
She did have better luck in the Seventh Circuit, where differences in circuit law saw her assignments recognized and allowed her to receive a small statutory penalty for documents violations (affirmed after she appealed the amount awarded).
Fee awards started being granted against Dr. Griffin
“This is a tale about what can go sadly wrong when a competent individual seeks to pursue a case pro se in a complex area of the law” wrote Judge Totenberg in awarding attorney fees to one plan.
“The Court understands Plaintiff's strong concern and frustration regarding the functioning of the insurance industry and the way it has treated her. That doesn't change the fact that the law provides sometimes narrow bases for having those complaints addressed . . . [and] the Court is troubled that Dr. Griffin is placing herself in this Court on a repetitive treadmill that will continue to produce the same frustration and costs” she wrote in another.
Dr. Griffin pursued her claims to the top.
Petitions for writs of certiorari were denied.
So was a Petition for Writ of Mandamus to the Northern District of Georgia.
That more-or-less gets us to the writ of mandamus filed in the 11th Circuit with a request for forwarding to Justice Thomas. It asserts without evidence that “bought off or blackmailed judges” have favored “Fortune 500 Corporations” in resolving her claims.
So… what have we learned?
Opinions in Dr. Griffin’s cases initially reflected her frustration with plans’ failure to provide information necessary to pursue payment for services rendered. She was not an unsympathetic party.
As time went on, however, they reveal her unwillingness to resolve the underlying billing disputes and fixation on arguments rendered frivolous and vexatious after prompt and thorough review.
That Dr. Griffin obtained some relief in the Seventh Circuit shows her claims weren’t meritless at the outset and underscores the real local differences that can arise in ERISA disputes.
What there is no sign of is a malpractice claim against the lawyer who drafted Dr. Griffin’s assignment agreement.