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Case 5:21-cv-00690-HE Document 1-2 Filed 07/08/21 Page 1 of 7
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`IBIrr
`EXHIBIT
`2
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`mmon5
`IN THE DISTRICT COURT OF OKLAHOMA COUNTY
`STATE OF OKLAHOMA
`
`CHARLES ED LAIN,
`
`Plaintiff,
`
`v.
`
`BLUE CROSS AND BLUE SHIELD OF
`OKLAHOMA, a domestic unincorporated
`association, and HEALTH CARE SERVICE
`CORPORATION, a foreign mutual legal reserve
`company,
`
`Defendants.
`
`PETITION
`
`t9N9. 2021 - 2329
`
`FILED IN DISTRICT COURT
`OKLAHOMA COUNTY
`
`MAY 2 8 2021
`RICK WARREN
`COURT CLERK
`107
`
`Plaintiff, Charles Lain, for his cause of action against Defendants Blue Cross and Blue
`
`Shield of Oklahoma and Health Care Service Corporation, alleges and states as follows:
`
`JURISDICTION AND VENUE
`
`1.
`
`2.
`
`Plaintiff, Charles Lain, is a resident and citizen of Love County, Oklahoma.
`
`Defendant Blue Cross and Blue Shield of Oklahoma ("BCBS") operates under the
`
`common name Blue Cross Blue Shield of Oklahoma in the state of Oklahoma as an unincorporated
`
`division of Defendant Health Care Service Corporation, a mutual legal reserve company.
`
`3.
`
`Defendant BCBS is an entity comprised entirely of Oklahoma members,
`
`policyholders, and citizens.
`
`4.
`
`Defendant BCBS maintains headquarters in Oklahoma and issues and underwrites
`
`insurance policies in every county in Oklahoma.
`
`5.
`
`Defendant BCBS has its own company President and officer that is responsible for
`
`the overall strategic direction of BCBS, including operations, sales and account management,
`
`network management, health care management, medical policy and external affairs.
`
`

`

`6.
`
`As an unincorporated association in the State of Oklahoma, Defendant BCBS may
`
`be served with process by delivering a copy of the summons and of the petition to an officer, a
`
`managing or general agent located at 1400 South Boston, Tulsa, Oklahoma, 74119.
`
`7.
`
`Under Oklahoma law, unincorporated associations like BCBS have the capacity to
`
`sue or to be sued in the State of Oklahoma.
`
`8.
`
`Defendant Health Care Service Corporation is a mutual legal reserve company
`
`doing business in the State of Oklahoma as Blue Cross Blue Shield of Oklahoma ("BCBS"), an
`
`unincorporated association.
`
`9.
`
`Defendant Health Care Service Corporation is authorized to transact business
`
`within the State of Oklahoma and may be served with process through its service agent, Glen
`
`Mulready, Oklahoma Insurance Commissioner, 5 Corporate Plaza, Suite 100, 3625 NW 56th Street,
`
`Oklahoma City, Oklahoma 73112.
`
`10.
`
`For purposes of jurisdiction, Defendant BCBS should be treated as a separate,
`
`unincorporated association with members and policyholder owners comprised entirely of
`
`Oklahoma citizens and policyholders because Health Care Service Corporation is a mutual legal
`
`reserve company rather than a corporation registered with the Secretary of State of the State of
`
`Illinois.
`
`11.
`
`At all times relevant to this matter, Plaintiff was insured by Defendants under an
`
`individual, health insurance policy, Group No: 0G1800, Member ID: YUQ927727581 (the
`
`"Policy").
`
`12.
`
`The Policy, and all state law claims and causes of action arising out of and related
`
`to the Policy, are exempt from ERISA preemption.
`
`2
`
`

`

`13.
`
`In July 2019, Plaintiff was diagnosed with anal cancer. Due to various factors
`
`impacting Plaintiff's health and safety, his treating oncologist determined that his cancer should be
`
`treated utilizing Proton Beam Therapy radiation ("PBT").
`
`14.
`
`Plaintiff submitted a claim for insurance coverage and benefits under the Policy for
`
`treatment of his life-threatening cancer utilizing PBT.
`
`15. On August 21, 2019, Defendants denied Plaintiffs claim for PBT.
`
`16. On August 23, 2019, Plaintiff submitted an appeal of BCBS's denial, which
`
`included a letter from MD Anderson Cancer Center in support of coverage for the recommended
`
`treatment.
`
`17. On or about August 26, 2019, Plaintiff initiated an external review appeal, which
`
`included the appeal letter from MD Anderson containing information and evidence in support of
`
`coverage for the recommended treatment.
`
`18.
`
`Plaintiff's external review and appeal to Defendants were denied on August 30,
`
`2019.
`
`19.
`
`Plaintiff has exhausted all appeals and reviews, internal and external, of his claim
`
`under the Policy.
`
`20.
`
`At all times, Plaintiff complied with the terms of the insurance policy required for
`
`coverage.
`
`21.
`
`Plaintiff properly submitted a claim for health insurance benefits under the
`
`insurance policy.
`
`22.
`
`Defendants owed Plaintiff specific obligations under the terms of the insurance
`
`policy.
`
`3
`
`

`

`23.
`
`Specifically, Defendants are obligated to pay for medical treatment and other
`
`covered services under the terms of the insurance policy.
`
`24.
`
`Defendants are obligated to pay for medical treatment that is medically necessary
`
`and not experimental or investigational.
`
`25.
`
`The PBT recommended for Plaintiffs cancer is medically necessary and is not
`
`experimental or investigational and was therefore covered under Plaintiff's Policy.
`
`26.
`
`Defendants were provided specific information and evidence by Plaintiff's doctors
`
`and medical providers establishing that the recommended treatment is necessary given Plaintiff s
`
`medical condition.
`
`27.
`
`Defendants failed to cover the treatment recommended by Plaintiffs doctors,
`
`despite appeals and the submission of evidence and information establishing that the required
`
`treatment is the standard of care for Plaintiff's condition.
`
`28.
`
`Defendants have improperly caused delays in medical treatment for Plaintiff by
`
`delaying claim decisions or arbitrarily denying claims and forcing Plaintiff to initiate appeals.
`
`29.
`
`The acts and omissions of Defendants, in the investigation, evaluation and decision
`
`on Plaintiff's claims were unreasonable, improper, and in violation of the terms of the Policy and
`
`applicable law.
`
`30.
`
`Defendants, as insurers, owe Plaintiff, as an insured, a duty to deal fairly and act in
`
`good faith under Oklahoma law.
`
`31.
`
`The acts and omissions of Defendants in the investigation, evaluation, delay and
`
`decision on Plaintiff's claims were unreasonable, improper, contrary to established medical
`
`standards, and constitute bad faith for which extra-contractual damages are claimed.
`
`32.
`
`Defendants breached the contract and acted unreasonably and in bad faith by:
`
`4
`
`

`

`a. failing to cover Plaintiff's claims,
`
`b. refusing to pay for Plaintiff's PBT treatment,
`
`c. forcing Plaintiff to initiate appeals without providing reasonable and adequate
`
`consideration of the information submitted by or on Plaintiff's behalf as part of said
`
`appeals,
`
`d. improperly and arbitrarily denying coverage for medical treatments,
`
`e. ignoring evidence that the recommended treatment has been established as the
`
`medical standard of care,
`
`f. violating Oklahoma statutes regarding proton beam therapy and medical reviews,
`
`g. supplanting Defendants' own interests ahead of the interests of its insured, and
`
`h. otherwise implementing and executing a claims decision process that fails to
`
`establish and follow adequate standards for claims handling.
`
`33.
`
`Defendants failed to handle Plaintiff's claim consistent with Oklahoma law
`
`applicable to the specific treatment recommended by Plaintiffs treating physicians and for which
`
`Defendant denied coverage.
`
`34.
`
`Defendants wrongfully denied Plaintiff's claim based on incorrect and outdated
`
`information and failed to consider Plaintiffs overall medical condition.
`
`35.
`
`Defendants failed to properly consider and apply Oklahoma laws applicable to
`
`Plaintiff's recommended treatment and resulting claim for insurance benefits.
`
`36.
`
`Defendants recklessly disregarded its duty to deal fairly and act in good faith as its
`
`conduct was unreasonable and there was a high probability that the denial of Plaintiff's claims
`
`would cause serious harm to Plaintiff.
`
`5
`
`

`

`37. As a direct and proximate result of Defendants' bad faith, Plaintiff has suffered
`
`damages in excess of $75,000.00, including pain and suffering, mental anguish, loss of reputation,
`
`embarrassment, and personal injuries.
`
`38.
`
`The acts and omissions of Defendants in the handling of Plaintiff's claim were with
`
`reckless disregard for the rights of others and/or were done intentionally and with malice and/or
`
`were life threatening to humans, therefore, Plaintiff is entitled to recover punitive damages.
`
`39.
`
`Alternatively, the acts of omissions of Defendants in handling Plaintiff's claims
`
`were with reckless disregard for the rights of others and/or were done intentionally and with malice
`
`and/or were life threatening to humans, therefore, Plaintiff is entitled to recover punitive damages.
`
`WHEREFORE, Plaintiff prays for judgment against the Defendants, for his compensatory
`
`and punitive damages, together with court costs, attorneys' fees, interest, and any further relief the
`
`Court deems just and equitable. The amount sought as damages is in excess of the amount required
`
`for diversity jurisdiction pursuant to §1332 of Title 28 of the United States Code.
`
`Respecjfp.11y submitt d,
`
`Justin . Meek, OBA #21294
`Thom A. Paruolo, OBA #18442
`Kevin Cunningham, OBA #22117
`DEWITT PARUOLO & MEEK
`P.O. Box 138800
`Oklahoma City, OK 73113
`Phone: 405/705-3600
`Fax: 405/705-2573
`jmeek®461egal.com
`tom®461egal.com
`morton®461egal.com
`kcunningham®461egal.com
`
`JURY TRIAL DEMANDED
`ATTORNEY LIEN CLAIMED
`
`6
`
`

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