Case: 4:20-cv-01844 Doc. #: 1 Filed: 12/21/20 Page: 1 of 10 PageID #: 1
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`IN THE UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MISSOURI
`EASTERN DIVISION
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`Case No.:
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`RICHARD FALKENRATH
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`Plaintiff,
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`vs.
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`ANTHEM BLUE CROSS AND
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`BLUE SHIELD
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`Serve: MO Dept. of Insurance
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`301 w. High Street, Rm 530 )
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`Jefferson City, MO 65101
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`And
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`AMEREN CORPORATION
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`Serve: CT Corporation System
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`120 S. Central Ave
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`Clayton, MO 63105
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`And
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`AMEREN SERVICES COMPANY
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`Serve: CT Corporation System
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`120 S. Central Ave
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`Clayton, MO 63105
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`Defendants.
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`COMPLAINT
`EMPLOYEE RETIREMENT INCOME SECURITY ACT
`COMES NOW Plaintiff Richard Falkenrath, by and through undersigned counsel, pursuant
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`to the Employee Retirement Income Security Act of 1974, as amended 29 U.S.C. §1001 et. seq.,
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`and for his cause of action against defendants Anthem Blue Cross and Blue Shield (hereinafter
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`Page 1 of 10
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`Case: 4:20-cv-01844 Doc. #: 1 Filed: 12/21/20 Page: 2 of 10 PageID #: 2
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`“Anthem”), Ameren Corporation, and Ameren Services Company (collectively “Defendants”)
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`respectfully states the following:
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`Introduction
`Plaintiff brings this action, against Defendants for damages caused by the
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`1.
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`Defendants’ breach of statutory, contractual and fiduciary obligations and violations of the
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`Employee Retirement Income Security Act of 1974, as amended 29 U.S.C. § 1001 et. seq.
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`(“ERISA”).
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`2.
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`Mr. Falkenrath seeks recovery and payment of benefits due under a healthcare
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`benefits plan, statutory penalties, and costs and attorney’s fees associated with this action, as
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`provided by ERISA.
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`Parties
`Richard J. Falkenrath is an individual residing in the Eastern District of Missouri.
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`3.
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`He, is a vested participant in a Group Insurance Policy for certain employees of Ameren, which
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`provides an employee benefit plan within the meaning of 29 U.S.C. § 1132(a). Included in that
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`benefit plan is an Anthem Blue Cross Blue Shield medical insurance that provides medical
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`coverage for Plaintiff and his family, including Mr. Falkenrath’s minor son, R.N.F.
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`4.
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`Defendant Anthem provides health coverage for certain employees – and their
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`families – of Ameren under an employee welfare benefit plan (hereinafter “Plan”) within the
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`meaning of 29 U.S.C. § 1002. Specifically, Anthem provides health insurance benefits.
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`5.
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`Anthem is an insurance company domiciled in the State of Missouri. Anthem both
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`administers and pays benefits under the terms of the health benefits plan and is a fiduciary within
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`the meaning of 29 U.S.C. §1002(16).
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`Case: 4:20-cv-01844 Doc. #: 1 Filed: 12/21/20 Page: 3 of 10 PageID #: 3
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`6.
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`Defendants Ameren Corporation and Ameren Services Companies are Missouri
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`companies.
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`7.
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`Defendant Ameren Corporation is the plan sponsor and funds the Plan and is a Plan
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`Administrator under the meaning of 29 U.S.C. § 1002(16).
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`8.
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`Defendant Ameren Services Company is a Plan Administrator under the meaning
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`of 29 U.S.C. § 1002(16).
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`9.
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`All Defendants are fiduciaries of Plaintiff under the meaning of 29 U.S.C. § 1104.
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`Facts Common to All Claims
`Plaintiff’s minor son R.N.F. was initially diagnosed with Autoimmune Encephalitis
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`(AE), a rare condition wherein the body’s immune system mistakenly attacks healthy brain cells,
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`leading to inflammation of the brain, in August 2014.
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`11.
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`R.N.F was also diagnosed with Common Variable Immune Deficiency (CVID), an
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`antibody deficiency that leaves the immune system unable to defend against bacteria and viruses,
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`resulting in recurrent and often severe infections primarily affecting the ears, sinuses, and
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`respiratory tract, in April 2016.
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`12.
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`Symptoms of these conditions included gross and fine motor delay, a stiff gait and
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`pains in his legs, poor sleep, frequent illness, as well as behavioral/neurological issues such as
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`vocal tics, sensory issues, and obsessive compulsive disorder.
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`13.
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`RNF has also be diagnosed as both attention deficit hyperactivity disorder (ADHD)
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`and oppositional defiant disordered (ODD).
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`14.
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`At all times relevant R.N.F. has been under the care of M. Elizabeth Latimer, MD,
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`Tracy Fritz, M.D., and/or Anu French, M.D., F.A.A.P.
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`15.
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`R.N.F. has received the following first line care and medication treatments to
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`address his Autoimmune Encephalitis, and ancillary issues:
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`Case: 4:20-cv-01844 Doc. #: 1 Filed: 12/21/20 Page: 4 of 10 PageID #: 4
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`a. Augmentin: June 27, 2014 – July 10, 2015; October 20, 2015 – May 3, 2016;
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`and August 19, 2016 through the present,
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`b. Azithromycin: December 15, 2014 through March 30, 2015; and June 9, 2015
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`through the present.
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`c. Flagyl: June 27, 2014- October 8, 2014; and December 15, 2014 through March
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`30, 2015 and October 20, 2015 through May 3, 2016.
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`d. Albendazole: June 27, 2014 through August 30, 2014
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`e. Valaciclovir: May 3, 2016 through September 13, 2017
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`f. Amantadine: September 13, 2017 through present.
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`g. High dose IVIG (intravenous immunoglobulin) Treatment: December 14-15,
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`2015 May 12-13, 2016 and August 23-24, 2016.
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`16.
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`R.N.F initially responded positively for to the IVIG treatment, but experienced
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`frequent relapses of varying intensity culminating with suicidal thoughts in February of 2018.
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`17.
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`These relapses led R.N.F’s physicians to determine that IVIG was no longer an
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`effective treatment and Rituximab was the next recommended treatment.
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`18.
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`R.N.F. underwent Rituximab treatment on July 9, 2018 and July 23, 2018. The
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`treatment was a success as his mental and physical health improved beyond baseline while
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`undergoing other treatments.
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`19.
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`Anthem initially approved payment for R.N.F.’s Rituximab therapy under the plan,
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`but ultimately denied to pay for the drug as it was allegedly “considered not medically necessary”
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`under the health benefits plan.
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`20.
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`Under the Plan, Medically Necessary Care or Medically Necessary is defined as:
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`Case: 4:20-cv-01844 Doc. #: 1 Filed: 12/21/20 Page: 5 of 10 PageID #: 5
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`Any treatment or services that is provided for the diagnosis,
`evaluation and treatment of a condition, illness, disease, or
`injury and determined by the Claims Administrator to be:
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` Medically Appropriate for and consistent with he
`symptoms and proper diagnosis or treatment of the
`condition, illness, disease or injury;
`• Obtained from a covered Network or Non-Network
`Provider;
`• Provided in accordance with applicable medical and/or
`professional standards;
`• Known to be effective, as proven by scientific evidence,
`in materially improving health outcomes;
`• Consistent with the symptoms and proper diagnosis or
`treatment of the condition, illness, disease or injury;
`• Cost -effective compared to alternative treatments or
`service, including no treatment or service. As to the
`diagnosis or treatment of the Member’s illness, injury or
`disease, the service is: not more costly than an alternative
`service or sequence of services that is medically
`Appropriate; or performed in the least costly setting that
`is medically Appropriate;
`• The most Appropriate level of services or supplies that
`can safely be provided and which cannot be omitted
`consistent with recognized professional standards of
`care;
`• Determined by the Plan Administrator or its delegate (the
`Claims Administrator) to be Generally Accepted;
`Is not Experimental or Investigational;
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`• Not otherwise subject to an expense not covered under this Plan.
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`21.
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`Specifically, Anthem noted that AE was not included on the list of conditions
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`Rituximab was prescribed to treat, and thus was not medically necessary.
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`22.
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`In June 2019, Plaintiff appealed Anthem’s decision to not pay for R.N.F.’s
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`Rituximab treatment.
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`23.
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`In support of the June 2019 appeal, documentation from R.N.F.’s treating
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`physicians was submitted that supported the Rituximab treatment, as well as, peer reviewed
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`empirical articles indicating that Rituximab was not only commonly used to treat AE, but it was
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`found to be effective when IVIG and other front line care options were not.
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`24.
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`25.
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`Anthem denied the June 2019 appeal.
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`November 22, 2019, a second appeal of Anthem’s denial was filed. Anthem denied
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`this appeal as well.
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`26.
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`The November 22, 2019 appeal included additional empirical data that Rituximab
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`was a known and utilized treatment for AE.
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`27.
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`In the denial of the Rituximab treatment, Anthem relied upon the opinion of two
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`physician’s that reviewed R.N.F.’s medical records, neither of the physicians were qualified to
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`opine to as to the treatment of the rare pediatric neurological condition of autoimmune encephalitis
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`nor does the claim file indicate that any weight was given to the peer-reviewed articles supporting
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`the use of Rituximab in the treatment of AE, or that either of the physicians even were presented
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`with the articles.
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`28.
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`From the claim file it is evident that the ultimate decision to deny payment for the
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`Rituximab treatment was made by Anthem’s Medical Director Reviewer, who denied a request
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`that the claim be reviewed by a board certified specialist in Pediatric Neurology and
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`Neurodevelopmental Disabilities on the grounds that AE is not included on a list of common
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`conditions treated by Rituximab, and thus denied payment for the treatment.
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`COUNT I
`Wrongful denial of Benefits pursuant 29 U.S.C. § 1132(a(1)(b)
`Against All Defendants
`Plaintiff incorporates by reference paragraphs 1-28 above as if fully set forth herein.
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`The objective evidence contained in the claim file demonstrates that Rituximab
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`a. Medically appropriate;
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`b. Provided by an in-network provider;
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`c. Provided in accordance with applicable medical standards;
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`29.
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`30.
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`was:
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`d. Known to be effective;
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`e. Warranted and consistent with R.N.F’s symptoms
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`f. Cost effective; and
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`g. Nonexperimental.
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`31.
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`In determining whether to pay for the Rituximab treatment Defendants:
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`a. Failed to adequately investigate the claim for benefits by not seeking the
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`opinion of a specialist regarding the rare and uncommon condition of R.N.F.,
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`and instead relied upon the decision of its employee, the “Medical Director
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`Reviewer, MD.”
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`b. Failed to use proper judgment in determining R.N.F.’s claim by relying solely
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`upon the opinion of its inhouse “Medical Director Reviewer, MD” to
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`determine that Rituximab.
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`c. Failed to consider the objective empirical evidence that the Rituximab was a
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`customary and accepted treatment for AE.
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`d. Failed to acknowledge the cost benefit of utilizing the Rituximab treatment
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`versus the more expenses and less effective IVIG treatment.
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`e. Failed to take precautions to shield itself from the inherent conflict of interest
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`presented by being both the payer and decider of claims.
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`f. Relied upon unfair, biased, and inconclusive reviews of treatment options.
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`32.
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`The actions outlined in Paragraph 31 amounts to egregious conduct and oversights
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`in the review – and ultimate denial – of the claim for benefits to pay for the Rituximab and resulted
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`in the wrongful denial of payment for the Rituximab treatment.
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`33.
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`Defendants’ denial of payment for the Rituximab treatment was an abuse of
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`discretion and not based on the substantial objective evidence and was the byproduct of breaches
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`of the fiduciary duties owed to Plaintiff, conflicts of interest, and serious procedural irregularities.
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`34.
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`The Rituximab treatment is covered by the Plan and as such, Defendants are
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`required to pay for the Rituximab treatment, together with prejudgment interest, attorney’s fees
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`and costs.
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`WHEREFORE Plaintiff respectfully prays for judgment against Defendants Anthem Blue
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`Cross Blue Shield, Ameren Corporation, and Ameren Services Company granting equitable relief
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`including payment of the amount of the Rituximab treatment, interest on past due sums, attorney
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`fees and costs, and for any other such relief as this Court deems just and proper under the
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`circumstances.
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`COUNT II
`Breach of Fiduciary Duty Pursuant to 29 U.S.C. §1132(a)(3)
`Against All Defendants
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`35.
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`36.
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`37.
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`Plaintiff incorporates by reference paragraphs 1-34 above as if fully set forth herein.
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`Pursuant to 29 U.S.C. § 1104 Defendants are fiduciaries of Plaintiff.
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`As fiduciaries, Defendants owed Plaintiff the twin duties of loyalty and prudence
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`and are obligated to make decisions regarding his claims for benefits in favor of awarding R.N.F.
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`benefits under the Plan.
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`38.
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`In determining whether to pay for the Rituximab treatment Anthem:
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`a. Failed to investigate the claim for benefits by not seeking the opinion of an
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`appropriate specialist regarding the rare and uncommon condition of R.N.F.
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`b. Failed to use proper judgment in determining R.N.F.’s claim by relying solely
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`upon the opinion of its in-house “Medical Director Reviewer, MD” who at all
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`times operated under a significant financial conflict of interest with incentives
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`to deny appropriate claims.
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`c. Failed to consider the objective empirical evidence that the Rituximab was a
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`customary and accepted treatment for AE.
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`d. Implemented an unfair, incomplete and biased review process.
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`e. Relied upon unfair, biased, and inconclusive reviews of treatment options.
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`39.
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`The actions alleged in paragraph 38 all constitute breaches of the fiduciary duties
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`owed by Anthem to R.N.F. and all beneficiaries under the Plan.
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`40.
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`The failures and actions alleged in paragraph 38 demonstrate failures in the
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`administration of the Plan, that are the results and byproduct of the conflicts of interest and
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`procedural irregularities.
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`41.
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`As a result of this conflict of interest and procedural irregularities, as demonstrated
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`by the breaches of fiduciary duty outlined above, Defendants have failed to implement appropriate
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`process and procedures to fully and fairly evaluate claims under the Plan thus has further breached
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`its duty of loyalty owed to Plan beneficiaries such as R.N.F.
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`42.
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`The only way to prevent further violations of fiduciary duties is for Defendants to
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`change its claim review practices and procedures to eliminate all conflicts of interest and violations
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`of 29 U.S.C. § 1001 et seq.
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`WHEREFORE Plaintiff respectfully prays for judgment against Defendants Anthem Blue
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`Cross Blue Shield, Ameren Corporation, and Ameren Services Company granting equitable relief
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`of enjoining continued review of any claims under the current process and procedures currently in
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`place, mandating the drafting of new processes and procedures that correlate to the goals of the
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`Ameren Employee benefit Plan and 29 U.S.C. 1001 et seq., and a remand R.N.F.’s claim of
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`benefits for review under the revised processes and procedures, as well as attorney fees and costs
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`incurred herein, and for any other such equitable relief as this Court deems just and proper under
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`the circumstances.
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`Respectfully submitted,
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`GALLAGHER DAVIS, L.L.P.
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`/s/ Adam J. Olszeski
`Matthew R. Davis, #MO58205
`Adam J. Olszeski, #MO66126
`2333 S. Hanley Road
`St. Louis, Missouri 63144
`(314) 725-1780
`Fax: (314) 725-0101
`matt@gallagherdavis.com
`adam@gallagherdavis.com
`Attorneys for Plaintiff
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`Page 10 of 10
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